Family Law Commons^™

"The Good Mother": Mothering, Feminism, And Incarceration, Deseriee A. Kennedy

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As the rates of incarceration continue to rise, women are increasingly subject to draconian criminal justice and child welfare policies that frequently result in the loss of their parental rights. The intersection of an increasingly carceral state and federally imposed timelines for achieving permanency for children in state care has had a negative effect on women, their children, and their communities. Women, and their ability to parent, are more adversely affected by the intersection of these gender-neutral provisions because they are more likely than men to be the primary caretaker of their children. In addition, incarcerated women have higher rates …

Social Security Spouse And Survivor Benefits 101: Practical Primer Part Ii (Or Another Reason To Put A Ring On It), Francine J. Lipman

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No abstract provided.

Resolving Interstate Conflicts Over Same-Sex Non-Marriage, Hillel Y. Levin

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States have adopted several different regimes of recognition for same-sex couples. A few states allow same-sex couples to marry; several others offer marriage-like partnerships (usually called civil unions), which provide all or nearly all of the substantive rights and responsibilities associated with marriage; still others offer marriage-lite partnerships (sometimes called reciprocal benefits arrangements), which provide a small subset of the rights and responsibilities associated with marriage; and, of course, others offer no recognition at all.

What happens when these regimes of recognition collide? For example, what happens when a couple marries in Massachusetts and then moves to a marriage-like state, …

Deadbeats, Deadbrokes, And Prisoners, Ann Cammett

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Historically, child support policy has targeted absent parents with aggressive enforcement measures. Such an approach is based on an economic resource model that is increasingly irrelevant, even counterproductive, for many low-income families. Specifically, modern day mass incarceration has radically skewed the paradigm on which the child support system is based, removing millions of parents from the formal economy entirely, diminishing their income opportunities after release, and rendering them ineffective economic actors. Such a flawed policy approach creates unintended consequences for the children of these parents by compromising a core non-monetary goal of child support system – parent-child engagement – as …

When Courts Collide: Integrated Domestic Violence Courts And Court Pluralism, Elizabeth L. Macdowell

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This Article proposes court pluralism as a new theory for analyzing the role of the justice system in addressing domestic violence. It argues that a systemic view of the justice system is essential to developing coherent reform strategies, and lays out the foundation for taking into account the unique functions of civil and criminal justice in domestic violence cases. In doing so, the Article challenges the one-dimensional characterization of a fragmented court system as bad for victims of domestic violence that dominates legal scholarship, and shows that court fragmentation can be an opportunity and potential source of protection from systemic …

"We Can Work It Out": Using Cooperative Mediation--A Blend Of Collaborative Law And Traditional Mediation--To Resolve Divorce Disputes, Elena Langan

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No abstract provided.

Children, Parents & The State: The Construction Of A New Family Ideology, Deseriee A. Kennedy

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More than twenty-five states allow courts to consider parental incarceration or conviction of a crime in determining whether to terminate parental rights. This problem is of increasing significance as a result of dramatic growth in incarceration rates, particularly among women who were often the primary and sole caretaker of their children before their imprisonment. Social scientists have recognized that the reality for parents in many communities is one of widespread and repeated incarceration, which has a devastating effect on families and communities. The problem is magnified by a failed drug policy and the Adoption and Safe Families Act, which, in …

Conflicts And Shifting Landscape Around Same-Sex Relationships, Hillel Y. Levin

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Conflicts and choice of law questions arising from marriage recognition are more multidimensional today than ever before. Traditionally, these conflicts arose because one jurisdiction allowed marriage between two individuals while another prohibited such a marriage. This was the model in the consanguineous, polygamous, and interracial marriage contexts. It has also been the primary model for analyzing conflicts that arise in the context of same-sex relationships.

In a forthcoming article, Resolving Interstate Conflicts Arising from Interstate Non-Marriage, I challenge this model, and suggest that the emergence of marriage-like 2 and marriage-lite3 alternatives (i.e., civil unions, domestic partnerships, reciprocal benefits arrangements, etc.) …

Conflicts And The Shifting Landscape Around Same-Sex Relationships, Hillel Y. Levin

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Conflicts and choice of law questions arising from marriage recognition are more multidimensional today than ever before. Traditionally, these conflicts arose because one jurisdiction allowed marriage between two individuals while another prohibited such a marriage. This was the model in the consanguineous, polygamous, and interracial marriage contexts. It has also been the primary model for analyzing conflicts that arise in the context of same-sex relationships. In a forthcoming article, Resolving Interstate Conflicts Arising from Interstate Non-Marriage, I challenge this model, and suggest that the emergence of marriage-like and marriage-lite alternatives(i.e., civil unions, domestic partnerships, reciprocal benefits arrangements, etc.) for same-sex …

Social Security Benefits Formula 101: A Practical Primer, Francine J. Lipman

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No abstract provided.

