Law Commons^™

Biology, Genetics, Nurture, And The Law: The Expansion Of The Legal Definition Of Family To Include Three Or More Legal Parents, Myrisha S. Lewis

Faculty Publications

No abstract provided.

Collaboration And Intention: Making The Collaborative Family Law Process Safe(R), Margaret Drew

Faculty Publications

Since the beginning of the collaborative family law movement, commentators from various professions have discouraged collaborative lawyers from accepting cases involving intimate partner abuse. The collaborative process, with its face to face meetings and emphasis on transparency and good faith, carries with it many risks for the partner who has been abused and who is attempting to end the relationship with the abusive partner. There may be occasions, however, when the at-risk partner believes that the collaborative process will enhance her safety or at least provide her with less exposure to future harm than other resolution processes. This article will …

Compassion Fatigue: Caveat Caregiver?, Jennifer Baum

Faculty Publications

(Excerpt)

Most of us are familiar with the stereotype of the burned out lawyer who drags herself to work in the morning, makes cynical comments throughout the day, no longer provides her best service to her clients, and goes home bored and uninspired. You may wonder why someone so uncaring ever became a child advocate in the first place, or how she lost her spark. And you know this could never happen to you. Right?

Wrong, according to a panel of experts convened by the ABA Section of Litigation’s Children’s Rights Litigation Committee in a teleconference examining the phenomenon recently …

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 …

Book Review Of The Child Cases: How America's Religious Exemption Laws Harm Children, James G. Dwyer

Faculty Publications

No abstract provided.

Social Media: Children’S Lawyer’S Friend And Foe, Jennifer Baum, Sarah N. Fox

Faculty Publications

(Excerpt)

Social media is taking over the globe. The Pew Research Internet Project states that in the United States, 95 percent of 12- to 17-year-old children are online. Teenagers are also sharing more and more information online: 91 percent of teenagers post a photo of themselves, 92 percent post their real name, and 71 percent post the city or town where they live. “Teens Fact Sheet,” Pew Res. Internet Project (Sept. 2012). This information, in the wrong hands, can be harmful to a child. The Children’s Online Privacy Protection Rule, designed to safeguard children’s information and access online, is a …

Paved With Good Intentions: Unintended Consequences Of Federal Proposals To Integrate Child Support And Parenting Time, Lisa V. Martin, Stacy Brustin

Faculty Publications

Promoting the relationships between noncustodial parents and their children has become a federal policy priority. Recent policy proposals aim to achieve this by integrating adjudications of custody and parenting time within proceedings to establish child support. These proposals share several laudable goals, including encouraging the involvement of fathers in their children’s lives, increasing compliance with child support orders, and facilitating unmarried parents’ access to court processes for resolving custody and visitation disputes. But the simplistic solutions employed by the proposals, some of which would mandate that custody and visitation be adjudicated in all child support proceedings, pose serious risks to …

Same-Sex Cynicism And The Self-Defeating Pursuit Of Social Acceptance Through Litigation, James G. Dwyer

Faculty Publications

No abstract provided.

The Political Economy And Legal Regulation Of Transnational Commercial Surrogate, Cyra Akila Choudhury

Faculty Publications

This Article breaks new ground by closely reading the emerging ethnographic accounts of surrogacy to establish that current feminist frames are incomplete. It incorporates the political economy of surrogacy, the economic relationship of surrogacy to the Indian state, and the political economy of surrogates’ families, which have all been missing from the current dialogue. The Article concludes that the benefits of surrogate labor outweigh its disadvantages and develops a new framework — of surrogacy as labor — that will, for the first time, protect the surrogate as worker.Surrogacy, as a fairly open regulatory field, provides feminists with a unique opportunity …

The United States As A Refuge State For Child Abductors: Why The United States' Fails To Meet Its Own Expectations Relative To The Hague Convention, Andrew Zashin

Faculty Publications

This paper asserts that the only way true progress can be made regarding this problem is for the United States to acknowledge that this serious problem actually exists. One has to look beyond the feel-good statistics and congratulatory press releases to see that the existing system, including the application of the Hague Convention on Child Abduction, fails LBPs. Until the nature and scope of the problem is identified and examined, the United States will continue to be a refuge state for child abductors.

