Family Law Commons^™

Marriage And Parenthood As Status And Rights: The Growing, Problematic And Possibly Constitutional Trend To Disaggregate Family Status From Family Rights, Katharine K. Baker

All Faculty Scholarship

In upholding Proposition 8 one year after finding that same sex couples had a constitutional right to marry, the California Supreme Court followed a growing trend in family law to sever family rights from family status. The Court found that same sex couples were constitutionally entitled to the legal incidents of marriage, but not marriage itself. In the last 30 years, courts and legislatures have increasingly recognized a variety of different family forms by granting people in them the legal incidents of family relationship (Civil Unions and Domestic Partnerships for couples, Visitation and De Facto Parenthood for caretakers) without granting …

Chalimony: Seeking Equity Between Parents Of Children With Disabilities And Chronic Illnesses, Karen Czapanskiy

Faculty Scholarship

Many thousands of children experience serious disabling conditions such as autism and debilitating chronic illnesses such as asthma. Caring for these children is often so demanding that caregiving parents cannot remain employed outside the home. Parental resources available to these children are also limited because an unusually high percentage of them live with only one parent. Nonetheless, surprisingly few cases involving families with a disabled or chronically ill child appear in the family law case law or scholarly literature. Even where child support and alimony are concerned, these families are seen only at the margins.

In my recent article, I …

Protecting And Promoting The Human Right To Respect For Family Life: Treaty-Based Reform And Domestic Advocacy, Ryan Mrazik, Andrew I. Schoenholtz

International Migrants Bill of Rights Symposium

This article examines the right to respect for family life in international law, focusing on its underlying principles and explicit protections. The article identifies these legal norms so that drafters of international treaties, specifically the International Migrants Bill of Rights, and United States legal practitioners representing immigrant children can incorporate the right to respect for family life into their drafting and advocacy, thereby protecting and promoting this critical human right.

To encourage both high-level, international treaty-based reform and the grassroots domestic advocacy necessary to comprehensively protect and promote this right, this article provides specific ideas for incorporating the right to …

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

Scholarly Articles

No abstract provided.

Let My Love Open The Door: The Case For Extending Marital Privileges To Unmarried Cohabitants, Julia Cardozo

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Reproductive Health As A Human Right, Lance Gable

Law Faculty Research Publications

No abstract provided.

The State Of The American Child: Securing Our Children’S Future: Hearing Before The Subcomm. On Children & Families Of The S. Comm On Health, Educ., Labor & Pensions, 111th Cong., Nov. 18, 2010 (Statement Of Professor Peter B. Edelman, Geo. U. L. Center), Peter B. Edelman

Testimony Before Congress

You have asked me to reflect on the achievements and disappointments of recent decades with regard to child poverty in our country, on lessons learned, and on what we need to do going forward.

It is impossible to understand child poverty trends without placing them in a context of what has happened to the American economy and to the distribution of income and wealth. Except for the last half of the 1990s, the economic history of the past four decades has been one of near‐stagnation for people with jobs that pay below the median wage in the country ‐‐ the …

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 …

Specialization Has The Potential To Lead To Uneven Justice: Domestic Violence Cases In The Juvenile And Domestic Violence Courts, Allison Cleveland

The Modern American

No abstract provided.

Legislative Updates, Cheryl Chado

The Modern American

No abstract provided.

Children's Rights As Relational Rights: The Case Of Relocation, Ruth Zafran

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Gps Monitoring May Cause Orwell To Turn In His Grave, But Will It Escape Constitutional Challenges? A Look At Gps Monitoring Of Domestic Violence Offenders In Illinois, 43 J. Marshall L. Rev. 845 (2010), Mary Ann Scholl

UIC Law Review

No abstract provided.

International Commercial Surrogacy And Its Parties, 43 J. Marshall L. Rev. 1009 (2010), Margaret Ryznar

UIC Law Review

No abstract provided.

Towards A New Lens Of Analysis: The History And Future Of Religious Exemptions To Child Neglect Statutes, Gregory Engle

Richmond Journal of Law and the Public Interest

In order to analyze the religious exemptions, this paper will begin with their history. Part II looks at the Child Abuse Prevention and Treatment Act of 1974 (CAPTA) the statute that precipitated their spread, as well as the justifications that it was bolstered upon: Free Exercise of religion and parental rights. The Equal Protection critique follows as Part III, followed by Part IV that discusses the traditional critique, grounded in the Establishment Clause. In Part V, the article will finish with an explanation of why the Equal Protection critique is a much stronger criticism.

Indian Law: Dangerous Gamble: Child Support, Casino Dividends, And The Fate Of The Indian Family, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.

Purple Haze (Book Review), Clare Huntington

Faculty Scholarship

This is a review of Red Families v Blue Families: Legal Polarization and the Creation of Culture. By Naomi Cahn & June Carbone. New York: Oxford University Press. 2010

Embracing The Affective Family, Clare Huntington

Faculty Scholarship

No abstract provided.

