Family Law Commons^™

Infant Safe Haven Laws: Legislating In The Culture Of Life, Carol Sanger

Faculty Scholarship

This Article analyzes the politics, implementation, and influence of Infant Safe Haven laws. These laws, enacted across the states in the early 2000s in response to much-publicized discoveries of dead and abandoned infants, provide for the legal abandonment of newborns. They offer new mothers immunity and anonymity in exchange for leaving their babies at designated Safe Havens. Yet despite widespread enactment, the laws have had relatively little impact on the phenomenon of infant abandonment. This Article explains why this is so, focusing particularly on a disconnect between the legislative scheme and the characteristics of neonaticidal mothers that makes the use …

Child Custody, Religious Practices, And Conscience, Kent Greenawalt

Faculty Scholarship

This article asks to what extent considerations relating to religion should figure in custody disputes. One inquiry is whether the kind of religious life that a parent plans for his or her child should figure in the decision whether to grant custody to that parent. The article focuses on a religious life that involves very substantial deprivation no after-school activities, no television, no pets, no reading except schoolwork and the Bible-from an ordinary secular perspective. A second inquiry is whether one parent of a divorced couple should be able to prevent the other parent from exposing a child to various …

A Defense Of Paid Family Leave, Gillian Lester

Faculty Scholarship

The problem of combining work and family life is perhaps the central challenge for the contemporary American family. In this Article, I evaluate and defend government provision of paid family leave, a benefit that would allow workers to take compensated time off from work for purposes of family caregiving.

A legal intervention in the arena of work-family accommodation can only build on some prior normative understanding of the family, and embedded within that, contested value choices about women's identities and entitlements in workplace, family, and society. I am not the first legal scholar to advocate paid family leave of some …

Monogamy's Law: Compulsory Monogamy And Polyamorous Existence, Elizabeth F. Emens

Faculty Scholarship

Right now, marriage and monogamy feature prominently on the public stage. Efforts to lift prohibitions on same-sex marriage in this country and abroad have inspired people on all sides of the political spectrum to speak about the virtues of monogamy's core institution and to express views on who should be included within it. The focus of this article is different. Like an "unmannerly wedding guest," this article invites the reader to pause amidst the whirlwind of marriage talk and to think critically about monogamy and its alternatives.

Marriage, Cohabitation, And Collective Responsibility For Dependency, Elizabeth S. Scott

Faculty Scholarship

Marriage has fallen on hard times. Although most Americans say that a lasting marriage is an important part of their life plans, the institution no longer enjoys its former exclusive status as the core family form. This is so largely because social norms that regulate family life and women's social roles have changed. A century (or even a couple of generations) ago, marriage was a stable economic and social union that, for the most part, lasted for the joint lives of the spouses. It was the only option for a socially sanctioned intimate relationship and was the setting in which …

Just Monogamy?, Elizabeth F. Emens

Faculty Scholarship

Right now, marriage and monogamy feature prominently on the public stage. Efforts to lift state and federal prohibitions on same-sex marriage have inspired people across the political spectrum to speak about the virtues of monogamy’s core institution and to express views on who should be included within it. In this brief comment, I want to talk about something else. Like an “unmannerly wedding guest,” I want to invite the reader to pause amidst the whirlwind of marriage talk, to think about alternatives to monogamy. In particular, I want to talk about multiparty relationships, or “polyamory,” as these relationships are called …

Damage To Family Relationships As A Collateral Consequence Of Parental Incarceration, Philip Genty

Faculty Scholarship

The most obvious and perhaps most serious collateral consequence of incarceration is family separation. Imprisonment undermines families and has a detrimental impact upon children, caretakers, and the communities in which they live. Unlike other collateral consequences, family separation has an irreversible impact upon both parents and children. The time apart is lost forever because a childhood can never be recovered.

