Legislation Commons^™

The Stability Paradox: The Two-Parent Paradigm And The Perpetuation Of Violence Against Women In Termination Of Parental Rights And Custody Cases, Judith Lewis

Michigan Journal of Gender & Law

Despite changing family compositions, entrenched in family law is the antiquated idea that a two-parent household, or its approximation vis-à-vis a shared custody arrangement, promotes stability and integrity and, thus, is in the best interest of the child. Yet, the concept that the two-parent household (or shared involvement of both parents in the child’s life if the parents separate) promotes stability for the family and is best for the child is a dangerous fallacy. When rape or intimate partner violence (IPV) is present, or the re-occurrence of violence remains a threat, the family unit is far from stable.

This Article …

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Michigan Law Review

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined …

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, …

Fighting The Establishment: The Need For Procedural Reform Of Our Paternity Laws, Caroline Rogus

Michigan Journal of Gender & Law

Every state and the District of Columbia use voluntary acknowledgments of paternity. Created pursuant to federal law, the acknowledgment is signed by the purported biological parents and establishes paternity without requiring court involvement. Intended to be a “simple civil process” to establish paternity where the parents are unmarried, the acknowledgment is used by state governments to expedite child support litigation. But federal policy and state laws governing the acknowledgments do not sufficiently protect the interests of those men who have signed acknowledgments and who subsequently discover that they lack genetic ties to the children in question. A signatory who learns …

Bio Family 2.0: Can The American Child Welfare System Finally Find Permanency For 'Legal Orphans' With A Statute To Reinstate Parental Rights?, Meredith L. Schalick

University of Michigan Journal of Law Reform

The American child welfare system terminates parental rights for thousands of children each year even though adoptive families have not yet been identified for the children. Every year, there are more than 100,000 of these “legal orphans” waiting for new families. Given the lower rates of adoptions for children of color and older children, and the poor outcomes for most youth who age out of the foster care system, the American child welfare system must start to think differently about permanency options for children. This Article proposes a model statutory provision to reinstate parental rights under certain circumstances to give …

Adoptive Couple V. Baby Girl: Two-And-A-Half Ways To Destroy Indian Law, Marcia A. Yablon-Zug

Michigan Law Review First Impressions

In December 2011, Judge Malphrus of the South Carolina family court ordered Matt and Melanie Capobianco to relinquish custody of Veronica, their two-year-old, adopted daughter, to her biological father, Dusten Brown. A federal statute known as the Indian Child Welfare Act ("ICWA") mandated Veronica's return. However, the court's decision to return Veronica pursuant to this law incited national outrage and strident calls for the Act's repeal. While this outrage was misplaced, it may nonetheless have influenced the U.S. Supreme Court's decision to hear the appeal. The case of Adoptive Couple v. Baby Girl is emotionally complicated, but it is not …

The Probate Definition Of Family: A Proposal For Guided Discretion In Intestacy, Susan N. Gary

University of Michigan Journal of Law Reform

Intestacy statutes may not match the wishes of many people who die intestate. Changes to the Uniform Probate Code (UPC) include or exclude potential takers, as the drafters attempt to bring the UPC provisions closer to the intent of more intestate decedents. As the UPC tries to fine-tune the intestacy statutes, however, family circumstances continue to get more and more complicated. Families headed by unmarried couples, blended families with children from multiple marriages, and families in which adults raise children who are not legally theirs, have become commonplace. For some decedents, non-family friends and caregivers may be more important than …

Toward Equality: Nonmarital Children And The Uniform Probate Code, Paula A. Monopoli

University of Michigan Journal of Law Reform

This Article traces the evolution of the Uniform Probate Code's (UPC) broad equality framework for inheritance by nonmarital children in the context of the wider movement for legal equality for such children in society. It concludes that the UPC is to be lauded for its efforts to provide equal treatment to all nonmarital children. The UPC's commitment to such equality serves an expressive function for state legislatures and courts to follow its lead. The UPC has fulfilled its promise that all children regardless of marital status shall be equal for purposes of inheritance from or through parents, with one exception: …

In Defense Of The Indian Child Welfare Act In Aggravated Circumstances, C. Eric Davis

Michigan Journal of Race and Law

The Indian Child Welfare Act (ICWA) affords various protections to Indian families throughout child welfare proceedings. Among them is the duty imposed upon the state to provide rehabilitative services to families prior to the outplacement of an Indian child, or termination of parental rights. An analogous provision for non-Indians in the Adoption and Safe Families Act (ASFA) excuses rehabilitative services in "aggravated circumstances" of child abuse. The ICWA contains no such exception, and that absence has been controversial. In 2002, the Alaska Supreme Court applied ASFA's aggravated circumstances exception to the ICWA, thereby excusing services when a father severely abused …

