Law Commons^™

Children's Right To Access Potentially Critical Learning: Liberating Youth From Propagation Of Structural Injustice, Melina Constantine Bell

Scholarly Articles

Over the past two years, U.S. states have passed educational gag orders (“EGOs”) that prohibit teaching about antiracism and LGBTQ+ identities. EGOs are destructive in at least two ways. First, they violate children’s right to access information that is potentially critical for their individual well-being. Second, they interfere with cultivating mutual respect in a pluralistic society, which serves children’s present and future wellbeing interests. In this article, I aim to demonstrate the harms that EGOs inflict, and how revising the legal framework governing children’s rights in the United States can increase both children’s and adults’ well-being. That revision entails the …

Amicus Brief Of Children’S Rights Legal Scholars And Advocates As Amici Curiae In Support Of Neither Party: Trump V. Anderson, Catherine Smith, Jeremiah Chin, Philip L. Gregory, Mathew W. Dos Santos, Julia A. Olson

Scholarly Articles

Amici write, not to urge a particular merits outcome to the questions presented, but to advocate for a judicial review process that (1) is true to constitutional text and this Court’s precedent, (2) accounts for non-voting children and future generations who fall within the protections of the counter-majoritarian provisions of the Constitution, and (3) embraces the perpetuity principle over the political question doctrine.

Amended Expert Disclosure Report: Navahine V. Dept. Of Transportation, State Of Hawai’I, Catherine Smith

Scholarly Articles

From a historical and sociological legal perspective, children in America, including in Hawai'i, require extraordinary legal protection from the harm of climate change and the government actions causing them harm. Hawai'i has a long history and tradition of leading the way on broadening rights and protections under state law, particularly for children. The principles of intergenerational justice and equity at the heart of the public trust doctrine in Hawai'i similarly require that courts accord special attention and protection for children.

On June 20, 2024, the youth-powered Navahine case settled, resulting in the first constitutional climate settlement of its kind in …

"Children's Equality Law" In The Age Of Parents' Rights, Catherine E. Smith

Scholarly Articles

In this Article, I will briefly highlight the meager doctrinal landscape for children's equal protection rights. I will then argue that the current family law system, relying on parents to act in the best interest of children to protect them, falls far short in a society built upon group-based hierarchies. Sometimes, parents will not have the political power to act in their children's best interest to intervene to stop their unequal treatment at the hands of state and private actors. In fact, several landmark cases demonstrate that often out of necessity, children's rights play a pivotal role in ensuring our …

Parental Rights: In Search Of Coherence, Elizabeth Kirk

Scholarly Articles

The Supreme Court has referred to parental rights as “the oldest of the fundamental liberty interests recognized by this Court.”¹ Yet, disagreements about the nature and scope of parental rights have proliferated in recent years.

The New Jim And Jane Crow Intersect: Challenges To Defending The Parental Rights Of Mothers During Incarceration, Carla Laroche

Scholarly Articles

Family law scholars and advocates have expressed the importance of providing counsel to parents in the family regulation system, especially parents who are incarcerated, because of the system’s complexities. This article establishes, however, that when mothers must navigate both the family regulation and criminal legal systems, the protections appointed parents’ counsel are supposed to provide are weakened. These harms are heightened especially for Black mothers within the carceral state. As this article shows, appointed lawyers in family regulation cases cannot properly protect the due process rights of mothers who are incarcerated because of the added challenges both mothers and their …

Brown'S Children's Rights Jurisprudence And How It Was Lost, Catherine E. Smith

Scholarly Articles

The first decision in Brown v. Board of Education is a landmark children's rights case that has been lost. After all, segregated education was not sui generis; free and independent Black children in the United States had always been perceived as a significant threat to White supremacy, just as their subjugation had always been a powerful and effective means to uphold it. In an unprecedented move to address this age-old practice, Brown I recognized Black children's right to protect themselves from government exploitation that targeted them because they were Black and young-erecting barriers in their equal path to adulthood in …

The Role Of Adoption In Dobbs-Era Pro-Life Policy, Elizabeth Kirk

Scholarly Articles

It is incumbent upon those who wish to provide alternatives to abortion for pregnant women to advance policies that highlight the unique gifts of adoption in a way that ensures it is a meaningful option. Of course, there are many venues for this to occur, whether in education, media, advertising, private initiative, or legislation. The particular policy appropriate for each state will depend on many factors, including the availability of legal abortion.

