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Full-Text Articles in Law
Parental Rights: In Search Of Coherence, Elizabeth Kirk
Parental Rights: In Search Of Coherence, Elizabeth Kirk
Scholarly Articles
The Supreme Court has referred to parental rights as “the oldest of the fundamental liberty interests recognized by this Court.”1 Yet, disagreements about the nature and scope of parental rights have proliferated in recent years.
Child Welfare Requires Adequate Remedial Services, Raymond C. O'Brien
Child Welfare Requires Adequate Remedial Services, Raymond C. O'Brien
Scholarly Articles
This Article argues that the focus of child welfare should be upon the adequacy of reasonable services provided to parents prior to and after their child has been declared dependent because of an abuse or neglect allegation. Admittedly, recent federal legislation funding rehabilitation services while permitting a child to remain with an offending parent may result in less trauma, but this feature should not distract from the point that states must develop adequate reasonable services, and these must be provided within a specified period of time. The consequence of inadequate reasonable services, unable to address adverse conduct within a specified …
The Role Of Adoption In Dobbs-Era Pro-Life Policy, Elizabeth Kirk
The Role Of Adoption In Dobbs-Era Pro-Life Policy, Elizabeth Kirk
Scholarly Articles
It is incumbent upon those who wish to provide alternatives to abortion for pregnant women to advance policies that highlight the unique gifts of adoption in a way that ensures it is a meaningful option. Of course, there are many venues for this to occur, whether in education, media, advertising, private initiative, or legislation. The particular policy appropriate for each state will depend on many factors, including the availability of legal abortion.
Child Support And Joint Physical Custody, Raymond C. O'Brien
Child Support And Joint Physical Custody, Raymond C. O'Brien
Scholarly Articles
Child custody has evolved to the point where, at a minimum, states provide a mediated process by which parents may formulate parenting plans with court-appointed assistance. At a maximum state legislatures and courts increasingly consider joint physical custody awards. While joint physical custody safeguards the fundamental rights of parents, it nonetheless prompts practical concerns in awarding child support. Today, child support begins with state statutory guidelines, but the guidelines often fail to adequately address the economic consequences of two complete residences, one supported by a parent with fewer economic resources, and the fact that oftentimes the child drifts from one …
Marital Versus Nonmarital Entitlements, Raymond C. O'Brien
Marital Versus Nonmarital Entitlements, Raymond C. O'Brien
Scholarly Articles
This Article discusses the evolution of family structure and the ascendency of privacy, liberty, and self-determination. Partially in response, an array of nonmarital unions have become commonplace in the past fifty years in the United States. Cases reveal the insufficiency of remedies avail- able to these nonmarital couples at dissolution-even for those couples living in states willing to enforce express or implied nonmarital agreements. Strikingly, there are fewer remedies for nonmarital cohabitants at death.
Public policy mandates concern for all citizens, including the evolu- tion of individualized family structures formed by its citizens. The issue addressed in this Article is …
Equitable Relief For Erisa Benefit Plan Designation Mistakes, Raymond C. O'Brien
Equitable Relief For Erisa Benefit Plan Designation Mistakes, Raymond C. O'Brien
Scholarly Articles
Since its enactment in 1974, the Employee Retirement Income Security Act (ERISA) and related insurance and disability programs provided retirement security for employees and employers, amassing more than $9 trillion in protected assets. Congress preempted conflicting state laws so as to promote certainty of distribution and ease of administration, two hallmarks of ERISA-governed plans. Nonetheless, since 1974, American society embraced spousal equality, an increased number of marriages end in divorce, and wealth most often passes through nonprobate transfers such as insurance contracts and pension policy plans. To accommodate these societal and wealth changes, states enacted statutes to provide elective share …
Obergefell’S Impact On Functional Families, Raymond C. O'Brien
Obergefell’S Impact On Functional Families, Raymond C. O'Brien
Scholarly Articles
More than forty percent of children born in America are born to unmarried parents and only half of all cohabitating adults in America are currently married. While many children are born to single parents, others are part of the two-person unmarried cohabiting functional family paradigm. What is the status of these children?
