Law Commons^™

Murder, Suicide, And The Fight Over An Inheritance, Joanna L. Grossman

Hofstra Law Faculty Scholarship

The seven-year marriage between Brandy and Joshua Matthews ended in tragedy. He shot and killed her before turning the gun on himself. There were no criminal charges arising out of this tragedy since the murderer died alongside the victim. But there was a civil fight over inheritance, raising the question whether Brandy’s family should inherit from Joshua’s estate. In a unanimous opinion, the Alabama Supreme Court said no -

Traditional Surrogacy In Tennessee: Strange Statute Begets Strange Judicial Ruling, Joanna L. Grossman

Hofstra Law Faculty Scholarship

According to a recent article in the New York Times by Tamar Lewin, the United States has become – or is in the process of becoming – a mecca for foreign couples seeking the services of a surrogate to gestate a child for them. Theories differ as to the draw, but the lack of national policy or strict regulation is among the most likely suspects.

The End Of The Road: The Late Anna Nicole Smith’S Quest To Inherit Is Over, Joanna L. Grossman

Hofstra Law Faculty Scholarship

Twenty years. Five times the length of the human relationship. Almost twenty times the length of the marriage. That’s the duration of the litigation about whether Anna Nicole Smith should share in the estate of her husband J. Howard Marshall II. The parties are long dead—J. Howard’s death at age 90 in 1995 gave rise to the estate and litigation over it; Anna Nicole died of a drug overdose at 39 in 2007; and J. Howard’s son (and Anna Nicole’s nemesis), Pierce Marshall, died at age 67 in 2006. Yet the litigation waged seven years after all the parties were …

Hard Labor: New Pregnancy Discrimination Guidance From The Eeoc, Joanna L. Grossman

Hofstra Law Faculty Scholarship

Pregnancy discrimination in the workplace is an intractable problem, one that has resulted in a startling number of claims each year to the Equal Employment Opportunity Commission (EEOC)—rising at a faster rate than women are joining the workforce—and increased media attention. But it has also led to extensive litigation that raises, in a variety of contexts, the question of what constitutes illegal pregnancy discrimination under federal law.

In light of these developments, the EEOC has just issued new Enforcement Guidance on pregnancy discrimination—its first in several decades—to explain its interpretation of applicable statutes. In this column, I’ll explain key …

“Best Interests Of The Child”, Andrew Schepard

Hofstra Law Faculty Scholarship

Parents are essential to raising children. They love them, make major decisions for them, provide a roof over their heads. They offer emotional, educational, and economic support. In “intact” families, parents make decisions for their children jointly. There is no issue about where a child lives because parents live together with the child in the same place.

The Internationalization Of American Family Law, Barbara Stark

Hofstra Law Faculty Scholarship

Even fifty years ago, the United States was a superpower and Americans traveled for pleasure and worked abroad. Then, like now, the United States was a magnet for immigrants seeking freedom, or asylum, or opportunity. Then, like now, human relationships crossed geographical and political boundaries, challenging the limits of family law.

But globalization and the vast migrations of capital and labor that have accompanied it in recent decades have transformed family law in once unimaginable ways. Families have been torn apart and new families have been created. Borders have become more porous, allowing adoptees and mail order brides to join …

Hofstra’S Family Law With Skills Course: Implementing Fler (The Family Law Education Reform Project), Andrew Schepard, J. Herbie Difonzo

Hofstra Law Faculty Scholarship

The Family Law Education Reform Project (FLER ) Final Report documented that the current doctrinally oriented family law curriculum at most law schools does not adequately prepare students for modern family law practice. FLER recommended that law school courses move from the study of cases to the study of the legal system’s effect on families, and integrate the study of alternative dispute resolution and interdisciplinary knowledge. In response, Hofstra Law School has made a comprehensive attempt to implement FLER’s curricular recommendations. This article discusses one major innovation – the Family Law with Skills course. Family Law with Skills is the …

