Law Commons^™

Locating The 'Nanny' In Legal Theory, Akshat Agarwal

National Law School Journal

Paid domestic workers pose a challenge to legal theorists since they occupy the unique intersection of the market and the home. While being paid for the ‘care’ they provide, their work is characterised by a high degree of informality and is usually also considered emotive. I use India as a case study to show how attempts to include paid domestic workers within formal labour law protections have been consistently unsuccessful, which demonstrates the unique nature of paid domestic work. At the same time, academic arguments for the inclusion of such workers in family law frameworks raise several practical concerns and …

Actually, You Don’T Have To Show Your Work: The Arkansas Court Of Appeals Tells Trial Courts That When They Award Attorneys’ Fees In Domestic Relations Cases, They Need Not Explain The Basis For The Awards Or The Basis For The Amount Of The Awards, Terrence Cain

University of Arkansas at Little Rock Law Review

Arkansas follows the “American Rule,” which is that each litigant is responsible for his or her own attorneys’ fees unless a statute says otherwise. This rule is not without exceptions, however, and one such exception is the “domestic relations exception,” which says that Arkansas’s trial courts have the inherent authority to award attorneys’ fees in domestic relations cases. Between 2016 and 2021, the Arkansas Court of Appeals decided cases with attorneys’ fees awards ranging from $14,190 to $36,284.60, which one judge of that court remarked evidenced an ever-escalating amount of fee awards in domestic relations cases.

At one point, when …

Removing Barriers--Not Children: How West Virginia Can Prevent Further Harm To Children, Emily R. Mowry

West Virginia Law Review

West Virginia has one of the highest rates of children in foster care—and thus removed from their families—in the United States. Recent scientific and social science research has shown that removing children from their parents’ home is a traumatic event in and of itself, causing further harm to children already experiencing abuse and neglect. Federal legislation in the past ten years requires that states make reasonable efforts to address issues of abuse and neglect prior to removing children from their homes. West Virginia, for many reasons, is not doing so. West Virginia’s state child welfare agency, Department of Health and …

Playing God In The 21st Century: How The Push For Human Embryonic Germline Gene Editing Sidelines Individual And Generational Autonomy, Anna E. Melo

Catholic University Journal of Law and Technology

Every four and a half minutes a child with a genetic birth defect is born in the United States. For some, these conditions are treatable and manageable, but sadly for others, they are a death sentence. Congenital malformations and chromosomal abnormalities are the leading cause of infant mortality. CRISPR-Cas9 presents hope for the future, a liberation from the heritable genetic shackles that a child would otherwise be trapped in. With such optimism for future applications of germline gene editing, there are also great concerns with what national and global limitations and auditing must be in place to permit “genetic hedging.” …

Covid-“14-17”: A Case For Florida Teens To Choose The Covid Vaccine Without Requiring Parental Consent, Kait Ramsay

Child and Family Law Journal

The novel COVID-19 pandemic has created a huge disruption to almost everyone, forcing many individuals to adapt to entirely new ways of life. In the United States, COVID safety protocols and restrictions, such as mask and vaccine mandates, have been met with huge political polarization and resistance.[1] Even as COVID variants have kept infections in a perpetual cycle of rising and falling, Florida has lifted mask mandates for businesses and schools, and its governor has been one of the largest vocal opponents to requiring vaccines for school attendance.[2] Furthermore, with the passing of Florida’s Parental Consent for Health …

Frozen Embryos, Male Consent, And Masculinities, Dara E. Purvis

Indiana Law Journal

Picture two men facing the possibility of unwanted fatherhood. One man agreed to go through in vitro fertilization (IVF) with his partner, but years later has changed his mind. Despite the fact that the embryos created through IVF are his partner’s last chance to be a genetic parent, a court allows him to block her use of the embryos.

