Family Law Commons^™

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 …

No Harm, No Foul? Why Harmless Error Analysis Should Not Be Used To Review Wrongful Denials Of Counsel To Parents In Child Welfare Cases, Vivek Sankaran

Articles

The application of a harmless error standard by appellate courts reviewing erroneous denials of counsel in child protective cases undermines a critical procedural right that safeguards the interests of parents and children. Case law reveals that trial courts, on numerous occasions, improperly reject valid requests for counsel, forcing parents to navigate the child welfare system without an advocate. Appellate courts excuse these violations by speculating that the denials caused no significant harm to the parents, which is a conclusion that a court can never reach with any certainty. The only appropriate remedy for this significant problem is a bright-line rule …

Child Friendly Legal Aid In Africa, Diane C. Geraghty, Thomas F. Geraghty

Faculty Publications & Other Works

No abstract provided.

Give Peace A Chance: A Guide To Mediating Child Welfare Cases, Jennifer Baum

Faculty Publications

(Excerpt)

Would you like to speed up your cases, achieve more satisfying results for your clients, and cut back on needlessly polarizing motion practice? Since its introduction in the 1980s, child welfare mediation has helped attorneys do just that by facilitating resolutions in child protective disputes more quickly, less contentiously, and with more acceptance from stakeholders than its courtroom alternative, adversarial litigation.

If you've handled dependency cases for any length of time, you are already familiar with the crushing caseloads, emotional volatility, and high-stakes decision-making that are the hallmarks of child welfare litigation. In a growing number of jurisdictions, attorneys …

More Therapeutic, Less Collaborative? Asserting The Psychotherapist-Patient Privilege On Behalf Of Mature Minors, Bernard P. Perlmutter

Articles

No abstract provided.

Towards A New Lens Of Analysis: The History And Future Of Religioius Exemptions To Child Neglect Statutes, Gregory Engle

Law Student Publications

In order to analyze the religious exemptions, this paper will begin with their history. Part II looks at the Child Abuse Prevention and Treatment Act of 1974 (CAPTA) the statute that precipitated their spread, as well as the justifications that it was bolstered upon: Free Exercise of religion and parental rights. The Equal Protection critique follows as Part III, followed by Part IV that discusses the traditional critique, grounded in the Establishment Clause. In Part V, the article will finish with an explanation of why the Equal Protection critique is a much stronger criticism.

Unfettered Discretion: Criminal Orders Of Protection And Their Impact On Parent Defendants, David Jaros

All Faculty Scholarship

The last two decades have witnessed an astonishing increase in the use of the criminal justice system to police neglectful parents. Recasting traditional allegations of neglect as criminal charges of endangering the welfare of a child, prosecutors and the police have involved criminal courts in the regulation of aspects of the parent child relationship that were once the sole province of family courts. This Article explores the legal implications of vesting judges in these cases with the unfettered discretion to issue protective orders that criminalize contact between a parent and her child. I argue that procedures for issuing protective orders …

Addressing Truancy Is A Complex Challenge, Barbara A. Babb, Gloria Danziger

All Faculty Scholarship

No abstract provided.

A More Humane Vision Of Family Law: Holistic Approach Needed To Shield Children From The Trauma Of Breakups, Barbara A. Babb, Mitchell K. Karpf

All Faculty Scholarship

No abstract provided.

The Power Of The Parental Trump Card: How And Why Frazier V. Winn Got It Right, Jocelyn Floyd

Chicago-Kent Law Review

When two fundamental rights are in conflict, such that the protection of one requires the infringement of the other, courts must weigh those rights against each other to determine which is ultimately greater. In Frazier v. Winn, the Eleventh Circuit dealt with precisely such an issue: specifically, the rights of parents pitted against those of their children. This note explores the history of both parental rights and student's rights in school to show why the court appropriately affirmed that children's right to free speech is only as expansive as their parents allow, justified by the parents' fundamental right to …

Essay: (Re)Constructing The Framework Of Work/Family, Nancy E. Dowd

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Browning Of America—Multicultural And Bicultural Families In Conflict: Making Culture A Customary Factor For Consideration In Child Custody Disputes, Cynthia R. Mabry

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The State Of The American Child: Securing Our Children’S Future: Hearing Before The Subcomm. On Children & Families Of The S. Comm On Health, Educ., Labor & Pensions, 111th Cong., Nov. 18, 2010 (Statement Of Professor Peter B. Edelman, Geo. U. L. Center), Peter B. Edelman

Testimony Before Congress

You have asked me to reflect on the achievements and disappointments of recent decades with regard to child poverty in our country, on lessons learned, and on what we need to do going forward.