When Family Matters, Alafair Burke

Hofstra Law Faculty Scholarship

In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, Dan Markel, Jennifer Collins, and Ethan Leib make an important contribution to the growing literature on criminal law and families by documenting the ways that criminal law advantages and burdens actors based on familial status and identifying the potential harms that are unleashed when criminal law recognizes family status. This Feature seeks to complement that contribution by situating the authors’ observations within the context of two considerations beyond Privilege or Punish’s immediate focus: chronological trends and the practical realities that can shape application of formal law. By distinguishing …

Kramer Vs. Kramer Revisited: A Comment On The Miller Commission Report And The Obligation Of Divorce Lawyers For Parents To Discuss Alternative Dispute Resolution With Their Clients, Andrew Schepard

Hofstra Law Faculty Scholarship

The 2006 Report of New York State's Matrimonial Commission to Chief Judge Kaye (commonly know as the Miller Commission Report) recommended that New York begin to incorporate alternative dispute resolution into the State's fragmented and adversarial divorce system. This Comment argues that it should have more strongly recommended that divorce lawyers be mandated to discuss alternative dispute resolution, particularly mediation, with parent-clients before filing suit.

The Comment begins by describing the advice given to a parent client in the movie Kramer vs. Kramer and argues that that advice constitutes zealous advocacy as famously described by Henry Lord Brougham in Queen …

Foreword To The Special Issue On The Family Law Education Reform Project, Andrew Schepard, Peter Salem

Hofstra Law Faculty Scholarship

The purpose of this issue is to promote a dialogue between the family law academic community and stakeholders in the family law system about how future family lawyers should be educated. Family law practice has undergone dramatic change in the last quarter century, perhaps more than any other area of practice. Virtually everything about it has changed—the role of the family court, the procedure for resolving family disputes, the role of the family lawyer, and the substantive law. It is a vibrant and exciting field, with great influence on the lives of families and children.

The family law curriculum in …

Family Boundaries: Third-Party Rights And Obligations With Respect To Children, Joanna L. Grossman

Hofstra Law Faculty Scholarship

The article introduces the topics discussed within the issue, which defines the law pertaining to the rights and obligations of a third parties with respect to children in the U.S. According to the author, the articles regard whether the law should recognize a continuum of those adults with claims to children in which a third party might deserve more or fewer rights based on his relationship with the child. In the article "Philosophy, Morality and Parental Priority," the fundamental right of parents to raise their children is being dealt with. Another article talks about the rights of same-sex partners in …

Efficiency, Therapeutic Justice, Mediation, And Evaluation: Reflections On A Survey Of Unified Family Courts, Andrew Schepard, James W. Bozzomo

Hofstra Law Faculty Scholarship

In cooperation with the American Bar Association's Coordinating Council on Unified Family Courts, faculty and students of Hofstra University's Center for Children, Families and the Courts conducted a survey of various courts in states we believed had made a commitment to implement a unified family court (UFC) model. Based on a questionnaire developed by the Center and the Coordinating Council, Hofstra Law School students interviewed court administrators, family court judges, or knowledgeable members of the family court bar in eighteen states. A detailed description of the survey, its methodology, and its findings is being published in the Family Court Review.' …

Law Schools And Family Court Reform, Andrew Schepard

Hofstra Law Faculty Scholarship

Family courts are underfunded and overwhelmed, and the quality of representation provided by counsel in family court cases is problematic. This article discusses what role law schools can play in promoting family court reform. It argues that law school involvement in family court is consistent with the law school’s core missions of education, research, and public service. The article illustrates how law schools can he involved in family court reform by discussing interdisciplinary projects of the Center for Children, Families and the Law of Hofstra University and North Shore-Long Island Jewish Health Systems. Finally, the article identifies some lessons to …

Does Your Mediator Measure Up?: Standards Of Practice For Family And Divorce Mediation, Andrew Schepard, Ann Milne

Hofstra Law Faculty Scholarship

In most states, mediators are largely self-regulated. However, a variety of means have been developed to ensure that mediation services are provided in a competent and professional manner. Some regulation has been undertaken by state governments, courts, and professional associations. In addition, the Model Standards of Practice for Family and Divorce Mediation have been adopted by the American Bar Association (ABA), the Association of Family and Conciliation Courts (AFCC), and other state and local family and divorce mediation groups.

