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Note: English Child Custody Law, 1660-1839: The Origins Of Judicial Intervention In Parental Custody, Sarah Abramowicz

Law Faculty Research Publications

Many legal historians see pre-1839 English child custody law as consisting of near-absolute paternal rights. These historians believe that the weakening of fathers' rights began with the 1839 Custody of Infants Act, which created certain maternal custody rights. Other historians have noted that paternal custody was qualified even before 1839 by the Court of Chancerys application of the doctrine of parens patriae. This Note tells a different story and argues that the origin of incursions into the so-called "empire of the father" was the 1660 Tenures Abolition Act, a statute that ironically seemed designed to strengthen fathers' rights. The …

Family Law And Gay And Lesbian Family Issues In The Twentieth Century, David L. Chambers, Nancy D. Polikoff

Articles

Over these thirty years, lesbians and gay men have increasingly challenged conventional definitions of marriage and the family. In this brief article, we tell the story of gay people and family law in the United States across this period. We divide our discussion into two sections: issues regarding the recognition of the same-sex couple relationship and issues regarding gay men and lesbians as parents. These issues overlap, of course, but since family law discussions commonly treat adult-adult issues of all sorts separately from parent-child issues, we believe it convenient and helpful to do so as well.

Who Determines Children's Best Interests?, Michael Grossberg

Articles by Maurer Faculty

No abstract provided.

Legal Images Of Motherhood: Conflicting Definitions From Welfare "Reform," Family And Criminal Law, Jane C. Murphy

All Faculty Scholarship

Part I of this Article explores the traditional idealized view of motherhood that child placement statutes and court decisions reflect. These laws include statutes and case law in custody disputes between parents and in child protection proceedings under civil and criminal laws where the dispute is between the parent and the state. Part II contrasts the legal construct of motherhood that child placement laws embody with the legal image of mothers in child support and welfare law.

Part III examines the impact of these conflicting images of motherhood on a particular group of mothers -- battered women. Battered women illuminate …

Child-Custody Adjudication - The Twentieth Century Dilemma: Reconciling The Best Interest Of The Child In A Cross-Cultural Setting, Jasmine Rita Renner

LLM Theses and Essays

Child Custody determination in family law is a herculean task. It typically depends on the balancing of interests between two parents that works in tandem with the best interest of the child. This paper addresses the legal and constitutional factors that affect custody adjudication in the 20th century such as feminist jurisprudence, and the growing concept of joint custody with primary caretaker rule. The paper also examines the role and impact of assisted reproductive technology on custody adjudication. Most importantly, the paper focuses on the best interest of the child doctrine under Article 3(1) of the United Nations Convention on …

Lesbian Divorce: A Commentary On The Legal Issues, David L. Chambers

Articles

Lesbian couples who break up will find themselves in an awkward position under the law for two separable but related reasons. The first is that, because they were unmarried, they are subjected by the law to much the same uneven and ambivalent treatment to which unmarried heterosexual couples are subjected. The second, of course, is that they are gay or lesbian and thus regarded with special disfavor even in some states that have become more tolerant of unmarried heterosexual relationships. As a law teacher who is gay and who writes about family law issues relating to gay men and lesbians, …

Comparativist Ruminations From The Bayou On Child Custody Jurisdiction: The Uccja, The Pkpa, And The Hague Convention On Child Abduction, Christopher L. Blakesley

Scholarly Works

Interstate and international jurisdictional problems are often vexing. They are worse in matters of child custody. In the past, jurisdiction to obtain custody or to modify a custody decree required only presence or domicile. The United States population is transient and custody decisions are subject to modification. The volatility of child custody disputes and the tendency of parents to move to different and separate jurisdictions traditionally caused and continue to cause difficult problems for children, parents, and the legal system. Before the promulgation of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), it was …

Court-Created Boundaries Between A Visible Lesbian Mother And Her Children, Susan J. Becker

Law Faculty Articles and Essays

This essay identifies some of the boundaries and obstacles imposed by the courts on a "visible" lesbian mother striving to maintain a healthy relationship with her children. The term "visible" is used to describe a mother whose lesbian sexuality has been revealed to a court empowered with defining her future contact with her children. The primary focus here is on children who were conceived through a heterosexual relationship, and where a heterosexual parent, grandparent, or other person is challenging the lesbian mother's right to custody of, or visitation with, her own children. Court created boundaries are identified and discussed in …

Bottoms V. Bottoms: In Whose Best Interest? Analysis Of A Lesbian Mother Child Custody Dispute, Peter N. Swisher

Law Faculty Publications

This Article traces and analyzes the series of legal and factual events leading up to the Virginia Supreme Court's contradictory and controversial decision in Bottoms v. Bottoms.