Protecting Abused, Neglected, And Abandoned Children: A Proposal For Provisional Out-Of-State Kinship Placements Pursuant To The Interstate Compact On The Placement Of Children, John C. Lore Iii

University of Michigan Journal of Law Reform

The Interstate Compact on the Placement of Children deals with the interstate placement of abused, neglected and abandoned children. This article addresses the critical need for reform of the Interstate Compact and attempts to tackle its most serious flaw-the lack of a provisional placement for children awaiting approval of out-of-state kinship placements. The recently enacted Safe and Timely Interstate Placement of Foster Children Act of 2006 (the "Act") is seriously flawed to the detriment of one of our country's most vulnerable groups and the very population it is designed to protect-children who have been abused, neglected and abandoned. This article …

The Rights Of Putative Fathers To Their Infant Children In Contested Adoptions: Strengthening State Laws That Currently Deny Adequate Protection, Robbin Pott Gonzalez

Michigan Journal of Gender & Law

This paper argues that states need to strengthen protection of putative fathers' rights to their infant children when the mother wishes for the child to be adopted. Part I frames the discussion around established parental rights through constitutional case law. To do this, the paper addresses both the Supreme Court's parental rights doctrine and its biology-plus doctrine, which requires unwed fathers to show that in addition to being the biological father they also have taken responsibility for their children. Part II describes common state statutes that affect putative fathers, including putative father registries, safe haven laws, and laws granting custody …

Balancing The Demands Of The Workplace With The Needs Of The Modern Family: Expanding Family And Medical Leave To Protect Domestic Partners, Kimberly Menashe Glassman

University of Michigan Journal of Law Reform

This Note addresses the importance of expanding the federal Family and Medical Leave Act and state family and medical leave laws to protect domestic partners. Congress passed the Family and Medical Leave Act to allow workers to balance their work lives and family lives by granting workers the right to take leave time to care for an immediate family member in times of medical necessity. The term 'family member," however, is generally limited to relation y blood, adoption, or marriage, and does not include an individual's domestic partner. The concept of family has evolved in our legal system and is …

Covenant Marriage Turns Five Years Old, Steven L. Nock, Laura Sanchez, Julia C. Wilson, James D. Wright

Michigan Journal of Gender & Law

Part I of this article discusses public policy rationales behind covenant marriage legislation, describes relevant aspects of Louisiana's legislation, and summarizes the efforts of other states to enact covenant marriage legislation. Part II discusses methods of data collection and analysis and identifies the demographic characteristics of covenant married couples as opposed to standard married couples in Louisiana. Part III addresses the dynamics behind couples' choice to have a covenant versus standard marriage. Part IV is an analysis of couples' satisfaction with their marriage option and the gendered dynamics of different levels of satisfaction with the marital choice.

From Presumed Fathers To Lesbian Mothers: Sex Discrimination And The Legal Construction Of Parenthood, Susan E. Dalton

Michigan Journal of Gender & Law

In Part I of this article, Dalton briefly reviews the way legal scholars commonly define sex-based discrimination, particularly as it pertains to issues of reproduction. Part II is a brief historical review of legal constructions of parenthood. In Part III, Dalton examines two legal concepts: retroactive legitimation and presumed fatherhood. Both concepts were introduced in 1872 and each independently encouraged judges to think of fatherhood as consisting of two distinct spheres, the biological and the social. She then traces the legal development of these concepts through a series of presumed father, retroactive legitimation, and putative father cases. In Part IV …

Is Marriage Obsolete?, Lynn D. Wardle

Michigan Journal of Gender & Law

Is legal marriage obsolete? Wardle thinks not. In order to understand why not, it is necessary first to grasp the significance of the focus of the discussion on the legal status of marriage. As this Introduction suggests, lack of legal marriage status does not prevent families and communities from treating couples as married nor does the law forbid couples from voluntarily providing each other "marital benefits." Nevertheless, whether marriage is obsolete at the beginning of the twenty-first century is an important question. This article analyzes four dimensions of that question.

Marriage Law: Obsolete Or Cutting Edge?, Michigan Journal Of Gender & Law

Michigan Journal of Gender & Law

Over the past hundred years, social and cultural expectations surrounding various forms of committed relationships have changed dramatically, and contemporary legal systems have struggled to adapt. The result has been an extraordinary opportunity to test fundamental assumptions about law, about the cultural understandings that are enforced through state power, and about the mechanisms that drive law's evolution. The Michigan Journal of Gender & Law has drawn together an exceptional group of panelists who will discuss these questions throughout the day.

