Law Commons^™

Comment: Toxic: The Case Of Britney Spears Sheds Light On Issues With California Conservatorship Laws, Berenice Quirino

Golden Gate University Law Review

A conservatorship is a legal arrangement in which one person is responsible for the affairs of another, presumably because that person cannot manage alone. Britney was one of the estimated three million adults in the United States who cannot make decisions about their own lives. Instead, the court transfers the decision-making role to another person, known as a conservator. This drastically reduces the legal status of the person under conservatorship, known as a conservatee.

Britney’s case is a prime example of the difficulties associated with conservatorships. Since Britney’s conservatorship ended, California amended the law to address some of the concerning …

Bringing Specificity To Child Custody Provisions In California, Shawn Mccall

Golden Gate University Law Review

This Comment evaluates the empirical evidence from social science studies to demonstrate that there is currently a sturdy body of social science research to justify using tangible evidence to define terms in the California Family Code, the California Family Courts, and beyond. Because the standard for custody determinations in California is the “best interest of the child” per the state’s legislation, social science research provides a vehicle that can define the “best interest of the child standard.” This Comment argues that this can be done empirically by calculating the minimum amount of time a child—in the aggregate— needs with each …

How Reasonable Are Reasonable Efforts For The Children Of Incarcerated Parents?, Courtney Serrato

Golden Gate University Law Review

This article will discuss the development of the laws concerning children with incarcerated parents. Ultimately, the goal is to encourage states like California to (1) expand the law regarding reasonable efforts even further, (2) encourage California prisons to take into consideration exceptions for children and incarcerated parents in implementing prison policies, and (3) provide other states with a model for proposing new laws that can be put into practice. The background of this article will explain the federal implementation of The Adoption and Safe Families Act (ASFA) and the necessary changes California made to state law after the enactment of …

The Numbers Game: Why California's Child Support Formula Should Be Amended To Avoid Parental Abuse, Karly Schlinkert

Golden Gate University Law Review

This article examines the H% element of the child support equation (the amount of time the higher earning parent spends with the minor child) and how it affects children and their best interests. Part I focuses on the history of child support in America and how federal legislation has impacted California’s approach to child support. Part II discuses California’s child support formula and how the amount of time spent with a child affects the total amount of financial support owed; this section will focus on what constitutes a child’s best interest. This article advocates for California to adopt a different …

In Re The Marriage Of Ramirez: Sex, Lies, And California’S Annulment For Fraud Based On Fidelity, Timothy Follett

Golden Gate University Law Review

In California, a party may be able to obtain an annulment for fraud under In re Marriage of Ramirez. In Ramirez, the husband was carrying on relations with his wife’s sister prior to the marriage. The affair between the husband and sister continued after the marriage. Subsequently, Jorge (husband) was overheard stating to the sister that he loved her and “they would be together once he got his share of money and property from Lilia [the wife], and told her that he had only married Lilia to gain permanent residence status.” The trial court “held that this kind …

Home State, Cross-Border Custody, And Habitual Residence Jurisdiction: Time For A Temporal Standard In International Family Law, Todd Heine

Annual Survey of International & Comparative Law

This article addresses three jurisdictional standards that arise in every cross-border child custody dispute between European Union Member States and the United States: home state, cross-border, and habitual residence jurisdiction. These jurisdictional standards face uncertainty in many cases.

First, this article provides a history of family law jurisdiction in the United States and thoroughly reviews home state jurisdiction in United States domestic law. While domestic family lawyers know this standard, the standard’s rigidity and fragmented application among the states baffle many foreign family lawyers.

Second, this article offers an overview of the remarkable emergence of family law in European Union …

Plural Marriage And Community Property Law, Diane J. Klein

Golden Gate University Law Review

Plural marriage makes strange bedfellows. Fundamentalist Mormons, polyamorous/ polyfidelitous sex radicals, and some feminists and proponents of same-sex marriage (including this author), share the view that freedom of intimate association under the United States Constitution, properly understood, must extend beyond the right to marry exactly one person of the opposite gender from oneself. But while it is one thing to endorse marriage freedom, as a matter of principle, it is quite another actually to implement it in law. If people could simultaneously have more than one spouse, the lawyer must ask, how would things actually work, from a marital property …

Community Property And Family Law: The Family Law Act Of 1969, Aidan R. Gough

Cal Law Trends and Developments

The year 1969 marked the decade's principal accomplishment in family law, the passage of the Family Law Act. The last several years have seen a sharply rising discontent with our traditional procedures for handling the dissolution of marriages, and numerous reform proposals have been advanced both in this country and abroad.

