Family Law Commons^™

The Strange Life Of Stanley V. Illinois: A Case Study In Parent Representation And Law Reform, Joshua Gupta-Kagan

Faculty Scholarship

This Article helps describe the growth of parent representation through an analysis of Stanley v. Illinois — the foundational Supreme Court case that established parental fitness as the constitutional lynchpin of any child protection case. The Article begins with Stanley’s trial court litigation, which illustrates the importance of vigorous parental representation and an effort by the court to prevent Stanley from obtaining an attorney. It proceeds to analyze how family courts applied it (or not) in the years following the Supreme Court’s decision and what factors have led to a recent resurgence of Stanley’s fitness focus.

Despite Stanley …

Rights Of Incarcerated Parents, Angélica Cházaro

Chapters in Books

This chapter discusses the childcare and custody rights of incarcerated parents. According to the U.S. Department of Justice, an estimated 809,800 state and federal prisoners were parents to children under the age of eighteen in 2007. There are approximately 1,706,600 children under the age of eighteen who have a parent in prison.

As a parent in prison, you may fear that your child will not be cared for, that you will lose your child, or that your relationship with your child will suffer while you are incarcerated. This Chapter focuses on New York state law and describes how the law …

Overcoming Biased Views Of Gender And Victimhood In Custody Evaluations When Domestic Violence Is Alleged, Ruth Leah Perrin

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Improper Delegation Of Judicial Authority In Child Custody Cases: Finally Overturned, Dale Margolin Cecka

Law Faculty Publications

"The appellate courts of this Commonwealth are not unlit rooms where attorneys may wander blindly about, hoping to stumble upon a reversible error."

These words of Judge Humphreys, denying a 2016 child custody appeal, are cogent. Yet four months later, in another appeal, Judge Humphreys joined a unanimous decision overturning a common provision in a custody order. In Bonhotel v. Watts, the Court of Appeals of Virginia held that judges cannot delegate judicial decision making power in child custody cases to outside professionals. This sounds obvious, but such delegation is actually ordered all the time. In final orders, Virginia's trial …

Early Childhood Development And The Law, Clare Huntington

Faculty Scholarship

Early childhood development is a robust and vibrant focus of study in multiple disciplines, from economics and education to psychology and neuroscience. Abundant research from these disciplines has established that early childhood is critical for the development of cognitive abilities, language, and psychosocial skills, all of which turn, in large measure, on the parent-child relationship. And because early childhood relationships and experiences have a deep and lasting impact on a child’s life trajectory, disadvantages during early childhood replicate inequality. Working together, scholars in these disciplines are actively engaged in a national policy debate about reducing inequality through early childhood interventions. …

Chickens And Eggs: Does Custody Move Support, Or Vise-Versa?, Margaret F. Brinig

Journal Articles

Most, if not all, of the theoretical work on child support presupposes that it becomes an issue only when couples separate, that is, that the flow moves between custody and child support and that the duty to make monetary payments is typically owed by the noncustodial parent. (I realize, of course, that there can be issues regarding the identity of the payor and that there are criminal and civil actions possible when parents refuse or neglect to provide support to dependent children.) Some empirical work confirms the relationship between the two. For example, Judith Seltzer, Weiss and Willis, and Brinig …

Nonmarriage, June Carbone, Naomi Cahn

Maryland Law Review

Now that the Supreme Court has reshaped the laws of marriage, attention is shifting to nonmarriage. The law no longer treats intimate couples who do not marry as either deviant or deprived. Yet, rather than regulate nonmarriage in a systematic way, the law applies two inconsistent doctrines to govern these relationships. This Article is the first to explore the fundamental contradiction in the legal approach to unmarried partners. While the laws governing financial obligations between unmarried couples are moving toward a deregulatory model that radically differs from the status-based regulation of marriage, the laws of custody and support insist on …