In Re Sanders And The Resurrection Of Stanley V. Illinois, Josh Gupta-Kagan

Faculty Publications

In 1972, the Supreme Court in Stanley v. Illinois declared that parents are entitled to a hearing on their fitness before the state places their children in foster care. Somewhat oddly, Stanley went on to be cited as a leading case regarding the rights of unwed fathers to object to private adoptions favored by mothers -- an issue not present in Stanley. Odder still, most states routinely violated Stanley in child welfare cases -- the context in which the Stanley rule arose. Most states apply the "one parent doctrine," which holds that finding one parent unfit justifies taking the child …

Reconsidering Dual Consent, Lisa V. Martin

Faculty Publications

Before a child may travel internationally, many countries require proof that both of the child’s parents consent. These “dual consent” requirements are aimed at preventing international child abduction, and many countries have adopted them as part of the coordinated effort to implement the 1980 Hague Convention on the Civil Aspects of International Child Abduction. In recent years, international air carriers have been urged to impose similar requirements for all children traveling on international flights. Although well-intentioned, dual consent requirements pose significant harms, especially to children of single parents and parents subjected to domestic violence. This article explores the unintended consequences …

The Real Impact Of Adoptive Couple V. Baby Girl: The Existing Indian Family Doctrine Is Not Affirmed But The Future Of Icwa's Placement Preferences Is Jeopardized, Marcia A. Yablon-Zug

Faculty Publications

On July 3, 2013, Dusten Brown and his wife Robin, and Brown’s parents, Tommy and Alice Brown, both filed actions to adopt "Baby Veronica", the four-year-old girl at the heart of the U.S. Supreme Court’s recent decision in Adoptive Couple v. Baby Girl. The Browns’ adoption petitions were based on the assumption that the Baby Girl Court did not affirm "The Existing Indian Family Doctrine," a doctrine which limits application of The Indian Child Welfare Act (ICWA) solely to children previously in the care or custody of an Indian relative. The Browns believed ICWA’s placement preferences, which give preference to …

Ready, Set, Go To Federal Court: The Hague Child Abduction Treaty, Demystified, Jennifer Baum

Faculty Publications

(Excerpt)

The Hague Convention on the Civil Aspects of International Child Abduction may sound intimidating, but is easily demystified. Since 1980, signatory nations have agreed that parents should not be permitted to forum shop among countries when it comes to custody of their children. The Hague Convention requires the prompt repatriation of children under 16 years of age who were wrongfully removed by a parent from the country in which they had been living, except in certain very limited circumstances (some of which are discussed in more detail, below). The Convention does not address or permit the alteration of custody …

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

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 …

Jailing Black Babies, James G. Dwyer

Faculty Publications

No abstract provided.

Dislocation And Relocation: Women In The Federal Prison System And Repurposing Fci Danbury For Men, Anna Arons, Katherine Culver, Emma Kaufman, Jennifer Yun, Hope Metcalf, Megan Quattlebaum, Judith Resnik

Faculty Publications

(Excerpt)

This Report tracks the lack of progress in keeping federal prison space in the Northeast available for women and the impact of the absence of bed-spaces for women on the implementation of federal policies committed to reducing over-incarceration. The problems began in the summer of 2013, when the federal Bureau of Prisons (BOP) announced plans to transform its only prison for women in the Northeast—FCI Danbury—into a facility for men. The BOP explained that this self-described “mission change” was a response to the need to provide more low-security beds for male prisoners.

Where The Judiciary Prosecutes In Front Of Itself: Missouri's Unconstitutional Juvenile Court Structure, Josh Gupta-Kagan

Faculty Publications

This article is the first scholarly examination of Missouri’s unusual juvenile court structure: Missouri law charges a “juvenile officer” with exclusive authority to determine which child welfare or delinquency cases to file and what to charge in each case. The juvenile officer is hired and supervised by juvenile court judges, and the juvenile officer litigates cases in front of those same judges. This structure differs from the typical procedures in juvenile courts around the United States, which have generally adapted their juvenile courts to reflect the norm of executive branch agencies or attorneys (not court staff) filing cases to intervene …

Inter-Country Adoption And The Special Rights Fallacy, James G. Dwyer

Faculty Publications

No abstract provided.

Adopted Couple V. Baby Girl: Erasing The Last Vestigates Of Human Property, James G. Dwyer

Faculty Publications

No abstract provided.

Equality Between Adults And Children: Its Meaning, Implications, And Opposition, James G. Dwyer

Faculty Publications

Family law scholars have devoted much attention to equality among groups of adults and some attention to equality between groups of children. There has been little exploration, however, of the notion of equality between adults and children. In this Article, I first explain what it means at a basic, theoretical level to speak of such equality. I then identify some practical implications. Finally, I consider why there is great resistance to many practical implications of children's equality, even among those who would consider themselves advocates for child welfare.

