Law Commons^™

Supreme Court Overreach Through Broad Discretionary Consideration Of Ameliorative Measures In International Child Abduction, Lauren Mayell

Global Business Law Review

This Note provides a critical analysis of the United States Supreme Court's recent decision in Golan v. Saada--a case setting precedent in the area of international child abduction by biological parents. It argues that the Supreme Court oversteps the presiding law in the field through the use of discretionary ameliorative measures. These ameliorative measures do not show evidence of protecting children from grave risk, directly usurp underlying custody proceedings, and hinder expeditious procedures, all of which are required by law in international child abduction cases. Additionally, this Note compares the European Union's approach to ameliorate analysis. Lastly this Note …

Unstable Homes Exacerbated By Unstable Courts: How Ohio's Split-Child-Custody Jurisdiction Harms Ohio's Children And Families, Philip Shipman

Et Cetera

Raising a child is very difficult. Add to the difficulty in raising a child the specter of a child custody suit, and you have a recipe that can end in disaster.

In Ohio, child custody is not fair. It is not just. It is determined by judges, whose jurisdiction is determined by whether the child’s parents were married to each other. Under this jurisdictional scheme, Ohio’s children are failed. This failure stems from Ohio courts making their own rules without care to fairness and equality. Within most of Ohio’s eighty-eight counties, juvenile and domestic relations courts can, and do, set …

Concealing More Than Your Affairs: A Deep Dive Into The World Of Cryptocurrency And Its Future Influence On Family Law In Ohio, Milica Prica

Cleveland State Law Review

This Note dives into the world of cryptocurrency and family law in Ohio. With its current popularity and dramatic fluctuations, cryptocurrency has created a new legal issue in the family law practice. Specifically, this Note focuses on the concealability of Bitcoin and how that influences division of property, spousal support, and child support in Ohio divorce proceedings and settlements. To tackle this issue, this Note begins with the history of Bitcoin, its value since the beginning, as well as the reason for its fluctuations. This Note also looks into what makes Bitcoin and other cryptocurrency forms so concealable. This Note …

Defining Genetic Information Under Gina, Shane Padilla

Cleveland State Law Review

The Genetic Information Nondiscrimination Act (GINA) was enacted to prevent discrimination based on an employee’s genetic information. Although GINA undoubtedly provides employees protection from unjust genetic discrimination by employers, varying interpretations of what constitutes “genetic information” has raised legal uncertainties in how GINA is applied. Consequently, the genetic information of an employee’s family may be unduly placed at risk as a result of misinterpreting the statutory language and legislative intent of GINA. It is of the utmost importance that the definition of “genetic information” be construed with respect to the Act’s legislative history, which supports a broad interpretation and application …

Innocent Until Proven Arrested: How Pretrial Juvenile Detention For Nonviolent Offenders In Ohio Inflicts Constitutional Violations, Taryn Schoenfeld

Et Cetera

When a juvenile is accused of committing a crime in Ohio, juvenile court judges must determine whether to detain the child pretrial in a juvenile jail or permit the child to go home to await trial. Whereas alleged adult offenders have the right to pay a monetary bond to be released from jail pretrial, juveniles have no such right. Thus, once a judge makes the decision to detain a juvenile pretrial—prior to being adjudicated delinquent of any crime—it is difficult for that decision to be undone. While incarcerated, juveniles suffer irreversible psychological, emotional, mental, and social harms, despite juvenile courts …

Ohio's Love-Hate Relationship With Marital Agreements: Why Ohio Should Lift Its Prohibition On Postnuptial Agreements, Natasha Wasil

Cleveland State Law Review

Ohio has been accepting of prenuptial agreements since its landmark decision in Gross v. Gross in 1984, declaring them to be not void per se as being against public policy. Unfortunately, Ohio’s evolution of the law regarding marital agreements has remained at a stand-still since Gross. Through the twenty-first century, a majority of states have responded to the evolution of marriage by enacting legislation, or judicially by court order, to allow spouses to enter into contracts after marriage to allocate the division of property and legal obligations of the couple in the event of divorce, commonly known as “postnuptial …

The Right To Unmarry: A Proposal, Brian L. Frye, Maybell Romero

Cleveland State Law Review

When I say I’m in love, you better believe I’m in love, L-U-V.

