Law Commons^™

Modernizing Capacity Doctrine, Lisa V. Martin

Faculty Publications

Federal capacity doctrine—or the rules establishing whether and how children’s civil litigation proceeds—has largely remained the same for more than a century. It continues to presume that all children are incapable of directing their own cases, and that adults must litigate on children’s behalf. But since that time, our understanding of children, and of adolescents in particular, has significantly evolved. This Article contends that it is well beyond time to modernize the capacity doctrine to better account for the capabilities of adolescents and support their transition to adulthood.

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 06-2020, Roger Williams University School Of Law, Michael M. Bowden, Katie Mulvaney

Life of the Law School (1993- )

No abstract provided.

Sharenting: Children's Privacy In The Age Of Social Media, Stacey B. Steinberg

UF Law Faculty Publications

Through sharenting, or online sharing about parenting, parents now shape their children’s digital identity long before these young people open their first email. The disclosures parents make online are sure to follow their children into adulthood. Indeed, social media and blogging have dramatically changed the landscape facing today’s children as they come of age.

Children have an interest in privacy. Yet a parent’s right to control the upbringing of his or her children and a parent’s right to free speech may trump this interest. When parents share information about their children online, they do so without their children’s consent. These …

Genetic Essentialism In Family Law, Jennifer S. Hendricks

Publications

No abstract provided.

Stop Making Court A First Stop For Many Low Income Parents, Jane C. Murphy

All Faculty Scholarship

In the wake of the unrest over police misconduct in cities across the country, calls for reform have focused on the criminal justice system — making police, prosecutors, and criminal courts more accountable and just. While much work needs to be done in that arena, too little attention has focused on the ways in which low income families are hurt in civil courts. Many more men, women and children from low income communities of color pass through the doors of our family courts every day than those who interact with the criminal justice system. Some come to court as a …

Terminating Parental Rights Through A Backdoor In The Virginia Code, Dale Margolin Cecka

Law Faculty Publications

This article explores deficits in the statute, in light of constitutional law, other Virginia adoption and termination of parental rights statutes, and other states' codes and jurisprudence. Part II describes the history and practice of the statute. Part III describes the flaws of the statute, including Fourteenth Amendment violations and inherent conflicts of interest. Part IV calls for the revision of section 1202(H) based on recent precedent in which the Supreme Court of Virginia recognized the sanctity of the parent-child relationship and the state's interest in preserving it.

A More Humane Vision Of Family Law: Holistic Approach Needed To Shield Children From The Trauma Of Breakups, Barbara A. Babb, Mitchell K. Karpf

All Faculty Scholarship

No abstract provided.

A Review Of What's Wrong With Children's Rights: Still A "Slogan In Search Of A Definition", Justine A. Dunlap

Faculty Publications

The negative side of government intervention on behalf of children is a primary focus of New York University Law Professor Martin Guggenheim's book What's Wrong with Children's Rights. In this interesting book, Professor Guggenheim is always instructive and often provocative. As a consequence, he has written a book worth reading.

This book review essay will begin by offering an overall assessment of the book. It will then analyze two separate components of Guggenheim's book. First, it will evaluate Guggenheim's assertion that, absent a demonstration of parental unfitness, parental decision-making regarding their children is "virtually immune from state oversight." Second, …

Review Of Fathers Under Fire: The Revolution In Child Support Enforcement, By Irwin Garfinkel, Sara S. Mclanahan, Daniel R. Meyer, And Judith A. Seltzer, Ryan E. Spohn

Criminology and Criminal Justice Faculty Publications

The title of this book adequately reflects its timely focus on nonresidential fathers facing increased child support enforcement, examining how child support contributions (or failure to meet child support obligations) affect the lives of children as well as the fathers themselves. As the authors suggest, nonresident fathers have generally been treated as financial resources, with little attention paid to their rights as parents or their needs as providers for their children. A particular focus of this collection of studies is the role of indigent nonresident fathers and their role as parents and providers. Consequently, the scope of study adopted by …

Protecting Children By Preserving Parenthood, Jane C. Murphy

All Faculty Scholarship

Establishing legal parentage, once a relatively straightforward matter of marriage and biology, has become increasingly complex. The determination of legal status as mother may now involve several women making claims based on genetic contribution, contract, status as gestational carrier or other bases. The debate about the best choice for children when adults are competing for parental status is ongoing, lively and filled with many voices. Less attention has been paid to a much larger, second category of cases - cases in which the law is faced with resolving the legal status of the one adult who may be available to …

The Child Client: Representing Children In Child Protective Proceedings, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

Part I of this article outlines the historical context and addresses the child's right to legal representation. Part II discusses the child's legal status by defining the specific legal interests, her procedural rights as a party to the litigation, the right to choose counsel, and the child's right to be involved as a participant. The penultimate Part analyzes the role of the child's counsel, including an outline of the relevant statutes, the diametrically opposed positions of state legislatures and the organized bar, and the hopelessly conflicting contemporary case law. The final Part addresses the fundamental deficiencies of the “best interests” …

