Unformatted text preview: Soc 120: Marriage and the Family
Lecture 24: Functional v. Legal Definitions of the Family Conflict & Domestic Violence Prof. Elwert Review Gay Marriage Marital rights and obligations The legal landscape of gay marriage Public opinion on gay rights U.S.-Canada comparison Normative positions
-african americans are less favorable of gay marriage than whites -catholics are most favorable of gay marriage -cohort replacement- once someone has formed a new opinion, they usually don't change it -2/3 pro gay marriage in our generation -where one lives has a great impact on where one stands on gay marriage -attitudes of republicans has not really changed but democrats have moved towards it 1 Preview Formal vs functional definition of the family Some real cases (think about these!) Conflict & Domestic Violence The all-important difference History Prevalence Explanations (Read Cherlin on child and elder abuse) Formal Legal Definition of the Family How does one become part of someone s family? Birth Marriage Adoption This is the formal legal definition of the family used in most family courts. 2 if a family behaves like a family, and considers themselves a family then the court should see them as a family Functional Definition of the Family Minow (1991) advocates that courts move to a functional legal definition of the family:
families members share emotion, intimacy, mutual recognition, also resources, that they consider themselves family members and present themselves as family members to community Meaning that non-nuclear family relationships that share the essential characteristics of traditional families be recognized as de facto families. Share affect and resources Consider each other family members Present themselves as family members to community How might this work in practice? Key$terms: $
Formal$Legal$ De$Jure$ Norma3ve$ Parental$Rights$ Doctrine$ Func3onal$Legal$ De$Facto$
as it is a fact Realis3c$ Best$Interests$of$the$ Child$ how the law says a family should be however people want to de?ine it 3 Example: Alison D. v. Virginia M. At issue: Visitation rights for child X age 7. Facts of the case are not in dispute: Relationship began in 1977 and began cohabiting in 1978 Decided to have a child in 1980 agreed that Virginia would be artificially inseminated Baby boy born in 1981, given Alison s last name as his middle name and Virginia s last name as his surname This arrangement continued until 1986, when Virginia bought out Alison s interest in the house and began to restrict Alison s access to the child In 1987, Alison moved to Ireland for career purposes, but continued attempts to maintain contact with the child Virginia terminated all contact, returning all gifts and letters. viriginia buys out allsion's assets to the home and restricts allison's contact with the kids The Case Alison seeks visitation rights under Domestic Relations Law of New York This statute provides that Either parent may apply to the court to have a minor child brought before the court and the court may award the natural guardianship, custody or visitation to either parent as the case may require [abridged] Case hinges on whether Alison is a parent 4 Virginia s Case Formal Legal: Virginia is the biological mother She is a fit mother Alison is not a parent under the law Opening parenthood rights to someone like Alison is a slippery slope The court should uphold the sacred foundation of the family as limited to birth, marriage, and adoption.
