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Full-Text Articles in Law

Contracts For Cohabitating Romantic Partners, Bailey D. Barnes Apr 2023

Contracts For Cohabitating Romantic Partners, Bailey D. Barnes

Maine Law Review

Marriage rates in the United States are at record lows; meanwhile, more couples are choosing to live together outside of marriage. Despite the changing landscape of romantic relationships, the law of nonmarriage has not kept pace. Rather than having a coherent, majority rule approach, the individual states have employed differing methods of providing for property distribution at the end of a long-term unmarried cohabitation. Unfortunately, absent the formal protections offered by marriage for both parties following a divorce, many cohabitants are at risk of suffering inequitable property distribution following the termination of a cohabitation. This Article proposes that states uniformly …


Taking The "Fam" Out Of Family: Adjudicating The State Department's Discriminatory Treatment Of Same-Sex Parents On The Merits, Camrin M. Rivera Mar 2022

Taking The "Fam" Out Of Family: Adjudicating The State Department's Discriminatory Treatment Of Same-Sex Parents On The Merits, Camrin M. Rivera

Maine Law Review

Cisgender same-sex male married couples, unlike cisgender opposite-sex married couples, will always require artificial reproductive technology (ART) for at least one of the spouses to attain biological parenthood. Due to legal and financial barriers to ART, many of these couples turn to international ART services to grow their families. In doing so, these families may face immigration battles when they apply for recognition of their child’s United States citizenship. For example, a prior State Department policy sparked three lawsuits after the State Department refused to recognize children as United States citizens from birth because the children were not biologically related …


The Boundaries Of Multi-Parentage, Jessica Feinberg Jan 2022

The Boundaries Of Multi-Parentage, Jessica Feinberg

Faculty Publications

Multi-parentage has arrived. In recent years, a growing number of courts and legislatures have recognized that a child may have more than two legal parents. A number of significant societal, medical, and legal developments have contributed to the trend toward multi-parentage recognition. The traditional family structure of a married different-sex couple and their biological children currently represents only a minority of U.S. families. Stepparents, non-marital partners of legal parents, and extended family members often play a significant role in children’s lives, and it has become increasingly common for same-sex couples to welcome children into their families. In addition, advancements in …


Parent Zero, Jessica Feinberg Jan 2022

Parent Zero, Jessica Feinberg

Faculty Publications

When a child is born, the law makes a critical determination regarding who will be recognized as the child’s legal parent(s). This determination carries immense importance both for children and for individuals who are, or seek to be, identified as legal parents. Essential rights, protections, and obligations attach to a legally recognized parent-child relationship, and in the vast majority of cases an individual who is recognized at birth as a child’s legal parent will retain that status permanently. The determination of the child’s first legal parent historically has been a straightforward one, and this largely remains true today outside of …


After Marriage Equality: Dual Fatherhood For Married Male Same-Sex Couples, Jessica Feinberg Jan 2021

After Marriage Equality: Dual Fatherhood For Married Male Same-Sex Couples, Jessica Feinberg

Faculty Publications

In most states, married male same-sex couples who conceive children via gestational surrogacy using sperm from one member of the couple and donor ova must pursue adoption in order to establish legal parentage for the member of the couple who is not genetically related to the child. This is because only a minority of jurisdictions have surrogacy laws that recognize the non-biological intended parent as a legal parent in this situation, and across the United States cisgender male same-sex couples are excluded from the longstanding non-adoptive marriage-based avenues of establishing parentage currently available to both different-sex couples and female same-sex …


Gender And Specialization In The Practice Of Divorce Law, Richard J. Maiman, Lynn Mather, Craig A. Mcewen Apr 2020

Gender And Specialization In The Practice Of Divorce Law, Richard J. Maiman, Lynn Mather, Craig A. Mcewen

Maine Law Review

In the past two decades, the gender composition of the legal profession in the United States has changed dramatically. While women comprised less than five percent of the nation's lawyers in 1970, the proportion of women lawyers had increased to more than 19% by the end of 1988, and roughly 40% of new lawyers each year are now women. However, the movement of women into the legal profession has not been easy. As a consequence, considerable commentary has been focused on the significant problems of sexual harassment, discrimination, and other forms of gender bias, and on such issues as the …


Toward A Coherent Interpretation Of Maine's Marital Property Act, John C. Sheldon Apr 2020

Toward A Coherent Interpretation Of Maine's Marital Property Act, John C. Sheldon

