Family Law Commons^™

In The (Canadian) Shadow Of Islamic Law: Translating Mahr As A Bargaining Endowment, Pascale Fournier

Osgoode Hall Law Journal

This article addresses the dilemmas of Muslim women living in Canada as they negotiate between the constitutional and juridical systems of the dominant society, on the one hand, and the Muslim community, on the other. It will examine the ideological assumptions about law and multiculturalism that have worked to depoliticize the stakes of law in Marion Boyd's report, Protecting Choice, Promoting Inclusion. With the Islamic institution of mahr in the background, this article suggests a methodology to evaluate the costs and benefits of abstract legal rules as they are actually used by the parties in the "shadow of the law" …

The Abortion Rights Of Adolescents Should Be Coextensive With Those Of Adults--A Theoretical Framework, Chad M. Gerson

ExpressO

The aim of this article is to argue that the abortion rights of adolescents should be coextensive with those of adults. The first section of the article reviews research in child development which has demonstrated that adolescents are able to make informed, mature decisions on procreative issues. The second section reviews cases which have defined the contours of adult women’s abortion rights, and argues that the reasoning behind those holdings also applies to adolescents.

The Uncertain Future Of Marriage And The Alternatives, Daniel I. Weiner

ExpressO

The cultural and institutional predominance of marriage in our society has lately been challenged by two important social trends: growing dissatisfaction with or indifference to marriage on the part of those eligible to marry, and the emergence of nontraditional families headed by adults who may wish to marry but are presently excluded from doing so. This Essay argues that proactive law reformers have responded to these trends by taking two very different approaches. The first approach, “diversity of forms,” is exemplified by the cultivation of alternatives and substitutes to traditional marriage ranging from same and opposite-sex domestic partnerships and other …

Parental Consent And Notification Laws In The Abortion Context: Rejecting The "Maturity" Standard In Judicial Bypass Proceedings, Anna Bonny

ExpressO

The choice to become a parent, to give a baby up for adoption, or to terminate a pregnancy presents a life-altering decision for a minor. The majority of states require minors to engage their parents or legal guardians in their choice to obtain an abortion, but not in decisions to give their babies up for adoption or to become parents. Though the Supreme Court has held that parental consent and notification laws do not infringe on a minor's constitutional rights if judicial bypass options are available, the reality of these judicial proceedings demonstrates a biased and unworkable legal avenue. Even …

The Purpose Of Child Support, Ira M. Ellman

ExpressO

What is the appropriate amount of child support to require in particular cases? How should we take account, if at all, of subsequent events such as either parent’s remarriage? It seems obvious that the answers to such questions ought to turn on our purpose in requiring support payments in the first place. But while fixing the amount of child support can be politically contentious, and has attracted the attention of partisans on both sides of the gender gap, the literature contains no systematic examination of support rules in light of their underlying policy purpose. This article fills that gap. It …

Untying The Knot: An Analysis Of The English Divorce And Matrimonial Causes Court Records, 1858-1866, Danaya C. Wright

ExpressO

This paper is an analysis of the petitions, answers, affidavits, and court docket for the first nine years of the English divorce and matrimonial causes court. It examines in detail the child custody, alimony, gender, and class components of the court’s first nine years. After analyzing the petitions and court docket along gender lines for the different causes of action (divorce, separation, annulment, and restitution of conjugal rights), and their success rate by gender and by age of the marriage, it then breaks down marriages by age and speculates on a variety of causes for the different results and considers …

Conceptualizing Violence Against Pregnant Women, Deborah Tuerkheimer

Indiana Law Journal

No abstract provided.

Legal Archaeology And Feminist Legal Theory: A Case Study Of A Violation Of A Protective Order , Debora L. Threedy

ExpressO

This article explores the intersection between the field of legal archaeology and feminist legal theory through the medium of a case study of the prosecution of the violation of a protective order.

