Family Law Commons^™

Expert Report Of Catherine Smith, J.D.: Juliana V. United States, Catherine Smith

Scholarly Articles

The Founders created the architecture for the rights of children to self-determination and protection from the sins of their forebears. A central tenet of our democracy is that government, including these federal defendants, should not deprive children (the next generation) of the foundational elements of their lives, liberties or property and should not impose hardships on them for matters of which they have no control. This historical tradition and intent of the Founders of our nation has not always been realized, but has evolved over time as our society gains new insights and understandings of children and our notions of …

Equitable Relief For Erisa Benefit Plan Designation Mistakes, Raymond C. O'Brien

Scholarly Articles

Since its enactment in 1974, the Employee Retirement Income Security Act (ERISA) and related insurance and disability programs provided retirement security for employees and employers, amassing more than $9 trillion in protected assets. Congress preempted conflicting state laws so as to promote certainty of distribution and ease of administration, two hallmarks of ERISA-governed plans. Nonetheless, since 1974, American society embraced spousal equality, an increased number of marriages end in divorce, and wealth most often passes through nonprobate transfers such as insurance contracts and pension policy plans. To accommodate these societal and wealth changes, states enacted statutes to provide elective share …

Obergefell’S Impact On Functional Families, Raymond C. O'Brien

Scholarly Articles

More than forty percent of children born in America are born to unmarried parents and only half of all cohabitating adults in America are currently married. While many children are born to single parents, others are part of the two-person unmarried cohabiting functional family paradigm. What is the status of these children?

This article examines the changing paradigm of parental status, specifically vis-à-vis homosexual couples with children, and the rights of the non-biological parent after separation. This article examines the changes in law in regards to unmarried parents leading up to the Uniform Parentage Act. It describes the equitable remedies …

Obergefell'S Missed Opportunity, Catherine Smith

Scholarly Articles

Part I of this article delineates the harms to children from marriage bans, harms that the Obergefell Court relied upon to recognize the fundamental right to marry for same-sex couples. Part II explains how Obergefell missed an opportunity to advance the constitutional rights of children by failing to invoke well-established equal protection law. This discussion briefly catalogues the omitted child-centered cases that warranted a more robust analysis of children's rights. This series of cases begins with the Brown v. Board of Education decision, and then turns to a number of post-Brown equal protection cases that explicitly prohibited state practices that …

Bridging The Justice Gap In Family Law: Repurposing Federal Iv-D Funding To Expand Community-Based Legal And Social Services For Parents, Stacy Brustin, Lisa Vollendorf Martin

Scholarly Articles

Parents in family court overwhelmingly proceed pro se; however, in child support courtrooms, government attorneys representing the state child support agency frequently play a pivotal role. These attorneys represent the state’s ostensible interests in ensuring that children are financially supported and in preventing welfare dependence; they do not represent individual parents. The outcomes of child support proceedings have profound, long-term constitutional and financial implications for parents, yet litigants rarely understand their rights or the role of the government.

Originally, the goal of state child support enforcement efforts was to recapture the costs of welfare expenditures. In 1990, two-thirds of cases …

The Other Side Of The Rabbit Hole: Reconciling Recent Supreme Court Personal Jurisdiction Jurisprudence With Jurisdiction To Terminate Parental Rights, Joan M. Shaughnessy

Scholarly Articles

This Essay contrasts the jurisdictional regime followed in termination of parental rights and other child custody cases with the regime that has dominated recent Supreme Court personal jurisdiction cases. Jurisdiction in child custody cases has long been based upon the connection of the child, not the defendant parent, to the jurisdiction. Recent Supreme Court cases, on the other hand, have focused nearly exclusively on the defendant’s connection to the forum state. This Essay argues that the Supreme Court cases betray a failure of the Court to provide a consistent constitutional justification for the jurisdictional limitations it has imposed. The Essay …

The Intended Parent: The Power And Problems Inherent In Designating And Determining Intent In The Context Of Parental Rights, Heather Kolinsky

Scholarly Articles

This Article seeks to consider and discuss the intent to parent and, particularly, the use of the words intent and intentional in the context of assigning legal parental rights. Problems and preferences have arisen from the use of this paradigm and the notion that intent can be fixed at any one point in time. This Article discusses how this historical use of intent and intentional parenthood may impact the evolving field of parental form, considering whether we will carry forward some of the same problems and preferences into newer forms of the assignment of legal parental rights.

