Return to: Index of "1994 International Covenant on Civil and Political Rights"
Index of "Treaties and Legal Issues" || Electronic Research Collections Index || ERC Homepage


U.S. REPORT UNDER THE INTERNATIONAL COVENANT ON 
CIVIL AND POLITICAL RIGHTS
JULY 1994

Article 23 - Protection of the Family

I.   Right to Marry

United States law has long recognized the importance 
of marriage as a social institution which is favored 
in law and society.  Marriage has been described as 
an institution which is the foundation of society 
"without which there would be neither civilization 
nor progress."  Maynard v. Hill, 125 U.S. 190, 211 
(1888).

Marriage may be defined as the status of relation of 
a man and a woman who have been legally united as 
husband and wife.  Marriage is contractual in 
nature, in that it creates certain rights and 
responsibilities between the parties involved.  
However, the contract of marriage is unique in the 
eyes of the law.  As one court stated:

     While we may speak of marriage as a civil 
contract, yet that is a narrow view of it.  The 
consensus of opinion in civilized nations is that 
marriage is something more than a dry contract.  It 
is a contract different from all others.  For 
instance:  Only a court can dissolve it.  It may not 
be rescinded at will like other contracts.  Only one 
such can exist at a time.  It may not exist between 
near blood kin.  It legitimizes children.  It 
touches the laws of inheritance.  It affects title 
to real estate.  It provides for the perpetuity of 
the race.  It makes a hearthstone, a home, a family.  
It marks the line between the moral of the barnyard 
and the morals of civilized men, between reasoning 
affection and animal lust.  In fine, it rises to the 
dignity of a status in which society, morals, 
religion, reason and the state itself have a live 
and large interest. 

Bishop v. Brittain Inv. Co., 129 S.W. 668, 676 (Mo. 
1910).

This report focuses only on legal and civil aspects 
of marriage.  Persons in the United States are free 
to marry within or outside a religious setting; the 
choice in no way affects the legal status of a 
marriage.

Constitutional Limitations.  Marriage and the 
regulation thereof is generally regarded as a matter 
for  the states.  The U.S. Supreme Court has 
recognized, however, that the states' rights in this 
area are subject to certain constitutional 
limitations.  For example, in Loving v. Virginia, 
388 U.S. 1 (1967), the U.S. Supreme Court struck 
down a Virginia law that prohibited interracial 
marriages.  The Court held that the statute, which 
was similar to those in effect in 15 other states at 
the time, discriminated on the basis of race in 
violation of the Equal Protection Clause of the 
Fourteenth Amendment.  The Court went on to hold 
that the law violated a fundamental liberty 
protected by the Due Process Clause of the 
Fourteenth Amendment -- the right to marry.

The Loving decision served as the catalyst for the 
reform of many archaic state laws such as those 
forbidding marriage between paupers or very distant 
relatives.  In addition, subsequent decisions have 
expanded upon the right to marry as a limitation on 
the power of the states to regulate the institution 
of marriage.  For instance, the Court has found that 
the penumbra of constitutional privacy rights 
includes not only the right to marry, but also a 
right to privacy within marriage.  Griswold v. 
Connecticut, 381 U.S. 479, 485 (1965) (overturning a 
Connecticut state statute forbidding the use or sale 
of contraceptives to married persons).  In Zablocki 
v. Redhail, 434 U.S. 374 (1978), the U.S. Supreme 
Court struck down a Wisconsin statute that withheld 
marriage licenses from persons required to pay child 
support unless they could provide proof to a court 
that they had been making regular payments.  In its 
opinion, the Court noted the traditional right of 
states to regulate marriage.  But, the Court said, 
these restrictions must be reasonable, must not 
interfere with the right to marry and must be 
narrowly tailored to achieve their required ends.  
The Supreme Court has also viewed the Fourteenth 
Amendment as a limitation on the reasons for which 
parents may be separated from their children.  See 
Palmore v. Sidoti, 466 U.S. 429 (1984) (holding that 
the Fourteenth Amendment prohibits consideration of 
the race of a step-parent in deciding whether the 
natural parent is fit to retain custody of a child).

