Family Law Commons^™

Family Law Agreement And The New Gender Bargains, June Carbone, Brian H. Bix

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The great family law divide is said to be marriage, as marriage has emerged as a marker correlated with race and socioeconomic status. This article argues that the real family law divide, inside and outside of marriage, is agreement. Family law, and the family court system that implements it, produce agreement when legal rules, societal norms, and family court procedures operate together to encourage shared understandings expressed through statuses such as marriage or parenthood, and legally enforceable agreements. In an increasingly unequal society, the family understandings of the college-educated middle class have moved apart from those much less privileged in …

The Right To Exit Religion, Zalman Rothschild

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This Article argues that just over fifty years ago, in Wisconsin v. Yoder, the Supreme Court recognized what might be called a right to exit religion. In this decision, the Court expressed appreciation for preserving insular religious communities, while simultaneously articulating the principle that accommodations for such communities must not unduly restrict community members’ ability to exit should they wish to do so. Yet courts and scholars have largely overlooked Yoder’s recognition of a right to exit religion. To make this “right” more concrete, the Article examines impediments to it through a case study of one large insular religious community—the …

Us V. Rahimi, Originalism's Loaded Weapon, And The Lost Boys Of The Supreme Court, Mary Anne Franks

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No abstract provided.

Rahimi And The Future Of (The Rest Of) The Protection Order Prohibition, Bonnie Carlson

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In the summer of 2024, the Supreme Court considered United States v. Rahimi. Scholars and lawyers watched with bated breath to see how the court would interpret and apply the foundation-shifting Second Amendment test it established in New York State Rifle & Pistol Ass’n v. Bruen two years earlier. Ultimately, the Court upheld the federal law which temporarily bans some protection order respondents from possessing firearms. But the Court provided little in the way of additional guidance that lower courts desperately needed as evidenced by the disparate outcomes on gun cases nationwide following Bruen. Rather, the Court opted for a …

Religious Clause Challenges To Early Abortion Bans, Caroline Mala Corbin

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The substantive due process right to abortion is gone. But other parts of the Constitution may also protect women’s right to control their bodies and live as equals in the United States. This Essay addresses what role the two religion clauses may play in advancing reproductive autonomy. Because religion and reproduction are intertwined, the religion clauses may provide some measure of constitutional protection.

The Establishment Clause bars the government from imposing religion onto those who do not share it. It also forbids the government from taking sides in theological disputes. Early abortion bans not only favor one religious belief on …

Applying Strict Scrutiny In Termination Of Parental Rights Proceedings: Why Alabama’S Jurisprudence Should Reshape Child Protection Practice, Christopher Church, Vivek Sankaran

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“Our decision in [Pierce] holds that parents have a fundamental constitutional right to rear their children . . . . I would apply strict scrutiny to infringements of fundamental rights.” “[S]trict scrutiny leaves few survivors.” Termination of parental rights (TPR) stands as “a unique kind of deprivation” that results in the state irrevocably severing a parent’s fundamental right to care for their child. In The Ties that Bind Us, we scrutinized the child protection system’s overuse of TPR, employing clinical, empirical, and constitutional perspectives. This Article advocates for a constitutionally anchored framework aimed at enforcing strict scrutiny when considering TPR …

The Ties That Bind Us: An Empirical, Clinical, And Constitutional Argument Against Terminating Parental Rights, Vivek S. Sankaran, Christopher Church

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This Article explores the unnecessary termination of a child's relationship with their parent from an empirical, clinical, and constitutional lens. Part I explores administrative data related to TPR, which like many child protection metrics, resembles nothing short of a wild west of practices and policies relating to how often and how fast child protection systems terminate parental rights. These data also reveal how TPR can unnecessarily delay legal permanency for children, particularly those children who are living with extended family, and how a State pursuing TPR can drain its own scarce resources, a system perpetually decrying insufficient resources. Part II …