This Essay will review the available statistical information about incarcerated parents and their children and discuss the detrimental effects of parental incarceration upon families. The Essay will conclude with some reflections about why the adverse consequences of incarceration for prisoners' …

Placing The Adoptive Self, Carol Sanger

Faculty Scholarship

[A]doption law and practices are guided by enormous cultural changes in the composition and the meaning of family. As families become increasingly blended outside the context of adoption – with combinations of blood relatives, step-relatives, de facto relatives, and ex-relatives sitting down together for Thanksgiving dinner as a matter of course – birth families and adoptive families knowing one another may not seem so very strange or threatening at all. There will simply be an expectation across communities that ordinary families will be mixed and multiple. With that in mind, we should hesitate before establishing embeddedness as the source of …

Marital Commitment And The Legal Regulation Of Divorce, Elizabeth S. Scott

Faculty Scholarship

The question of the appropriate role of law in regulating marriage and divorce is the subject of much controversy in the United States – a raging battle of the “Culture Wars” (Hunter, 1991). On one side are social conservatives, who view divorce and family instability as an important source of societal decline. These advocates of “family values” adopt a somewhat punitive tone, arguing that the family can be saved only if the government restricts divorce, by reinstituting fault grounds and discouraging unhappy spouses from selfishly defecting from their responsibilities. Liberals tend to oppose all restrictions on divorce, partly on the …

Adding Value To Families: The Potential Of Model Family Courts, Jane M. Spinak

Faculty Scholarship

The Harlem Community Justice Center (Justice Center) officially opened in July 2000 with all the fanfare of a major civic event. The Chief Judge of the State of New York, Judith Kaye, and the Mayor of the City of New York, Rudolph Guiliani, were keynote speakers, lauding the combined efforts of private administrators and public officials in reopening a deteriorating but magnificent 1892 court building in the center of Harlem. The ceremony began and ended with gospel sung by the Addicts Rehabilitation Center Choir, a musical reflection of one component of the Justice Center's jurisdiction. The new Juvenile Intervention Court …

Divorce, Children's Welfare, And The Culture Wars, Elizabeth S. Scott

Faculty Scholarship

Are children harmed when their parents divorce? If so, should parents' freedom to end marriage be restricted? These questions have generated uncertainty and controversy in the decades since legal restraints on divorce have been lifted. During the 1970s and 80s, the traditional conviction that parents should stay together "for the sake of the children" was supplanted by a view that children are usually better off if their unhappy parents divorce. By this account, divorcing parents should simply try to accomplish the change in status with as little disruption to their children's lives as possible. This stance has been challenged sharply …

Social Norms And The Legal Regulation Of Marriage, Elizabeth S. Scott

Faculty Scholarship

Americans have interesting and somewhat puzzling attitudes about the state's role in defining and enforcing family obligations. Most people view lasting marriage as an important part of their life plans and take the commitment of marriage very seriously. Yet any legal initiative designed to reinforce that commitment generates controversy and is viewed with suspicion in many quarters. For example, covenant marriage statutes, which offer couples entering marriage the option of undertaking a modest marital commitment, are seen by many observers as coercive and regressive measures rather than ameliorating reforms.

The law tends to reflect – and perhaps contributes to – …

The Role Of Strategic Management Planning In Improving The Representation Of Clients: A Child Advocacy Example, Jane M. Spinak

Faculty Scholarship

This article will discuss my experience managing a legal organization representing children – the Juvenile Rights Division (JRD) that Schinitsky began thirty-eight years ago – by exploring the interactive role that organizational management plays in enhancing the quality of child client representation. Part I briefly examines two issues: the historic and systemic context of court-based practice within JRD and the way in which changes in child welfare law and policies since 1979 have affected the ability of lawyers to represent child clients through this court-based practice. Part II presents a model for restructuring organizational conventions and patterns in order to …

Foreword, Elizabeth S. Scott

Faculty Scholarship

In November 1998, the interdisciplinary Center for Children, families and the Law at the University of Virginia sponsored a conference on Youth Violence and Juvenile Justice Reform. The conference brought together an extraordinary group of experts from the academic disciplines of law, criminology and psychology. Before an audience made up of researchers, students, policymakers, and practitioners in the field of juvenile justice, these experts analyzed legal policy toward juvenile crime from a variety of disciplinary and methodological perspectives. The articles in this important symposium issue of the Virginia Journal of Social Policy & the Law are based on the papers …

Becoming A Citizen: Reconstruction Era Regulation Of African American Marriages, Katherine M. Franke

Faculty Scholarship

While many Black people regarded slavery as a form of social death, some nineteenth-century white policy-makers extolled the virtues of slavery as a tool to uplift the characters of Africans in America: "[Slavery in America] has been the lever by which five million human beings have been elevated from the degraded and benighted condition of savage life ... to a knowledge of their responsibilities to God and their relations to society," observed a Kentucky Congressman in 1860. These sentiments were echoed by abolitionist northern officers not three years later when the institution of marriage was lauded for its civilizing effect …

The Nuttiness Of Divorce, Thomas W. Merrill

Faculty Scholarship

The erratic, emotional "nuttiness" of divorce is predictable. Rest assured, however, you are not crazy. You are merely responding to the temporary emotional upheaval in your life. To help you better understand what you are experiencing, we have put together a brief explanation of the psychological stages or phases that accompany the legal process of divorce.

