Family Law Commons^™

Social Media: Children’S Lawyer’S Friend And Foe, Jennifer Baum, Sarah N. Fox

Faculty Publications

(Excerpt)

Social media is taking over the globe. The Pew Research Internet Project states that in the United States, 95 percent of 12- to 17-year-old children are online. Teenagers are also sharing more and more information online: 91 percent of teenagers post a photo of themselves, 92 percent post their real name, and 71 percent post the city or town where they live. “Teens Fact Sheet,” Pew Res. Internet Project (Sept. 2012). This information, in the wrong hands, can be harmful to a child. The Children’s Online Privacy Protection Rule, designed to safeguard children’s information and access online, is a …

How Child Abuse Hotlines Hurt The Very Children They’Re Trying To Protect, Dale Margolin Cecka

Law Faculty Publications

The recent media obsession with “free range” parenting has illuminated a policy issue which rarely affects parents who debate free range parenting: the exploitation of child abuse reporting hotlines.

Non-Exclusive Adoption And Child Welfare, Joshua Gupta-Kagan

Faculty Scholarship

This Article proposes that child welfare law permit the non-exclusive adoption of foster children who cannot reunify with their parents — that is, adoption by foster parents without severing children’s legal relationships with their biological parents. Present law imposes a choice: extended family members or other foster parents may adopt foster children exclusively — and terminate the legal relationship between the child and biological parents — or they may become guardians — which preserves parent–child relationships but denies foster parents the legal title of “parent,” even when they are long-term primary caretakers.

Non-exclusive adoption would respect the lived reality of …

Obergefell'S Conservatism: Reifying Familial Fronts, Clare Huntington

Faculty Scholarship

I am delighted with the result in Obergefell v. Hodges, but I am unhappy with the Court’s reasoning. In lieu of a straightforward, and far more defensible, decision based purely on the Equal Protection Clause, Justice Kennedy’s reliance on the Due Process Clause is deeply problematic.

A substantive due process analysis required the Court to define marriage and explain its social importance. This meant the Court had to choose between competing images — social fronts — of marriage. If it had used an equal protection analysis, the Court would not have had to decide whether marriage is traditional or …

Postmarital Family Law: A Legal Structure For Nonmarital Families, Clare Huntington

Faculty Scholarship

Family law is based on marriage, but family life increasingly is not. The American family is undergoing a seismic shift, with marriage rates steadily declining and more than four in ten children now born to unmarried parents. Children of unmarried parents fall far behind children of married parents on a variety of metrics, contributing to stark inequality among children. Poverty and related factors explain much of this differential, but new sociological evidence highlights family structure — particularly friction and dislocation between unmarried parents after their relationship ends — as a crucial part of the problem. As the trend toward nonmarital …

Children's Interests: An Annotated Bibliography, 2013-2015, Nancy Levit

Faculty Works

No abstract provided.

Ethics And Matrimonial Representation Annotated Bibliography, Barbara Glesner Fines, Nancy Levit

Faculty Works

No abstract provided.

Troxel Revisited: A New Approach To Third-Party Childcare, Jeffrey A. Parness

Richmond Journal of Law and the Public Interest

This article will first explore the new de facto parent state laws originating in both statutes and cases. These laws often limit current parental decisionmaking about childcare due to an earlier conscious or implicit ceding of parental authority. The article will then examine current third-party childcare laws, including those specially addressing stepparents and grandparents. The analysis will show that such laws typically do not comparably limit current parental decisionmaking due to earlier ceding of parental authority, making third-party childcare more difficult because of requirements like "harm or potential harm to the child." Finally, the article suggests a new approach to …

Recent Children's Policy And Legislative Developments In Virginia: A Brief History, A Bright Future, The Honorable Christopher K. Peace, Amy L. Woolard

Richmond Journal of Law and the Public Interest

In this piece, we will outline the structural and policy developments implemented in Virginia in recent years that set the stage for a sea change in children’s services in Virginia.

New Perspectives On European Women’S Legal History, Sara L. Kimble, Marion Rowekamp

School of Continuing and Professional Studies Faculty and Staff Works

No abstract provided.

