Law and Gender Commons^™

Untying The Knot: An Analysis Of The English Divorce And Matrimonial Causes Court Records, 1858-1866, Danaya C. Wright

Danaya C. Wright

Historians of Anglo-American family law consider 1857 as a turning point in the development of modern family law and the first big step in the breakdown of coverture and the recognition of women's legal rights. In 1857, The United Kingdom Parliament ("Parliament") created a new civil court to handle all divorce and matrimonial causes, removing the jurisdiction of: the ecclesiastical courts over marital validity; the Chancery over custody of children and separate estates; the royal courts over marital property; and Parliament over full divorce. The new Divorce and Matrimonial Causes Court, a wing of the admiralty and probate courts, would …

In The Right Direction, Family Diversity In The Inter-American System Of Human Rights, Macarena Sáez

Macarena Saez

Properly Accounting For Domestic Violence In Child Custody Cases: An Evidence-Based Analysis And Reform Proposal, Debra Pogrund Stark, Jessica M. Choplin, Sarah Elizabeth Wellard

Debra Pogrund Stark

Promoting the best interests of children and protecting their safety and well-being in the context of a divorce or parentage case where domestic violence has been alleged has become highly politicized and highly gendered. There are claims by fathers’ rights groups that mothers often falsely accuse fathers of domestic violence to alienate the fathers from their children and to improve their financial position. They also claim that children do better when fathers are equally involved in their children’s lives, but that judges favor mothers over fathers in custody cases. As a consequence, fathers’ rights groups have engaged in a nationwide …

The Polarization Of Reproductive And Parental Decision-Making, Jamie R. Abrams

Jamie R. Abrams

Women’s abortion and parental decision-making in child rearing are constructed as polarized methods of decision-making in law, politics, and society. Women’s abortion decision-making is understood as myopic and individualistic. Parental decision-making is understood as sacrificial and selfless. This polarization leaves reproductive decision-making isolated, marginalized, and vulnerable while parental decision-making is essentialized, protected, and revered. Both framings are inaccurate and problematic. A unified family decision-making framework that aligns abortion decision-making and parental decision-making reveals that both forms of decision-making are more multi-dimensional, relational, and family-centered than currently understood. This Article exposes the ground to be gained by crossing longstanding boundaries in …

Paternity Un(Certainty): How The Law Surrounding Paternity Challenges Negatively Impacts Family Relationships And Women's Sexuality, Susan Ayres

Susan Ayres

It is popularly believed that false paternity rates are 10-30%, and that thousands of unsuspecting men are supporting children who are not theirs. These reported rates of false paternity have become urban legend, demonizing women as over-sexualized partners who shouldn’t be trusted. This in turn has influenced laws regarding paternity, which have evolved to allow men to dis-establish paternity years after a child’s birth, even when there has been an adjudication or acknowledgment of paternity. This article argues that society should be cautious about elevating science as the highest consideration in truth claims about paternity. It examines the incoherent and …

Mulieris Dignitatem, Ephesians 5, And Domestic Violence, Joseph M. Isanga

Joseph Isanga

This Article considers the contribution of Pope John Paul II’s apostolic letter On the Dignity and Vocation of Women to the deeper understanding of women’s dignity as it relates to the process of articulating and rearticulating international women’s rights, with particular attention on domestic violence.2 This letter, Mulieris Dignitatem, brings together some of the Catholic Church’s most important teachings on gender equality. This Article delineates norms articulated in Mulieris Dignitatem that can inform international standards regarding the protection of women from domestic violence. To date there are no legally binding global human rights instruments that explicitly recognize the right to …

Seeing The Wrecking Ball In Motion: Ex Parte Protection Orders And The Realities Of Domestic Violence, 32 Wis. J.L. Gender & Soc'y 13 (2017), Debra Pogrund Stark, Jessica M. Choplin

Debra Pogrund Stark

One of the most fundamental norms in our judicial system is that courts need to hear from both parties on a legal issue before granting any form of legal relief. Nevertheless, rules of civil procedure permit a vulnerable party to appear in court ex parte (without prior notice to the other party), to obtain a temporary order prohibiting a wrongful action about to be taken that will cause irreparable harm. A classic example of this is when a person runs into court because a demolition crew is starting to set up to demolish a building they have built and claim …

Professor Breaks Ground With Journal On Sexual Violence And Exploitation, Joseph Essig, Donna M. Hughes Dr.

Donna M. Hughes

New Uri Journal Explores Sexual Exploitation, G. Wayne Miller, Donna M. Hughes Dr.

Donna M. Hughes

Uri Professor Launches Online Journal About Sexual Exploitation, Violence, Slavery, Donna M. Hughes Dr.

Donna M. Hughes

Grasping Fatherhood In Abortion And Adoption.Pdf, Malinda L. Seymore

Malinda L. Seymore

Marriage Equality And Family Diversity: Comparative Perspectives From The United States And South Africa, Holning Lau

Holning Lau

Result Inequality In Family Law, Margaret Brinig

Margaret F Brinig

To the extent that family law is governed by statute, all families are treated as though they are the same. This is of course consistent with the equal protection guarantees of the US Constitution as well as those of the states. However, in our pluralistic society, all families are not alike. At birth, some children are born to wealthy, married parents who will always put the children’s interests first and will never engage in domestic violence. Many laws benefit these children, while, according to some academics, they either further disadvantage other children or at best ignore their needs.

