Law Commons^™

Looking Ahead: A Personal Vision Of The Future Of Child Welfare Law, Donald N. Duquette

University of Michigan Journal of Law Reform

The participants in the Thirtieth Anniversary Celebration of the Child Advocacy Law Clinic were all challenged to envision the future of child welfare and to address these questions: What should the law and legal institutions governing children's rights and child and family welfare look like in thirty more years? What steps are necessary to achieve those goals? After setting out the historical and optimistic circumstance in which the Child Advocacy Law Clinic was founded, this Article responds to the organizing questions by presenting the author's vision of the future of child welfare law and practice. When families fail children, what …

Protecting Abused, Neglected, And Abandoned Children: A Proposal For Provisional Out-Of-State Kinship Placements Pursuant To The Interstate Compact On The Placement Of Children, John C. Lore Iii

University of Michigan Journal of Law Reform

The Interstate Compact on the Placement of Children deals with the interstate placement of abused, neglected and abandoned children. This article addresses the critical need for reform of the Interstate Compact and attempts to tackle its most serious flaw-the lack of a provisional placement for children awaiting approval of out-of-state kinship placements. The recently enacted Safe and Timely Interstate Placement of Foster Children Act of 2006 (the "Act") is seriously flawed to the detriment of one of our country's most vulnerable groups and the very population it is designed to protect-children who have been abused, neglected and abandoned. This article …

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, …

Foster Care Placement: Reducing The Risk Of Sibling Incest, David J. Herring

University of Michigan Journal of Law Reform

The Westermarck theory maintains that incest avoidance arises from the physical proximity of siblings during a critical period of early childhood. This proximity gives rise to an inhibiting effect on post childhood sexual interest. Two recent studies of sibling relationships have verified and refined the Westermarck theory, indicating that the critical period extends through the first four years of childhood. The theory and the studies have implications for child welfare laws, policies and practices surrounding the placement of siblings in foster care. Namely, the findings provide powerful reasons for placing siblings together during the critical period in order to minimize …

Vanishing Vaccinations: Why Are So Many Americans Opting Out Of Vaccinating Their Children?, Steve P. Calandrillo

University of Michigan Journal of Law Reform

Vaccinations against life-threatening diseases are one of the greatest public health achievements in history. Literally millions of premature deaths have been prevented, and countless more children have been saved from disfiguring illness. While vaccinations carry unavoidable risks, the medical, social and economic benefits they confer have led all fifty states to enact compulsory childhood vaccination laws to stop the spread of preventable diseases. Today, however, vaccines are becoming a victim of their success-many individuals have never witnessed the debilitating diseases that vaccines protect against, allowing complacency toward immunization requirements to build. Antivaccination sentiment is growing fast in the United States, …

Three Steps And You're Out: The Misuse Of The Sequential Evaluation Process In Child Ssi Disability Determinations, Frank S. Bloch

University of Michigan Journal of Law Reform

The federal Supplemental Security Income (SSI) program provides cash benefits to financially needy persons who are 65 years of age or older, blind, or disabled. It also provides cash benefits to children with disabilities under the age of 18. This Article examines three sets of regulatory efforts to implement special disability standards for children, based first on the original SSI legislation, then on a seminal Supreme Court decision, and finally on amendments to the Social Security Act overruling the Court's decision, and shows how the "sequential evaluation process," which has been useful for adjudicating adult disability claims, has been a …

Waiving Goodbye: Incarcerating Waived Juveniles In Adult Correctional Facilities Will Not Reduce Crime, Ellie D. Shefi

University of Michigan Journal of Law Reform

Incarcerating waived juveniles in adult correctional facilities does not reduce crime or result in increased public safety; incarcerating juveniles with adults is deleterious to both the individual offender and society. This Note argues for a renewed focus on rehabilitative rather than retributive justice, and in so doing, proposes the implementation of a comprehensive continuum of graduated sanctions that includes networks of small, secure, highly structured maximum-security juvenile facilities, wilderness camps, residential and non-residential community-based programs, restitution, and fines. This Note further advocates for the incorporation of extensive education, vocational training and placement, counseling, treatment, supervision, mentoring, transitional, aftercare, and support …