Within these constitutional parameters, states have 
primary authority for regulating the inception, 
status, duration and termination of the right to 
marry.  Indeed, it has been said that there can be 
no valid marriage without the consent of the state. 
See Eaton v. Eaton, 92 N.W. 995 (1902); Campbell v. 
Moore, 1 S.E.2d 784 (1939). In general. each state 
has the power to regulate marriages within that 
state, and Congress has jurisdiction over marriages 
in the territories of the U.S., in the District of 
Columbia, and between members of certain Indian 
tribes.  In practice, Congress has largely delegated 
its authority in these areas to local legislative 
bodies.  Among the types of regulations governing 
marriage are those restricting age, limiting 
marriage between close relatives, and creating 
certain procedural requirements such as licensing 
and blood tests.

Capacity to Marry. The traditional common-law rule 
in most American jurisdictions, before the enactment 
of statutes covering the issue, had been that males 
had the capacity to contract marriage at the age of 
14, and females at 12.  Legislative changes have 
significantly increased the age.  Today, there is a 
substantial consensus among the states that 18 is 
the age at which a person should be allowed to marry 
without parental consent.  Most states also agree 
that this age should be the same for men and women.  
See, e.g., Alaska Stat.   25.05.011 (1991); Colo. 
Rev. Stat.   14-2-106 (1989); Mass. Gen. Laws Ann. 
ch. 207   7 (1981); Tenn. Code Ann.   36-3-106 
(1991); W.Va. Code   48-1-1 (1992).  Only one state 
-- Mississippi -- permits marriage before age 18 
without parental consent.  However, marriage of even 
younger persons is frequently authorized where  
pregnancy or birth of an illegitimate child is 
involved.  A handful of states still have different 
age requirements for males than for females.  This 
raises the question of whether these statutes are in 
violation of the Equal Protection Clause of the U.S. 
Constitution, but the U.S. Supreme Court has never 
addressed this question. 

In addition to age restrictions, most states have 
restrictions prohibiting the marriage of mental 
incompetents.  There is no general rule among the 
states as to what constitutes sufficient mental 
capacity.  The most accepted test appears to be 
whether a party to a marriage contract has the 
capacity to understand the nature of the marriage 
contract and the duties and responsibilities it 
creates. 

Consanguinity Restrictions.  Incestuous marriages 
betweens persons closely related by blood or by 
marriage have been said to violate public policy.  
See Catalano v. Catalano, 170 A.2d 726 (Conn. 1961).  
Marriages between close blood relatives, such as 
brothers and sisters, parents and children, 
grandparents and grandchildren, are universally 
prohibited by the states.  In addition, uncle- niece 
and aunt-nephew marriages are also forbidden 
throughout the United States.  One exception is 
Rhode Island, which permits Jews to marry within the 
degrees of consanguinity permitted by their 
religion.  This has been interpreted to permit 
uncle-niece marriages.  In Re Mays Estate, 114 
N.E.2d 4 (Ct. App. N.Y. 1953).

II.  Procedures for Marriage

Within the constitutional framework described above, 
all states have procedures for the licensing, 
solemnization and registration and recording of 
marriages.  The purpose of these statutes is to 
clarify the status of parties who live together as 
man and wife and to provide concrete evidence of the 
marriage.  Reaves v. Reaves, 82 P. 490 (1905).  
These procedures, which require the parties 
voluntarily to take the necessary steps to affirm 
their desire to marry, also ensure that marriages 
are not entered into without the free and full 
consent of both parties.  There is a difference of 
opinion among the states as to the effect of 
noncompliance with these statutes.  Some states 
follow the rule that failure to follow a particular 
requirement does not invalidate the marriage unless 
the statute expressly so states or unless so many 
formalities are disregarded that there is, in 
effect, no ceremonial marriage at all.  See 
Carabetta v. Carabetta, 438 A.2d 109 (Conn. 1980).  
Other states hold that failure to fulfill a 
particular requirement may render the marriage 
invalid.  Henderson v. Henderson, 87 A.2d 403 (Md. 
1952).  

Blood Tests.  Most states require a blood test as a 
prerequisite to the issuance of a marriage license.  
The tests are generally to be taken from both 
parties, and results are presented to the authority 
issuing the license.  Most statutes require that in 
order for the license to be issued, the parties must 
be free of certain sexually- transmitted or other 
communicable diseases.  Failure to comply with this 
requirement generally does not invalidate the 
marriage, although it may subject the parties and 
the issuing authority to penalties.

