Law Commons^™

The Stability Paradox: The Two-Parent Paradigm And The Perpetuation Of Violence Against Women In Termination Of Parental Rights And Custody Cases, Judith Lewis

Michigan Journal of Gender & Law

Despite changing family compositions, entrenched in family law is the antiquated idea that a two-parent household, or its approximation vis-à-vis a shared custody arrangement, promotes stability and integrity and, thus, is in the best interest of the child. Yet, the concept that the two-parent household (or shared involvement of both parents in the child’s life if the parents separate) promotes stability for the family and is best for the child is a dangerous fallacy. When rape or intimate partner violence (IPV) is present, or the re-occurrence of violence remains a threat, the family unit is far from stable.

This Article …

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Michigan Law Review

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined …

Making A Reasonable Calculation: A Strategic Amendment To The Idea, Hetali M. Lodaya

University of Michigan Journal of Law Reform

The Individuals with Disabilities Education Act (IDEA) lays out a powerful set of protections and procedural safeguards for students with disabilities in public schools. Nevertheless, there is a persistent debate as to how far schools must go to fulfill their mandate under the IDEA. The Supreme Court recently addressed this question with its decision in Endrew F. v. Douglas Cty. School District Re-1, holding that an educational program for a student with a disability must be “reasonably calculated” to enable a child’s progress in light of their circumstances. Currently, the Act’s statutory language mandates Individual Education Program (IEP) teams …

The Affordable Care Act, Experience Rating, And The Problem Of Non-Vaccination, Eric Esshaki

University of Michigan Journal of Law Reform Caveat

Polio, the whooping cough, and the mumps, among many other communicable diseases, were once prevalent in communities within the developed world and killed millions of people.1 The advent of vaccinations contained or eradicated several of these diseases.2 However, these diseases still exist in the environment3 and are making a comeback in the United States.4 Their persistence is directly attributable to the rising trend among parents refusing to vaccinate their children.5 One proposed solution to this problem is to hold parents liable in tort when others are harmed by their failure to vaccinate. Another proposed solution argues that parents should pay …

Fighting The Establishment: The Need For Procedural Reform Of Our Paternity Laws, Caroline Rogus

Michigan Journal of Gender & Law

Every state and the District of Columbia use voluntary acknowledgments of paternity. Created pursuant to federal law, the acknowledgment is signed by the purported biological parents and establishes paternity without requiring court involvement. Intended to be a “simple civil process” to establish paternity where the parents are unmarried, the acknowledgment is used by state governments to expedite child support litigation. But federal policy and state laws governing the acknowledgments do not sufficiently protect the interests of those men who have signed acknowledgments and who subsequently discover that they lack genetic ties to the children in question. A signatory who learns …

Bio Family 2.0: Can The American Child Welfare System Finally Find Permanency For 'Legal Orphans' With A Statute To Reinstate Parental Rights?, Meredith L. Schalick

University of Michigan Journal of Law Reform

The American child welfare system terminates parental rights for thousands of children each year even though adoptive families have not yet been identified for the children. Every year, there are more than 100,000 of these “legal orphans” waiting for new families. Given the lower rates of adoptions for children of color and older children, and the poor outcomes for most youth who age out of the foster care system, the American child welfare system must start to think differently about permanency options for children. This Article proposes a model statutory provision to reinstate parental rights under certain circumstances to give …

Adoptive Couple V. Baby Girl: Two-And-A-Half Ways To Destroy Indian Law, Marcia A. Yablon-Zug

Michigan Law Review First Impressions

In December 2011, Judge Malphrus of the South Carolina family court ordered Matt and Melanie Capobianco to relinquish custody of Veronica, their two-year-old, adopted daughter, to her biological father, Dusten Brown. A federal statute known as the Indian Child Welfare Act ("ICWA") mandated Veronica's return. However, the court's decision to return Veronica pursuant to this law incited national outrage and strident calls for the Act's repeal. While this outrage was misplaced, it may nonetheless have influenced the U.S. Supreme Court's decision to hear the appeal. The case of Adoptive Couple v. Baby Girl is emotionally complicated, but it is not …

Toward Equality: Nonmarital Children And The Uniform Probate Code, Paula A. Monopoli

University of Michigan Journal of Law Reform

This Article traces the evolution of the Uniform Probate Code's (UPC) broad equality framework for inheritance by nonmarital children in the context of the wider movement for legal equality for such children in society. It concludes that the UPC is to be lauded for its efforts to provide equal treatment to all nonmarital children. The UPC's commitment to such equality serves an expressive function for state legislatures and courts to follow its lead. The UPC has fulfilled its promise that all children regardless of marital status shall be equal for purposes of inheritance from or through parents, with one exception: …