Behavioral Genetics And The Best Interests Of The Child Decision Rule, David J. Herring

University of Michigan Journal of Law Reform

This Article proposes that modern child custody law should be reassessed in light of recent scientific findings. Judicial determinations of custody use the "best interests of the child" rule. The rule is justified to a large extent by the goal of maximizing child developmental outcomes. The assumption is that a child whose "best interests" are protected stands a better chance of becoming a socially well-adjusted, productive and prosperous citizen.

Recent child development studies have shown that so-called "shared environment, "or home environment factors have little effect on child development so long as the shared environment is minimally adequate. Genetics and …

Parental-Status Employment Discrimination: A Wrong In Need Of A Right?, Peggie R. Smith

University of Michigan Journal of Law Reform

This Article evaluates strategies to challenge employment discrimination based on parental status. Specifically, it examines proposals put forth by some commentators to establish parental status as a protected class. While such a suggestion is attractive, the Article argues that it ultimately offers few practical advantages and remains wedded to a limited conception of equality, requiring only that employment decisions not reflect differences based on parenthood. Consequently, such a strategy would satisfy anti-discrimination legislation so long as both men and women with parental obligations are equally ill-treated. The Article concludes that a shift in perspective from gender to parental status will …

Virtual Mothers And The Meaning Of Parenthood, Annette Ruth Appell

University of Michigan Journal of Law Reform

Professor Appell supports the use of the traditional parental rights doctrine, which accords biological parents, particularly mothers, parental status alienable only voluntarily or upon proof of unfitness. She defends the doctrine against the criticisms that it is regressive and does not protect the interests of children or de facto parents. She contends that the attacks on traditional parental rights doctrine are misguided because they work to the disadvantage of families who do not easily fit the dominant norm-minority, single-mother, lower income, or politically and legally under-represented families. After examining the constitutional underpinnings and application of the parental rights doctrine as …

Pinocchio In Littleton, William A. Kell

University of Michigan Journal of Law Reform

In this Article, Professor Kell proposes a substantial change in policy direction in the wake of school shootings and other tragedies involving young people's abilities to make mature decisions. First, the Article questions the current state of the law which exclusively deems young people to be mature based on "birthdays and bad acts, " rather than on any concept of demonstrated or earned levels of responsibility. Next, an alternative legal framework is envisioned recognizing young people as increasingly competent citizens who must develop psychosocial maturity, including learning how to judge and utilize advice from others such as parents and peers, …

Before It's Too Late: Neuropsychological Consequences Of Child Neglect And Their Implications For Law And Social Policy, Janet Weinstein, Ricardo Weinstein

University of Michigan Journal of Law Reform

Recent developments in the neurosciences have led to dramatic breakthroughs in the area of brain development and the understanding of consequences of neglect. Because this process was heretofore not understood, legislators have been wary of drafting child protection statutes that afforded the possibility for arbitrary interference with families. Strict statutory standards have been adopted that allow coercive intervention only in cases where the child is at substantial risk of imminent physical harm, or after some of the most severe consequences of neglect have been identified. These laws do not consider developmental harm because it does not present an imminent danger …

Spare The Rod, Embrace Our Humanity: Toward A New Legal Regime Prohibiting Corporal Punishment Of Children, Susan H. Bitensky

University of Michigan Journal of Law Reform

This article proceeds from the simple premise that hitting children hurts them-even when the hitting does not rise to the level of child abuse as traditionally conceived. There is convincing evidence that corporal punishment is a hidden cruelty in child rearing that has serious adverse consequences for its victims and society at large. Yet forty-nine states permit parental corporal punishment of children and approximately half of the states permit such punishment in elementary and secondary schools The main purpose of this Article is to question the advisability of continuing the legalized status of corporal punishment of children in the United …

