Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication Year
- Publication
- Publication Type
Articles 1 - 23 of 23
Full-Text Articles in Law
Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran
Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran
Articles
In New York City, an indigent parent can receive the assistance of a multidisciplinary legal team—an attorney, a social worker, and a parent advocate—to defend against the City’s request to temporarily remove a child from her care. But in Mississippi, that same parent can have her rights to her child permanently terminated without ever receiving the assistance of a single lawyer. In Washington State, the Legislature has ensured that parents ensnared in child abuse and neglect proceedings will receive the help of a well-trained and well-compensated attorney with a reasonable caseload. Yet in Tennessee, its Supreme Court has held that …
Child Welfare's Scarlet Letter: How A Prior Termination Of Parental Rights Can Permanently Brand A Parent As Unfit, Vivek S. Sankaran
Child Welfare's Scarlet Letter: How A Prior Termination Of Parental Rights Can Permanently Brand A Parent As Unfit, Vivek S. Sankaran
Articles
In many jurisdictions, once a parent has her rights terminated to one child, the State can use that decision to justify the termination of parental rights to another child. The State can do so regardless of whether the parent is fit to parent the second child. This article explores this practice, examines its origins, and discusses its constitutional inadequacies.
Traditional Problems: How Tribal Same-Sex Marriage Bans Threaten Tribal Sovereignty, Marcia Zug
Traditional Problems: How Tribal Same-Sex Marriage Bans Threaten Tribal Sovereignty, Marcia Zug
Mitchell Hamline Law Review
No abstract provided.
Stanley V. Illinois’S Untold Story, Josh Gupta-Kagan
Stanley V. Illinois’S Untold Story, Josh Gupta-Kagan
William & Mary Bill of Rights Journal
Stanley v. Illinois is one of the Supreme Courts more curious landmark cases. The holding is well known: the Due Process Clause both prohibits states from removing children from the care of unwed fathers simply because they are not married and requires states to provide all parents with a hearing on their fitness. By recognizing strong due process protections for parents rights, Stanley reaffirmed Lochner-era cases that had been in doubt and formed the foundation of modern constitutional family law. But Peter Stanley never raised due process arguments, so it has long been unclear how the Court reached this decision. …
Fathers And The Supreme Court: Founding Fathers And Nuturing Fathers, Nancy E. Dowd
Fathers And The Supreme Court: Founding Fathers And Nuturing Fathers, Nancy E. Dowd
Nancy Dowd
This article critiques the Supreme Court's negative, stereotypic views of fatherhood, especially unmarried fatherhood, and argues that the Court should reconsider and refine its definition of fatherhood around nurture. The corrective for the Court's current view is not to revert to a status-based definition of fatherhood, but rather to reinforce and recast its prior fathers' rights decisions to establish a definition grounded on relationship and care. What should be discarded are outdated stereotypes about men as incapable, incompetent caregivers, as well as patriarchal norms of status and ownership based in genetic and economic fatherhood recognized exclusively within marriage. Instead, fatherhood …
Federalism And Family Status, Courtney G. Joslin
Federalism And Family Status, Courtney G. Joslin
Indiana Law Journal
The myth of family law’s inherent localism is sticky. In the past, it was common to hear sweeping claims about the exclusively local nature of all family matters. In response to persuasive critiques, a narrower iteration of family law localism emerged. The new, refined version acknowledges the existence of some federal family law but contends that certain “core” family law matters—specifically, family status determinations—are inherently local. I call this family status localism. Proponents of family status localism rely on history, asserting that the federal government has always deferred to state family status determinations. Family status localism made its most recent …
Certiorari And The Marriage Equality Cases, Carl Tobias
Certiorari And The Marriage Equality Cases, Carl Tobias
University of Michigan Journal of Law Reform Caveat
Marriage equality has come to much of the nation. Over 2014, many district court rulings invalidated state proscriptions on same- sex marriage, while four appeals courts upheld these decisions. However, the Sixth Circuit reversed district judgments which struck down bans in Kentucky, Michigan, Ohio, and Tennessee. Because that appellate opinion created a patchwork of differing legal regimes across the country, this Paper urges the Supreme Court to clarify marriage equality by reviewing that determination this Term.