Marriage As Relational Contract, Elizabeth S. Scott, Robert E. Scott

Faculty Scholarship

The evolution of marriage from a relationship based on status to one that is regulated by contractual norms achieved a milestone of sorts recently with the enactment of the Louisiana Covenant Marriage Act. Under this statute, couples entering marriage can choose to have the termination of their relationship regulated under conventional no-fault divorce rules, or they can voluntarily undertake a greater commitment to their marriage. For couples who select covenant marriage, either party can terminate the relationship on fault grounds, but unilateral termination of the marriage is available only after a substantial waiting period. The principal impact of the statute …

Welfare Reform And Child Care: A Proposal For State Legislation, Clare Huntington

Faculty Scholarship

Without subsidized child care, Dianne Williams, the mother of an eighteen-month-old son, would never have left welfare and earned the post-secondary degree that led to her current job as a senior secretary; Tammy Stinson, a U.S. Air Force veteran and 29-year-old mother of two children, would spend up to $150 of her weekly $200 salary on child care, increasing the likelihood she would turn to welfare or live in poverty; Jerry Andrews, a graduate of a government-funded early childhood education program, might not earn $31,200 a year and be working towards an engineering degree. These individuals are lucky. The vast …

Separating From Children, Carol Sanger

Faculty Scholarship

On September 1, 1939, in anticipation of the imminent German bombing of British cities, 150,000 children were assembled at the railway stations of London and sent throughout the day to "'destinations unknown'" in the English countryside. Mothers and children under five were evacuated together but school-age children were shipped out to rural billets in school groups, accompanied only by their teachers and civil defense volunteers. Forty years later, an observer remembered the day vividly:

[T]he mothers [were] trying to hold back their tears as they marched these little boys and girls in their gas masks into the centre …. The …

Parents As Fiduciaries, Elizabeth S. Scott, Robert E. Scott

Faculty Scholarship

Traditionally, the law has deferred to the rights of biological parents in regulating the parent-child relationship. More recently, as the emphasis of legal regulation has shifted to protecting children's interests, critics have targeted the traditional focus on parents' rights as impeding the goal of promoting children's welfare. Some contemporary scholars argue instead for a "child-centered perspective," in contrast to the current regime under which biological parents continue to have important legal interests in their relationship with their children. The underlying assumption of this claim is that the rights of parents and the interests of children often are conflicting, and that …

Reflections On A Case (Of Motherhood), Jane M. Spinak

Faculty Scholarship

She surveyed my office for signs of conspiracy. We had had two or three telephone conversations that had conveyed my ambivalence about representing her. A former colleague had urged her to call the clinic for help but I was reluctant to accept her case for the clinic: we rarely represented foster parents and the procedural complexity of the case convinced me that I would be unable to assign students to represent this client so late in the semester. I was resigned, however, to help her find a lawyer, both because a former colleague had sent her and because the snippets …

Procedural Due Process Rights Of Incarcerated Parents In Termination Of Parental Rights Proceedings: A Fifty State Analysis, Philip Genty

Faculty Scholarship

Disruption of families through incarceration of parents has become an increasingly serious problem over the past decade. The prison population has grown dramatically, and for women prisoners the increases in the population are particularly striking. From 1980 through 1990, the number of women incarcerated in state and federal prisons increased from 13,420 to 43,845, an increase of 227 percent. In a single year, from 1988 to 1989, the number of incarcerated women increased by 24.4 percent. In 1990 there were an additional 37,844 women in local jails. For men the prison population increased by 130 percent from 316,401 to 727,398 …

A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger

Faculty Scholarship

Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court's most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. …

