Family Law Commons^™

Constraining The Family Regulation System: The Contribution Of The Restatement Of The Law, Children And The Law, Clare Huntington

Faculty Scholarship

Advocates, policymakers, and scholars have argued for years that the family regulation system (also known as the child welfare system) fails families. Critics rightly note that the system does far too little to support families proactively and does not address the poverty and structural racism underlying many allegations of child abuse and neglect. The overrepresentation of Black, Native American, and Native Alaskan children in foster care is a stark and disturbing manifestation of these failings.

In response to these concerns, there is an active debate about abolishing or radically reforming the family regulation system to direct government funding to proactive …

The Illusion Of Stability In Family Law, Kaiponanea T. Matsumura

Vanderbilt Law Review

Stability is universally accepted as a central value in family law. Within the context of adult relationships, stability determines which relationships the law will recognize and support. Within the context of parent child relationships, stability determines who will be recognized as a parent, whose parental rights will be terminated by the state, and who, among fit parents, will receive custody. This Article challenges stability’s pride of place in family law, identifying three problems with the law’s use of stability.

First, stability is often used in a circular way. Lawmakers treat stability as a requirement—a trait to which the law responds—even …

Restating The Law Of Children And Youth: The Evolution Of Reform, Elizabeth S. Scott

Faculty Scholarship

A brief roadmap of this article may be helpful. Part I describes the emergence of the Child Wellbeing framework and its powerful role in shaping twenty-first-century youth justice reforms captured by the Restatement. Part II shows how this framework has begun to have a far broader influence on the law affecting children and how the framework and the developmental approach embodied in the Restatement can guide courts and shape the trajectory of the law in the future. Part III explores potential challenges to the Restatement’s effectiveness in attaining a fully integrated system based on the Child Wellbeing framework.

The Unwanted Child: A Historical Note, Lawrence M. Friedman

Cleveland State Law Review

Historically, the illegitimate child was unwanted: was "filius nullius," or nobody's child—a child without rights, and socially stigmatized. In many ways, both law and society conspired against these children. But both literature and the living law demonstrated that, in the 19th century, there were pockets of sympathy and understanding for these children. And the status of the illegitimate child changed over the years: both with regard to inheritance rights, and to position in society. Adoption law also made the unwanted, wanted—at least by the adopting parents. The marital status of parents became legally and socially more and more irrelevant over …

Her Bun + My Oven = Our Child: Protecting The Legal Parentage Of Lgbtq+ Mothers And Their Children Conceived Via Reciprocal In Vitro Fertilization In Ohio, Courtney Hutchinson

Cleveland State Law Review

This Note discusses legal parentage in Ohio for two-women couples who expand their families via reciprocal in vitro fertilization or egg-sharing, where one woman is the genetic parent and the other is the gestational parent. Currently, the gestational mother is guaranteed legal parentage at the time of the child’s birth, while the genetic mother must petition the court for a formal adoption to protect her legal rights. A thorough review of court precedent regarding same-sex marriage makes clear that the public policy of Ohio permits two women to share in the legal rights of parentage. Furthermore, Ohio courts have regularly …

Procreation After Passing: Balancing Interests In Levirate Marriage And Posthumous Reproduction, Alice Aronov Tepler

Journal of Catholic Legal Studies

(Excerpt)

After the heart-wrenching death of a partner, a child, or a family member, it is difficult for those left behind to imagine how to bring their loved one with them into the future. Memories fade, people move on with their lives, and it seems almost inevitable that the dead will be left behind, static. For some, especially those whose loved one died early in life, posthumous reproduction can seem like a way to keep the deceased alive. With relatively new technology and a myriad of associated ethical concerns, however, society, courts, and individuals struggle to determine who should have …

Married By Default, Erez Aloni

Osgoode Hall Law Journal

This Article examines and critiques the global binary debate surrounding opt-in versus opt-out legal regimes for regulating unmarried cohabitants’ financial obligations upon separation. Using Canadian jurisdictions as a case study, it challenges the prevailing academic consensus that endorses opt-out systems as superior policy, based on assumptions that they are fairer, sufficiently preserve autonomy, enhance certainty, and particularly benefit women. Drawing on empirical research, the Article explores how couples engaged with British Columbia’s opt-out scheme. In-depth interviews suggest that default rules operate as quasi-mandatory, with opting out proving remarkably difficult. Moreover, the law often falls short of achieving the anticipated certainty …

