Family Law Commons^™

A Promising Start For Early Childhood Development And The Law, Clare Huntington

Faculty Scholarship

Examining the role of the law in early childhood development is not new; several legal scholars have engaged in such an inquiry, including scholars at this symposium. But this engagement has not led to a sustained debate about how the legal system can foster early childhood development, nor has it yet led to the integration of legal scholars into the interdisciplinary research on, and policy debates about, early childhood. I have argued that the creation of a new subdiscipline in family law — early childhood development and the law — would achieve these goals, sparking debate within law, bringing a …

Searching The Legacy Of The Reformation For Lutheran Responses To Modern Family Law, Marie Failinger

Faculty Scholarship

This article builds upon historical work on changes in the law of marriage, divorce and the family after the Reformation, and describes how modern Lutheran theology, formed during the Reformation, evaluates modern trends in American family law. From the key Lutheran theological insight that God is creatively ordering human activity as a partner with human beings, the Lutheran tradition approaches issues such as no-fault divorce and same-sex marriage with both trust and challenge.

The Constitutionalization Of Fatherhood, Dara Purvis

Faculty Scholarship

Beginning in the 1970s, the Supreme Court heard a series of challenges to family law statutes brought by unwed biological fathers, questioning the constitutionality of laws that treated unwed fathers differently than unwed mothers. The Court’s opinions created a starkly different constitutional status for unwed fathers than for unwed mothers, demanding additional actions and relationships before an unwed father was considered a constitutional father. Although state parentage statutes have progressed beyond their 1970s incarnations, the doctrine created in those family law cases continues to have impact far beyond family law. Transmission of citizenship in the context of immigration law and …

Zoned Out: How Zoning Law Undermines Family Law’S Functional Turn, Kate Redburn

Faculty Scholarship

A fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law doctrines have increasingly embraced the claims of “functional families” — those whose bonds can be traced to cohabitation and shared domestic life. At the same time, zoning laws have narrowed to recognize only formal families, effectively restricting residency to individuals related by blood, marriage, or adoption. As a result, family law’s “functional turn” remains vulnerable in at least thirty-one states. Using original legal analysis and historical research, this Note illuminates that contradiction, explains how it arose, and argues that …

Early Childhood Development And The Replication Of Poverty, Clare Huntington

Faculty Scholarship

Antipoverty efforts must begin early because abundant evidence demonstrates that experiences during the first five years of life lay a foundation for future learning and the acquisition of skills. Public investments can help foster early childhood development, but these efforts must begin early and must involve both parents and children. This chapter describes the patterns of convergence and divergence in state approaches to supporting early childhood development. For the prenatal period until age three, the federal government is the primary source of funds, and there is fairly limited variation in how this money is spent across the states. For the …

Fiduciary Principles In Family Law, Elizabeth S. Scott, Ben Chen

Faculty Scholarship

Family members bear primary responsibility for the care of dependent and vulnerable individuals in our society, and therefore family relationships are infused with fiduciary obligation. Most importantly, the legal relationship between parents and their minor children is best understood as one that is regulated by fiduciary principles. Husbands and wives relate to one another as equals under contemporary law, but this relationship as well is subject to duties of care and loyalty when either spouse is in a condition of dependency. Finally, if an adult is severely intellectually disabled or becomes incapacitated and in need of a guardian, a family …

Environmental Determinism: Functional Egalitarian Spaces Promote Functional Egalitarian Practices, Katharine B. Silbaugh

Faculty Scholarship

Egalitarian, place-based thinking belongs at the table when considering approaches to improving early childhood. Places connect people’s lives. They also generate patterns that organize, and can re-organize, our social order and behavior. Places can spark and support the development of self-governance and cultivate a political voice grounded in the needs of the same community that place generates. Whether considered as community schools, community centers, or more ambitiously, community housing developments designed to include services that meet the needs of residents, the spatial dimensions of early childhood policy require explicit consideration.

How Courts In Criminal Cases Respond To Childhood Trauma, Deborah W. Denno

Faculty Scholarship

Neurobiological and epidemiological research suggests that abuse and adverse events experienced as a child can increase an adult’s risk of brain dysfunction associated with disorders related to criminality and violence. Much of this research is predictive, based on psychological evaluations of children; few studies have focused on whether or how criminal proceedings against adult defendants consider indicators of childhood trauma. This Article analyzes a subset of criminal cases pulled from an 800-case database created as part of an original, large-scale, empirical research project known as the Neuroscience Study. The 266 relevant cases are assessed to determine the extent to which, …

Family Law's Exclusions, Clare Huntington

Faculty Scholarship

As Fordham Law School commemorates the hundredth anniversary of women in its ranks, the school is also acknowledging the ways it has excluded women. For this special Issue celebrating scholarship by the women of Fordham, I see a similar theme echoing in my work. From my first article, published soon after I graduated from law school, through my most recent work, I have identified and explored the exclusions riddling family law.