Both legal archaeology and feminist theory employ “bottom up,” or grounded, theorizing; that is, they begin with specific context and move from there to generalization or abstraction, rather than the other way around. And both operate from a critical perspective that consciously challenges what we think we know about how law operates. For example, both are interested in exploring how systemic vulnerabilities, such as conscious or unconscious gender …

In The Best Interest Of The Child, Ellen L. Buckwalter

ExpressO

Each year more than 200,000 children in the United States are abducted by family members. When a child is abducted across international borders, the difficulties are compounded. Since the late 1970s, The Department of State’s Office of Children’s Issues has been contacted in approximately 16,000 cases involving children who were either abducted from the United States or prevented from returning to the U.S. by one of their parents.

The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) adopted on October 24, 1980, reflects a worldwide concern about the harmful effects that parental kidnapping has on children …

The Punishment Of Dixie Shanahan: Is There Justice For Battered Women Who Kill?, Leigh Goodmark

ExpressO

The article explores the prevailing theories justifying criminal punishment in the United States through the lens of the case of Dixie Shanahan, an Iowa woman who was sentenced to fifty years imprisonment for killing her abusive spouse after nineteen years of battering. The article begins with a detailed examination of the life of Dixie Shanahan and places her within the context of the literature on battered women who kill. The piece then looks at both retributivist and utilitarian justifications for punishment and concludes that only a retributivist rationale justifies the punishment of Ms. Shanahan and other battered women who kill, …

Women, Equality, And The Federal Marriage Amendment, Comille S. Williams

Brigham Young University Journal of Public Law

No abstract provided.

Love Doesn't Pay: The Fiction Of Marriage Rights In The Workplace, James A. Sonne

University of Richmond Law Review

No abstract provided.

Principled Parentage: Abandoning The Gender-Based Underpinnings Of Legal Parentage Analysis As Applied In The Context Of Gestational Surrogacy, Jennifer A. Kimball

ExpressO

While reproductive technology has provided new options for women who want children, our legal understanding of parentage is still informed by the traditional conception model of two parents: one male and one female. A parent who both is a biological parent and has developed a parent-child relationship with a genetic child ought to be considered a legal parent as well. This conclusion ought not to be vulnerable to attack based on the gender of the other parent; rather, each parent’s claims should be evaluated independently. When gender becomes irrelevant and we abandon the gender-based underpinnings of legal parentage analysis as …

Protecting Children By Preserving Parenthood, Jane C. Murphy

All Faculty Scholarship

Establishing legal parentage, once a relatively straightforward matter of marriage and biology, has become increasingly complex. The determination of legal status as mother may now involve several women making claims based on genetic contribution, contract, status as gestational carrier or other bases. The debate about the best choice for children when adults are competing for parental status is ongoing, lively and filled with many voices. Less attention has been paid to a much larger, second category of cases - cases in which the law is faced with resolving the legal status of the one adult who may be available to …

Blue Mourning: Postpartum Psychosis And The Criminal Insanity Defense, Waking To The Reality Of Women Who Kill Their Children, 39 J. Marshall L. Rev. 515 (2006), Jessica Butterfield

UIC Law Review

No abstract provided.

No Genetic Ties, No More Fathers: Voluntary Acknowledgment Rescissions And Other Paternity Disestablishments Under Illinois Law, 39 J. Marshall L. Rev. 1295 (2006), Jeffrey A. Parness

UIC Law Review

No abstract provided.

Comments: Who Turned Out The Lights?: How Maryland Laws Fail To Protect Victims Of Domestic Violence From Third-Party Abuse, Anique Drouin

University of Baltimore Law Review

No abstract provided.

Child Marriage And Guardianship In Tanzania: Robbing Girls Of Their Childhood And Infantilizing Women, Tamar Ezer, Kate Kerr, Kara Major, Aparna Polavarapu, Tina Tolentino

Scholarly Works

No abstract provided.

Immaculate Deception: The Evolving Right Of Paternal Renunciation, 27 Women's Rts. L. Rep. 139 (2006), Diane S. Kaplan

UIC Law Open Access Faculty Scholarship

No abstract provided.

