Family Law Commons^™

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights In Support Of Respondents: St. Mary Catholic Parish V. Roy, Catherine Smith, Tanya Washington, Robin Walker Sterling, Suzette Malveaux, Barbara Bennett Woodhouse, Sara S. Hildebrand, Abigail L. Fleming, Jeremiah Chin

Scholarly Articles

This Court should consider those most directly impacted by the decision in this case: the intended beneficiaries of Colorado’s Universal Preschool Program (“UPK”), Colorado’s children. To paraphrase Shakespeare, though they be but little, they are constitutional rights-bearers and are thus entitled to be free from state-funded discrimination.

Amici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the significant harms children in the LGBT community would bear should Colorado be compelled to allow state-funded religious schools to discriminate against preschoolers. Exempting religious schools from the State’s equal-opportunity and antidiscrimination …

Brief Of Amici Curiae Children's Rights Scholars And Advocates In Support Of Appellants' Opening Brief: Lighthiser V. Trump, Abigail L. Fleming, Douglas A. Ruley, Catherine Smith

Scholarly Articles

For decades, constitutional doctrine has recognized that children possess enforceable constitutional rights and that their developmental, physical, and social differences from adults are important considerations in constitutional analysis. Courts may not impute adult capacities, privileges, or political agency to children when determining whether their rights may be vindicated, leaving them no democratic mechanism to alleviate their injuries.

The district court’s dismissal of the youth plaintiffs’ claims rests on precisely that error. Although the court recognized that the children alleged concrete, severe, and escalating harms caused by the challenged executive actions, it concluded that relief must come from the political branches …

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights In Support Of Defendants-Appellants: Roy V. Darren Patterson Christian Academy, Catherine Smith, Tanya M. Washington, Robin Walker Sterling, Jeremiah Chin, Sara S. Hildebrand

Scholarly Articles

Amici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the harms that four-year-olds in the LGBT community – LGBT children and children with LGBT parents – would bear should state-funded religious schools be granted a license to discriminate against them. An exemption to the Colorado Universal Preschool Program’s equal opportunity requirement would allow plaintiffs to discriminate against these children and raise unfair barriers in their paths to a high-quality education. An exemption would also inflict dignitary, psychological, and familial harms upon an entire class of young people – …

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights And Students Engaged In Advancing Texas In Support Of Respondents: Mahmoud V. Taylor, Catherine E. Smith, Tanya Washington, Jeremiah Chin, Sarah Medina Camiscoli, Travis F. Chance

Scholarly Articles

Amici are members of Students Engaged in Advancing Texas and United States legal scholars of children and the law, education law, family law, and anti-discrimination law.

Students Engaged in Advancing Texas is a nonprofit organization founded by young people to develop civic leadership and belonging and represents students of various faiths and identities who have an interest in the outcome of this case.

Amici draw this Court’s attention to the constitutional harms that public school students and LGBTQ+ students and students with LGBTQ+ parents would bear should the Court grant Petitioners’ injunctive relief.

Religious Exemptions To Anti-Discrimination Law: Children's Rights In The Constitutional Calculus, Tanya Washington, Catherine Smith, Robin Walker Sterling

Scholarly Articles

Increasingly, religious actors in the public sphere--whether in the provision of goods and services (Masterpiece Cakeshop) or in government contracting (Fulton)--are simply invoking a person's sexual orientation as inconsistent with their religious tenets to benefit from a legal doctrine that shields them from the requirement that they offer an underlying rationale for LGBTQ discrimination. Over the past decade, we have filed amicus briefs in United States Supreme Court cases advancing children's constitutional rights, including briefs providing a check on these religious-based arguments when they adversely impact children's rights in the familial and child regulation contexts and …

Transformative Experiences, Anticipatory Regret, And Informed Consent, Elizabeth Lanphier, Shannon Fyfe

Scholarly Articles

Regret risk is not consistently part of information sharing within informed consent. Yet two kinds of decisions that often invoke concerns about future regret, abortion and sterilization, raise considerations for the role of regret in clinical decision-making and informed consent, particularly regarding decisions about potentially transformative experiences. We distinguish between first-personal and second-personal anticipatory regret and argue that first-personal anticipatory regret can play a productive role, but second-personal anticipatory regret can function in ways that are pernicious. Introducing second-personal anticipatory regret into medical informed consent processes is, we argue, not only not required for informed medical decision-making, but impermissible within …

Scrutinizing Succession, Carrie Stanton

Scholarly Articles

Businesses are at their most vulnerable during leadership transitions. Lack of succession planning has been recognized as a key risk factor, especially for closely held, family-owned businesses, but the problem is more extensive. Even public corporations with supposedly independent boards of directors too often fail to separate the corporation’s interests from those of charismatic leaders who enjoy the perquisites of control and may be loath to surrender it. Shareholders trust directors to manage business affairs, and ensuring leadership continuity is critical to this charge. Yet succession often remains overlooked in practice. It also remains understudied in the literature, and state …

