Family Law Commons^™

Reforming (But Not Eliminating) The Parental Discipline Defense, Hazel Blum

University of Michigan Journal of Law Reform

This Note argues that although states should retain the parental discipline defense, their legislators should rewrite their statutes to limit the defense to a specific range of disciplinary methods that social science research has shown to have either net-beneficial or net-neutral effects on children. Part II explores religious and cultural attitudes about corporal punishment, including an overview of traditional American attitudes toward corporal punishment. Specifically, it explores how religious teachings, including Evangelical Christianity, Methodism, and Judaism, affect attitudes towards parental discipline. Additionally, Part II will examine the build-up to and aftermath of Sweden’s ban on corporal punishment—the first nation worldwide …

Left Behind: The Dying Principle Of Family Reunification Under Immigration Law, Anita Ortiz Maddali

University of Michigan Journal of Law Reform

A key underpinning of modern U.S. immigration law is family reunification, but in practice it can privilege certain families and certain members within families. Drawing on legislative history, this Article examines the origins and objectives of the principle of family reunification in immigration law and relies on legal scholarship and sociological and anthropological research to reveal how contemporary immigration law and policy has diluted the principle for many families—particularly those who do not fit the dominant nuclear family model, those classified as unskilled, and families from oversubscribed countries—and members within families. It explores the ways in which women and children, …

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. 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. If the state seeks to interfere with the parent-child relationship, the Constitution mandates: (I) that the state prove parental unfitness, a standard defined by state laws, and (2) that the state follow certain procedures protecting the due process rights of parents. The constitutional framework for child welfare cases is premised upon the belief …

Differential Response: Misrepresentation Of Cps Investigation And Case Fact Finding, Frank E. Vandervort, Ronald C. Hughes

Articles

Traditionally, a host of necessary case fact-finding responsibilities and activities has been used by public Child Protective Services (CPS) agencies to ensure that they can achieve mandates to protect children from maltreatment as well as to strengthen and preserve the families of atrisk children. The primary CPS case fact-finding activities include risk assessment, investigation (both CPS and forensic), and family assessment. Information collected while engaged in any one of these three activities will often be relevant and important to the others. However, each case fact-finding activity also requires specific inquiry to elicit information that is essential to achieve its distinct …

Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras

Michigan Journal of Gender & Law

In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach. …

Representing Parents With Disabilities, Joshua B. Kay

Book Chapters

Parents with disabilities are more likely than other parents to become involved in the child welfare system, and once involved, their cases are more likely to end in termination of parental rights. This chapter covers basic information about parents with disabilities and child welfare involvement, including the prevalence of disability among parents generally and the frequency with which parents with disabilities are involved in child welfare cases. It discusses why these parents are disproportionately involved in child welfare proceedings and the biases of professionals that contribute not only to this frequent involvement but also to the poor outcomes in many …

With Marriage On The Decline And Cohabitation On The Rise, What About Marital Rights For Unmarried Partners?, Lawrence W. Waggoner

Law & Economics Working Papers

Part I of this paper uses recent government data to trace the decline of marriage and the rise of cohabitation in the United States. Between 2000 and 2010, the population grew by 9.71%, but the husband and wife households only grew by 3.7%, while the unmarried couple households grew by 41.4%. A counter-intuitive finding is that the early 21st century data show little correlation between the marriage rate and economic conditions. Because of the Supreme Court’s decision in Obergefell v. Hodges (2015), same-sex marriage is now universally available to same-sex couples. Part I considers the impact of same-sex marriage on …

With Marriage On The Decline And Cohabitation On The Rise, What About Marital Rights For Unmarried Partners?, Lawrence W. Waggoner

Articles

This article draws attention to a cultural shift in the formation of families that has been and is taking place in this country and in the developed world. Part I uses recent government data to trace the decline of marriage and the rise of cohabitation in the United States. Between 2000 and 2010, the population grew by 9.71 %, but the husband and wife households only grew by 3.7%, while the unmarried couple households grew by 41.4%. A counter-intuitive finding is that the early 21st century data show little correlation between the marriage rate and economic conditions. Because of the …