Family Law, Allison Anna Tait

Law Faculty Publications

In the past year, Virginia courts have addressed a range of family law questions—new and old—that reflect the changing landscape of families and marriage. Questions related to same-sex marriage and divorce have begun to appear on Virginia court dockets, including an important case the Supreme Court of Virginia decided this year with respect to same-sex couples cohabiting and the termination of spousal support. Family law courts also saw shifts in gender norms—wives paying spousal support to their husbands and fathers being awarded physical custody of their children. These legal questions tested the limits of statutory language and helped to expand …

Kar V. Kar, 132 Nev. Adv. Op. 63 (August 12, 2016), Briana Martinez

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order denying a motion to modify child custody and support. The Court held that the district court lost exclusive, continuing jurisdiction when the parents and child left Nevada. However, this did not end the jurisdictional analysis. The district court should have considered whether it retained jurisdiction under NRS 125.315(2) and NRS 125.305.

The Elimination Of Child “Custody” Litigation: Using Business Branding Techniques To Transform Social Behavior, Elena B. Langan

Pace Law Review

This article discusses how rebranding principles, already being used to alter social behavior in other non-consumer contexts, could be utilized to accomplish the legislative goal to reduce litigation as well as diminish animosity in custody cases. Part II of this article discusses the impetus for a transformation in the way parents view custody disputes. Part III discusses basic branding principles and how companies establish a brand and can successfully change their branding. Part IV explores the evolution of the current custody brand, identifies eight states that have eliminated “custody” and, in some cases, “visitation” from their vernacular, and discusses, in …

Nonmarital Families And The Legal System's Institutional Failures, Clare Huntington

Faculty Scholarship

As along-time critic of family law, I find it odd to be singing the system's praises. And yet I am. Sort of. In this issue of the Family Law Quarterly, which addresses cohabitation and nonmarital families, I want to focus on what happens when relationships end. For all its shortcomings, family law provides an institution to help divorcing couples restructure their families following the end of relationships. For nonmarital families, not so much. Unmarried parents theoretically can go to court when they separate, but most do not. Thus., as a practical matter, the legal system leaves unmarried parents without an …

When It Comes To Parents, Three's No Longer A Crowd: California's Answer To In Re M.C., Jason De Jesus

Loyola of Los Angeles Law Review

The California Legislature recently amended the California Family Code by granting courts the authority and discretion to find that a child can have more than two parents. This Article addresses the issues raised by this amendment, focusing on the rare instances in which rejecting a third parent's claim for custody would be detrimental to the child. By exploring public perceptions of multiple parentage and assessing recent cases highlighting the discretion courts use to find that a child has more than two parents, this Article concludes that recognizing that a child has more than two parents can protect not only the …

Religion And Child Custody, Margaret F. Brinig

Journal Articles

This piece draws upon divorce pleadings and other records to show how indications of religion (or disaffiliation) that appear in custody agreements and orders (called “parenting plans” in both states studied) affect the course of the proceedings and legal activities over the five years following divorce filing. Some of the apparent findings are normative, but most are merely descriptive and some may be correlative rather than caused by the indicated concern about religion. While parenting plans are accepted by courts only when they are in the best interests of the child (at least in theory), the child’s independent religious needs …

Inequity In Private Child Custody Litigation, Dale Margolin Cecka

Law Faculty Publications

This article explores the history and implications of a two-tiered system for adjudicating matrimonial-as opposed to nonmatrimonial- custody matters. As the author uncovered by calling every clerk's office in every major city in the country, matrimonial matters are under a different jurisdiction or part of court in nine states.' This differential treatment has implications for the outcome of private custody cases. It also reflects a bias in the administration of justice, based on race and socioeconomic class. Perhaps most importantly, it causes the government and other outside parties (such as court appointed guardians ad litem) to be more involved …

In Re Guardianship Of N.M., 131 Nev. Adv. Op. 75 (September 24, 2015), Daniel Ormsby

Nevada Supreme Court Summaries

The Court heard an appeal from a parent-appellant challenging a district court’s exercise of temporary emergency jurisdiction to appoint a temporary, non-parent, guardian and general, non-parent, guardian. Affirmed.