Assesing The Family And Medical Leave Act In Terms Of Gender Equality, Work/Family Balance, And The Needs Of Children, Angie K. Young

Michigan Journal of Gender & Law

While recognizing that parental leave is only one aspect of the FMLA, this Article concentrates on the provision allowing leave to parents in order to care for their children. Before analyzing the FMLA in detail, it is helpful to explore what aims a parental-leave policy should have. The purpose of this Article is to propose and defend three goals that parental-leave legislation should strive to meet: equality of career opportunities for men and women, the right to participate in both work and family, and meeting the needs of children. After articulating what parental-leave legislation should aim for in theory, this …

Unemployment Compensation In A Time Of Increasing Work-Family Conflicts, Martin H. Malin

University of Michigan Journal of Law Reform

The demographics of the workplace have changed substantially since the nation's unemployment insurance system was enacted in the 1930s. The number of dual-earner and single-parent families has increased dramatically. Yet, the basic requirements for eligibility for unemployment compensation have not varied much since their initial enactment. In this Article, Professor Malin explores the availability of benefits to individuals who lose their jobs because of conflicts between work and family responsibilities and to unemployed individuals whose family responsibilities restrict the types of jobs that they are able to take. He finds that the states have differed greatly concerning the degree to …

Minor Changes: Emancipating Children In Modem Times, Carol Sanger, Eleanor Willemsen

University of Michigan Journal of Law Reform

This Article reports on the use of still another mechanism for removing children in conflict with their parents: statutory emancipation, the process by which minors attain legal adulthood before reaching the age of majority. Statutorily emancipated minors can sign binding contracts, own property, keep their earnings, and disobey their parents. Although under eighteen, they are "considered as being over the age of majority" in most of their dealings with parents and third parties. Thus, while emancipated minors can sign contracts and stay out late, their adult status also means that their parents are no longer responsible for the minors' support. …

Discretion, Rules, And Law: Child Custody And The Umda's Best-Interest Standard, Carl E. Schneider

Michigan Law Review

One barrier facing any attempt to devise a uniform law for diverse jurisdictions is the occasional - perhaps even frequent - difficulty of writing rules that will accurately guide judges. The law's ordinary solution to that difficulty is to give judges some measure of discretion. This article inquires into the nature and legitimacy of that technique. It does so by analyzing a particularly controversial provision of the Uniform Marriage and Divorce Act (UMDA). Section 402 of that Act states: "The court shall determine custody in accordance with the best interest of the child." It then instructs the court to "consider …

Stemming The Modification Of Child-Support Orders By Responding Courts: A Proposal To Amend Ruresa's Antisupersession Clause, Jane H. Gorham

University of Michigan Journal of Law Reform

This Note examines the practice of using the Act to modify existing child-support orders. Part I explores the question of whether the Act's enforcement mechanisms were designed to permit the responding court to modify existing support orders. It emphasizes the problems involved with concurrent support orders and modification and describes the range of positions courts have taken to support or oppose allowing responding courts to modify support orders. Part II explores the federal child-support enforcement programs, their interstate applications, and their relationship to the Act's enforcement mechanisms. The analysis in these parts leads to Part III, which proposes an amendment …

The Relevance Of Temporary Child Custody Orders To The Formation Of An Established Custodial Environment: A Model Statute For Uniform Application Under Michigan Law, Christine M. Drylie

University of Michigan Journal of Law Reform

This Note presents a Model Statute that clearly indicates when a court may find that an established custodial environment has arisen out of a temporary custody order. The Model Statute thus clarifies when it is appropriate to apply the clear and convincing evidentiary standard to situations involving temporary child custody orders. Part I of this Note describes the court's use of temporary custody orders to determine whether an established custodial environment exists. Part II sets forth the Model Statute, which integrates current case law into statutory language designed specifically for temporary custody situations. Part II also analyzes each section of …

Heartbalm Statutes And Deceit Actions, Michigan Law Review

Michigan Law Review

This Note considers whether actions in deceit based on fraudulent marriage promises should be deemed barred by the heartbalm statutes. It determines that they should not. Part I examines the policies and arguments against the common law breach of promise to marry action that are embodied in the heartbalm statutes and looks at the limits courts have placed on the reach of the statutes. Part II re-examines the deceit action in light of the purposes of the heartbalm acts and their intended scope, as well as in light of criticism of the action by the courts and commentators. In particular, …

