Law Commons^™

America's Hidden Foster Care System, Joshua Gupta-Kagan

Faculty Scholarship

In most states, child protection agencies induce parents to transfer physical custody of their children to kinship caregivers by threatening to place the children in foster care and bring them to family court. Both the frequency of these actions (this Article establishes that they occur tens or even hundreds of thousands of times annually) and their impact (they separate parents and children, sometimes permanently) resemble the formal foster care system. But they are hidden from courts, because agencies file no petition alleging abuse or neglect, and hidden from policymakers, because agencies do not generally report these cases.

While informal custody …

Rethinking Family-Court Prosecutors: Elected And Agency Prosecutors And Prosecutorial Discretion In Juvenile Delinquency And Child Protection Cases, Joshua Gupta-Kagan

Faculty Scholarship

Like criminal prosecutors, family-court prosecutors have immense power. Determining which cases to prosecute and which to divert or dismiss goes to the heart of the delinquency system’s balance between punishment and rehabilitation of children and the child protection system’s spectrum of family interventions. For instance, the 1990s shift to prosecute (rather than dismiss or divert) about 10 percent more delinquency cases annually is as significant a development as any other. Yet scholars have not examined the legal structures for these charging decisions or family-court prosecutors’ authority in much depth.

This Article shows how family-court prosecutors’ roles have never been fully …

Stanley V. Illinois'S Untold Story, Joshua Gupta-Kagan

Faculty Scholarship

Stanley v. Illinois is one of the Supreme Court’s 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 …

Judicial Leadership In Family Court: A Cautionary Tale, Jane M. Spinak

Faculty Scholarship

For the past 35 years I have been practicing in, teaching, and writing about the Family Court. The problem-solving court movement in the last two decades – with its proliferation of drug courts, mental health courts, and veterans courts, to name a few – renewed my interest in the historical roots of the family court because of the parallels between the original juvenile court and the recent problem solving court movement. One of the key elements – perhaps the defining element – in both is the role of the judge as the leader of the court. That is what I …

Representing Children At The Intersection Of Domestic Violence And Child Protection, Annette Appell, Joshua Gupta-Kagan

Faculty Scholarship

Reflecting evolving norms surrounding the legitimacy of intimate violence, the law has made steady progress toward acknowledging that domestic violence is not a private family matter, but instead demands public assistance to help survivors of that violence protect themselves and their children. Most recently, child advocates, juvenile court judges, and domestic violence advocates have joined in a concerted effort to address the co-occurrence of domestic violence and child abuse and neglect, coordinate responses and remedies among the various court systems, and develop methods to avoid re-victimizing mothers and children through legal process. This article traces civil remedies and barriers domestic …

Filling The Due Process Donut Hole: Abuse And Neglect Cases Between Disposition And Permanency, Joshua Gupta-Kagan

Faculty Scholarship

Abuse and neglect cases involve constantly changing facts. They “are unlike civil cases, which typically involve only facts gone by ... The ultimate parties in interest are the [children] themselves. And for them, their lives are ... ongoing event[s].” A child’s need to return to his parent may ebb or flow. His parent’s fitness may improve, regress, or remain the same. Federal law, followed in all states that wish to receive federal funds to support foster care, requires regular permanency hearings so family courts can make decisions based on evolving factual situations. These decisions, and the lack of greater procedural …