Surrogates In Quebec: The Good, The Bad And The Foreigner, Régine Tremblay

All Faculty Publications

The regime for the formal establishment of parent-child relationships in the province of Quebec was substantially modified in 2002 in order to achieve equality. Reforms to filiation – the legal bond connecting child and mother or child and father – in Quebec provided means for same-sex couples to adopt, for lesbian couples to conceive using donated sperm and clarified the filiation of children born of assisted procreation. This ‘successful’ reform in terms of equality left untouched an existing rule justified by women’s equality, namely, what the civil law calls the absolute nullity of surrogacy agreements. Surrogacy raises questions about what …

Non-Marital Families And (Or After?) Marriage Equality, Deborah A. Widiss

Articles by Maurer Faculty

If, as is widely expected, the Supreme Court soon holds that bans on same-sex marriage are unconstitutional, it is almost certain that the decision will rely heavily on the Court’s reasoning in United States v. Windsor. I strongly support marriage equality. However, a decision that amplifies Windsor’s conception of the harm caused by exclusionary marriage rules could set back efforts to secure legal recognition of, and respect for, non-marital families. That is, Windsor rectified a deep inequality in the law—that same-sex marriages were categorically denied federal recognition—but in so doing it embraced a traditional understanding of marriage as superior to …

Forfeiture Of Confrontation Rights And The Complicated Dynamics Of Domestic Violence: Some Thoughts Inspired By Myrna Raeder, Aviva A. Orenstein

Articles by Maurer Faculty

In this essay and memorial to my friend and colleague, Myrna Raeder, I examine forfeiting the right of confrontation in the context of domestic violence cases. In 2004, Crawford v. Washington the United States Supreme Court reinterpreted the Sixth Amendment, requiring that for “testimonial statements” to be offered against the accused, the speaker must appear in court, or, if unavailable, must have been subject to cross-examination previously. The practical effect of Crawford was to exclude many out-of-court statements that had previously been admissible. Nowhere was the effect of Crawford more striking than in domestic violence cases, where victims often make …

Taxing Compensatory Stock Rights Transferred In Divorce, Gregg Polsky, Kathleen Delaney Thomas

Scholarly Works

Stock-based compensation has become increasingly prevalent in recent years. As a result, many high net worth divorces now result in the transfer of compensatory stock rights from the employee spouse to the nonemployee spouse as part of the marital settlement. Despite this growing trend, the tax consequences of these transfers have not yet been explored fully. This Article endeavors to fill this void and explain both the planning opportunities and potential pitfalls in transferring compensatory stock rights in divorce. These transfers can shift ordinary income from a high-bracket spouse to a lower-bracket spouse, creating a tax surplus that enlarges the …

Book Review: Casting Of The Canon: Family Law Reimagined,, Jill Elaine Hasday, Laurie S. Kohn

Child and Family Law Journal

No abstract provided.

Mother, May I? No, You May Not! Parental Consent Requirements For Students To Participate In Student-Led Clubs At Public Schools, Kelly Sherrill Linkous Esq., J.D., Ph.D.

Child and Family Law Journal

No abstract provided.

The Legisprudence Of Florida's Alimony Reform: Why Draconic Family Law Continues To Prevail In A Modern Society, Joseph P. Formoso

Child and Family Law Journal

No abstract provided.

The Incipient Stages Of A Nation Recognizing Same-Sex Marriages And The Battles Their Children Face, Gina I. Thomas

Child and Family Law Journal

No abstract provided.

Breaking Forever Families, Andrea B. Carroll

Journal Articles

No abstract provided.

The Illusion Of Equality: The Failure Of The Community Property Reform To Achieve Management Equality, Elizabeth Carter

Journal Articles

The article focuses on the equal management laws in the community property reform for the well-being and future prosperity of the family. Topics discussed include separate property regime and the community property regime in the U.S., examines the history of the reform era and argues that equality was not the primary goal of the legal reform and examines how spouses actually managed their money in the pre-1970s era.

What Do You Do When They Don't Say "I Do"? Cross-Border Regulation For Alternative Spousal Relationships, Sharon Shakargy

Vanderbilt Journal of Transnational Law

Marriage is a local arrangement with international effects. Throughout the Western world, a marriage recognized as valid by the parties' home country is usually considered valid and binding in any other country. This recognition carries substantial benefits. In sharp contrast, unwed couples and some married couples, namely same-sex couples, are denied these benefits due to lack of (sufficient) inter-state and international recognition of their relationships, making their relationships unstable at best. This Article discusses the cross-border recognition of such relationships--or lack thereof--and its effects, and it suggests a way to better the situation using private law tools, thus avoiding much …

