Law Commons^™

Marriage Is On The Decline And Cohabitation Is On The Rise: At What Point, If Ever, Should Unmarried Partners Acquire Marital Rights?, Lawrence W. Waggoner

Articles

This article draws attention to the cultural shift in the formation of families that has been and is taking place in this country: Marriage is on the decline and cohabitation is on the rise. Part II documents this cultural shift by using recent government data to trace the decline of marriage and the rise of cohabitation. Between 2000 and 2010, the population grew by 9.71%, but the husband-and-wife households only grew by 3.7%, while the unmarried-couple households grew by 41.4%. Because of the Supreme Court's decidion in Obergefell v. Hodges, marriage is now universally available to same-sex couples. Part …

When Children Object: Amplifying An Older Child’S Objection To Termination Of Parental Rights, Brent Pattison

University of Michigan Journal of Law Reform

Each year, thousands of children become wards of the state when a court terminates the legal rights of their parents. Between 2010 and 2014, more than 307,000 children lost their legal relationships to their parents in Termination of Parental Rights (TPR) proceedings. A growing percentage of child welfare cases involve older children. At the same time, too many young people lose their legal relationships with their parents without a family waiting to adopt them. The stakes are high for children in TPR cases; nonetheless, many children—even older children—cannot meaningfully participate in proceedings. Moreover, TPR cases threaten parents’ and children’s rights …

A Liberal Dilemma: Respecting Autonomy While Also Protecting Inchoate Children From Prenatal Substance Abuse., Andrew J. Weisberg, Frank E. Vandervort

Articles

Substance abuse is a significant social problem in America. It is estimated that some eighteen million Americans have an alcohol abuse problem and that almost five million have a drug abuse problem. According to the National Institute on Drug Abuse, substance abuse costs some $700 billion per year Substance abuse is a major contributor to child maltreatment. It is estimated that between one- and two-thirds of cases in which children enter foster care are linked to parental substance abuse. Unfortunately, this may be an underestimate as recent research suggests that many cases, particularly cases in which children have been exposed …

The Return Of Coverture, Allison Anna Tait

Michigan Law Review First Impressions

Once, the notion that husbands and wives were equal partners in marriage seemed outlandish and unnatural. Today, the marriage narrative has been reversed and the prevailing attitude is that marriage has become an increasingly equitable institution. This is the story that Justice Kennedy told in Obergefell v. Hodges, in which he described marriage as an evolving institution that has adapted in response to social change such that discriminatory marriage rules no longer apply. Coverture exemplifies this change: marriage used to be deeply shaped by coverture rules and now it is not. While celebrating the demise of coverture, however, the …

Reforming (But Not Eliminating) The Parental Discipline Defense, Hazel Blum

University of Michigan Journal of Law Reform

This Note argues that although states should retain the parental discipline defense, their legislators should rewrite their statutes to limit the defense to a specific range of disciplinary methods that social science research has shown to have either net-beneficial or net-neutral effects on children. Part II explores religious and cultural attitudes about corporal punishment, including an overview of traditional American attitudes toward corporal punishment. Specifically, it explores how religious teachings, including Evangelical Christianity, Methodism, and Judaism, affect attitudes towards parental discipline. Additionally, Part II will examine the build-up to and aftermath of Sweden’s ban on corporal punishment—the first nation worldwide …

Left Behind: The Dying Principle Of Family Reunification Under Immigration Law, Anita Ortiz Maddali

University of Michigan Journal of Law Reform

A key underpinning of modern U.S. immigration law is family reunification, but in practice it can privilege certain families and certain members within families. Drawing on legislative history, this Article examines the origins and objectives of the principle of family reunification in immigration law and relies on legal scholarship and sociological and anthropological research to reveal how contemporary immigration law and policy has diluted the principle for many families—particularly those who do not fit the dominant nuclear family model, those classified as unskilled, and families from oversubscribed countries—and members within families. It explores the ways in which women and children, …

Towards Reasonable: The Rise Of State Pregnancy Accommodation Laws, Stephanie A. Pisko

Michigan Journal of Gender & Law

In light of the recent Supreme Court decision Young v. UPS, pregnancy accommodation in the workplace is once again at the forefront of employment law. Pregnancy is not considered a disability under the ADA, nor is it within the scope of Title VII protections, but states are passing their own pregnancy accommodation laws. These laws will affect employers and employees alike, but exactly how is uncertain. Perhaps the most natural (and obvious) result of the explosion of state pregnancy accommodation laws will be a federal law, or an amendment to the ADA categorizing pregnancy as a disability. But there …

The Incest Horrible: Delimiting The Lawrence V. Texas Right To Sexual Autonomy, Y. Carson Zhou

Michigan Journal of Gender & Law

Is the criminalization of consensual sex between close relatives constitutional in the wake of Lawrence v. Texas and Obergefell v. Hodges? Justice Scalia thought not. The substantive due process landscape has changed dramatically in response to the LGBTQ movement. Yet, when a girl in a sexual relationship with her father recently revealed in an anonymous interview with New York Magazine that they were planning to move to New Jersey, one of the only two states where incest was legal, the New Jersey legislature introduced with unprecedented speed a bill criminalizing incest. But who has the couple harmed? The very …

The Incremental Retributive Impact Of A Death Sentence Over Life Without Parole, Michael L. Radelet