First, Do No Harm: The Use Of Covert Video Surveillance To Detect Munchausen Syndrome By Proxy- An Unethical Means Of "Preventing" Child Abuse, Michael T. Flannery

University of Michigan Journal of Law Reform

Since it was first identified in 1977, Munchausen Syndrome by Proxy has uniquely affected the way in which the medical and legal communities deal with the issue of child abuse. Inherent in the medical response to the disease are issues of suspicion, investigation, identification, confrontation, and, of course, the health of an innocent child. Given the deceptive dynamics of the disease, however, denial and disbelief naturally overshadow every action taken by medical professionals in pursuing these issues. Fortunately, as medical knowledge about the dynamics of the disease continues to develop, medical professionals become more willing and better able to identify …

Family Group Conferences As A Form Of Court Approved Alternative Dispute Resolution In Child Abuse And Neglect Cases, Jolene M. Lowry

University of Michigan Journal of Law Reform

The problems associated with long-term foster care of children have escalated over the past decade as more abused and neglected children enter the already overworked and underfunded state child protective system& The recent Personal Responsibility and Work Opportunity Reconciliation Act of 1996 mandates giving preference to placement within the extended family for children who cannot be returned to their parents. Compliance with this law requires substantial changes in the policies and procedures of human services agencies in most states. This Article discusses "family group conferencing,' a new model for working with families within the system. Family Group Conferencing originated in …

Speaking To Tribal Judges On The Matter Of Improving Children's Court Practice In Child Abuse And Neglect Cases In Our Country: A Proposal For A Uniform Children's Code, Julian D. Pinkham

University of Michigan Journal of Law Reform

Since the 1970 the responsibilities of the tribal children's courts have increased dramatically. In child welfare case tribal courts no longer simply determine whether a child has been abused or neglected. They now also oversee the placement of the child in a shelter, foster care, or a permanent home, as well as determine the parent's treatment or visitation rights The complexity of the cases causes unacceptable delays in placing Indian children in need of care and hinders the placement of Indian children within the tribal community.

Judge Pinkham introduces a proposed solution to the problems of current tribal child welfare …

Crafting An Advocate For A Child: In Support Of Legislation Redefining The Role Of The Guardian Ad Litem In Michigan Child Abuse And Neglect Cases, Albert E. Hartmann

University of Michigan Journal of Law Reform

Michigan's current statutory system leaves the role of the child's attorney unclear. In this Note, Hartmann advocates the adoption of a legislative proposal that will redefine the role of the child's attorney. The proposal specifies that the child's primary legal representative should be a guardian ad litem who will represent the best interests of the child. Hartmann begins by describing the current system and then analyzes how the proposal will modify the role of the child's attorney. Hartmann argues that the proposed changes would be highly beneficial and identifies specific points of improvement. Hartmann concludes by suggesting several reforms to …

We Know Better Than We Do: A Policy Framework For Child Welfare Reform, Donald N. Duquette, Sandra K. Danzinger, Joan M. Abbey, Kristin S. Seefeldt

University of Michigan Journal of Law Reform

The need for comprehensive reform of child welfare policies and systems has long been evident. This Article reports observations from the WK Kellogg Foundation-sponsored Families for Kids Initiative that seeks to expand services and support to families and reduce the time children spend in temporary care. The authors first provide an overview of the need for reforms such as those proposed by this initiative, suggesting that many child welfare studies, critiques, and proposed reforms have had similar objectives. The authors highlight lessons learned from how these reform goals are being developed, implemented, and practiced in ongoing programs across the nation …

Developing A Child Advocacy Law Clinic: A Law School Clinical Legal Education Opportunity, Donald N. Duquette

University of Michigan Journal of Law Reform

Clinical legal education has become an accepted and integral complement to traditional law school curricula. Professor Duquette argues that clinical education is uniquely able to integrate the teaching of practical skills and legal doctrine, elevating students' understanding of both. Duquette maintains that a child advocacy law clinic can teach a broad range of practical skill benefit the hosting law school by providing an opportunity for interdisciplinary education as well as a public relations benefit, while simultaneously serving an important need in most communities for quality representation of all parties in child abuse and neglect cases. Most importantly, participation in a …