Substantive Due Process For Noncitizens: Lessons From Obergefell, Anthony O'Rourke

Michigan Law Review First Impressions

The state of Texas denies birth certificates to children born in the United States—and thus citizens under the Fourteenth Amendment—if their parents are undocumented immigrants with identification provided by their home countries’ consulates. What does this have to do with same-sex marriage? In a previous article, I demonstrated that the Supreme Court’s substantive due process analysis in United States v. Windsor is particularly relevant to the state’s regulation of undocumented immigrants. This Essay builds on my earlier analysis by examining United States v. Obergefell’s applications outside the context of same-sex marriage. Obergefell’s due process holding, I argue, can …

Eliminating Financiers From The Equation: A Call For Court-Mandated Fee Shifting In Divorces, Bibeane Metsch-Garcia

Michigan Law Review

Divorce can be prohibitively costly. Many struggle or simply cannot afford to pay divorce attorneys’ fees, and the economic effects of divorce on women are particularly acute. In the past few years, financing firms have emerged to fund nonmonied spouses, mostly women, who cannot afford to litigate divorces from their wealthy spouses. The services provided come with a hefty price tag: firms take large fees, and their involvement may lead to unethical and potentially damaging practices. This Note explains what third-party divorce finance firms are and why the use of firms is problematic, and offers an alternative, more equitable method …

Obergefell V. Hodges, Et Al.: Brief Of Amici Curiae Family Law Scholars In Support Of Petitioners, Donald N. Duquette, Suellyn Scarnecchia, Frank E. Vandervort

Appellate Briefs

Amici Curiae -seventy four scholars of family law- respectfully submit this brief in support of Petitioners. The two questions presented here concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Amici have substantial knowledge of, and experience with, the state family laws that address marriage, parentage, and the wellbeing of children. Our brief demonstrates that the rationales proposed by Respondents for declining to license or recognize same sex marriages fundamentally conflict with basic family laws and policies in every state.

Kentucky, Michigan, Ohio, and Tennessee ban same-sex couples …

A Postcolonial Theory Of Spousal Rape: The Carribean And Beyond, Stacy-Ann Elvy

Michigan Journal of Gender & Law

Many postcolonial states in the Caribbean continue to struggle to comply with their international treaty obligations to protect women from sexual violence. Reports from various United Nations programs, including UNICEF, and the annual U.S. State Department Country Reports on Antigua and Barbuda, the Bahamas, Barbados, Dominica, Jamaica, and Saint Lucia (“Commonwealth Countries”), indicate that sexual violence against women, including spousal abuse, is a significant problem in the Caribbean. Despite ratification of various international instruments intended to eliminate sexual violence against women, such as the Convention on the Elimination of All Forms of Discrimination Against Women, Commonwealth Countries have retained the …

Strange Bedfellows: How Child Welfare Agencies Can Benefit From Investing In Multidisciplinary Parent Representation, Vivek S. Sankaran, Patricia L. Rideout, Martha L. Raimon

Other Publications

This is the second of a series of articles that examines the role that advocates for parents and families can play in furthering the wellbeing and safety of children. This article highlights emerging parent representation models that expedite the safe reunification of children already in foster care.

Certiorari And The Marriage Equality Cases, Carl Tobias

University of Michigan Journal of Law Reform Caveat

Marriage equality has come to much of the nation. Over 2014, many district court rulings invalidated state proscriptions on same- sex marriage, while four appeals courts upheld these decisions. However, the Sixth Circuit reversed district judgments which struck down bans in Kentucky, Michigan, Ohio, and Tennessee. Because that appellate opinion created a patchwork of differing legal regimes across the country, this Paper urges the Supreme Court to clarify marriage equality by reviewing that determination this Term.

