Family Law Commons^™

Your Right To Privacy And Children's Rights/Family Law: A Selective Bibliography, Sandra Klein

Sandra S. Klein

In a society increasingly aware of real or perceived social inequities, it is not surprising to note a greater concern for the rights of children and their families. It is also apparent that privacy issues are an integral subset of the larger social sphere of interests. Privacy aspects can be seen to be involved pervasively throughout the area of law dealing with children and families, especially in view of the fact that there is obvious potential for conflict not only between families and the state, but between children and the families of which they are a part

Alimony's Job Lock, Margaret Ryznar

Akron Law Review

In family law, courts often prevent people who owe alimony from changing jobs. If a job change is accompanied by a salary decrease, the court will not necessarily readjust the alimony obligation and instead impute the higher income to the obligor. This Article introduces the term “job lock” to describe this situation, borrowing the term from the health care context, wherein job immobility due to health insurance concerns has received significant scrutiny. This Article draws similar attention to the alimony context, proposing a balancing test to assist courts interested in alleviating job lock under certain circumstances.

Theorizing History: Separate Spheres, The Public/Private Binary And A New Analytic For Family Law History, Danaya C. Wright

Danaya C. Wright

There is an extensive scholarship on separate spheres, the public/private binary, and family history that reveals a nuanced understanding of the interconnections and constructedness of these metaphors and rubrics traditionally used in family law history. In exploring the current understandings and limitations of these subjects as analytics for doing my own history of English family law, I turn to Michelle Zimbalist Rosaldo’s critique that we limit our subjects and reinforce power differentials when we use a lens of difference in our scholarship. I first explore the lessons learned about the enduring nature of separate spheres and the power imbalances of …

Between Home And School, Laura Rosenbury

Laura A. Rosenbury

This article challenges family law's traditional paradigm for allocating authority between parents, children and the state. Pursuant to that paradigm, parents enjoy almost complete authority over their children while at home; the state may require children to attend school and may regulate school curricula; and children must submit to the authority of either their parents or teachers. This settled equilibrium ignores a fundamental reality: children are not confined to home and school. Much of childhood takes place in spaces between home and school, at playgrounds, churches, sporting fields, music rooms and after-school clubs. Family law has been virtually silent about …

Friends With Benefits, Laura A. Rosenbury

Laura A. Rosenbury

Family law has long been intensely interested in certain adult intimate relationships, namely marriage and marriage-like relationships, and silent about other adult intimate relationships, namely friendship. This Article examines the effects of that focus, illustrating how it frustrates one of the goals embraced by most family law scholars over the past forty years: the achievement of gender equality, within the family and without. Part I examines the current scope of family law doctrine and scholarship, highlighting the ways that the home is still the organizing structure for family. Despite calls for increased legal recognition of diverse families, few scholars have …

Intended Parents And The Problem Of Perspective, Dara Purvis

Dara Purvis

When asked to identify the legal parents of a child, traditional family law principles look backwards in time, primarily to biology and to marriage. People using assisted reproductive technologies such as surrogacy, however, seek to manifest their intent to become parents with a forward-looking temporal perspective, before a child is conceived and born. Of the existing doctrines used to identify parentage – marital presumption, biology, functional theories, and intent – only intent facilitates a forward-looking perspective. Intent through time, however, is not treated consistently. A woman, for example, may donate an egg, and may place a baby up for adoption, …

In Re Parental Rights As To A.P.M., 131 Nev. Adv. Op. 66 (Sept. 10, 2015), Douglas H. Smith

Nevada Supreme Court Summaries

On appeal from an order for termination of parental rights, the Nevada Supreme Court held, by a vote of 4-2, that (1) the district court may terminate parental rights notwithstanding a completed case plan for reunification if the decision is otherwise warranted under NRS §128.105; that (2) the court need not wait a full 20 months to apply the statutory presumptions of NRS §128.109(1)(a) and NRS §128.109(2) if a child has been removed from his or her parents’ home pursuant to Chapter 32B for at least 14 months of any consecutive 20-month period; and that (3) upon application of these …

No Money, No Lawyer — No Children: The Right To Counsel For Indigent Defendants In Nevada Termination Of Parental Rights Proceedings, Erik J. Foley

Nevada Law Journal

No abstract provided.

From Genes, Marriage And Money To Nurture: Redefining Fatherhood, Nancy Dowd

Nancy Dowd

Genes should not define fatherhood. This is wrong for men, and wrong for children. Genes define identity, but that link should be separated from the obligations and rights of parenthood. Specifically, I argue that fatherhood should be defined by doing (action) instead of being (status), with the critical component being acts of nurturing. In this essay I define in more detail this concept of fatherhood and its characteristics; discuss the consequences related to genetic ties; and consider the policy implications of defining fatherhood around nurture when genetic ties can be established for all children. It is critical throughout to remain …

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 …

From Orphans To Families In Crisis: Parental Rights Matters In Maine Probate Courts, Deirdre M. Smith

Faculty Publications

This Article examines the sources of the contemporary problems associated with the adjudication of parental rights matters in Maine’s probate courts and identifies specific reforms to address both the structural and substantive law problems. The Article first reviews the development of Maine’s probate courts and their jurisdiction over parental rights matters. It traces the expansion of jurisdiction over children and families from a limited role incidental to the administration of a decedent’s estate to the current scope: a range of matters that may result in the limitation, suspension, or termination of the rights of living parents. Maine probate courts now …

Family Law Symposium Introduction, Marvin M. Moore

Akron Law Review

Each of the following three articles provides a comprehensive examination of a serious problem besetting the family unit, and each considers the merits of a recently-enacted or proposed reform designed to respond to the particular problem. The timeliness of the articles is disclosed by the fact that the reforms being evaluated have all attained enactment or serious consideration subsequent to 1980.

