Law Commons^™

The Right Family, Noa Ben-Asher, Margot J. Pollans

Elisabeth Haub School of Law Faculty Publications

The family plays a starring role in American law. Families, the law tells us, are special. They merit, among others, tax deductions, testimonial privileges, untaxed inheritance, parental presumptions, and, over the course of the twentieth century, the Supreme Court has expanded individual rights stemming from familial relationships. In this Article, we argue that family matters as much for when it is ignored as for when it is featured. We shed light on the use of the family in the law by contrasting policies in which the family is the key unit of analysis with others in which it is not. …

Tax Talk And Reproductive Technology, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

The tax system both reacts to and helps create attitudes about the value of certain behaviors and choices. This Article makes three principal claims—one empirical, one normative, and one interpretative. The Article demonstrates through data that a representative sample of fertility clinics in the United States does not make information about the tax consequences of compensated human egg transfers—commonly called egg “donation”—publicly available. In 2015, in a case of first impression, the United States Tax Court decided in Perez v. Commissioner that a compensated egg transferor must report as income any amount she receives for her eggs. Although the Tax …

Representing The Child In Child Protective Proceedings: Toward A New Paradigm, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

This article will attempt a new approach, one based on an analysis of the child's interests in a child protective proceeding. As will be discussed in Part 1, most interests are surprisingly overlooked or barely articulated in the representation debate. Part 2 will summarize the statutes and case law governing the role of the child's counsel in the child protective litigation continuum. The frequently lengthy process may range from initiation by a child protective agency to the achievement of family reunification or other permanency goal. For children, the continuum of sequential proceeding may span years or decades. Finally, Part 3 …

In The Shadow Of A Myth: Bargaining For Same-Sex Divorce, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

This Article explores a relatively new phenomenon in family law: same-sex divorce. The Article's central claim is that parties to the first wave of same-sex divorces are not effectively bargaining against the backdrop of legal dissolution rules that would govern in the absence of an agreement. In other words, to use Robert Mnookin and Lewis Kornhauser's terminology, they are not "bargaining in the shadow of the law." Instead, the Article argues, many same-sex couples today bargain in the shadow of a myth that same-sex couples are egalitarian—that there are no vulnerable parties or power differentials in same-sex divorce.

The Article …

Conferring Dignity: The Metamorphosis Of The Legal Homosexual, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

The legal homosexual has undergone a dramatic transformation over the past three decades, culminating in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA). In 1986, the homosexual was a sexual outlaw beyond the protection of the Constitution. By 2013, the homosexual had become part of a married couple that is “deemed by the State worthy of dignity.” This Article tells the story of this metamorphosis in four phases. In the first, the “Homosexual Sodomite Phase,” the United States Supreme Court famously declared in Bowers v. Hardwick that there was no right to …

Unsex Mothering: Toward A New Culture Of Parenting, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

In this Article, I observe that “mothering” and “fathering” have been inappropriately tethered to biosex. “Mothering” should be unsexed as the primary parental relationship. “Fathering,” correspondingly, should be unsexed from its breadwinner status. In an ideal world, people now considered “mothers” and “fathers” would be “parents” first, a category that includes all forms of caretaking. One could even imagine an androgynous world in which parenting has no sexed subcategories, whether attached to biosex or not. I doubt our world is anywhere near that; I also wonder whether universal androgyny is a utopian ideal worth pursuing. I instead focus in this …

The Lawmaking Family, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

Increasingly there are conflicts over families trying to "opt out" of various legal structures, especially public school education. Examples of opting-out conflicts include a father seeking to exempt his son from health education classes; a mother seeking to exempt her daughter from mandatory education about the perils of female sexuality; and a vegetarian student wishing to opt out of in-class frog dissection. The Article shows that, perhaps paradoxically, the right to direct the upbringing of children was more robust before it was constitutionalized by the Supreme Court in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). In …