Community Property And Conflict Of Laws: A Cacophony Of Cases, Karen Boxx

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Justice Cardozo is reported to have said that "the average judge, when confronted by a problem in the conflict of laws, feels almost completely lost, and, like a drowning man, will grasp at a straw." Conflict of laws can be vexing, but the resolution of a controversy involving multiple states' marital property systems can quickly become impenetrable. This is in part due to the fundamental conceptual differences between community property and common law marital property paradigms, the inconsistencies in the use of similar terms in the different systems, and the significant differences among the laws of the community property states …

The New Orleans Transformation: Foster Care As A Rare, Time-Limited Intervention, Josh Gupta-Kagan, Christopher Church, Melissa Carter, Vivek Sankaran, Andrew Barclay

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This Article offers an initial evaluation of one reformed child protection system— New Orleans, Louisiana—and describes how a system that dramatically reduces the number of children in foster care might look. This system shows how a major metropolitan area can shrink its daily population of children in foster care to the low double digits, which would correspond to a reduction of the national daily foster care population by about 360,000. This reduction was mostly due to sending children home—usually to the homes from which they were removed—within days or weeks of removal, raising questions about the necessity of the original …

Racial Trauma In Civil Rights Representation, Angela Onwuachi-Willig, Anthony V. Alfieri

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Narratives of trauma told by clients and communities of color have inspired an increasing number of civil rights and antiracist lawyers and academics to call for more trauma-informed training for law students and lawyers. These advocates have argued not only for greater trauma-sensitive practices and trauma-centered interventions on behalf of adversely impacted individuals and groups but also for greater awareness of the risks of secondary or vicarious trauma for lawyers who represent traumatized clients and communities. In this Article, we join this chorus of attorneys and academics. Harnessing the recent civil rights case of P.P. v. Compton Unified School District, …

Re-Envisioning Child Well-Being: Dismantling The Inequitable Intersections Among Child Welfare, Juvenile Justice, And Education, Kele Stewart

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Twenty years after Shattered Bonds, Dorothy Roberts' indictment that the family regulation system polices, disrupts, and restructures Black families and communities remains urgent. Black families remain overrepresented in foster care with enshrined disparate treatment and outcomes. Black children are more likely to be removed from their homes, and their longer stays in foster care are characterized by placement instability, overly restrictive placements, the risk of abuse and exploitation, and inadequate mental health and other services. Black children also have worse educational outcomes than even other children in foster care, are over-referred to the juvenile justice system, and are more …

A Quiet Revolution: How Judicial Discipline Essentially Eliminated Foster Care And Nearly Went Unnoticed., Melissa Carter, Christopher Church, Vivek Sankaran

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This Article argues that juvenile court judges can safely reduce the number of children entering foster care by faithfully and rigorously applying the law. Judges often fail to perform this core functon when a state child welfare agency separates a child from their family. Judges must perform their role as impartial gatekeeper despite the temptation to be "omnipotent moral busybodies".

Comment: Without Effective Lawyers, Do More Determinate Legal Standards Really Matter?, Vivek S. Sankaran

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In Confronting Indeterminacy and Bias in Child Protection Law, Professor Josh Gupta-Kagan wisely proposes that the child protection system needs more precise legal standards, not just to limit unnecessary state intrusion in the lives of families, but to also define the scope of that intrusion if it must occur. But as I read his piece, a question repeatedly ran through my mind - will the changes he proposes have any impact if parents in the child protection system continue to have ineffective lawyers representing them?

