The Relationship Between Family Law and Civil Law

What is Family Law?

Family law deals with the most fundamental relationships in human society. Its most common focus is of course marriage, but just as important are those who have been married and who are undergoing a divorce, as well as parents and their children, and those who seek to adopt. As family law lawyers, we assist clients in all manners involving these intimate relationships.
Family law appeals to many because it encompasses a breadth of interests: divorce, annulment, nullity, legal separation, alimony (also known as "spousal support" or "spousal maintenance"), equitable distribution of property (also known as "asset distribution"), attorneys fees and counsel fees (also known as "litigation expense allowances"), paternity, child support and visitation, child custody , adoption, termination of parental rights and legitimization.
Family law encompasses also the governing statutes and courts; we have the Divorce and Matrimonial Sections of our Domestic Relations Code, along with the Divorce, Domestic Relations and Orphans’ Courts of Pennsylvania. And family law considers not only the traditional nuclear family of husband, wife and children, but also our changing definition of "family": single parent families; people raising children together while not married or living in the same household; grandparents raising grandchildren; even same sex couples and blended families.
Family law functions at both the state and local levels. The state provides the governing laws, while local courts and judges implement the provisions of those laws.

Defining Civil Law

Civil law in the broadest sense is the subject matter of law that does not fall into the category of criminal law. It is perhaps the largest category of law, covering many topics and subject matters, including contracts, property, torts, intellectual property, administration, labor law, personal injury, and more. Family law practitioners, like our team at WGF, are often confronted with the notion of family law as being a subset of civil law, and to an extent this is true. Civil law exists with the purpose of creating and enforcing the legal relationships between individuals. It is important to note and understand, however, that civil law and family law are different from criminal law, which focuses on the issues of public policy and society at large. For example, if someone violates a minor traffic rule, it may be seen simply as a civil matter about the relationship between two parties. Society at large is not generally affected by an automobile accident (besides perhaps by a traffic tie up). If someone gets stopped in a traffic stop, it is typically a minor offense. However, if someone is weaving in and out of traffic and is stopped for DUI, it becomes a criminal matter. That is because the matter moves from being a discussion between two parties to something that impacts society at large. In that case, criminal law and civil law exist to protect society from drunk or dangerous drivers, whereas in the first situation, those issues do not apply. Civil law proceedings are used to resolve non-criminal disputes between individuals. In the context of family law, for instance, even though divorce proceedings may be complex, involve intricate negotiations, and resolutions, it is not deemed a criminal matter. It is, instead, a family law matter, which is a subset of civil law. Civil law proceedings (including family law proceedings) seek to inform and to resolve any issues between the parties. Once all necessary information is known, an equitable resolution that addresses the concerns of all parties can be reached.

Family Law as a Subset of Civil Law

Family law is frequently identified as a subset of civil law. The reasons for this characterization lead to the conclusion that family law is an offshoot of civil law. Indeed, family law is defined in the law as that area of the law concerning family matters such as divorce, spousal and child support, child custody and visitation, adoption, dissolution of domestic partnerships, and guardianship and conservatorship, among other topics. These matters stand in contrast to other areas commonly seen in civil law cases, including those involving personal injury, contract violation, and drug offenses. And while other areas of law (notably estate and probate matters) also involve interpersonal decisions and disputes that impact the family unit, the one feature that distinguishes family law as a branch of civil law is the degree of judicial involvement with the family unit, specifically when ordered by the Court to make such decisions. In short, the Court would not ordinarily have such direct involvement in the affairs of the family absent some emergency or exigent circumstance, or if one of the parties involved sought the assistance of the Court.
The procedures involved in handling family law matters tend to be similar to the procedures seen in other civil law proceedings. For example, family law matters may be brought before the Court either by the use of a petition or a complaint, both of which provide the Court with information that guides judicial dispositions. As with other civil matters, family law concerns are adjudicated by means of filing appropriate paperwork with the Court and, when necessary, appearing before a judicial officer. All family law matters within the same court group are also subject to a Family Law Case Management Conference/Fairness Conference shortly after the case is filed, at which time the Court’s staff as well as the parties (and/or their attorneys) gather together to discuss and determine the future course of the litigation, including the setting of interim orders before trial, if appropriate.
There are in place statutes and rules that guide and address matters pertaining to family law, whether established by statute or rule. Such procedural rules include the California Family Code, the Rules of Court as applicable to family law matters, and the Local Rules of Court.