This article examines the changing paradigm of parental status, specifically vis-à-vis homosexual couples with children, and the rights of the non-biological parent after separation. This article examines the changes in law in regards to unmarried parents leading up to the Uniform Parentage Act. It describes the equitable remedies …
Bridging The Justice Gap In Family Law: Repurposing Federal Iv-D Funding To Expand Community-Based Legal And Social Services For Parents, Stacy Brustin, Lisa Vollendorf Martin
Bridging The Justice Gap In Family Law: Repurposing Federal Iv-D Funding To Expand Community-Based Legal And Social Services For Parents, Stacy Brustin, Lisa Vollendorf Martin
Scholarly Articles
Parents in family court overwhelmingly proceed pro se; however, in child support courtrooms, government attorneys representing the state child support agency frequently play a pivotal role. These attorneys represent the state’s ostensible interests in ensuring that children are financially supported and in preventing welfare dependence; they do not represent individual parents. The outcomes of child support proceedings have profound, long-term constitutional and financial implications for parents, yet litigants rarely understand their rights or the role of the government.
Originally, the goal of state child support enforcement efforts was to recapture the costs of welfare expenditures. In 1990, two-thirds of cases …
Paved With Good Intentions: Unintended Consequences Of Federal Proposals To Integrate Child Support And Parenting Time., Stacy Brustin, Lisa Vollendorf Martin
Paved With Good Intentions: Unintended Consequences Of Federal Proposals To Integrate Child Support And Parenting Time., Stacy Brustin, Lisa Vollendorf Martin
Scholarly Articles
This Article proceeds in three parts to evaluate the merits of integrating custody and visitation determinations in government-initiated child support proceedings. Part I situates the federal parenting time proposals within the doctrines that shape the scope and allocation of parental rights and responsibilities. This part explores parents’ ability to establish custody, visitation, and child support arrangements, both outside of the court system and within the context of domestic relations proceedings. The section goes on to explore the federal and state child support enforcement structure and recent attempts to change the goal of government involvement from recapturing costs to creating opportunities …
Reasonable Efforts And Parent-Child Reunification, Raymond C. O'Brien
Reasonable Efforts And Parent-Child Reunification, Raymond C. O'Brien
Scholarly Articles
Among the increasing number of federal statutes impacting family law two continue to impact child permanency and parental rights. First, the Adoption Assistance and Child Welfare Act of 1980 mandates that state courts find that the state child welfare agency made reasonable efforts to reunite a dependent child with his or her parents prior to termination of parental rights. The child is dependent because a state court held that there was sufficient clear and convincing evidence to remove the child from the parents’ home. Often that evidence results from parental poverty, mental or physical disability, or the parents are undereducated …
Attorney Responsibility And Client Incapacity, Raymond C. O'Brien
Attorney Responsibility And Client Incapacity, Raymond C. O'Brien
Scholarly Articles
This Article suggests what an attorney should consider when representing a client suspected by the attorney of having diminished capacity, anticipating diminished capacity, or a client anticipating a response to the legal dilemmas posed by aging. So too, this Article suggests what an attorney should consider when retained by the family members of an allegedly incapacitate person. After providing demographics regarding aging, this Article will specifically address the attorney-client relationship in the context of the Model Rules of the American Bar Association. Next, this Article will integrate the attorney's responsibility regarding the proper execution of a Last Will and Testament, …
Child Support: Shifting The Financial Burden In Low-Income Families, Stacy Brustin
Child Support: Shifting The Financial Burden In Low-Income Families, Stacy Brustin
Scholarly Articles
No abstract provided.