By contrast, another couple’s sexual relationship broke the law. The woman was a legal adult, and her partner was a child under the age of eighteen. Their encounter was thus statutory rape. Her crime led to pregnancy, and after she gave …

Taking The "Fam" Out Of Family: Adjudicating The State Department's Discriminatory Treatment Of Same-Sex Parents On The Merits, Camrin M. Rivera

Maine Law Review

Cisgender same-sex male married couples, unlike cisgender opposite-sex married couples, will always require artificial reproductive technology (ART) for at least one of the spouses to attain biological parenthood. Due to legal and financial barriers to ART, many of these couples turn to international ART services to grow their families. In doing so, these families may face immigration battles when they apply for recognition of their child’s United States citizenship. For example, a prior State Department policy sparked three lawsuits after the State Department refused to recognize children as United States citizens from birth because the children were not biologically related …

The Hidden Foster Care System: A Parallel System In Legal Limbo During A Deadly Pandemic, Megan Schmidt

University of Miami Race & Social Justice Law Review

In 2020, Josh Gupta-Kagan’s article on the American Hidden Foster System challenged the welfare system to face its coercive practices that effectuate in a child being removed from the home without formal state intervention and court oversight.1 Families find themselves struggling to stay together as child protection workers utilize threats and safety plans to force the removal of a child from the home and into the custody of a family member.2 The children’s, the parents’, and the kinship caregivers’ lives are forever impacted by the welfare state, yet they receive insufficient benefits or protections afforded to families, caregivers, and children …

Citizens For Strong Schools, Inc., Et Al. V. Florida State Board Of Education, Et Al.: How The Florida Supreme Court Decision Will Have Distressing Effects On Public Education For Vulnerable Children, Kristen Calzadilla

University of Miami Race & Social Justice Law Review

Free public-school education is fundamental aspect to many citizens life, liberty, and pursuit of happiness in the United States. As states add constitutional provisions guaranteeing a public education, there are still great disproportionalities in the adequacy pf education provided to underrepresented students. Such are the issues at the heart of the recent Florida Supreme Court case, Citizens for Strong Schools, Inc., et al. v. Florida State Board of Education, et al. Citizens for Strong Schools throws its hat into the contentious debate over equitable educational standards. However, despite other state supreme courts’ rulings that similar provisions in the state constitutions …

English Courts And Transnational Islamic Divorces: What Role For Personal Liberty Of Muslim Women?, Ilias Bantekas

University of Miami Race & Social Justice Law Review

English courts consider the validity of a talaq obtained abroad on the basis of the lex matrimonii, without examining whether the circumstance of the divorce, both factual and legal, offend English public policy. An anthropological inquiry into talaq obtained in most Muslim nations reveals that androcentric culture – as opposed to religious prescription as such – largely distorts the Quranic vision of this institution. This author suggests that English courts and the scholarly/religious community should entertain the notion of the contractual nature of nikah (marriage) in order to assess the consequences of the talaq. If a nikah is entered into …

First Comes Love. Then Comes Marriage. Then Comes A Baby In A Baby Carriage: An Application Of Protective Surrogacy Laws To The Tarheel State, Justin Lo

Seattle University Law Review

Assisted Reproductive Technology (ART) and determining parentage have a common feature: each is governed by state law or the lack of such laws. This lack of statutory regulations presents significant legal challenges to gay men who wish to start a family. Because same-sex male couples seeking to become fathers through ART and surrogacy are the most likely demographic to be impacted when determining parentage, laws that influence the direction of surrogacy will undeniably facilitate whether both males will be deemed a father. To provide same-sex male couples with a pathway to parenthood, North Carolina should (1) develop robust, protective surrogacy …

Mommy, Baby And Rapist Makes Three? Amid Abortion Bans, The Pressing Need For A Nationwide Lower Standard To Strip Parental Rights, Regardless Of A Rape Conviction, Melanie Dostis

William & Mary Journal of Race, Gender, and Social Justice

Among the fundamental rights recognized in the Constitution are the rights of parents to raise their children. While never interpreted as an absolute legal privilege, courts have exercised wide discretion in preserving this right and historically ignored the reality that not all parents are deserving of this right. Even though the family law system has protections in place to terminate parental rights for atrocities like abuse, it largely neglects an uncomfortable area of parental origin: parental rights regarding children conceived by rape. This is not only to the detriment of children, but, as this Note argues, at the peril of …