Child Support And (In) Ability To Pay: The Case For The Cost Shares Model, Pamela Foohey

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Currently enacted child support guidelines primarily focus on maintaining children's economic well-being when a single household is split into two. This article argues that this focus discounts another consideration which, when combined with the current analysis, could further advance children's well-being: the ability of parents to pay. An analysis of payment characteristics demonstrates that lower child support obligations may increase the amount of child support paid on average. Lowering presumptive obligations will make lower-income parents better able and more likely to pay their obligations, thereby increasing the amount of child support paid to lower-income children, while at most only marginally …

When Reading Between The Lines Is Not Enough: Lessons From Media Coverage Of A Domestic Violence Homicide-Suicide, Elizabeth L. Macdowell

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In October 2008, Karthik Rajaram murdered his wife, mother-in-law, sons and, ultimately, himself, in a wealthy Los Angeles suburb. This Article analyzes media reports about the deaths to illustrate the resilience of patriarchy and significant gaps in research and scholarship about domestic violence, and suggests a strategic approach to building counter-narratives about violence against women.

The Article is composed of five parts. Part I is the Introduction. Part II draws on narrative theory and critical media scholarship to lay the groundwork for analysis, and to show why media coverage of homicide-suicide is implicated in the production of dominant ideology.

Part …

How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis Of Metaphor, Narrative, And Imagination In Child Custody Disputes, Linda L. Berger

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We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing "a sea-change," family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income.

This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, …

Ketubah, The Marriage Contract Under Jewish Law, And Its Application In Secular Legal Systems, Marketa Trimble

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The article presents ketubah, an institute of Jewish law that is unknown in the current Czech academic literature; it describes its evolution and content, and the manner in which secular countries with large Jewish communities deal with it. Throughout the centuries ketubah achieved a standardized format that has been adjusted to local customs. Additionally, there are attempts to use ketubah to solve the problem of agunah – the problem of parties who have obtained a secular divorce but not a divorce under Jewish law because the other party prevented it. Some legal systems, such as those of the State of …

Same-Sex Marriage In New York, Lewis A. Silverman

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No abstract provided.

Expanding Collateral Sanctions: The Hidden Costs Of Aggressive Child Support Enforcement Against Incarcerated Parents, Ann Cammett

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Legal barriers or "collateral consequences" arising from criminal convictions came to the forefront of the legal and policy discourse at the dawn of the twenty-first century, as the population of people with criminal convictions skyrocketed. These barriers act as restrictions to post-incarceration reentry into society, including the resumption of employment, occupational licensing, access to housing and public benefits, driving privileges, educational loans, immigration, voting rights, and other means of economic survival and civic re-engagement.

What is barely examined are the ways in which these barriers affect family law, specifically in the area of child support and the debt accrued by …

Protecting Children From The Dark Side Of The Internet, Anne Dupre, John Dayton, Christine Kiracofe

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This article examines the history of judicial and legislative responses to the issue of consumption of pornography and other harmful materials over the Internet by children. The article begins by giving a brief overview of free speech law in the US. Next, summaries of relevant U.S. legislation and corresponding litigation on Internet free speech are given. Highlighted are: 1) the Communications Decency Act (CDA) and the U.S. Supreme Court’s response in Reno v. ACLU; 2) The Child Pornography Prevention Act (CPPA) and Ashcroft v. Free Speech Coalition; 3) the Children’s Internet Protection Act (CIPA) and United States v. American …

Standing In Babylon, Looking Toward Zion, Katherine R. Kruse

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This article defends the triumph of vision at the 2006 UNLV Conference on Representing Children in Families by examining the interrelationship between idealism and realism in the definition of lawyers' roles and the importance of idealized visions to the process of reforming dysfunctional systems. This article suggests that the vision of lawyering for children sketched in the UNLV Recommendations--though based in idealism--is both deeply realistic and ultimately practical. This article thus affirms the choice of the group of idealists who stood together for a few days in modern-day Babylon to keep their eyes trained on the vision of Zion as …

Child Marriage And Guardianship In Tanzania: Robbing Girls Of Their Childhood And Infantilizing Women, Tamar Ezer, Kate Kerr, Kara Major, Aparna Polavarapu, Tina Tolentino

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No abstract provided.

Harry Potter & The Law: Family Life And Moral Character, James C. Smith

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Harry Potter's mistreatment by his Muggle family does not amount to a legal wrong. Notice that Dumbledore did not threaten the Dursleys with legal proceedings, either in Muggle or Wizard tribunals. The ethic of equitable treatment is societal and lacks a legal basis in Anglo-American family law. Family law has many facets; it is an amalgam of legal rules and principles. My focus is the lens of property law -- in particular, family property norms -- although it is also plain that the Dursleys have not violated non-property based family law norms.

Making Work Pay: Promoting Employment And Better Child Support Outcomes For Low-Income And Incarcerated Parents, Ann Cammett

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The New Jersey Institute for Social Justice prepared this report in response to concerns about child support debt—in particular as it creates a barrier to employment for low-income parents and works at cross-purposes with the goals of the child support program. Drawing on examples from other states, this report identifies a range of policies that inform child support practice in New Jersey and offers administrative, legislative, and programmatic solutions to address child support arrears owed by low-income and incarcerated parents.

