Law Commons^™

Spoliation In Child Welfare: Perspectives And Solutions, Dale Margolin Cecka

Law Faculty Publications

Author examines spoliation in child welfare litigation and provides ideas for preserving evidence and improvement record-keeping.

How (Not) To Talk About Abortion, Meredith J. Harbach

Law Faculty Publications

In this essay, I aim to have a conversation about how we converse- how we talk-about abortion and related issues. In the process, I want to consider how we might come together to discover issues of shared commitment and values and transform the existing abortion debate. I begin with a review of some of the more notable abortion-related rhetoric during the 2012 Virginia General Assembly, and contrast that rhetoric with the discourse in my classroom. I then consider whether and how we might move forward together toward a more meaningful and productive dialogue on these issues.

A Tale Of Three Families: Historical Households, Earned Belonging, And Natural Connections, Allison Anna Tait

Law Faculty Publications

The work of this Article is to present a new and synthetic reading of cases about wives, illegitimate children, and unwed fathers that follows these three logics, revealing how they weave together and why earned belonging provides the strongest support for Ginsburg's original vision of an equalized household.

The Upc Substituted Judgment/Best Interest Standard For Guardian Decisions: A Proposal For Reform, Lawrence A. Frolik, Linda S. Whitton

Law Faculty Publications

The introduction in 1997 of "substituted judgment" as a guiding principle for guardian decisions was a key contribution of the UPC to guardianship reform. The current UPC section 5-314(a) instructs guardians to "consider the expressed desires and personal values of the ward" when making decisions and to "at all times...act in the ward's best interest." This dual mandate for guardian decisions was intended to promote the self-determination interests of incapacitated adults. This article argues that in practice the standard has failed to achieve this goal. It analyzes the shortcomings of UPC Section 5-314(a) and other statutory decision-making standards and offers …

Surrogate Decision-Making Standards For Guardians: Theory And Reality, Linda S. Whitton, Lawrence A. Frolik

Law Faculty Publications

This Article examines the theoretical and practical implications of the substituted judgment and best interest standards for decision making by guardians. After providing an overview of the current decision-making standards in guardianship statutes, the Article synthesizes theoretical debates about what these standards mean and whether they provide an effective paradigm for surrogate decision makers. The authors then use new survey data to offer conclusions about the degree to which the substituted judgment and best interest standards are understood and meaningfully applied by guardians.

Outsourcing Childcare, Meredith Johnson Harbach

Law Faculty Publications

Existing discourse on childcare decisions proceeds as if there were one "right" answer to the question of who should care for children. The law has preferences, too. But the reality is that parents, like businesses, make diverse, strategic decisions about when to keep work in-house, and when to collaborate with outside partners. This Article uses the lens of business outsourcing to gain fresh perspective on childcare decisionmaking, and the law's relationship to it. The outsourcing framework provides three key insights. First, it enables us to better understand the diversity of childcare decisions and the reasons underlying them. Second, the outsourcing …

Polygamy, Publicity, And Locality: The Place Of The Public In Marriage Practice, Allison Anna Tait

Law Faculty Publications

This Article offers a reading of State v. Holm that highlights the Utah court's struggle to define marriage and presents the court's eventual definition of marriage as one that is based on visual indicators.

Preglimony, Shari Motro

Law Faculty Publications

Unmarried lovers who conceive are strangers in the eyes of the law. If the woman terminates the pregnancy, the man owes her nothing. If she takes the pregnancy to term, the man's obligation to support her is limited. The law reflects this lovers-as-strangers presumption by making a man's obligation towards a woman with whom he conceives derivative of his paternity-related obligations; his duty is towards his child, not towards the woman in her own right. Thus, a pregnant woman's lost wages and other personal costs are her private problem, and if there is no child at the end of the …

From Coverture To Contract: Engendering Insurance On Lives, Mary L. Heen

Law Faculty Publications

In the 1840s, state legislatures began modifying the law of marital status to ease the economic distress of widows and children at the family breadwinner's death. Insurance-related exceptions to the common law doctrine of "marital unity" under coverture permitted married women to enter into insurance contracts and protected life insurance proceeds from their husbands' creditors. These early insurance-related statutory exceptions to coverture introduced an important theoretical question that persisted for the rest of the nineteenth century-and into the next-as broader legal and social reforms took hold. How could equality of contract for married women be reconciled with the traditional dependencies …

Where Are The Records? Handling Lost/Destroyed Records In Child Welfare Tort Litigation, Dale Margolin Cecka

Law Faculty Publications

As child welfare professionals, we have all encountered the “missing” record, most often during day-to-day advocacy. For those who practice child welfare tort litigation, incomplete discovery is also common, even though case records can be critical in determining negligence or malfeasance. In other forms of civil litigation, judges are asked to hold parties accountable for losing or destroying records, and juries are allowed to draw negative inferences about the missing evidence. In contrast, an investigation of child welfare torts reveals that when a defending agency fails to produce credible records, the issue is simply not litigated or does not affect …