It’S Not So Simple: An Examination Of How The Internal Revenue Code Fails To Contemplate The Economic Realities Of Individuals With Disabilities And Their Families, Garret Hoff

Duke Law & Technology Review

Families with disabled students face extra costs associated with providing their child with the same education that other students get for free. Even though these costs are spent with the explicit purpose of supporting their child’s disability-informed care and are not incurred but for their disability (“but-for costs”), some of these costs are not deductible and others are subject to unnecessary ambiguity when it comes to their deductibility. Families with disabled students are forced to reckon with arbitrary distinctions if they want to receive any favorable tax treatment on but-for costs. This is because the relevant provision in the Internal …

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights And Students Engaged In Advancing Texas In Support Of Respondents: Mahmoud V. Taylor, Catherine E. Smith, Tanya Washington, Jeremiah Chin, Sarah Medina Camiscoli, Travis F. Chance

Scholarly Articles

Amici are members of Students Engaged in Advancing Texas and United States legal scholars of children and the law, education law, family law, and anti-discrimination law.

Students Engaged in Advancing Texas is a nonprofit organization founded by young people to develop civic leadership and belonging and represents students of various faiths and identities who have an interest in the outcome of this case.

Amici draw this Court’s attention to the constitutional harms that public school students and LGBTQ+ students and students with LGBTQ+ parents would bear should the Court grant Petitioners’ injunctive relief.

In Re M & G: A Misapplication Of Stanley V. Illinois, Maine Law Review

Maine Law Review

A Vermont probate court terminated the rights of M, an unwed mother, in her illegitimate child, although G, the putative father, did not receive official notice of the termination hearing and did not appear. The child was placed with prospective adoptive parents shortly after the hearing. In an effort to assert his parental rights, G joined in the mother's post-hearing petition for habeas corpus. Relying on Stanley v. Illinois, G argued that he was entitled to notification of the termination hearing and an opportunity to be heard on his fitness as a parent. In In re M&G, the Vermont Supreme …

Re-Evaluating Fulton V. City Of Philadelphia: A “Narrow” “Wisp” Of A Decision Or Free Exercise “Bedrock?”, Mark Rienzi

Catholic University Law Review

In Fulton v. City of Philadelphia (2021), a unanimous Supreme Court held that Philadelphia violated the Free Exercise Clause by excluding Catholic Social Services from participating in its foster program because CSS would not certify same-sex couples. Both supporters and critics of the Court’s decision publicly characterized the decision as “narrow” and noted that Philadelphia (and other governments) can easily sidestep Fulton and continue excluding religious providers from foster and adoption programs.

Four years later, the evidence shows that Fulton is anything but narrow. In Philadelphia and in other jurisdictions, Fulton has played a strong role in ending litigation against …

Cyber And Tech-Based Partner Stalking In Jefferson County, Norah Wulkopf

Undergraduate Theses

Since stalking laws were enacted in the 1990s, they have been historically difficult to enforce. As less and less of our lives become private due to our ever-present devices, stalkers frankly have more access to their targets than ever before. The tenuous nature of stalking laws and the growing resources for stalkers place targets of stalking in a very precarious situation: the legal system has never been adequately equipped to handle stalking cases, and local justice systems do not have the resources to handle tech-based crimes. Through interviews with actors in the criminal justice system, this presentation considers how these …

Roger Williams University Law Review Symposium: Trauma-Informed Lawyering: Approaches To Advocating For Diverse Populations 11-15-2024, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Federal Income Tax Consequences Of Property Settlements In Common Law States And Under The Uniform Marriage And Divorce Act: A Proposal, Maine Law Review

Maine Law Review

Generally, during marriage, most of the property of husband and wife is held in the husband's name. Then, if there should be a divorce, the husband often finds himself required to transfer some of this property to his wife as a "property settlement." If the transferred property has appreciated in value while held by the husband, this appreciation may be treated as taxable income to the husband. Whether the appreciation is so treated depends on the marital property law of the taxpayer's domicile. In the United States, two different systems of marital property law have developed. Most states have evolved …