Maine Law Review

Interpreted literally, Maine's Marital Property Act (MPA) excludes all wedding gifts from the marital estates of divorcing spouses. Wedding gifts received before a wedding are nonmarital because they were not received during the marriage. Wedding gifts received after a wedding are nonmarital because they were gifts, which appear to be expressly excluded from the marital estate by the statute's definition of marital property. In short, a literal reading of the MPA prevents Maine's divorce courts from exercising any discretion in the distribution of what must, by any measure of common sense, be quintessential examples of marital property. This curious state …


Gender And Specialization In The Practice Of Divorce Law, Richard J. Maiman, Lynn Mather, Craig A. Mcewen Apr 2020

Gender And Specialization In The Practice Of Divorce Law, Richard J. Maiman, Lynn Mather, Craig A. Mcewen

Maine Law Review

In the past two decades, the gender composition of the legal profession in the United States has changed dramatically. While women comprised less than five percent of the nation's lawyers in 1970, the proportion of women lawyers had increased to more than 19% by the end of 1988, and roughly 40% of new lawyers each year are now women. However, the movement of women into the legal profession has not been easy. As a consequence, considerable commentary has been focused on the significant problems of sexual harassment, discrimination, and other forms of gender bias, and on such issues as the …


Keeping It In The Family: Minor Guardianship As Private Child Protection, Deirdre Smith Jan 2019

Keeping It In The Family: Minor Guardianship As Private Child Protection, Deirdre Smith

Faculty Publications

Due to the opioid use epidemic and an overwhelmed public child protection system, minor guardianship is an increasingly important tool for relative caregivers seeking to obtain legal authority regarding the children who come into their care because of a parent’s crisis. Yet minor guardianship originated in colonial law for an entirely different purpose: to protect legal orphans who had inherited property. Today’s guardianship laws are still based on this “orphan model” which does not fit today’s reality. This Article is the first to analyze how these outdated guardianship laws are being used as a form of “private child protection” and …


Habitual Residence V. Domicile: A Challenge Facing American Conflicts Of Laws, Mo Zhang Jun 2018

Habitual Residence V. Domicile: A Challenge Facing American Conflicts Of Laws, Mo Zhang

Maine Law Review

Habitual residence has now become an internationally accepted connecting factor in conflict of laws and is widely being used as an alternative to, or replacement of, domicile. This concept, however, remains remote to American conflict of laws. Although the use of habitual residence in the U.S. courts is mandated by the codification of the Hague Child Abduction Convention, there is still a lack of general acceptance in American conflict of law literature. The Article argues that habitual residence should be adopted as a conflict of law connecting factor in American conflict of laws, and it would be unwise for the …


Campbell V. Campbell: Requiring Adherence To The Correct Legal Standard In Child Custody Proceedings - The "Best Interest Of The Child", Lisa M. Fitzgibbon May 2018

Campbell V. Campbell: Requiring Adherence To The Correct Legal Standard In Child Custody Proceedings - The "Best Interest Of The Child", Lisa M. Fitzgibbon

Maine Law Review

Should a divorce court be permitted to consider evidence of a parent's misuse of legal process when rendering a child custody decree? In Campbell v. Campbell the Maine Superior Court concluded that Mrs. Campbell had sought an ex parte protection from abuse order against her husband in an effort to gain a tactical advantage in the custody proceeding—she did not need protection from abuse. The court then awarded Mr. Campbell custody of the children, on the basis of Mrs. Campbell's misuse of legal process. Yet, by focusing its attention upon one parent's conduct, the superior court deviated from what was …


In Search Of A Theory Of Alimony, John C. Sheldon, Nancy Diesel Mills May 2018

In Search Of A Theory Of Alimony, John C. Sheldon, Nancy Diesel Mills

Maine Law Review

Maine's alimony statute is full of good advice. It directs judges who hear requests for alimony to “consider” all kinds of things, from the parties' individual wealth to their individual health, from their respective ages to their respective wages, from the length of their marriage to the strength of their educations. And, as if to subdue any doubt about the breadth of this assignment, the statute then invites judges to take into account “any other factors the court considers appropriate.” In short, the statute grants judges almost unlimited discretion in awarding alimony. Power notwithstanding, however, anyone who reads the statute …


Fisco V. Department Of Human Services: The Inequity Of Equitable Defenses In Child Support Arrearage Cases, Rebecca C. Raskin Apr 2018