and should deny allison's request
because only can be a parent by birth, marriage or adoption and allison is none of that Alison s Case: Functional : Best interests of the child Alison is a de facto parent to the child The court is denying visitation based on standards Alison could not meet The court should consider whether or not Alison has Functioned as a parent The court has an interest in preserving the stability of parent child relationships, no matter how they were formed. 5 Appellate Court Vote: Are you in favor of: Alison s right to visit the child? Virginia s right to prevent her from doing so? Broader Questions: Would you have voted differently if: Virginia were suing Alison for child support? If Alison were a man (e.g. an infertile cohabiting partner)? What if he were the child s step-father? Should children be allowed more than two legally recognized parents? Should there be different degrees of parenthood? If so, how do we determine who gets what rights? 6 More To Think About The following scenario is based on real cases: A married woman bears the child of another man from an adulterous affair She deceives her husband into believing that he is the biological father of the child The husband treats the child as his own in good faith. He is a good father. When the child is 10 years old, the husband discovers the deception and divorces the wife So you think the husband should Have to pay child support? Be granted visitation rights against the objections of his ex-wife? Be eligible for sole custody if he wants to continue living with the child? Obviously, this isn t a same-sex case. But it raises very similar questions about legal vs functional family definitions. Conflict vs Violence Relationship conflict is inevitable People cannot always agree Not all conflict is necessary or constructive Manner of its resolution is key Based on reason and compromise vs. power, manipulation, abuse, violence con?lict is unavoidable in any relationship Domestic violence is not inevitable Conflict need not result in violence Much violence is not a result of conflict Types of abuse Intimate partner violence, child abuse Verbal, psychological, physical, neglect 7 If it Happens to You: Get Help! There is no such thing as "normal" or "tolerable" abuse. All forms of abuse are unacceptable. Abuse is never the victim's fault. Don't "stick it out." It will not get better. Seek help! E.g., http://www.uhs.wisc.edu/assault/ University Health Services 8 http://www.uhs.wisc.edu/assault/domestic-violence.shtml Sexual Assault http://www.uhs.wisc.edu/assault/assault.shtml 9 Double Standard
right that lasted the longest was the right to force sex on a partner Problem of domestic violence often downplayed Double standard: The same violent acts considered a crime between strangers were (are) not necessarily considered a crime within the family! E.g. spanking children, raping women Family exposes individuals to risk (particularly women) Protecting people vs. protecting the family Common theme throughout history Rise in individualism has enabled protective policies and programs no aspect of abuse that was not at some point deemed as acceptable and protected within the family History
lived very public lives- were not against physical aggression on kids but did enforce the absence of abuse Early Colonies (Puritans) Private family weak, strong community enforcement Punish spousal abuse But encourage severe physical discipline for children (children considered tainted by sin) 19th C: Emphasis on protecting private sphere from public intervention 10 History
-Child protection movement: doctrine of separate spheres. Americans believed universally that kids are not born of sin but born as innocent and need to be protected. Late 19th C: Child protection movement medical doctors no longer have a choice- have to report abuse to authorities in order to protect child Affective childhood (children born innocent) Victorian control of immigrant & working classes Mid-1960s+: Increasing emphasis on child protection Reporting requirements for professionals -no emphasis on protecting women til mid-1970s (had only worried about children getting abused. this movement Mid-1970s+: Women s movement Shelters & other support services State and federal legislation (protecting women, children, elderly) Prevalence Measurement problems What qualifies as abuse? (state s, victim s, perpetrator s perspective? Report, arrest, conviction?) Severe underreporting & problem of false reporting Overall, poorly measured National surveys Recent trends (last decade): 30% decline in reported child abuse & neglect, 40% decline in self-reported intimate partner violence. Probably real trends. 11 Prevalence Most victims of domestic violence are women But men also experience abuse (stigma problem) 22% women vs 8% men report ever physically assaulted 43% women vs 20% men who are physically assaulted by intimate partner are injured Deaths 76% of intimate partner homicide victims are women About as many husbands as wives killed by spouse (Difference: legal definition of homicide ) Rape 8% of women report ever raped or attempted rape by intimate partner Estimated 20% of college women experience rape or attempted rape while in college (but only about 10% call it rape) Risk Factors Clear social gradients Domestic violence more frequent among: Poor, low income, low education, unemployed Cohabitation/divorced/remarried vs marriage Young males (<30) Drug & alcohol abuse Race/Ethnicity (Female lifetime victimization 30% Black, 25% white, 15% Asian) Obvious problem of selection vs causation Risk factor cause E.g., evidence suggests that greater prevalence of violence in cohabitation vs marriage is due to selection of violent individuals into cohab and out of marriage 12 Explanations Social learning Social & intergenerational transmission Empirical support (but not deterministic) Aggression-frustration Anger displacement Social Exchange Rational actor model, calculated abuse Aligns with social gradients of abuse Interpretative Frameworks Medical Model Focus on violence as illness, consequences Political Model Domestic violence as tool of power and control of men over women Supported, facilitated, legitimized by law (e.g. marriage rape exemption), customs (e.g. gender role expectations), social structure (e.g. economic power of men) 13 ...
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- Fall '08