Index of "1994 International Covenant on Civil and Political Rights"
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U.S. REPORT UNDER THE INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS
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
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be rescinded at will like other contracts.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.
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
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
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.
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
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
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
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.
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.
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