Nature And Nurture: Revisiting The Infant Adoption Process, Barbara L. Atwell

Elisabeth Haub School of Law Faculty Publications

Adopted children constitute approximately two percent of the United States' childhood population, but are disproportionately represented in mental health settings, where they make up an estimated four to fifteen percent of the population. Science suggests that for those adopted at birth, this discrepancy may be due in part to their abrupt removal from the biological parents. We are now beginning to understand the importance of the bonding that takes place in utero and the infant's awareness at birth. This article suggests three changes to the infant adoption process to align it with scientific knowledge. First, all adults involved in the …

The Family Court—A Short History, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

The New York State Family Court was established in 1962. The framer's intent, which was largely achieved, was the formation of an omnibus tribunal capable of adjudicating every justiciable family related dispute. Accordingly, Family Court incorporated the former State Children's Courts, the domestic violence parts of the local criminal courts, and the paternity parts of the former Court of Special Sessions. In addition, Family Court was granted adoption and abandonment jurisdiction, concurrent child custody jurisdiction, and concurrent post-divorce modification and enforcement jurisdiction. This paper will outline the pre-Family Court history in synopsis form, and briefly describe the Court's post-1962 developments.

From Nondiscrimination To Civil Marriage, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Who Says "I Do"?, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

This Book Review offers an analogy between two forms of resistance to legal discrimination by marginalized minorities: singing the national anthem in Spanish on the streets of Los Angeles in the spring of 2006 by undocumented immigrants, and possible future public marriage ceremonies by LGBT people and other marriage outlaws. Based on the conceptual grounds laid by Judith Butler and Gayatri Spivak, and earlier by Hannah Arendt, the Review uses an analogy to the public singing of the anthem in Spanish in order to argue that the performance of public marriage ceremonies by LGBT people and other marriage outlaws may …

A Suggested Solution To The Problem Of Intestate Succession In Nontraditional Family Arrangements: Taking The "Adoption" (And The Inequity) Out Of The Doctrine Of "Equitable Adoption", Irene D. Johnson

Elisabeth Haub School of Law Faculty Publications

Part I of this Article examines the doctrine of equitable adoption, focusing on its deficiencies in addressing some of the issues of the modern family. Part II considers the specific issue of intestate succession, the way that the equitable adoption doctrine falls short in providing a consistent rational result of heirship in the modern family, and the reasons for expanding inheritance rights to “family members” claiming an intestate share despite the fact that they were not born into or legally adopted into the family arrangement. Part III proposes answers to these difficult problems, suggesting a statutory provision defining “child,” for …

International Human Rights Law, Co-Parent Adoption, And The Recognition Of Gay And Lesbian Families, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

Children would benefit substantially if governments legally recognized same sex marriages and parenting. This article analyzes international human rights law, co-parent adoption, and the legal recognition of gay and lesbian families. It addresses civil marriage and adoption challenges for same sex families and assesses European Court of Human Rights jurisprudence relating to same-sex adoption. This Article considers the international community's efforts to implement the best interest of the child standard concluding that recognition of same sex families is in the best interest of the child and should be facilitated in a timely manner by jurisdictions at all levels.

The Curing Law: On The Evolution Of Baby-Making Markets, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

The article offers a new paradigm to examine the legal regulation of reproductive technologies. The main argument is that a cure paradigm has shaped historical and current legal baby-making markets. Namely, reproductive technologies that have historically been understood as a cure for infertility (such as sperm donations and egg donations) have developed into market commodities, while others (such as full surrogacy) which have not been understood as a cure, have not. The article examines and critiques the cure paradigm. Specifically, the article challenges one current manifestation of the cure paradigm: the legal distinction between 'full surrogacy" (where a surrogate is …

Social Factoring The Numbers With Assisted Reproduction, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In late winter 2009, the airwaves came alive with stories about Nadya Suleman, the California mother who gave birth to octuplets conceived via assisted reproductive technology. Nadya Suleman and her octuplets are the vehicles through which Americans express their anxiety about race, class and gender. Expressions of concern for the health of children, the mother’s well-being, the future of reproductive medicine or the financial drain on taxpayers barely conceal deep impulses towards racism, sexism and classism. It is true that the public has had a longstanding fascination with multiple births and with large families. This is evidenced by a long …