The Supreme Court Refused To Expand The Right Of Privacy To Include Homosexual Sodomy In Bowers V. Hardwick, Richard J. Wittbrodt
The Supreme Court Refused To Expand The Right Of Privacy To Include Homosexual Sodomy In Bowers V. Hardwick, Richard J. Wittbrodt
Pepperdine Law Review
No abstract provided.
Flexible Scheduling And Gender Equiality: The Working Families Flexibility Act Under The Fourteenth Amendment, Lane C. Powell
Flexible Scheduling And Gender Equiality: The Working Families Flexibility Act Under The Fourteenth Amendment, Lane C. Powell
Michigan Journal of Gender & Law
The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman …
Saving Seaborn: Ownership Not Marriage As The Basis Of Family Taxation, Dennis J. Ventry Jr
Saving Seaborn: Ownership Not Marriage As The Basis Of Family Taxation, Dennis J. Ventry Jr
Indiana Law Journal
One of the most famous Supreme Court tax cases celebrated its eightieth birthday last year. In Poe v. Seaborn, the Court reified two principles of the federal income tax: ownership determines tax liability and state law determines ownership. This Article affirms that family taxation continues to follow ownership, not marriage, despite the federal government’s position that the “ownership equals taxability” rule applies almost exclusively to heterosexual spouses. Verifying the vitality of this principle carries significant implications for all families, particularly nontraditional families. Under the aegis of Seaborn, the principle authorizes certain members of state-recognized relationships—marriages, domestic partnerships, civil unions—to file …
Protecting A Parent's Right To Counsel In Child Welfare Cases, Vivek Sankaran
Protecting A Parent's Right To Counsel In Child Welfare Cases, Vivek Sankaran
Articles
A national consensus is emerging that zealous leagal representation for parents is crucial to ensure that the child welfare system produces just outcomes for children. Parents' lawyers protect important constitutional rights, prevent the unnecessary entry of children into foster care and guide parents through a complex system.
Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran
Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran
Articles
Over the past hundred years, a consensus has emerged recognizing a parent's ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings. Yet, …
But I Didn't Do Anything Wrong: Revisiting The Rights Of Non-Offending Parents In Child Protection Proceedings, Vivek Sankaran
But I Didn't Do Anything Wrong: Revisiting The Rights Of Non-Offending Parents In Child Protection Proceedings, Vivek Sankaran
Articles
Steven, a minor living with his mother, enjoyed a nurturing relationship with his father, Mark. He saw his father every weekend and looked forward to their time together. Mark looked for ways in which to stay involved in his child's life. Two days ago, the Department of Human Services (DHS) removed Steven from his mother's custody because, unbeknown to Mark, Stevens mother was selling drugs in the home. At the time of removal, the police did not inquire about the whereabouts of Stevens father; DHS immediately placed Steven in a foster home.
Fathers And The Supreme Court: Founding Fathers And Nuturing Fathers, Nancy E. Dowd
Fathers And The Supreme Court: Founding Fathers And Nuturing Fathers, Nancy E. Dowd
UF Law Faculty Publications
This article critiques the Supreme Court's negative, stereotypic views of fatherhood, especially unmarried fatherhood, and argues that the Court should reconsider and refine its definition of fatherhood around nurture. The corrective for the Court's current view is not to revert to a status-based definition of fatherhood, but rather to reinforce and recast its prior fathers' rights decisions to establish a definition grounded on relationship and care. What should be discarded are outdated stereotypes about men as incapable, incompetent caregivers, as well as patriarchal norms of status and ownership based in genetic and economic fatherhood recognized exclusively within marriage. Instead, fatherhood …
Section 3: Gay Rights After Lawrence, Institute Of Bill Of Rights Law, William & Mary Law School
Section 3: Gay Rights After Lawrence, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
The Alienation Of Fathers, Linda Kelly
The Alienation Of Fathers, Linda Kelly
Michigan Journal of Race and Law
By evaluating immigration and custody law from a father's perspective and thereby uncovering and addressing the biases held against men, both fathers and mothers will achieve greater recognition. Beyond revealing gender discrimination, such a study also demonstrates the disparate views still harbored toward unmarried parents. Examining custody and immigration law with an emphasis on these issues will hopefully foster a dialogue that brings the law in line with the reality of today's families and promotes each family member's individual potential.