Waiting Periods.  In an effort to protect against 
hasty or ill-advised marriages, most states now 
require some form of waiting period.  These 
typically last a maximum of 30 days either between 
the blood test and the issuance of a license or from 
the issuance of the license and the actual ceremony.  
Failure to comply with this requirement generally 
will not invalidate the marriage if it is the only 
defect.  

Celebration or Solemnization.  The individual state 
legislatures have the authority to set 
qualifications and licensing requirements for those 
persons who are permitted to legally perform 
marriage ceremonies.  In most states, no particular 
form of ceremony is prescribed as long as the 
parties declare their intention in the presence of 
the person solemnizing the marriage.  Most states 
permit the wedding to be performed by either a 
clergyman or by a justice of the peace or other 
judicial officer.  Generally, performance of a 
marriage by an unauthorized person does not render 
the marriage void unless such is expressly declared 
by the statute.    Common-law Marriage.  Common-law 
marriage is a nonceremonial or informal marriage by 
agreement, entered into by a man and woman having 
capacity to marry, ordinarily without compliance 
with statutory formalities.  Less than one-fourth of 
the states still recognize common-law marriages.  In 
addition to capacity and an agreement, most 
jurisdictions require some act of consummation, such 
as cohabitation, to make the common-law marriage 
valid. Some courts also require proof that the 
parties held themselves out to the world as husband 
and wife or that they were thought of as husband and 
wife in the community in which they lived.  In those 
states that continue to recognize common-law 
marriages, the marriage is considered just as valid 
as those contracted in full compliance with the 
statutory requirements.

III. Status During Marriage

Until the 1960's, U.S. law generally recognized 
traditional roles for men and women.  The husband 
was viewed as the provider of the family, charged 
with meeting the family's needs through work, 
investments or other activities.  Since then, 
however, societal changes in the United States have 
radically altered this approach.  Several states 
have enacted laws providing that the duty of support 
rests equally upon husband and wife and should be 
shared equally in proportion to their individual 
abilities.  See, e.g., West's Cal. Civ. Code Ann.   
5100 (1983); Conn. Gen. Stat. Ann.   46b-37 (1986).  
In 1978, the Supreme Court invalidated a state law 
that authorized alimony payments only for wives as a 
violation of the Equal Protection Clause of the 
Fourteenth Amendment.  Orr v. Orr, 440 U.S. 268 
(1979).  In some states which have constitutional 
provisions forbidding the denial or abridgment of 
rights on account of sex, it has been held that it 
is a form of sexual discrimination to impose the 
duty of support solely on husbands.  See, e.g., Rand 
v. Rand, 374 A.2d 900 (1977); Henderson v. 
Henderson, 327 A.2d 60 (1974). 

In addition, a number of states have enacted 
community property laws which treat marriage as a 
joint enterprise between the husband and the wife.  
The philosophy of these community property states is 
that earnings by each spouse during marriage should 
be owned equally by both spouses.  The profits or 
acquisitions of those earnings are also owned 
equally.  Property acquisitions by gift, bequest, or 
devise, and property acquired before marriage are 
considered separate property.  In some community 
property states, when a marriage ends in divorce, 
all community property must be divided equally.  
Other community property states give the court 
discretion to divide community property equitably.  
Community property states allow each spouse to 
specify in his or her will how his or her half-share 
of the property should be disposed of at death.  If 
a spouse in a community property state dies 
intestate (without a will), some states provide that 
the decedent's half of the property passes to the 
surviving spouse.  In other states, the decedent's 
half passes to his or her heirs.  Nine states 
(Arizona, California, Idaho, Louisiana, Nevada, New 
Mexico, Texas, Washington and Wisconsin) have 
community property laws.

At early common law, wives acquired "dower" at the 
time of their marriage.  Dower was a life-estate in 
one-third of each piece of the husband's qualifying 
real property.  If a wife survived her husband, she 
was entitled to this third.  Dower could only be 
released by the wife's consent.  In those few states 
that still recognize dower, both the husband and 
wife must sign any deed in order to release dower.  
"Curtesy" was a similar right of husbands to their 
wives' real property if the wife died before the 
husband.  Virtually all states now have statutes 
that ensure that surviving spouses will inherit some 
share of the decedent spouse's estate.  Even where a 
will includes no provision for the surviving spouse, 
some states will allow the surviving spouse to 
renounce the will and take a statutorily defined 
share of the estate, usually one-third to one-half.  
See, e.g., Ill. Rev. Stat., ch. 110 1/2,    2-
8(a)(1978).  Section 2- 102 of the Uniform Probate 
Code provides for inheritance when a spouse dies 
intestate.  If there are no surviving children or 
parents of the decedent spouse, the surviving spouse 
inherits the entire estate.  If there are surviving 
children or parents, the Code awards the surviving 
spouse an initial portion of the estate and then 
directs that half of the remainder of the estate go 
to the surviving spouse and half to the other heirs.