The Article first …

Children's Rights In The Midst Of Marriage Equality: Amicus Brief In Obergefell V. Hodges By Scholars Of The Constitutional Rights Of Children, Tanya Washington, Susannah Pollvogt, Catherine Smith, Lauren Fontana

Scholarly Articles

Many scholars have called for the acknowledgement and treatment of children's rights as constitutionally protected and enforceable, and Supreme Court precedent establishes that the government may not punish children for matters beyond children's control. Same-sex marriage bans and non-recognition laws, which are collectively referred to as marriage bans, impose prohibited punishment on children for being born into, or parented by, same-sex families. States argue that marriage is the optimal familial environment for children, yet marriage bans categorically exclude an entire class of children -- children in same-sex families -- from the legal, economic, and social benefits of marriage. In response …

Paved With Good Intentions: Unintended Consequences Of Federal Proposals To Integrate Child Support And Parenting Time., Stacy Brustin, Lisa Vollendorf Martin

Scholarly Articles

This Article proceeds in three parts to evaluate the merits of integrating custody and visitation determinations in government-initiated child support proceedings. Part I situates the federal parenting time proposals within the doctrines that shape the scope and allocation of parental rights and responsibilities. This part explores parents’ ability to establish custody, visitation, and child support arrangements, both outside of the court system and within the context of domestic relations proceedings. The section goes on to explore the federal and state child support enforcement structure and recent attempts to change the goal of government involvement from recapturing costs to creating opportunities …

Brief Of Scholars Of The Constitutional Rights Of Children Susannah W. Pollvogt, Catherine E. Smith, And Tanya Washington As Amici Curiae In Support Of Plaintiffs-Appellants And Reversal: Robicheaux V. Caldwell, Catherine E. Smith, Tanya Washington, Susannah W. Pollvogt

Scholarly Articles

Amici are scholars and professors of family law and the law of equal protection. Amici submit this brief to respond directly to arguments advanced by the State of Louisiana that its laws prohibiting same-sex marriage2 are justified because they advance child welfare. Specifically, the State asserts that its laws advance child welfare by promoting Louisiana’s interest in: (1) linking children with their biological parents to prevent the social stigma associated with being “illegitimate” and (2) establishing the child as a member of an intact family resulting from the marriage of the mother and alleged father. These purported justifications express and …

Children As Proto-Citizens: Equal Protection, Citizenship, And Lessons From The Child-Centered Cases, Catherine E. Smith, Susannah W. Pollvogt

Scholarly Articles

The rights of children have recently taken a prominent role in the popular and judicial consciousness. This is largely due to litigation over marriage equality. In authoring the majority opinion in United States v. Windsor, 133 S. Ct. 2675 (2013), Justice Kennedy cited tangible and psychic harm to the children of same-sex couples as a basis for invalidating the federal Defense of Marriage Act. Post-Windsor, myriad state and federal courts similarly have recognized the manner in which state-level marriage bans inflict harm on the children of same-sex couples. Yet, while courts have recognized the significance of harm to children …

Equal Protection For Children Of Same-Sex Parents, Catherine E. Smith

Scholarly Articles

Gay rights litigation and advocacy traditionally have focused on the unequal treatment of gay and lesbian individuals and couples; less attention has been dedicated explicitly to the legal rights of the children of gay and lesbian parents. This Article asserts that a child of same-sex parents denied a government benefit has a cognizable equal protection challenge—a legal claim that is separate and distinct from that of the child’s gay or lesbian parents. It is well-settled equal protection law that the government may not treat nonmarital children differently than marital children because of moral disdain for their parents’ relationship, and laws …

Reasonable Efforts And Parent-Child Reunification, Raymond C. O'Brien

Scholarly Articles

Among the increasing number of federal statutes impacting family law two continue to impact child permanency and parental rights. First, the Adoption Assistance and Child Welfare Act of 1980 mandates that state courts find that the state child welfare agency made reasonable efforts to reunite a dependent child with his or her parents prior to termination of parental rights. The child is dependent because a state court held that there was sufficient clear and convincing evidence to remove the child from the parents’ home. Often that evidence results from parental poverty, mental or physical disability, or the parents are undereducated …

Attorney Responsibility And Client Incapacity, Raymond C. O'Brien

Scholarly Articles

This Article suggests what an attorney should consider when representing a client suspected by the attorney of having diminished capacity, anticipating diminished capacity, or a client anticipating a response to the legal dilemmas posed by aging. So too, this Article suggests what an attorney should consider when retained by the family members of an allegedly incapacitate person. After providing demographics regarding aging, this Article will specifically address the attorney-client relationship in the context of the Model Rules of the American Bar Association. Next, this Article will integrate the attorney's responsibility regarding the proper execution of a Last Will and Testament, …

The Calculus Of Accommodation: Contraception, Abortion, Same-Sex Marriage, And Other Clashes Between Religion And The State, Robin F. Wilson

Scholarly Articles

This Article considers a burning issue in society today— whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate samesex marriages. In all these contexts, religious objectors claim a special right of entitlement to follow their religious tenets, in the face of equally compelling claims that religious accommodations threaten access and …

Ten Questions Every Cohabitant Should Think About Before Moving In, Robin F. Wilson

Scholarly Articles

None available.

Charting The Success Of Same-Sex Marriage Legislation, Robin F. Wilson

Scholarly Articles

None available.

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien

Scholarly Articles

This Article argues that challenges made to family law structures have provoked a significant reaction from persons and religious organizations advocating a distinctive worldview based on religious and historical values. Additionally, as family law changes from being a product of a religioushistorical worldview to being a product of private-ordering, the religious liberty of worldview adherents has been challenged. The struggle is apparent in the debates during the 2012 presidential election and is evidenced in government mandates that include, among other requirements, that employersincluding religious organizations-provide insurance coverage for employees that include contraception. Although many aspects of family law have been …

Child Support: Shifting The Financial Burden In Low-Income Families, Stacy Brustin

Scholarly Articles

No abstract provided.