Domestic Violence And Mediation: Responding To The Challenges Of Crafting Effective Screens, Jane C. Murphy, Robert Rubinson

All Faculty Scholarship

Over the last two decades, mediation of family law cases has become well-established in American courts. As mediation has grown, experts have recognized that power imbalances between couples may interfere with mediation. This imbalance is particularly evident where one partner has been abusive to the other. Widespread consensus has developed that decisions about whether mediation is appropriate are particularly crucial and delicate when domestic violence is present. Despite this consensus, there is evidence that courts are still ordering couples who have experienced domestic violence to mediate their family law disputes with little or not particularized examination of the couples' circumstances. …

Legal Images Of Fatherhood: Welfare Reform, Child Support Enforcement, And Fatherless Children, Jane C. Murphy

All Faculty Scholarship

This Article analyzes the issue of paternity disestablishment, an issue courts and legislatures have been struggling with over the last several years. For a variety of reasons explored in this Article, an increasing number of fathers have filed requests to set aside paternity orders seeking to be relieved of the legal obligations of fatherhood. As a result families have been destabilized and children are becoming fatherless. The implications for the future of the family are profound. Although some scholars have examined this phenomenon, none have addressed the link between paternity disestablishment and welfare reform.

This Article explores the law's evolving …

Ub Viewpoint – Creation Of A Caring Justice System, Barbara A. Babb

All Faculty Scholarship

No abstract provided.

How Much Does Legal Status Matter? Adoptions By Kin Caregivers, Margaret F. Brinig, Steven L. Nock

Journal Articles

Virtually all the legislation dealing with families that include children begins with a "best interests of the child" premise.' Most, if not all, of the litigated results at least seem to maximize the outcomes for adults. This discrepancy should not be surprising, for both substantive and procedural reasons.

The substantive reason, as even the Supreme Court has noted, is that most of the time, what is good for parents will also be good for children. Moreover, having parents who possess many "rights" allow them to better exercise their parental responsibilities. From a procedural perspective, adults are usually the named parties …

Rethink The Laws Relating To Fathers (Change: With The Decline In Married Mothers And Traditional Families, The Legal Image Of Dads Needs Re-Examination), Jane C. Murphy

All Faculty Scholarship

This "marital presumption" permitted courts to assume a set of biological facts in the name of preserving the sanctity and stability of what was assumed to be the cornerstone of a healthy society — the traditional family of husband, wife and children. In the last decades of the 20th century, science developed paternity testing with results approaching certainty. Despite the availability of DNA testing, the marital presumption is still used in many courtrooms to answer the question of who is the legal father. What one scholar has called "the law's struggle to preserve the fiction of an older moral order" …

Child Care For Families Leaving Temporary Assistance For Needy Families, Rebecca L. Scharf, Sujatha Jagadeesh Branch, Cynthia Godsoe, Sherry Leiwant, Roslyn Powell, Cary Lacheen

Scholarly Works

Since Temporary Assistance for Needy Families (TANF) replaced the Aid to Families with Dependent Children program in 1996, the welfare rolls have decreased by more than 40 percent. While unemployment and poverty rates have declined, families who leave welfare generally earn low wages and remain below the poverty level. Because families leaving welfare are mostly single mothers with young children, child care is critical to their ability to work outside the home. Low-income parents trying to make ends meet, as well as employers of low-wage workers, emphasize the importance of appropriate, affordable child care in enabling women who leave welfare …

Lies Between Mommy And Daddy: The Case For Recognizing Spousal Emotional Distress Claims Based On Domestic Deceit That Interferes With Parent–Child Relationships, Linda L. Berger

Scholarly Works

This Article discusses whether courts should recognize spousal IIED causes of action based on intentional lies that interfere with the establishment or the continuation of parent-child relationships. The Article begins with an overview of the currents in family law and tort law that converge in domestic tort actions. Next, it reviews the current status of a particular domestic tort: spousal emotional distress. It then examines the evolution of emotional distress claims based on interference with parent-child relationships, moving from California's early and continuing rejection of these claims to the very recent recognition of these claims by other states. Finally, it …

Collecting Child Support: A History Of Federal And State Initiatives, Jane C. Murphy, Naomi R. Cahn

All Faculty Scholarship

In this article we sketch an overview of the increasing federal involvement in the child-support area. Because the federal role has grown so dramatically over the past 25 years, family law practitioners need to understand the different federal programs and requirements that affect state management of child-support programs. While for many low-income parents state agencies handle child-support establishment and collection, the federalization of child support has practical implications when it comes to both establishing and enforcing child support. For example, as the time limits of the Personal Responsibility and Work Opportunity Reconciliation Act begin to have their effects, child support …