The Family Law Act brings some of these proposals to fruition; it marks the first legislative eradication of marital fault as the governing principle of divorce in any American jurisdiction. Because the passage of the new law virtually eclipses the past year's decisional developments in family law and community …

Community Property And Family Law, Arthur M. Sammis

Cal Law Trends and Developments

Probably the most important development in the field of community property law during the past year was the legislation affecting causes of action and damages for injury to the person. Several cases dealing with integrated property settlements are of importance in clarifying problems relating to support provisions, modification, and enforcement. Developments in the case and statutory law dealing with the parent and child relation have emphasized the continuing trend toward liberality in the legitimation of children. Three major areas in this field have received attention and are worthy of comment. The conclusive presumption of legitimacy set forth in Evidence Code …

Community Property And Family Law, Arthur M. Sammis

Cal Law Trends and Developments

Important developments in community property and family law in California in 1967 were largely the result of legislative enactment, although several important decisions were rendered by the appellate courts of California. Those cases and statutory revisions making significant changes in the law will be discussed here under appropriate headings.

That "Thorny Issue" Redux: California Grandparent Visitation Law In The Wake Of Troxel V. Granville, Joan Catherine Bohl

Golden Gate University Law Review

This article is about Troxel's practical impact as it has played out in the laboratory of the California court system. To understand Troxel's effect, one must first understand the legal and social landscape that preceded it. Accordingly, the first section of this article explores the political and societal origins of grandparent Visitation statutes. It also reviews the basic types of grandparent visitation statutes and the arguments made on each side of a typical pre-Troxel grandparent visitation suit. The second step in understanding Troxel's effect is to understand the decision itself. Troxel is a plurality opinion. Although the individual concurrences and …

Posthumously Conceived Children And Social Security Survivor's Benefits: Implications Of The Ninth Circuit's Novel Approach For Determining Eligibility In Gillett-Netting V. Barnhart, Karen Minor

Golden Gate University Law Review

Part I of this Note describes the technology of assisted reproduction, the requirements and purpose of the Act, and the challenges that arise when interpreting the Act using the variety of state statutes. Part II describes the instant case and explores the reasoning of both the district court and the Ninth Circuit. The implications of the decision are discussed in Part IlI.

Protecting The Child's Best Interest: Defending Second-Parent Adoptions Granted Prior To The 2002 Enactment Of California Assembly Bill 25, Diana Lauretta

Golden Gate University Law Review

Sharon S. v. Superior Court is pending review before the California Supreme Court. This case may nullify second-parent adoptions granted in California prior to the enactment of Assembly Bill 25, which gave same-sex domestic partners the statutory right to adopt their partner's children. Section I will examine the factual history and majority and minority opinions in Sharon S. Next, Section II of this comment will survey the history of adoption law and California Assembly Bill 25. Finally, Section III of this comment will consider differing state court opinions regarding second-parent adoptions. Section III will also offer remedies to counteract potential …

Discovering Donors: Legal Rights To Access Information About Anonymous Sperm Donors Given To Children Of Artificial Insemination In Johnson V. Superior Court Of Los Angeles County, Jenna H. Bauman

Golden Gate University Law Review

In the Johnson case, six-year-old Brittany, a child conceived through artificial insemination, was diagnosed with a genetically-transmitted kidney disease originating from the child's anonymous sperm donor. The case documents the parents' struggle to obtain personal medical information regarding the anonymous donor. It also illustrates the donor's fight, with the full support of the sperm bank, to maintain his anonymity at all costs. This Note discusses the court's decision in Johnson v. Superior Court of Los Angeles County, et al., in which it held that children created through artificial insemination should be allowed access to information about their anonymous sperm donor …

Beyond Wrongful Adoption: Expanding Adoption Agency Liability To Include A Duty To Investigate And A Duty To Warn, Jennifer Emmaneel

Golden Gate University Law Review

This note discusses the evolution of the tort of wrongful adoption. At first, state courts would only allow adoptive parents to recover for wrongful adoption if they could prove that the adoption agency's conduct constituted fraud, a common law tort that requires the adoption agency's conduct to be intentional. In time, public policy interests, such as the need for adoptive parents to be emotionally and financially prepared to raise a special needs child, persuaded state courts to allow adoptive parents to recover under the less stringent tort of negligence. As opposed to fraud, a showing of negligence does not require …

