Law Commons^™

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

Faculty Scholarship

This Essay begins by reviewing Stanley v. Illinois, and outlines how that foundational case originally recognized parental rights in foster care cases yet became understood primarily as a private adoption case. Second, it explains how, simultaneously, family courts developed the One-Parent Doctrine and a related doctrine making it difficult to transfer custody of a child from an abusive or neglectful parent in one state to a non-offending parent in another. Both doctrines violate Stanley by allowing the State to take custody of children without ever proving parental unfitness. Cases adopting these doctrines literally ignore Stanley. Third, this Essay …

The Child-Welfare System And The Limits Of Determinacy, Clare Huntington

Faculty Scholarship

To read Robert Mnookin’s seminal 1975 article, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, is to see a blueprint for legislative action. To a remarkable degree, the reforms Mnookin proposed to the child-welfare system are what Congress and the states adopted in the following two decades. And yet reading Mnookin’s article is also a Groundhog Day experience. The problems he described with the child-welfare system nearly forty years ago sound all too familiar today.

Mnookin famously argued that the best-interests standard was indeterminate in the context of the child-welfare system. According to Mnookin, this open-ended standard created …