Law Commons^™

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

Faculty Scholarship

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 …

Reflections On Obergefell And The Family-Recognition Framework's Continuing Value, Suzanne B. Goldberg

Faculty Scholarship

Unlike a typical law review essay, I offer reflections here based largely on my own past work in LGBT rights advocacy. Together with related scholarship, I rely on these experiences to argue that the 'family recognition" framework underlying earlier advocacy has value going forward, even after the Supreme Court's ruling in favor of nationwide marriage equality.

The Child-Welfare System And The Limits Of Determinacy, Clare Huntington

Faculty Scholarship

To read Robert Mnookin’s seminal 1975 article, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, is to see a blueprint for legislative action. To a remarkable degree, the reforms Mnookin proposed to the child-welfare system are what Congress and the states adopted in the following two decades. And yet reading Mnookin’s article is also a Groundhog Day experience. The problems he described with the child-welfare system nearly forty years ago sound all too familiar today.

Mnookin famously argued that the best-interests standard was indeterminate in the context of the child-welfare system. According to Mnookin, this open-ended standard created …

Parents As Hubs, Clare Huntington

Faculty Scholarship

In her provocative article The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, Professor Melissa Murray offers a much-needed corrective to the view that families are “autonomous islands” and argues that the law should recognize the networks of care provided by nonparental caregivers.I wholeheartedly agree with Professor Murray that the law should support families in providing care. I am also deeply sympathetic to the claim that family law is overly reliant on binary opposites — here, the mutually exclusive categories of parent and legal stranger — that do not capture the complex reality of family life. And …

Family Law Cases As Law Reform Litigation: Unrecognized Parents And The Story Of Alison D. V. Virginia M., Suzanne B. Goldberg

Faculty Scholarship

Although the gap between law and lived experience comes as no surprise to most people, the divergence is especially striking – and disturbing – in the area of family law. Legal training quickly reveals that love is not a foundational element of family law, yet it can still be jarring to find that love has little, if any, bearing on the contours of the legal family. Love, after all, does not account for who can and cannot marry. Nor does the past love of an unmarried couple trigger the protections of divorce should the couple separate.

When children are involved, …

Missing Parents, Clare Huntington

Faculty Scholarship

In an effort to protect children from abuse and neglect, the child welfare system focuses on parents, both as potential wrongdoers and as the locus for rehabilitation. This attention informs the discourse surrounding state intervention: parents' rights are balanced against children's rights, and family autonomy is understood as an overriding value. But the child welfare system centers parents in the wrong way, leading to academic debates that miss the mark and methods of intervention that are often counterproductive.

An effective child welfare system would be built upon the understanding that, in general, the state can best support children by supporting …

Rights Myopia In Child Welfare, Clare Huntington

Faculty Scholarship

For decades, legal scholars have debated the proper balance of parents' rights and children's rights in the child welfare system. This Article argues that the debate mistakenly privileges rights. Neither parents' rights nor children's rights serve families well because, as implemented, a solely rights-based model of child welfare does not protect the interests of parents or children. Additionally, even if well-implemented, the model still would not serve parents or children because it obscures the important role of poverty in child abuse and neglect and fosters conflict, rather than collaboration, between the state and families. In lieu of a solely rights-based …

Child Custody, Religious Practices, And Conscience, Kent Greenawalt

Faculty Scholarship

This article asks to what extent considerations relating to religion should figure in custody disputes. One inquiry is whether the kind of religious life that a parent plans for his or her child should figure in the decision whether to grant custody to that parent. The article focuses on a religious life that involves very substantial deprivation no after-school activities, no television, no pets, no reading except schoolwork and the Bible-from an ordinary secular perspective. A second inquiry is whether one parent of a divorced couple should be able to prevent the other parent from exposing a child to various …

Protecting The Parental Rights Of Incarcerated Mothers Whose Children Are In Foster Care: Proposed Changes To New York's Termination Of Parental Rights Law, Philip Genty

Faculty Scholarship

In the past decade, the number of female prisoners in New York state and city jails has risen dramatically. Currently, there are 1,890 women incarcerated in New York State prisons, and an additional 1,626 women confined in New York City jails. Approximately seventy- two percent of the women in state prisons are parents, and, according to one informal study, nearly sixty percent of the women in city prisons are single parents with minor children. While some of these women can make formal or informal child care arrangements with relatives or close friends, many others must turn to state-regulated foster care. …