California's Move-Away Law: Are Children Being Hurt By Judicial Presumptions That Sweep Too Broadly?, Jennifer Gould

Golden Gate University Law Review

This Comment will summarize the various types of custody situations and their relevance in deciding move-away cases. Next, this Comment will examine In re Marriage of Burgess, a landmark California Supreme Court move-away case, and discuss its impact on family law courts, families, and attorneys involved with move-away cases. Included is an examination of certain factors that the Burgess court did not fully address in its analysis. Finally, drawing upon public policy, social science research, legal commentary, and other jurisdictions' moveaway laws, this Comment will propose a more comprehensive approach to deciding move-away cases. This approach limits the application of …

The Best Interest Of The Child: Eliminating Discrimination In The Screening Of Adoptive Parents, Jehnna Irene Hanan

Golden Gate University Law Review

This comment will propose eliminating race and all factors that would be discriminatory in any other area of the law from consideration in adoption placement decisions, focusing instead on assessments of the parenting skills of individual prospective adoptive parents, and giving preference to foster parents or others who are already providing care to the child. Part II will discuss the historical precedents of today's adoption laws and show how the misperception of the adoptive family as inferior to the biological family helped to shape the current law. Part III will describe the process of adopting a child to demonstrate that …

California's Conclusive Presumption Of Paternity And The Expansion Of Unwed Fathers' Rights, Batya F. Smernoff

Golden Gate University Law Review

This comment begins with the history of the conclusive presumption of paternity in California, from its common law roots to its modern day affirmation in Michael H. v. Gerald D. This background will discuss the adoption of the Uniform Parentage Act in California and its application in paternity proceedings. In an effort to advocate the need for its repeal, this comment will also discuss the modem trend in the California courts to circumvent the conclusive presumption. The comment concludes that this rebuttable presumption enables an unwed father to establish his parental rights regardless of the mother's marital status. By protecting …

Anderson V. Edwards: Can Two Live More Cheaply Than One? The Effect Of Cohabitation On Afdc Grants, Irma S. Jurado

Golden Gate University Law Review

This note will first discuss the background of the AFDC program and how it is regulated by the federal and state governments. A discussion of several lower federal and state court decisions which have dealt with the issue presented to the United States Supreme Court in Anderson v. Edwards will follow. Next, this note will examine the Court's analysis and holding in Anderson. The note concludes with the author's assessment as to why the holding in Anderson was correct.

The Sealed Adoption Records Controversy: Breaking Down The Wails Of Secrecy, Jason Kuhns

Golden Gate University Law Review

This article will discuss the statutory history of adoption in the United States and advocate why a present day understanding of the interests of the parties to the adoption process requires that adoptees have greater access to these records. The author will examine the reasons why current statutory approaches do not adequately address adoptees' needs and recommend a procedural device that would sufficiently balance the interests of the parties to this controversy.

Redefining Parenthood: Child Custody And Visitation When Nontraditional Families Dissolve, Kristine L. Burks

Golden Gate University Law Review

This article offers a method of providing custody and visitation rights to individuals formerly involved in nontraditional relationships who function as children's parents but who lack the legal status of parent. The article considers a broad range of nontraditional families, including stepparents, same-sex partners, and unmarried heterosexuals. The article begins with a summary of California statutory law. The author examines how "parent" is defined and the limitations imposed on those falling outside that definition when they seek to assert rights to child custody and visitation. Next, the article focuses on three types of nontraditional relationships to illustrate how California courts …

Baehr V. Lewin: Hawaii Takes A Tentative Step To Legalize Same-Sex Marriage, Marty K. Courson

Golden Gate University Law Review

In Baehr v. Lewin, the Supreme Court of Hawaii sparked a controversy that has potential nationwide implications. The court held that three same-sex couples were entitled to an evidentiary hearing to determine if the State can demonstrate that denying the couples the right to marry under the Hawaii Marriage Law furthers compelling state interests. If the State fails its burden, it can no longer refuse marriage licenses to couples merely on the basis that they are of the same sex. Should this occur, gay marriages will become legal in Hawaii.

