Law Commons^™

Frozen Pre-Embryo Practice In Missouri, Mary M. Beck, L. "Joanna" Beck Wilkinson

Faculty Publications

McQueen v. Gadberry was an Eastern District dissolution dispute over frozen pre-implantation embryos formed from McQueen’s eggs and Gadberry’s sperm. The St. Louis County trial court found the pre-embryos to be marital property of a special character and awarded them jointly to each of the former spouses. The appellate court affirmed. McQueen is an important decision because the finding that embryos are marital property was an issue of first impression that affects many Missouri families. Infertility is a common problem, couples frequently utilize assisted reproductive technologies (ART) to form families, and the extra frozen pre-implantation embryos (hereinafter pre-embryos) have fueled …

Overcoming Roadblocks To Reaching Settlement In Family Law Cases, John M. Lande

Faculty Publications

In “litigation as usual,” settlement often comes only after adversarial posturing, the original conflict escalates, the relationships deteriorate, the process takes too long and costs too much, and nobody is really happy with the resolution. This article describes roadblocks to negotiation and ways to overcome them to reach good settlements in family law cases.

Embry-Uh-Oh: An Alternative Approach To Frozen Embryo Disputes, Anna El-Zein

Missouri Law Review

This Note addresses the general background of domestic and international case law and legislation surrounding embryonic disputes. It then examines recent case law developments; specifically, it discusses the only existing frozen embryo dispute in Missouri. Finally, we offer a suggested approach for courts to use when addressing these increasingly complex cases.

Prenatal Abandonment: 'Horton Hatches The Egg' In The Supreme Court And Thirty-Four States, Mary M. Beck

Faculty Publications

Under prenatal abandonment theory, fathers can lose their parental rights to nonmarital children if they do not provide prenatal support to the mothers of their children. This is true even if the mothers have not notified the fathers of the pregnancy and if the mothers or fathers are unsure of the fathers' paternity. While this result may seem counterintuitive, it is necessitated by demographic trends. Prenatal abandonment theory has been structured to protect mothers, fathers, and fetuses in response to a number of social factors: the link between pregnancy and increased rates of sexual assault, domestic violence, and domestic homicide; …

Robbing The Cradle: The Use Of Mediation In Parental Rights Termination With Evidence Of Drug Abuse By The Mother, M. Katherine Kerbs

Journal of Dispute Resolution

This Comment will explore the use of mediation in termination of parental rights proceedings where there is evidence of drug abuse by the parents. First, this Comment will give an overview of termination proceedings and examine a specific statute’s guidelines for termination. Then, this Comment will provide an overview of mediation and its uses in family law. Finally, this Comment will argue for increased use of mediation in termination of parental rights cases where there is evidence of drug abuse by the mother.

Mediating A Family: The Use Of Mediation In The Formation And Enforcement Of Post-Adoption Contact Agreements, Sophie Mashburn

Journal of Dispute Resolution

This comment will discuss how and why adoption law has evolved into a preference for open adoption, provide a brief history of post-adoption contact agreements, and discuss the current and best practices for utilizing post-adoption contact agreements. Finally, this comment will explore the use of mediation in various states to assist adoptive parents and birth parents in forming and maintaining an agreement they both accept and that furthers the best interests of the children being adopted. Using mediation to further the interests of children, adoptive couples, and birth parents is a positive trend in adoption law that should be encouraged …

“Throwing The Baby Out With The Bathwater”: Parenting Coordination And Pennsylvania’S Decisions To Eliminate Its Use, Sophie B. Mashburn

Journal of Dispute Resolution

Parenting coordination is a relatively new ADR practice utilized by courts to assist in resolving high conflict divorce cases. Though considered controversial by some, it can also serve as an effective tool for divorced parents who struggle with regular co-parenting decisions. Parenting coordination is defined as: A child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children’s needs, and with prior approval of the parties and/or court, making …

Family Lawyering: Past, Present, And Future, John M. Lande, Forrest S. Mosten

Faculty Publications

In the past fifty years, divorce law has turned upside down. Marriage is not assumed to be a lifelong commitment. Fault generally is not legally relevant. Gender equality is a fundamental principle. Today, courts regularly handle a much broader range of issues, including disputes about issues such as domestic violence; parental relocation; religious upbringing; payment for children's college education; grandparent and stepparent visitation rights; rights of same-sex and unmarried couples; alienation of parents and children; and the role of e-mail, the Internet, and cybersex in divorce.