Empowerment, Innovation, And Service: Law School Programs Provide Access To Justice And Instill A Commitment To Serve, Dale Margolin Cecka

Law Faculty Publications

Law schools around the country seek to fill the legal needs of their communities in ways that are both innovative and mutually beneficial to clients and students. This article describes five pro bono and clinical programs, at the University of Richmond School of Law. The Earle Mack School of Law at Drexel University. Catholic University Columbus School of Law, the Thomas Jefferson School of Law, and Vermont Law School, where law students, under the supervision of law professors or community professionals, provide assistance or legal representation to underserved and often marginalized populations needing help with family law problems, including parents …

The Price Of Pleasure, Shari Motro

Law Faculty Publications

This Article argues that unless sexual partners explicitly agree otherwise, pregnancy should create a unique type of legal relationship. This relational default would come with certain obligations: in limited circumstances, a woman would be expected to communicate the fact of a pregnancy to the man with whom she conceived, and a man would be required to help support her during pregnancy and recovery. Child support obligations should kick in only once a child is born; until and unless this happens, a man's economic responsibility should be conceptualized as a responsibility towards the woman herself.

The goal of this Article is …

Is The Family A Federal Question?, Meredith Johnson Harbach

Law Faculty Publications

There has long been conflict over the relationship between the states and the federal system vis-i-vis the family. The traditional account of domestic relations describes family law as the exclusive domain of the states, and federal courts have credited this account in the "domestic relations exception." Although scholars have analyzed and critiqued the exception's applicability to diversity jurisdiction, the intersection of federal question jurisdiction and this exception remains largely unexplored. This Article describes and critiques, on both instrumental and deeper normative terms, federal courts' willingness to expand the "domestic relations exception" to include federal question cases. The Article proceeds in …

Marriage And Divorce: Legal Foundations, Azizah Y. Al-Hibri

Law Faculty Publications

A six-volume work, this set constitutes a major revision and massive expansion of the 1995 Oxford Encyclopedia of the Modern Islamic World. In addition to covering Islamic societies in the modern world from the eighteenth century to the present, as the earlier four-volume set did, it will add a depth of historical background going back to the pre- Islamic era. The new reference also covers the full geographical extent of Islam by focusing not only on the countries in which Islam is dominant, but also on regions in which Muslims live as minorities, such as Europe and the Americas.

Clients Aging Out Of Care, Dale Margolin Cecka

Law Faculty Publications

Youth aging out of foster care face an arduous road. Lawyers for foster youth must help to assure their safe and stable exit from the system and a comfortable transition into the next stage of their lives. Lawyers cannot rely on social service agencies and caseworkers to handle the myriad of issues that youth encounter, and many require court orders or other legal measures.

Opening Remarks To “No Place To Live: The Housing Crisis Facing Youth Aging-Out Of Foster Care,” A National Symposium Hosted By The Child Advocacy Clinic Of St. John’S School Of Law, March 28, 2008, Dale Margolin Cecka

Law Faculty Publications

Across the country, everyone is talking about a “housing crisis.” For youth who age out of foster care, just finding a place to sleep each night is a struggle. We know that nationally, 54% of recently aged-out youth are homeless or unstably housed. In addition, these youth face higher rates of unemployment, under-education, teen pregnancy, and incarceration. We are gathered here today to address the unique and dire housing needs of youth aging of foster care. I would usually begin a Symposium like this with a story of a young person’s plight, an illustration of the injustices this population faces. …

Seeking Shelter In Tough Times: Securing Housing For Youth Who Age Out Of Foster Care, Dale Margolin Cecka

Law Faculty Publications

Across the country, everyone is talking about a "housing crisis." For youth who age out of foster care, just finding a place to sleep each night is always a struggle. We know that nationally, 54% of recently aged-out youth are homeless or unstably housed. In addition, these youth face higher rates of unemployment, undereducation, teen pregnancy, and incarceration. In the last few years, lawmakers, advocates, and child welfare practitioners have finally started paying attention to adolescents discharged from foster care. This article focuses on laws and programs that target housing issues facing youth aging out of foster care. It also …

Labor, Luck, And Love: Reconsidering The Sanctity Of Separate Property, Shari Motro

Law Faculty Publications

This Article proposes a new alternative to the labor-centered marital property rule. Instead of focusing on how property was acquired, marital property law should look to spouses' overall financial resources and require them to share these resources to the extent they shape their identities during the marriage. Financial capability affects some of the most fundamental aspects of our lives-our health, our education, our work, the neighborhood in which we live. Marriages in which these aspects of spouses' identities are kept separate strike us as jarring. Imagine a husband and wife who sleep in the same bed, under the same roof, …