The Treatment Of Mandatory Tax Withholdings In Calculating Afdc Benefits: Fairness As A Relevant Inference In Ascertaining Congressional Intent, Michigan Law Review

Michigan Law Review

This Note contends that the more appropriate construction of the statute is to view mandatory tax withholdings as nonincome and nonwork expense items. Part I traces the pre-OBRA legislative and administrative history and examines the judicial interpretations of 42 U.S.C. section 602(a)(7) "income" and section 602(a)(8) "earned income." It concludes that under the "availability" principle, tax withholdings have always been regarded as nonincome items distinct from work expenses. It contends that, notwithstanding contradictory language in the regulations implementing section 602(a)(8), the status of tax withholdings as nonincome items under section 602(a)(7) is controlling. Part II considers the legislative history and …

The Haitian Vacation: The Applicability Of Sham Doctrine To Year-End Divorces, Michigan Law Review

Michigan Law Review

This Note examines the propriety of applying the sham doctrine to tax-motivated divorces. Section I outlines the evolution of the sham doctrine from its exposition in Gregory v. Helvering through its expression in two different tests for commercial transactions. Section II then studies the relationship between state divorce law and the marital status provisions of the Internal Revenue Code to demonstrate the clear congressional preference for incorporating state law by reference rather than creating an independent federal law of marriage. It also examines the history of the 1969 Tax Reform Act in a vain effort to discern a congressional desire …

Marital Agreements In Contemplation Of Divorce, Barbara Klarman

University of Michigan Journal of Law Reform

Romantic notions that marriage is forever are beginning to give way to the more realistic assessments that marriages indeed may not last. The pressure has been mounting for ways to provide economic planning to parties in the relatively likely event that their marriages terminate in divorce. The purpose of this article is to focus on one method of obtaining such planning: the marital agreement setting forth the support and property distribution which the parties would follow in the event of divorce. This article will review the law regarding marital agreements in contemplation of divorce as it exists in the United …

Uniform Probate Code--Illegitimacy--Inheritance And The Illegitimate: A Model For Probate Reform, Michigan Law Review

Michigan Law Review

The Uniform Probate Code (Code), which was approved by the American Bar Association in August 1969, deals with the problem of inheritance by illegitimates both with regard to intestate succession-section 2-109-and also with regard to the construction of a bequest to "children" by will-section 2-611. This Note will examine the issue whether the Code, which presents a comprehensive model for probate reform, deals with the problem of inheritance by illegitimates in an appropriate, desirable, and constitutional manner. The Code provisions concerning illegitimacy relate to many other provisions of the Code in which childhood status is relevant; therefore, it will be …

California Family Law Act, Meredith A. Nelson

University of Michigan Journal of Law Reform

California's Family Law Act has been heralded as the first major change in the State's divorce provisions in one hundred years. The Act is an attempt to remedy two major criticisms of current divorce practice both in California and throughout the United States. First, those advocating reform believe that laws controlling the granting of divorces are in conflict with modem concepts of marriage and divorce. Many divorce laws impose punitive sanctions in an attempt to deter those who would otherwise seek a divorce. Second, notwithstanding their intent, divorce laws have not, in fact, reduced the frequency of divorce. The inability …

Family Support From Fugitive Fathers: A Proposed Amendment To Michigan's Long Arm Statute, Robert L. Nelson

University of Michigan Journal of Law Reform

It is the purpose of this article to propose and discuss an amendment to Michigan's long arm statute which will allow the entry of extraterritorial alimony, separate maintenance, or child support decrees when Michigan is the state of the marital domicile and the defendant-spouse cannot be located for personal service of process. A plaintiff employing the proposed provision in a divorce action will be able to seek alimony, separate maintenance, or support payments as if the defendant were before the court, and the court will have the authority to grant her the necessary relief. If and when the wife later …

A Child Conceived Through Artificial Insemination By A Third-Party Donor Is Illegitimate-Gursky V. Gursky, Michigan Law Review

Michigan Law Review

Husband and wife, upon discovery of the husband's inability to father children, sought to have the wife artificially inseminated. The husband gave his written consent to the clinical impregnation and agreed to pay for it. As a result of the artificial insemination a child was born. Subsequently, the wife sought an annulment and petitioned for support of this child. Held, annulment granted, and child declared illegitimate. A child conceived through artificial insemination by a third-party donor, even though done with the consent of the mother's husband, is illegitimate. Gursky v. Gursky, 39 Misc. 2d 1083, 242 N.Y.S.2d 406 …