University of Michigan Journal of Law Reform

In this paper, the author takes a closer look at retribution, which is the primary justification for the death penalty today in the United States and the main component of the additional punishment imposed by the death penalty over and above life imprisonment without parole (LWOP). While all criminal punishments, to varying degrees, punish both the inmate and his or her family, this paper argues that the death penalty’s added punishment over LWOP often punishes the family just as much as the inmate, and after the execution the full brunt of the punishment falls on the family. This added impact …

Easy Come, Easy Go: The Plight Of Children Who Spend Less Than 30 Days In Foster Care, Vivek Sankaran, Christopher Church

Articles

This article explores the plight of “short stayers” and argues that juvenile courts are failing to use two tools—the federal reasonable efforts requirement and the early appointment of parents’ counsel—to prevent the unnecessary entry of children into foster care. The article also argues that states should give parents and children the right to an expedited appeal of removal decisions to ensure removal standards are properly applied. Finally, this article argues that the federal government must acknowledge the problem of short stayers by utilizing data related to children who may unnecessarily enter foster care in the Child and Family Services Review, …

Differential Response: Misrepresentation Of Cps Investigation And Case Fact Finding, Frank E. Vandervort, Ronald C. Hughes

Articles

Traditionally, a host of necessary case fact-finding responsibilities and activities has been used by public Child Protective Services (CPS) agencies to ensure that they can achieve mandates to protect children from maltreatment as well as to strengthen and preserve the families of atrisk children. The primary CPS case fact-finding activities include risk assessment, investigation (both CPS and forensic), and family assessment. Information collected while engaged in any one of these three activities will often be relevant and important to the others. However, each case fact-finding activity also requires specific inquiry to elicit information that is essential to achieve its distinct …

Shared Responsibility Regulation Model For Cross-Border Reproductive Transactions, Sharon Bassan

Michigan Journal of International Law

The term “cross-border reproductive transactions” refers to the movement of tens of thousands of people, who travel from one country to purchase reproductive services from suppliers in other countries, in order to have a child.2 It is estimated that between eleven and fourteen thousand patients in Europe alone engage in this practice annually.3 Historically, the phrase ‘medical tourism’ used to refer to the travel of patients from less-affluent countries seeking better healthcare in countries with superior healthcare standards. Today, the journey is just as likely to flow in the opposite direction, as patients travel from industrialized to less affluent countries …

Child Welfare Appellate Advocacy, Vivek Sankaran

Book Chapters

The appellate system serves important functions in child welfare cases. It ensures that the relationship between a child and his or her parent is not unjustly terminated. It forces juvenile courts and child welfare agencies to strictly follow statutes, court rules, and agency policies. And it preserves public faith in the system by serving as an independent check to correct mistakes that occur.

But the appellate system is only as good as the advocates who appear before it. This chapter is intended to be a resource for those advocates, both those who have practiced child welfare law for many years …

Representing Parents In Child Welfare Cases, Vivek Sankaran

Book Chapters

A parent's constitutional right to raise his or her child is one of the most venerated liberty interests safeguarded by the Constitution. The law presumes parents to be fit, and it establishes that they do not need to be model parents to retain custody of their children. If the state seeks to interfere with the parent-child relationship, the Constitution mandates: (I) that the state prove parental unfitness, a standard defined by state laws, and (2) that the state follow certain procedures protecting the due process rights of parents. The constitutional framework for child welfare cases is premised upon the belief …

Federal Legislation Protecting Children And Providing For Their Well-Being, Frank E. Vandervort

Book Chapters

Over the past several decades a national model for child welfare practice has emerged. In Child Welfare Law and Practice, also known as "The Red Book", experienced NACC authors and child welfare advocates have captured and refined that model, offering a comprehensive guide for those who make child welfare advocacy their priority. Designed as a study guide for attorneys preparing to take the NACC Child Welfare Law Certification Exam, the Red Book serves as a day-to-day guide for child welfare advocates across the country, offering in-depth analysis and instruction on wide variety of topics in the field of child welfare …

Mental Health Evaluations In Child Welfare Settings, Joshua B. Kay

Book Chapters

This chapter will focus mainly on parenting capacity evaluations performed by psychologists, as these evaluations tend to be the most legally fraught type of assessment in a child protection proceeding. Often, assessments of parenting capacity inform important, difficult, and potentially contentious questions in the case, including whether to remove a child from a parent's custody or maintain a child in foster care; the frequency and conditions of parent-child visitation; recommended interventions to address parenting deficiencies or problems in the parent-child relationship; and whether and when termination of parental rights should be considered. Despite their central role in providing information that …

A Child's Journey Through The Child Welfare System, Ann M. Haralambie, Donald N. Duquette

Book Chapters

Once a child is known to the government child welfare agency, the child and his or her family become subject to a series of decisions made by judges, caseworkers, legal representatives, and others - all of whom have an important role to play. A child may encounter dozens of other new adults, including foster parents, counselors, and doctors. Most children enter foster care when removed from their homes by a child protective agency because of abuse or neglect, or both. Others enter care because of the absence of their parents, resulting from illness, death, disability, or other problems. Some children …

Representing Children And Youth, Donald N. Duquette, Ann M. Haralambie

Book Chapters

The role of the child's attorney is unique in American jurisprudence and not yet clearly defined by law or tradition. There is an emerging consensus, however, that children in dependency cases should have lawyers and those lawyers should be as active and as involved in their cases as are lawyers for any other party in any other litigation. Although state law and policy makers differ as to what voice the child should have in determining the direction and goals of the litigation, that is, whether the child's lawyer should represent the best interests of the child as determined by the …