What You Should Know Before You Leave The System, Dale Margolin Cecka

Law Faculty Publications

Discharging young people from foster care with no place to go, no source of income, and no health insurance is not just wrong-it's illegal. Although every state's laws are different, all states have an obligation to make sure you are able to live on your own before forcing you to leave the foster care system. In New York, you can remain in foster care until you are 21. However, once you turn 18, you must agree to remain in care by either signing an agreement or telling the judge in court that you want to stay in care. You cannot …

No Chance To Prove Themselves: The Rights Of Mentally Disabled Parents Under The Americans With Disabilities Act And State Law, Dale Margolin Cecka

Law Faculty Publications

This article explores the relationship between state child welfare laws that terminate parental rights and the federal Americans with Disabilities Act (ADA). The article begins by analyzing the application of the ADA to termination of parental rights proceedings against parents with mental disabilities. It then surveys state child welfare laws, focusing on the treatment of parents under New York State law. The article concludes by advocating for a change to reflect the principles of the ADA in state laws and in practice.

Marriage And Some Troubling Issues With No-Fault Divorce, Peter N. Swisher

Law Faculty Publications

The purpose of this Article is to challenge these erroneous assumptions, that fault is "no longer an issue" in modem American divorce law, and that a spouse on divorce should not be compensated for his or her non-economic contributions to the marriage and to the well-being of the family.

Still Part Of The Clan: Representing Elders In The Family Law Practice, Sy Moskowitz

Law Faculty Publications

No abstract provided.

An Islamic Perspective On Domestic Violence, Azizah Y. Al-Hibri

Law Faculty Publications

In this Article, the author addresses the traditional Islamic view of domestic violence. To understand the Islamic perspective on domestic violence, the author will explore the Islamic view of gender relations, especially within the family. This view is rooted in the Qur'an, which is examined in this Article.

Separation, Custody, And Estate Planning Issues Relating To Companion Animals, Rebecca J. Huss

Law Faculty Publications

This article first discusses the domestication of companion animals, including the impact of anthropomorphism and neoteny on how animals are viewed in U.S. society. Second, it reviews the current legal status of animals. Third, it considers the voluntary and involuntary separation of companion animals from their human families. Fourth, it examines custody issues in the context of the placement of animals after the divorce of the human family members. Finally, it analyzes estate planning issues relating to companion animals.

Incentives For Hiring Welfare-To-Work Participants, Mary L. Heen

Law Faculty Publications

The Job Creation and Worker Assistance Act of 2002, signed into law by President Bush on March 9th, extends the Work Opportunity Tax Credit (WOTC) and the Welfare-to-Work Tax Credit (WtW) for two more years. The credits provide employers with tax incentives to hire former long-term welfare recipients and certain other economically disadvantaged workers, a goal that comports with the welfare-to-work focus of welfare reform legislation adopted by Congress in 1996. This article describes these employer tax credits, explains how they have evolved from prior versions of similar targeted tax credits, and considers their operation as tax-delivered subsidies.

Adult Children And Indigent Parents: Intergenerational Responsibilities In International Perspective, Seymour Moskowitz

Law Faculty Publications

No abstract provided.

Denied Visitation, Its Impact On Children's Psychological Adjustment, And A Nationwide Review Of State Code, Adrienne Volenik

Law Faculty Publications

Denied visitation occurs when one parent prevents the other parent from court mandated visitation allowances with the child. This complex issue affects many families of divorce, but unfortunately is an understudied topic. Additionally, the literature that is available on denied visitation suffers from methodological challenges that are inherent to the complexity of the subject. Denied visitation is not a homogeneous event, but one that is conceptualized into two major categories: appropriate (i.e., concerning safety of the child) and inappropriate (i.e., involving interparent hostility). These two types of denied visitation are further divided into subcategories based on a review of the …

The Ali Principles: A Farewell To Fault--But What Remedy For The Egregious Marital Misconduct Of An Abusive Spouse, Peter N. Swisher

Law Faculty Publications

The fundamental premise of this commentary is that the ALl has erred in not including appropriate nonfinancial fault-based factors in the Principles for three major reasons: 1) other no-fault laws, including no-fault automobile insurance law, no-fault workers compensation law, and strict liability in tort law, have all incorporated a number of fault-based exceptions to their general no-fault framework for serious or egregious conduct, and American divorce law should likewise have a similar fault-based exception for serious or egregious marital misconduct; 2) a substantial number of states continue to recognize and utilize a number of fault-based statutory factors in divorce for …

Reflecting Reality: Adding Elder Abuse And Neglect To Legal Education, Seymour H. Moskowitz

Law Faculty Publications

No abstract provided.

Child Care, Welfare Reform, And Taxes, Mary L. Heen

Law Faculty Publications

The welfare reform legislation passed by Congress last year makes significant changes in the social welfare system, followed this year by contrasting shifts in the. federal tax system's treatment of families with children. This article discusses how the. welfare and tax law changes affect overall child care policy and funding levels for work-related child care, and evaluates the newly enacted child tax credit and the existing child care tax credit in light of their combined effects on low income working families.