Family Law Commons^™

Essentially A Mother, Jennifer S. Hendricks

Publications

This article connects the constitutional jurisprudence of the family to debates over reproductive technology and surrogacy. Despite the outpouring of literature on reproductive technologies, courts and scholars have paid little attention to the constitutional foundation of parental rights. Focusing on the structural/political function of parental rights, this article argues that a gestational mother has a constitutional claim to be recognized as a legal parent.

The article first discusses the "unwed father cases." Despite believing that natural sex differences justified distinctions in parental rights, the Supreme Court crafted a test giving men parental rights if they established relationships with their biological …

No Chance To Prove Themselves: The Rights Of Mentally Disabled Parents Under The Americans With Disabilities Act And State Law, Dale Margolin Cecka

Law Faculty Publications

This article explores the relationship between state child welfare laws that terminate parental rights and the federal Americans with Disabilities Act (ADA). The article begins by analyzing the application of the ADA to termination of parental rights proceedings against parents with mental disabilities. It then surveys state child welfare laws, focusing on the treatment of parents under New York State law. The article concludes by advocating for a change to reflect the principles of the ADA in state laws and in practice.

Mapping Alimony: From Status To Contract And Beyond, Gaytri Kachroo

The University of New Hampshire Law Review

[Excerpt] “With the introduction of no-fault divorce, one spouse could unilaterally petition for divorce, in most states, by demonstrating a period of separation or the impossibility of reconciliation. The possibility that a marriage can be dissolved without a showing of fault has obliterated the need to seek consent from the other spouse contesting it. This can preclude the need for a mutually designed financial arrangement. Courts now play a greater role in such financial arrangements and are more likely to conform such financial arrangements to statutory standards. From state to state, despite the prevalence of such conforming by courts, resulting …

Women's Place: Urban Planning, Housing Design, And Work-Family Balance, Katharine B. Silbaugh

Faculty Scholarship

In the past decade a substantial literature has emerged analyzing the role of work-family conflict in hampering women's economic, social, and civil equality. Many of the issues we routinely discuss as work family balance problems have distinct spatial dimensions. 'Place' is by no means the main factor in work-family balance difficulties, but amongst work-family policy-makers it is perhaps the least appreciated. This article examines the role of urban planning and housing design in frustrating the effective balance of work and family responsibilities. Nothing in the literature on work-family balance reform addresses this aspect of the problem. That literature focuses instead …

Divorcees Turn About In Their Graves As Ex-Spouses Cash In: Codified Constructive Trusts Ensure An Equitable Result Regarding Erisa-Governed Employee Benefit Plans, Sarabeth A. Rayho

Michigan Law Review

A revocation-by-divorce statute essentially nullifies a devise in a divorced decedent's will when the devise bequeaths property to the decedent's ex-spouse and the will was executed during their marriage. Until recently, state revocation-by-divorce statutes unquestionably applied not only to wills but also to will substitutes, including ERISA-governed employee benefit plans. In 2001, the Supreme Court held in Egelhoff v. Egelhoff ex rel. Breiner that ERISA preempts traditional state revocation-by-divorce statutes as applied to ERISA-governed employee benefit plans. In the wake of the Egelhoff decision, plan administrators may automatically pay proceeds to the listed beneficiary, even an ex-spouse, regardless of the …

From Family To Individual And Back Again, Margaret F. Brinig

Journal Articles

Loving v. Virginia has been thought of in many ways: as an important step toward full equality for African-Americans, as, more generally, a statement about the suspect classification of race, as a declaration about the fundamental nature of marriage, and as a critical addition to the construction of the right to privacy (as well as, of course, exemplified in the validation of the Lovings' own marriage).

In my contribution to the first Loving symposium, I wrote about the increasing tendency of the Supreme Court, following the 1967 decision, to treat the rights of intimacy as belonging to the individual adults …

Sos (Safeguard Our Survival): Understanding And Alleviating The Lethat Legacy Of Survival-Threatening Child Abuse, Nancy Wright, Eric Wright

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Increasing Safety For Battered Women And Their Children: Creating A Privilege For Supervised Visitation Intake Records, Nat Stern, Karen Oehme

University of Richmond Law Review

No abstract provided.