Rethinking Family-Court Prosecutors: Elected And Agency Prosecutors And Prosecutorial Discretion In Juvenile Delinquency And Child Protection Cases, Joshua Gupta-Kagan

Faculty Scholarship

Like criminal prosecutors, family-court prosecutors have immense power. Determining which cases to prosecute and which to divert or dismiss goes to the heart of the delinquency system’s balance between punishment and rehabilitation of children and the child protection system’s spectrum of family interventions. For instance, the 1990s shift to prosecute (rather than dismiss or divert) about 10 percent more delinquency cases annually is as significant a development as any other. Yet scholars have not examined the legal structures for these charging decisions or family-court prosecutors’ authority in much depth.

This Article shows how family-court prosecutors’ roles have never been fully …

Improving Outcomes In Child Poverty And Wellness In Appalachia In The "New Normal" Era: Infusing Empathy Into Law, Jill C. Engle

Faculty Scholarship

No abstract provided.

The Empirical Turn In Family Law, Clare Huntington

Faculty Scholarship

Historically, the legal system justified family law’s rules and policies through morality, common sense, and prevailing cultural norms. In a sharp departure, and consistent with a broader trend across the legal system, empirical evidence increasingly dominates the regulation of families.

There is much to celebrate in this empirical turn. Properly used, empirical evidence in family law can help the state act more effectively and efficiently, unmask prejudice, and depoliticize contentious battles. But the empirical turn also presents substantial concerns. Beyond perennial issues of the quality of empirical evidence and the ability of legal actors to use it, there are more …

The Rights Of Marriage: Obergefell, Din, And The Future Of Constitutional Family Law, Kerry Abrams

Faculty Scholarship

In the summer of 2015 the United States Supreme Court handed down two groundbreaking constitutional family law decisions. One decision became famous overnight Obergefell v. Hodges declared that same-sex couples have the constitutional right to marry. The other, Kerry v. Din, went largely overlooked. That later case concerned not the right to marry but the rights of marriage. In particular, it asked whether a person has a constitutional liberty interest in living with his or her spouse. This case is suddenly of paramount importance: executive orders targeting particular groups of immigrants implicate directly this right to family reunification.

This Article …

No More Blood, Kerry Abrams

Faculty Scholarship

No abstract provided.

Equality, Sovereignty, And The Family In Morales-Santana, Kristin Collins

Faculty Scholarship

In Sessions v. Morales-Santana, ³ the Supreme Court encountered a body of citizenship law that has long relied on family membership in the construction of the nation’s borders and the composition of the polity.⁴ The particular statute at issue in the case regulates the transmission of citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship.⁵ When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children.⁶ Over …

Redefining Parental Rights: The Case Of Corporal Punishment, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Extending The Normativity Of The Extended Family: Reflections On Moore V. City Of East Cleveland, Angela Onwuachi-Willig

Faculty Scholarship

Part I of this Article briefly recounts the plurality decision in Moore before analyzing Justice Brennan’s concurring opinion and detailing how the concurrence affirms, rather than deconstructs, the notion of African American deviance in families. Next, Part II specifies the ways in which Justice Brennan could have truly uplifted African American families and other families of color by identifying and explicating the strengths of extended or multigenerational family forms among people of color and by showing how such family forms can be a model, or even the model (if one must be chosen), for all families. Then, Part III concludes …

Grasping Fatherhood In Abortion And Adoption, Malinda L. Seymore

Faculty Scholarship

Biology makes a mother, but it does not make a father. While a mother is a legal parent by reason of her biological relationship with her child, a father is not a legal parent unless he takes affirmative steps to grasp fatherhood. Being married to the mother at the time of conception or at the time of birth is one of those affirmative steps. But if he is not married to the mother, he must do far more before he will be legally recognized as a father. Biology is often presented as a sufficient reason for this dichotomy--it is easy …

Will Focusing On Men's Moral Calculus Make Abortion Less "About" Gender?, Linda C. Mcclain

Faculty Scholarship

Decades ago, feminist leader Gloria Steinem quipped that, “if men could get pregnant, abortion would be a sacrament.” As President Trump reinstates restrictions on women’s reproductive rights that the Obama Administration lifted (such as the “global gag rule”), the visual imagery of Trump signing executive orders while surrounded by an audience of white men raises – once again – the question of how gender shapes the abortion issue. In the recent unsuccessful Republican effort to repeal “Obamacare,” when Kansas Senator Pat Roberts was asked whether he supported removing the mandate that insurance companies cover “essential health benefits” such as maternity …

Anchoring More Than Babies: Children's Rights After Obergefell V. Hodges, Susan Hazeldean

Faculty Scholarship

No abstract provided.

Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney

Faculty Scholarship

If you ask legal ethics scholars what they remember about Louis D. Brandeis's judicial confirmation hearings, most would point to the manner in which he responded to questions about his representation of persons with perceived conflicts of interest. Louis Brandeis responded to challenges by stating that he was "counsel for the situation. Some use this comment when examining problems associated with a single lawyer representing multiple clients in the same transaction. Others believe that Brandeis may have been referring to a type of intermediary role in which lawyers attempt to adjust the rights and interests of multiple clients with potentially …

Paternity Un(Certainty): How The Law Surrounding Paternity Challenges Negatively Impacts Family Relationships And Women's Sexuality, Susan Ayres

Faculty Scholarship

It is popularly believed that false paternity rates are 10-30%, and that thousands of unsuspecting men are supporting children who are not theirs. These reported rates of false paternity have become urban legend, demonizing women as over-sexualized partners who shouldn’t be trusted. This in turn has influenced laws regarding paternity, which have evolved to allow men to dis-establish paternity years after a child’s birth, even when there has been an adjudication or acknowledgment of paternity. This article argues that society should be cautious about elevating science as the highest consideration in truth claims about paternity. It examines the incoherent and …

Mother. Orator. Woman Suffrage Leader: The Feminist Legacy Of Elizabeth Cady Stanton, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

The Place Of Flourishing Families, Nestor M. Davidson, Clare Huntington

Faculty Scholarship

Legal scholars have produced a rich literature exploring how law shapes cities. These scholars have examined the authority and autonomy of municipal governments, the nature of urban community, and the geography of inequality. Another set of legal scholars has produced an equally rich literature exploring how law shapes families. These scholars have analyzed how marriage laws systematically disadvantage African Americans and other marginalized groups, how family law reinforces conceptions of traditional families, and how the absence of marriage equality led courts to recognize functional parents.

These discourses rarely overlap. Until this Colloquium. We brought together a range of scholars from …

Moore Kinship: Foreword, R.A. Lenhardt, Clare Huntington

Faculty Scholarship

Forty years ago, Mrs. Inez Moore, a widowed black mother and grandmother of little means, secured a victory that likely seemed improbable to many. Without any money, but with the assistance of a team of dedicated Legal Aid attorneys, she took her lawsuit challenging an East Cleveland, Ohio, zoning ordinance that made it a crime for her to live with her grandson all the way to the U.S. Supreme Court and won. The ordinance permitted certain extended family configurations to reside together within the city’s limits, but it prohibited Inez’s family arrangement. Just by bringing her infant grandson John Jr., …

The Strange Life Of Stanley V. Illinois: A Case Study In Parent Representation And Law Reform, Joshua Gupta-Kagan

Faculty Scholarship

This Article helps describe the growth of parent representation through an analysis of Stanley v. Illinois — the foundational Supreme Court case that established parental fitness as the constitutional lynchpin of any child protection case. The Article begins with Stanley’s trial court litigation, which illustrates the importance of vigorous parental representation and an effort by the court to prevent Stanley from obtaining an attorney. It proceeds to analyze how family courts applied it (or not) in the years following the Supreme Court’s decision and what factors have led to a recent resurgence of Stanley’s fitness focus.

Despite Stanley …

The Rules Of Maternity, Dara Purvis

Faculty Scholarship

A diverse body of laws and regulations speaking to reproductive rights, healthcare, criminal punishment of drug use, termination of parental rights, and more creates the rules of maternity. These rules are guidance provided both obliquely and explicitly by the law's coercive power telling women both how to and who should mother. Rule one begins in pregnancy, with the message that "your body is your child's vessel." During pregnancy, women are counselled that doctor knows best. After the child's birth, the mother remains responsible for the people who enter a child's life, leading to rule 3: "mothers must always protect." …

Redrawing The Boundaries Of Relational Crime, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Stanley V. Illinois'S Untold Story, Joshua Gupta-Kagan

Faculty Scholarship

Stanley v. Illinois is one of the Supreme Court’s more curious landmark cases. The holding is well known: the Due Process Clause both prohibits states from removing children from the care of unwed fathers simply because they are not married and requires states to provide all parents with a hearing on their fitness. By recognizing strong due process protections for parents’ rights, Stanley reaffirmed Lochner-era cases that had been in doubt and formed the foundation of modern constitutional family law. But Peter Stanley never raised due process arguments, so it has long been unclear how the Court reached this …

Early Childhood Development And The Law, Clare Huntington

Faculty Scholarship

Early childhood development is a robust and vibrant focus of study in multiple disciplines, from economics and education to psychology and neuroscience. Abundant research from these disciplines has established that early childhood is critical for the development of cognitive abilities, language, and psychosocial skills, all of which turn, in large measure, on the parent-child relationship. And because early childhood relationships and experiences have a deep and lasting impact on a child’s life trajectory, disadvantages during early childhood replicate inequality. Working together, scholars in these disciplines are actively engaged in a national policy debate about reducing inequality through early childhood interventions. …