Law Commons^™

The Dna Default And Its Discontents: Establishing Modern Parenthood, Katharine K. Baker

Katharine K. Baker

Foundational Myths And The Reality Of Dependency: The Role Of Marriage , Ann Shalleck

Ann Shalleck

No abstract provided.

Settled Law: The Fourth Circuit Interprets The Settled Child Defense, Kevin R. Eberle

Kevin Eberle

No abstract provided.

Religion And Child Custody, Margaret Brinig

Margaret F Brinig

This piece draws upon divorce pleadings and other records to show how indications of religion (or disaffiliation) that appear in custody agreements and orders (called “parenting plans” in both states studied) affect the course of the proceedings and legal activities over the five years following divorce filing. Some of the apparent findings are normative, but most are merely descriptive and some may be correlative rather than caused by the indicated concern about religion. While parenting plans are accepted by courts only when they are in the best interests of the child (at least in theory), the child’s independent religious needs …

Result Inequality In Family Law, Margaret Brinig

Margaret F Brinig

To the extent that family law is governed by statute, all families are treated as though they are the same. This is of course consistent with the equal protection guarantees of the US Constitution as well as those of the states. However, in our pluralistic society, all families are not alike. At birth, some children are born to wealthy, married parents who will always put the children’s interests first and will never engage in domestic violence. Many laws benefit these children, while, according to some academics, they either further disadvantage other children or at best ignore their needs.

This presentation …

Joint Custody: Bonding And Monitoring Theories, Margaret F. Brinig, F. H. Buckley

Margaret F Brinig

Symposium: Law and the New American Family Held at Indiana University School of Law - Bloomington Apr. 4, 1997

Does Parental Autonomy Require Equal Custody At Divorce?, Margaret F. Brinig

Margaret F Brinig

This paper considers the affect of amendments to state divorce laws that strengthen their joint custody preference. It does so in the context of suits by noncustodial parents challenging substantive custody standards not requiring equal custody at divorce. The complaint is that most custody laws, by using a best interests standard rather than equally dividing custodial time, violate substantive due process. Further, two states, Iowa and Maine, have recently amended their custody legislation to strongly presume joint physical custody.

After setting out the constitutional problem and describing the legislation in some detail, this paper tests the effects of the change …

Marry Me, Bill: Should Cohabitation Be The (Legal) Default Option?, Margaret F. Brinig, Steven L. Nock

Margaret F Brinig

No abstract provided.

The One-Size-Fits-All Family, Margaret F. Brinig, Steven L. Nock

Margaret F Brinig

Family policy and the law based on it assume universals. That is, if marriage improves the welfare of the majority of couples and their children, it is worth pushing as a policy initiative. Further, laws will be written (or kept on the books) that privilege marriage over other family forms. Similarly, research that tells us that divorce harms children except following the relatively small number of highly conflicted marriages, spawns efforts to preserve troubled marriages or even to roll back liberal or relatively inexpensive divorce laws. With yet another example, since adopted children mostly do better than children left either …

Does Mediation Systematically Disadvantage Women?, Margaret F. Brinig

Margaret F Brinig

No abstract provided.

Judicial Settlement-Seeking In Parenting Disputes: Consensus And Controversy, Noel Semple

Noel Semple

The judicial role in child custody and visitation disputes has traditionally been understood as one of authoritative decision-making. However this new empirical research suggests that many family court judges prioritize the pursuit of voluntary settlement in pre-trial conferences, using evaluative and facilitative mediation techniques. Drawing on qualitative interviews with judges and other family law professionals in Toronto and New York City, this article identifies points of consensus and controversy among settlement-seeking family judges. Despite the general support for settlement-seeking, there are substantial differences of opinion regarding coercion, due process, and the meaning of the best interests of the child standard.