A Glimmer Of Hope: A Proposal To Keep The Indian Child Welfare Act Of 1978 Intact, Jose Monsivais
A Glimmer Of Hope: A Proposal To Keep The Indian Child Welfare Act Of 1978 Intact, Jose Monsivais
American Indian Law Review
No abstract provided.
Husband And Wife Are One - Him: Bennis V. Michigan As The Resurrection Of Coverture, Amy D. Ronner
Husband And Wife Are One - Him: Bennis V. Michigan As The Resurrection Of Coverture, Amy D. Ronner
Michigan Journal of Gender & Law
Although the legal fictions of coverture and guilty property have been repudiated by statutes and the Court respectively, the Supreme Court implicitly resurrected and fused the coverture and guilty property myths in Bennis v. Michigan. In that decision, the Court approved the forfeiture of Ms. Bennis' interest in a car in which her husband engaged in sexual activity with a prostitute. This Article explores that resurrected conglomerate in three parts. Part I is a concise review of the feudal doctrine of coverture and the disabilities it imposed on married women. Part II focuses almost entirely on the decision in …
Tribal Jurisdiction Over Indian Children: Mississippi Band Of Choctaw Indians V. Holyfield, Diane Allbaugh
Tribal Jurisdiction Over Indian Children: Mississippi Band Of Choctaw Indians V. Holyfield, Diane Allbaugh
American Indian Law Review
No abstract provided.
Ex Proprio Vigore, James J. White
Ex Proprio Vigore, James J. White
Articles
The National Conference of the Commissioners on Uniform State Laws (NCCUSL) is a legislature in every way but one. It drafts uniform acts, debates them, passes them, and promulgates them, but that passage and promulgation do not make these uniform acts law over any citizen of any state. These acts become the law of the various states only ex proprio vigore - only if their own vitality influences the legislators of the various states to pass them.
State-Interest Analysis In Fourteenth-Amendment "Privacy" Law: An Essay On The Constitutionalization Of Social Issues, Carl E. Schneider
State-Interest Analysis In Fourteenth-Amendment "Privacy" Law: An Essay On The Constitutionalization Of Social Issues, Carl E. Schneider
Articles
Asked to resolve a social issue, Americans today turn readily to rights and to the Constitution that is understood to embody them. Many "vice" issues have long been thought particularly apt for a rights analysis. A constitutional resolution of vice issues is therefore inevitably a possibility, and its wisdom is inevitably a question. In this essay, I want to address that question by investigating an area of the law that has been recently constitutionalized family law. Family law is an example worth studying because rights thinking has won a considerable prominence in it: The Constitution has been used to transform …
Children: An Analysis Of Cases Decided Pursuant To The Indian Child Welfare Act Of 1978, Therese Buthod
Children: An Analysis Of Cases Decided Pursuant To The Indian Child Welfare Act Of 1978, Therese Buthod
American Indian Law Review
No abstract provided.
Forcing Protection On Children And Their Parents: The Impact Of Wyman V. James, Robert A. Burt
Forcing Protection On Children And Their Parents: The Impact Of Wyman V. James, Robert A. Burt
Michigan Law Review
This Article will focus on one of the concerns implicated in Wyman: the government's power to force assistance for the protection of children, when they or their parents are unwilling to accept that assistance. The state's protective purposes in insisting that Mrs. James accept its assistance or suffer serious loss of benefits played an important role in the Wyman decision. Only a few years ago, in In re Gault, the Court refused to defer to a state's similarly beneficent motives when it was asked to withhold the imposition of procedural safeguards in juvenile delinquency proceedings. Wyman does not …