Key Differences Between Family and Other Civil Laws

The family law spectrum is a broad one. If you speak to any family law attorney, they will tell you the differences between a divorce, child custody battle, and spousal support case. These are the more common ones that are presented by family court cases.
Outside of family law in California, we have varying degrees of legal areas. Some of those areas mimic the family law spectrum, like trust litigation or probate matters. But the bulk of areas do not relate to family law. For example, if I am involved in a business tort dispute with another party, I expect the dispute to be handled much differently than a family law dispute would be handled. Because of the way family law operates in California, there are huge differences with how family law disputes are handled. One of the biggest differences is the accessibility of the courts. You can practically walk into a family court and start a case for divorce within 10 minutes. However, if you are involved in a business tort dispute with another party, you cannot simply redress these wrongs in the same manner. Family law has a distinction in administrative powers. Family law is substantially different from other areas of the court because of the emotional impact the legal battles have on the parties involved. Family law attorneys and Judges often believe that family law cases are emotional and require a faster judgment. The judges feel as though if longer periods of time are given for resolution, this will only allow the animosity between the litigants to grow. Attorneys see this first-take opinion for judges to be parochial or crusade based opinions that negatively impact the family unit. Family law judges in California have a litany of abuse they can use to get away with their decisions. Family law judges can order you to counseling, community labor, force you to sell your house, take away your kids, suspend your drivers’ license, punish you with punitive damages, accept an order to show cause response, and basically anything else up to and including jail time. Why is this important? Because you are not afforded the viewpoint of a fair trial or the evidence practiced in civil litigation. Family law is bound by family law rules; and family law rules alone. While other areas have multi-faceted rules that apply to these respective litigants, family law has a separate and distinct set of rules that apply. This is why most family law attorneys are constantly reading and studying. The law in family law moves faster than any other area of law that I have come across. As a result, a good family law attorney is always reading cases and statutes when there are changes. The law changes after every legislative session in Sacramento, which means that family law attorneys have to stay current with the law. Family attorneys that aren’t set and dedicated to their clients become part of the case because the client lacks the knowledge necessary to go at the attorney head on. The family law dynamic in California is one of the most difficult areas of court for litigants without an attorney to navigate. Civil litigation areas operate differently. In civil litigation, you are generally entitled to discovery (evidence in favor of your position), and then you are required to go to trial. There are judge made rules for the family law dynamic, but there are also statutory rules that move like molasses through a straw an ultimately give way to imagine if you were to wait. It may take 6 months to a year to get your day in court. Meanwhile, every day that you wait, your asset value depreciates. Family law has a way of moving rapidly; even when this is to the detriment of both sides. For some reason the Court still has its own set of rules that applies to family law cases. Keep in mind that not all family law cases are created equal. Some areas of family law have less urgency and require the assistance of attorney, almost always. Family law will always be an interesting area of law for attorneys; and that can never be taken away, because of its unique qualities.

How Family Law Works

In general, legal proceedings in family law matters are not decided by a jury. Instead, such matters are handled by judges, or family law magistrates specially trained in the area of family law. This avoids the problems discussed in the previous paragraph and the complexity of having one jury member with a different idea or thought process than another one.
Although a case may proceed to litigation, a large number of family law cases are actually resolved by negotiation between the parties. A common way for this to occur is through participation in some form of Alternative Dispute Resolution ("ADR"). The most common forms of ADR are mediation, collaborative law and conciliation.
Conciliation is generally a very limited process, oftentimes conducted solely by a judge or magistrate. It’s purpose is to attempt to resolve very narrow issues without the necessity of formal discovery or litigation. Whereas conciliation is generally used to resolve limited, specific issues, mediation may be used to steer the parties toward a global resolution of more substantial issues.
During the mediation process, the parties’ attorneys and their clients meet with a trained mediator to discuss the issues in the case and to attempt to reach a resolution. Generally, mediation is a voluntary process, although parties must sometimes submit to court-ordered mediation. Nevertheless, even when court ordered, mediation usually remains voluntary in nature , and no party can be forced to settle their case. If the parties do reach a resolution during mediation, that resolution is memorialized in a written settlement agreement. If they don’t, the case usually proceeds to discovery and litigation.
The collaborative law process requires that the parties each retain attorneys trained in collaborative law. Collaborative law relies on a spirit of cooperation between the parties and their attorneys. The parties agree, in writing, to cooperate with each other and to disclose all relevant information and documents, to act in good faith in the negotiation process, to try to work out all issues and to respect one another if an impasse is reached. While engaging in the collaborative process, the parties agree that they will not go to court to resolve any issues or for any hearing or trial. If they do reach an impasse during the collaborative process, they must each disengage from the collaborative process. At that point, they must each retain new counsel to litigate the matter.
Mediated settlement agreements and collaborative law settlement agreements are usually then submitted to the court for approval. If approved, the agreement becomes an order of the court. Sometimes, a judge will want to conduct a final review of the mediated or collaborative law agreement before entering it. Other times, the court may accept the agreement with no questions asked.