A Law Guardian By The Same Name: A Response To Professor Guggenheim's Matrimonial Commission Critique, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

I commence this article with a discussion of the statutory provisions governing the appointment and responsibilities of attorneys who represent children in New York. Part II briefly outlines the chronological implementation from initial enactment through the Matrimonial Commission Report, a period spanning forty-five years. Parts III and IV explore the specific nature of child custody representation and the relationship between the attorney and the child client during the course of a frequently lengthy proceeding. Last, the Commission's conclusions and recommendations are critiqued in Parts V and VI.

The Child Client: Representing Children In Child Protective Proceedings, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

Part I of this article outlines the historical context and addresses the child's right to legal representation. Part II discusses the child's legal status by defining the specific legal interests, her procedural rights as a party to the litigation, the right to choose counsel, and the child's right to be involved as a participant. The penultimate Part analyzes the role of the child's counsel, including an outline of the relevant statutes, the diametrically opposed positions of state legislatures and the organized bar, and the hopelessly conflicting contemporary case law. The final Part addresses the fundamental deficiencies of the “best interests” …

The Profits And Penalties Of Kinship: Conflicting Meanings Of Family In Estate Tax Law, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

This article critically examines the conflicting estate tax definitions of family in I.R.C. Sections 2036, 2032A and 6166. The sections use terms such as family and related in ways that conflict with each other and with lay understanding of the terms. From an historical perspective, the multiple estate tax definitions reflect the Code sections' distinct purposes. From a theoretical perspective, they acknowledge the personal and economic interconnectedness within families as well as diversity in the structure of family arrangements. The existing definitions of family fall short, however, in that they fail to recognize the full range of associational arrangements that …

One Flesh, Two Taxpayers: A New Approach To Marriage And Wealth Transfer Taxation, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

This article critically examines the estate and gift tax rules currently applicable to martial wealth transfers and proposes a new system in which all transfers between spouses will be subject to taxation. The article begins by tracing the historic development of what the author calls the "one flesh, one taxpayer" approach to wealth transfer taxation. Over a period of more than thirty years, the marital deduction evolved from a tool for achieving geographic uniformity into an institution based on an unreal and idealized story of proper gender roles and the economic significance of marriage. After describing the wealth transfer tax …

Prosecutorial Use Of Expert Testimony In Domestic Violence Cases: From Recantation To Refusal To Testify, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This article discusses the use of expert testimony in prosecuting those charged with domestic abuse. Part I provides a background on the need and nature of expert testimony in domestic violence cases and the requirements for the admission of such expert testimony. It traces the development of the role of expert testimony in domestic violence cases from its initial exclusive use as a defense tool to support self-defense claims to its present use by prosecutors to explain a complainant's recantation or other puzzling behavior. Part II discusses the appellate cases that have addressed the admissibility and scope of expert testimony …

Second Hand Smoke And Child Custody Determinations--A Relevant Factor Or A Smoke Screen?, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

The thesis of this brief article is simply that the tobacco habits of a parent are relevant and worthy of consideration when a child is asthmatic, or suffers from some other definable medical condition which would be exacerbated by passive smoke. However, when the child is healthy and there exists no definitive short-term medical risk, the issue should be irrelevant. In other words, the court should consider those factors, and only those factors, which are of significant importance to the child, such as stability, caretaker skills, home environment and the child's wishes. Concededly, second-hand smoke is harmful even to a …

Whatever Happened To The "Best Interests" Analysis In New York Relocation Cases? A Response, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

This response to Justice Sondra Miller’s article will first discuss the competing interests and expectations of the parties to a relocation dispute, and briefly outline the national view or views. In fact, there is no national standard, or anything approaching a consensus among the states. The New York experience under the exceptional circumstances standard will then be analyzed and appraised. My conclusion is that the standard should be maintained, although I believe that the Court of Appeals should revisit the issue to clarify the factors and criteria relevant to a determination.

