The future of family law is here: When society leads, the law follows

Every day, practitioners walk into courthouses built for a society that no longer exists. Yet the disputes brought before those courts reflect families, identities and relationships that would have been legally invisible just decades ago. This tension raises a foundational question for modern practice: Does the law shape society, or does society shape the law?

The courthouse and a changing society

For generations, courts housed in buildings that predate the 1960s have served as forums for resolving disputes in an ever-changing society. Legal scholars have long recognized that this evolution is not driven by statutes alone. Whether one credits Harvard Law School Dean Roscoe Pound's theory of sociological jurisprudence or Justice Oliver Wendell Holmes, Jr.'s observation in "The Common Law," (1881), the premise is the same: The law follows society, not the other way around.

A brief look at family law history makes the point clear.

In 1960, nearly 88% of children lived in two-parent households; by 1980, that share dropped to 77%, and by 2020, the most recent data available, it fell to 70%.

In both 1960 and 1980, no children were being raised by parents in legally recognized same-sex marriages. That changed only after Goodridge v. Department of Public Health (2003), 440 Mass. 309, legalized same-sex marriage in Massachusetts. Earlier, in 1967, the United States Supreme Court struck down a Virginia law prohibiting marriage between people of different races. Loving v. Virginia (388 U.S. 1), And according to the U.S. Census Bureau, the incidence of interracial marriage has increased 25-fold since then.

From fault to irreconcilable differences

Imagine that it's 1960 and you're an attorney practicing family law. There was no family law code. Not until the Family Law Act of 1969 would California have such a code. Imagine that your client tells you that they can't handle being in their marriage anymore. They tell you why, but it's not because of adultery, cruelty or desertion. Sadly, you would have to tell your client that they do not have grounds for a suit in divorce.

Myriad reasons for dissolution not related to the limited categories existed before the "irreconcilable differences" standard was created in 1969. However, the women's independence movement gained strength in the early 1960s. It is no coincidence that the primitive standards for divorce grounds were modified by the end of that decade.

So, what does this have to do with your practice today? Let's say one of your clients is in a non-traditional nuclear relationship. There are many variables--gender fluidity, gender identity, a polyamorous relationship--all with children. Those households could include the child's grandparent. After all, the number of multigenerational households is increasing. Yet there is a paucity of published opinions on these issues.

The polyamorous parentage question

Let's discuss a polyamorous household where one of the partners has a biological child that is not biologically shared with the other partners. The polyamorous partners have been together for many years. Also, the non-biological partners play a significant role in the daily caretaking of the child. However, the polyamorous partners break up. Assume that the biological parent has a custody dispute with the other biological parent. Do the polyamorous partners have no recourse for maintaining a relationship with the child?

This situation is not rare. When rendering a dissent in Obergefell v. Hodges (2015), 576 U.S. 644, Chief Justice John Roberts, with Justice Antonin Scalia and Justice Clarence Thomas joining, noted an interesting fact: It was estimated that 500,000 polyamorous families existed in the U.S. in 2009. Obergefell, Id. at pp. 704-705 (emphasis added). This means that this issue will increasingly arise over time. But like many other areas of law, it can take years, maybe even decades, to settle the law.

Where the law currently stands

To join the action, a party generally must show that they are an adoptive parent, a presumed parent, or that parentage has been established through a parentage petition.

Per Rule 5.24 of the California Rules of Court, a party would must show that they claim custody and visitation rights under the law or have physical custody at the time.

The most common path to gain standing is first to file a parentage action, often used by same-sex non-biological intended parents. An "intended parent" is someone who plans to be the child's legal parent, even if they did not give birth to or genetically create the child. However, no published California case provides direct guidance for situations like this.

Building an argument in unsettled territory

The Uniform Parentage Act (UPA) strives to ensure that children have stable, legally recognized parents, even when the parents are unmarried, of the same sex and/or not biologically related to the child. The UPA affirms equal rights and responsibilities for all children and parents, whether biological, presumed, intended, same sex or adoptive. The best argument for the polyamorous scenario would be to argue the policy of the UPA, then cite California Family Code (CFC) section 7611(d), which states: The presumed parent receives the child into their home and openly holds out the child as their natural child.

However, this comes with the caveat that the court would have to exercise its discretion and find multi-parents. Thus, the court would have to find that the person seeking visitation qualifies as a parent under CFC section 7611(d). Then the court would have to find that recognizing the additional parent does not harm the child emotionally, psychologically or practically.

The other approach would be pursuant to CFC section 7612(c), which allows the court to recognize more than two people as parents if limiting parentage to two would be detrimental to the child. When it comes to published opinions, one would have to use C.A. v. C.P. and argue by analogy. C.A. v. C.P. (2018), 29 Cal.App.5th 27 (Wife conceives child from co-worker (bio-parent), who seeks parental rights. Wife and husband knew of relationship and allowed bio-parent to maintain a significant relationship with child.). See also dicta in Adoption of E.B. (2025) 76 Cal.App.5h 359 (Adoption issues in polyamorous case). See also, L.M. v M.G. (2012), 208 Cal.App.4th 133 (Same-sex relationship, excellent discussion of how the UPA works with CFC provisions.)

Knowledge of how to handle the situation allows for a practical discussion with the client. In cases where the law is unsettled, as here, selecting the right bench officer or mediator is essential. But consider the statistics above: is the neutral in tune with society and prepared to shape the law, or will they wait for the law to catch up?

Social evolution outpaces legal recognition

In 1996, President Bill Clinton signed into law the Defense Against Marriage Act, which defined marriage as only between one man and one woman. Also, no state had to recognize another state's legalized same-sex marriages. In 2008, Proposition 8, known as the California Marriage Protection Act, passed by a narrow 52% margin.

Clearly, chronology does not define human analysis. But as a point of thought, Obergefell v. Hodges, supra., is not yet 11 years old (same-sex marriages found to be constitutionally protected). In those 10 years, society has moved even further beyond traditional nuclear discussions. Looking at entertainment for example, Sophia Burset (played by Laverne Cox) in Netflix's "Orange Is the New Black" is credited as the first transgender character in a television series. Netflix drama "Sense8" was likely the first television show featuring clearly polyamorous characters. Why do I mention these shows?

The case that shapes the future

It may be many years before clear guidance emerges on the issues facing modern relationships. In 1977, Billy Crystal played the first openly gay character on "Soap," and nearly 40 years passed before the U.S. Supreme Court addressed same-sex marriage rights. Your case could provide guidance for other Californians through a judicial opinion. The only thing you know for sure is that you have the power to help your client decide who helps make that decision. What is certain is the ability to help the client choose who will make or assist in resolving that decision--a choice that matters not only for the client but for society as a whole.

Disclaimer: The content is intended for general informational purposes only and should not be construed as legal advice. If you require legal or professional advice, please contact an attorney.