Law Commons^™

Child Custody Is No Place For A Magic Formula: Why A Presumption Of 50/50 Physical Custody In West Virginia Is Not In Its Children's Best Interests, Stephanie R. Weber

West Virginia Law Review

The “best interest of the child” standard is used throughout family law and is the generally accepted standard for determining custody disputes. However, many states have introduced, and some have enacted, legislation that creates a presumption of joint, or “50/50,” physical custody between the parents. As psychological studies have shown, instability typically found in custody disputes can have a significant impact on a child’s life, influencing attachment style and abilities to successfully self-regulate. These findings make the 50/50 presumption a flawed concept. Courts should be able to take factors supported by this research into account when making custody determinations as …

Surrogacy And Human Flourishing, Seow Hon Tan

Research Collection Yong Pung How School Of Law

Opposition to legalizing surrogacy often involves the argument that it commodifies or objectifies women and children. When surrogacy involves consenting parties claiming to benefit from the transaction, commodification- or objectification-based arguments seem unpersuasive. This article argues that new natural law theory offers an alternative case against legalizing surrogacy based on the violation of basic goods of human flourishing, a notion which unpacks afresh what is really at stake in the commodification/objectification arguments. Exploring the new natural law approach through John Finnis’s theory, this article suggests that the new natural law case against surrogacy hinges on the link between childbirth and …

Bringing Specificity To Child Custody Provisions In California, Shawn Mccall

Golden Gate University Law Review

This Comment evaluates the empirical evidence from social science studies to demonstrate that there is currently a sturdy body of social science research to justify using tangible evidence to define terms in the California Family Code, the California Family Courts, and beyond. Because the standard for custody determinations in California is the “best interest of the child” per the state’s legislation, social science research provides a vehicle that can define the “best interest of the child standard.” This Comment argues that this can be done empirically by calculating the minimum amount of time a child—in the aggregate— needs with each …

Unregulated Custody Transfers: Why The Practice Of Rehoming Should Be Considered A Form Of Illegal Adoption And Human Trafficking, Michael D. Aune

Georgia Journal of International & Comparative Law

No abstract provided.

Matter Of Kevin M., Donna A. Napolitano

Touro Law Review

No abstract provided.

Biology, Genetics, Nurture, And The Law: The Expansion Of The Legal Definition Of Family To Include Three Or More Parents, Myrisha S. Lewis

Nevada Law Journal

No abstract provided.

Legal And Medical Ethical Entanglements Of Infant Male Circumcision And International Law, Paul Jerome Mclaughlin Jr.

Library Faculty Publications

The practice of infant male circumcision has been debated by legal and medical experts for years. The practice, once seen as a social norm, has come under opposition by children’s rights, legal, and medical organisations around the world. In order to meet the requirements of international treaty law and allow infant male children the fullest opportunity for self determination, infant male circumcision must be treated under the law and by medical practitioners with the same degree of opposition that female genital mutilation has received.

Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the conceptualization and methodologies of determining legal parentage in the U.S. and other countries in the western world. Through various sociological shifts, growing social openness and bio-medical innovations, the traditional definitions of family and parenthood have been dramatically transformed. This transformation has led to an acute and urgent need for legal and social frameworks to regulate the process of determining legal parentage. Moreover, instead of progressing in a piecemeal, ad-hoc manner, the framework for determining legal parentage should be comprehensive. Only a comprehensive solution will address the differing needs of today’s …

Separated At Adoption: Addressing The Challenges Of Maintaining Sibling-Of-Origin Bonds In Post-Adoption Families, Rebecca L. Scharf

Scholarly Works

This Article explores the ways children, many of whom are in foster care, are psychologically harmed by the law’s failure to ensure that the bonds they have with their siblings-of-origin are not permanently broken when one of the siblings is adopted; it therefore proposes ways that courts can better protect children from the psychological harm of having a biological sibling permanently removed from their life. It suggests that what is needed is a framework that allows visitation by biological siblings with whom children have formed attachments without unnecessarily intruding on the fundamental liberty interest of the adoptive parents at issue …

