Law Commons^™

Creating And Maintaining Consistent Standards Regarding The Role Of Parental Substance Abuse At Shelter Care Hearings In Washington State, Emma Vanderweyst

Washington Law Review

When Child Protective Services (CPS) removes children from their home in Washington State, the State must hold a shelter care hearing within seventy-two hours to determine where the children should be placed while the investigation and dependency hearing proceed. RCW 13.34.065 requires the State to return a child to their parent’s care if there is a parent capable of caring for the child and there is no “serious threat of substantial harm” to the child. However, in July 2023, the Washington State Legislature will update RCW 13.34.065 to reflect a recently passed bill. This bill heightens the previous burden and …

Marital Disharmony: Examining The Adverse Spousal Testimonial Privilege And Its Impact In Washington State, Sabrina Suen

Washington Law Review

In Washington State, RCW 5.60.060(1) provides that “[a] spouse or domestic partner shall not be examined for or against his or her spouse or domestic partner, without the consent of the spouse or domestic partner.” This evidence rule, known as the adverse spousal testimonial privilege, allows a defendant to exclude witness testimony by their spouse under most circumstances. A product of common law tradition, this privilege stems from a time when the law treated women as chattel with no independent legal rights. Since Washington State codified the adverse spousal privilege, the United States Supreme Court amended the federal spousal testimonial …

Community Property And Conflict Of Laws: A Cacophony Of Cases, Karen Boxx

Articles

Justice Cardozo is reported to have said that "the average judge, when confronted by a problem in the conflict of laws, feels almost completely lost, and, like a drowning man, will grasp at a straw." Conflict of laws can be vexing, but the resolution of a controversy involving multiple states' marital property systems can quickly become impenetrable. This is in part due to the fundamental conceptual differences between community property and common law marital property paradigms, the inconsistencies in the use of similar terms in the different systems, and the significant differences among the laws of the community property states …

Inheritance Crimes, David Horton, Reid Kress Weisbord

Washington Law Review

The civil justice system has long struggled to resolve disputes over end-of-life transfers. The two most common grounds for challenging the validity of a gift, will, or trust— mental incapacity and undue influence—are vague, hinge on the state of mind of a dead person, and allow factfinders to substitute their own norms and preferences for the donor’s intent. In addition, the slayer doctrine—which prohibits killers from inheriting from their victims—has generated decades of constitutional challenges.

But recently, these controversial rules have migrated into an area where the stakes are significantly higher: the criminal justice system. For example, states have criminalized …

Judicial Discretion Is Advised: The Lack Of Discretionary Appointments Of Counsel For Children In Washington State Dependency Proceedings, Marisa Forthun

Washington Law Review Online

State agencies initiate dependency proceedings when a child is alleged, often due to parental neglect or abuse, to be a dependent of the state. The state must intervene “[w]hen parents do not comply with [Child Protective Services] requirements, or when the state believes the child is at too great a risk to remain at home even if parents were to comply with services.” Dependency proceedings usually take place in juvenile courts and involve the local state agency, the parents, and the child. After the government files a petition alleging circumstances of neglect or abuse, “[t]he court issues temporary orders regarding …

The Trauma Of Trump's Family Separation And Child Detention Actions: A Children's Rights Perspective, Jonathan Todres, Daniela Villamizar Fink

Washington Law Review

In April 2018, the Trump Administration publicly announced a new zero-tolerance policy for illegal entries at the U.S. border. This action kicked off a wave of family separations that made headlines and drew criticism from around the globe. Despite resounding condemnation of these actions, the Trump Administration defended its family separation policy as a “tough deterrent.” At least 2,600 families were torn apart in the ensuing months. And subsequent reports—from both the government and others—have detailed widespread abuses of and substandard conditions for children held in detention centers. The consequences of these separations and the maltreatment of children in detention …

