Family law is the trailing indicator of cultural change

Posted Saturday, January 28th, 2023 by Gregory Forman
Filed under Jurisdiction, Not South Carolina Specific, Of Interest to General Public

Yesterday I lectured for the South Carolina Bar’s annual guardian ad litem training on the topic “Post-COVID Child Custody and Visitation Case Law Update (2020-2022).”  Basically, I summarized and explained the importance of every published South Carolina appellate court opinion addressing child custody since January 2020.

I have often noted (and intend to do subsequent blogs addressing) how family law is a trailing indicator of cultural change.  Yesterday’s lecture was further proof of that.  Fifty years ago, almost all custody litigation was between spouses or former spouses. Few of the custody cases from the past three years involved parent versus parent.  Not one involved custody issues stemming from a divorce.  Family law is reflecting the fact that fewer children are being born to married couples.  Of course, in 2023, that isn’t noteworthy.

What was noteworthy was how many of these cases involved the doctrines of De Facto Custodian (established in South Carolina in 2008) and Psychological Parent (established in South Carolina in 2006).  I was well into my second decade of practice when these doctrines became established.  Both allow non-parents (and often non-relatives) to have parent-like rights to seek and obtain visitation and even custody.  The past three years of caselaw demonstrates this happening often, at least in published appellate opinions.

The matter of third-parties raising children isn’t some 21^st century invention.  However, the doctrines to support such folks are 21^st century developments.  As this blog notes, family law is the trailing indicator of cultural change.  Another topic at yesterday’s CLE highlights this fact.  Local family law attorney Lauren Edwards lectured on “The GAL’s Guide to Advocating for LGBTQ+ Children and Teens in Family Court Cases.”

When I opened my practice in 1993, the United States Supreme Court had recently issued an opinion authorizing the criminalization of consensual homosexual activity.  Thirty years later the culture is much more accepting of homosexuality and non-gender conforming behavior.  It was a mere twelve years from Massachusetts allowing same-sex marriage to the United States Supreme Court holding it was a constitutional right.  From my liberal/progressive perspective this is a remarkable civil rights achievement. Lauren’s lecture topic was barely conceivable in 1993.  That it was both well received and uncontroversial in 2023 is heartwarming—an example of our culture having greater concern for the well-being and dignity of historically marginalized groups.

Yet many of the issues stemming from LBGTQ+ issues have yet to be litigated in South Carolina.  There was a recent case indicating that same-sex common law marriages could be established prior to South Carolina formally authorizing such marriages in 2014 (it is actually Ms. Edwards’ law partner, Colleen Condon, who was a co-plaintiff in the case authorizing same-sex marriage in South Carolina).  But there are no reported cases addressing gender change or non-conforming issues.  There will certainly be published opinions within a decade addressing T issues. At some point I expect litigation over whether a family court judge can favor a heterosexual parent over an LGBTQ+ parent (many of our family court judges have very traditional/Christian-conservative views on morality).  These are issues being debated in the culture at large but not yet litigated at the appellate court level.

The culture changes law to a much greater extent than the law changes culture and cultural changes almost always pre-date legal changes. I suspect the family law attorney presenting a caselaw update in 2048 will be discussing numerous cases involving LBGTQ+ issues. Future cultural changes will undoubtedly affect family structure and those future changes will happen well before the appellate courts weigh in.  Those cultural changes of 2048 will be the caselaw updates of 2068.