Child Custody Contests - Rights Of The Father; Mcdanial V. Mcdanial, Howard Walton

Akron Law Review

In an Ohio divorce action when there is a contest for the custody of a minor child, the proper standard to be employed by the court is: what arrangement will be in the best interest of the child?' In an action for modification of a custody award the same standard is applicable. A statute provides that one parent is not preferred over the other; however, all other considerations being equal, custody will normally be given to the mother, provided that she is fit.

Summary Of Beau Davis V. Andrea Ewalefo, 131 Nev. Adv. Op. 45 (July 02, 2015), Daven Cameron

Nevada Supreme Court Summaries

On appeal from a child custody decree, the Court found the District Court did not have specific findings of fact to support the restriction of travel and visitation outside of the United States and its territories. The Court granted en banc reconsideration, reversed and remanded the case for further fact finding considerations concerning whether the minor child can safely travel overseas for parental visitation.

Shari'ah Law As National Security Threat?, Cyra Akila Choudhury

Akron Law Review

The Article proceeds in three parts: in Part II, the Article describes three anti-shari’ah measures. It describes Oklahoma’s Save Our State amendment to show how these laws target Islam. It also reviews the recent decision by the Tenth Circuit Court of Appeals affirming the grant of a preliminary injunction against the certification of Oklahoma’s constitutional amendment. It then describes Arizona’s law that targets shari’ah as well as other legal traditions. It also examines the original version of the Tennessee bill to illustrate the motivations behind the revised, watered down version that was eventually passed by the legislature. Part II concludes …

The Other Side Of The Rabbit Hole: Reconciling Recent Supreme Court Personal Jurisdiction Jurisprudence With Jurisdiction To Terminate Parental Rights, Joan M. Shaughnessy

Scholarly Articles

This Essay contrasts the jurisdictional regime followed in termination of parental rights and other child custody cases with the regime that has dominated recent Supreme Court personal jurisdiction cases. Jurisdiction in child custody cases has long been based upon the connection of the child, not the defendant parent, to the jurisdiction. Recent Supreme Court cases, on the other hand, have focused nearly exclusively on the defendant’s connection to the forum state. This Essay argues that the Supreme Court cases betray a failure of the Court to provide a consistent constitutional justification for the jurisdictional limitations it has imposed. The Essay …

Paved With Good Intentions: Unintended Consequences Of Federal Proposals To Integrate Child Support And Parenting Time, Lisa V. Martin, Stacy Brustin

Faculty Publications

Promoting the relationships between noncustodial parents and their children has become a federal policy priority. Recent policy proposals aim to achieve this by integrating adjudications of custody and parenting time within proceedings to establish child support. These proposals share several laudable goals, including encouraging the involvement of fathers in their children’s lives, increasing compliance with child support orders, and facilitating unmarried parents’ access to court processes for resolving custody and visitation disputes. But the simplistic solutions employed by the proposals, some of which would mandate that custody and visitation be adjudicated in all child support proceedings, pose serious risks to …

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 …

The Intersection Of Family Law And Education Law, Debra Chopp

Articles

It is well-established that parents have a fundamental liberty interest in directing the education of their children. As family law practitioners know, however, parents do not always agree with each other on matters pertaining to their child's education. Where education issues arise in family law cases, it is important for members of the family law bar to have familiarity with education laws so that they may properly advise their clients. This article will identify and briefly discuss common intersections of family law and education law.

The Experiences Of School Counselors With Court Involvement Related To Child Custody, Crystal E. Hatton

Counseling & Human Services Theses & Dissertations

Professional school counselors are often confronted with a myriad of legal and ethical challenges when working with students and their families. While school counselors are discouraged from becoming involved in child custody matters, many are unable to avoid the process for a variety of reasons. This qualitative phenomenological research inquiry explored professional school counselors' experiences with court involvement in child custody matters and sought to understand how such experiences may have affected how they perceive their role in assisting children and families who are undergoing divorce, separation, or child custody disputes. A series of semi-structured interview questions and a written …

Summary Of Druckman V. Ruscitti, 130 Nev. Adv. Op. 50, Allison Vitangeli

Nevada Supreme Court Summaries

The Court determined two issues: (1) the child custody rights of unmarried parents when the father’s paternity has been established pursuant to statute; and (2) whether the district court abused its discretion when it awarded primary physical custody of the child to the mother and granted the mother’s relocation request.