Family law practice inevitably evolved in response to these social and legal changes. This …

The Revolution In Family Law Dispute Resolution, John M. Lande

Faculty Publications

This article surveys a wide range of procedures that divorcing parties now use, including self-representation. Lawyers sometimes provide “unbundled” legal services to help parties who want to divide responsibilities for legal tasks between themselves and their lawyers. Parties often use mediation, arbitration, and private judging. Norms for lawyers’ professional roles have emphasized the importance of cooperation and some lawyers offer “planned early negotiation” processes such as Collaborative and Cooperative Law. Family courts engage in a wide range of activities beyond traditional litigation and adjudication. Many courts manage or mandate parent education and services related to domestic violence. Courts regularly appoint …

Before You Take A Collaborative Law Case, John M. Lande

Faculty Publications

Under the Model Rules of Professional Conduct, lawyers have a duty to screen potential Collaborative Law (CL) cases for appropriateness and obtain clients' informed consent to use CL. The duty to screen cases is based on the "reasonableness" requirement of Rule 1.2(c) and the requirement to avoid conflicts of interest that might interfere with competent and diligent representation under Rule 1.7. Both rules require lawyers to obtain clients' informed consent to participate in a CL process. Although the Uniform Collaborative Law Act is not an ethical rule, sections 14 and 15 create relevant duties, including detailed provisions requiring lawyers to …

Practical Insights From An Empirical Study Of Cooperative Lawyers In Wisconsin, John M. Lande

Faculty Publications

This article reports on a study of members of the Divorce Cooperation Institute (DCI), a group of Wisconsin lawyers who use a "Cooperative" process to provide a constructive and efficient negotiation process in divorce cases. The study involved in-depth telephone interviews and several surveys of DCI members. Although DCI members use this process only in divorce cases, it can be readily adapted for other types of cases.DCI's approach generally involves an explicit process agreement at the outset, based on principles of: (1) acting civilly, (2) responding promptly to reasonable requests for information, (3) disclosing all relevant financial information, (4) obtaining …

Investigating The Justice System Response To Domestic Violence In Missouri, Mary M. Beck, Brandi L. Byrd, M. Meghan Davidson, Niels C. Beck, Gregory F. Petroski

Faculty Publications

One in four women will experience domestic violence in their lifetimes. Each year, 5.3 million domestic violence assaults occur in the United States alone and domestic violence is the leading cause of injury to women. Yet, despite the prevalence of domestic violence, little empirical research on the justice system's response to it exists. This paper seeks to describe a state funded project that was created to assess and compare responses to domestic violence throughout the state of Missouri. The project lasted for three years and was conducted by an interdisciplinary team of University of Missouri-Columbia (MU) professors and students.

A National Putative Father Registry, Wells Conference On Adoption Law, Mary M. Beck

Faculty Publications

This Article will discuss the mechanics of putative father registries, review jurisdictional issues, analyze the policies behind their development, and review relevant case law over the last 5 years.

Towards A National Putative Father Registry Database, Mary M. Beck

Faculty Publications

This Article analyzes putative father registries and proposes federal legislation to create a national database that will enhance and connect the state and local registries. Issues and events leading to the development of registries are reviewed in Part I. Putative father registry mechanics and applicable case law are analyzed in Parts II and III.

The Social Welfare Of Advertising To Children, Dennis D. Crouch

Faculty Publications

The aim of this Comment is to approach the issue of advertising to children through an examination of economic incentives and efficiency. The Comment ultimately makes the claim that televised advertisement of products, such as junk food, directed toward children may be inefficient and tend to decrease social welfare. Although they may be compelling, this paper does not rely on the secondary negative externalities often associated with television, such as the cost of treating diabetes and heart disease. Rather, the inefficiency discussed in the Comment involves the informational qualities of advertising. Advertising directed towards young children can be thought of …

Case And Comment: Between The Baby And The Breast, S. I. Strong

Faculty Publications

IN Re C (A CHILD) (HIV Test) [1999] 2 F.L.R. 1004, a local authority applied for a specific issue order to test a four-month-old baby girl for HIV. The mother of the child first tested positive for HIV in 1990, but adopted a highly sceptical stance towards generally accepted theories about HIV and AIDS, and refused conventional therapy for herself, preferring to rely on a healthy lifestyle as a prophylactic. The case arose when the baby's physician became aware not only that the mother was breastfeeding the child (despite the risk of transmission of HIV), but that the parents refused …

Adoption Of Children In Missouri, Mary M. Beck

Faculty Publications

The purpose of this Article is to investigate the effect of Missouri law on adoption and to determine whether its provisions adequately protect the parties to adoption and whether its degree of clarity properly forestalls litigation.