Whose Best Interests?: Custody And Access Law And Procedure, Noel Semple

Noel Semple

This article compares the law of custody and access disputes with the procedure used to resolve them. The author argues that there is a fundamental contradiction between the two. The former focuses on the interests of the children involved to the exclusion of everything else. The latter, however, is controlled by and designed to protect the rights and interests of the adult parties to the dispute. Despite their doctrinal centrality in custody and access law, children are usually silent and invisible in custody and access procedure. To resolve this contradiction, the author proposes a focus on the costs and benefits …

Judicial Settlement-Seeking In Parenting Disputes: Consensus And Controversy, Noel Semple

Noel Semple

The judicial role in child custody and visitation disputes has traditionally been understood as one of authoritative decision-making. However this new empirical research suggests that many family court judges prioritize the pursuit of voluntary settlement in pre-trial conferences, using evaluative and facilitative mediation techniques. Drawing on qualitative interviews with judges and other family law professionals in Toronto and New York City, this article identifies points of consensus and controversy among settlement-seeking family judges. Despite the general support for settlement-seeking, there are substantial differences of opinion regarding coercion, due process, and the meaning of the best interests of the child standard.

Book Review: The Best Interests Of Children – An Evidence Based Approach, By Paul Millar, Noel Semple

Noel Semple

If custody and access disputes are a deck of cards, the trump suit is the best interests of the child. When separating parents litigate about how and with whom their child should live, findings about what’s best for the child are meant to sweep away the parents’ interests and rights-claims. This principle is uncontroversial, but applying it is difficult. What parenting arrangements are best for children, and how successful is the legal system in putting these arrangements in place?

Sociologist Paul Millar has responded with this slim volume, the goal of which is to “explain child custody outcomes in Canada …

Mandatory Family Mediation And The Settlement Mission: A Feminist Critique, Noel Semple

Noel Semple

North American family law conflicts are very often brought to mediation, in which a neutral third party attempts to bring about a voluntary resolution of the spouses’ dispute. Family mediation has many enthusiastic supporters, and has in many jurisdictions been made a mandatory precursor to traditional litigation. However, it has also given rise to a potent feminist critique, which identifies power imbalance and domestic violence as sources of exploitation and unjust mediated outcomes. This article summarizes the feminist critique of family mediation, and assesses the efforts of contemporary mediation practice to respond to it. Even in the absence of formal …

Taking Pierce Seriously: The Family, Religious Education, And Harm To Children, Richard W. Garnett

Richard W Garnett

Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious …

Result Inequality In Family Law, Margaret F. Brinig

Margaret F Brinig

To the extent that family law is governed by statute, all families are treated as though they are the same. This is of course consistent with the equal protection guarantees of the U.S. Constitution as well as those of the states. However, in our pluralistic society, all families are not alike. At birth, some children are born to wealthy, married parents who will always put the children’s interests first and will never engage in domestic violence. Many laws benefit these children, while, according to some academics, they either further disadvantage other children or at best ignore their needs. This Article …

Accommodating Common Mental Health Issues In Mediation, Rebekah Doley

Rebekah Doley

Mediators have a responsibility to maximise an individual’s ability to effectively participate in the decision-making process, including supporting procedural fairness where equality and balance in the parties’ contributions to the process is expected. Capacity to participate effectively is affected by the presence of mental health concerns.Various means of screening for psychological distress in mediation participants have been discussed, however, there is limited training available to mediators from non-clinical professions in evaluating mental health issues. An alternative approach is to consider ways in which the mediation process could be modified to enhance an individual’s capacity to effectively participate, especially when the …

The Legal Regulation Of Adult Personal Relationships: Evaluating Policy Objectives And Legal Options In Federal Legislation, Brenda Cossman, Bruce Ryder

Bruce B. Ryder

Few would dispute that adult personal relationships characterized by caring and commitment ought to be recognized and supported by the state because of their fundamental importance to the well-being of individuals and communities. The law has long sought to identify these relationships by reference to ties of blood, marriage or adoption. Contemporary norms, however, value adult personal relationships by reference to their qualitative attributes rather than their formal legal status. This shift in normative assumptions has accompanied profound shifts in Canadians’ living arrangements over the course of the last thirty years. We have witnessed a decline in the marriage rate, …

Same Sex Marriage In A Post-Perry And Windsor America, Kathryn L. Moore, Allison I. Connelly, Ross T. Ewing

Allison Connelly

These materials accompanied a presentation at the 2014 Kentucky Bar Association Annual Convention entitled Same Sex Marriage in a Post-Perry and Windsor America. The focus of this presentation was on: the legal landscape following major LGBTQ civil rights cases; how these cases would impact families in Kentucky; and any employment or retirement issues.