An Introduction To The Model Standards Of Practice For Family And Divorce Mediation, Andrew Schepard

Hofstra Law Faculty Scholarship

On February 19, 2001, upon the recommendation of both the Family Law (FLS) and Dispute Resolution Sections, the American Bar Association's House of Delegates adopted the Model Standards of Practice for Family and Divorce Mediation (“Model Family Mediation Standards” or “Model Standards”), which are published in this issue of the Family Law Quarterly.

The aim of the Model Family Mediation Standards is to promote public confidence in an evolving, interdisciplinary profession by defining good mediation practice. The family mediation profession (which includes many lawyers) created the Model Family Mediation Standards in consultation with the family …

The Evolving Judicial Role In Child Custody Disputes: From Fault Finder To Conflict Manager To Differential Case Management, Andrew Schepard

Hofstra Law Faculty Scholarship

The judiciary's role in divorce related child custody disputes has been transformed in the latter half of the twentieth century in response to the changing characteristics of American families, changing perceptions of the needs of children, and an overwhelming case load increase. The transformation occurred in two distinct phases, and a third is currently in process.

In Phase I, from the late 1960s (the beginning of widespread "no fault" divorce) to 1980, the child custody court was a fault finder functioning through adversary procedure. The court's job was to identify a single custodial parent and assign that parent primary legal …

Parental Conflict Prevention Programs And The Unified Family Court: A Public Health Perspective, Andrew Schepard

Hofstra Law Faculty Scholarship

The thesis of this article is that every unified family court should develop a prevention plan to help parents reduce conflict arising out of divorce and separation. A coherent prevention strategy should become a fundamental criteria for distinguishing high-quality family courts from those that do not serve their publics as well. Models of useful pro-grams already exist and can be incorporated into a court's prevention plan. Judges, legislators, lawyers, mental health professionals, and child advocates should insist that they are.

Section Two of this article describes the problems facing courts, parents, and children resulting from divorce and separation in terms …

The Push For Parent Education: Blueprints For Helping Families Cope With Divorce, Andrew Schepard, Peter Salem, Stephen W. Schlissel

Hofstra Law Faculty Scholarship

Why are courts actively creating educational programs for separated and divorcing parents and children? The short answer is that they offer an extremely valuable service: information and perspective. They help parents and children normalize their experiences and begin to understand the emotional, social, and legal complexities of divorce and separation. The objective is not to resolve specific disputes, but to provide parents with information and an incentive to resolve conflicts collaboratively.

Parent Education As A Distinct Field Of Practice: The Agenda For The Future, Peter Salam, Andrew Schepard, Stephen W. Schlissel

Hofstra Law Faculty Scholarship

The proliferation of educational programs for separated and divorcing parents has created an emerging field of practice. This article examines core questions of professional responsibility, accountability, standards, and practices that must be addressed to advance the development of the field.

Education programs for separated and divorcing parents have captured widespread attention. New programs are being established at a rapid pace. Increasingly, legislation and court rules require parents to attend an education program (Biondi, 1995). Newspapers, magazines, and television networks- including the New York limes, Wall Street Journal, Washington Post, Newsweek, CBS, NBC, and CNN-have all reported on what Time Magazine …

Judicial Review Of Academic Student Evaluations: A Comment On Susan 'M' V. New York Law School From Those Who Litigated It, Harold Weinberger, Andrew Schepard

Hofstra Law Faculty Scholarship

Susan "M" v. New York Law School is the most recent decision of a highest court of a state that vindicates the principle of judicial noninterference in academic evaluation of students. Susan"M" has become quite noteworthy, spawning both a major recent law review article exhaustively analyzing all the relevant precedents and poetry. Discussion of the case generates intense interest, particularly among academics (both faculty and administrators) and law students. The former are generally relieved by its outcome; the latter are distressed that they have to aim their developing litigation skills on targets other than their professors.