The Rise Of Zero Tolerance And The Demise Of Family, Mariela Olivares

Georgia State University Law Review

This article explores the intersection of immigration law and family law and argues that the current regime dedicated to decimating immigrant families in the United States does not comport with the history and spirit of immigration law and policy. Policies shifting away from family unity and towards an inhumane treatment of immigrant families is anchored in the political rhetoric that normalizes the oppression of immigrants. By characterizing immigrants as nonhuman—even “animals,” as described by President Donald Trump—the current slate of anti-immigrant policies that specifically target families is normalized. Part I discusses contemporary immigration law that terrorizes the family unit and …

A Dangerous Inheritance: A Child’S Digital Identity, Kate Hamming

Seattle University Law Review

This Comment begins with one family’s story of its experience with social media that many others can relate to in today’s ever-growing world of technology and the Internet. Technology has made it possible for a person’s online presence to grow exponentially through continuous sharing by other Internet users. This ability to communicate and share information amongst family, friends, and strangers all over the world, while beneficial in some regard, comes with its privacy downfalls. The risks to privacy are elevated when children’s information is being revealed, which often stems from a child’s own parents conduct online. Parents all over the …

The Birth Of Fertility Fraud: How To Protect Washingtonians, Sarah Chicoine

Washington Law Review Online

Doctors in multiple states have been accused of using their own sperm to impregnate patients without the patient’s consent. Because most states do not have laws prohibiting fertility doctors from using their own sperm to impregnate their patients, families have not been able to seek meaningful legal remedies. State legislatures enacted new fertility fraud laws to deter, criminalize, and provide a legal civil cause of action to those harmed by these actions—but only after these allegations came to light. If the Washington State Legislature creates a law before any similar allegations come to light in Washington, those patients harmed in …

Leveling The Playing Field: Advancing Free Legal Aid For The Family Law Claims Of Ethiopian Women, Maereg Tewoldebirhan Alemayehu

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Hb 159 - Domestic Relations, Kitan A. Grey, A. Celia Howard

Georgia State University Law Review

This bill provides a major overhaul for Georgia adoption laws, which were last updated in 1990. The most notable changes include shortening the period for revocation of surrender of parental rights; granting temporary power of attorney for the care of a child; allowing adoptive parents to pay a birth mother’s expenses; lowering the age for adoptive relatives; and simplifying the process to adopt foreign-born children.

Hb 834 - Property, Brian H. Cathey, Cassandra Tuchscher

Georgia State University Law Review

The Act allows a victim of domestic violence to terminate his or her residential rental agreement without an early termination penalty if the victim receives a court order related to that family violence.

Indian Child Welfare Act Annual Case Law Update And Commentary, Kathryn Fort, Adrian T. Smith

American Indian Law Journal

There are, on average, 200 appellate cases addressing the Indian Child Welfare Act (ICWA) annually—though this number includes published and unpublished opinions. There are usually around thirty reported state appellate court cases involving ICWA issues every year. There has never been a systematic look at the cases on appeal including an analysis of who is appealing, what the primary issues are on appeal, and what trends are present. This article seeks to fill that void.

This article provides a comprehensive catalog of published ICWA jurisprudence from across all fifty states in 2017. Designed as a quick reference for the ICWA …

Native American Rights & Adoption By Non-Indian Families: The Manipulation And Distortion Of Public Opinion To Overthrow Icwa, Harman Bual

American Indian Law Journal

No abstract provided.

Corporate Family Law, Allison Anna Tait

Northwestern University Law Review

There is no such thing as corporate family law. But there are corporate families, and corporate families fight. What happens when corporate family members fight and the conflict is so severe that one or more of the parties wants out of the corporate relationship? Corporate law provides some solutions, but they are shaped by the assumption that all parties will bargain effectively for protections when seeking to exit a corporate relationship. Under this theory, family business is, after all, just business. The problem with this assumption is that corporate family members do not bargain the way that corporate law expects. …

Book Review: Proposals For Creating A Realistic Family Court For The Future, Theresa Furnari, Melissa View