[April 2, 2020] BLF: This is a marriage proposal in the form of a law review article. In this Article, I observe that Maybell Romero and I are in love. I want to marry her, and I believe she wants to marry me. At least I’ll find out pretty soon. But we cannot marry each other right now, because we are both currently married to other people. Maybell and I want to end our existing marriages, and our respective spouses have even agreed to divorce. But the …

Let She Who Has The Womb Speak: Regulating The Use Of Human Oocyte Cryopreservation To The Detriment Of Older Women, Browne C. Lewis

Law Faculty Articles and Essays

This article is divided into three parts. Part I examines the arguments in favor of banning human oocyte cryopreservation. Part II explores the reasons some opponents of human oocyte cryopreservation might give to support restrictions on the use of frozen oocytes. Part III analyzes the possible ethical and legal challenges that may arise in the event that the government seeks to ban the use of frozen oocytes or restrict the use of frozen oocytes based solely on the age of the potential mother.

Parens Patriae And Parental Rights: When Should The State Override Parental Medical Decisions?, Elchanan G. Stern

Journal of Law and Health

Alfie Evans was a terminally ill British child whose parents, clinging to hope, were desperately trying to save his life. Hospital authorities disagreed and petitioned the court to enjoin the parents from removing him and taking him elsewhere for treatment. The court stepped in and compelled the hospital to discontinue life support and claimed that further treatment was not in the child’s best interest. This note discusses the heartbreaking stories of Alfie and two other children whose parents’ medical decisions on their behalf were overridden by the court. It argues that courts should never decide that death is in a …

Puffing Away Parental Rights: A Survey And Analysis Of Whether Secondhand Smoke Exposure Is Child Abuse, Karly Huml

Journal of Law and Health

The steps taken thus far to protect children in public areas, custody cases, and in vehicles show the legislature's awareness of the chemical harms of secondhand smoke for children. This article will analyze those steps and discuss what they mean for both parents' and children's constitutional rights. This article proposes that the legislature take a vital fourth step by including secondhand smoke exposure in child abuse laws. Section II of this article provides the history of smoking tobacco and its transition from a trendy social status to an unpopular, harmful habit. Section II also introduces the steps that have been …

Now, I'M Liberal, But To A Degree: An Essay On Debating Religious Liberty And Discrimination, Francis J. Beckwith

Cleveland State Law Review

This essay is a critical analysis of the book authored by John Corvino, Sherif Girgis, and Ryan T. Anderson, Debating Religious Liberty and Discrimination. The book offers two contrary views on how best to think about some of the conflicts that have arisen over religious liberty and anti-discrimination laws, e.g., Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018). One position is defended by Corvino, and the other by Girgis and Anderson. After a brief discussion of the differing views of religious liberty throughout American history (including the American founding), this essay summarizes each …

Fear Of A Multiracial Planet: Loving'S Children And The Genocide Of The White Race, Reginald Oh

Law Faculty Articles and Essays

Fifty years after the U.S. Supreme Court ruled in Loving v. Virginia that prohibitions against interracial marriages were unconstitutional, strong cultural opposition to interracial couples, marriages, and families continues to exist. Illustrative of this opposition is the controversy over an Old Navy clothing store advertisement posted on Twitter in spring 2016. The advertisement depicted an African American woman and a white man together with a presumably mixed-race child. The white man is carrying the boy on his back. It is a clear depiction of an interracial family. Although seemingly innocuous, this advertisement sparked a flood of comments expressing open hostility …

Is More Parental Leave Always Better?: An Analysis Of Potential Employee Protections For Leave Offered Outside The Fmla, Natalie Bucciarelli Pedersen

Cleveland State Law Review

In the past few years, many large companies, including Netflix, Amazon and Facebook have implemented expanded—and very generous—parental leave policies. While on the surface these policies seem employee-friendly and even big-hearted, when one explores the potential consequences of taking such leave, the policies are fraught with potential dangers for employees. In a groundbreaking new study, researchers have found that employers view time off or flexible work arrangements made for an employee’s personal reasons as negatively reflecting on an employee’s work commitment. But what happens if a company decides to terminate an employee because they have taken leave and are viewed …

The "P" Word: Ohio Should Adopt The Uniform Premarital Agreements Act To Achieve Consistency And Uniformity In The Treatment Of Prenuptial Agreements, Jenna Christine Colucci

Cleveland State Law Review

Throughout the United States, courts have used inconsistent standards for the interpretation of prenuptial agreements. Under Ohio jurisprudence, courts are concerned with protecting the vulnerable spouse or the economically disadvantaged party. This legal standard acknowledges the unique relationship of the parties to the contract and will generally review the procedural and substantive components of the prenuptial agreement. Conversely, other courts are weary of interfering with the contractual freedom of the parties and will only invalidate a prenuptial agreement upon a showing of fraud, duress, or misrepresentation. The Uniform Premarital Agreement Act was drafted in 1983 to address the inconsistent treatment …

In The "Best Interests" Of The Disabled: Legislating Morality And The Power To Initiate Support Orders For Disabled Adults In Ohio, Kalynne Proctor