When Did Lawyers For Children Stop Reading Goldstein, Freud And Solnit? Lessons From The Twentieth Century On Best Interests And The Role Of The Child Advocate, Jane M. Spinak

Faculty Scholarship

Between 1973 and 1986, Joseph Goldstein, Anna Freud, and Albert Solnit published three influential but controversial books on the best interests of the child that had an enormous impact on state decisions to intervene in family life and direct the placement of children. During the same period, children in child welfare proceedings were increasingly represented by lawyers or guardians ad litem whose advocacy included understanding and interpreting the meaning of best interests. This article begins by tracing a conversation of sorts that occurs between the authors and other scholars and practitioners as their ideas begin to influence decision-making in child …

Mental And Physical Conditions Encountered In Child Protection And Juvenile Justice, 2007 Edition, Gregg Wright, Victoria Weisz, Christine Wiklund

Center on Children, Families, and the Law (and Related Organizations): Publications

Any grouping of mental and physical conditions risks overemphasizing or mischaracterizing distinctions between mind and body, between thought and emotion, between environment and heredity, even between causes and symptoms. For convenience, and to reflect common usage, we have chosen to group chapters in this book under five headings: Physical Problems, Cognitive Problems, Emotional and Behavioral Problems, Assessments, and Therapies.

Colorado Ethics Opinion 115: Next Steps For Colorado's Collaborative Lawyers, Scott R. Peppet

Publications

No abstract provided.

Professor Homer Clark: "Just Do It!", David H. Getches

Publications

No abstract provided.

Married In Kentucky: A Surviving Spouse's Dower Right In Personalty, Elizabeth S. Muyskens

Kentucky Law Journal

No abstract provided.

How Do I Love Thee, Let Me Count The Days: Deathbed Marriages In America, Terry L. Turnipseed

Kentucky Law Journal

No abstract provided.

Child Support Harming Children: Subordinating The Best Interests Of Children To The Fiscal Interests Of The State, Daniel L. Hatcher

All Faculty Scholarship

This Article examines the government policy of seeking reimbursement of welfare costs through child support enforcement. Under our welfare program, Temporary Aid to Needy Families (TANF), custodial parents applying for benefits are required to establish child support obligations against the absent parents and to assign the resulting child support payments to the government. As a result, half of the $105 billion in national child support debt is owed to the government rather than to children. The government's fiscal interests are in direct conflict with the best interests of the children - the controlling legal standard in child support matters. The …

Adoption, Elizabeth Samuels

All Faculty Scholarship

In historical terms, the legal institution of adoption in the United Slates is relatively new. It was between the mid-1800s and the 1920s that the states began to pass laws providing for the adoption of children. Before then children had been adopted informally and in some instances by individual legislative acts, or they had come to live with other families under indenture contracts or as a result of legislation authorizing charitable organizations to place children. Under these new adoption statutes, initially the court records of adoptions were not subject to confidentiality, and adopted children were not issued new birth certificates. …

What You Should Know Before You Leave The System, Dale Margolin Cecka

Law Faculty Publications

Discharging young people from foster care with no place to go, no source of income, and no health insurance is not just wrong-it's illegal. Although every state's laws are different, all states have an obligation to make sure you are able to live on your own before forcing you to leave the foster care system. In New York, you can remain in foster care until you are 21. However, once you turn 18, you must agree to remain in care by either signing an agreement or telling the judge in court that you want to stay in care. You cannot …

The Parentage Puzzle: The Interplay Between Genetics, Procreative Intent, And Parental Conduct In Determining Legal Parentage, Deborah H. Wald, Esq.

American University Journal of Gender, Social Policy & the Law

No abstract provided.

For Richer Or Poorer Or Any Other Reason: Adjudicating Immigration Marriage Fraud Cases Within The Scope Of The Constitution , Marcel De Armas

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Framing Family Court Through The Lens Of Accountability, Jane M. Spinak

Faculty Scholarship

Abolish Family Court. Merge it. Restructure it. Give it more power; give it less. Whatever recommendations were made during the two-day conference, not a single participant said that the current Court functioned well. That's hardly surprising. Barely twenty-five years after the first juvenile court was created, some of its chief protagonists expressed alarm about the Court's functioning. Those concerns are eerily similar to some of the current critiques that surfaced at the conference: insufficient resources, inadequate preventive services to keep children out of court, an overwhelmed probation service, judges without ample understanding of the complexities of families' lives, intervening in …

Developing Markets In Baby-Making: In The Matter Of Baby M, Carol Sanger

Faculty Scholarship

In this Essay, I want to explore the Baby M case from a different, less philosophical perspective. The question I pose is simply this: how did the Sterns and the Whiteheads find one another in the first place? After all, apart from their New Jersey location (and a shared fondness for Bruce Springsteen), the two couples had little in common. Mary Beth was a high school dropout; Betsy had a Ph.D. and M.D. from the University of Michigan. Rick was a Vietnam vet fighting an ongoing battle with unemployment and alcoholism; Bill led what close friends called "a quiet, industrious …