Incarcerated Parents And Child Welfare In Washington, Sayer Rippey

Washington Law Review

From 2006 to 2016, 32,000 incarcerated parents in the United States permanently lost their parental rights without ever being accused of child abuse.1 Of these, approximately 5,000 lost their parental rights solely because of their incarceration.2 This “family separation crisis”3 followed on the heels of the Adoption and Safe Families Act (ASFA), a federal law which directs states to initiate parental termination proceedings against parents when their children have been in foster care for fifteen of the last twenty-two months.4 Some states, including Washington, attempted to mitigate ASFA’s devastating impact on incarcerated parents by adding exceptions for incarceration.5 This Comment …

The Dangers Of Disclosure: How Hiv Laws Harm Domestic Violence Survivors, Courtney K. Cross

Washington Law Review

People living with HIV or AIDS must decide whether, how, and when to disclose their positive status. State laws play an outsized role in this highly personal calculus. Partner notification laws require that current and former sexual partners of individuals newly diagnosed with HIV be informed of their potential exposure to the disease. Meanwhile, people who fail to disclose their positive status prior to engaging in sexual acts—even acts that carry low to no risk of infection—can be prosecuted and incarcerated for exposing their partners to HIV. Although both partner notification laws and criminal HIV exposure laws were ostensibly created …

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 …

Commercial Surrogacy Is The Sale Of Children? An Argument That Commercial Surrogacy Does Not Violate International Treaties, Lily Johnson

Washington International Law Journal

Rates of commercial surrogacy have risen with the proliferation of in vitro fertilization. The process is unique in allowing intending parents the opportunity to raise a child of their own genetic material even if they cannot procreate through their own bodies. However, commercial surrogacy has been abused and caused physical and legal problems for all parties involved. In an attempt to remedy the problems associated commercial surrogacy, some scholars and humanitarians claim commercial surrogacy is already illegal under an international treaty that bans the sale of children. These legal scholars and human rights advocates argue that commercial surrogacy is the …

Access To Safety And Justice: Service Of Process In Domestic Violence Cases, Jane K. Stoever

Washington Law Review

Every day, in courthouses across America, numerous domestic violence protection order cases are dismissed for lack of personal service, even though law enforcement is tasked under federal law with effectuating service. Service of process presents substantial access to justice and access to safety issues for domestic violence survivors who seek legal protection, as nearly 40% of petitioners for civil protection orders are unable to achieve personal service on those against whom they seek protection. Research shows that the civil protection order remedy is the most effective legal means for intervening in and eliminating abuse, yet petitioners who fail to achieve …

The Marital Wealth Gap, Erez Aloni

Washington Law Review

Married couples are wealthier than people in all other family structures. The top 10% of wealth holders are, in great proportion, married. Even among the wealthiest households, married couples hold significantly more wealth than others. The Article identifies this phenomenon as the “Marital Wealth Gap,” and critiques the role of diverse legal mechanisms in creating and maintaining it. Marriage also contributes to the concentration of wealth because marriage patterns are increasingly assortative: wealth marries wealth. The law entrenches or even exacerbates these class-based marriage patterns by erecting structural barriers that hinder people from meeting across economic strata. How can the …

Dignity, Inequality, And Stereotypes, Luke A. Boso

Washington Law Review

In Obergefell v. Hodges, the Supreme Court held that same-sex marriage bans violate the Equal Protection Clause for two primary reasons. First, they subordinate; they send the message that lesbians and gays are inferior to heterosexuals. Second, they unequally deny lesbian and gay individuals the liberty to make fundamental decisions about identity and self. These two conjoined themes—anti-group subordination and pro-individual liberty—comprise the two pillars of “equal dignity” that anchor Obergefell’s holding. This Article proposes that these pillars also support the Court’s anti-stereotyping jurisprudence, and equal dignity is thus one important aspect of what the Equal Protection Clause …

Parental Abduction And The State Intervention Paradox, Jane K. Stoever

Washington Law Review

For most of America’s history, the common law deemed the family a “private sphere” into which the government did not enter. In recent decades, however, the state has increasingly regulated the family in overprotective and overly punitive ways. Many current state interventions in the family are misdirected, penalizing abuse victims and intervening in undesired ways that create harm while failing to respond to pleas for help. A prime area in which the state paradoxically remains laissez-faire concerns the phenomenon of parental abduction, a pervasive and devastating problem that has received scant attention due to the socio-legal focus on stranger danger. …