Family Law's Challenge To Religious Liberty, Raymond C. O'Brien
Family Law's Challenge To Religious Liberty, Raymond C. O'Brien
Scholarly Articles
This Article argues that challenges made to family law structures have provoked a significant reaction from persons and religious organizations advocating a distinctive worldview based on religious and historical values. Additionally, as family law changes from being a product of a religioushistorical worldview to being a product of private-ordering, the religious liberty of worldview adherents has been challenged. The struggle is apparent in the debates during the 2012 presidential election and is evidenced in government mandates that include, among other requirements, that employersincluding religious organizations-provide insurance coverage for employees that include contraception. Although many aspects of family law have been …
Integrating Marital Property Into A Spouse’S Elective Share, Raymond C. O'Brien
Integrating Marital Property Into A Spouse’S Elective Share, Raymond C. O'Brien
Scholarly Articles
First, this Article begins with history, as this forms the basis of electiveshare law. It is necessary to begin with the historical basis of a spouse's right to support, and then proceed to examine how and why a spouse obtained a share of the property acquired during marriage. Second, because a spouse's rights at death were often very different from those that a spouse would obtain at divorce, it is necessary to explain the various judicial and statutory models adopted by the states to provide a modicum of protection to a surviving spouse at death. There are many models and …
The Momentum Of Posthumous Conception: A Model Act, Raymond C. O'Brien
The Momentum Of Posthumous Conception: A Model Act, Raymond C. O'Brien
Scholarly Articles
This Article addresses the scenario of when, through advanced medical technology, a procedure is performed resulting in the birth of a child more than three hundred days-a time suggested by some statutes-after the death of the gamete provider. The embryo may result from in vitro fertilization or from a woman being artificially inseminated with the sperm of a deceased male gamete provider. And of course the woman could have predeceased too and left a viable ova, that was then fertilized with the sperm of a living or a deceased male to create an embryo, which was then placed into a …
More Than A Witness: The Role Of Custodial Parents In The Iv-D Child Support Process, Stacy Brustin
More Than A Witness: The Role Of Custodial Parents In The Iv-D Child Support Process, Stacy Brustin
Scholarly Articles
No abstract provided.
Border Crossings: Understanding The Civil, Criminal, And Immigration Implications For Battered Immigrants (And Others) Fleeing Across State Lines With Their Children, Catherine F. Klein, Leslye E. Orloff, Hema Sarangapani
Border Crossings: Understanding The Civil, Criminal, And Immigration Implications For Battered Immigrants (And Others) Fleeing Across State Lines With Their Children, Catherine F. Klein, Leslye E. Orloff, Hema Sarangapani
Scholarly Articles
This article provides an overview of the impact of state criminal parental kidnapping or custodial interference statutes on immigrant survivors of domestic violence who already have left or wish to leave their state with their children. Specifically, it discusses the jurisdictional laws that relate to interstate custody, criminal implications of intrastate versus interstate custodial interference, the varying applicability of custodial interference statutes for parents who do and do not have court-ordered custody of their children, statutory exceptions or defenses available to survivors of domestic violence facing prosecution on charges of criminal parental kidnapping, and immigration consequences related to a conviction …
The Intersection Between Welfare Reform And Child Support Enforcement: D.C.’S Weak Link, Stacy Brustin
The Intersection Between Welfare Reform And Child Support Enforcement: D.C.’S Weak Link, Stacy Brustin
Scholarly Articles
This Article examines the effectiveness with which the District of Columbia has linked welfare reform and child support collection. Part I discusses the ways in which the 1996 federal welfare reform legislation significantly altered federal and state child support systems. Part II shifts the discussion from the national arena to the District of Columbia and explores legislative, executive, and judicial responses to child support enforcement in the wake of federal welfare reform.
Part III recommends ways in which the District of Columbia can improve its enforcement system and suggests that it is not enough to simply establish child support orders; …
Domestic Partnership: Recognition And Responsibility, Raymond C. O'Brien
Domestic Partnership: Recognition And Responsibility, Raymond C. O'Brien
Scholarly Articles
A domestic partnership is a business or political recognition of two adults seeking to share benefits normally conferred upon married couples. To date, partnerships have conferred benefits only; the most logical progression is for partnerships to include responsibilities of support, commitment and obligation within the economic partnership construct of emerging family law. When this occurs, heterosexual couples may lack incentive, but homosexual couples will achieve surer due process recognition regardless of same-sex marriage litigation.