Fisco V. Department Of Human Services: The Inequity Of Equitable Defenses In Child Support Arrearage Cases, Rebecca C. Raskin

Maine Law Review

On August 8, 1995, using a federal law targeting the most egregious deadbeat fathers, FBI agents arrested Jeffrey Nichols for failing to pay approximately $580,000 in child support. Although the law is fairly new, the problem of child support enforcement has troubled this country for decades. In the early 1970s, child support enforcement was so inadequate that the federal government spent $7.6 billion annually on welfare to provide for single parents. The government has tried to remedy the problem, but seventy-five percent of custodial mothers in this country continue either to lack child support orders or to receive less than …


The Sleepwalker's Tour Of Divorce Law, John C. Sheldon Apr 2018

The Sleepwalker's Tour Of Divorce Law, John C. Sheldon

Maine Law Review

It's amazing what you can learn about modern divorce law from Nicholas Copernicus and Johannes Kepler. Copernicus was the 16th century churchman who dared to suggest that the sun, not the earth, lies at the center of the solar system. Kepler was the early-17th century mathematician whose three laws of planetary motion provided the foundation for modern cosmology. Neither of these pioneers had a clue what he was doing. A study of recent procedures, decisions, and statutes in Maine divorce law suggests that nothing has changed since Copernicus. Koestler could have written the same book just by attending a divorce …


Long V. Long: Law Court Ruling Changes The Disposition Of Joint Real Property On Divorce, Marc J. Veilleux Mar 2018

Long V. Long: Law Court Ruling Changes The Disposition Of Joint Real Property On Divorce, Marc J. Veilleux

Maine Law Review

In Long v. Long the Maine Supreme Judicial Court, sitting as the Law Court, affirmed a district court divorce decree dividing the parties' residence of thirteen years as marital property, even though the majority of the funds used for its purchase were traceable to non-marital property the husband had acquired prior to the marriage. The governing statute instructed the district court to make an “equitable” disposition of all property acquired by the spouses during marriage, but required that it first “set apart to each spouse the spouse's [separate] property,” including property acquired during marriage by a spouse “in exchange for …


Maine's "Act To Protect Traditional Marriage And Prohibit Same-Sex Marriages": Questions Of Constitutionality Under State And Federal Law, Jennifer B. Wriggins Mar 2018

Maine's "Act To Protect Traditional Marriage And Prohibit Same-Sex Marriages": Questions Of Constitutionality Under State And Federal Law, Jennifer B. Wriggins

Maine Law Review

In 1997, Maine's Legislature passed “An Act to Protect Traditional Marriage and Prohibit Same-Sex Marriages” (Act). The summary attached to the bill states that the bill “prohibits persons of the same sex from contracting marriage.” The bill was the verbatim text of an initiative petition. Civil marriage in Maine and other states is regulated by state statute, and marriage regulation is generally considered to be within the state's police power. However, the state's power to regulate marriage is subject to constitutional limitations. I maintain that “heightened scrutiny” should be applied to the Act because the Act creates a gender-based classification, …


Surrogate Mothers, Gestational Carriers, And A Pragmatic Adaptation Of The Uniform Parentage Act Of 2000, John C. Sheldon Feb 2018

Surrogate Mothers, Gestational Carriers, And A Pragmatic Adaptation Of The Uniform Parentage Act Of 2000, John C. Sheldon

Maine Law Review

Recent medical advances that permit human conception without intercourse, in combination with sociological changes in our country, dramatically enlarge the population of adults who can produce or raise children. The legal price for this broadening of opportunity, however, is a diminishment of certainty: We are no longer sure whom we should identify as a child's parents. These are important questions, of course, because ready answers will quickly dampen disputes about custody and will immediately establish support obligations and the children's eligibility for health insurance, for inheritance, for Workers' Compensation benefits, and for Social Security survivor benefits. But as important as …


Rideout V. Riendeau: Grandparent Visitation In Maine After Troxel, Theodore A. Small Dec 2017

Rideout V. Riendeau: Grandparent Visitation In Maine After Troxel, Theodore A. Small

Maine Law Review

Rideout v. Riendeau presented a case in which two grandparents, Rose and Chesley Rideout, sought visitation of their three grandchildren. Though the Rideouts had served as the childrens' “primary caregivers and custodians” for significant periods of time, the childrens' parents, Heaven-Marie Riendeau, who was the Rideouts' daughter, and Jeffrey Riendeau, ended all contact between the children and the Rideouts due to a strained relationship between the Rideouts and the Riendeaus. The Rideouts filed a complaint pursuant to Maine's Grandparents Visitation Act (the Act), which allows grandparents to bring a petition for visitation when there is a “sufficient existing relationship between …