Alone And Unrepresented: A Call To Congress To Provide Counsel For Unaccompanied Minors, Shani M. King

Shani M. King

The legal rights of children who enter a country without their parents or other guardians, including the right to legal representation in immigration proceedings, differ vastly across the globe. This Article is the first to show that unaccompanied minors lie at the nexus of international and regional human rights standards governing the treatment of immigrants, children, and civil counsel and to show how the development of human rights standards in these three areas underscores the importance of and the need for counsel for unaccompanied minors. Part I illustrates why unaccompanied minors in the United States need legal representation by focusing …

A Difficult Situation Made Harder: A Parent's Choice Between Civil Remedies And Criminal Charges In International Child Abduction, Donyale N. Leslie

Georgia Journal of International & Comparative Law

No abstract provided.

The State, Parents, Schools, "Culture Wars", And Modern Technologies: Challenges Under The U.N. Convention On The Rights Of A Child, Nora V. Demleitner

Scholarly Articles

This paper focuses on some of the core principles of the U.N. Convention on the Rights of the Child and their application under U.S. state and federal law. While the United States has not ratified the Convention, it is a signatory. Many of the most intractable cultural issues in the United States involve children and their rights to participation, information, and decision-making. Frequently, primary and secondary education presents a fertile battle ground for “cultural clashes” between parents, schools, and state officials. In the private context, both U.S. law and the U.N. Convention have adopted the “best interests of the child” …

Supreme Court, Kings County, Wilson V. Kilkenny, James Dougherty

Touro Law Review

No abstract provided.

Toward A Child-Centered Approach To Evaluating Claims Of Alienation In High-Conflict Custody Disputes, Allison M. Nichols

Michigan Law Review

Theories of parental alienation abound in high-conflict custody cases. The image of one parent brainwashing a child against the other parent fits with what we think we know about family dynamics during divorce. The concept of a diagnosable “Parental Alienation Syndrome” (“PAS”) developed as an attempt to explain this phenomenon, but it has been widely discredited by mental health professionals and thus fails the standard for evidentiary admissibility. Nevertheless, PAS and related theories continue to influence the decisions of family courts, and even in jurisdictions that explicitly reject such theories, judges still face the daunting task of resolving these volatile …

Children, Parents & The State: The Construction Of A New Family Ideology, Deseriee A. Kennedy

Deseriee A. Kennedy

More than twenty-five states allow courts to consider parental incarceration or conviction of a crime in determining whether to terminate parental rights. This problem is of increasing significance as a result of dramatic growth in incarceration rates, particularly among women who were often the primary and sole caretaker of their children before their imprisonment. Social scientists have recognized that the reality for parents in many communities is one of widespread and repeated incarceration, which has a devastating effect on families and communities. The problem is magnified by a failed drug policy and the Adoption and Safe Families Act, which, in …

Seen But Not Heard: Advocating For Children In New York State, Sarah L. Marx

Touro Law Review

On November 1, 2008, the New York State Bar Association House of Delegates approved a resolution affirming their commitment towards establishing a civil right to counsel in New York State. One of the issues identified is a child's right to representation not only in criminal, but also civil proceedings. Unlike other litigant groups, children have a statutorily established right to council in civil proceedings. However, as the white paper, adopted by the New State Bar Association, details, there are gaps in children 's advocacy throughout New York State. While significant steps towards improvement have recently taken place, there is still …

Alone And Unrepresented: A Call To Congress To Provide Counsel For Unaccompanied Minors, Shani M. King

