Law Commons^™

The Constitutionalization Of Fatherhood, Dara Purvis

Dara Purvis

Beginning in the 1970s, the Supreme Court heard a series of challenges to family law statutes brought by unwed biological fathers, questioning the constitutionality of laws that treated unwed fathers differently than unwed mothers. The Court’s opinions created a starkly different constitutional status for unwed fathers than for unwed mothers, demanding additional actions and relationships before an unwed father was considered a constitutional father. Although state parentage statutes have progressed beyond their 1970s incarnations, the doctrine created in those family law cases continues to have impact far beyond family law. Transmission of citizenship in the context of immigration law and …

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

Macarena Saez

Adultery: Trust And Children, Margaret F. Brinig

Margaret F Brinig

Deborah Rhode writes that while adultery is admittedly not good, it should not be criminal. She argues that it should not generate a tort action either, because the original purposes for which the torts of alienation of affections and criminal conversation come from a time with quite different views about marriage and gender, while no-fault and speedy divorce today give adequate remedies to the wronged spouse. Further, adultery should not affect employment (as a politician or in the military) unless it directly impacts job performance.

My own reluctance to disengage adultery and law stems from the seriousness of adultery. First, …

The Finney County, Kansas Community Assessment Process: Fact Book, Debra J. Bolton Phd, Shannon L. Dick M.S.

Dr. Debra Bolton

This multi-lingual/multi-cultural study was called, Community Assets Processt, by the groups that “commissioned” it: Finnup Foundation, Finney County K-State Research & Extension, Western Kansas Community Foundation, Finney County United Way, Finney County Health Department, United Methodist Community Health Center (UMMAM), Center for Children and Families, Garden City Recreation Commission, and the Garden City Cultural Relations Board, because we intend for this to be an ongoing discussion. An objective, for those promoting the study, was to connect foundation, state, and federal funding with activities or services that addressed the true needs of people living in Finney County. The group was looking …

Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall

Amy J. Sepinwall

The Law Of Attorney Fees In Family Law Cases, Robert G. Spector, Carolyn S. Thompson

Robert G. Spector

No abstract provided.

The Dna Default And Its Discontents: Establishing Modern Parenthood, Katharine K. Baker

Katharine K. Baker

Mandatory Family Mediation And The Settlement Mission: A Feminist Critique, Noel Semple

Noel Semple

North American family law conflicts are very often brought to mediation, in which a neutral third party attempts to bring about a voluntary resolution of the spouses’ dispute. Family mediation has many enthusiastic supporters, and has in many jurisdictions been made a mandatory precursor to traditional litigation. However, it has also given rise to a potent feminist critique, which identifies power imbalance and domestic violence as sources of exploitation and unjust mediated outcomes. This article summarizes the feminist critique of family mediation, and assesses the efforts of contemporary mediation practice to respond to it. Even in the absence of formal …

Result Inequality In Family Law, Margaret F. 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 U.S. 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 Article …

Same Sex Marriage In A Post-Perry And Windsor America, Kathryn L. Moore, Allison I. Connelly, Ross T. Ewing

Allison Connelly

These materials accompanied a presentation at the 2014 Kentucky Bar Association Annual Convention entitled Same Sex Marriage in a Post-Perry and Windsor America. The focus of this presentation was on: the legal landscape following major LGBTQ civil rights cases; how these cases would impact families in Kentucky; and any employment or retirement issues.

A Consideration Of Alternatives To Divorce Litigation, Thomas E. Carbonneau

Thomas Carbonneau

This article argues for the need to inform divorce proceedings with a sense of the human reality of matrimonial breakdown. Part one assesses the adequacy of the existing adjudicatory approach to divorce by focusing upon the hiatus between the legal approach to divorce and the emotional content of divorce disputes. Part two lays the foundation for constructive change, providing a statistical portrait of divorce in contemporary America. Part four discusses mediation and suggests that it is a more viable alternative mechanism to divorce litigation. Part five discusses the implementation of a judicial arbitration structure.

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 …

Minors, Parents, And Minor Parents, Maya Manian

Maya Manian

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

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, …

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 …

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

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 …

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. …

Trends In The Efficacy Of Parental Alienation Allegations In Child Custody Cases And Their Implications For Tortious Action, Bruce L. Beverly

Bruce L. Beverly

As the second of a series, this paper attempts to further explore the phenomenon of parental alienation in domestic relations cases by exploring the often frustrating position that many courts take with regard to blatant and obvious violations of the fundamental rights of parents to raise and know their children. Ofttimes, where courts have found the most blatant interference and harmful manipulation by one parent of the other parent's formerly close relationship with a child, the court either forces a detrimentally aligned child into the custody of the wrongfully vilified parent, thereby harming possible the child and that injured parent, …

Constrained Choice: Mothers, The State, And Domestic Violence, Rona Kaufman Kitchen

Rona Kaufman Kitchen

Mothers who are the victims of domestic violence face unique challenges in their quest for safety. The legal response to domestic violence requires that mothers respond to abuse in specific state-sanctioned manners. However, when mothers respond accordingly, such as by reporting abuse and leaving the abusive relationship, their safety and the safety of their children is not guaranteed. Moreover, by responding in state-sanctioned manners, mothers risk a host of negative consequences including increased threat to their immediate and long-term safety, the loss of their children, undesired financial, health, and social consequences, and criminal prosecution. On the other hand, when mothers …

Holistic Pregnancy: Rejecting The Theory Of The Adversarial Mother, Rona Kaufman Kitchen

Rona Kaufman Kitchen

In its zealous effort to protect the lives and health of unborn children, the law frequently views the expecting mother with suspicion. In its most extreme form, the law regards the potential mother as a potential murderess. This perspective does not reflect the nature of pregnancy, it undermines the autonomy of loving mothers, and it is detrimental to children. Regardless of whether there is any conflict between mother and fetus, the State presumes the mother to be a threat to her fetus and subjugates her rights as a result. The State interferes with the mother’s autonomy, bodily integrity, parental rights, …

Child Welfare Mediation In Georgia, Shauna Carmichael

Shauna Carmichael