Children Of Assisted Reproduction, Kristine S. Knaplund

University of Michigan Journal of Law Reform

More than three decades after the birth of the first child conceived through in vitro fertilization, few states have comprehensive statutes to establish the parentage of children born using assisted reproduction techniques (ART). While thousands of such children are born each year courts struggle to apply outdated laws. For example, does a statute terminating paternity for a man who donates sperm to a married woman apply if the woman is unmarried? In 2008, the Uniform Probate Code (UPC) added two much-needed sections on the complicated parentage and inheritance issues that arise in the field of assisted reproduction. Yet it is …

When Sixteen Ain't So Sweet: Rethinking The Regulation Of Adolescent Sexuality, Nicole Phillis

Michigan Journal of Gender & Law

Legally speaking, sexual maturity poses a significant enough liberty interest for a minor to make medical decisions regarding contraceptive medicine or to choose motherhood without parental involvement, but not quite enough for her to obtain an abortion independently. The law incentivizes teenage motherhood by only granting decisional autonomy to those minors who choose to have a child; the minor female's right to procreate vests regardless of her individual maturity. The law discourages teenage abortions by using the choice to terminate a pregnancy to trigger a presumption of immaturity; the minor female's abortion right is pitted against personal autonomy via parental …

In Defense Of The Indian Child Welfare Act In Aggravated Circumstances, C. Eric Davis

Michigan Journal of Race and Law

The Indian Child Welfare Act (ICWA) affords various protections to Indian families throughout child welfare proceedings. Among them is the duty imposed upon the state to provide rehabilitative services to families prior to the outplacement of an Indian child, or termination of parental rights. An analogous provision for non-Indians in the Adoption and Safe Families Act (ASFA) excuses rehabilitative services in "aggravated circumstances" of child abuse. The ICWA contains no such exception, and that absence has been controversial. In 2002, the Alaska Supreme Court applied ASFA's aggravated circumstances exception to the ICWA, thereby excusing services when a father severely abused …

The Rights Of Putative Fathers To Their Infant Children In Contested Adoptions: Strengthening State Laws That Currently Deny Adequate Protection, Robbin Pott Gonzalez

Michigan Journal of Gender & Law

This paper argues that states need to strengthen protection of putative fathers' rights to their infant children when the mother wishes for the child to be adopted. Part I frames the discussion around established parental rights through constitutional case law. To do this, the paper addresses both the Supreme Court's parental rights doctrine and its biology-plus doctrine, which requires unwed fathers to show that in addition to being the biological father they also have taken responsibility for their children. Part II describes common state statutes that affect putative fathers, including putative father registries, safe haven laws, and laws granting custody …

For Whom The School Bell Tolls But Not The Statute Of Limitations: Minors And The Individuals With Disabilities Education Act, Lynn M. Daggett, Perry A. Zirkel, Leeann L. Gurysh

University of Michigan Journal of Law Reform

This Article explores whether claims under the federal special education statute should be tolled on account of minority. Adult disabled students typically assert this type of tolling claim when alleging statutory violations dating back ten or more years, when they were minors. However this tolling claim is decided, there may be undesired results. First, even if the student has a very strong case, the merits are never reached if the court dismisses the hearing request as untimely. Second, if the hearing request is timely and the case proceeds to the merits, the student must remain in her current educational placement, …

From Presumed Fathers To Lesbian Mothers: Sex Discrimination And The Legal Construction Of Parenthood, Susan E. Dalton

Michigan Journal of Gender & Law

In Part I of this article, Dalton briefly reviews the way legal scholars commonly define sex-based discrimination, particularly as it pertains to issues of reproduction. Part II is a brief historical review of legal constructions of parenthood. In Part III, Dalton examines two legal concepts: retroactive legitimation and presumed fatherhood. Both concepts were introduced in 1872 and each independently encouraged judges to think of fatherhood as consisting of two distinct spheres, the biological and the social. She then traces the legal development of these concepts through a series of presumed father, retroactive legitimation, and putative father cases. In Part IV …

Assesing The Family And Medical Leave Act In Terms Of Gender Equality, Work/Family Balance, And The Needs Of Children, Angie K. Young

Michigan Journal of Gender & Law

While recognizing that parental leave is only one aspect of the FMLA, this Article concentrates on the provision allowing leave to parents in order to care for their children. Before analyzing the FMLA in detail, it is helpful to explore what aims a parental-leave policy should have. The purpose of this Article is to propose and defend three goals that parental-leave legislation should strive to meet: equality of career opportunities for men and women, the right to participate in both work and family, and meeting the needs of children. After articulating what parental-leave legislation should aim for in theory, this …

The Proposed Model Surrogate Parenthood Act: A Legislative Response To The Challenges Of Reproductive Technology, Murray L. Manus

University of Michigan Journal of Law Reform

In this Article, Manus proposes a Model Surrogate Parenthood Act. He examines the medical and scientific history of surrogacy and reviews the jurisprudence in the area, specifically the constitutional relationship between procreation rights and surrogacy. The author asserts that surrogate motherhood cannot be, and indeed, should not be, eradicated through legislation criminalizing it. The proposed Model Act, presented here in its entirety, attempts to reduce the problems inherent in the concept of surrogate parenthood by putting the process under strict court supervision and by zealously protecting the rights of the surrogate mother and the child to be conceived.