Sex And Statutory Uniformity: Harmonizing The Legal Treatment Of Semen, Myrisha S. Lewis

Faculty Publications

No abstract provided.

Misused Concepts And Misguided Questions: Fundamental Confusions In Family Law Debates, James G. Dwyer

Faculty Publications

No abstract provided.

Family Lawyering: Past, Present, And Future, John M. Lande, Forrest S. Mosten

Faculty Publications

In the past fifty years, divorce law has turned upside down. Marriage is not assumed to be a lifelong commitment. Fault generally is not legally relevant. Gender equality is a fundamental principle. Today, courts regularly handle a much broader range of issues, including disputes about issues such as domestic violence; parental relocation; religious upbringing; payment for children's college education; grandparent and stepparent visitation rights; rights of same-sex and unmarried couples; alienation of parents and children; and the role of e-mail, the Internet, and cybersex in divorce.

Family law practice inevitably evolved in response to these social and legal changes. This …

The Age Of Marital Capacity: Reconsidering Civil Recognition Of Adolescent Marriage, Vivian E. Hamilton

Faculty Publications

Age at marriage has for decades been the strongest and most unequivocal predictor of marital failure. The likelihood of divorce nears eighty percent for those who marry in mid-adolescence, then drops steadily. Delaying marriage until the mid-twenties reduces one’s likelihood of divorce to thirty percent. Women who marry at age twenty-one or younger, moreover – and one in ten U.S. women do – experience worse mental and physical health, attain less education, and earn lower wages than those who marry later. Post-divorce, they and their children tend to endure even greater economic deprivation and instability than do never-married mothers, who …

Beyond Law Enforcement: Camreta V. Greene, Child Protection Investigations, And The Need To Reform The Fourth Amendment Special Needs Doctrine, Josh Gupta-Kagan

Faculty Publications

The Fourth Amendment “special needs” doctrine distinguishes between searches and seizures that serve the “normal need for law enforcement” and those that serve some other “special need,” excusing non-law enforcement searches and seizures from the warrant and probable cause requirements. The Supreme Court has never justified drawing this bright line exclusively around law enforcement searches and seizures but not those that threaten important non-criminal constitutional rights.

Child protection investigations illustrate the problem: Millions of times each year, state child protection authorities search families’ homes, and seize children for interviews about alleged maltreatment. Only a minority of these investigations involve an …

Making Sex The Same: Ending The Unfair Treatment Of Males In Family Law, Myrisha S. Lewis

Faculty Publications

No abstract provided.

Securing Civil Protection Orders For Teens When Laws Ignore Teens, Lisa V. Martin

Faculty Publications

Despite the pervasiveness of violence in teen relationships, civil protection order statutes largely ignore teens. The accessibility of protection orders for teens depends primarily on the scope of their rights to standing and legal capacity to pursue claims for protection. Because states largely fail to detail expressly the circumstances under which teens are accorded standing to seek protection orders and legal capacity to represent their own interests in related court proceedings, the accessibility of protection orders for teens in most states remains in flux.

This article explores legal principles and policy arguments that support the extension of standing and legal …

Intimate Terrorism And Technology: There's An App For That, Justine A. Dunlap

Faculty Publications

Technology enhances the ability of the domestic violence perpetrator. It also holds the promise of assisting domestic violence survivors in their quest for safety. This is true in practical, daily ways and is becoming increasingly true in the legal treatment of these cases. Perpetrators can use technology to stalk and find their victims; survivors can use it to access necessary information to get away from their batterers. Laws are being amended to take into account cyber-enhanced domestic violence techniques. Domestic or intimate terrorists are among the class of criminals targeted for use of GPS monitoring. This article discusses the way …

Collaboration And Coercion: Domestic Violence Meets Collaborative Law, Margaret B. Drew

Faculty Publications

‘Collaboration and Coercion’ addresses the systemic and individual concerns that arise when family members that have experienced abuse enter into the collaborative law process. A form of alternative dispute resolution, collaborative law is a method of resolving disputes without engagement of the legal system. The author addresses the structural and cultural difficulties that survivors of abuse encounter throughout the process as well as the ethical concerns that are raised when collaborative practitioners accept cases where the parties have a history of coercion within the intimate relationship.