It is impossible to understand child poverty trends without placing them in a context of what has happened to the American economy and to the distribution of income and wealth. Except for the last half of the 1990s, the economic history of the past four decades has been one of near‐stagnation for people with jobs that pay below the median wage in the country ‐‐ the …

Specialization Has The Potential To Lead To Uneven Justice: Domestic Violence Cases In The Juvenile And Domestic Violence Courts, Allison Cleveland

The Modern American

No abstract provided.

International Commercial Surrogacy And Its Parties, 43 J. Marshall L. Rev. 1009 (2010), Margaret Ryznar

UIC Law Review

No abstract provided.

Resurrecting Parents Of Legal Orphans: Un-Terminating Parental Rights, Lashanda Taylor Adams

Journal Articles

Despite federal and state legislation that requires termination of parental rights when a child has remained in foster care for a specified period of time, studies indicate that relationships with their biological parents (and other relatives) remain important to children in foster care.3 Especially for children whose parents’ parental rights have been terminated, the connection with their biological parent remains central to their development and these children make efforts to maintain that connection. Once it becomes clear that the purpose for terminating the parental rights (i.e., freeing the child for adoption) will not be served, in an increasing number of …

The Indian Child Welfare Act., Frank Vandervort

Book Chapters

Few child welfare lawyers routinely confront the application of the Indian Child Welfare Act (ICWA or "the Act"). When the statute applies, however, it is crucial that its provisions be strictly followed. There are at least three reasons why counsel should attempt to ensure that ICWA's provisions are carefully applied. First, ICWA's provisions are jurisdictional. Failure to abide by its requirements invalidates the proceeding from its inception. Indeed, any party or the court may invoke ICWA at any time in the proceeding, including for the first time on appeal. Second, unlike most federal child welfare legislation which provides funding streams …

How Much Anguish Is Enough - Baby Switching And Negligent Infliction Of Emotional Distress, 13 Depaul J. Health Care L. 255 (2010), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

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 …

Filling The Due Process Donut Hole: Abuse And Neglect Cases Between Disposition And Permanency, Joshua Gupta-Kagan

Faculty Scholarship

Abuse and neglect cases involve constantly changing facts. They “are unlike civil cases, which typically involve only facts gone by ... The ultimate parties in interest are the [children] themselves. And for them, their lives are ... ongoing event[s].” A child’s need to return to his parent may ebb or flow. His parent’s fitness may improve, regress, or remain the same. Federal law, followed in all states that wish to receive federal funds to support foster care, requires regular permanency hearings so family courts can make decisions based on evolving factual situations. These decisions, and the lack of greater procedural …

Federal Child Welfare Legislation., Frank Vandervort

Book Chapters

This chapter provides a brief overview of federal statutes that impact the practice of child welfare law. Since the enactment of the Child Abuse Prevention and Treatment Act in 1974 (CAPTA), the federal government has played an ever increasing role in handling child maltreatment cases.

A Hidden Crisis: The Need To Strengthen Representation Of Parents In Child Protective Proceedings, Vivek Sankaran

Articles

A national consensus is emerging that zealous legal representation of parents is crucial in ensuring that the child welfare system produces just outcomes for children. National groups, inclucing the Pew Commission on Children in Foster Care, the American Bar Association Center on Children and the Law, and the National Association of Counsel for Children, have been outspoken on the need to strengthen legal advocacy on behalf of parents, and a number of states-including Colorado, Connecticut,' and Washington7 have initiated efforts to comprehensively reform their systems of appointing lawyers for indigent parents to better serve families. A national movement is afoot …

Representing Parents In Child Welfare Cases, Vivek Sankaran

Book Chapters

A parent's constitutional right to raise his or her child is one of the most venerated liberty interests safeguarded by the Constitution and the courts.2 The law presumes parents to be fit, and it establishes that they do not need to be model parents to retain custody of their children.3 If the state seeks to interfere with the parent-child relationship, the Constitution mandates that the state: (1) prove parental unfitness, a standard defined by state laws; and (2) follow certain procedures protecting the due process rights of parents. The constitutional framework for child welfare cases is premised on the belief …

A Look Back And A Look Forward: Legislative And Regulatory Highlights For 2008 And 2009 And A Discussion Of Juvenile Transfer, Andrew K. Block

University of Richmond Law Review

No abstract provided.