Equal Rights of Spouses.  Title I of the Employee 
Retirement Income Security Act (ERISA), Pub. L. No. 
93-406, 88 Stat 829 (1974), helps to ensure the 
equality of rights for spouses.  ERISA, which 
protects the rights of pension plan participants, 
generally requires that pension benefits be paid in 
the form of a joint and survivor annuity unless the 
participant's spouse consents to a different form of 
payment or unless the plan otherwise protects the 
interests of the spouse.  The joint and survivor 
annuity guarantees that a portion of the 
participant's benefit will go to his or her 
surviving spouse.

ERISA also generally prohibits a plan participant 
from assigning his or her benefits to a third party.  
An exception is provided upon dissolution of the 
marriage.  In such a case, plan benefits may be used 
to provide child support, alimony payments, or 
marital property rights to a plan participant's 
spouse, former spouse, child or other dependent.

IV.  The Parent-Child Relationship

U.S. courts have recognized the primacy of the 
parent's role in child rearing. In particular, 
courts generally give wide discretion to parental 
decisions over such matters as the child's 
education, health care and religious upbringing.  
According to the Supreme Court, "[i]t is cardinal 
with us that the custody, care and nurture of the 
child reside first in the parents, whose primary 
function and freedom include preparation for 
obligations the state can neither supply nor hinder 
. . . And it is in recognition of this that these 
decisions have respected the private realm of family 
life which the state cannot enter."  Prince v. 
Massachusetts, 321 U.S. 158, 166 (1944).

Despite these broad parental rights, there are 
certain areas in which the states have legitimate 
interests.  For example, every state has laws which 
require that children be sent to school between the 
ages of six and 16.  See, e.g., Ala. Code   16-28-1 
(1985); Miss. Code   37-13-91 (1990); and Va. Code   
22.1-254 (1993).  However, while the state may 
require that a child attend school, it will not make 
decisions on where the child attends school or 
whether the child receives a public or a private 
school education.  In addition, where an intact 
family has a disagreement over the course a child's 
education, the courts have been reluctant to step in 
and break the deadlock. See, e.g., Kilgrow v. 
Kilgrow, 107 So.2d 885 (Ala. 1958).

Similarly, in the area of medical care, it is 
generally the responsibility of parents to determine 
whether and what type of care is to be provided.  
However, many states have given minors the right to 
consent to limited treatment without parental 
consent.  See Or. Rev. Stat.   109.640 (1990) (minor 
may receive birth control information; minors 15 and 
older may consent to treatment).  Moreover, the 
states have been willing to intervene to require 
medical treatment in certain cases in which parents 
have declined treatment on the basis of religious 
beliefs.  See Jehovah's Witnesses in the State of 
Wash. v. King County Hospital Unit No. 1, 278 F. 
Supp. 488 (W.D. Wash. 1967), aff'd, 390 U.S. 598 
(1968) (U.S. Supreme Court refused to enjoin the 
giving of blood transfusions to Jehovah's Witnesses.  
It upheld the statutes that empowered judges to 
order the transfusions since the procedure is both 
safe and necessary in many cases).   

V.   "Extended" Families

Categories of both "relatives" (including relatives 
by marriage) and "dependents" (persons forming part 
of the household or receiving a percentage of their 
support) are recognized under U.S. law for various 
purposes such as entitlement to benefits and income 
taxation.  These relationships do not, however, 
generally constitute defined legal relationships 
with fixed rights and obligations akin to the 
relationships among spouses, parents, and children.

