Balancing Realism and Idealism in American Family Law

• Post by: Lynn D. Wardle
• December 24, 2017

There is usually a gap of some size—large or small—between the realities of life and the ideals of the law. The ideal in family law is to foster, support, and protect healthy, happy, and effective families. The reality, however, sometimes falls short of that ideal. Sadly, American family law sometimes impedes family success and frustrates the well-being of families and family members. The diversity of individual experiences, beliefs, and social realities are seldom fully reflected in the law. Some disparity is unavoidable because the law must establish a clear, uniform rule applicable to all members of society, including those who hold and wish to observe other (minority) standards. Viewpoints concerning family life and family values vary substantially among the members of any society. Thus, normal individual diversity often impedes or frustrates the pursuit of social and legal uniformity, especially in family law.  Lawmakers generally seek to enact laws that reflect the values and experiences of the majority. Inevitably, the views and values of some other members of society, especially minorities and dissenters, are inadequately reflected in—or altogether omitted from—the law. That is how democracy works—by respecting and implementing the will of the majority. However, mature democracies also value and seek to protect the rights and interests of minorities, as well.  One way that the rights and interests of minorities are protected in the United States is through the federal structure of government. The Constitution of the United States of America grants certain limited governmental authority and power to the national government, but it reserves other governmental authority and power to the state governments—including the power and authority to regulate family relations. That means that, within broad constitutional boundaries, each state determines what its own family laws and policies will be, and they may differ, sometimes markedly,