Innovation Held Hostage: Has Federal Intervention Stifled Efforts To Reform The Child Welfare System?, Vivek Sankaran

Articles

The past thirty years have been marked by an increased federalization of child welfare law, which, like other areas of family law, traditionally remained within the sole purview of state legislatures. Despite increased oversight by the federal government, outcomes for foster children remain unacceptably poor The number of children in foster care has more than doubled over the past twenty-five years and reports of suspected maltreatment have skyrocketed. Children continue to stay too long in care and have too many placements. Case workers assigned to work with families and attorneys representing parents and children are overwhelmed and rarely provide meaningful …

Multi-Tiered Marriage: Ideas And Influences From New York And Louisiana To The International Community, Joel A. Nichols

Vanderbilt Journal of Transnational Law

This Article contends that society in the United States needs to hold a genuine discussion about alternatives to current conceptions of marriage and family law jurisdiction. Specifically, the Article suggests that the civil government should consider ceding some of its jurisdictional authority over marriage and divorce law to religious communities that are competent and capable of adjudicating the marital rites and rights of their respective adherents. There is historical precedent and preliminary movement toward this end--both within and without the United States--which might serve as the framework for further discussions. Within the United States, the relatively new covenant marriage statutes …

The Intercountry Adoption Act Of 2000: The United States' Ratification Of The Hague Convention On The Protection Of Children, And Its Meager Effect On International Adoption, Kate O'Keeffe

Vanderbilt Journal of Transnational Law

This Note explores the effect of the United States' ratification of the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Convention) via passage of the Intercountry Adoption Act of 2000 (IAA). Through intercountry adoption, countless children have been given homes and opportunities in the U.S. that would not have been available to them in their countries of origin. With the increased popularity of intercountry adoption, however, have come tragic consequences for many children in foreign countries, who are exploited by those involved in the adoption process. This Note contends that the IAA, as …

Love, Marriage, And The Baby Carriage: Revisiting The Channelling Function Of Family Law, Linda C. Mcclain

Faculty Scholarship

This Article revisits a significant idea at the core of contemporary debates in family law: the channeling function of family law. This idea is that a basic purpose of family law is to support fundamental social institutions, like marriage and parenthood, and to steer people into participating in them. Family law scholar Carl Schneider helpfully invited attention to this familiar idea in an essay published fifteen years ago. Challenges to the conventional sequence (expressed in the childhood rhyme) of love-marriage-baby carriage posed by changing social practices, rights claims made by various groups within society that lead to legislative change and …

The "Male Problematic" And The Problems Of Family Law: A Response To Don Browning's "Critical Familism", Linda C. Mcclain

Faculty Scholarship

This essay explores the relationship between the male problematic and the problems of family law. The problem of fatherhood, or what religion scholar and marriage movement leader Don Browning calls the male problematic, is a central concern of that movement. The premise is that marriage addresses a core societal challenge - binding men to the mothers of the children they foster and securing men's paternal investment in those children. The essay responds to Browning's review (in 56 Emory Law Journal 1383 (2007)) of my book, The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press, 2006), in which …

Criminal Justice And The Challenge Of Family Ties, Dan Markel, Jennifer M. Collins, Ethan J. Leib

Faculty Journal Articles and Book Chapters

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and …

"Unchain The Children": Gault, Therapeutic Jurisprudence, And Shackling, Bernard P. Perlmutter

Articles

No abstract provided.

Changing Name Changing: Framing Rules And The Future Of Marital Names, Elizabeth F. Emens

Faculty Scholarship

What laws should govern spouses' names at marriage? If a man and a woman marry, should the woman's name change automatically? Or should the woman's name remain the same unless she goes through more or less complicated steps to change it? Contrary to convention, should the man's name change to the woman's? Should both their names be hyphenated? Many variations could be imagined.

The law of marital names has undergone a significant transformation over the past forty years. For about a hundred years of U.S. history, states required married women to take their husbands' names in order to engage in …

Repairing Family Law, Clare Huntington

Faculty Scholarship

Scholars in the burgeoning field of law and emotion have paid surprisingly little attention to family law. This gap is unfortunate because law and emotion has the potential to bring great insights to family law. This Article begins to fill this void, and inaugurate a larger debate about the central role of emotion in family law, by exploring the intriguing and significant consequences for the regulation of families that flow from a theory of intimacy first articulated by psychoanalytic theorist Melanie Klein. According to Klein, individuals love others, inevitably transgress against those they love out of hate and aggression, feel …