Family Law Commons^™

Reframing Domestic Violence Law And Policy: An Anti-Essentialist Proposal, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Autonomy Feminism: An Anti-Essentialist Critique Of Mandatory Interventions In Domestic Violence Cases, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Going Underground: The Ethics Of Advising A Battered Woman Fleeing An Abusive Relationship, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Surrogacy And The Politics Of Commodification, Elizabeth S. Scott

Faculty Scholarship

In 2004, the Illinois legislature passed the Gestational Surrogacy Act, which provides that a child conceived through in vitro fertilization (IVF) and born to a surrogate mother automatically becomes the legal child of the intended parents at birth if certain conditions are met. Under the Act, the woman who bears the child has no parental status. The bill generated modest media attention, but little controversy; it passed unanimously in both houses of the legislature and was signed into law by the governor.

This mundane story of the legislative process in action stands in sharp contrast to the political tale of …

Educational Workshops On Settlement And Dispute Resolution: Another Tool For Self-Represented Litigants In Family Court, Jim Hilbert

Faculty Scholarship

This article outlines the need to help self-represented litigants (SLRs or pro se parties) understand more about how they might resolve their disputes through settlement. The article discusses the remarkable growth in the number of people representing themselves in the legal system, particularly in family court. To supplement the existing support system for SLRs, the article proposes including settlement and negotiation educational workshops for SRLs so that they can better understand 1) the prominent role of settlement in our legal system, 2) their power within the settlement process, and 3) some fundamental guidance on how they might approach settlement negotiations. …

The Uniform Collaborative Law Act And Intimate Partner Violence: A Roadmap For Collaborative (And Non-Collaborative) Lawyers, Nancy Ver Steegh

Faculty Scholarship

This Article examines the intimate partner violence provisions of the Uniform Collaborative Law Act “UCLA” and provides an analytical roadmap for collaborative lawyers. The lack of required intimate partner violence training for collaborative lawyers presents a major roadblock for implementation of the Act. Consequently, states adopting the UCLA should take immediate steps to ensure that courts and bodies regulating lawyers require ongoing training. In the meantime, to gain valuable expertise and avoid potential liability, collaborative lawyers should voluntarily seek it.

Marriage Equality For Same-Sex Couples: Where We Are And Where We Are Going, Jennifer Levi

Faculty Scholarship

The legal landscape for same-sex couples seeking to marry has shifted dramatically over the last five years. On October 10, 2008, the Connecticut Supreme Court became the third state high court to rule that its state constitution could not sustain a statutory framework that excludes same-sex couples from marrying, following the Massachusetts Supreme Judicial Court on November 18, 2003, and the California Supreme Court on May 15, 2008. Same-sex couples throughout the country have gotten married in Connecticut, Massachusetts, California, and in other countries throughout the world that provide full marriage equality, including in Canada. The Author discusses the developments …

Foreword: Assisted Reproductive Technology And The Law, Mary P. Byrn

Faculty Scholarship

This foreword introduces Issue 2: Assisted Reproductive Technology and the Law of the 35th Volume of the William Mitchell Law Review. It begins by outlining the author's personal experience with ART, and contrasts her reasoning for using ART with the traditional need for ART. Finally, it lists some of the many legal questions yet to be conclusively answered.

Reforming Family Court: Getting It Right Between Rhetoric And Reality, Jane M. Spinak

Faculty Scholarship

What do we say about the reform work we do, and to what degree is what we say accurate? How does the way in which we talk about family court reform implicate our analysis of what we are achieving? How does our place or role within the system affect our perceptions of reform? What limits our willingness and ability to apply rigorous evaluative techniques to determine whether we are reaching our goals? And if we are failing, can we acknowledge failure and learn from it? Answering these questions may lead to a better understanding of why family court reform is …

Knowing Law’S Limits: Comments On ‘Forgiveness: Integral To Close Relationships And Inimical To Justice?’, Kathryn Webb Bradley

Faculty Scholarship

No abstract provided.