Introduction: New Directions, New Voices In Family Law In India, Sarasu Esther Thomas, Jeffrey A. Redding, Rachel Taylor

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In July 2019, select family law scholars from around India and the world gathered at the National Law School of India University (NLSIU) in Bengaluru, India to participate in a conference on “New Directions, New Voices in Family Law in India” jointly sponsored by NLSIU, the University of Oxford – Faculty of Law, and Melbourne Law School. The papers and presenters were diverse and the conference conversations were enthusiastic. As a result of this conference, four quite different but interlinked papers were eventually selected for inclusion in this special issue of the Indian Law Review. These papers bring much needed …

Using Random Assignment To Measure Court Accessibility For Low-Income Divorce Seekers, James D. Greiner, Ellen L. Degnan, Thomas Ferriss, Roseanna Sommers

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We conducted a field experiment in which 311 low-income individuals seeking a divorce were randomly assigned to receive access to a pro bono lawyer (versus minimal help) to assist with filing for divorce. Examining court records, we found that assignment to an attorney made a large difference in whether participants filed for and obtained a divorce. Three years after randomization, 46% of the treated group had terminated their marriages in the proper legal venue, compared to 9% of the control group. Among “compliers”—participants who obtained representation only if assigned to receive it—those with lawyers were far more likely to file …

Covid-19 Reflections On Resilience And Reform In The Child Welfare System, Robert Latham, Kele Stewart

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No abstract provided.

Compassion: The Necessary Foundation To Reunify Families Involved In The Foster Care System, Katherine Markey, Vivek Sankaran

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Compassion plays a critical role in ensuring that stakeholders can engage with, and support parents trying to reunify with kids in the foster care system. This Article will explore the compassion crisis in foster care, will present the research documenting the impact of compassion on engaging families, and will identify key steps stakeholders can take to incorporate compassion into their work.

Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Bans, Suzianne D. Painter-Thorne

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In the summer of 2015, marriage equality advocates celebrated the Supreme Court’s decision in Obergefell v. Hodges, which struck down state prohibitions on same-sex marriage.The Court found that “[t]he right of same-sex couples to marry . . . is part of the liberty promised by the Fourteenth Amendment.” Two years earlier, the Court had struck down parts of the federal Defense of Marriage Act (DOMA), finding that the federal government could not discriminate against same-sex married partners. With these two decisions, the Court ensured that the marriages of same-sex couples would be recognized by the federal government and in …

Rethinking Foster Care: Why Our Current Approach To Child Welfare Has Failed, Vivek Sankaran, Christopher Church

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Over the past decade, the child welfare system has expanded, with vast public and private resources being spent on the system. Despite this investment, there is scant evidence suggesting a meaningful return on investment. This Article argues that without a change in the values held by the system, increased funding will not address the public health problems of child abuse and neglect.

Prenatal Drug Exposure As Aggravated Circumstances, Frank E. Vandervort

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In Michigan, "a child has a legal right to begin life with sound mind and body." Yet the family court may not assert Juvenile Code jurisdiction until after birth. In re Baby X addressed the question of whether a parent's prenatal conduct may form the basis for jurisdiction upon birth. It held that a mother's drug use during pregnancy is neglect, allowing the court to assert jurisdiction immediately upon the child's birth. In deciding Baby X, the Court specifically reserved the question of whether parental drug use during pregnancy might be sufficient to permanently deprive a parent of custody. …

To Protect And Provide For Children, Prenatal Substance Use Must Be Considered Abuse., Frank E. E. Vandervort, Vincent J. Palusci

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The use of drugs and alcohol during pregnancy is harmful to the developing child. When children are born having been exposed to these substances, children’s protective services should uniformly substantiate child maltreatment in order to ensure that the child’s parent(s) and the child receive the treatment and services necessary to address the child’s immediate safety, protect the government’s compelling interest in the child’s welfare, and ensure the best long-term outcome for the child.

The Indian Child Welfare Act: A Brief Overview To Contextualize Current Controversies., Frank E. E. Vandervort

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Congress passed and the president signed the Indian Child Welfare Act (ICWA) into federal law in 1978. Because the Constitution grants to Congress the authority to make law regarding Indian tribes, ICWA’s provisions are mandatory, unlike other federal child welfare legislation such as the Child Abuse Prevention and Treatment Act, which are voluntary. State authorities handling any case involving an “Indian child” must comply with ICWA.