Death Of The Family: What's Become Of The Parents And The Children, Ronald C. Griffin

Akron Law Review

If something isn't done quickly, America will become the first nation in history in which elderly people enjoy more security than children.

To that end I recommend that family obligations be analyzed in contractual terms. If the law encompasses what courts do with specific conduct, contract law can moderate parental behavior through vehicles such as family counselling. It can sort out family duties and supply legal rationales for resolving family disputes in a constructive way. This article begins with a background discussion - history, literature and insights - then addresses the law and legal analysis.

Summary Of Beau Davis V. Andrea Ewalefo, 131 Nev. Adv. Op. 45 (July 02, 2015), Daven Cameron

Nevada Supreme Court Summaries

On appeal from a child custody decree, the Court found the District Court did not have specific findings of fact to support the restriction of travel and visitation outside of the United States and its territories. The Court granted en banc reconsideration, reversed and remanded the case for further fact finding considerations concerning whether the minor child can safely travel overseas for parental visitation.

The Problems Of Gender Inequality Raised By Unmarried Couples In Liberia, Yah-Yeplah Dolo-Barbu

Maurer Theses and Dissertations

No abstract provided.

Shari'ah Law As National Security Threat?, Cyra Akila Choudhury

Akron Law Review

The Article proceeds in three parts: in Part II, the Article describes three anti-shari’ah measures. It describes Oklahoma’s Save Our State amendment to show how these laws target Islam. It also reviews the recent decision by the Tenth Circuit Court of Appeals affirming the grant of a preliminary injunction against the certification of Oklahoma’s constitutional amendment. It then describes Arizona’s law that targets shari’ah as well as other legal traditions. It also examines the original version of the Tennessee bill to illustrate the motivations behind the revised, watered down version that was eventually passed by the legislature. Part II concludes …

Splitting The Baby: Immigration, Family Law, And The Problem Of The Single Deportable Parent, Timothy E. Yahner

Akron Law Review

The purpose of this article is not to suggest that the Fifth Circuit was wrong in upholding the dismissal of Monica’s case. Indeed, the court was faced with a dilemma that would give King Solomon pause: what to do when two parents claim one child. This article’s purpose is to show that a regulatory solution is preferable to forcing the courts to make impossible choices between parents. Part II discusses the factual and procedural history of Castro. Part III details the policies and rules of law of immigration and custody at play in the case. Part IV explains why the …

Because I Said So: An Examination Of Parental Naming Rights, Ashley N. Moscarello

Chicago-Kent Law Review

Naming a child is often one of the most exciting parts of having a baby. Some parents, of course, choose to be more creative and unique, which leads to some very interesting names like Toilet Queen, Acne Fountain, Crimson Tide Redd, Messiah, Candy Stohr, and Violence. Although some of these names are quite absurd, should the government be able to tell parents that they have crossed the line?

When parents agree about the name they want to give their child, should the state or courts be able to intervene in that decision if the state has problems with the name? …

Stop Making Court A First Stop For Many Low Income Parents, Jane C. Murphy

All Faculty Scholarship

In the wake of the unrest over police misconduct in cities across the country, calls for reform have focused on the criminal justice system — making police, prosecutors, and criminal courts more accountable and just. While much work needs to be done in that arena, too little attention has focused on the ways in which low income families are hurt in civil courts. Many more men, women and children from low income communities of color pass through the doors of our family courts every day than those who interact with the criminal justice system. Some come to court as a …

Summary Of Jennifer L. V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 30 (Jun. 04, 2015), Jaymes Orr

Nevada Supreme Court Summaries

The Court held that, although a legal guardianship had been established, and a parent had neither legal nor physical custody of a child, parents are not relived of their parental duties to provide for the care, support, or maintenance of the child.

