Family Law Commons^™

"Money Can't Buy Me Love": A Contrast Between Damages In Family Law And Contract, Margaret F. Brinig

Journal Articles

As my contribution to this symposium in David's honor, I submit the law and economics section of the damages chapter of our joint enterprise, Understanding Contracts. Because of David's failing health, my own involvement with the publisher never reached contract stage. The chapter concludes with a problem that illustrates some of the intricacies of mixing family law and contract. David and I grappled for some time with the answer to the problem, coming at it from our different points of view. On one occasion, David, with a twinkle, told me there was only one place where I was "absolutely wrong." …

How Much Does Legal Status Matter? Adoptions By Kin Caregivers, Margaret F. Brinig, Steven L. Nock

Journal Articles

Virtually all the legislation dealing with families that include children begins with a "best interests of the child" premise.' Most, if not all, of the litigated results at least seem to maximize the outcomes for adults. This discrepancy should not be surprising, for both substantive and procedural reasons.

The substantive reason, as even the Supreme Court has noted, is that most of the time, what is good for parents will also be good for children. Moreover, having parents who possess many "rights" allow them to better exercise their parental responsibilities. From a procedural perspective, adults are usually the named parties …

Domestic Partnership: Missing The Target?, Margaret F. Brinig

Journal Articles

Chapter 6, Domestic Partnerships, like many other parts' of the ALI Principles of the Law of Family Dissolution, functions as a set of default rules. Under the ALI Principles for domestic partnerships, therefore, if the parties meet state presumptive requirements for domestic partnerships and have not otherwise contracted, the rules of Chapter 6 apply. Usually, law sets default provisions to 1) what most parties would want; or 2) to what will promote efficiency. I will discuss these two concepts in turn, illustrating how the ALI domestic partnerships provisions satisfy neither ex ante hypothetical bargaining nor efficiency criteria, and thus that …

Transgressing The Border Between Protection And Empowerment For Domestic Violence Victims And Older Children: Empowerment As Protection In The Foster Care System, Susan Vivian Mangold

Journal Articles

No abstract provided.

The Case Against Same-Sex “Marriage”, Gerard V. Bradley

Journal Articles

Argues that same-sex “marriage” is a logical and practical impossibility and has serious implications for both other aspects of family law and the respect for human life and children in our culture. Asserts that the movement for same-sex “marriage” is a logical outgrowth of our culture’s separation of sex and procreation. Argues that the basis for opposition to this movement may be the residual reservoir of traditional understanding about marriage in the American public.

Moving Toward A First-Best World: Minnesota's Position On Multiethnic Adoptions, Margaret F. Brinig

Journal Articles

The best world allows a child to grow to adulthood with biological parents, or at least one parent, who love the child unconditionally and who have resources to support the child. A second-best world allows the child to permanently and completely become part of an extended family that loves him or her and has the resources for supporting and meeting the child's needs. Hopefully this process costs little in terms of time or emotional or physical harm to the child. In traditional third-party adoptions, the child permanently moves and becomes part of (hopefully, at low cost) a family that will …

Feminism And Child Custody Under Chapter Two Of The American Law Institute's Principles Of The Law Of Family Dissolution, Margaret F. Brinig

Journal Articles

The Chief Reporter of the American Law Institute's Principles of the Law of Family Dissolution wrote in his introduction; "Children are necessarily at the heart of any set of principles of family law." My favorite chapter of the Principles is Chapter Two, entitled "Principles Governing the Allocation of Custodial and Decisionmaking Responsibilities for Children." As of this writing, Chapter Two holds the distinction of being the only portion to have been adopted by a state legislature. While other Chapters had Reporters who were women, Chapter Two not only had a feminist Reporter, but the "allocation principle" that forms the substantive …

Taking Pierce Seriously: The Family, Religious Education, And Harm To Children, Richard W. Garnett

Journal Articles

Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious …

Choosing The Lesser Evil: Comments On Besharov's "Child Abuse Realities", Margaret F. Brinig

Journal Articles

Determining the degree of state intervention into intra-family decision making requires an unhappy choice between allowing abuse to continue or interfering with some families that would be better left alone. Mr. Besharov introduces the possible harms associated with the increased involvement of the state but fails to fully comprehend the circumstances that necessitate such involvement. Evils bracket the phenomenon discussed in Mr. Besharov's paper and this one. The difference in our approach lies in the choice we think is the lesser evil of the two, not that we think that either the harms associated with state involvement or the risk …

Protection, Privatization And Profit In The Foster Care System, Susan Vivian Mangold

Journal Articles

No abstract provided.