Collateral Children: Consequence And Illegality At The Intersection Of Foster Care And Child Support, Daniel L. Hatcher

All Faculty Scholarship

This Article is the third in a series addressing the conflict between state revenue maximization strategies and the missions of state agencies serving low-income children. The Article examines the policy of foster care cost recovery through child support enforcement. When children are removed from poor families and placed in foster care, federal law requires child welfare agencies to initiate child support obligations against the parents. Resulting payments do not benefit the children but are converted into a government funding stream to reimburse the costs of foster care. This cost recovery effort often subordinates the child welfare system’s primary goals of …

Legal Strategies To Address Child Support Obligations For Nonresident Fathers In The Child Welfare System, Daniel L. Hatcher

All Faculty Scholarship

The legal and practical issues surrounding child support obligations have enormous impact on families in the child welfare system. Unfortunately, these issues are often ignored, overlooked, or misunderstood. A much-needed effort to engage nonresident fathers in the child welfare system is underway, but those efforts will often be derailed if child support is not properly addressed. This article sheds light on the legal and policy concerns regarding child support enforcement in child protection cases and provides legal strategies for advocates to address those concerns. While primarily aimed at advocates for nonresident fathers, this article should also benefit advocates for custodial …

Parent Education Programs: Review Of The Literature And Annotated Bibliography, Barbara A. Babb, Gloria Danziger, Judith D. Moran, Itta Englander

All Faculty Scholarship

Court-connected parent education programs are an integral family service component in most of the nation’s family courts. These programs are implemented to enable the courts to respond efficiently and effectively to the proliferation of cases involving separation, divorce, and related issues such as child custody and access (Sigal, Sandler, Wolchik, and Braver, 2008; Pollet and Lombreglia, 2008; McIntosh and Deacon-Wood, 2003). Since 2007, parent education classes are mandatory in forty-six states (Pollet and Lombreglia, 2008). In Maryland, every court with jurisdiction over divorce and child custody matters utilizes some form of parent education.

The findings discussed in this literature review …

Jurors’ Perceptions Of Juvenile Defendants: The Influence Of Intellectual Disability, Abuse History, And Confession Evidence, Cynthia J. Najdowski, Bette L. Bottoms, Maria C. Vargas

Psychology Faculty Scholarship

Understanding jurors’ perceptions of juvenile defendants has become increasingly important as more and more juvenile cases are being tried in adult criminal court rather than family or juvenile court. Intellectual disability and child maltreatment are overrepresented among juvenile delinquents, and juveniles (particularly disabled juveniles) are at heightened risk for falsely confessing to crimes. In two mock trial experiments, we examined the effects of disability, abuse history, and confession evidence on jurors’ perceptions of a juvenile defendant across several different crime scenarios. Abused juveniles were treated more leniently than nonabused juveniles only when the juvenile’s crime was motivated by self-defense against …

Child Custody Evaluations: Review Of The Literature And Annotated Bibliography, Barbara A. Babb, Gloria Danziger, Judith D. Moran, J. Mason Weeda, William A. Mack

All Faculty Scholarship

This review of custody evaluation literature encompasses a number of perspectives gleaned from the following: practitioners who perform the evaluations; the professional organizations that recognize the necessity to establish performance standards for practitioners; and the judges who depend on the findings and recommendations in the evaluations to assist with difficult custody decisions.

General agreement exists among practitioners about the components of a comprehensive evaluation (interviews of adults responsible for child care, interviews of children and their preferences, life histories, observations, psychological testing, document review, and collateral source data), though little consensus exists about the details of performance concerning a given …

Foreword - A Dedication To Barbara Bennett Woodhouse, Nancy E. Dowd

UF Law Faculty Publications

Families and family law are at the cutting edge of social policy. As we navigate through difficult times, we are reminded not only of the importance of families, but also of their vulnerability. The challenge for family law and policy is to remain responsive and relevant. This requires that we confront the realities of families, their needs and issues. We live in times of enormous diversity in family forms. That reality is frightening and worrisome to some, but reminds us that it is how families function, rather than what they look like, that is most important. Embracing function over form …