Once upon a time, “family” meant Husband and Wife, two or so children, a dog, a picket fence, a single income, ’til death do us part, and so many other Rockwellian clichés. Our society, enamored with that ideal, sculpted our society around the “nuclear” family of the 1950s (1550s?). Everything around us operates under and in favor of this construct, and there’s only one small problem: These types of families are, at this point, in the minority.
It would be disingenuous for me even to attempt to describe the “typical” family of the twenty-first century, for the simple reason that it doesn’t exist. Family can only be defined by its makeup, and its makeup defies such restrictive boundaries as a definition.
It causes a problem for the courts, who have, traditionally, been heavily involved in the family, from the issuance of a marriage license to the end of probate, and, to be certain, every step in between. Courts prefer the “typical” situation: Boy Meets Girl, Boy marries Girl. Boy and Girl are fruitful and multiply. Boy and Girl acquire wealth and assets. Boy and Girl disagree, divorce, distribute their marital estate, and reveal the worst of themselves in a fight over where the kids sleep. Boy and Girl die, and bitter kids fight over their stuff.
This isn’t really “typical” anymore.
Today it can be Boy meets Boy, Boy marries Boy, Boys start a family using alternative reproductive technology. The law of Boy-Meets-Girl says that only one can be Dad because the fundamental rights of the anonymous biological donor (and possibly the uninterested surrogate mother) cannot be compromised by something as droll as an intact family unit. And it seems like so much to do over nothing when these two fathers just want to enjoy their newborn child together. But when Boy disagrees with Boy, one of them runs the risk of being fully excluded.
Today it can be a grandfather who lived up to that erstwhile family ideal: worked hard, met Girl, raised a family, and—by no fault on his part—watched as that family destroyed itself at the expense of their own children. Now, septuagenarian Grandad must (re-)assume the role of Dad, Mom, and Power of Attorney instead of enjoying his golden years…so long as he can convince a court that he is a better option than his deadbeat kids.
Today it can be Boy meets Girl, Girl meets another Boy, Girl has a baby, and 10 years later Boy and Girl and Boy are left to determine if “Dad” means the one who raised, loved, and supported the child, or the one who shares a 99.999% probability of biological parenthood.
It can be Boy meets Girl, but Boy and Girl see no worth in the institution of marriage and can have the kids, and the dog and the picket fence, and everything is just fine until they part ways and realize there are no protections for their mutual property rights.
Today it can be Boy Meets Girl, Boy rapes Girl, Girl forced to tolerate as Boy exercises custody anyway.
The law that was written is the Law of Boy-Meets-Girl. As that law slowly adapts to meet the needs of an ever-changing nucleus, most of the above situations require creativity, common sense, and the pure gall necessary to ask for something that Boy-Meets-Girl failed to contemplate.
“Family” can no longer be limited to the Boy-Meets-Girl standard. We have a few useful touchstones that allow us to work within the confines of Boy-Meets-Girl: lofty, esoteric phrases like “the best interests of the child” and “fundamental rights of a parent.” For the increasing list of situations that can’t be pigeonholed into Boy-Meets-Girl, however, we must innovate. In order to make family-inclusive, we must continue to expand the law to accommodate every family, regardless of their makeup. Knowing that there’s no limit to what constitutes a Family, we must never limit ourselves.