Finding A Reasonable Way To Enforce The Reasonable Efforts Requirement In Child Protection Cases, Jeanne M. Kaiser

Faculty Scholarship

Under federal law, state child protection agencies are required to exert "reasonable efforts" to reunite abused and neglected children with their parents before seeking to terminate parental rights and free the children for adoption. The scope of this requirement is undefined in federal statutes and in the statutory law of many states. As a result, it has fallen to appellate courts to determine the degree of effort a state agency must exert before the relationship between a parent and a child is severed. This has proven no easy task. By the time a parental termination case has reached an appellate …

Raising The Cut-Off: The Empirical Case For Extending Adoption And Guardianship Subsidies From Age 18 To 21, Mary Eschelbach Hansen, Joshua Gupta-Kagan

Faculty Scholarship

This article begins with the context: despite increases in the number of adoptions from foster care achieved in the 1990s, tens of thousands of children remain in foster care awaiting adoption or permanent guardianship. The following section provides background on subsidy law and policy. The section describes the recent history of federal and state subsidies for parents who adopt children from the state foster care systems; the section describes state subsidies for caregivers who become legal permanent guardians of children in the state child welfare systems, and the section describes the disparities between adoption and guardianship subsidies and the subsidies …

Happy Families? Translating Positive Psychology Into Family Law, Clare Huntington

Faculty Scholarship

Despite the well-documented finding in the field of positive psychology that close interpersonal relationships are significantly correlated with subjective well-being and thriving communities, scholars have yet to bring together positive psychology and family law. And what is family law if not the law of close interpersonal relationships? Positive psychology and related work have the potential to inform the what, the why, and the how of family law, but realizing the potential of positive psychology as a guide for family law involves challenges. In particular, it requires translating the descriptive science of psychology into the prescriptive policies of family law. This …

Kairos And Safe Havens: The Timing And Calamity Of Unwanted Birth, Susan Ayres

Faculty Scholarship

It is impossible to know the number of infants killed or illegally abandoned at birth. No official reporting requirements exist, but conservative estimates claim that in the United States, 150-300 infants are killed within twenty-four hours of life and that over 100 infants are illegally abandoned. Beginning in 1999, in an effort to stem the problem of neonaticide and illegal abandonment, states began enacting laws to legalize abandonment. By 2008, all fifty states had enacted safe haven laws, which allow parents to anonymously abandon newborns by delivering them to designated providers, such as hospitals. This article provides a practical and …

The Hidden Dimension Of Nineteenth-Century Immigration Law, Kerry Abrams

Faculty Scholarship

No abstract provided.

Marriage As A Message: Same-Sex Couples And The Rhetoric Of Accidental Procreation, Kerry Abrams, Peter Brooks

Faculty Scholarship

In his dissent in the 2003 case Goodridge v. Department of Health, Justice Robert Cordy of the Massachusetts Supreme Court introduced a novel argument in support of state bans on same-sex marriage: that marriage is an institution designed to create a safe social and legal space for accidental heterosexual reproduction, a space that is not necessary for same-sex couples who, by definition, cannot accidentally reproduce. Since 2003, every state appellate court considering a same-sex marriage case has adopted Justice Cordy's dissent until the recent California Supreme Court decision In Re Marriage Cases. In case after case, courts have held that …

The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Becoming A Citizen: Marriage, Immigration, And Assimilation, Kerry Abrams

Faculty Scholarship

No abstract provided.

Emotional State And Localized Norms: A Reply, Clare Huntington

Faculty Scholarship

This piece is a response to Emory Law professor Martha Albertson Fineman's comments on Professor Huntington's Article "Familial Norms and Morality, 59 Emory L.J 1103 (2010).

Familial Norms And Normality Colloquium Celebrating 25th Anniversary Of Feminism And Legal Theory Project, Clare Huntington

Faculty Scholarship

Social norms exert a powerful influence on families. They shape major life decisions, such as whether to marry and how many children to have, as well as everyday decisions, such as how to discipline children and divide household labor. Emotion is a defining feature of these familial social norms, giving force and content to norms in contexts as varied as reproductive choice, parenting, and same-sex relationships. These emotion-laden norms do not stand apart from the law. Falling along a continuum of involvement that ranges from direct regulation to choice architecture, state sway over social norms through their emotional valence is …

The Changing Face Of Family Law: Global Consequences Of Embedding Physicians And Biotechnology In The Parent-Child Relationship, George J. Annas