Protecting Children In Divorce: Lessons From Caroline Norton, Lucy S. Mcgough Nov 2017

Protecting Children In Divorce: Lessons From Caroline Norton, Lucy S. Mcgough

Maine Law Review

No fault divorce is now popularly accepted, at least in non-Catholic populations of the West. Furthermore, the role of the court in divorce and separation disputes has dramatically adjusted from a fact-finder of fault, its traditional adjudicatory role, to an administrative overseer of the process of unwinding the family financial enterprise and approving parenting arrangements. Less appreciated because it is a still-incomplete contemporary transfiguration is the divorce court's role in attempting to enhance parents' future interactions with each other. It is estimated that one-fourth to one-third of divorcing parents have considerable difficulty regaining their footing after separation and perhaps one …


Gender And Nation-Building: Family Law As Legal Architecture, Tracy E. Higgins, Rachel P. Fink Oct 2017

Gender And Nation-Building: Family Law As Legal Architecture, Tracy E. Higgins, Rachel P. Fink

Maine Law Review

In considering the legal architecture of nation-building, we might most readily think of public law as our subject insofar as it governs the relationship between the individual and the state, and establishes the institutions of governance and the sources and limits of their power. The essays in this volume, in large part, track this instinct in that they concern themselves with fields such as constitutional law, criminal law, and public international law. Closer to the margin of public and private law are essays dealing with various dimensions of the modern regulatory state, including banking and commercial transactions. In each of …


The Crossroads Of A Legal Fiction And The Reality Of Families, Andrew L. Weinstein Oct 2017

The Crossroads Of A Legal Fiction And The Reality Of Families, Andrew L. Weinstein

Maine Law Review

In Adoption of M.A., the Maine Supreme Judicial Court, sitting as the Law Court, held that an unmarried, same-sex couple could file a joint petition for adoption of two foster children in their care. This recent decision is only a fraction of a story that originated a long time ago when same-sex couples began raising children. This Comment begins by examining the role of the state courts and the United States Supreme Court in their exposition of family law relating to adoption by same-sex couples. The United States Supreme Court has periodically weighed in on family law and parenting in …


Stories Told And Untold: Confidentiality Laws And The Master Narrative Of Child Welfare, Matthew I. Fraidin Oct 2017

Stories Told And Untold: Confidentiality Laws And The Master Narrative Of Child Welfare, Matthew I. Fraidin

Maine Law Review

In most states, child welfare hearings and records are sealed or confidential. This means that by law, court hearings and records may not be observed. The same laws and court rules also preclude those who are authorized to enter and watch from discussing anything learned or observed in a closed courtroom or from a sealed court record with anyone not involved in the case. It is the restriction on speech—on telling stories about child welfare—with which this Article is concerned. I will argue in this Article that the insights of narrative theory and agenda-setting studies help us understand the damaging …


The New Phoenix: Maine's Innovative Standards For Guardians Ad Litem, Dana E. Prescott Apr 2017

The New Phoenix: Maine's Innovative Standards For Guardians Ad Litem, Dana E. Prescott

Maine Law Review

In a 2014 article in the Maine Law Review, the author reviewed the historical and legal foundations for guardian ad litem (GAL) appointments by judges on behalf of children in Maine. GALs are appointed to provide the court with investigative facts and recommendations concerning the best interest of a child. The implications and frustrations expressed during political and policy discussions reflect a broader national debate deeply rooted in the power of family law courts when child custody or abuse and neglect are alleged. Whether in the form of child protection or child custody litigation, the sheer volume and complexity of …


Domestic Violence And Enforcement Of Protection From Abuse Orders: Simple Fixes To Help Prevent Intra-Family Homicide, Nicole R. Bissonnette Apr 2017

Domestic Violence And Enforcement Of Protection From Abuse Orders: Simple Fixes To Help Prevent Intra-Family Homicide, Nicole R. Bissonnette

Maine Law Review

Domestic violence has long been recognized as a pressing law enforcement and societal concern, and both federal and state governments have continued to pursue strategies to address the issue. Beyond the criminal threatening, assaults, batteries, and other physical atrocities that victims face, domestic violence provides an added horror—“obliterating personhood, suspending identity and nullifying any notion of personal autonomy.” To address these concerns, legislatures created Protection from Abuse Orders (hereinafter PFAs), to protect those that have been subject to abuse from trusted family members or dating partners. Unfortunately, victims then place their trust in the system, which often fails to deter …