Child Welfare Requires Adequate Remedial Services, Raymond C. O'Brien

Scholarly Articles

This Article argues that the focus of child welfare should be upon the adequacy of reasonable services provided to parents prior to and after their child has been declared dependent because of an abuse or neglect allegation. Admittedly, recent federal legislation funding rehabilitation services while permitting a child to remain with an offending parent may result in less trauma, but this feature should not distract from the point that states must develop adequate reasonable services, and these must be provided within a specified period of time. The consequence of inadequate reasonable services, unable to address adverse conduct within a specified …

Child Support And Joint Physical Custody, Raymond C. O'Brien

Scholarly Articles

Child custody has evolved to the point where, at a minimum, states provide a mediated process by which parents may formulate parenting plans with court-appointed assistance. At a maximum state legislatures and courts increasingly consider joint physical custody awards. While joint physical custody safeguards the fundamental rights of parents, it nonetheless prompts practical concerns in awarding child support. Today, child support begins with state statutory guidelines, but the guidelines often fail to adequately address the economic consequences of two complete residences, one supported by a parent with fewer economic resources, and the fact that oftentimes the child drifts from one …

The Many Harms Of Forced Marriage: Insights For Law From Ethnography In Northern Uganda, Myriam S. Denov, Mark A. Drumbl

Scholarly Articles

Harnessing an interdisciplinary framework that merges elements of law and social science, this article aims to recast the crime of forced marriage, and thereby enhance accountability, in light of knowledge acquired through ethnographic fieldwork in northern Uganda. More specifically, we draw upon the perspectives and experiences of 20 men who were "bush husbands" in the Lord’s Resistance Army (LRA). These men were abducted by the LRA between the ages of 10 and 38 and spent between 6 and 24 years in captivity. During their time in the LRA, these men became ‘bush husbands’ with each man fathering between 1 and …

Family In The Balance: Barton V. Barr And The Systematic Violation Of The Right To Family Life In U.S. Immigration Enforcement, David Baluarte

Scholarly Articles

The United States systematically violates the international human right to family life in its system of removal of noncitizens. Cancellation of removal provides a means for noncitizens to challenge their removal based on family ties in the United States, but Congress has placed draconian limits on the discretion of immigration courts to cancel removal where noncitizens have committed certain crimes. The recently issued U.S. Supreme Court decision in Barton v. Barr illustrates the troubling trend of affording less discretion for immigration courts to balance family life in removal decisions that involve underlying criminal conduct. At issue was the “stop-time rule” …

Marital Versus Nonmarital Entitlements, Raymond C. O'Brien

Scholarly Articles

This Article discusses the evolution of family structure and the ascendency of privacy, liberty, and self-determination. Partially in response, an array of nonmarital unions have become commonplace in the past fifty years in the United States. Cases reveal the insufficiency of remedies avail- able to these nonmarital couples at dissolution-even for those couples living in states willing to enforce express or implied nonmarital agreements. Strikingly, there are fewer remedies for nonmarital cohabitants at death.

Public policy mandates concern for all citizens, including the evolu- tion of individualized family structures formed by its citizens. The issue addressed in this Article is …

State Action That Penalizes Children As Evidence Of A Desire To Harm Politically Unpopular Parents, Catherine E. Smith

Scholarly Articles

This Article is the first to advance the position that when the government takes the extreme step of denying children basic rights and benefits because of their parents, such state action should be recognized not just as evidence of animus against the children, but also as evidence of "a bare desire to harm" their "politically unpopular" parents. Identifying this type of government motivation and calling it what it is--animus toward parents--is just as important as condemning animus against the children themselves. Anti-parent animus that motivates harmful government behavior towards children should be prohibited as an impermissible means to accomplish an …

Expert Report Of Catherine Smith, J.D.: Juliana V. United States, Catherine Smith

Scholarly Articles

The Founders created the architecture for the rights of children to self-determination and protection from the sins of their forebears. A central tenet of our democracy is that government, including these federal defendants, should not deprive children (the next generation) of the foundational elements of their lives, liberties or property and should not impose hardships on them for matters of which they have no control. This historical tradition and intent of the Founders of our nation has not always been realized, but has evolved over time as our society gains new insights and understandings of children and our notions of …