This presentation …

"The Good Mother": Mothering, Feminism, And Incarceration, Deseriee A. Kennedy

Deseriee A. Kennedy

As the rates of incarceration continue to rise, women are increasingly subject to draconian criminal justice and child welfare policies that frequently result in the loss of their parental rights. The intersection of an increasingly carceral state and federally imposed timelines for achieving permanency for children in state care has had a negative effect on women, their children, and their communities. Women, and their ability to parent, are more adversely affected by the intersection of these gender-neutral provisions because they are more likely than men to be the primary caretaker of their children. In addition, incarcerated women have higher rates …

Less Payne In The International Relocation Of Children?, Jonathan Chen Yeen Muk

Jonathan Muk

Promoting The General Welfare: Legal Reform To Lift Women And Children In The United States Out Of Poverty, Jill Engle

Jill Engle

American women and children have been poor in exponentially greater numbers than men for decades. The problem has historic, institutional roots which provide a backdrop for this article’s introduction. English and early U.S. legal systems mandated a lesser economic status for women. Despite numerous legal changes aimed at combating the financial disadvantage of American women and children, the problem is worsening. American female workers, many in low-paying job sectors, earn roughly twenty percent less than their male counterparts. Nearly forty percent of single mothers and their children subsist below the poverty level. The recession exacerbated this problem, mostly because unemployment …

Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the conceptualization and methodologies of determining legal parentage in the U.S. and other countries in the western world. Through various sociological shifts, growing social openness and bio-medical innovations, the traditional definitions of family and parenthood have been dramatically transformed. This transformation has led to an acute and urgent need for legal and social frameworks to regulate the process of determining legal parentage. Moreover, instead of progressing in a piecemeal, ad-hoc manner, the framework for determining legal parentage should be comprehensive. Only a comprehensive solution will address the differing needs of today’s …

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Hezi Margalit

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known …

Minors, Parents, And Minor Parents, Maya Manian

Maya Manian

Shaping Expectations About Dads As Caregivers: Toward An Ecological Approach, Holning Lau

Holning Lau

Derecho Civil Constitucional Y Violencia Familiar, Silvia Roxana Sotomarino

Silvia Roxana Sotomarino

This article refers to a case in which the alleged victim family is not the woman, being evidenced in the appeal N ° 2350 - 2012-LIMA how forced the system to establish a psychological abuse that is not based on fundamental tests, criticizing the author has extended this process even though it lacked of evidences, affecting other serious cases in which there is no doubt the physical and psychological abuse, and they tend to be resolved with more delay and faulty way.

The Respectable Dignity Of Obergefell V. Hodges, Yuvraj Joshi

Yuvraj Joshi

In declaring state laws that restrict same-sex marriage unconstitutional, Justice Kennedy invoked “dignity” nine times—to no one’s surprise. References in Obergefell to “dignity” are in important respects the culmination of Justice Kennedy’s elevation of the concept, dating back to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey. In Casey, “dignity” expressed respect for a woman’s freedom to make choices about her pregnancy. Casey laid the foundation for Lawrence v. Texas, which similarly respected the freedom of choice of homosexual persons. Yet, starting in United States v. Windsor and continuing in Obergefell, the narrative began to change. Dignity veered …

Two Ways To End A Marriage: Divorce Or Death, Laura A. Rosenbury

Laura A. Rosenbury

Default rules governing property distribution at divorce and death are often identified as one of the primary benefits of marriage. This Article examines these default rules in all fifty states, exposing the ways property distribution differs depending on whether the marriage ends by divorce or death. The result is often counter-intuitive: in most states, a spouse is likely to receive more property if her marriage ends by divorce than if the marriage lasts until "death do us part." This difference can be explained in part by the choices of feminist activists over the past thirty-five years: feminists played a large …

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 …

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 …

A Postcolonial Theory Of Spousal Rape: The Carribean And Beyond, Stacy-Ann Elvy

Stacy-Ann Elvy

Many postcolonial states in the Caribbean continue to struggle to comply with their international treaty obligations to protect women from sexual violence. Reports from various United Nations programs, including UNICEF, and the annual U.S. State Department Country Reports on Antigua and Barbuda, the Bahamas, Barbados, Dominica, Jamaica, and Saint Lucia (“Commonwealth Countries”), indicate that sexual violence against women, including spousal abuse, is a significant problem in the Caribbean. Despite ratification of various international instruments intended to eliminate sexual violence against women, such as the Convention on the Elimination of All Forms of Discrimination Against Women, Commonwealth Countries have retained the …

Twilight: The Unveiling Of Victims, Stalking, And Domestic Violence, 21 Cardozo J. L. & Gender 39 (2014), Susan L. Brody

Susan L. Brody

No abstract provided.

Judicial Review And Abortion In Canada: Lessons For The United States In The Wake Of Webster V. Reproductive Health Services, 61 U. Colo. L. Rev. 537 (1990), Donald L. Beschle

Donald L. Beschle

No abstract provided.

What’S Law Got To Do With It? Confronting Judicial Nullification Of Domestic Violence Remedies, 10 Nw. J. L. & Soc. Pol'y. 130 (2015), Debra Pogrund Stark

Debra Pogrund Stark

In 1982, the Illinois legislature passed the Illinois Domestic Violence Act (the Act) and most recently passed an updated version in 2012. This Article examines how the specialized domestic violence courthouse in Chicago implements these laws. Where the courthouse falls short, this Article will explore why, what can be done, and consider implications for other jurisdictions seeking to implement similar resources for survivors of domestic violence. The results from this empirical study are mixed. On the positive side, the data reflect that judges are properly applying many important aspects of the new order of protection laws and granting a high …

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

Macarena Saez