Family court

Last updated
The Federal Court Building on the corner of La Trobe Street and William Street, the location of the Melbourne division of the Family Court of Australia Melbourne Federal Court.JPG
The Federal Court Building on the corner of La Trobe Street and William Street, the location of the Melbourne division of the Family Court of Australia

Family courts were originally created to be a Court of Equity convened to decide matters and make orders in relation to family law, including custody of children, and could disregard certain legal requirements as long as the petitioner/plaintiff came into court with "clean hands" and the request was reasonable, "quantum meruit". Changes in laws and rules have made this distinction superfluous. [1]

Contents

Family courts hear all cases that relate to familial and domestic relationships. Each US state and each country has a different system utilized to address family law cases including decisions regarding divorce cases. [1]

In the United States

Madison County Family Court in Richmond, Kentucky. Downtown Richmond Historic District 02.jpg
Madison County Family Court in Richmond, Kentucky.

Family courts were first established in the United States starting in the late 1910s at the behest of probation officers invested in the success of specialized domestic relations courts. [2] Members of the National Probation Association (NPA) advanced the idea that "combining criminal nonsupport, juvenile delinquency, and divorce into a unified 'family court' would reduce jurisdictional overlap and ensure deep, rehabilitative treatment by probation officers across family-related conflicts." [2] This idea was minimally successful and led to varied reformation of family courts throughout the 1920s and 1930s. [2]

The original criminal nature of family courts was slowly replaced by an impliedly civil approach, starting in the 1930s with a New York law designed to treat nonsupport cases as a civil matter. [2] The shift to civil nonsupport across the country and the addition of divorce jurisdiction led to family court dockets becoming more civil in nature. [2] Those found in contempt in civil nonsupport cases were still incarcerated as they were in the criminal nonsupport system. [2]

In 1933, New York established a standalone family court, "somewhat confusedly" called the Domestic Relations Court, to further remove family matters from criminal jurisdiction. [2] However, in reality, this new family court and those that followed blended criminal and civil components, removing the constitutional protections offered by criminal procedure while still maintaining criminal-like enforcement mechanisms. [2] In addition, New York passed the Uniform Support of Dependents Law (USDL) in order to provide a mechanism for interstate civil enforcement of family court rulings. [2] [3]

Later, as probation officer involvement dwindled (partially attributable to the model Family Courts Act produced by the NPA in 1959) and more family courts retained jurisdiction over divorce, the machinery of family courts began to look even more civil. [2] However, some aspects of family court enforcement still retain their criminal roots in heavy state involvement, including incarceration as a consequence of nonpayment of child support, wage garnishment, revocation of driver's licenses, and denial of passport applications. [2] Some family courts still use older criminal nonsupport statutes, even though protections afforded by constitutional criminal procedures are oftentimes not present. [2] Most cases are presided over by a single judge without a jury, except in the State of Texas, where parents have a right to trial by jury. [4] These muddy distinctions between criminal and civil proceedings within family courts have led to calls for reformation, arguing that the seemingly civil nature of family courts is a method used to circumvent criminal procedural protections while still maintaining criminal enforcement machinery. [2]

In England and Wales

Cases involving children are primarily dealt with under the Children Act 1989, amongst other statutes. As of April 22, 2014, there are two family courts:

The Family Court was created by Part 2 of the Crime and Courts Act 2013, merging the family law functions of the county courts and magistrates' courts into one.

Two scenarios are covered by the Children Act of 1989: private law cases, where the applicant and respondent are usually the child's parents; and public law cases, where the applicant is the local authority and the parents are usually the respondents. There is much debate at present over whether the manner in which the law is administered generally leads to outcomes that are beneficial to the families concerned. In this context, see fathers' rights.

Cases involving domestic violence are primarily dealt with under Part IV of the Family Law Act 1996.