Give Them A Sword: Representing Parents In Child Custody Cases, William Tabac

Law Faculty Articles and Essays

First, this Essay demonstrates that, because the "best interests" standard that states use in awarding custody between parents is so arbitrary, lawyers cannot effectively protect the parental rights of their clients. Next, this Essay contends that, because fit parents will do anything to preserve their bond with their children, the state not only expects them to commit perjury to protect their parental rights, but encourages them to do so. Finally, this Essay argues that lawyers should lay out all possible strategies to their clients even if doing so invites parents to perjure themselves.

A Child's Right To Protection From Transfer Trauma In A Contested Adoption Case, Suellyn Scarnecchia

Articles

On August 2, 1993, I arrived at the home of Jan, Robby, and Jessica DeBoer' a few hours before the transfer. At 2:00 P.M. I would carry Jessica out of her home and deliver her to the parents who had won the case,2 her biological mother and father. This task probably would have been easier had I not spent eight days in the trial court listening to the experts explain that this transfer from one set of parents to another would harm Jessica.3 It would have been easier had I not recently obtained affidavits from other experts to persuade the …

Imagining Children's Rights, Suellyn Scarnecchia

Articles

Today, I will tell you some stories about real, live children, whose futures have been determined by our legal system. To speak of children's rights hypothetically, raises images of children suing to go live with their rich uncle or suing to demand a Nintendo system from their parents. I hope that by bringing you stories of the legal system's treatment of real children, you will have a better understanding of what I mean by children's rights and why they must be recognized. Although children's rights have been recognized in limited ways in the areas of free speech, criminal law and …

Child Support, Visitation, Shared Custody And Split Custody, Karen Czapanskiy

Faculty Scholarship

No abstract provided.

Who Is Jessica's Mother? Defining Motherhood Through Reality, Suellyn Scarnecchia

Other Publications

The recent Baby Jessica case and others like it have renewed the nature versus nurture debate in family law. Baby Jessica's biological parents, the Schmidts, sought to obtain permanent custody of their daughter after giving her up for adoption to the DeBoer family. Their argument was one that found its basis in biology and the idea of a traditional family. On the other hand, with the assistance of Professor Scarnecchia, the DeBoers argued that it was more important forJessica's overall health to remain with her primary caretakers of two years. Courts, however, have taken a more traditional view of this …

A Case Of Clothing And Smell Obsession In A Bisexual Adult Woman, Marianne Wesson

Publications

No abstract provided.

Child Protection Law, Suellyn Scarnecchia

Book Chapters

The Fifth and Fourteenth Amendments to the U.S. Constitution protect a parent's custodial rights. However, such rights are not absolute and may be terminated. There is no substantive due-process right to live together as a family. Doe v Oettle, 97 Mich App 183, 293 NW2d 760 (1980). Parents are not held to ideal standards in the care of their children but to minimum statutory standards. Fritts v Krugh, 354 Mich 97, 92 NW2d 604 (1958).

Summary Report On Hearing On Child Custody, Senate Select Committee On Women In The Workforce

California Senate

No abstract provided.

A Tale Of Two Religions: A Contractual Approach To Religion As A Factor In Child Custody And Visitation Disputes, Rebecca Korzec

All Faculty Scholarship

This article focuses on the role of religious conflict between parents in determining child custody and visitation disputes. It suggests a framework for reconciling parental control over religious observance and training with the state's duty to protect the child's best interests. First, it examines the history of English and American child custody law and analyzes modern custody cases in which religion is a factor. Next, it addresses the alarming recent attempt by courts to resolve religious disputes with a shared custody approach, awarding 'spiritual custody' to one parent and 'physical custody' to the other. Finally, this article proposes a contractual …

Stepparents, Biologic Parents, And The Law's Perception Of 'Family' After Divorce, David L. Chambers

Book Chapters

The drama of divorce always contains at least two characters, a woman and a man, and often a third, a child born to the woman and the man. If you have read the other chapters of this book, you have rarely encountered any of the other persons who may be affected by a divorce, such as the children of either person from a prior marriage, or later spouses or partners of either party, or later born children of either party-all the persons who are or become stepchildren or stepparents. You have not encountered them because, in this country, with minor …

The Federal Government And A Program Of 'Advance Maintenance' In The United States, David L. Chambers