University of Baltimore Law Forum

During one of the snowstorms in the winter of 2016, I sat before the fireplace and read Divorced from Reality: Rethinking Family Dispute Resolution, by Jane C. Murphy and Jana B. Singer. Because I know the authors and their wealth of experience in family law, as well as their sincere interest in improving the effectiveness of the family law court, I was delighted when asked to share my opinion of the book. As a Family Magistrate in a high volume court, it never ceases to amaze me of the variety of issues the court is confronted with on a …

Punishing Sexual Fantasy, Andrew Gilden

William & Mary Law Review

The Internet has created unprecedented opportunities for adults and teenagers to explore their sexual identities, but it has also created new ways for the law to monitor and punish a diverse range of taboo sexual communication. A young mother loses custody of her two children due to sexually explicit Facebook conversations. A teenager is prosecuted for child pornography crimes after sending a naked selfie to her teenage boyfriend. An NYPD officer is convicted for conspiracy to kidnap several women based on conversations he had on a “dark fetish” fantasy website. In each of these cases, online sexual exploration and fantasy …

Putting The "Remedy" Back In The International Child Abduction Remedies Act - Enforcing Visitation Rights For The Left Behind Parent, Nicole Clark

St. John's Law Review

(Excerpt)

This Note argues that the Second Circuit’s approach is more consistent with the aims of the Hague Convention and the needs of children than the Fourth Circuit’s approach and that ICARA does confer jurisdiction upon federal courts to adjudicate claims for the enforcement of visitation rights under the Hague Convention. Part I discusses the background of the Hague Convention and ICARA and how visitation rights fit into each. Part II discusses the split between the Fourth Circuit and the Second Circuit regarding whether ICARA confers jurisdiction upon federal courts over claims for the enforcement of visitation rights. It further …

Diagnosing Liberal Resistance To Needed Child Welfare Reforms, James G. Dwyer

William & Mary Bill of Rights Journal

No abstract provided.

How The Liberati Sabotaged Child Welfare, David Stoesz

William & Mary Bill of Rights Journal

No abstract provided.

Stanley V. Illinois’S Untold Story, Josh Gupta-Kagan

William & Mary Bill of Rights Journal

Stanley v. Illinois is one of the Supreme Court’s more curious landmark cases. The holding is well known: the Due Process Clause both prohibits states from removing children from the care of unwed fathers simply because they are not married and requires states to provide all parents with a hearing on their fitness. By recognizing strong due process protections for parents’ rights, Stanley reaffirmed Lochner-era cases that had been in doubt and formed the foundation of modern constitutional family law. But Peter Stanley never raised due process arguments, so it has long been unclear how the Court reached this decision. …

Family Law–Providing For Those Who Cannot Provide For Themselves: A Proposal For The Arkansas General Assembly To Follow In The Footsteps Of An Already Expansive Guardianship Law And Grant Guardians The Right To File For Divorce On Behalf Of A Ward, Matthew L. Brunson

University of Arkansas at Little Rock Law Review

No abstract provided.

Digging Beneath The Equality Language: The Influence Of The Fathers’ Rights Movement On Intimate Partner Violence Public Policy Debates And Family Law Reform, Kelly Alison Behre

William & Mary Journal of Race, Gender, and Social Justice

In 2004, a fathers’ rights group formed in West Virginia to promote “Truth, Justice, and Equality in Family Law.” They created a media campaign including billboards and radio spots warning about the dangers of false allegations of domestic violence, sexual assault, and child abuse, even offering a $10,000 award to anyone who could prove false allegations of abuse were used against a parent in a custody case. In 2007, they released a study concluding that seventy-six percent of protection order cases were unnecessary or based on false allegations, and warned that protection orders were often filed to gain leverage in …

Federalism And Family Status, Courtney G. Joslin

Indiana Law Journal

The myth of family law’s inherent localism is sticky. In the past, it was common to hear sweeping claims about the exclusively local nature of all family matters. In response to persuasive critiques, a narrower iteration of family law localism emerged. The new, refined version acknowledges the existence of some federal family law but contends that certain “core” family law matters—specifically, family status determinations—are inherently local. I call this family status localism. Proponents of family status localism rely on history, asserting that the federal government has always deferred to state family status determinations. Family status localism made its most recent …