Recognizing Gestational Surrogacy Contracts: "Baby-Steps" Toward Modern Parentage Law In Maine After Nolan V. Labree, Adam Quinlan Apr 2017

Recognizing Gestational Surrogacy Contracts: "Baby-Steps" Toward Modern Parentage Law In Maine After Nolan V. Labree, Adam Quinlan

Maine Law Review

In Nolan v. LaBree, a husband and wife filed a complaint seeking a judgment declaring their legal parentage of a newborn child born via gestational surrogacy. All parties surrounding the birth of this child entered into a surrogacy contract and are in agreement that the genetic mother and father bringing this suit should be declared as the legal parents. When the child was born, however, the birth certificate did not reflect the intentions of the contract, listing the parents as the surrogate mother and the surrogate mother’s spouse. The trial court, following an uncontested hearing, declared the requested paternity determination …


Are You My Mother? A Critique Of The Requirements For De Facto Parenthood In Maine Following The Law Court's Decision In Pitts V. Moore, Samuel G. Johnson Feb 2017

Are You My Mother? A Critique Of The Requirements For De Facto Parenthood In Maine Following The Law Court's Decision In Pitts V. Moore, Samuel G. Johnson

Maine Law Review

Are you my mother? The answer to this question may not have been very difficult to ascertain years ago, however it is not so easily answered today. With advancements in technology, shifts in family structures, and changes in social norms, new legal issues pertaining to parental rights have materialized. The right to raise a child as one sees fit is one of the oldest fundamental rights recognized and protected by the United States Constitution. However, courts are now being asked to consider the rights of “legal strangers” at the expense of the biological or legal parent. One method that a …


Inconvenient Truths: Facts And Frictions In Defense Of Guardians Ad Litem For Children, Dana E. Prescott Feb 2017

Inconvenient Truths: Facts And Frictions In Defense Of Guardians Ad Litem For Children, Dana E. Prescott

Maine Law Review

During the 2013 Maine legislative session, citizens, elected officials, and professionals passionately expressed their beliefs concerning the legitimacy and efficacy of guardian ad litem [GAL] appointments in private child custody cases. In many respects, this policy discussion mirrored national trends in the scholarly and social science literature concerning allegations of the overuse or capacious role of a GAL. Establishing the proper legal and scientific contours within which GALs may serve the best interests of children and simultaneously provide constructive investigative and evidence-informed recommendations to judicial fact finding remains a proper concern for proponents and critics alike. The challenge, in this …


From Orphans To Families In Crisis: Parental Rights Matters In Maine Probate Courts, Deirdre M. Smith Jan 2017

From Orphans To Families In Crisis: Parental Rights Matters In Maine Probate Courts, Deirdre M. Smith

Maine Law Review

This Article examines the sources of the contemporary problems associated with the adjudication of parental rights matters in Maine's probate courts and identifies specific reforms to address both the structural and substantive law problems. The Article first reviews the development of Maine's probate courts and their jurisdiction over parental rights matters. It traces the expansion of jurisdiction over children and families from a limited role incidental to the administration of a decedent's estate to the current scope—a range of matters that may result in the limitation, suspension, or termination of the rights of living parents. Maine's probate courts not adjudicate …


From Orphans To Families In Crisis: Parental Rights Matters In Maine Probate Courts, Deirdre M. Smith Aug 2015

From Orphans To Families In Crisis: Parental Rights Matters In Maine Probate Courts, Deirdre M. Smith

Faculty Publications

This Article examines the sources of the contemporary problems associated with the adjudication of parental rights matters in Maine’s probate courts and identifies specific reforms to address both the structural and substantive law problems. The Article first reviews the development of Maine’s probate courts and their jurisdiction over parental rights matters. It traces the expansion of jurisdiction over children and families from a limited role incidental to the administration of a decedent’s estate to the current scope: a range of matters that may result in the limitation, suspension, or termination of the rights of living parents. Maine probate courts now …


Child Care Policy And The Welfare Reform Act, Peter R. Pitegoff Jan 1997

Child Care Policy And The Welfare Reform Act, Peter R. Pitegoff

Faculty Publications

This article sketches the 1996 Welfare Reform Act's major changes with particular attention to federally subsidized child care for low-income families.