Parental Rights And The Ugly Duckling, Margaret F. Brinig, F. H. Buckley

Journal Articles

Hans Christian Andersen's "The Ugly Duckling" is best remembered for its moral, "To be born in a duck's nest, in a farmyard, is of no consequence to a bird, if it is hatched from a swan's egg." Having read and thought about this story many times, we should like to suggest another, less heart-warming, interpretation. The story of the Ugly Duckling, that most resilient of cygnets, masks the tragedy of children who suffer abuse. Its message, that personal spirit will triumph when a child grows up, misrepresents the experience of many victimized children. If we wait for the child to …

Law, Life, And Literature: A Critical Reflection Of Life And Literature To Illuminate How Laws Of Domestic Violence, Race, And Class Bind Black Women Based On Alice Walker's Book The Third Life Of Grange Copeland, Angela Mae Kupenda

Journal Articles

Consider Law, Life and Literature. Which of the three is the most real, honest, and inclusive? Many would answer the law because it takes into consideration all of the facts and circumstances to formulate a clear and consistent rule, and literature is the most unreal, the most fictional of the three. However, that is not accurate. Of the three, literature is actually the most real, honest, and inclusive. It is real because, with brutal honesty, it deals with all of our realities. It is more honest than life, for often in our outer (and even inner) lives we are afraid …

Preliminary Comments On Dark Numbers: Research On Domestic Violence In Central And Eastern Europe, Isabel Marcus

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No abstract provided.

Joint Custody: Bonding And Monitoring Theories, Margaret F. Brinig, F. H. Buckley

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Symposium: Law and the New American Family Held at Indiana University School of Law - Bloomington Apr. 4, 1997

No-Fault Laws And At-Fault People, Margaret F. Brinig, F. H. Buckley

Journal Articles

Absent transaction costs, the Coase Theorem suggests that divorce reform would work no change in the frequency of divorce but perhaps would alter the distribution of marital wealth. However, divorce does involve substantial process costs, which no-fault lowered. This paper explores the question of what happened to state divorce rates because of the legal changes wrought by the family law revolution that began in the 1970s, isolating the effect of the legal variable from other demographic and social factors that might also explain the variation in divorce rates across states and across time.

The Supreme Court's Impact On Marriage, 1967-90, Margaret F. Brinig

Journal Articles

In the twenty years following Loving, the Supreme Court decided a number of cases dealing with the family. Although the Court reasoned that it was protecting marriage and extending such protection to other forms of families, the perverse effect of these decisions was to weaken the most traditional family type of all, the nuclear family. Adults, and particularly pregnant women and unwed fathers, triumphed in this move towards autonomy and rights. The vanquished included those who depended upon the family for love and sustenance: minor children, elderly adults, and longtime homemakers.

This paper discusses these cases from a family law …

Buying Time For Survivors Of Domestic Violence: A Proposal For Implementing An Exception To Welfare Time Limits, Jennifer Mason Mcaward

Journal Articles

With the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Personal Responsibility Act), states have unprecedented discretion in fashioning their social welfare programs.

This Note examines the Personal Responsibility Act, focusing specifically on the statutory language and history of the sixty-month time limit on receipt of benefits and the two optional exceptions states may enact. This examination reveals that the Act contemplates that states have both the power and the support of Congress and the Department of Health and Human Services to implement exceptions for the benefit of survivors of domestic violence.

Given that states may …

The Good Of Marriage And The Morality Of Sexual Relations: Some Philosophical And Historical Observations, John M. Finnis

Journal Articles

This article examines the morality of sexual relations, referencing the views of many other scholars on the subject including Acquinas, Grisez, Noonan, and Koppelman.

Two Parents Are Better Than None: Whether Two Single, African American Adults--Who Are Not In A Traditional Marriage Or A Romantic Or Sexual Relationship With Each Other--Should Be Allowed To Jointly Adopt And Co-Parent African American Children, Angela Mae Kupenda

Journal Articles

This article proposes an additional adoption model to allow joint adoption and co-parenting by single African Americans who are not in a traditional marriage relationship with each other and not in a romantic or sexual relationship with each other. Under this model, for example, two friends, two sisters, two brothers, a sister and a brother, etc., could jointly adopt and co-parent a child. If some new model such as this one is not devised, many single blacks may hesitate to take on the entire adoption responsibility alone. As a result, many black children will continue to go without any parents. …

Good Of Marriage And The Morality Of Sexual Relations, John M. Finnis

Journal Articles

This article examines the morality of sexual relations, referencing the views of many other scholars on the subject including Aquinas, Grisez, Noonan, and Koppelman.

Property Distribution Physics: The Talisman Of Time And Middle Class Law, Margaret F. Brinig

Journal Articles

Should the young professional's spouse get some share in a newly acquired career while the young military officer's will not? Does the division between alimony and property make any sense, given no-fault divorce? Is reimbursement for lost career opportunities plus a share in the couple's tangible property fair compensation for a divorcing spouse? Such difficult questions frame this piece, which will also—and I believe necessarily—digress into the nature of marriage, the duties of parenting, and modern divorce philosophy.

