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2006

Faculty Scholarship

Family Law

Marriage

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Bringing Up Baby: Adoption, Marriage, And The Best Interests Of The Child, Robin Fretwell Wilson, W. Bradford Wilcox Feb 2006

Bringing Up Baby: Adoption, Marriage, And The Best Interests Of The Child, Robin Fretwell Wilson, W. Bradford Wilcox

Faculty Scholarship

In the piece, Professor Brad Wilcox and I ask who should care for children when their biological parents cannot? This is a question of potentially explosive dimensions under new definitions of legal parentage proposed in this volume of the WILLIAM & MARY BILL OF RIGHTS JOURNAL. This question is also important today for evaluating state adoption laws. A significant number of states bar consideration of a prospective adopter’s marital or non-marital status. We believe these laws miss an important opportunity to maximize the best interests of each child being placed. In this piece, we take an exclusively child-centered approach, drawing on an enormous body of social science on family structure and child well-being. We begin with a critical look at the studies showing that children are significantly more likely to thrive if they are raised in a home headed by two married parents. Here, the social science is clear: on average, children do best in a married home, compared to the alternatives, and for this reason adoption laws and regulations should clearly favor married parents. The social science is less clear on the advantage that a single parent might have compared to cohabiting parents; here, we think the science suggests that a single parent might offer more stability and safety to a child than a cohabiting couple. We then propose model legislation to institute these preferences. We endorse a strong preference that gives first consideration to married couples and a weak preference to single parents compared to cohabiting couples. We also consider and reject ...


Marriage, Biology, And Paternity: The Case For Revitalizing The Marital Presumption, Jana B. Singer Jan 2006

Marriage, Biology, And Paternity: The Case For Revitalizing The Marital Presumption, Jana B. Singer

Faculty Scholarship

This article examines the recent history and current status of the marital presumption of paternity. It explores the social, economic and legal developments that have contributed to the erosion of the presumption, focusing in particular on the efforts of federal and state governments to identify and collect financial support from unmarried biological fathers. The article then describes the procedural and equitable doctrines that some courts and legislatures have used to bolster the marital presumption in the face of conflicting biological evidence. Finding these approaches problematic, the article advocates a revitalized marital presumption as a substantive rule of law. It argues ...


'God's Created Order', Gender Complementarity, And The Federal Marriage Amendment, Linda Mcclain Jan 2006

'God's Created Order', Gender Complementarity, And The Federal Marriage Amendment, Linda Mcclain

Faculty Scholarship

Does marriage, in the United States, need the protection of an amendment to the federal constitution, which would enshrine marriage as only the union of a man and a woman? In answering "yes" to this question, sponsors and supporters of the Federal Marriage Protection Amendment (FMPA), in the House of Representatives and the Senate, have made various appeals to the gender complementarity of marriage: (1) opposite-sex marriage is part of "God's created order;" (2) procreation is the purpose of marriage and has a tight nexus with optimal mother/father parenting; (3) marriage bridges the "gender divide" by properly ordering ...