VI.  Termination of the Marital Relationship 

Traditionally, divorce was only available upon a 
showing of one of several fault-based grounds such 
as adultery, desertion, or cruelty.  Under the 
traditional view, if the conduct that formed the 
basis of the claim for divorce did not fit into one 
of the statutory categories, a court could deny the 
request for a divorce.  Today, every state grants 
"no-fault" divorces.  Most states provide for both a 
no-fault basis and a fault basis for dissolving 
marriages.  In about one-third of the states, a no-
fault divorce is not simply an alternative, but the 
only basis for divorce.  State statutes frequently 
allow for a no-fault divorce when there has been an 
"irretrievable breakdown of the marriage," 
"irremediable breakdown of the marriage," or 
"irreconcilable differences."  See, e.g., Alaska 
Stat.   25.24.050 (1991) (incompatibility of 
temperament causing the irremediable breakdown of 
the marriage on joint petition); Arizona Rev. Stat. 
   25-312, 25-316 (1991) (marriage is irretrievably 
broken); West's Cal. Civ. Code Ann.    4506, 4507 
(1983) (irreconcilable differences which have caused 
irremediable breakdown of the marriage); Colo. Rev. 
Stat.    41-10-106, 41-10-110 (1989) (marriage is 
irretrievably broken); Fla. Stat. Ann.   61.052 
(1985) marriage is irretrievably broken);  Ky. Rev. 
Stat.   403.170 (1990) (marriage is irretrievably 
broken); Miss. Code   93-5-2 (Supp. 1986) 
(irreconcilable differences if the parties file a 
joint bill and separation agreement);  N.H. Rev. 
Stat. Ann.   458:7-a (1992) (irreconcilable 
differences causing irremediable breakdown of 
marriage); Tenn. Code Ann.   36-4-101(11) (1984) 
(irreconcilable differences between the parties).

Where a state provides both a fault and no-fault 
option, individuals may choose to pursue a "fault" 
divorce to circumvent an otherwise mandatory period 
for spouses to live separately.  Individuals may 
also prefer certain economic consequences of a fault 
divorce.  The increased use of no-fault divorces has 
allowed for consensual divorces (where previously 
one spouse had to divorce the other) and for 
unilateral divorces (where only one spouse wants to 
divorce).       Alimony and Support.  U.S. courts 
have traditionally followed the English practice of 
awarding alimony as an incident to a divorce 
proceeding.  This practice arose out of a 
recognition of the duty of a husband to support his 
mate and of the control that the husband typically 
maintained over his wife's assets during the course 
of the marriage.  Also, since divorce was typically 
fault- based, many courts awarded alimony as a 
recognition that the payor spouse was in some way at 
fault.  However, as noted above, with the rise of 
women in the workforce, these traditional arguments 
have less merit and many courts are today awarding 
alimony only in small amounts or for limited periods 
to help a spouse adjust to being on their own or to 
restart a career.   In making these determinations, 
most courts operate on a case-by-case basis taking 
into consideration such factors as the relative 
incomes of the parties, their ages, their health, 
future employment prospects and the standard of 
living to which they are accustomed.  

Although as a practical matter alimony is most often 
awarded to the wife, most states provide by statute 
that alimony may be awarded to either spouse.  These 
statutes are the natural outgrowth of the U.S. 
Supreme Court's decision in Orr v. Orr, 440 U.S. 268 
(1979), which invalidated an Alabama statute placing 
the burden of alimony only upon the husband.  

Custody and Visitation.  With the recognition of 
constitutionally based doctrines of gender equality, 
both mothers and fathers are now considered equal 
candidates for custody of minor children in the 
event of divorce.  Fathers increasingly seek to 
obtain custody of their children, either exclusively 
or on a shared or joint basis.  As a practical 
matter, however, mothers tend to receive custody in 
the large majority of cases.

All states have adopted the "best interests of the 
child" standard in deciding custody matters between 
two biological parents.  See, e.g., In re Marriage 
of Ellerbrook, 377 N.W.2d 257 (Iowa App. 1985); 
Pikula v. Pikula, 374 N.W.2d 705 (Minn. 1985).  
Courts typically consider a number of factors in 
determining what is in the child's best interests.  
These factors include a presumption that the child 
should be placed with the parent, whether father or 
mother, who was the primary caretaker before the 
divorce.  Courts also include factors such as the 
relationship that each parent has with the child, 
and, depending upon the child's age, the child's 
preference.  Joint custody is now an option in all 
states.  In many states joint custody is the 
presumed or preferred custody resolution.  What 
joint custody entails, however, varies from case to 
case and may mean the children actually live a few 
days each week with each parent, or may mean simply 
that the parents share in decision-making.