The Night Is Dark And Full Of . . . Family Law?: California Law And Marital Presumption In Game Of Thrones, Rebecca Rosen

Pace Intellectual Property, Sports & Entertainment Law Forum

The television show Game of Thrones has developed a tremendous following in recent years. The show takes place primarily in the fictional state of Westeros, a feudal society that mirrors many of the legal structures of medieval England. As such, many of the laws and customs of Westeros seem antithetical to the beliefs and values of modern viewers. In an attempt to posit a more just outcome following the death of Westeros’ king (the action which springboards the primary power struggle), this Article applies California law to the disposition of King Robert’s property. Shockingly, this Article finds that California’s marital …

Economics Of Family Law, 2 V., Margaret Brinig

Margaret F Brinig

Economists have studied numerous fields of law for many years, but family law was virtually neglected until the early 1970s. It was only relatively recently that economic insights about the family crept into the consciousness of those involved in legal research. The articles within this book explore a range of family law issues and include discussions on a variety of topics including cohabitation, births outside marriage, courtship, premarital contracting, marriage and parenting. The volume includes papers on the division of responsibilities between family and state, the effects of no-fault divorce, alimony, property division and child custody. There are also works …

Same-Sex Couples - Comparative Insights On Marriage And Cohabitation, Macarena Sáez

Books

This book shows six different realities of same-sex families. They range from full recognition of same-sex marriage to full invisibility of gay and lesbian individuals and their families. The broad spectrum of experiences presented in this book share some commonalities: in all of them legal scholars and civil society are moving legal boundaries or thinking of spaces within rigid legal systems for same-sex families to function. In all of them there have been legal claims to recognize the existence of same-sex families. The difference between them lies in the response of courts. Regardless of the type of legal system, when …

Same-Sex Couples - Comparative Insights On Marriage And Cohabitation, Macarena Sáez

Macarena Saez

An Invitation To Family Law: Principles, Process, And Perspectives. 3rd Edition., Margaret Brining, Carl Schneider

Margaret F Brinig

Invitation to Family Law contains such materials as briefs, literary treatments of marriage, divorce, and parenting, and simulated case files from families involved in the social service system. This work reflects the contrasting backgrounds and interests of the authors including constitutional theory, moral philosophy, and the literary tradition of law, community and family. It also presents law and economics, feminist theory and application of legal theory to many practical family law problems. You’ll see the authors’ common fascination with history, concern with fairness (and fair treatment of the issues), and genuine love of the subject that motivated this work

Family, Law, And Community: Supporting The Covenant, Margaret Brinig

Margaret F Brinig

In the wake of vast social and economic changes, the nuclear family has lost its dominance, both as an ideal and in practice. Some welcome this shift, while others see civilization itself in peril—but few move beyond ideology to develop a nuanced understanding of how families function in society. In this provocative book, Margaret F. Brinig draws on research from a variety of disciplines to offer a distinctive study of family dynamics and social policy. Concentrating on legal reform, Brinig examines a range of subjects, including cohabitation, custody, grandparent visitation, and domestic violence. She concludes that conventional legal reforms and …

From Contract To Covenant: Beyond The Law And Economics Of The Family, Margaret Brinig

Margaret F Brinig

This book is the first systematic account of the law and economics of the family. It explores the implications of economics for family law--divorce, adoption, breach of promise, surrogacy, prenuptial agreements, custody arrangements--and its limitations. Before a family forms, prospective partners engage in a kind of market activity that involves searching and bargaining, for which the economic analysis of contract law provides useful insights. Once a couple marries, the individuals become a family and their decisions have important consequences for other parties, especially children. As a result, the state and community have vital interests in the family. Although it may …

Tracking Queer Kinships: Assisted Reproduction, Family Law And The Infertility Trap, Stewart Donnell Marvel

PhD Dissertations

The global advent of assisted human reproduction has brought with it an upheaval in social, cultural and legal norms of the family. The centrality of biological reproduction to the traditional heterosexual family has been challenged by reproductive intervention, further destabilizing nuclear family norms already unmoored by same-sex marriage, single mothers, unwed fathers, and increased access to divorce, contraceptives and abortion. As these challenges have shifted EuroAmerican social norms of family, the law has increasingly been called upon to preside over the re-organization of intimate life, operating as a central vehicle to reframe the relationship of the family to the state. …

Scholars Of The Constitutional Rights Of Children (Amici Curiae), Tanya M. Washington

Tanya Monique Washington

My co-authors and I filed an amicus brief with the U.S. Supreme Court in Obergefell v. Hodges last month. Our first co-authored amicus brief was filed with the Supreme Court in U.S. Windsor in 2013, and it was cited by the Respondents in their brief to the Court. The Defense of Marriage Act's harmful impact on children in same-sex families was the focus of that brief, and the Court acknowledged those harms as relevant to its analysis of DOMA's constitutionality. Our brief was published in the Iowa Journal of Gender, Race and Justice.

In our amicus brief in Obergefell v. …

The Inevitability Of Discretion: What Proponents Of Parenting Time Guidelines Can Learn From Thirty Years Of Federal Sentencing Guidelines, Joi T. Montiel

Joi T Montiel

For decades, the prevailing standard for a judge making a decision regarding parenting time has been “the best interest of the child.” Because the high degree of discretion afforded to a trial court by the best interest standard may render inconsistent and unpredictable results, the standard has been widely criticized. In the past half century, federal sentencing has undergone similar scrutiny. The Federal Sentencing Guidelines—“the most controversial and disliked sentencing reform initiative in U.S. history”—have substantially curtailed judicial discretion in an effort to ensure uniformity in sentencing. Several states have explored limiting judicial discretion in the area of parenting time …