Navahine V. Hawai'i Dept. Of Transportation: The Keiki Will Lead Us, Catherine Smith

Scholarly Articles

The author analyzes the landmark case Navahine v. Hawaiʻi Department of Transportation, which culminated in the world’s first constitutional climate settlement. Catherine Smith, serving as an expert for the youth plaintiffs, situates the case within Hawaiʻi’s legal tradition of prioritizing children’s rights and intergenerational equity. She explores the evolution of children’s constitutional protections, contrasting Hawaiʻi’s progressive jurisprudence with the dominant adult-centric legal framework on the mainland. She critiques four recurring analytical missteps in U.S. courts that marginalize children’s interests and highlights Hawaiʻi’s public trust doctrine and cultural values, such as the Aloha Spirit, as models for addressing climate-related harms. …

Refundable Tax Credit Design: Cohabitating Parents And Gender Presumptions, Michelle Lyon Drumbl

Scholarly Articles

This Essay is meant to encourage further thinking to improve upon design options for unmarried cohabitating parents. Are there better ways to recognize the needs of unmarried co-parents (whether living together or not) and to provide support for shared parenting? The policy considerations for providing support to unmarried cohabitating parents are different than those for supporting married couples, given that these individuals lack the financial protections of a formal partnership.

One solution is to have a default rule whereby the CTC is awarded to the primary caregiver. Canada’s gender presumption provides a degree of administrative simplicity, but the IRS could …

In Loco Reipublicae And The Parental Duty To Expose Children To Ideas Outside The Home, Catherine Smith

Scholarly Articles

In Loco Reipublicaie boldly centers children’s rights and adeptly fills an existing jurisprudential gap by infusing parental rights with important duties to respect and facilitate children’s exercise of their own citizenship rights. It is a children’s-rights-forward shot across a heavily prioritized parents’ rights bow. It’s about time.

Brief Of Children’S Rights Advocates In Support Of Appellees: Held V. Montana, Asha Brundage-Moore, Wyatt Sassman, Catherine Smith

Scholarly Articles

Amici Curiae are members of the Consortium for the Advancement of Children’s Constitutional Rights and Healthy Mothers, Heathy Babies: The Montana Coalition who are children’s rights advocates and legal scholars. Amici submit this brief to: (1) highlight Montana’s Constitution as a leader in advancing children’s constitutional rights; (2) draw this Court’s attention to the Montana Constitution’s text and history recognizing children’s right to a clean and healthful environment; and (3) explain that a decision not to safeguard children’s right to a clean and healthful environment in reliance on adult-centric analytical missteps advanced by Appellants (and supporting Amici) would deny Montana’s …

Amended Expert Disclosure Report: Navahine V. Dept. Of Transportation, State Of Hawai’I, Catherine Smith

Scholarly Articles

From a historical and sociological legal perspective, children in America, including in Hawai'i, require extraordinary legal protection from the harm of climate change and the government actions causing them harm. Hawai'i has a long history and tradition of leading the way on broadening rights and protections under state law, particularly for children. The principles of intergenerational justice and equity at the heart of the public trust doctrine in Hawai'i similarly require that courts accord special attention and protection for children.

On June 20, 2024, the youth-powered Navahine case settled, resulting in the first constitutional climate settlement of its kind in …

Children's Right To Access Potentially Critical Learning: Liberating Youth From Propagation Of Structural Injustice, Melina Constantine Bell

Scholarly Articles

Over the past two years, U.S. states have passed educational gag orders (“EGOs”) that prohibit teaching about antiracism and LGBTQ+ identities. EGOs are destructive in at least two ways. First, they violate children’s right to access information that is potentially critical for their individual well-being. Second, they interfere with cultivating mutual respect in a pluralistic society, which serves children’s present and future wellbeing interests. In this article, I aim to demonstrate the harms that EGOs inflict, and how revising the legal framework governing children’s rights in the United States can increase both children’s and adults’ well-being. That revision entails the …

The Adult Rights-Bearing Archetype And How It Stifles Young People’S Equal Protection, Catherine E. Smith

Scholarly Articles

American constitutional law is defined by a rights-bearing archetype that prioritizes adults—and the Equal Protection Clause is no exception. The Supreme Court has recognized children as constitutional persons and proclaimed that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone,” but courts mostly see autonomous, rational, individualistic, income-generating grown people as rights-bearers. For the first time, this article reveals six adult-rights-bearing analytical traps that limit children’s equal protection, and proposes jettisoning the rigid Carolene Products test in favor of a nascent youth-based framework. Instead of shoehorning children’s rights into a web of laws and principles designed …