One ongoing problem in custody disputes has been the 
issuance of conflicting custody orders by different 
states.  This practice has allowed parents to "forum 
shop" to find a court willing to award them custody.  
The Uniform Child Custody Jurisdiction Act (UCCJA), 
adopted by all 50 states, and the federal Parental 
Kidnapping Prevention Act (PKPA), Pub. L. No. 96-
611, 94 Stat. 3568 (1980), 27 U.S.   1738A, have 
helped to ensure that states honor custody orders by 
another state.  The PKPA requires states to give 
full faith and credit to custody orders by another 
state rendered within the principles of the UCCJA.

The only area where the "best interests of the 
child" standard is not followed is in custody 
disputes between a biological parent and a third  
party.  In these cases, the courts have recognized 
the constitutional rights of biological parents to 
retain custody over a third party.  Unless a parent 
is found to be unfit, the courts will not terminate 
parental rights simply on an assertion that a third 
party has a superior ability to meet the child's 
interests.  See DeBoer v. Schmidt, 442 Mich. 648, 
502 N.W.2d 649 (1993) (refusing standing or 
jurisdiction in Michigan courts for couple 
attempting adoption where Iowa courts had ruled in 
favor of putative father).  Two evolving issues 
remain.  First, with regard to the rights of 
putative fathers, where the father has not been 
involved in the care of the child, courts may 
terminate parental rights.  Lehr v. Robertson, 463 
U.S. 248 (1983) (denying putative father rights 
where he failed to comply with New York State 
registration requirements).  Second, where the 
mother transfers custody, often to a relative, and 
then seeks to reverse that decision, courts have 
ordered a "best interests of the child" hearing.

Abduction of children by their parents or guardians 
is a problem that  sometimes arises in the context 
of child custody disputes.  All states are now 
parties to the Uniform Child Custody Jurisdiction 
Act, which is designed to prevent abductions by 
establishing uniform jurisdictional standards for 
child custody determinations.  These goals have been 
further implemented by the PKPA.  Internationally, 
the United States is party to the Hague Convention 
on Civil Aspects of International Child Abduction, 
and has taken legislative steps to ensure that the 
provisions of the Convention are binding in U.S. 
courts.

Child Support and Enforcement of Decrees.  It is 
well settled that both parents are responsible for 
the support of their children.  Thus in making child 
support orders, courts normally take into 
consideration the property and income of both 
parents.  This does not mean that both parents are 
required to contribute equally.  Rather, they are 
expected to contribute in proportion to the 
resources each possesses.  See Silva v. Silva, 400 
N.C. 2d 1330 (1980); Henderson v. Levkold, 657 P.2d 
125 (1983).  In determining the amount of support to 
be awarded, courts normally take into consideration 
such factors as the financial resources and needs of 
the child, the standard of living enjoyed by the 
child during the marriage, the child's educational 
and medical needs, and finally, the financial needs 
and resources of the parents. 

All states provide for the enforcement of child 
support through both civil and criminal procedures. 
Failure to provide support for a minor child is a 
criminal offense in all of the states even without a 
court order for support.  Where there is an order, 
state law provides such traditional measures as 
contempt of court and other enforcement procedures 
applicable to any civil judgment.  Interstate 
enforcement is facilitated by use of the Uniform 
Reciprocal Enforcement of Support Act, a law enacted 
by all of the states, which provides a mechanism for 
public officials to enforce orders made in one state 
against the obligated party in another state.

In recognition of the need to improve child support 
enforcement by the states both interstate and within 
each state, the United States Congress passed in 
1975 comprehensive legislation (Title IV-D of the 
Social Security Act [IV-D Program] -- 42 U.S.C.    
651-55) establishing a mandatory requirement for the 
states to set up a state agency to locate obligors, 
establish paternity, and enforce child support.  The 
legislation also established on the federal level an 
Office of Child Support Enforcement in the 
Department of Health and Human Services to regulate 
and evaluate the state programs and to operate a 
federal Parent Locator Service.  The enforcement 
services under this program are available to all 
children.  Since 1975, Congress has enacted a number 
of measures, notably in 1984 and 1988, to improve 
and strengthen the enforcement program and to 
require the states to establish child support 
guidelines, and to provide efficient enforcement 
procedures such as liens, capture of tax refunds for 
overdue support, automatic wage withholding, and 
direct interstate wage withholding.