Unemployment Compensation In A Time Of Increasing Work-Family Conflicts, Martin H. Malin

University of Michigan Journal of Law Reform

The demographics of the workplace have changed substantially since the nation's unemployment insurance system was enacted in the 1930s. The number of dual-earner and single-parent families has increased dramatically. Yet, the basic requirements for eligibility for unemployment compensation have not varied much since their initial enactment. In this Article, Professor Malin explores the availability of benefits to individuals who lose their jobs because of conflicts between work and family responsibilities and to unemployed individuals whose family responsibilities restrict the types of jobs that they are able to take. He finds that the states have differed greatly concerning the degree to …

The Individuals With Disabilities Education Act: A Parent's Perspective And Proposal For Change, Martin A. Kotler

University of Michigan Journal of Law Reform

For two years, beginning in the fall of 1991, I was involved in an ongoing legal battle with the Delaware County, Pennsylvania Intermediate Unit No. 25 regarding the "appropriateness" of preschool programming for my son. To a large degree, the following Article has its origin in that battle.

Nevertheless, the point of this Article is neither to get even for wrongs, real or imagined, nor to utilize these pages to supplement the already extensive briefs and formal arguments made in that case. Rather, I believe that my position as a law professor, lawyer, litigant, and parent of a disabled child …

The Constitutionality Of Employer-Accessible Child Abuse Registries: Due Process Implications Of Governmental Occupational Blacklisting, Michael R. Phillips

Michigan Law Review

This Note discusses the due process implications of permitting employer access to state child abuse registries when disclosure affects registry members' employment.

Reforming Welfare Through Social Security, Stephen D. Sugarman

University of Michigan Journal of Law Reform

In this Article, I first want to illustrate the connection between Social Security and AFDC-to explain the Social Security program and to demonstrate how it contributes to the welfare problem. More importantly, I then want to offer a reform proposal that builds on Social Security as a way to begin to eliminate AFDC and the current welfare problem. Simply put, I propose that Social Security should provide benefits to children with absent parents on the same basic terms on which it now provides benefits to children with deceased, disabled, or retired parents.

Minor Changes: Emancipating Children In Modem Times, Carol Sanger, Eleanor Willemsen

University of Michigan Journal of Law Reform

This Article reports on the use of still another mechanism for removing children in conflict with their parents: statutory emancipation, the process by which minors attain legal adulthood before reaching the age of majority. Statutorily emancipated minors can sign binding contracts, own property, keep their earnings, and disobey their parents. Although under eighteen, they are "considered as being over the age of majority" in most of their dealings with parents and third parties. Thus, while emancipated minors can sign contracts and stay out late, their adult status also means that their parents are no longer responsible for the minors' support. …

Stemming The Modification Of Child-Support Orders By Responding Courts: A Proposal To Amend Ruresa's Antisupersession Clause, Jane H. Gorham

University of Michigan Journal of Law Reform

This Note examines the practice of using the Act to modify existing child-support orders. Part I explores the question of whether the Act's enforcement mechanisms were designed to permit the responding court to modify existing support orders. It emphasizes the problems involved with concurrent support orders and modification and describes the range of positions courts have taken to support or oppose allowing responding courts to modify support orders. Part II explores the federal child-support enforcement programs, their interstate applications, and their relationship to the Act's enforcement mechanisms. The analysis in these parts leads to Part III, which proposes an amendment …

Family Support From Fugitive Fathers: A Proposed Amendment To Michigan's Long Arm Statute, Robert L. Nelson

University of Michigan Journal of Law Reform

It is the purpose of this article to propose and discuss an amendment to Michigan's long arm statute which will allow the entry of extraterritorial alimony, separate maintenance, or child support decrees when Michigan is the state of the marital domicile and the defendant-spouse cannot be located for personal service of process. A plaintiff employing the proposed provision in a divorce action will be able to seek alimony, separate maintenance, or support payments as if the defendant were before the court, and the court will have the authority to grant her the necessary relief. If and when the wife later …