Cohabiting With Property In Washington: Washington's Committed Intimate Relationship Doctrine, Tom Andrews

Articles

Washington has followed a community property system since at least 1869—twenty years prior to statehood. However, Washington rejected the doctrine of common law marriage quite early in 1892. For over one hundred years, in order to receive the advantages of the community property laws, a Washington couple has needed to have their relationship blessed with a ceremonial marriage or have a valid common law marriage in another state.

Accompanying these requirements for the formal establishment of a community property regime was the so-called "Creasman Presumption," which provided that "property acquired by a man and a woman not married to each …

Rights Of Incarcerated Parents, Angélica Cházaro

Chapters in Books

This chapter discusses the childcare and custody rights of incarcerated parents. According to the U.S. Department of Justice, an estimated 809,800 state and federal prisoners were parents to children under the age of eighteen in 2007. There are approximately 1,706,600 children under the age of eighteen who have a parent in prison.

As a parent in prison, you may fear that your child will not be cared for, that you will lose your child, or that your relationship with your child will suffer while you are incarcerated. This Chapter focuses on New York state law and describes how the law …

Backdating Marriage, Peter Nicolas

Articles

Many same-sex couples have been in committed relationships for years, even decades. Yet until 2004 no same-sex couples in the United States had the right to marry in any state and until the U.S. Supreme Court's 2015 decision in Obergefell v. Hodges the right was unavailable to same-sex couples nationwide. Due to this longstanding denial of the right to marry, most same-sex relationships appear artificially short when measured solely by reference to the couple's civil marriage date.

This circumstance has important legal consequences for many same-sex couples, as a number of rights associated with marriage are tied not merely to …

Not Too Separate Or Unequal: Marriage Penalty Relief After Obergefell, Mitchell L. Engler, Edward D. Stein

Washington Law Review

Joint tax returns have generated controversy for many years. Married couples with the same joint income pay the same tax under our current system regardless of the earnings distribution between the spouses. This approach primarily rests on the idea that married couples share resources and operate as a single economic unit. Critics typically challenge this assumption and lament how marriage might significantly change a couple’s taxes. Depending on their earnings breakdown, a couple’s taxes could be reduced (a marital bonus for uneven-earners) or increased (a marital penalty for even-earners). These possibilities exist because the joint brackets are typically larger–but not …

Not Too Separate Or Unequal: Marriage Penalty Relief After Obergefell, Mitchell L. Engler, Edward D. Stein

Washington Law Review

Joint tax returns have generated controversy for many years. Married couples with the same joint income pay the same tax under our current system regardless of the earnings distribution between the spouses. This approach primarily rests on the idea that married couples share resources and operate as a single economic unit. Critics typically challenge this assumption and lament how marriage might significantly change a couple’s taxes. Depending on their earnings breakdown, a couple’s taxes could be reduced (a marital bonus for uneven-earners) or increased (a marital penalty for even-earners). These possibilities exist because the joint brackets are typically larger–but not …

Until The Client Speaks: Reviving The Legal-Interest Model For Preverbal Children, Lisa Kelly, Alicia Levezu

Articles

This article seeks to revive and develop further the concept of legalinterest advocacy, which was first introduced by the American Bar Association in 1996. This overlooked model offers a workable alternative to both the best-interest and substituted-judgment representation models for preverbal clients. Through legal-interest advocacy, attorneys for preverbal children are charged with ensuring that the many rights given to infants are enforced, while withdrawing from attorneys the ability to impose their values on the child client. This article outlines how legal-interest advocacy representation can ensure that a child's legal rights are protected and preserved until the child client can speak …

