What Is Family Law?

When a couple with children divorces, the hardest issues to resolve generally involve custody decisions. Such matters fall under the auspices of family law, a practice area concerned with issues such as marriage, divorce, adoption, child custody, child support and other challenges that face families.

In some but not all states, matters pertaining solely to family law are heard in special courts called family courts. States that use family courts include New York, Hawaii, Delaware, Maine and North Carolina. In other states, circuit courts may address family law in addition to other legal matters.

Family Law and Child Custody Agreements

Nearly all courts encourage parents to come up with a child custody arrangement without judicial intervention. Parents can design a plan themselves or with the help of a trained professional mediator.

In instances when parents for whatever reason are unable to negotiate an arrangement, the court will come to a decision for them using a standard that considers the best interests of the child. Each state has its own laws setting forth criteria that determine how this standard should be determined, however these laws share one basic assumption: Except in cases where a parent has been convicted of a crime involving violence or sexual abuse, it is generally accepted that a child's best interests include a continuing relationship with both parents. This means that custody will be shared in some manner whether the child spends time with both parents on an equal basis or one parent retains physical custody and the other has visitation rights.

Other factors the court evaluate in determining child custody include:

• The ability of each parent to provide a safe, secure environment.
• The degree to which parents are able to work together to promote the best interests of their child.
• If a parent has functioned as the primary caretaker.
• For a child over the age of 12, his or her own wishes.

Spousal Support (Alimony)

Another issue that comes under the jurisdiction of family law is spousal support or alimony. Alimony functions to mitigate the negative economic effects that divorce may have on the spouse who either is not earning a wage or is earning a lower wage than his or her erstwhile partner.

Courts have considerably more discretion in awarding alimony than they have in awarding custody. The Uniform Marriage and Divorce Act, adopted by many states as a model in this regard, suggests that the following criteria be assessed in determining alimony:

• Length of the marriage.
• Spouses' standard of living throughout the marriage/
• Age, financial status and physical and emotional state of the spouses/
• Length of time it would take for the non-earning or lesser earning spouse to become financially independent/
• Ability of the spouse charged with making payments to support both the spouse receiving alimony and himself or herself.