Cleveland State Law Review

Today’s reality is that many families have children who are faced with disabling conditions that prevent them from relinquishing their dependency on others. Often, the need for specialized treatment and care does not terminate once a severely disabled child reaches adulthood. While typically parents are relieved of their legal parental obligations to their adult-aged children, this is not the same case for parents with severely disabled children. In some respects, Ohio has recognized the financial difficulties divorced parents face when they are the sole caregivers of disabled adult children. Although Ohio law requires that the noncustodial parent in a divorce …

The Empirics Of Child Custody, Margaret Ryznar

Cleveland State Law Review

Child custody issues are as American as apple pie, with only a quarter of children seeing their parents married until the end. The legal standard for custody is the best interests of the child, but the greyness of this inquiry allows courts to make difficult judgments. In family law, such discretionary standards govern factually diverse cases and make it difficult to draw conclusions from individual cases. This Article offers an objective measurement in family law by empirically examining a sample of Indiana divorce cases filed during three months in 2008 that involved children. The resulting analysis of child custody and …

Due Date: Enforcing Surrogacy Promises In The Best Interest Of The Child, Browne C. Lewis

Law Faculty Articles and Essays

Professor Lewis argues that the courts should apply contract principles and not family law principles to resolve surrogacy disputes. Since children are unique, Professor Lewis argues, courts should presume that the contract should be specifically enforced. As a result, the intended mother should be adjudicated the legal mother. However, Professor Lewis further argues the the surrogate should be able to present evidence of changed circumstances to rebut the presumption of specific performance and permit the court to determine maternity based upon the best interests of the child.

Surrogacy And Insurance: The Call For Statutory Reform In Ohio, Sasha M. Swoveland

Journal of Law and Health

This Note examines the practice of excluding maternity services for surrogate mothers under insurance plans that cover maternity services. This Note also introduces two different surrogate arrangements and illustrates the different familial situations that may necessitate the use of a surrogate. Part II defines surrogacy and offers a general overview of the surrogacy process. Part III demonstrates that surrogates need insurance for pregnancy related services. It also argues that the exclusion of coverage for surrogates is pregnancy discrimination. Part IV explains why current legal remedies are insufficient to make surrogates whole. Part V analyzes the state of surrogacy examining Ohio …

Reforming The Safe Haven In Ohio: Protecting The Rights Of Mothers Through Anonymity, Brittany Neal

Journal of Law and Health

This Note discusses the conflict between the statewide safe haven law and the Ohio juvenile rules regarding procedure. It purports that to protect the rights of new mothers and retain the essential element of anonymity, Ohio’s Juvenile Rule 1(C) needs to be amended to maintain the state’s current safe haven law. Therefore, because of the statewide threat Ohio courts place on Ohio’s safe haven law, Juvenile Rule 1(C) needs to explicitly provide for an additional exception in cases of child relinquishment. Section II of this Note discusses the beginning of state safe haven legislation and what the laws are attempting …

Three Lies And A Truth: Adjudicating Maternity In Surrogacy Disputes, Browne C. Lewis

Law Faculty Articles and Essays

Historically, courts were called on to answer the following question: What makes a man a legal father? Courts applied different presumptions to arrive at the answer. For example, if the case involved a married couple, the woman's husband was presumed to be the legal father.1 In situations involving an unmarried woman, the man who helped to conceive the child was the legal father. While paternity was being litigated, maternity was resolved-the woman who gave birth to the child was the child's legal mother. The phrase “momma's baby, papa's maybe” reflected society's attitude towards maternity. Since the woman who gave birth …

Shielding Ohio's Newborns: Defending A Broad Interpretation Of Child Within The Meaning Of O.R.C. Sec. 3113.31, John Hofstetter

Cleveland State Law Review

This note argues that viable fetuses should be viewed as “children” within the meaning of O.R.C. § 3113.31, therefore qualifying them for the protections afforded by civil protection orders. It focuses on the urgent need for such an interpretation based on child safety concerns arising primarily after the birth of the child, rather than those existing while the child is still in utero.

Graveside Birthday Parties: The Legal Consequences Of Forming Families Posthumously, Browne C. Lewis

Law Faculty Articles and Essays

This essay highlights some of the legal consequences resulting from the widespread availability and use of reproductive technology. The Essay is divided into three parts. Part I examines the steps that must be taken to identify the legal parents of the posthumously conceived children. Part II discussed the reproductive rights of the deceased gamete providers. Since most posthumous reproduction is done using the sperm of dead men, the discussion centers on male reproductive rights. Finally, Part III focuses on the inheritance rights of posthumously conceived children.