Intimate Homicide: Gender And Crime Control, 1880-1920, Carolyn B. Ramsey

Publications

The received wisdom, among feminists and others, is that historically the criminal justice system tolerated male violence against women. This article dramatically revises feminist understanding of the legal history of public responses to intimate homicide by showing that, in both the eastern and the western United States, men accused of killing their intimates often received stern punishment, including the death penalty, whereas women charged with similar crimes were treated leniently. Although no formal "battered woman's defense" existed in the late 1800s and early 1900s, courts and juries implicitly recognized one--and even extended it to abandoned women who killed their unfaithful …

Re-Thinking Alimony: The Aaml's Considerations For Calculating Alimony, Spousal Support Or Maintenance, Mary Kay Kisthardt

Faculty Works

The mission of the American Academy of Matrimonial Lawyers is "to encourage the study, improve the practice, elevate the standards and advance the cause of matrimonial law, to the end that the welfare of the family and society be protected." The AAML Comission was charged to analyze, critically review and make recommendations consistent with the mission of the Academy. After considering all available sources of information the Commission concluded that there are two significant and related problems associated with the setting of spousal support. The first is a lack of consistency resulting in a perception of unfairness. From this flows …

The Failure Of Innocent Spouse Reform, Richard C.E. Beck

NYLS Law Review

No abstract provided.

The Authoritative Moment: Exploring The Boundaries Of Interpretation In The Recognition Of Queer Families, Kris Franklin

Articles & Chapters

This article examines the boundaries of judicial interpretation as courts struggle to define the families formed by lesbians, gay men and transexuals. It compares the jurisprudence of numerous state courts examining queer families in different contexts. The article identifies three interwoven components of judicial reasoning: "lex" reasoning, grounded in the jurisdiction's binding and persuasive law; factual reasoning in which the courts must categorize queer families as analogous to those the law already recognizes or instead as something quite new and distinct; and finally methodological reasoning, in which courts self-consciously examine the boundaries of their own interpretive authority. Showing that in …

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

The Custody Battle Over Cryogenically Preserved Embryos After Divorce: Advocating For Infertile Women’S Rights, Cori S. Annapolen

ExpressO

This paper focuses on the struggles that infertile women face to achieve motherhood because their rights are underrepresented in the American court system. It specifically centers on how the process of in vitro fertilization (IVF) helps infertile women conceive children, but then details the problems that increasing technology now causes for these women after they freeze embryos and then divorce. Because the courts of only four states have determined who gets custody of these embryos after a divorce, and because the divorce rate and the number of couples utilizing IVF are increasing, future states will likely be forced to answer …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Phase Three Of New York State Domestic Violence Law: The Financial Aftermath, Jennifer Sarkees

Buffalo Women's Law Journal

No abstract provided.

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

ExpressO

The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.

Fathers And The Supreme Court: Founding Fathers And Nuturing Fathers, Nancy E. Dowd

UF Law Faculty Publications

This article critiques the Supreme Court's negative, stereotypic views of fatherhood, especially unmarried fatherhood, and argues that the Court should reconsider and refine its definition of fatherhood around nurture. The corrective for the Court's current view is not to revert to a status-based definition of fatherhood, but rather to reinforce and recast its prior fathers' rights decisions to establish a definition grounded on relationship and care. What should be discarded are outdated stereotypes about men as incapable, incompetent caregivers, as well as patriarchal norms of status and ownership based in genetic and economic fatherhood recognized exclusively within marriage. Instead, fatherhood …

Women As A Symbol Of Cultural Conflict: The Compatability Of Egypt's Shari'a Derived Personal Status Laws With Its International Obligations, And Prospects For Reform, Jasmin Moussa

Archived Theses and Dissertations

This thesis examines the compatibility of Shari'a-derived personal status laws in Egypt with the international legal obligation to eliminate gender discrimination (specifically in the area of family relations). In Egypt, the Shari'a-derived personal status law for Sunni Muslims governs family relations, including marriage, divorce, child custody and successions, and have been frequently criticized for discriminating against women. However, this body of law is not immutable, it has proven flexible over the centuries, and has accommodated many changes in society.

As such, an important question is: are Egypt's personal status laws reconcilable with its international obligations? If not, how can they …