Toward A Child-Centered Approach To Evaluating Claims Of Alienation In High-Conflict Custody Disputes, Allison M. Nichols

Michigan Law Review

Theories of parental alienation abound in high-conflict custody cases. The image of one parent brainwashing a child against the other parent fits with what we think we know about family dynamics during divorce. The concept of a diagnosable “Parental Alienation Syndrome” (“PAS”) developed as an attempt to explain this phenomenon, but it has been widely discredited by mental health professionals and thus fails the standard for evidentiary admissibility. Nevertheless, PAS and related theories continue to influence the decisions of family courts, and even in jurisdictions that explicitly reject such theories, judges still face the daunting task of resolving these volatile …

Gender Politics And Child Custody: The Puzzling Persistence Of The Best-Interest Standard Child Custody Decisionmaking, Elizabeth S. Scott, Robert E. Emery

Faculty Scholarship

The best-interests-of-the-child standard has been the prevailing legal rule for resolving child-custody disputes between parents for nearly forty years. Almost from the beginning, it has been the target of academic criticism. As Robert Mnookin famously argued in a 1976 article, "best interests" are vastly indeterminate – more a statement of an aspiration than a legal rule to guide custody decisionmaking. The vagueness and indeterminacy of the standard make outcomes uncertain and gives judges broad discretion to consider almost any factor thought to be relevant to the custody decision. This encourages litigation in which parents are motivated to produce hurtful evidence …

Child-Custody Decisionmaking, Katharine T. Bartlett, Elizabeth S. Scott

Faculty Scholarship

The most famous article on child-custody law, and one of the most important in family law scholarship altogether, is Robert H. Mnookin's Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy, published in Law and Contemporary Problems in 1975. In that article, Professor Mnookin analyzed the best-interests-of-the-child standard, which by the 1970s had emerged as the dominant custody decision rule. Although the best-interests standard seemed on its face to be an uncomplicated and straightforward way to put the interests of children first in custody decisionmaking, Professor Mnookin explained its distinctive character and deficiencies as a legal rule. His …

Shared Parenting Laws: Mistakes Of Pooling?, Margaret F. Brinig

Journal Articles

In their recent paper “Anti-Herding Regulation,” forthcoming in the Harvard Business Review, Ian Ayres and Joshua Mitts argue that many well-intentioned public policy regulations potentially harm rather than help situations. That is, because they seek to pool — or herd — groups of people, treating them as equal, they miss or mask important differences among the regulated, thus magnifying systematic risk. Anti-herding regulation, on the other hand, can produce socially beneficial information, in their words steering “both private and public actors toward better evidence-based outcomes.” Left to their own, or with various carrot-and-stick incentives, some groups, anyway, would instead fare …

The Hague Convention And Domestic Violence: Proposals For Balancing The Policies Of Discouraging Child Abduction And Protecting Children From Domestic Violence, Shani M. King

UF Law Faculty Publications

The Hague Convention on the Civil Aspects of International Child Abduction (the Convention) was enacted in response to a pattern of parental abduction across international borders to thwart or preempt custody arrangements in one country and seek a more advantageous setting for litigating custody issues in another. Consequently, the Convention was designed to discourage the abduction of children across international borders and to encourage respect for custody and access arrangements in countries from which children were abducted. To implement the Convention, the United States enacted the International Child Abduction Remedies Act (ICARA) on April 29, 1988. Much has been written …

California Custody Awards To Non-Parents: A View Of Civil Code Section 4600, Charles T. Mchugh

Pepperdine Law Review

No abstract provided.