“Throwing The Baby Out With The Bathwater”: Parenting Coordination And Pennsylvania’S Decisions To Eliminate Its Use, Sophie B. Mashburn

Journal of Dispute Resolution

Parenting coordination is a relatively new ADR practice utilized by courts to assist in resolving high conflict divorce cases. Though considered controversial by some, it can also serve as an effective tool for divorced parents who struggle with regular co-parenting decisions. Parenting coordination is defined as: A child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children’s needs, and with prior approval of the parties and/or court, making …

The Civil Rights Of Sexually Exploited Youth In Foster Care, Dale Margolin Cecka

Law Faculty Publications

This paper examines the civil rights of youth who are missing or discharged from foster care and become victims of sexual exploitation. It also addresses future implications of this epidemic, given demographic patterns of the United States, if we do not address this issue now. Section II describes the demographics of adolescents in foster care. Next, Section III addresses the sexual exploitation of this population. Section IV describes the legal framework of the foster care system and legislation pertaining to sexually exploited youth. Section V analyzes the constitutional rights of foster youth who become victims of sexual exploitation and draws …

Children's Health In A Legal Framework, Elizabeth S. Scott, Clare Huntington

Faculty Scholarship

The interdisciplinary periodical Future of Children has dedicated an issue to children’s health policy. This contribution to the issue maps the legal landscape influencing policy choices. The authors demonstrate that in the U.S. legal system, parents have robust rights, grounded in the Constitution, to make decisions concerning their children’s health and medical treatment. Following from its commitment to parental rights, the system typically assumes the interests of parents and children are aligned, even when that assumption seems questionable. Thus, for example, parents who would limit their children’s access to health care on the basis of the parents’ religious belief have …

Religion And Marriage Equality Statutes, Nelson Tebbe

Cornell Law Faculty Publications

To date, every state statute that has extended marriage equality to gay and lesbian couples has included accommodations for actors who oppose such marriages on religious grounds. Debate over those accommodations has occurred mostly between, on the one hand, people who urge broader religion protections and, on the other hand, those who support the types of accommodations that typically have appeared in existing statutes. This article argues that the debate should be widened to include arguments that the existing accommodations are normatively and constitutionally problematic. Even states that presumptively are most friendly to LGBT citizens, as measured by their demonstrated …

Same-Sex Cynicism And The Self-Defeating Pursuit Of Social Acceptance Through Litigation, James G. Dwyer

Faculty Publications

No abstract provided.

High Society: Washington State’S Recreational Cannabis Law And Its Effects On Child Custody And Visitation Rights, Dana Petersen

Seattle Journal for Social Justice

No abstract provided.

The Evidentiary Rules Of Engagement In The War Against Domestic Violence, Erin R. Collins

Law Faculty Publications

Our criminal justice system promises defendants a fair and just adjudication of guilt, regardless of the character of the alleged offense. Yet, from mandatory arrest to "no-drop" prosecution policies, the system's front-end response to domestic violence reflects the belief that it differs from other crimes in ways that permit or require the adaptation of criminal justice response mechanisms. Although scholars debate whether these differential responses are effective or normatively sound, the scholarship leaves untouched the presumption that, once the adjudicatory phase is underway, the system treats domestic violence offenses like any other crime.

This Article reveals that this presumption is …

Marriage Equality Comes To America, Carl W. Tobias

Law Faculty Publications

Marriage equality is sweeping the nation. Four appeals courts recently affirmed district judges’ opinions which invalidated numerous state laws proscribing same-sex marriage. Yet, the Sixth Circuit reversed a number of district jurists, prompting a circuit split that provoked Supreme Court resolution. Because marriage equality’s status is unclear, this piece assesses disposition of the litigation and recommends how to clarify marriage equality.

For Men Only: A Gap In The Rules Allows Sex Discrimination To Avoid Ethical Challenge, Michelle N. Struffolino

American University Journal of Gender, Social Policy & the Law

The billboard states: “Divorce: Men Only.” The reaction is one of confusion. Something just does not seem right. Isn’t this discrimination? Is the system willing to allow this message because the need to protect men’s rights in divorce outweighs the systemic and societal harms associated with the message?

Although this article focuses on the ethical issues associated with firms that exclude women from the pool of potential divorce clients, the existence of women only law firms is acknowledged. The analysis of the ethical issues raised by these gender specific firms is somewhat the same regardless of what gender is excluded. …