Book Chapters

Israel and several European nations including Austria, Denmark, Sweden, and West Germany, have adopted programs of ''advance maintenance''-programs under which, in varying forms, the state advances to a custodial parent the child support owed by an absent parent and then seeks to reimburse itself by collecting from the absent parent. The programs differ widely-,on the maximum that the government will advance to any one family, on the number of years an order of advance payments can remain in effect, on the efforts, if any, that the custodial parent must have made to collect from the absent parent-but all have in …

A Civil Liberties Analysis Of Surrogacy Arrangements, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In this essay the author comes to the following conclusions based upon a civil liberties analysis. First, surrogacy arrangements cannot be prohibited or criminalized. Second, the state cannot ban the exchange of money for surrogacy services, provided the money is paid for conception, gestation, and birth. Money, however, cannot be paid on condition that the gestational mother waive her parental rights over the child. Third, contractual provisions that require the gestational mother to waive her parental rights or her rights to privacy and autonomy are void and unenforceable. Fourth, when the child is born, both the gestational mother and the …

The Abuses Of Social Science: A Response To Fineman And Opie., David L. Chambers

Articles

Martha Fineman and Anne Opie have written an article on the misuses of social science research by those who are recommending policies for the placement of children after divorce.' The subject is important. When Professor Fineman told me that she and Opie were using an article I wrote about child custody2 as an example of some of the problems they discussed, I anticipated a useful exchange on the subject. Having read their article, I have decided against an exchange on the merits of the larger issues they raise. I have so decided because their article, which refers extensively to my …

Kentucky Law Survey: Domestic Relations, Louise Everett Graham

Law Faculty Scholarly Articles

The following article presents a survey of domestic relations law in the Commonwealth of Kentucky. During the survey period, the Kentucky appellate courts faced a series of cases that involved not only the usual problems relating to property division, post divorce support obligations and child custody, but which also implicated a number of federal statutory attempts' to regulate areas long considered solely the province of state regulation. The presence of new federal legislation in these areas represents Congressional attempts to solve some major difficulties in the domestic relations area. Few persons would argue, for example, that the battle for jurisdiction …

Consultants' Comments On The New York State Law Revision Commission Recommendation On The Child Custody Dispute Resolution Process, Linda Silberman, Andrew Schepard

Hofstra Law Faculty Scholarship

As the consultants to the New York State Law Revision Commission for its Recommendation concerning the child custody dispute resolution process, we share significantly in the credit for and the criticism of the Commission's work. One goal of our effort was to focus attention on the needs of parents and children involved in divorce ─ needs to which the legal system must respond. Public hearings have sharpened that issue and even raised questions about basic premises of the Recommendation. But the purpose of these Comments is to respond to some misconceptions that have arisen, by summarizing the philosophy and features …

Rethinking The Substantive Rules For Custody Disputes In Divorce, David L. Chambers

Articles

A few states, mostly in the West and South, still retain a preference in custody disputes for placing young children with their mothers. In most other states, legislatures or courts have replaced the maternal presumption with a rule directing courts to be guided solely by the child's "welfare" or "best interests." A few legislatures have created a new preference for joint custody, directing courts to consider favorably requests by a parent for such arrangements, even over the objection of the other parent. This Article argues that the trend away from the maternal presumption is sensible, but that the current best-interests …

Kentucky Law Survey: Domestic Relations, Louise Everett Graham, Janet Jakubowicz

Law Faculty Scholarly Articles

In the decade since Kentucky's adoption of the Uniform Marriage and Divorce Act (UMDA), appellate domestic relations opinions have focused primarily upon property division and child custody. Recent decisions continue this emphasis but also address problems regarding the marital relationship, spousal maintenance, and child support. This article provides a survey of Kentucky law in the field of domestic relations.

Child Custody And Parental Authority In France, Louisiana And Other States Of The United States: A Comparative Analysis, Christopher L. Blakesley

Scholarly Works

No abstract provided.

Joint Custody, Carolyn S. Bratt

Law Faculty Scholarly Articles

Shared custody has traditionally been looked upon with disfavor by the courts. Similarly, some professionals in the field of child development oppose the concept of shared custody. There are, however, several advantages to shared custody. The legal system benefits, as judges escape the unenviable task of playing Solomon. The child benefits because both parents continue to have a voice in the child’s upbringing, and the child continues to enjoy the love, advice, and companionship of both parents. In addition, because both parents share the responsibility of child raising, neither is faced with the loss of self-esteem which results from being …

Family Law (Survey Of Kansas Law), Dan Hopson, John W. Brand Jr.

Articles by Maurer Faculty

No abstract provided.

Family Law (Survey Of Kansas Law), Dan Hopson Jr.

Articles by Maurer Faculty

No abstract provided.