Our first purpose in …

Preventing Trauma For The Children Of Divorce Through Education And Professional Responsibility, Andrew Schepard, Joan Atwood, Steven W. Schlissel

Hofstra Law Faculty Scholarship

Divorce is one of the greatest challenges that American children face. The numbers affected are enormous. In 1951, a rate of 6.1 children per thousand were involved in a divorce. In 1981, the rate reached18.7 children per thousand. Since then, the rate has fallen back some-what to 16.8 children per thousand in 1986, the last year for which statistics are available. This number translates to about 1.2 million children each year who experience the divorce of their parents. If current rates of divorce continue, we can expect that a significant percentage of all American children will become children of divorce …

Divorce, Interspousal Torts, And Res Judicata, Andrew Schepard

Hofstra Law Faculty Scholarship

Some fear that requiring litigation of interspousal torts in a divorce action may undermine the policy premises of no-fault divorce. Fear of res judicata may encourage divorce litigants to scrape the "bottom of the barrel" and assert every conceivable tort claim that arose during the marriage. Divorce litigation will thus become more bitter and hostile than it already is. Others fear that divorce litigation will become unmanageable as tort claims and third parties are added to joined tort/divorce litigation.

The thesis of this article is that, despite these concerns, as a general rule, spouses should be required to litigate tort …

Aids And Divorce, Andrew Schepard

Hofstra Law Faculty Scholarship

AIDS is the greatest public health challenge of the late twentieth century. It is a frightening disease, inevitably fatal to its victims. We do not know who among us carries the virus that causes AIDS; symptoms may not become visible for years after infection. Yet, we do know that the numbers of people potentially afflicted are staggering. There is no cure, no miracle vaccine, in sight.

Inevitably, some people infected with the AIDS virus, will be married, parents, and involved in disintegrating relationships with their spouses. AIDS-related problems will be a focal point of their divorces. Indeed, such cases are …

Leaving Home, Andrew Schepard, Bernard Rothman, Paul Nassar

Hofstra Law Faculty Scholarship

No abstract provided.

Court-Ordered Mediation In Family Disputes: The New York Proposal, Linda Silberman, Andrew Schepard

Hofstra Law Faculty Scholarship

Marital and family disputes have been an important focus for alternative dispute resolution. Perhaps because divorce and custody disputes reveal the personal, human, and emotional aspects of conflict more visibly than other types of legal proceedings, attempts to resolve such disputes through the traditional legal process have proved remarkably ineffective. Mediation of divorce and custody matters is a particularly promising method of achieving more expeditious, less hostile, and more enduring matrimonial and custodial arrangements.

The mediation process offers to divorcing couples a neutral third party who will help the parties resolve their disputes. The mediator's function is to develop a …

Consultants' Comments On The New York State Law Revision Commission Recommendation On The Child Custody Dispute Resolution Process, Linda Silberman, Andrew Schepard

Hofstra Law Faculty Scholarship

As the consultants to the New York State Law Revision Commission for its Recommendation concerning the child custody dispute resolution process, we share significantly in the credit for and the criticism of the Commission's work. One goal of our effort was to focus attention on the needs of parents and children involved in divorce ─ needs to which the legal system must respond. Public hearings have sharpened that issue and even raised questions about basic premises of the Recommendation. But the purpose of these Comments is to respond to some misconceptions that have arisen, by summarizing the philosophy and features …

Ground Rules For Custody Mediation And Modification, Andrew Schepard, Melissa D. Philbrick, Dvora Wolff Rabino

Hofstra Law Faculty Scholarship

This Article describes an approach to resolving some of the strategic and ethical problems faced by attorneys who wish to mediate the custody disputes of divorcing parents. Part I of the Article sets forth some of the issues custody mediators necessarily confront and the setting in which we attempted to resolve them. Part II discusses the mediation ground rules that we developed to ensure that the mediation process would be both beneficial for the child and his family and ethical for attorneys working with mental health professionals. Because future disputes might develop and circumstances could change, Part III suggests a …

Another Look: Trial Court Unification In California In The Post-Proposition 13 Era, Andrew Schepard

Hofstra Law Faculty Scholarship

One of the most beneficial aftershocks of the Proposition 13 earthquake, which shook the fiscal foundations of state and local government in California, is a growing willingness to examine the structure of government from top to bottom to see if it is providing services efficiently and competently. The kind of searching reexamination of government operations called for in the aftermath of Proposition 13 must include a new look at an old idea in judicial administration-trial court unification. The purpose of this article is to take that look and to argue that a unified trial court system can best meet the …