The Failure To Notify Putative Fathers Of Adoption Proceedings: Balancing The Adoption Equation, Alexandra Dapolito Dunn

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

The Meaningful Representation Of Children: An Analysis Of The State Bar Association Law Guardian Legislative Proposal, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

This article will outline the background and history of the law guardian system, summarize the Task Force proposal and analyze the proposal's effects. The intent is to present a synopsis of the issues addressed by the proposal, which has been forwarded to the Legislature for consideration during the 1992 session.

"A Lost Generation": The Battle For Private Enforcement Of The Adoption Assistance And Child Welfare Act Of 1980, Barbara L. Atwell

Elisabeth Haub School of Law Faculty Publications

This article suggests that the scope of enforceable section 1983 rights is broader than most courts have recognized. The Act creates comprehensive rights to 1) preplacement preventive services, 2) proper care while children are in state custody, and 3) permanency planning services. Courts must be more willing to recognize these rights and to take a more creative role in structuring injunctive relief when these rights have been violated. Part I is an overview of the Act. Part II analyzes the appropriateness of section 1983 claims under the Act. Finally, Part III analyzes the proper scope of section 1983 claims. The …

The Family Court: An Historical Survey, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

The New York Family Court this year celebrates its twenty-fifth anniversary. Hailed as an "experimental" tribunal, designed to resolve society's most intractable problems, including family dissolution, delinquency and child neglect, the court has been perceived as a radical development which altered the then existing legal rules governing family affairs. The Family Court Act indeed incorporates several creative provisions. But the court's foundations were built upon solid jurisprudential underpinnings, principles which had evolved over the course of the preceding century. Establishment of the court was neither radical nor experimental; in reality, Family Court represents the latest increment in the development of …

Unsafe Havens: The Case For Constitutional Protection Of Foster Children From Abuse And Neglect, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

The six sections of this Article present the case for direct federal court involvement in aiding foster children who are at risk of abuse and neglect while in foster care. Section I discusses the extent of abuse and neglect in foster care as well as the structural causes of this maltreatment. It also explains the inevitable failure of the political branches of government to confront the problem. Section II describes the constitutional right to safety and surveys the judicial treatment of that right, including the lack of development of the right for children in foster care. Section III discusses differences …

Surrogacy And Adoption: A Case Of Incompatibility, Barbara L. Atwell

Elisabeth Haub School of Law Faculty Publications

This Article explores the public policy doctrine relating to contracts generally and examines specific public policies set forth in state adoption statutes. The Article concludes that surrogate parenting agreements are 1) incompatible with consent provisions of state adoption statutes, 2) inconsistent with state laws prohibiting baby-selling, and 3) inconsistent with state adoption provisions that provide for a thorough investigation of the adoptive parents in order to ensure that the adoption serves the child's best interests. Accordingly, this Article suggests that as state legislatures debate the best means of addressing the issue of surrogate parenting, they should recognize that surrogate parenting …

Court-Ordered Foster Family Care Reform: A Case Study, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

The authors examine the implications of G. L. v. Zumwalt, a case that resulted in a far-reaching consent decree that mandates specific reforms in policy and practice to be implemented by a public social welfare agency in its delivery of services to foster children and their families.

The Representation Of Children: A Summary And Analysis Of The Bar Association Law Guardian Study, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

The law guardian system constitutes a unique opportunity to protect the interests and rights of New York's children. Inaugurated in 1962 and expanded greatly in the past twenty years, the system's goals are laudatory. However, a lack of structure and responsibility has seriously compromised the effectiveness of counsel. Representation is frequently characterized by perfunctory preparation and a waiver of substantive and procedural rights. Moreover, the system is needlessly bifurcated and incapable of providing the education, experience and assistance required for effective counsel. The Bar Association study provides a blueprint for improvement. Legislative restructuring to establish an independent board and office …