Response To: How Should We Respond To Pregnancy And Substance Use?, Frank E. E. Vandervort, Vincent J. Palusci

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We begin our reply by asking the reader to consider this typical case taken from Professor Vandervort’s current practice. It is one of several similar cases currently being handled by the clinic he works in and similar to many dozens—perhaps hundreds—of cases handled over the past 30 years.

Advocating For Children With Disabilities In Child Protection Cases, Joshua B. Kay

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Children with disabilities are maltreated at a higher rate than other children and overrepresented in child protection matters, yet most social service caseworkers, judges, child advocates, and other professionals involved in these cases receive little to no training about evaluating and addressing their needs. Child protection case outcomes for children with disabilities tend to differ from those of nondisabled children, with more disabled children experiencing a termination of their parents' rights and fewer being reunified with their parents or placed with kin. They also tend to experience longer waits for adoption. Furthermore, the poor outcomes that plague youth who age …

A Cure Worse Than The Disease? The Impact Of Removal On Children And Their Families, Vivek Sankaran, Christopher Church, Monique Mitchell

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Removing children from their parents is child welfare's most drastic intervention. Research clearly establishes the profound and irreparable damage family separation can inflict on children and their parents. To ensure that this intervention is only used when necessary, a complex web of state and federal constitutional principles, statutes, administrative regulations, judicial decisions, and agency policies govern the removal decision. Central to these authorities is the presumption that a healthy and robust child welfare system keeps families together, protects children from harm, and centers on the needs of children and their parents. Yet, research and practice-supported by administrative data-paint a different …

Misunderstanding Judy Norman: Theory As Cause And Consequence, Martha R. Mahoney

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Judy Norman shot her abusive husband during a late afternoon nap while he rested before violently trafficking her that night. The sharp contrast between the extreme violence and danger Judy faced and the denial of a self-defense instruction triggered extensive academic debates about justification and the use of deadly force. Norman became one of the most famous cases involving battered women, appearing in many casebooks and hundreds of law review articles. Despite all this work, the facts of the case contradict much of what scholars have said about Norman. Misconceptions about expert evidence, "Battered Woman Syndrome, "and battered women drive …

The Americans With Disabilities Act: Legal And Practical Applications In Child Protection Proceedings, Joshua B. Kay

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Parents with disabilities, particularly those with intellectual disability and/or mental illness, are disproportionately represented in the child protection system.1 Once involved in the system, they are far more likely than parents without disabilities to have their children removed and their parental rights terminated. The reasons for this are many. Parents with disabilities are relatively likely to experience other challenges that are themselves risk factors for child protection involvement. In addition, child protection agencies, attorneys, courts, and related professionals often lack knowledge and harbor biases about parents with disabilities, increasing the likelihood of more intrusive involvement in the family. Yet research …

Punishing Families For Being Poor: How Child Protection Interventions Threaten The Right To Parent While Impoverished, David Pimentel

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No abstract provided.

Restructuring Rebuttal Of The Marital Presumption For The Modern Era, Jessica Feinberg

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The marital presumption of paternity, which arose from English common law, has served as a core component of the law governing parentage in the United States since the nation’s inception. Pursuant to the marital presumption, a husband is presumed to be the legal father of any child born to or conceived by his wife during the marriage. Historically, the marital presumption was extremely difficult to rebut, generally requiring proof of the husband’s non-access to his wife during the time of conception, the husband’s sterility or impotence, or adultery on the part of the wife. As these early grounds for rebuttal …

How U.S. Family Law Might Deal With Spousal Relationships Of Three (Or More) People, Edward D. Stein

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For much of this nation's history, the vast majority of people have believed that being married to more than one person at the same time is deeply problematic. Further, polygamous marriage has never been legal in the United States. Despite this, some people have been in plural or group relationships and some of these people have wished to gain legal recognition for these relationships. The arguments for recognizing such relationships are persuasive, but the prospects for legalization of polygamous marriage seem slim in the near future. This Article offers a suggestion of how the law of domestic relations might deal …