Between Dependency And Liberty: The Conundrum Of Children’S Rights In The Gilded Age, David S. Tanenhaus

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Although legal scholars often assume that the history of children's rights in the United States did not begin until the mid twentieth century, this essay argues that a sophisticated conception of children's rights existed a century earlier, and analyzes how lawmakers articulated it through their attempts to define the rights of dependent children. How to handle their cases raised fundamental questions about whether children were autonomous beings or the property of either their parents and/or the state. And, if the latter, what were the limits of parental authority and/or the power of the state acting as a parent? By investigating …

Attorneys' Perceptions Of Child Witnesses With Mental Retardation, Rebecca Nathanson

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Children with mental retardation are more likely to be abused than the general population, yet are often denied access to the justice system. Research on children without mental retardation has revealed skepticism as to their reliability as witnesses in the court of law. Even more so, children with mental retardation face the issue of credibility because of their age and disability. This study assesses attorneys' perceptions of child witnesses with mental retardation. Thirty-nine criminal attorneys completed a 33-item questionnaire designed to assess their opinions of the abilities of adults and of children with and without mental retardation to recall and …

Justice Miriam Shearing: Nevada's Trailblazing Minimalist, Mary E. Berkheiser

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Nevada Supreme Court Justice Miriam Shearing retired at the end of her second term on January 4, 2005. Over the nearly thirty years of her very public life on the bench, many have written of her accomplishments as the firs woman to enter the brotherhood of the Nevada judiciary. With Justice Sharing’s retirement, the time is ripe for an examination of her judicial decisions during the twelve years she served on the Nevada Supreme Court. The analysis here provides one perspective on her body of work. It begins, as it must, with a glimpse into the person behind the work.

Adult Guardianship In Georgia: Are The Rights Of Proposed Wards Being Protected? Can We Tell?, Eleanor Crosby Lanier

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National scrutiny of guardianship policies and practice by scholars and legal, health, and social service practitioners followed. This resulted in a succession of forums, studies, and recommendations aimed at improving the guardianship system. One such forum was the Wingspread conference, convened by the American Bar Association (ABA) in 1988. Experts from a variety of fields met to produce a groundbreaking set of recommendations for reforming guardianship. Wingspan, a second national guardianship conference addressing reform issues in 2001, produced in a second series of recommendations. The recommendations from these two conferences proposed greater protection for the proposed ward's liberty interests and …

Introduction To Symposium, The Rights Of Parents With Children In Foster Care: Removals Arising From Economic Hardship And The Predicative Power Of Race, Ann Cammett

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Professor Cammett introduces a symposium at the Association of the Bar of the City of New York exploring the predicament posed by the surge of child removals through neglect petitions, and the subsequent placement of those children in foster care. The panel’s published comments offer some poignant reflections on the crisis of the child welfare system.

Of Child Welfare And Welfare Reform: The Implications For Children When Contradictory Policies Collide, Kay P. Kindred

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On August 22, 1996, President Bill Clinton signed into law the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (hereinafter, “PRWORA” or the “welfare reform law”), which replaced the Aid to Families and Dependent Children Program (“AFDC”), the nation’s primary cash-assistance program, with the Temporary Assistance to Needy Families Program (“TANF”), funded by block grants to states. PRWORA represented a dramatic change in social welfare policy in the United States. Among the many changes effected by the law in the nation’s social welfare programs were: (1) the increased authority of the states over cash-assistance programs for needy families, giving …

The Effects Of The Courtroom Context On Children's Memory And Anxiety, Rebecca Nathanson

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Modifications of the courtroom environment have been proposed to enhance the ability of child witnesses to offer complete and accurate testimony and reduce system-induced stress. However, these interventions have often been conceived without the benefit of empirical data demonstrating intervention efficacy. The present study examines the effects of the courtroom context on children's memory and anxiety. Eighty-one eight- to ten-year-olds participated in a staged event involving bodily touch, and two weeks later their memory for the event was tested. Half of the children were questioned in a mock courtroom in a university law school, and half were questioned in a …

The Effects Of The Courtroom Context On Children’S Memory And Anxiety, Rebecca Nathanson

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Modifications of the courtroom environment have been proposed to enhance the ability of child witnesses to offer complete and accurate testimony and reduce system-induced stress. However, these interventions have often been conceived without the benefit of empirical data demonstrating intervention efficacy. The present study examines the effects of the courtroom context on children's memory and anxiety. Eighty-one eight- to ten-year-olds participated in a staged event involving bodily touch, and two weeks later their memory for the event was tested. Half of the children were questioned in a mock courtroom in a university law school, and half were questioned in a …

Defining Marriage: What Ballot Question 2 Doesn’T Do, Mary Lafrance

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This article examines he oddly-worded initiative, which constituted Question 2 on Nevada’s 2002 ballot and explains how it was a bit of a puzzle, even two years after it was first sprung upon the electorate. Touted during its previous appearance in the 2000 election as a “definition of marriage,” this article shows how it is all too clear that the initiative was anything but that. Neither the initiative, nor any existing provision of Nevada law, made the slightest attempt to define marriage.