Law Commons^™

Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Bans, Suzianne D. Painter-Thorne

Articles

In the summer of 2015, marriage equality advocates celebrated the Supreme Court’s decision in Obergefell v. Hodges, which struck down state prohibitions on same-sex marriage.The Court found that “[t]he right of same-sex couples to marry . . . is part of the liberty promised by the Fourteenth Amendment.” Two years earlier, the Court had struck down parts of the federal Defense of Marriage Act (DOMA), finding that the federal government could not discriminate against same-sex married partners. With these two decisions, the Court ensured that the marriages of same-sex couples would be recognized by the federal government and in …

Restructuring Rebuttal Of The Marital Presumption For The Modern Era, Jessica Feinberg

Articles

The marital presumption of paternity, which arose from English common law, has served as a core component of the law governing parentage in the United States since the nation’s inception. Pursuant to the marital presumption, a husband is presumed to be the legal father of any child born to or conceived by his wife during the marriage. Historically, the marital presumption was extremely difficult to rebut, generally requiring proof of the husband’s non-access to his wife during the time of conception, the husband’s sterility or impotence, or adultery on the part of the wife. As these early grounds for rebuttal …

A Logical Step Forward: Extending Voluntary Acknowledgments Of Parentage To Female Same-Sex Couples, Jessica Feinberg

Articles

Under current law, stark differences exist between different- and same-sex couples who welcome children into the world with regard to the ease through which the member of the couple who did not give birth to the child is able to obtain legal parent status. While a number of simple, efficient procedures exist for establishing legal parentage for different-sex partners of women who give birth, same-sex partners of women who give birth often have to go through significantly more complex, time-consuming, and expensive procedures in order to establish legal parentage. The inequitable treatment of same-sex couples in establishing legal parentage has …

Throwing The Baby Out With The Patriarchy, Scott Titshaw

Articles

Throughout the history of Europe and its former new world colonies, families have been a central unit for defining legal rights and duties, including those related to citizenship and immigration. Less than a century ago, a woman and her children automatically gained or lost citizenship in the U.S. and many other countries upon her marriage to a citizen or noncitizen. The family was treated as one unit reflecting the legal identity of the father-husband as “head of family.”

Fortunately, the United States and other governments have increasingly recognized women – and, to a lesser extent, children – as independent persons …

Whither The Functional Parent? Revisiting Equitable Parenthood Doctrines In Light Of Same-Sex Parents’ Increased Access To Obtaining Formal Legal Parent Status, Jessica Feinberg

Articles

Until relatively recently, the law did not provide avenues through which both members of a same-sex couple could gain recognition as the parents of the children they were raising together. Instead, generally only the member of the same-sex couple who was the child’s biological parent was recognized as the child’s legal parent, and the nonbiological parent was considered a legal stranger to the child. Historically, nonbiological parents in same-sex relationships could not gain legal parent status because the traditional avenues for establishing legal parent status in the United States have been based upon biology, marriage, and adoption. Since joint biological …

Same-Sex Spouses Lost In Translation? How To Interpret “Spouse” In The E.U. Family Migration Directives, Scott Titshaw

Articles

This Article analyzes the word “spouse” in the European Union’s Family Migration Directives in detail, focusing on the treatment of married bi-national same-sex couples. Through these directives, the European Union exercises significant authority over family-based immigration and internal migration, expressly providing immigration rights to the “spouses” of E.U. citizens and legal residents. However, family law, including the familial status of “spouses” is governed by individual E.U. member states. While a growing number of member states authorize same-sex marriage, the majority still do not. The E.U., therefore, must determine how to treat migrating couples who are legal spouses in one member …

Consideration Of Genetic Connections In Child Custody Disputes Between Same-Sex Parents: Fair Or Foul?, Jessica Feinberg

Articles

Historically, in child custody disputes involving same-sex couples who conceived their children through assisted reproductive technology, the law only recognized the relationship between the child and the member of the same-sex couple who was the child’s genetic parent. Consequently, non-genetic parents in these situations were frequently denied standing to seek custody or visitation following the dissolution of their relationship with the child’s genetic parent. Due to recent legal advancements, however, it is becoming far more common for both members of a same-sex couple to be legally recognized as the parents of a child conceived through assisted reproductive technology. Unfortunately, despite …

Gradual Marriage, Jessica Feinberg

Articles

The time has come to reform the law governing marriage. In determining the rights and obligations between spouses arising from marriage, current law does not adequately account for the way in which spousal behaviors and expectations change over the course of a marriage. With regard to intact marriages, under the existing legal framework, the spousal rights and obligations enjoyed by couples in intact marriages arise all at once—at the moment a couple is granted a marriage license—and do not change as the years of marriage pass or as children are born to the marriage. In terms of dissolving marriages, with …

Revisiting The Meaning Of Marriage: Immigration For Same-Sex Spouses In A Post-Windsor World, Scott Titshaw

Articles

As U.S. states and foreign nations began recognizing same-sex marriages over the last dozen years, the anti-gay definitions of "marriage" and "spouse" in Section 3 of the Defense of Marriage Act ("DOMA'') rendered those marriages invisible for immigration purposes. Thousands of U.S. citizens were left with a cruel choice between country and family: Remain alone in the United States or start anew with spouses and stepchildren abroad. Other couples did not qualify to emigrate anywhere together, leaving them no choice at all. DOMA also devastated children. Not only might they be separated from one parent, but their own immigration or …