Family Surrogate Laws: A Necessary Supplement To Living Wills And Durable Powers Of Attorney, Ardath A. Hamann

Ardath A. Hamann

No abstract provided.

Family Surrogate Laws: A Necessary Supplement To Living Wills And Durable Powers Of Attorney, 38 Vill. L. Rev. 103 (1993), Ardath A. Hamann

Ardath A. Hamann

No abstract provided.

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

Joan M. Shaughnessy

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 …

Using The Nfl As A Model? Considering Zero Tolerance In The Workplace For Batterers, Deseriee A. Kennedy

Deseriee A. Kennedy

The impact of domestic violence can increasingly be felt in the workplace, and it can adversely affect the safety and productivity of employees. Legislators and employers have begun to recognize the effect of domestic violence on employment, and many have adopted policies to protect the interests of domestic violence survivors. This article suggests that wider adoption of domestic violence policies are needed and these policies should be broadened to directly address batterers in the workplace. The article argues that employer based sanctions would increase batterer accountability and workplace safety. It uses the newly revised NFL Personal Conduct Policy as a …

"The Good Mother": Mothering, Feminism, And Incarceration, Deseriee A. Kennedy

Deseriee A. Kennedy

As the rates of incarceration continue to rise, women are increasingly subject to draconian criminal justice and child welfare policies that frequently result in the loss of their parental rights. The intersection of an increasingly carceral state and federally imposed timelines for achieving permanency for children in state care has had a negative effect on women, their children, and their communities. Women, and their ability to parent, are more adversely affected by the intersection of these gender-neutral provisions because they are more likely than men to be the primary caretaker of their children. In addition, incarcerated women have higher rates …

Analytical And Comparative Variations On Selected Provisions Of Book One Of The Louisiana Civil Code With Special Consideration Of The Role Of Fault In The Determination Of Marital Disputes, Thomas E. Carbonneau

Thomas Carbonneau

This article is intended to be a type of "structuralist" commentary upon selected provisions in Book I of the Louisiana Civil Code. Its sole purpose is to illustrate, both for pedagogical and doctrinal reasons, some of the analytical difficulties to which these code provisions might give rise when they are read in a close textual fashion. It should be emphasized that this study is a textual commentary and not a historical assessment of the sources or origins of the code texts – the latter analysis is outside the purview of the present endeavor. Accordingly, this article consists of a critical …

A Consideration Of Alternatives To Divorce Litigation, Thomas E. Carbonneau

Thomas Carbonneau

This article argues for the need to inform divorce proceedings with a sense of the human reality of matrimonial breakdown. Part one assesses the adequacy of the existing adjudicatory approach to divorce by focusing upon the hiatus between the legal approach to divorce and the emotional content of divorce disputes. Part two lays the foundation for constructive change, providing a statistical portrait of divorce in contemporary America. Part four discusses mediation and suggests that it is a more viable alternative mechanism to divorce litigation. Part five discusses the implementation of a judicial arbitration structure.

Less Payne In The International Relocation Of Children?, Jonathan Chen Yeen Muk

Jonathan Muk

Plemel As A Primer On Proving Paternity, David H. Kaye

David Kaye

Although in the past courts only permitted genetic evidence in paternity suits to prove that an accused man was not the father, with the advent of new genetic tests, which easily can exclude ninety to nitey-five percent of the population in most cases, the supreme courts of Massachusetts, Oregon, and Utah have held that various genetic tests may be used to prove paternity. While a positive move, the admissibility of genetic proof of paternity raises serious questions as to the manner in which this evidence should be presented in court. In the interests of efficiency, some jurisdictions seem to dispense …

What Should Law Enforcement Role Be In Addressing Quality Of Life Issues Associated With Section 8 Housing?, D'Andre D. Lampkin

D'Andre Devon Lampkin

The purpose of this research project is to discuss the challenges law enforcement face when attempting to address quality of life issues for residents residing in and around Section 8 federal housing. The paper introduces readers to the purpose of Section 8 housing, the process in which residents choose subsidized housing, and the legal challenges presented when law enforcement agencies are assisting city government to address quality of life issues. For purposes of this research project, studies were sampled to illustrate where law enforcement participation worked and where law enforcement participation leads to unintended legal ramifications.