Characteristics Of Attorneys Representing Children In Child Welfare Cases, Britany Orlebeke, Andrew Zinn, Xiaomeng Zhou, Donald N. Duquette

Articles

Every day in state and local courts throughout the United States, judges are called upon to decide who should have the responsibility for the immediate and long-term care of neglected and abused children. Federal recognition of the right to independent advocacy for children subject to these proceedings originates with the 1974 Federal Child Abuse Prevention and Treatment Act (CAPTA). As a condition of receiving federal funds for child abuse prevention services through CAPTA, states must provide for the appointment of an appropriately trained guardian ad litem (GAL) for every child whose case results in a judicial proceeding. A guardian ad …

The Intersection Of Family Law And Education Law, Debra Chopp

Articles

It is well-established that parents have a fundamental liberty interest in directing the education of their children. As family law practitioners know, however, parents do not always agree with each other on matters pertaining to their child's education. Where education issues arise in family law cases, it is important for members of the family law bar to have familiarity with education laws so that they may properly advise their clients. This article will identify and briefly discuss common intersections of family law and education law.

Foster Kids In Limbo: The Effects Of The Interstate Compact On Children In Foster Care, Vivek Sankaran

Articles

Each year, child welfare agencies make over 40,000 requests for home studies to determine whether children in foster care can be placed with parents, relatives, and others living in another state. Each request is governed by the Interstate Compact on the Placement of Children (ICPC), a uniform law adopted by every state to coordinate the placement of foster children in other states. Under the ICPC, a child can only be placed in foster care in another state after the receiving state conducts a home study and approves the proposed placement. Despite its good intentions, the ICPC has become unworkable...A study …

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 …

Fighting The Establishment: The Need For Procedural Reform Of Our Paternity Laws, Caroline Rogus

Michigan Journal of Gender & Law

Every state and the District of Columbia use voluntary acknowledgments of paternity. Created pursuant to federal law, the acknowledgment is signed by the purported biological parents and establishes paternity without requiring court involvement. Intended to be a “simple civil process” to establish paternity where the parents are unmarried, the acknowledgment is used by state governments to expedite child support litigation. But federal policy and state laws governing the acknowledgments do not sufficiently protect the interests of those men who have signed acknowledgments and who subsequently discover that they lack genetic ties to the children in question. A signatory who learns …

Confrontation And The Re-Privatization Of Domestic Violence, Deborah Tuerkheimer

Michigan Law Review First Impressions

When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution of domestic violence predictably suffered as a result. But commentators at the time did not anticipate how the Court’s subsequent Confrontation Clause cases would utterly misconceive the nature of domestic violence, producing a flawed understanding of what constitutes a “testimonial” statement. Although the Court’s definition was especially problematic in the domestic violence context, its overly rigid approach finally became intolerable in Michigan v. Bryant, a 2011 case that did not involve domestic violence. In Bryant, the Court resurrected a public–private divide that …

Bio Family 2.0: Can The American Child Welfare System Finally Find Permanency For 'Legal Orphans' With A Statute To Reinstate Parental Rights?, Meredith L. Schalick

University of Michigan Journal of Law Reform

The American child welfare system terminates parental rights for thousands of children each year even though adoptive families have not yet been identified for the children. Every year, there are more than 100,000 of these “legal orphans” waiting for new families. Given the lower rates of adoptions for children of color and older children, and the poor outcomes for most youth who age out of the foster care system, the American child welfare system must start to think differently about permanency options for children. This Article proposes a model statutory provision to reinstate parental rights under certain circumstances to give …

Case Closed: Addressing Unmet Legal Needs & Stabilizing Families, Vivek S. Sankaran, Martha L. Raimon

Other Publications

This is the first of two articles that examines the role that advocates for parents and families can play in furthering the well-being and safety of children. This article highlights how the work of multidisciplinary advocacy teams with legal expertise can help prevent children from entering foster care. The next article will discuss emerging parent representation models that expedite the safe reunification of children already in foster care.