Equitable Relief For Erisa Benefit Plan Designation Mistakes, Raymond C. O'Brien

Scholarly Articles

Since its enactment in 1974, the Employee Retirement Income Security Act (ERISA) and related insurance and disability programs provided retirement security for employees and employers, amassing more than $9 trillion in protected assets. Congress preempted conflicting state laws so as to promote certainty of distribution and ease of administration, two hallmarks of ERISA-governed plans. Nonetheless, since 1974, American society embraced spousal equality, an increased number of marriages end in divorce, and wealth most often passes through nonprobate transfers such as insurance contracts and pension policy plans. To accommodate these societal and wealth changes, states enacted statutes to provide elective share …

Obergefell’S Impact On Functional Families, Raymond C. O'Brien

Scholarly Articles

More than forty percent of children born in America are born to unmarried parents and only half of all cohabitating adults in America are currently married. While many children are born to single parents, others are part of the two-person unmarried cohabiting functional family paradigm. What is the status of these children?

This article examines the changing paradigm of parental status, specifically vis-à-vis homosexual couples with children, and the rights of the non-biological parent after separation. This article examines the changes in law in regards to unmarried parents leading up to the Uniform Parentage Act. It describes the equitable remedies …

Obergefell'S Missed Opportunity, Catherine Smith

Scholarly Articles

Part I of this article delineates the harms to children from marriage bans, harms that the Obergefell Court relied upon to recognize the fundamental right to marry for same-sex couples. Part II explains how Obergefell missed an opportunity to advance the constitutional rights of children by failing to invoke well-established equal protection law. This discussion briefly catalogues the omitted child-centered cases that warranted a more robust analysis of children's rights. This series of cases begins with the Brown v. Board of Education decision, and then turns to a number of post-Brown equal protection cases that explicitly prohibited state practices that …

Bridging The Justice Gap In Family Law: Repurposing Federal Iv-D Funding To Expand Community-Based Legal And Social Services For Parents, Stacy Brustin, Lisa Vollendorf Martin

Scholarly Articles

Parents in family court overwhelmingly proceed pro se; however, in child support courtrooms, government attorneys representing the state child support agency frequently play a pivotal role. These attorneys represent the state’s ostensible interests in ensuring that children are financially supported and in preventing welfare dependence; they do not represent individual parents. The outcomes of child support proceedings have profound, long-term constitutional and financial implications for parents, yet litigants rarely understand their rights or the role of the government.

Originally, the goal of state child support enforcement efforts was to recapture the costs of welfare expenditures. In 1990, two-thirds of cases …

The Other Side Of The Rabbit Hole: Reconciling Recent Supreme Court Personal Jurisdiction Jurisprudence With Jurisdiction To Terminate Parental Rights, Joan M. Shaughnessy

Scholarly Articles

This Essay contrasts the jurisdictional regime followed in termination of parental rights and other child custody cases with the regime that has dominated recent Supreme Court personal jurisdiction cases. Jurisdiction in child custody cases has long been based upon the connection of the child, not the defendant parent, to the jurisdiction. Recent Supreme Court cases, on the other hand, have focused nearly exclusively on the defendant’s connection to the forum state. This Essay argues that the Supreme Court cases betray a failure of the Court to provide a consistent constitutional justification for the jurisdictional limitations it has imposed. The Essay …

The Intended Parent: The Power And Problems Inherent In Designating And Determining Intent In The Context Of Parental Rights, Heather Kolinsky

Scholarly Articles

This Article seeks to consider and discuss the intent to parent and, particularly, the use of the words intent and intentional in the context of assigning legal parental rights. Problems and preferences have arisen from the use of this paradigm and the notion that intent can be fixed at any one point in time. This Article discusses how this historical use of intent and intentional parenthood may impact the evolving field of parental form, considering whether we will carry forward some of the same problems and preferences into newer forms of the assignment of legal parental rights.

The Article first …

Children's Rights In The Midst Of Marriage Equality: Amicus Brief In Obergefell V. Hodges By Scholars Of The Constitutional Rights Of Children, Tanya Washington, Susannah Pollvogt, Catherine Smith, Lauren Fontana

Scholarly Articles

Many scholars have called for the acknowledgement and treatment of children's rights as constitutionally protected and enforceable, and Supreme Court precedent establishes that the government may not punish children for matters beyond children's control. Same-sex marriage bans and non-recognition laws, which are collectively referred to as marriage bans, impose prohibited punishment on children for being born into, or parented by, same-sex families. States argue that marriage is the optimal familial environment for children, yet marriage bans categorically exclude an entire class of children -- children in same-sex families -- from the legal, economic, and social benefits of marriage. In response …