A Statutory Proposal To Remove Divorce From The Courtroom, Stephen R. Feldman

Maine Law Review

Over the past decade the divorce rate in the United States has more than doubled. Although the reasons suggested for this rapid rise are varied, the resultant impact on the judicial system is clear: divorce cases greatly overburden the courts. Presently they account for about one half of all civil cases filed. Unlike most other civil suits of which nearly half are dismissed or settled, divorce requires a court decree for relief unless the parties reconcile and abandon their suits. In addition to the actual granting of the divorce decree, court time is needed for pre-divorce motions for temporary support …

The Maine Marital Property Act: The Duties Of Divorce Courts And The Right To An Equitable Share Of Marital Assets, Maine Law Review

Maine Law Review

In 1971, the Maine Legislature enacted a statute entitled An Act Relating to Division of Real and Personal Property by the Court under a Decree of Divorce. In adopting section 722-A, the Maine Legislature replaced inequitable divorce laws with provisions patterned after section 307 of the Uniform Marriage and Divorce Act (UM & DA). Under the previous Maine statutory scheme, status of title and notions of fault governed the distribution of property at divorce. Relying upon equitable principles drawn from partnership law and community property doctrines, section 307 of the Uniform Act, and section 722-A of the Maine Act, place …

The Use Of Federal Habeas Corpus In Child Custody Disputes, Maine Law Review

Maine Law Review

Inability to enforce child custody decrees on a nationwide basis has created an unfortunate and well-publicized anomaly in the law. A parent disappointed with one state's award of custody may remove the child to another jurisdiction, gambling that the second state's courts will decline to enforce the original decree. Of the several remedies that have been suggested to relieve this situation, federal habeas corpus remains among the least explored. The use of federal habeas corpus in child custody disputes raises two questions central to every federal jurisdictional controversy: Do the federal courts have power to entertain the action? If the …

Justice Delayed By Design: The Harms Of Our Protracted Divorce System, Laurie S. Kohn

Villanova Law Review (1956 - )

No abstract provided.

The Myth Of The Best Interest Of The Child, Victoria Mikesell Mather

West Virginia Law Review

One of the basic tenets of Family Law as applied to children is consideration of “best interest of the child” in making decisions. Standards for custody, termination, adoption, and all other matters affecting children are overlaid with consideration of best interest. Unfortunately, the promise of best interest is lost in the actual mechanics of making these critical decisions involving children. This Article explores the disconnect between the ideal of using the best interest of the child as a key factor in legal decisions affecting children and the practicalities of competing interests. The Article first explores the common concern of the …

Beyond The Cell: The Impact Of Parental Incarceration On Children Based On The Factors Of Age, Gender, And Race, Ella M. Zeigler

Senior Theses

Incarceration is a life-changing event. It is humbling to be surrounded by three cement walls and a row of metal bars reaching from the floor to the ceiling. Millions of individuals are impacted by the adverse effects of incarceration, but millions more feel the effect of their incarceration as well. There are obvious negative impacts on those who have personally experienced incarceration, but one of the largest impacts is widely overlooked; one that comes from beyond the cell. This thesis considers the variation in the impact of parental incarceration on children, specifically based on the factors of age, gender and …

Familial Fairness: Guaranteeing The Right To Counsel For Indigent Parents In Juvenile Dependency Proceedings, Jake Toth

Dickinson Law Review (2017-Present)

Fairness principles enumerated in the seminal case Gideon v. Wainwright stand for the proposition that fundamental fairness and due process require appointment of counsel for indigent litigants. However, this principle has been constrained to criminal contexts. Many other types of litigation are just as impactful as a criminal proceeding, including juvenile dependency proceedings. Nevertheless, indigent parents do not enjoy an unqualified representation right.

This Comment traces the history of the representation right and how it has been treated in a juvenile dependency context, beginning with Gideon itself and examining other cases such as Eldridge and Lassiter. It then examines …

Considering The Child’S Wishes—But How? Allowing Children To Speak In Their Custody Matters, Joshua Hanson

Dickinson Law Review (2017-Present)

In the United States, states universally may consider the child’s wishes when determining their custody placement. While their decision or preference is not binding for the judge, it allows the child meaningful participation in decisions that directly affect them. There are many ways courts can ensure a child’s voice is heard: through an interview with the judge, professional evaluations, child advocates, and even child-inclusive mediation. Yet state laws give judges broad discretion when determining how to weigh the child’s wishes.