Crime Or Punishment: The Parental Corporal Punishment Defense - Reasonable And Necessary, Or Excused Abuse, Kandice Johnson

Faculty Publications

The parental right to use physical force to discipline and restrain children is a privilege firmly rooted in the American system of jurisprudence. This privilege is often asserted as a defense when parents are charged with a crime of aggression against their child. While the privilege to use disciplinary force is universally recognized as a defense in criminal actions, it is equally acknowledged that child abuse is a pervasive reality of American life. This article postulates that current laws, addressing assertion of the parental privilege defense in criminal actions, fail either to provide adequate guidance to parents or to sufficiently …

Family Fundamentals, Richard C. Reuben

Faculty Publications

On the surface, ML.B. v. S.L.J., No. 95-853, hardly seems worthy of the nation's highest court, in part because our scheme of federalism generally leaves issues such as child custody to state law. But peeling back the layers of this case reveals the potential for a significant ruling on the constitutional treatment of family relationships, fundamental rights and access to courts for civil proceed with a appeals.

Children's Rights In Intercountry Adoption: Towards A New Goal, S. I. Strong

Faculty Publications

Each year, hundreds of thousands of children languish in foster or institutional care worldwide, while at the same time, thousands of adults, married and unmarried alike, are denied children because of “shortages.” How did this tragedy occur, and why does it continue to be repeated daily in countries around the world? The unfortunate truth is that many of the legal and societal norms now in place effectively prohibit needy children from finding suitable homes. While potential parents in Western countries cry out for babies of their own, millions of children live in physical and psychological poverty in underfunded orphanages around …

Rethinking Wrongful Life: Bridging The Boundary Between Tort And Family Law, Philip G. Peters Jr.

Faculty Publications

Traditional tort law embraces an unduly narrow notion of corrective justice that fails to resolve wrongful life disputes satisfactorily. The unique circumstances associated with the creation of a new life bring into play another, broader paradigm of responsibility: one that resembles family law more than tort. From this perspective, children whose birth can be attributed to tortious conduct have a strong moral claim for supplemental child support whenever a tortfeasor's interference with the pro- creative rights of the parents foreseeably results in the birth of a child and that child's parents cannot provide adequate support. In such an instance, the …

The State's Interest In The Preservation Of Life: From Quinlan To Cruzan, Philip G. Peters Jr.

Faculty Publications

This article considers the kinds of limits on withholding that each of these policies might plausibly support, compares these limits to the judicial approaches taken in the refusal of treatment cases, and explores how apparent conflicts between these state goals and the interests of the patients might be resolved. Because this article focuses exclusively on the state's interests, however, it necessarily isolates and considers only one portion of a complex problem involving the interests of patients, families, providers, and others. No comprehensive examination of the nature and weight of the patient's interests or those of other involved parties is attempted. …

Some Problems In Jurisdiction To Divorce, James L. Parks

University of Missouri Bulletin Law Series

The American Law Institute in its Restatement of the Conflict of Laws has codified the rules governing jurisdiction of a court to grant a divorce, where no personal jurisdiction of the defendant is obtained, as follows: "A state cannot exercise through its courts jurisdiction to dissolve the marriage of spouses of whom one is domiciled within the state and the other is domiciled outside the state, unless the spouse who is not domiciled in the state (a) has permitted the other spouse to acquire a separate home; or by his misconduct has ceased to have the right to object to …

Jurisdiction To Divorce, James L. Parks

University of Missouri Bulletin Law Series

It is generally conceded by American authority that a divorce granted by a court, when neither party to the marriage is domiciled within its jurisdiction, is invalid, and this is the rule even though the defendant submits himself to the court's action. This proposition is said necessarily to result "from the right of every nation or state to determine the status of its own domiciled citizens or subjects, without interference by [other] tribunals in a matter in which they have no concern." So long as the parties have a common domicile, the matter of jurisdiction to divorce is one of …

Domicile Of A Married Woman, The, James L. Parks

University of Missouri Bulletin Law Series

Originally the rule was that the domicile of a married woman was that of her husband. It made no difference what the actual facts were, a wife would not be heard to say that she had a separate domicile. This notion was largely due to the law's conception of a married couple as one person, which idea was based on a wife's duty to be with her husband, he in turn being bound to support her.

Some Aspects Of The Status Of Children In Missouri, Eldon R. James

University of Missouri Bulletin Law Series

In two recent decisions of the Supreme Court of Missouri, Drake v. Milton Hospital Association and Lindsley v. Patterson, some of the problems arising in connection with the position of illegitimate and adopted children have been discussed. This study will deal with the various kinds of status of children in Missouri law, the condition under which each may come into existence, and the rights of inheritance which flow from each of them.