UF Law Faculty Publications

The legal rights of children who enter a country without their parents or other guardians, including the right to legal representation in immigration proceedings, differ vastly across the globe. This Article is the first to show that unaccompanied minors lie at the nexus of international and regional human rights standards governing the treatment of immigrants, children, and civil counsel and to show how the development of human rights standards in these three areas underscores the importance of and the need for counsel for unaccompanied minors. Part I illustrates why unaccompanied minors in the United States need legal representation by focusing …

2011 Survey Of Juvenile Law, Michael J. Dale

Faculty Scholarship

Atypically, the Supreme Court of Florida was not active during the past year, deciding no cases in the juvenile law field. On the other hand, the intermediate appellate courts were active both in the delinquency area and in the dependency field. As in the past, decisions in the delinquency area involving generic issues of criminal procedure not unique to juvenile delinquency are not covered in this article.

Children, Parents & The State: The Construction Of A New Family Ideology, Deseriee A. Kennedy

Scholarly Works

More than twenty-five states allow courts to consider parental incarceration or conviction of a crime in determining whether to terminate parental rights. This problem is of increasing significance as a result of dramatic growth in incarceration rates, particularly among women who were often the primary and sole caretaker of their children before their imprisonment. Social scientists have recognized that the reality for parents in many communities is one of widespread and repeated incarceration, which has a devastating effect on families and communities. The problem is magnified by a failed drug policy and the Adoption and Safe Families Act, which, in …

Three Lies And A Truth: Adjudicating Maternity In Surrogacy Disputes, Browne C. Lewis

Law Faculty Articles and Essays

Historically, courts were called on to answer the following question: What makes a man a legal father? Courts applied different presumptions to arrive at the answer. For example, if the case involved a married couple, the woman's husband was presumed to be the legal father.1 In situations involving an unmarried woman, the man who helped to conceive the child was the legal father. While paternity was being litigated, maternity was resolved-the woman who gave birth to the child was the child's legal mother. The phrase “momma's baby, papa's maybe” reflected society's attitude towards maternity. Since the woman who gave birth …

Should Child Custody Awards Be Based On Past Caretaking? The Effect Of The Approximation Standard Ten Years After Its Adoption., Molly L. Sanders

Molly L Sanders

Proper legal standards are needed to help judges make difficult decisions regarding child custody. Standards create the framework in which individual’s bargain, so a proper legal standard can reduce litigation and hostility between parties. The current custody law in the majority of states is the generalized best interest of the child standard. Under this standard custody is determined using a non-exclusive list of factors to predict which parent will better enhance the child’s future well-being. The best interest standard has been criticized because it is a discretionary standard, which provides little guidance to judges who must then rely on their …

It's The Hard Luck Life: Women's Moral Luck And Eucatastrophe In Child Custody Allocation, Lolita Buckner Inniss

Publications

No abstract provided.

Child Custody Modification Law: The Never-Ending Battle For Peace Of Mind, Brianna F. Isserdutt

Nevada Law Journal

Ellis v. Carucci represents an evolution in Nevada’s child custody laws that should continue. Before Ellis, Nevada courts modified custody arrangements without explicitly considering the best interests of the child. Ellis cemented the legislative intent behind Nevada Revised Statute (NRS) § 125.4803 to make the child’s best interest the focus of the judge’s decision in custody cases.

However, Ellis and NRS §125.480 are not enough to accomplish this overarching goal. The Nevada legislature should revise NRS § 125.480 so that the statute explicitly recognizes the instability and adjustments that children of divorce must endure. The statute should also be revised …

Two Fathers, One Dad: Allocating The Paternal Obligations Between The Men Involved In The Artificial Insemination Process, Browne C. Lewis

Law Faculty Articles and Essays

Nadya Suleman used sperm from a man she knows to conceive fourteen children using assisted reproduction. It is clear that Suleman is the legal mother of the children. The unanswered question is: "Are the children legally fatherless?" The answer to this question is important because experts predict that it will take well over one million dollars to support the children until they reach the age of majority. My article seeks to provide some insight into the resolution of this issue. Although Suleman did not conceived using artificial insemination, the information examined in my article may be applied to her situation. …