This discretion will inevitably leave some children behind without having their voices heard. Allowing children meaningful participation in their custody …

Settled Enough: Immigration Status And Child Settlement Under The Hague Convention, Sara Hingson-Rodriguez

Mercer Law Review

Hearing the term “child abductor” paints a shadowy figure within the mind, immediately invoking disdain and revulsion. But when the perpetrator is one of the parents, the shadow dissipates, and complications arise. These complications turn thorny when the parent absconds with the child to another country entirely, leaving behind the child’s old life—including the remaining parent. The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) established procedures to ensure that children who were wrongfully removed from their habitual residence to foreign countries could be promptly returned.

In Figueredo v. Rojas, the United States Court of …

The Restatement Of Children And The Law: Modern Regulation In A Developmental Framework, Elizabeth S. Scott

Faculty Scholarship

In May 2024, the membership of the American Law Institute approved the Restatement of Children and the Law, the first Restatement to focus on the law regulating children and families. The combined efforts of five Reporters (Elizabeth Scott, Reporter, and Richard Bonnie, Emily Buss, Clare Huntington and Solangel Maldonado, Associate Reporters), working for almost nine years, this new Restatement covers most of the legal landscape of American law's relationship to children. It is organized in four Parts: Part I, Children in Families, deals with parental rights and authority and state intervention in families; Part II, Children in Schools, covers children's …

The Transition Process Of Syrian Refugee Families Separated By U.S. Immigration Law, Firas Aljijakli

Graduate Theses, Dissertations, and Capstones

Refugees are regarded as one of the most pressing humanitarian issues worldwide due to intricate social, economic, and demographic factors. Changes in U.S. immigration policy across successive administrations, particularly regarding the refugee ban and the duration of the resettlement process, have significantly impacted admission procedures. Consequently, family separations occur during the resettlement process, compelling families to navigate immigration policies while managing the challenges of being apart. This separation from their children greatly affects refugees’ ability to integrate into American society.

The research examines how Syrian refugee families cope with the separation resulting from U. S. immigration law. An important lens …

Saving Private Unfaithful: An Argument For Administrative Separation And Action In Lieu Of Criminalizing Extramarital Sexual Conduct, Annelise Burgess

Washington and Lee Law Review Online

In order to keep America’s armed forces deadly, ESC must be decriminalized. The MCM’s 2019 update to start including non-heterosexual marriages and affairs tragically expands the reach of ESC. This Note presents new data on charging patterns of ESC in the Marines, highlighting the crime’s active use. ESC continues to overcompensate for behavior prejudicial to good order and discipline or service discrediting; this overcompensation results in subjecting non-prejudicial and non-service-discrediting behavior to criminal action, simultaneously infringing on service members’ constitutional rights and serving as fodder for public outcry. Military leaders should decriminalize ESC and alternatively penalize the behavior by administrative …

A Rule 54(B) Dilemma: Divorces Lacking "Finality" Due To Undismissed Counterclaims, Ellen Kandoian

Maine Law Review

Recent decisions of the Maine Law Court bring into sharp focus certain difficulties inherent in applying rules of civil procedure developed in the context of federal practice to a state law setting. In such instances, the rules must operate on certain types of litigation peculiar to state law, notably the entire field of domestic relations. In a field bearing the unique features and demands of domestic relations, it is not surprising that federally patterned rules raised problems not anticipated by their drafters. In the 1981 case of Parent v. Parent, the Maine Law Court, in customary observance of Rule 54(b) …

Digital Child Labor Exploitation In Sharenting: Proposing Legislative Solutions For Enhanced Child Protection, Joana Guzman Gonzalez

University Honors Theses

This thesis explores the implications of sharenting -- the practice of sharing children's information on mass media--raises urgent concerns about child safety and potential human rights violations -- and the exploitation of children in digital spaces, focusing on the risks of privacy, safety and mental health pose by the rise of kidfluencers – children influencers under the age of 18 – and family vlog channels. Through a comprehensive literature review, the research examines children's online presence's emotional, legal, and societal impacts, drawing from case studies such as Sheri Franke, Wren Eleanor, Ryan Kaji, and JoJo Siwa. The analysis reveals a …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Re-Imagining Tomorrow: A Technology, Innovation Law, And Ethics Symposium On Addictive Technology And Children, Margaret Chon

Seattle University Law Review

In this Foreword, Professor Margaret Chon introduces Seattle University's Technology, Innovation Law, and Ethics (TILE) program, the 2024 TILE Symposium, and Dr. Gaia Bernstein’s Unwired: Gaining Control Over Addictive Technologies.