Avocats Et Divorce Aux Etats-Unis: La Transformation Des Pratiques Professionnelles, Lynn M. Mather, Craig A. Mcewen, Richard J. Maiman

Journal Articles

Les transformations sociales et les évolutions juridiques qui sont intervenues aux États-Unis depuis les années 60 ont eu de multiples effets sur le travail des avocats en matière de divorce. Le présent article analyse ces transformations en s'appuyant sur des entretiens avec des avocats et sur l'analyse de l'activité des tribunaux dans les États du Maine et du New Hampshire. Il souligne notamment l'importance que revêt l'accroissement du nombre des divorces parmi les couples ayant des ressources moyennes ou faibles. Il décrit aussi la féminisation rapide du barreau, une tendance qui se trouve particulièrement accentuée en ce qui concerne les …

The Family Franchise: Elderly Parents And Adult Siblings, Margaret F. Brinig

Journal Articles

In this paper, I am going to concentrate on one family transition where we have established substantial legal barriers-that of emancipation. However, I will briefly allude to other "broken families," such as the divorcing family and the family divided by adoption.

As students of the family, we are preoccupied with divorce. We write about families in crisis and use the fabric of their lives worn thin and stretched to the breaking point to develop our ideas about what families are and even what they ought to be. In a way, of course, law teaching and the Socratic method drive us …

A Maternalistic Approach To Surrogacy: Comment On Richard Epstein's Surrogacy: The Case For Full Contractual Enforcement, Margaret F. Brinig

Journal Articles

Many of the other participants in this Symposium have written extensively about surrogacy. Not only have they contributed to the debate, in some instances they have framed it. In some respects, therefore, I merely thank all of them and chime in. Unlike my fellow panelists, however, I do not think surrogacy merits an enthusiastic, positive response.

In this Comment, I propose to restate objections to specifically enforceable surrogacy contracts from a family-law perspective as well as from the philosophical or psychological roots of family law. I will then reexamine the problems of surrogacy from a contractarian, law-and-economics perspective, showing how …

Does Mediation Systematically Disadvantage Women?, Margaret F. Brinig

Journal Articles

When state legislatures enabled spouses to obtain divorces without proving fault, one of the real achievements was lower transaction costs. Although the benefit of lower transaction costs for divorce is not completely noncontroversial, the relaxed proof requirements mean that lawyers do not necessarily have to be involved in divorce proceedings. The vast majority of marriage dissolutions involve written agreements between the parties. No-fault divorce also energized the divorce mediation movement.

Mediation is the least intrusive form of third-party involvement in a dispute. Whereas a judge or arbitrator imposes an outcome on the disputants, the mediator assists the parties in reaching …

The Risk Of Domestic Violence And Women With Hiv Infection: Implications For Partner Notification, Public Policy, And The Law, Karen H. Rothenberg, Stephen Paskey

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No abstract provided.

Domestic Violence & Partner Notification: Implications For Treatment And Counseling Of Women With Hiv, Karen H. Rothenberg, Stephen Paskey, Melissa M. Reuland, Sheryl Itkin Zimmerman, Richard L. North

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No abstract provided.

United States: Deconstructing The American Family - Developments In Family Law During 1993, Lynn D. Wardle, Margaret F. Brinig

Journal Articles

Persons unfamiliar with the American legal system might be dismayed by the variety and inconsistency of developments in domestic relations law during 1993. The key to comprehending family law in the United States is to know that, within the broad parameters set by the Constitution and minimal federal legislation, each of the fifty American states retains substantial constitutional autonomy when regulating domestic relations. As a result, "a hundred flowers bloom" in American family law-in the form of tremendously varied (sometimes diametrically inconsistent) statutes, policies and doctrines. Despite national trends, novelties or developments of potentially broad interest that occur every year, …

Your Right To Privacy And Children's Rights/Family Law: A Selective Bibliography, Sandra S. Klein

Journal Articles

In a society increasingly aware of real or perceived social inequities, it is not surprising to note a greater concern for the rights of children and their families. It is also apparent that privacy issues are an integral subset of the larger social sphere of interests. Privacy aspects can be seen to be involved pervasively throughout the area of law dealing with children and families, especially in view of the fact that there is obvious potential for conflict not only between families and the state, but between children and the families of which they are a part

The Effect Of Transaction Costs On The Market For Babies, Margaret F. Brinig

Journal Articles

Among the more controversial ideas advanced by prominent United States Circuit Court Judge and law professor Richard Posner is his suggestion that a market in babies would rectify many of the problems of the adoption system. His concept has, to say the least, provoked a tremendous reaction in various segments of American society. His critics proclaimed that sales of children would serve to demean the children and their mothers, relegating them to the status of mere commodities. Unscrupulous but wealthy parents might purchase children solely to abuse them. "Baby-selling" became a code word for the foolish extreme to which its …