Effects Of Clergy Reporting Laws On Child Maltreatment Report Rates, Frank E. Vandervort, Vincent J. Palusci

Articles

Child maltreatment (CM) reporting laws and policies have an important role in the identification, treatment, and prevention of CM in the United States (U.S. Department of Health and Human Services [US DHHS], 2012). Abuse by a member of the clergy “is not only a personal and emotional betrayal, but [also] a spiritual betrayal, with secrecy amplified by the unprecedented and systemic cover-up committed by the Church hierarchy” (Coyne, 2011, p. 15). Recent controversies have resulted in the consideration of changes in mandated U.S. reporting laws that include increasing requirements for clergy and extension to additional professions (Freeh, Sporkin, & Sullivan, …

Using Preventive Legal Advocacy To Keep Children From Entering Foster Care, Vivek Sankaran

Articles

Children may unnecessarily enter foster care because their parents are unable to resolve legal issues that affect their safety and well-being in their home.[...] Yet these kinds of legal needs for poor families are rarely met. On average, poor families experience at least one civil legal need per year, but only a small portion of those needs are satisfied. For about every six thousand people in poverty, there exists only one legal aid lawyer. So legal aid programs are forced to reject close to a million cases each year. This lack of legal services threatens the well-being of children[...] who …

For Nontraditional Names' Sake: A Call To Reform The Name-Change Process For Marrying Couples, Meegan Brooks

University of Michigan Journal of Law Reform

In a large number of states, women are encouraged to take their husbands’ surnames at marriage by being offered an expedited name-change process that is shorter, less expensive, and less invasive than the statutory process that men must complete. If a couple instead decides to take an altogether-new name at marriage, the vast majority of states require that each spouse complete the longer statutory process. This name-change system emerged from a long history of naming as a way for men to dominate women. This Note emphasizes the need for name-change reform, arguing that the current system perpetuates antiquated patriarchal values …

Adoptive Couple V. Baby Girl: Two-And-A-Half Ways To Destroy Indian Law, Marcia A. Yablon-Zug

Michigan Law Review First Impressions

In December 2011, Judge Malphrus of the South Carolina family court ordered Matt and Melanie Capobianco to relinquish custody of Veronica, their two-year-old, adopted daughter, to her biological father, Dusten Brown. A federal statute known as the Indian Child Welfare Act ("ICWA") mandated Veronica's return. However, the court's decision to return Veronica pursuant to this law incited national outrage and strident calls for the Act's repeal. While this outrage was misplaced, it may nonetheless have influenced the U.S. Supreme Court's decision to hear the appeal. The case of Adoptive Couple v. Baby Girl is emotionally complicated, but it is not …

Black Marriage, White People, Red Herrings, Melissa Murray

Michigan Law Review

Ralph Richard Banks's Is Marriage for White People? is worlds away from Agatha Christie's novels. Decidedly a work of nonfiction, Banks's book considers the plight of middle-class African Americans who, according to statistics, are the least likely of any demographic group to get and stay married. Despite these obvious differences, Is Marriage for White People? shares some important commonalities with Agatha Christie's mysteries. Banks seeks to solve a mystery, but red herrings draw attention away from the true issue that should be the subject of Banks's concern. The mystery, of course, is the black marriage decline. In 1950, 78 percent …

Family History: Inside And Out, Kerry Abrams

Michigan Law Review

The twenty-first century has seen the dawn of a new era of the family, an era that has its roots in the twentieth. Many of the social and scientific phenomena of our time - same-sex couples, in vitro fertilization, single-parent families, international adoption - have inspired changes in the law. Legal change has encompassed both constitutional doctrine and statutory innovations, from landmark Supreme Court decisions articulating a right to procreate (or not), a liberty interest in the care, custody, and control of one's children, and even a right to marry, to state no-fault divorce statutes that have fundamentally changed the …

Flexible Scheduling And Gender Equiality: The Working Families Flexibility Act Under The Fourteenth Amendment, Lane C. Powell

Michigan Journal of Gender & Law

The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman …

Surrender And Subordination: Birth Mothers And Adoption Law Reform, Elizabeth J. Samuels

Michigan Journal of Gender & Law

For more than thirty years, adoption law reform advocates have been seeking to restore for adult adoptees the right to access their original birth certificates, a right that was lost in all but two states between the late 1930s and 1990. The advocates have faced strong opposition and have succeeded only in recent years and only in eight states. Among the most vigorous advocates for access are birth mothers who surrendered their children during a time it was believed that adoption would relieve unmarried women of shame and restore them to a respectable life. The birth mother advocates say that …