Paved With Good Intentions: Unintended Consequences Of Federal Proposals To Integrate Child Support And Parenting Time., Stacy Brustin, Lisa Vollendorf Martin

Scholarly Articles

This Article proceeds in three parts to evaluate the merits of integrating custody and visitation determinations in government-initiated child support proceedings. Part I situates the federal parenting time proposals within the doctrines that shape the scope and allocation of parental rights and responsibilities. This part explores parents’ ability to establish custody, visitation, and child support arrangements, both outside of the court system and within the context of domestic relations proceedings. The section goes on to explore the federal and state child support enforcement structure and recent attempts to change the goal of government involvement from recapturing costs to creating opportunities …

Brief Of Scholars Of The Constitutional Rights Of Children Susannah W. Pollvogt, Catherine E. Smith, And Tanya Washington As Amici Curiae In Support Of Plaintiffs-Appellants And Reversal: Robicheaux V. Caldwell, Catherine E. Smith, Tanya Washington, Susannah W. Pollvogt

Scholarly Articles

Amici are scholars and professors of family law and the law of equal protection. Amici submit this brief to respond directly to arguments advanced by the State of Louisiana that its laws prohibiting same-sex marriage2 are justified because they advance child welfare. Specifically, the State asserts that its laws advance child welfare by promoting Louisiana’s interest in: (1) linking children with their biological parents to prevent the social stigma associated with being “illegitimate” and (2) establishing the child as a member of an intact family resulting from the marriage of the mother and alleged father. These purported justifications express and …

Children As Proto-Citizens: Equal Protection, Citizenship, And Lessons From The Child-Centered Cases, Catherine E. Smith, Susannah W. Pollvogt

Scholarly Articles

The rights of children have recently taken a prominent role in the popular and judicial consciousness. This is largely due to litigation over marriage equality. In authoring the majority opinion in United States v. Windsor, 133 S. Ct. 2675 (2013), Justice Kennedy cited tangible and psychic harm to the children of same-sex couples as a basis for invalidating the federal Defense of Marriage Act. Post-Windsor, myriad state and federal courts similarly have recognized the manner in which state-level marriage bans inflict harm on the children of same-sex couples. Yet, while courts have recognized the significance of harm to children …

Equal Protection For Children Of Same-Sex Parents, Catherine E. Smith

Scholarly Articles

Gay rights litigation and advocacy traditionally have focused on the unequal treatment of gay and lesbian individuals and couples; less attention has been dedicated explicitly to the legal rights of the children of gay and lesbian parents. This Article asserts that a child of same-sex parents denied a government benefit has a cognizable equal protection challenge—a legal claim that is separate and distinct from that of the child’s gay or lesbian parents. It is well-settled equal protection law that the government may not treat nonmarital children differently than marital children because of moral disdain for their parents’ relationship, and laws …

Reasonable Efforts And Parent-Child Reunification, Raymond C. O'Brien

Scholarly Articles

Among the increasing number of federal statutes impacting family law two continue to impact child permanency and parental rights. First, the Adoption Assistance and Child Welfare Act of 1980 mandates that state courts find that the state child welfare agency made reasonable efforts to reunite a dependent child with his or her parents prior to termination of parental rights. The child is dependent because a state court held that there was sufficient clear and convincing evidence to remove the child from the parents’ home. Often that evidence results from parental poverty, mental or physical disability, or the parents are undereducated …

Attorney Responsibility And Client Incapacity, Raymond C. O'Brien

Scholarly Articles

This Article suggests what an attorney should consider when representing a client suspected by the attorney of having diminished capacity, anticipating diminished capacity, or a client anticipating a response to the legal dilemmas posed by aging. So too, this Article suggests what an attorney should consider when retained by the family members of an allegedly incapacitate person. After providing demographics regarding aging, this Article will specifically address the attorney-client relationship in the context of the Model Rules of the American Bar Association. Next, this Article will integrate the attorney's responsibility regarding the proper execution of a Last Will and Testament, …

The Calculus Of Accommodation: Contraception, Abortion, Same-Sex Marriage, And Other Clashes Between Religion And The State, Robin F. Wilson

Scholarly Articles

This Article considers a burning issue in society today— whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate samesex marriages. In all these contexts, religious objectors claim a special right of entitlement to follow their religious tenets, in the face of equally compelling claims that religious accommodations threaten access and …

Ten Questions Every Cohabitant Should Think About Before Moving In, Robin F. Wilson

Scholarly Articles

None available.