Fda Approved? A Critique Of The Artificial Insemination Industry In The United States, Karen M. Ginsberg

University of Michigan Journal of Law Reform

Artificial insemination by donor is becoming an increasingly popular means to achieving parenthood. While the majority of couples use artificial insemination to overcome fertility problems, many recipients use artificial insemination to avoid passing a genetic disease to their children. However, case studies reveal the inherent dangers of artificial insemination, namely the lack of proper screening methods to avoid passing genetic diseases to children born by artificial insemination. State-by-state regulation, federal guidelines, and private adjudication have all proven to be inadequate methods of regulating the artificial insemination industry. Ginsberg proposes federal regulation as the only means of achieving a safe artificial …

Drive-Through Deliveries: In Support Of Federal Legislation To Mandate Insurer Coverage Of Medically Sound Minimum Lengths Of Postpanum Stays For Mothers And Newborns, Freeman L. Farrow

University of Michigan Journal of Law Reform

President Clinton signed the Newborns' and Mothers' Health Protection Act of 1996 into law on September 26, 1996. The Act requires insurers that provide maternity benefits to cover medically sound minimum lengths of inpatient, postpartum stays according to the joint guidelines of the American Academy of Pediatrics and the American College of Obstetrics and Gynecology. This Note discusses the historical context in which the necessity for passage of protective legislation arose, the interplay between state and federal statutes that created the need for federal legislation to provide desired protections for postpartum patients and examines the provisions of the Act. 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 …

Parents And The State: Joining Forces To Report Incest And Support Its Victims, Lynne Olman Lourim

University of Michigan Journal of Law Reform

As many as 60,000 to 100,000 children each year become victims of child sexual abuse in this country, according to some estimates. These children typically suffer long-lasting effects of the abuse. This Note, in focusing on (step)father-daughter incest, looks at the predominance of males as perpetrators, daughters as victims, and mothers as non-abusers. The Note examines the dynamics within incestuous families and the characteristics common to each member in these families. It particularly considers the position of mothers in these families, who often are subservient to and financially dependent on the incest perpetrator. This Note then discusses how these mothers' …

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 …

War And P.E.A.C.E.: A Preliminary Report And A Model Statute On An Interdisciplinary Educational Program For Divorcing And Separating Parents, Andrew Schepard

University of Michigan Journal of Law Reform

This Article is a report on P.E.A.C.E. (Parent Education and Custody Effectiveness), an interdisciplinary attempt to create a parent education program in New York. P.E.A.C.E. is an educational program that provides information to parents on three topics: the legal process for determining custody and child support; the effects of divorce and separation on adults; and the effects of divorce and separation on children, and how parents can help children cope with this difficult transition. P.E.A.C.E. is education-nothing more. It is not mediation or therapy. Parents do not talk to each other directly during P.E.A.C.E. sessions and the program makes no …

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.

Designating Male Parents At Birth, Jeffrey A. Parness

University of Michigan Journal of Law Reform

In focusing on legal designations of male parentage as of the time of birth, this Essay first reviews the methods by which such designations currently are made. The difficulties raised by contemporary methods then will be explored, together with suggested reforms involving laws that could promote earlier, more complete, and more accurate designations of male parentage as of the time of a child's birth.

Religion And Child Custody, Carl E. Schneider

University of Michigan Journal of Law Reform

In this Essay, I want to reflect on some problems at the intersection of religion, law, and the family. Specifically, I will explore the ways courts may consider a parent's religiously motivated behavior in making decisions about the custody of children. More precisely still, I will ask two questions. First, may a court refuse to award custody because of a parent's religiously motivated behavior in a dispute between a natural mother and a natural father? Second, when should a court agree to resolve a dispute between divorced parents over the religious upbringing of their children? These are topics of quiet …

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. …