Faculty Scholarship

Sexual reproduction, also known as making babies the old-fashioned way, has always brought with it significant challenges for family law, especially regarding protecting the best interests of children, and the identification of parents with the right and responsibility to rear them. But these challenges often seem mundane in the face of what has evolved since physicians have been injected into baby making and thus into novel parent-child relationships. The addition of physicians and their "new" medical technologies, sometimes called Assisted Reproductive Technology (ART), have forced the law to reconsider the very definition of motherhood and have radically altered society's view …

A Comparative Perspective On Immigration Law For Same-Sex Couples: How The United States Compares To Other Industrialized Democracies, James D. Wilets

Faculty Scholarship

No abstract provided.

The Story Of Reynolds V. United States: Federal "Hell Hounds" Punishing Mormon Treason, Martha M. Ertman

Faculty Scholarship

Part of the “Law Stories” series published by Foundation Press, this chapter in Family Law Stories tells the back story of the 1878 US Supreme Court case Reynolds v. U.S.. While the case held that Mormon polygamy was not protected as the free exercise of religion, this chapter shifts our focus away from sex and religion and toward the Court’s language linking Mormon polygamy with “Asiatic and African” peoples as well as political despotism. This close examination of the historical record shows that 19th century concerns about Mormon separatism – commercial, social and political separatism as well was religious – …

When Is A Battered Woman Not A Battered Woman? When She Fights Back, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

No More Secret Adoptions: Providing Unwed Biological Fathers With Actual Notice Of The Florida Putative Father Registry, Timothy L. Arcaro

Faculty Scholarship

No abstract provided.

Nonmartial Cohabitation: Social Revolution And Legal Regulation, Marsha Garrison

Faculty Scholarship

No abstract provided.

Family Law Cases As Law Reform Litigation: Unrecognized Parents And The Story Of Alison D. V. Virginia M., Suzanne B. Goldberg

Faculty Scholarship

Although the gap between law and lived experience comes as no surprise to most people, the divergence is especially striking – and disturbing – in the area of family law. Legal training quickly reveals that love is not a foundational element of family law, yet it can still be jarring to find that love has little, if any, bearing on the contours of the legal family. Love, after all, does not account for who can and cannot marry. Nor does the past love of an unmarried couple trigger the protections of divorce should the couple separate.

When children are involved, …

Legal Accountability In The Service-Based Welfare State: Lessons From Child Welfare Reform, Kathleen G. Noonan, Charles F. Sabel, William H. Simon

Faculty Scholarship

Current trends intensify the longstanding problem of how the rule-of-law should be institutionalized in the welfare state. Welfare programs are being re-designed to increase their capacities to adapt to rapidly changing conditions and to tailor their responses to diverse clienteles. These developments challenge the understanding of legal accountability developed in the Warren Court era. This Article reports on an emerging model of accountable administration that strives to reconcile programmatic flexibility with rule-of-law values. The model has been developed in the reform of state child protective services systems, but it has potentially broad application to public law. It also has novel …

Children, Kin, And Court: Designing Third Party Custody Policy To Protect Children, Third Parties And Parents, Joshua Gupta-Kagan

Faculty Scholarship

Millions of American children are raised primarily by people other than their parents, mostly by grandparents and other kin, and millions more are raised by third parties for some period of their childhood. In most such situations, informal arrangements negotiated by family members and kinship networks effectively provide care for these children. Many cases, however, require some formal legal arrangement; third party custody orders are needed to obtain necessary services and benefits for children whose parents are absent, and to protect children in the rare but still significant instances in which a parent is abusive or neglectful.

States currently have …

Family Court Reform And Adr: Shifting Values And Expectations Transform The Divorce Process, Nancy Ver Steegh

Faculty Scholarship

During the last fifty years, the process of divorce has undergone a remarkable transformation. This article examines the sweeping breadth of the change and the underlying societal forces behind it. As the family court landscape has changed, a ripple effect has occurred necessitating reconsideration of the roles that lawyers and judges play in the divorce process. Although lack of judicial resources has fueled some of the change, deep funding cuts foreshadow a less positive transformation, one potentially resulting in a two-tiered system of justice for families.