Contracting For Cohabitation: Adapting The California Statutory Marital Contract To Life Partnership Agreements Between Lesbian, Gay Or Unmarried Heterosexual Couples, Brooke Oliver

Golden Gate University Law Review

Nearly 450 California statutes deal with rights, duties and privileges associated with heterosexual marriage, either in the statute itself or in its interpretation as reflected by annotations" These rights, duties and privileges comprise the California civil marital contract. The primary focus of this article is to distill, from all the rights, duties and privileges of that civil marital contract, most of those which may be incorporated into contracts between cohabiting adults. Statutes which do not lend themselves to inclusion in a contract between private parties have been excluded. This checklist will help legal practitioners provide accurate and comprehensive advice to …

In Harm's Way? Family Mediation And The Role Of The Attorney Advocate, Mary Pat Treuthart

Golden Gate University Law Review

The first part of this article presents some background information about mediation and the current mediation trend, emphasizes that the use of mediation is dangerous and inappropriate when one disputant has been abused by the other, and identifies potential problems for women which may be created by family mediation. The second part of this article focuses on the role and responsibilities of the attorney advocate when the client chooses, or is compelled, to mediate, with particular attention to the special concerns involved in representing battered women. In the scholarly literature, much time and energy has been devoted to issues addressed …

In Vitro Fertilization Through Egg Donation: A Prospective View Of Legal Issues, James M. Treppa

Golden Gate University Law Review

As reproductive techniques continue to advance, many legal and ethical questions surrounding the use of some of these techniques remain unanswered. One such technique is IVF through the use of egg/oocyte donation. The lack of legal or statutory parameters regarding the use of IVF egg donation is a direct consequence of judicial and legislative failure to promulgate guidelines regarding noncoital reproduction. As many judges continue to point to legislators for guidance, proposed bills stagnate at the hearing stage.

The Constitutionality Of California's Parental Consent To Abortion Statute, Malena R. Calvin

Golden Gate University Law Review

In order to determine the constitutionality of California's parental consent statute, this article will first discuss the implications of Roe. Second, this article will analyze United States Supreme Court decisions which have addressed parental consent statutes. Third, this paper will demonstrate that California's parental consent statute would be considered constitutional under the Supreme Court cases which have addressed such statutes. Fourth, this paper will consider the implications of California's state constitution. Based on this analysis, this paper will establish that despite a finding of constitutionality under federal law, California's parental consent statute appears to violate the express right to privacy …

Frozen Embryos: New Technology Meets Family Law, Natalie K. Young

Golden Gate University Law Review

This article addresses the various reasons and legal arguments for treating embryos as life, or in the alternative as property. In particular, this article analyzes the legal status of frozen embryos in a marital dissolution proceeding from a custodial point of view and a marital property point of view. Part I sets forth a broad policy perspective on the doctrinal choices that must be made in determining the legal status of the embryo. Part II first explores the possibility of classifying frozen embryos as human life and then presents a legal analysis, derived from the general principles of family law, …

Surrogacy In California: Genetic And Gestational Rights, Dale Elizabeth Lawrence

Golden Gate University Law Review

Part I of this article contrasts the surrogacy controversy in California with the legislative response nationwide by examining the various underlying issues that must necessarily be considered by state legislatures. Although the surrogacy controversy raises issues that concern the nation and society as a whole, it should be resolved independently by each state's legislature. At the center of the debate lies the question of whether the practice of surrogacy is detrimental or beneficial to the contracting parties and to society. Part II examines a California judicial decision of first impression and compares it to other states' judicial decisions on surrogacy. …

Child Sexual Abuse In Custody And Visitation Disputes: Problems, Progress, And Prospects, Susan Romer

Golden Gate University Law Review

This Comment will focus on cases involving allegations of child sexual abuse made during divorce proceedings or during post-judgment custody and visitation disputes. California law is the primary focus. New York cases, statutes and procedures are compared and contrasted. The Comment first discusses studies of the veracity of allegations of sexual abuse arising in custody and visitation cases. Secondly, it addresses the methods used in the investigation and assessment of child sexual abuse charges. Finally, it explores which court is best able to decide these cases.

Lavender Bruises: Intra-Lesbian Violence, Law And Lesbian Legal Theory, Ruthann Robson

Golden Gate University Law Review

This Article seeks to elucidate the confusion between sexuality and violence that confounds legal treatments of intra-lesbian violence. This confusion is both explicitly and implicitly revealed in judicial decisions and legislative enactments. A distinct but intertwined task of this Article is to situate intra-lesbian violence within the development of a lesbian legal theory. It is intra-lesbian violence that makes equally untenable either a separatist lesbian legal theory (eschewing all reference to a patriarchal legal system) or an assimilationist lesbian legal theory (advocating lesbianism as an irrelevant factor in legal determinations).