In England, a family court may be called upon to order child maintenance payments, when the child is either under the age of 16, or under the age of 20 receiving a full-time education (but not higher than A-Level or equivalent). [5]

Alleged abusive partners were sometimes allowed to cross examine their victims in ways that could be extremely stressful. Peter Kyle described this process as "abuse and brutalization" of women by the legal system: "Mothers need the protection of the law and they need to know in advance that the system is there to look out and protect their interests. It only takes one woman to be placed in a situation where she can be legally be asked by the man who has violently abused her; 'When did you last have sex?' That only has to happen once to realize that the system is corrupted and domestic abuse is going on in our system in the courtroom." [6] Changes to this process are forthcoming. [7] That the accused is allowed to challenge their accuser is a basic principle of justice. To call an accused person "the abuser" is to prejudge the case.

In India

The Family Courts Act, 1984, was enacted by the Parliament of India to establish Family Courts for resolving disputes related to marriage and family affairs in a conciliatory manner. Family Courts are established for areas with a population exceeding one million and may be established for other areas as deemed necessary by the State Government. Family Courts have jurisdiction over various matters, including divorce, restitution of conjugal rights, guardianship, maintenance, and disputes related to property and matrimonial status.

The Act emphasizes the importance of settlement and reconciliation, and Family Courts are encouraged to make efforts to assist parties in arriving at a settlement. The proceedings in Family Courts may be held in camera, and they have the authority to seek the assistance of medical experts, welfare agencies, and other professionals. [8]

In Hong Kong

The Family Court of Hong Kong mainly deals with divorces and welfare maintenance for children. [9]

Family courts based on Islamic law

In jurisdictions where Sharia and Islamic jurisprudence prevail, family courts follow the rules of Islamic marital jurisprudence.

See also

Related Research Articles

Family law is an area of the law that deals with family matters and domestic relations.

Jurisdiction is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple levels.

Child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other similar relationship. Child maintenance is paid directly or indirectly by an obligor to an obligee for the care and support of children of a relationship that has been terminated, or in some cases never existed. Often the obligor is a non-custodial parent. The obligee is typically a custodial parent, a caregiver, or a guardian.

<span class="mw-page-title-main">Restraining order</span> Legal order prohibiting certain entities from specified actions

A restraining order or protective order, is an order used by a court to protect a person in a situation often involving alleged domestic violence, child abuse, assault, harassment, stalking, or sexual assault.

Probation in criminal law is a period of supervision over an offender, ordered by the court often in lieu of incarceration. In some jurisdictions, the term probation applies only to community sentences, such as suspended sentences. In others, probation also includes supervision of those conditionally released from prison on parole. An offender on probation is ordered to follow certain conditions set forth by the court, often under the supervision of a probation officer. During the period of probation, an offender faces the threat of being incarcerated if found breaking the rules set by the court or probation officer.

In modern society, the role of marriage and its termination through divorce have become political issues. As people live increasingly mobile lives, the conflict of laws and its choice of law rules are highly relevant to determine:

<span class="mw-page-title-main">Family Law Act 1975</span>

The Family Law Act 1975(Cth) is an Act of the Parliament of Australia. It has 15 parts and is the primary piece of legislation dealing with divorce, parenting arrangements between separated parents (whether married or not), property separation, and financial maintenance involving children or divorced or separated de facto partners: in Australia. It also covers family violence. It came into effect on 5 January 1976, repealing the Matrimonial Causes Act 1961, which had been largely based on fault. On the first day of its enactment, 200 applications for divorce were filed in the Melbourne registry office of the Family Court of Australia, and 80 were filed in Adelaide, while only 32 were filed in Sydney.

The District Court is the lowest court in the Irish court system and the main court of summary jurisdiction in Ireland. It has responsibility for hearing minor criminal matters, small civil claims, liquor licensing, and certain family law applications. It is also responsible for indicting the accused and sending them forward for trial at the Circuit Court and Central Criminal Court.

The Uniform Reciprocal Enforcement of Support Act (URESA), passed in 1950, concerns interstate cooperation in the collection of spousal and child support. The law establishes procedures for enforcement in cases in which the person owing alimony or child support is in one state and the person to whom the support is owed is in another state.