Stories Told And Untold: Confidentiality Laws And The Master Narrative Of Child Welfare, Matthew I. Fraidin

Journal Articles

In most states, child welfare hearings and records are sealed or confidential. This means that by law, court hearings and records may not be observed. The same laws and court rules also preclude those who are authorized to enter and watch from discussing anything learned or observed in a closed courtroom or from a sealed court record with anyone not involved in the case. It is the restriction on speech—on telling stories about child welfare—with which this Article is concerned. I will argue in this Article that the insights of narrative theory and agenda-setting studies help us understand the damaging …

Resurrecting Parents Of Legal Orphans: Un-Terminating Parental Rights, Lashanda Taylor Adams

Journal Articles

Despite federal and state legislation that requires termination of parental rights when a child has remained in foster care for a specified period of time, studies indicate that relationships with their biological parents (and other relatives) remain important to children in foster care.3 Especially for children whose parents’ parental rights have been terminated, the connection with their biological parent remains central to their development and these children make efforts to maintain that connection. Once it becomes clear that the purpose for terminating the parental rights (i.e., freeing the child for adoption) will not be served, in an increasing number of …

A Child's Journey Through The Child Welfare System., Susan Badeau, Ann M. Haralambie, Donald N. Duquette

Book Chapters

Once a child is known to the government child welfare agency, the child and his or her family become subject to a series of decisions made by judges, caseworkers, legal representatives, and others-all of whom have an important role to play. A child may encounter dozens of other new adults, including foster parents, counselors, and doctors. Most children enter foster care when removed from their homes by a child protective agency because of abuse or neglect, or both. Others enter care because of the absence of their parents, resulting from illness, death, disability, or other problems. Some children enter care …

Special Issues In Transcultural, Transracial, And Gay And Lesbian Parenting And Adoption, Frank E. Vandervort, Robert B. Sanoshy

Book Chapters

The adoption of children whose natural parents are unable to or incapable of caring for them by adults who are able to provide for them has existed throughout human history in one form or another (In re Smith Estate 1955; Miller et al. 2007). Before the mid-1800s, however, there was no formal mechanism for a person interested in adopting a child in the United States to do so (Bartholet 1999). In 1851, the Massachusetts legislature enacted the Massachusetts Adoption of Children Act (General Court of Massachusetts 1851). Though enacted more than 150 years ago, the act's basic structure is clearly …

The Indian Child Welfare Act., Frank Vandervort

Book Chapters

Few child welfare lawyers routinely confront the application of the Indian Child Welfare Act (ICWA or "the Act"). When the statute applies, however, it is crucial that its provisions be strictly followed. There are at least three reasons why counsel should attempt to ensure that ICWA's provisions are carefully applied. First, ICWA's provisions are jurisdictional. Failure to abide by its requirements invalidates the proceeding from its inception. Indeed, any party or the court may invoke ICWA at any time in the proceeding, including for the first time on appeal. Second, unlike most federal child welfare legislation which provides funding streams …

Representing Parents In Child Welfare Cases, Vivek Sankaran

Book Chapters

A parent's constitutional right to raise his or her child is one of the most venerated liberty interests safeguarded by the Constitution and the courts.2 The law presumes parents to be fit, and it establishes that they do not need to be model parents to retain custody of their children.3 If the state seeks to interfere with the parent-child relationship, the Constitution mandates that the state: (1) prove parental unfitness, a standard defined by state laws; and (2) follow certain procedures protecting the due process rights of parents. The constitutional framework for child welfare cases is premised on the belief …

How Much Anguish Is Enough - Baby Switching And Negligent Infliction Of Emotional Distress, 13 Depaul J. Health Care L. 255 (2010), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

No abstract provided.

Child Custody Modification Law: The Never-Ending Battle For Peace Of Mind, Brianna F. Isserdutt

Nevada Law Journal

Ellis v. Carucci represents an evolution in Nevada’s child custody laws that should continue. Before Ellis, Nevada courts modified custody arrangements without explicitly considering the best interests of the child. Ellis cemented the legislative intent behind Nevada Revised Statute (NRS) § 125.4803 to make the child’s best interest the focus of the judge’s decision in custody cases.

However, Ellis and NRS §125.480 are not enough to accomplish this overarching goal. The Nevada legislature should revise NRS § 125.480 so that the statute explicitly recognizes the instability and adjustments that children of divorce must endure. The statute should also be revised …

Unheard Voices: Adoption Narratives Of Same-Sex Male Couples, Malcolm Dort

Canadian Journal of Family Law

This is the first legal study in Canada on same-sex adoption law, adoption administrative practice, and the social realities of parenting as experienced specifically by same-sex male couples. This paper identifies a gap in existing legal literature and jurisprudence with respect to the adoption narratives of same-sex male couples. Next, focusing on the province of Québec, it offers insight into how legal rules and social expectations construct families headed by such couples. It also highlights how, post-adoption, same-sex male couples conceive of their own families in a legal and social environment that continues to privilege heterosexual family models. Contradictorily, by …

Newborn Adoption: Birth Mothers, Genetic Fathers, And Reproductive Autonomy, Lori Chambers

Canadian Journal of Family Law

Overwhelmingly, Canadian-born children relinquished for newborn adoption have been born to unmarried mothers. Under provincial adoption acts, in cases of "illegitimacy" only the mother's consent was necessary for a child to be eligible for adoption. Since adoption statutes were introduced, however, the distinctions between those born within and outside of marriage have been eliminated at law. Provincial legislation now recognizes a wide range of unmarried men as fathers, lists circumstances under which paternity will be presumed and provides for the use of genetic testing. But this raises significant questions in the context of newborn adoption. Whose consent is required to …

One Judge For One Family: Differentiated Case Management For Families In Continuing Conflict, Nicholas Bala, Rachel Birnbaum, Donna Martinson

Canadian Journal of Family Law

Understanding the differences between family cases and other types of litigation is essential for an appropriate response to family disputes. Judges have a role in family cases that markedly differs from the traditional judicial role. The authors argue that an effective and accessible family justice system requires pre-trial and post-trial case management by a single judge, an approach to family justice reflected in the slogan: "One judge for one family." Judges should have the necessary knowledge, skills, and training needed to resolve family disputes and to help effect changes in parental behaviours and attitudes, as well as the willingness to …

Front Matter

Canadian Journal of Family Law

No abstract provided.