Fundamental Rights In A Post-Obergefell World, Peter Nicolas

Articles

In this Article, I identify and critically examine three substantive criticisms raised by the dissents in the Supreme Court's 2015 decision in Obergefell v. Hodges, which struck down state laws and constitutional provisions barring same-sex couples from marrying within the state or having their out-of-state marriages recognized by the state. First, that the majority improperly framed the right at issue broadly as the right to marriage instead of narrowly as the right to same-sex marriage, conflicting with the Court's holding in Washington v. Glucksberg that in fundamental rights cases the right at issue must be framed narrowly, and in …

Divorce Equality, Allison Anna Tait

Washington Law Review

The battle for marriage equality has been spectacularly successful, producing great optimism about the transformation of marriage. The struggle to revolutionize the institution of marriage is, however, far from over. Next is the battle for divorce equality. With the initial wave of same-sex divorces starting to appear on court dockets, this Article addresses the distinctive property division problems that have begun to arise with same-sex divorce and that threaten, in the absence of rule reform, to both amplify and reinscribe problems with the conventional marital framework. Courts have failed to realize the cornerstone concept of equitable distribution—marriage as an economic …

Special Adoption Act (2012) (Korea), Sook Kim, Dong-Jin Douglas Hwang

Washington International Law Journal

The purpose of this Act is to set forth the necessary requirements and procedures of adopting a child in need of protection, and other matters necessary to support such adoptions, which are all aimed at promoting the rights and welfare of the adopted child.

Abandoned Babies: The Backlash Of South Korea's Special Adoption Act, Sook K. Kim

Washington International Law Journal

South Korea amended its adoption law to reduce the number of foreign adoptions and to keep children with their biological families. However, since the amendment took effect in August 2012, more babies have been abandoned. The amendment (hereinafter the “Special Adoption Act”) created three conditions on birthparents who wish to place their child up for adoption. First, birthparents must wait at least seven days after their child is born before they may consent to placing their child up for adoption. Second, birthparents must receive counseling on the various resources that would be available to them if they choose to raise …

Legislative History Of The Special Adoption Act (Legislative History) (2012) (Korea), Sook Kim, Dong-Jin Douglas Hwang

Washington International Law Journal

In order to focus adoption procedures on the welfare of the child, national supervision must be strengthened, and a policy must be established around the basic paradigm that the best protection of a child is for the child to be raised by his/her birth family and in his/her birth country.

Surrogacy And Windsor'S Penumbras, Susan Frelich Appleton

Washington Law Review Online

This article is a contribution to the Compensated Surrogacy in the Age of Windsor symposium.

Foreword: Compensated Surrogacy In The Age Of Windsor, Kellye Y. Testy

Washington Law Review

The authors in this timely symposium tackle the many and varied issues related to compensated surrogacy with sophisticated, diverse, and careful analysis. Moreover, they do so in the context of fast-paced legal and sociological change on issues of marriage and parenting, some of which was crystalized in the recent United States v. Windsor decision that spurred growing recognition of gay marriage and families across the nation.

Windsor, Surrogacy, And Race, Khiara M. Bridges

Washington Law Review

Scholars and activists interested in racial justice have long been opposed to surrogacy arrangements, wherein a couple commissions a woman to become pregnant, give birth to a baby, and surrender the baby to the couple to raise as its own. Their fear has been that surrogacy arrangements will magnify racial inequalities inasmuch as wealthy white people will look to poor women of color to carry and give birth to the white babies that the couples covet. However, perhaps critical thinkers about race should reconsider their contempt for surrogacy following the Supreme Court’s recent decision in United States v. Windsor. …

The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti

Washington Law Review

Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this Article plumbs the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of the federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle ways in which …

The Future Of Compensated Surrogacy In Washington State: Anytime Soon?, Terry J. Price

Washington Law Review

Americans in the mid-1980s were shocked by the facts of the Baby M case. That case, a compensated surrogacy arrangement that publicly went very wrong, raised complicated issues that the country had not considered: whether a woman could contract to carry a pregnancy for another person without becoming the legal mother; whether she could be separated from the child at birth, even though it was her genetic offspring; and whether the contract could take precedence over a mother’s regret over giving up the child. As a result of that case, a number of states, including Washington, prohibited compensated surrogacy arrangements. …