Incorporating A 'Best Interests Of The Child' Approach Into Immigration Law And Procedure, Bridgette A. Carr

Articles

United States immigration law and procedure frequently ignore the plight of children directly affected by immigration proceedings. This ignorance means decision-makers often lack the discretion to protect a child from persecution by halting the deportation of a parent, while parents must choose between abandoning their children in a foreign land and risking the torture of their children. United States immigration law systematically fails to consider the best interests of children directly affected by immigration proceedings. This failure has resulted in a split among the federal circuit courts of appeals regarding whether the persecution a child faces may be used to …

It Takes Three, Baby: The Lack Of Standard, Legal Definitions Of “Best Interest Of The Child” And The Right To Contract For Lesbian Potential Parents, Harvey L. Fiser, Paula K. Garrett

Harvey L. Fiser

In order to consider the plausibility of contracts regarding AI, this article will first review various options and legal ramifications for choices regarding AI and then focus on the effect of inconsistent application of the Uniform Parentage Act among states that have chosen to adopt any legislation. This legal conundrum creates major obstacles for lesbian couples in procreation and in legal protection for children and often denies lesbian Americans the right to equal enforcement of contracts. This article will then consider how the current standard of “best interest of the child” is being used in the absence of the UPA …

A Plea For Permanence After Termination Of Parental Rights: Protecting The Best Interests Of The Child In Ohio, Daniel A. Starett

Cleveland State Law Review

Ohio's R.C. 2151.313 must be amended to allow the courts to protect the best interest of the children for whom they are in place to serve, even if this means that occasionally a parent who was once adjudged to be incapable of caring for her child, and whose rights were subsequently terminated, may be the best, and often only, option to save that child from the dangers of the foster care system. Part II of this Note will explore the dangers of exposure to the foster care system, illustrate why we need to protect children from prolonged exposure to the …

When Did Lawyers For Children Stop Reading Goldstein, Freud And Solnit? Lessons From The Twentieth Century On Best Interests And The Role Of The Child Advocate, Jane M. Spinak

Faculty Scholarship

Between 1973 and 1986, Joseph Goldstein, Anna Freud, and Albert Solnit published three influential but controversial books on the best interests of the child that had an enormous impact on state decisions to intervene in family life and direct the placement of children. During the same period, children in child welfare proceedings were increasingly represented by lawyers or guardians ad litem whose advocacy included understanding and interpreting the meaning of best interests. This article begins by tracing a conversation of sorts that occurs between the authors and other scholars and practitioners as their ideas begin to influence decision-making in child …

The Evolution - Or End - Of Marriage?: Reflections On The Impasse Over Same-Sex Marriage, Linda C. Mcclain

Faculty Scholarship

The debate over legalization of same-sex marriage implicates the question of whether doing so would signal the end - or destruction - of the institution of marriage, or instead would be an appropriate evolution of marriage laws that is in keeping with the ends of marriage and with relevant public values. This essay comments on an earlier published debate on that question: Special Issue: The Evolution of Marriage, 44 Family Court Review 33-105 (2006). The essay contends that the appeal to preserving a millennia-old tradition of marriage against destruction fails to reckon with the evolution of the institution of civil …

Protecting The Parent-Child Relationship: The Need For Illinois Courts To Extend Standing To Non-Biological Parents In Regard To Visitation Proceedings, Desiree Sierens

Northern Illinois University Law Review

Each year, children in Illinois are denied the opportunity to visit a "parent" because the children's families do not fit into traditionally defined family units. Under Illinois law, one "parent" in these non-traditional families lacks standing to petition for custody and visitation. While Illinois courts have a tradition of extending rights to common law parents, current courts have declined to follow previous rulings when asked to extend standing to the same-sex partner of the biological parent, even in cases where the couple, together, agreed to have the child. This comment will argue that maintaining relationships between a non-biological parent and …