When Daddy Wants Out: The Issue Of Paternity, Jane C. Murphy, Cheri Wyron Levin

All Faculty Scholarship

Perhaps you've seen the signs along a number of major highways in Maryland. A pregnant Mona Lisa advertising a DNA testing company with the caption "Who's the Daddy?" With the rise in the number of children born out of wedlock in Maryland in the last several decades, paternity testing is becoming routine and family law practitioners are handling more cases in which the father or mother or both are trying to change who is named as the legal father in a paternity or divorce judgment. The law governing such cases has changed substantially since 1995. This article will guide the …

Baltimore City’S Child-Focused Court, Barbara A. Babb, Judith D. Moran

All Faculty Scholarship

No abstract provided.

Rules, Responsibility And Commitment To Children: The New Language Of Morality In Family Law, Jane C. Murphy

All Faculty Scholarship

Part One of this Article explores the meaning of morality by briefly reviewing a variety of attempts to explore the meaning of moral conduct. This Section draws on a variety of contemporary moral philosophers who have built on the classical tradition to develop a broader definition of moral behavior. This discussion provides a context for the current debate about the meaning of morality in family law and moral discourse in the no-fault era. Part One also reviews the historical debate about how law should strike a balance between promoting communitarian values and respecting autonomy and individual rights. The Article argues …

Child Care In The Postwelfare Reform Era: Analysis And Strategies For Advocates, Rebecca L. Scharf, Jo Ann C. Gong, Alice Bussiere, Jennifer Light, Marc Cohan, Sherry Leiwant

Scholarly Works

Adequate child care is essential to enable poor women to support their families with work outside the home. In 1994 the U.S. General Accounting Office found that offering a child care subsidy to poor mothers increased the likelihood by 15 percent that the mothers would work. An Illinois study found that 20 percent of parents who left public assistance for work returned to assistance because of child care problems. In Minnesota a study found that lack of child care caused 14 percent of parents awaiting child care subsidies to leave their jobs and rely on public assistance. These studies confirm …

Suffer The Little Children: Justifying Same-Sex Marriage From The Perspective Of A Child Of The Union, Lewis A. Silverman

Scholarly Works

No abstract provided.

'M' Is For The Many Things That 'Mother' Means Family Life Has Changed, But Family Law Hasn't Kept Pace, Jane C. Murphy

All Faculty Scholarship

No abstract provided.

Assembly Bill To Speed Divorce After Abuse Will Save Many Lives, Bring Needed Reform, Jane C. Murphy

All Faculty Scholarship

No abstract provided.

Legal Images Of Motherhood: Conflicting Definitions From Welfare "Reform," Family And Criminal Law, Jane C. Murphy

All Faculty Scholarship

Part I of this Article explores the traditional idealized view of motherhood that child placement statutes and court decisions reflect. These laws include statutes and case law in custody disputes between parents and in child protection proceedings under civil and criminal laws where the dispute is between the parent and the state. Part II contrasts the legal construct of motherhood that child placement laws embody with the legal image of mothers in child support and welfare law.

Part III examines the impact of these conflicting images of motherhood on a particular group of mothers -- battered women. Battered women illuminate …

Myths And Moms: Images Of Women And Termination Of Parental Rights, Odeana R. Neal

All Faculty Scholarship

For most of us, the word "mother" evokes a myriad of often conflicting images and emotions, expectations and disappointments, and gratitude and blame. What a mother is - our own mothers and the class of people who are mothers - means much more than that a woman has given birth. We expect mothers to provide their children with all the love, caring, nurturing, and emotional fulfillment that we perceive those children need and desire; we expect her to be all things that we want her to be when we need her to be them. A woman who can fulfill the …

Finite Horizons: The American Family, Margaret F. Brinig

Journal Articles

In the summer of 1992, while I was reading and thinking about Martha Minow's latest book, I was struck with my double role as a responsible adult. Vacationing in the north woods of Wisconsin with my mother, I suddenly needed to care for her as well as my own small children. Generational connections, important before, swelled hugely in crisis. As I caught my breath between hospital runs and kids' activities, I was thankful that I had received so much from my parents during my childhood. And I resolved to rethink the relationships between parents and children, adults and elderly.

Policy …

Child Care Enterprise, Community Development, And Work, Peter R. Pitegoff

Faculty Publications

Child care enterprise can be a vehicle for community-based economic development. Beyond the critical goal of child care service, day care as an enterprise can help build capacity for job creation and entrepreneurship in the inner city and in disadvantaged communities. Stable child care institutions with quality jobs can sound a counterpoint to the feminization of poverty. The demand for child care services is substantial and growing. In single parent families and in households with two working parents, day care is essential to enable parents to work or go to school. Further, high quality early childhood programs can have a …