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights In Support Of Defendants-Appellees: St. Mary Catholic Parish V. Roy, Lauren Fontana, Catherine Smith, Tanya M. Washington, Robin Walker Sterling, Suzette Malveaux, Jeremiah Chin, Sara S. Hildebrand

Scholarly Articles

Amici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the harms that four-year-olds in the LGBT community – LGBT children and children with LGBT parents – would bear should state-funded religious schools be granted a license to discriminate against them. An exemption to Colorado’s Universal Preschool Program’s equal-opportunity requirement would allow plaintiffs to discriminate against these children and plant unfair barriers in their paths to a high-quality education and inflict dignitary, psychological, and familial harms upon an entire class of young people solely because of their or their …

Amicus Brief Of Children’S Rights Legal Scholars And Advocates As Amici Curiae In Support Of Neither Party: Trump V. Anderson, Catherine Smith, Jeremiah Chin, Philip L. Gregory, Mathew W. Dos Santos, Julia A. Olson

Scholarly Articles

Amici write, not to urge a particular merits outcome to the questions presented, but to advocate for a judicial review process that (1) is true to constitutional text and this Court’s precedent, (2) accounts for non-voting children and future generations who fall within the protections of the counter-majoritarian provisions of the Constitution, and (3) embraces the perpetuity principle over the political question doctrine.

Declaration Of Catherine Smith: Navahine V. Dept. Of Transportation, State Of Hawai’I, Catherine Smith

Scholarly Articles

I submit this expert declaration in support of the children’s motion to maintain their September 2023 trial date so they can have their urgent constitutional rights case involving a life-sustaining climate system accorded the legal prioritization it deserves. Each day that passes without redress not only means an infringement on children’s rights but also impacts their health, safety, well-being, and the cultural lifeways and traditions of Native Hawaiian children. These harms are cumulative and compounding for the duration of the plaintiffs’ childhoods as they mature into adults. And many of the plaintiffs’ climate change-induced injuries are irreversible.

"Children's Equality Law" In The Age Of Parents' Rights, Catherine E. Smith

Scholarly Articles

In this Article, I will briefly highlight the meager doctrinal landscape for children's equal protection rights. I will then argue that the current family law system, relying on parents to act in the best interest of children to protect them, falls far short in a society built upon group-based hierarchies. Sometimes, parents will not have the political power to act in their children's best interest to intervene to stop their unequal treatment at the hands of state and private actors. In fact, several landmark cases demonstrate that often out of necessity, children's rights play a pivotal role in ensuring our …

Parental Rights: In Search Of Coherence, Elizabeth Kirk

Scholarly Articles

The Supreme Court has referred to parental rights as “the oldest of the fundamental liberty interests recognized by this Court.”¹ Yet, disagreements about the nature and scope of parental rights have proliferated in recent years.

The New Jim And Jane Crow Intersect: Challenges To Defending The Parental Rights Of Mothers During Incarceration, Carla Laroche

Scholarly Articles

Family law scholars and advocates have expressed the importance of providing counsel to parents in the family regulation system, especially parents who are incarcerated, because of the system’s complexities. This article establishes, however, that when mothers must navigate both the family regulation and criminal legal systems, the protections appointed parents’ counsel are supposed to provide are weakened. These harms are heightened especially for Black mothers within the carceral state. As this article shows, appointed lawyers in family regulation cases cannot properly protect the due process rights of mothers who are incarcerated because of the added challenges both mothers and their …

Brown'S Children's Rights Jurisprudence And How It Was Lost, Catherine E. Smith

Scholarly Articles

The first decision in Brown v. Board of Education is a landmark children's rights case that has been lost. After all, segregated education was not sui generis; free and independent Black children in the United States had always been perceived as a significant threat to White supremacy, just as their subjugation had always been a powerful and effective means to uphold it. In an unprecedented move to address this age-old practice, Brown I recognized Black children's right to protect themselves from government exploitation that targeted them because they were Black and young-erecting barriers in their equal path to adulthood in …

Age—Not Sex Or Gender—Makes The Case Of Ellie Anderson Complex, Elizabeth Lanphier, Shannon Fyfe

Scholarly Articles

In ’The Complex Case of Ellie Anderson’, Joona Rasanen and Anna Smajdor raise several ethical questions about the case. One question asks, but does not answer, whether Ellie faced discrimination for being transgender when her mother was not allowed access to Ellie’s sperm following her death. In raising the question, the authors imply anti-trans bias may have influenced this determination. However, this inference is not supported by current ethical and legal guidance for posthumous use of gametes, with which Ellie’s case is consistent. We consider the authors’ responses to their other ethical queries, and how their suggestions for what options …