Pluralism, Parental Preference, And Child Custody, Elizabeth S. Scott

Faculty Scholarship

Modern child custody law faces an important challenge in responding to pluralistic and evolving gender and parenting roles. Professor Scott finds rules favoring maternal custody, joint custody, and the best interests of the child wanting; she argues that the optimal response to the current pluralism in family structure is a rule that seeks to replicate past parental roles. This "approximation" standard promotes continuity and stability for children. It encourages cooperative rather than conflictual resolution of custody, thereby ameliorating the destructive effects of bargaining at divorce. It also recognizes and reinforces role change in individual families, encouraging both parents to invest …

M Is For The Many Things, Carol Sanger

Faculty Scholarship

People have gotten quite a few things about mothers and motherhood wrong over the last 700 or so years. Educators, historians, jurists, philosophers, physicians, social workers, and theologians have been telling us what mothers are like: what they need, how they feel, what pleases them, how and how well they think. Mothers didn't love their children in the fifteenth century and loved them too much in the 1950s. Black mothers felt no pain in childbirth, and white mothers felt no pleasure in intercourse. The obligations of motherhood, physical and social, have been used to explain why women should not work, …

Rational Decisionmaking About Marriage And Divorce, Elizabeth S. Scott

Faculty Scholarship

The apparent normative goal of modem divorce law is the efficient termination of unsuccessful marriages. Once the couple (or either party) determine that the marriage is no longer satisfactory, then quick and easy exit is deemed desirable. As Carl Schneider suggests, the law has withdrawn from moral discourse about divorce, adopting a neutral stance toward marital dissolution. Although divorce typically imposes formidable psychological and economic costs, there are few legal incentives to remain married, or even to consider thoughtfully the decision to end the marriage. Moreover, although decisions about marriage and divorce have important legal implications, the law does nothing …

Cessation Of Family Violence: Deterrence And Dissuasion, Jeffrey Fagan

Faculty Scholarship

Family violence research has only recently begun to investigate desistance. Recent developments in the study of behaviors other than family violence, such as the use of addictive substances, suggest that common processes can be identified in the cessation of disparate behaviors involving diverse populations and occurring in different settings. Desistance is the outcome of processes that begin with aversive experiences leading to a decision to stop. Desistance apparently follows legal sanctions in nearly three spouse abuse cases in four, but the duration of cessation is unknown beyond short study periods. Batterers with shorter, less severe histories have a higher probability …

Children's Preference In Adjudicated Custody Decisions, Elizabeth S. Scott, N. Dickon Reppucci, Mark Aber

Faculty Scholarship

Historically, courts usually paid little attention to the child's wishes in deciding which parent should have custody upon divorce. Today, statutes in many states direct courts to consider the child's preference, often as one among several factors that guide decisionmaking. With some exceptions, the law gives only general guidance and does not specify under what circumstances and to what extent the child's desire should affect the decision. Little is known about how important this factor is, what variables influence the weight accorded the child's preference, or how courts obtain and evaluate evidence about the child's wishes.

This Article began as …

Protecting The Parental Rights Of Incarcerated Mothers Whose Children Are In Foster Care: Proposed Changes To New York's Termination Of Parental Rights Law, Philip Genty

Faculty Scholarship

In the past decade, the number of female prisoners in New York state and city jails has risen dramatically. Currently, there are 1,890 women incarcerated in New York State prisons, and an additional 1,626 women confined in New York City jails. Approximately seventy- two percent of the women in state prisons are parents, and, according to one informal study, nearly sixty percent of the women in city prisons are single parents with minor children. While some of these women can make formal or informal child care arrangements with relatives or close friends, many others must turn to state-regulated foster care. …

Sterilization Of Mentally Retarded Persons: Reproductive Rights And Family Privacy, Elizabeth S. Scott

Faculty Scholarship

Sterilization is one of the most frequently chosen forms of contraception in the world; many persons who do not want to have children select this simple, safe, and effective means of avoiding unwanted pregnancy. For individuals who are mentally disabled, however, sterilization has more ominous associations. Until recently, involuntary sterilization was used as a weapon of the state in the war against mental deficiency. Under eugenic sterilization laws in effect in many states, retarded persons were routinely sterilized without their consent or knowledge.

Sterilization law has undergone a radical transformation in recent years. Influenced by a distaste for eugenic sterilization …