The Rights Of The Child, Catherine Smith

Scholarly Articles

There are certainly upsides and downsides to pursuing the rights of children of LGBTs that must be thoroughly vetted. On one hand, a focus on the rights of children of gays and lesbians offers another avenue to push for equality by recognizing that discrimination extends to individuals because of their relationship to LGBTs, on the other hand, it may be viewed as bootstrapping or an end-run around lawful discrimination against LGBTs. On one hand, a child-centered approach to LGBT issues may contribute to the children’s rights movement, however, the same principles developed to seek recourse for these children could be …

Culture, Dissent, And The State: The Example Of Commonwealth African Marriage Law, Johanna E. Bond

Scholarly Articles

This is an explosive time for those seeking to define the meaning and parameters of marriage. The subject has generated heated debate worldwide. In June 2010, the European Court of Human Rights declined to extend marriage rights to a gay Austrian couple, but the Court carefully laid the foundation for the recognition of such rights when a European consensus on the issue emerges. In July 2010, Argentina extended to same-sex couples the right to marry, joining nine other countries that legally recognize same-sex couples' right to marry. In August 2010, a United States district judge struck down a California ban …

Privatizing Family Law In The Name Of Religion, Robin Fretwell Wilson

Scholarly Articles

No abstract provided.

Trusting Mothers: A Critique Of The American Law Institute's Treatment Of De Facto Parents, Robin Fretwell Wilson

Scholarly Articles

No abstract provided.

Insubstantial Burdens: The Case For Government Employee Exemptions To Same-Sex Marriage Laws, Robin Fretwell Wilson

Scholarly Articles

The case for accommodating religious objectors to same-sex marriage has met significant resistance on a number of fronts. Some believe that religious exemptions permit objectors to dodge legal duties to serve same-sex couples that would otherwise apply. Critics charge that, if extended to public employees, such exemptions would burden the ability of same-sex couples to marry. Others argue that exemptions coddle wrong-headed people who really do not have a legitimate reason for objecting and who, therefore, should not be legally excused. A review of the nearly half-dozen new same-sex marriage laws enacted in the past year suggests that the least …

Integrating Marital Property Into A Spouse’S Elective Share, Raymond C. O'Brien

Scholarly Articles

First, this Article begins with history, as this forms the basis of electiveshare law. It is necessary to begin with the historical basis of a spouse's right to support, and then proceed to examine how and why a spouse obtained a share of the property acquired during marriage. Second, because a spouse's rights at death were often very different from those that a spouse would obtain at divorce, it is necessary to explain the various judicial and statutory models adopted by the states to provide a modicum of protection to a surviving spouse at death. There are many models and …

The Momentum Of Posthumous Conception: A Model Act, Raymond C. O'Brien

Scholarly Articles

This Article addresses the scenario of when, through advanced medical technology, a procedure is performed resulting in the birth of a child more than three hundred days-a time suggested by some statutes-after the death of the gamete provider. The embryo may result from in vitro fertilization or from a woman being artificially inseminated with the sperm of a deceased male gamete provider. And of course the woman could have predeceased too and left a viable ova, that was then fertilized with the sperm of a living or a deceased male to create an embryo, which was then placed into a …

Matters Of Conscience: Lessons For Same-Sex Marriage From The Healthcase Context, Robin Fretwell Wilson

Scholarly Articles

None available.

More Than A Witness: The Role Of Custodial Parents In The Iv-D Child Support Process, Stacy Brustin

Scholarly Articles

No abstract provided.

Border Crossings: Understanding The Civil, Criminal, And Immigration Implications For Battered Immigrants (And Others) Fleeing Across State Lines With Their Children, Catherine F. Klein, Leslye E. Orloff, Hema Sarangapani

Scholarly Articles

This article provides an overview of the impact of state criminal parental kidnapping or custodial interference statutes on immigrant survivors of domestic violence who already have left or wish to leave their state with their children. Specifically, it discusses the jurisdictional laws that relate to interstate custody, criminal implications of intrastate versus interstate custodial interference, the varying applicability of custodial interference statutes for parents who do and do not have court-ordered custody of their children, statutory exceptions or defenses available to survivors of domestic violence facing prosecution on charges of criminal parental kidnapping, and immigration consequences related to a conviction …

The Intersection Between Welfare Reform And Child Support Enforcement: D.C.’S Weak Link, Stacy Brustin

Scholarly Articles

This Article examines the effectiveness with which the District of Columbia has linked welfare reform and child support collection. Part I discusses the ways in which the 1996 federal welfare reform legislation significantly altered federal and state child support systems. Part II shifts the discussion from the national arena to the District of Columbia and explores legislative, executive, and judicial responses to child support enforcement in the wake of federal welfare reform.

Part III recommends ways in which the District of Columbia can improve its enforcement system and suggests that it is not enough to simply establish child support orders; …