Because interstate enforcement remained a major 
problem, Congress also established a commission to 
review the problem and make recommendations.  The 
commission report recommended numerous changes in 
the procedures for handling and enforcing interstate 
cases, most of which have been introduced in 
legislation now pending in Congress.  During the 
same time period, the National Conference of 
Commissioners on Uniform State Laws reviewed the 
state uniform act, and developed a new interstate 
enforcement act -- The Uniform Interstate Family 
Support Act -- to improve interstate enforcement.  
Congress has also made failure to provide support a 
crime in some interstate cases.

In spite of these legal safeguards and extensive 
programs, however, it is clear that more needs to be 
done to address the problem of inadequate child 
support in the United States.

VII. Other Measures of Protection

In addition to the protections outlined above, the 
United States provides a number of programs to 
assist families.  While these programs do not exist 
as a matter of right, they are designed to assist in 
areas in which there are special needs.  Many of 
these programs are operated in concert with the 
private sector.  Other programs aimed particularly 
at maternal and child welfare are discussed in 
connection with Article 24. 

In February 1993, the United States enacted the 
Family and Medical Leave Act of 1993 (FMLA), Pub. L. 
103-3, 107 Stat. 6.  "The F.M.L.A. -- like similar 
State laws and employer policies -- is intended to 
promote a healthier balance between work and family 
responsibilities, ensuring that family development 
and cohesiveness are encouraged by this nation's 
public policy."  58 F.R. 31,1794.  The FMLA, which 
covers private employers with 50 or more employees 
and most public employers, including the federal 
government, entitles qualified employees to up to 12 
weeks of unpaid leave per twelve month period for 
the birth or adoption of a child, to care for a 
spouse or immediate family member with a serious 
health condition or when the employee is unable to 
work because of a serious health condition.  Covered 
employers are required to maintain any pre- existing 
health insurance during the leave period and to 
reinstate the employee in the same or an equivalent 
job following the end of the leave. 

The FMLA, which went into effect on August 5, 1993, 
is administered largely by the U.S. Department of 
Labor's Employment Standards Administration.  The 
U.S. Office of Personnel Management, however, 
administers Title II of the Act, as this deals with 
most federal employees.

Under current law, the United States also has 
numerous programs for protecting the economic 
viability of families during times of job loss and 
for training workers for new employment 
opportunities.  These programs include Unemployment 
Insurance, the Economic Dislocation and Worker 
Adjustment Assistance Act (which amended Title III 
of the Job Training Partnership Act), the Defense 
Conversion Adjustment Program, the Defense 
Diversification Program, the Clean Air Employment 
Transition Assistance Program, and the Trade 
Adjustment Assistance Program.  These programs 
provide retraining, placement, income support and 
other support services to workers who are dislocated 
for a variety of reasons.  In addition, the Stewart 
B. McKinney Homeless Assistance Act, 42 U.S.C.    
11441 et seq., authorizes the Secretary of Labor to 
make grants for job training demonstration projects 
for homeless individuals.    

VIII.  Women and Family Law.

The development and enforcement of women's legal 
rights within the family have been a major area of 
attention in recent years.  Over the past two 
decades, domestic violence including rape, incest 
and battering, child custody, child support, and 
marriage and divorce law generally have all been 
redefined in the U.S. as women's experiences have 
been articulated in the legal and policy arena.  
Domestic violence law has been fundamentally 
transformed as more women have defined physical, 
sexual and emotional violence by male partners both 
as unacceptable and as deserving a legal remedy.  In 
addition to prosecution for relevant criminal 
offenses such as assault, many states currently 
provide more specialized remedies such as eviction 
of the aggressor and civil protection orders that 
trigger criminal penalties when violated.  In 
addition, mandatory arrest law, training programs 
for police, victims assistance programs in 
prosecutors' offices and new prosecutorial 
procedures that place the burden of the decision of 
prosecuting on the government rather than on the 
victim have all received support.  One of the more 
controversial areas remains marital rape.  Some 
States do not by criminal statute specifically 
prohibit rape within an ongoing marriage.  Others 
require evidence of significant additional violence 
at the time of the alleged rape. 
To the top of this page