Representing A Victim Of Domestic Violence, Catherine F. Klein, Leslye E. Orloff
Representing A Victim Of Domestic Violence, Catherine F. Klein, Leslye E. Orloff
Scholarly Articles
No abstract provided.
An Argument For The Inclusion Of Children Without Medicare, Raymond C. O'Brien
An Argument For The Inclusion Of Children Without Medicare, Raymond C. O'Brien
Scholarly Articles
No abstract provided.
An Analysis Of Realistic Due Process Rights Of Children Versus Parents, Raymond C. O'Brien
An Analysis Of Realistic Due Process Rights Of Children Versus Parents, Raymond C. O'Brien
Scholarly Articles
The purpose of this Article is to analyze the Santosky presupposition and demonstrate why it is misdirected. In particular, the Article posits that the clear and convincing standard adopted by the Court deprives the child of his or her due process rights. The minimum standard should be reduced to at least one of preponderance of the evidence. Such a standard would recognize the so-called parental presumption, i.e. the historical preference given to parents, but give greater recognition to the rights of the child.
This Article examines the due process concerns of parent and child from both a legal and a …
Coordinating Family Violence Cases: A Suggested Approach, Catherine F. Klein
Coordinating Family Violence Cases: A Suggested Approach, Catherine F. Klein
Scholarly Articles
No abstract provided.
Providing Legal Protection For Battered Women: An Analysis Of State Statutes And Case Law, Catherine F. Klein, Leslye E. Orloff
Providing Legal Protection For Battered Women: An Analysis Of State Statutes And Case Law, Catherine F. Klein, Leslye E. Orloff
Scholarly Articles
This Article presents a comprehensive survey of civil protection order statutes and state appellate opinions in all fifty jurisdictions, the District of Columbia, and Puerto Rico. We examine recent developments and trends, and highlight innovations. We include recommendations for further legislative reform and for creative development of case law. We have incorporated available social science research, the published policies and recommendations of judicial authorities, and the legal literature written by domestic violence experts. Moreover, our recommendations are based on our experience as domestic violence advocates. Each of us has represented battered women in court for more than a decade.
In …
The Decontextualization Of Domestic Violence, Lisa G. Lerman
The Decontextualization Of Domestic Violence, Lisa G. Lerman
Scholarly Articles
No abstract provided.
Incest And Intrafamilial Child Abuse: Fatal Attractions Or Forced And Dangerous Liaisons?, George P. Smith Ii
Incest And Intrafamilial Child Abuse: Fatal Attractions Or Forced And Dangerous Liaisons?, George P. Smith Ii
Scholarly Articles
No abstract provided.
Domestic Violence: The District Of Columbia’S New Mandatory Arrest Law, Catherine F. Klein
Domestic Violence: The District Of Columbia’S New Mandatory Arrest Law, Catherine F. Klein
Scholarly Articles
No abstract provided.
Aids: Perspective On The American Family, Raymond C. O'Brien
Aids: Perspective On The American Family, Raymond C. O'Brien
Scholarly Articles
This paper will focus on the probable impact of AIDS upon family law and family issues in America. Although it is still too early to tell precisely what effect AIDS will have in these areas, it is essential for lawyers and other professionals to begin a dialogue now in order to face the many challenges which lie ahead as the disease continues to spread and impact family relationships.
Among the many subjects discussed below is the likely trend that fear of infection and death will restrict the societal demand and acceptance of new definitions of family. In order to provide …
Fetal Abuse: Culpable Behavior By Pregnant Women Or Parental Immunity?, George P. Smith Ii
Fetal Abuse: Culpable Behavior By Pregnant Women Or Parental Immunity?, George P. Smith Ii
Scholarly Articles
The purpose of this essay is to demonstrate the pressing need of the law to take decisive action in imposing tort liability for willful and malicious conduct by drug addicted women during their pregnancy. Liability should be imposed notwithstanding the warnings from civil libertarians that the enforcement of such a policy would most assuredly give rise to "prenatal police patrols.'
The Case Of Baby M: Love’S Labor Lost, George P. Smith Ii
The Case Of Baby M: Love’S Labor Lost, George P. Smith Ii
Scholarly Articles
No abstract provided.