In the United States, child support is the ongoing obligation for a periodic payment made directly or indirectly by an "obligor" to an "obligee" for the financial care and support of children of a relationship or a marriage. The laws governing this kind of obligation vary dramatically state-by-state and tribe-by-tribe among Native Americans. Each individual state and federally recognized tribe is responsible for developing its own guidelines for determining child support.

<span class="mw-page-title-main">Divorce law by country</span>

Divorce law, the legal provisions for the dissolution of marriage, varies widely across the globe, reflecting diverse legal systems and cultural norms. Most nations allow for residents to divorce under some conditions except the Philippines and the Vatican City, an ecclesiastical sovereign city-state, which has no procedure for divorce. In these two countries, laws only allow annulment of marriages.

<span class="mw-page-title-main">Alberta Court of Justice</span>

The Alberta Court of Justice is the provincial court for the Canadian province of Alberta. The Court oversees matters relating to criminal law, family law, youth law, civil law and traffic law. More than 170,000 matters come before the Court every year.

The Children's Court of Victoria is a statutory court created in Victoria, Australia. The court deals with criminal offences alleged to be committed by children aged between 10 and 17 and with proceedings concerning children under the age of 17 relating to the care and protection of children.

The Judiciary of Vermont is the state court system of Vermont, charged with Vermont law.

<span class="mw-page-title-main">Circuit Court of Cook County</span> Judicial circuit in Illinois, U.S.

The Circuit Court of Cook County is the largest of the 24 circuit courts in the judiciary of Illinois as well as one of the largest unified court systems in the United States – second only in size to the Superior Court of Los Angeles County since that court merged with other courts in 1998.

The Ohio Courts of Common Pleas are the trial courts of the state court system of Ohio.

The district courts are the ordinary trial courts of general jurisdiction under the law of Taiwan. Currently there are 22 district courts under the jurisdiction of the Republic of China (Taiwan).

<span class="mw-page-title-main">Brussels II</span> European Union regulation

Brussels II Regulation (EC) No 1347/2000, which came into force on 1 March 2001, sets out a system for the allocation of jurisdiction and the reciprocal enforcement of judgments between European Union Member States and was modelled on the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. It was intended to regulate domains that were excluded from the Brussels Convention and Brussels I. The Brussels II Regulation deals with conflict of law issues in family law between member states; in particular those related to divorce and child custody. The Regulation seeks to facilitate free movement of divorce and related judgments between Member States.

The legal system in the United Arab Emirates is based on civil law, and Sharia law in the personal status matters of Muslims and blood money compensation. Personal status matters of non-Muslims are based on civil law. The UAE constitution established a federal court system and allows all emirates to establish local courts systems. The emirates of Abu Dhabi, Dubai and Ras Al Khaimah have local court systems, while other emirates follow the federal court system. Some financial free trade zones in Abu Dhabi and Dubai have their own legal and court systems based on English common law; local businesses in both emirates are allowed to opt-in to the jurisdiction of common law courts for business contracts.

The Family Court of the State of New York is a specialized court of the New York State Unified Court System located in each county of the state. The New York City Family Court is the name given to the state Family Court within New York City.

References

  1. 1 2 "Types Of Cases Tried And Role Of Court". family.laws.com. 2013. Retrieved 31 July 2013.
  2. 1 2 3 4 5 6 7 8 9 10 11 12 13 Katz, Elizabeth D. (2019-09-01). "Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws". Rochester, NY. SSRN   3168243.{{cite journal}}: Cite journal requires |journal= (help)
  3. ↑ Lawlink Family Lawyer
  4. ↑ "Federal Court Basics". uscourts.gov. 2013. Retrieved 31 July 2013.
  5. ↑ "Arranging child maintenance through the Child Support Agency or Child Maintenance Service". gov.uk. 2013. Retrieved 21 November 2013.
  6. ↑ Revealed: how family courts allow abusers to torment their victims The Guardian
  7. ↑ Courts to ban cross-examination of victims by abusers
  8. ↑ https://www.indiacode.nic.in/bitstream/123456789/16127/1/a1984__66.pdf [ bare URL PDF ]
  9. ↑ "About Us". Archived from the original on 2008-09-15. Retrieved 2014-03-22.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.