Fathers, Foreskins, And Family Law, Dena S. Davis

Law Faculty Articles and Essays

In the United States, a custodial parent has the right and responsibility to make medical decisions for one's child. But does that right encompass consenting for a surgical procedure for which there is little or no medical justification? What if the noncustodial parent opposed the procedure? And when is a child old enough to make the decision for him- or herself? How should a physician respond when asked to perform a surgical procedure when the decision is enmeshed in family controversy? These and other questions are considered in Boldt, a recent family law case decided by the Supreme Court of …

Two Fathers, One Dad: Allocating The Paternal Obligations Between The Men Involved In The Artificial Insemination Process, Browne C. Lewis

Law Faculty Articles and Essays

Nadya Suleman used sperm from a man she knows to conceive fourteen children using assisted reproduction. It is clear that Suleman is the legal mother of the children. The unanswered question is: "Are the children legally fatherless?" The answer to this question is important because experts predict that it will take well over one million dollars to support the children until they reach the age of majority. My article seeks to provide some insight into the resolution of this issue. Although Suleman did not conceived using artificial insemination, the information examined in my article may be applied to her situation. …

A Plea For Permanence After Termination Of Parental Rights: Protecting The Best Interests Of The Child In Ohio, Daniel A. Starett

Cleveland State Law Review

Ohio's R.C. 2151.313 must be amended to allow the courts to protect the best interest of the children for whom they are in place to serve, even if this means that occasionally a parent who was once adjudged to be incapable of caring for her child, and whose rights were subsequently terminated, may be the best, and often only, option to save that child from the dangers of the foster care system. Part II of this Note will explore the dangers of exposure to the foster care system, illustrate why we need to protect children from prolonged exposure to the …

Revealing Your Sources: The Case For Non-Anonymous Gamete Donation, Michelle Dennison

Journal of Law and Health

This article argues that both legislating the end of anonymous gamete donation and allowing current children of anonymous gamete donation the ability to access identifying information about their donors is in the best interests of all parties involved in the donation process. Recipient-parents and donor-conceived children will benefit from having increased access to their donor's health information. Records access, including access to a donor's identifying information, will help donor-conceived children avoid potential incest and what is sometimes termed in adoption cases "genealogical bewilderment." Finally, banning anonymous donation will give potential gamete donors the ability to make a truly informed decision …

What The Erie Surrogate Triplets Can Teach State Legislatures About The Need To Enact Article 8 Of The Uniform Parentage Act (2000) , Robert E. Rains

Cleveland State Law Review

This Article will explain the protracted legal battles over the "surrogate triplets" and explore potential legislation designed to avoid such battles in the future. While reasonable minds could certainly differ as to the wisdom of the legislative scheme proposed in Article 8 of the UPA (2000), or as to some of its details, surely it would be a vast improvement over the current situation in which most state legislatures have failed to address surrogacy through statutes and those that have done so have failed to act in a uniform manner. As the Erie triplets case amply demonstrates, the state courts …

Children Of Men: Balancing The Inheritance Rights Of Marital And Non-Marital Children, Browne C. Lewis

Law Faculty Articles and Essays

Average U.S. citizens are routinely having children out of wedlock. In America, at least one out of every three babies born is a non-marital child. As more and more children continue to be born out of wedlock, society must enact laws to protect the interests of those children. They are the children of men and they are entitled to financial support both during the lives and after the deaths of their parents.

Part II of this article briefly discusses the historical treatment of non-marital children. Part Ill explores the modem legal treatment of non-marital children, which consists of three distinct …

The Only Americans Legally Prohibited From Knowing Who Their Birth Parents Are: A Rejection Of Privacy Rights As A Bar To Adult Adoptees' Access To Original Birth And Adoption Records, Susan Whittaker Hughes

Cleveland State Law Review

Sadly, adult adoptees in America must confront the reality that, in most states, their right to access their original birth and adoption records is a very narrow right statutorily granted only to those who can show good cause. Part II of this paper will explore the reasons why adult adoptees search for information regarding their biological origins and the history of adult adoptees' access to original birth and adoption records. Part III will give a brief overview of the concept of constitutional privacy and discuss the several categories of privacy currently recognized in American law and the relationship between privacy …

The Framers' Idea Of Marriage And Family, David F. Forte

Law Faculty Contributions to Books

The founders understood the symbiotic connection between family virtues and civic virtues. They knew it through their study of the classics, through their imbibing of the Scottish enlightenment, through their understanding of the providential nature of the Judeo-Christian God, through their familiarity with self-governing liberty, and through their utter respect of their own human experience of living. They looked upon the family as a model in which man’s selfish impulses would be contained, where the coordination of practical tasks could be effectuated, and where sentiments of affection and mutual respect could bind a people into a nation. It was the …