Child Welfare Requires Adequate Remedial Services, Raymond C. O'Brien

Scholarly Articles

This Article argues that the focus of child welfare should be upon the adequacy of reasonable services provided to parents prior to and after their child has been declared dependent because of an abuse or neglect allegation. Admittedly, recent federal legislation funding rehabilitation services while permitting a child to remain with an offending parent may result in less trauma, but this feature should not distract from the point that states must develop adequate reasonable services, and these must be provided within a specified period of time. The consequence of inadequate reasonable services, unable to address adverse conduct within a specified …

The Role Of Adoption In Dobbs-Era Pro-Life Policy, Elizabeth Kirk

Scholarly Articles

It is incumbent upon those who wish to provide alternatives to abortion for pregnant women to advance policies that highlight the unique gifts of adoption in a way that ensures it is a meaningful option. Of course, there are many venues for this to occur, whether in education, media, advertising, private initiative, or legislation. The particular policy appropriate for each state will depend on many factors, including the availability of legal abortion.

Pediatric Off-Label Use Of Covid-19 Vaccines: Ethical And Legal Considerations, Elizabeth Lanphier, Shannon Fyfe

Scholarly Articles

After briefly contextualizing ethical and legal precedents regarding off-label use, we offer an analysis of the ethical permissibility of and considerations for pediatric off-label Covid-19 vaccination based on individual benefits, risks, and available alternatives. Our analysis challenges the ethics of the blanket prohibition against off-label pediatric Covid-19 vaccination in the VPA, as it blocks clinicians from providing the care they may determine to be clinically and ethically appropriate for their patient. At the same time, our analysis acknowledges that Covid-19 creates population-level ethical considerations that are at times in tension with individual health interests.

Child Support And Joint Physical Custody, Raymond C. O'Brien

Scholarly Articles

Child custody has evolved to the point where, at a minimum, states provide a mediated process by which parents may formulate parenting plans with court-appointed assistance. At a maximum state legislatures and courts increasingly consider joint physical custody awards. While joint physical custody safeguards the fundamental rights of parents, it nonetheless prompts practical concerns in awarding child support. Today, child support begins with state statutory guidelines, but the guidelines often fail to adequately address the economic consequences of two complete residences, one supported by a parent with fewer economic resources, and the fact that oftentimes the child drifts from one …

The Many Harms Of Forced Marriage: Insights For Law From Ethnography In Northern Uganda, Myriam S. Denov, Mark A. Drumbl

Scholarly Articles

Harnessing an interdisciplinary framework that merges elements of law and social science, this article aims to recast the crime of forced marriage, and thereby enhance accountability, in light of knowledge acquired through ethnographic fieldwork in northern Uganda. More specifically, we draw upon the perspectives and experiences of 20 men who were "bush husbands" in the Lord’s Resistance Army (LRA). These men were abducted by the LRA between the ages of 10 and 38 and spent between 6 and 24 years in captivity. During their time in the LRA, these men became ‘bush husbands’ with each man fathering between 1 and …

Family In The Balance: Barton V. Barr And The Systematic Violation Of The Right To Family Life In U.S. Immigration Enforcement, David Baluarte

Scholarly Articles

The United States systematically violates the international human right to family life in its system of removal of noncitizens. Cancellation of removal provides a means for noncitizens to challenge their removal based on family ties in the United States, but Congress has placed draconian limits on the discretion of immigration courts to cancel removal where noncitizens have committed certain crimes. The recently issued U.S. Supreme Court decision in Barton v. Barr illustrates the troubling trend of affording less discretion for immigration courts to balance family life in removal decisions that involve underlying criminal conduct. At issue was the “stop-time rule” …

Marital Versus Nonmarital Entitlements, Raymond C. O'Brien

Scholarly Articles

This Article discusses the evolution of family structure and the ascendency of privacy, liberty, and self-determination. Partially in response, an array of nonmarital unions have become commonplace in the past fifty years in the United States. Cases reveal the insufficiency of remedies avail- able to these nonmarital couples at dissolution-even for those couples living in states willing to enforce express or implied nonmarital agreements. Strikingly, there are fewer remedies for nonmarital cohabitants at death.

Public policy mandates concern for all citizens, including the evolu- tion of individualized family structures formed by its citizens. The issue addressed in this Article is …

State Action That Penalizes Children As Evidence Of A Desire To Harm Politically Unpopular Parents, Catherine E. Smith

Scholarly Articles

This Article is the first to advance the position that when the government takes the extreme step of denying children basic rights and benefits because of their parents, such state action should be recognized not just as evidence of animus against the children, but also as evidence of "a bare desire to harm" their "politically unpopular" parents. Identifying this type of government motivation and calling it what it is--animus toward parents--is just as important as condemning animus against the children themselves. Anti-parent animus that motivates harmful government behavior towards children should be prohibited as an impermissible means to accomplish an …