Effects on Families and Individuals

The ramifications of family law proceed through the lives of the affected individuals. Cases are frequently worked through with much emotion, stress, drastic financial impact and the unknown. Family Law has significant impacts both on individual constituents, relatives, and in some cases entire communities. Laws surrounding family law serve to protect family unit interests while still allowing businesses, government agencies, and area municipalities their legal rights in relation to those interests. Family law has an irrefutable effect in some way on family business and corporate interests. The impacts of family law extend far beyond separating partners and may severely impact one or both parents of minor children, especially when minors will require special health, psychological or rehabilitation services. Where there are no minor children, the personal decision making processes of adults may require the use of a special advocate, in some cases throughout the duration of a lengthy separation or lengthy period of marital discord. Family law impacts on minors lie in the area of parental guidance. In instances where domestic violence is a factor, minors may bear witness to physical violence as well as emotional abuse, while parental separation may cause a child to feel being torn between parents. Carried into a shared custody situation with single parenting and extended out to include the role of step-parent, a split parenting arrangement may be highly destructive psychologically for the minor involved. Spousal abusive situations that escalate to separation will have a negative and long lasting impact in one or more ways on a family unit. Children in such family settings are always put at risk of sustained psychological fallout. Family law in some part protects the children of separate and divorced parents. Family law in the area of domestic violence will profile, regulate and enforce protective measures and penalties. Family law will define and characterize what constitutes a family as well as offering real protections to prevent many types of domestic violence while adjusting custodial arrangements with the safety of children and mothers in mind. Often the specialization of family lawyers allows for the locating of financial and physical assets hidden from the track of family law practitioners. Family lawyers can move quickly and are an asset in the need to divide assets pursuant to family law. Family law will profile, categorize and enforce spousal maintenance obligations. Family law will allow a party to move forward with a structure in place for spousal and/or child support. Family law provides procedural rules, guidelines and enforcement mechanisms. Family law, by its own nature, is the most stressful for the clients involved. Processing through the system of family law can consume individuals to such a point that they occupy their entire time and focus. Reluctantly, those individuals involved find family law to be consuming to a degree that it is not possible to concentrate on much of anything other than issues associated with family law. Family law will promote, protect and enforce spousal support and child maintenance. Family law will regulate the division of family property in the event of separation or divorce. Family law is a legal area where reconciliation and unity may be hard to initiate but will be openly encouraged and without prejudice. Family law will make room for, and support, reunification where it can be safely achieved. The laws surrounding family law issues are truly a necessity. Family law promotes and forces the protection of the family unit. Family law exists to safeguard children from parental conflict, the possible fallout from child-parental bias, and misinterpretation of events due to emotional turmoil. Family law will ensure that family law issues are processed in a safe and fair manner and once again sets out the guidelines for reunification. In some instances, family law protects an adult spouse – whether male or female – from experiences of trauma and emotional, financial and physical abuse. Family law protects the vulnerable from personal impropriety.

Conclusion

In conclusion, the relationship between family law and civil law is profound, as both areas of law share a common goal: the protection of the interests of individuals in society. Family law may appear to the untrained eye as an area of law that is limited to address the needs of individuals and groups amid a legal dispute in which existing personal relationships are put at risk. In truth , however, family law represents a microcosm of the civil union between two persons, as well as the societal impact the issues arising from such a union may have. Family law is the very basis of civil law and the value of its contribution to law and society cannot be overstated.