Family Law Commons^™

Child Welfare And Covid-19: An Unexpected Opportunity For Systemic Change, Jane M. Spinak

Faculty Scholarship

The COVID-19 pandemic has already wrecked greater havoc in poor neighborhoods of color, where pre-existing conditions exacerbate the disease’s spread. Crowded housing and homelessness, less access to health care and insurance, and underlying health conditions are all factors that worsen the chances of remaining healthy.Workers desperate for income continue to work without sufficient protective measures, moving in and out of these neighborhoods, putting themselves and their families at risk. During periods of greater disruption, tensions are heightened and violence more prevalent. Already some experts are warning of an onslaught of child maltreatment cases, citing earlier examples of spikes in foster …

America's Hidden Foster Care System, Joshua Gupta-Kagan

Faculty Scholarship

In most states, child protection agencies induce parents to transfer physical custody of their children to kinship caregivers by threatening to place the children in foster care and bring them to family court. Both the frequency of these actions (this Article establishes that they occur tens or even hundreds of thousands of times annually) and their impact (they separate parents and children, sometimes permanently) resemble the formal foster care system. But they are hidden from courts, because agencies file no petition alleging abuse or neglect, and hidden from policymakers, because agencies do not generally report these cases.

While informal custody …

A Cure Worse Than The Disease? The Impact Of Removal On Children And Their Families, Vivek Sankaran, Christopher Church, Monique Mitchell

Articles

Removing children from their parents is child welfare's most drastic intervention. Research clearly establishes the profound and irreparable damage family separation can inflict on children and their parents. To ensure that this intervention is only used when necessary, a complex web of state and federal constitutional principles, statutes, administrative regulations, judicial decisions, and agency policies govern the removal decision. Central to these authorities is the presumption that a healthy and robust child welfare system keeps families together, protects children from harm, and centers on the needs of children and their parents. Yet, research and practice-supported by administrative data-paint a different …

Punishing Families For Being Poor: How Child Protection Interventions Threaten The Right To Parent While Impoverished, David Pimentel

Articles

No abstract provided.

Keeping It In The Family: Minor Guardianship As Private Child Protection, Deirdre Smith

Faculty Publications

Due to the opioid use epidemic and an overwhelmed public child protection system, minor guardianship is an increasingly important tool for relative caregivers seeking to obtain legal authority regarding the children who come into their care because of a parent’s crisis. Yet minor guardianship originated in colonial law for an entirely different purpose: to protect legal orphans who had inherited property. Today’s guardianship laws are still based on this “orphan model” which does not fit today’s reality. This Article is the first to analyze how these outdated guardianship laws are being used as a form of “private child protection” and …

The Harm Of Child Removal, Shanta Trivedi

All Faculty Scholarship

When the state proves or even merely alleges that a parent has abused or neglected a child, family courts may remove the child from the parent’s care. However, research shows separating a child from her parent(s) has detrimental, long-term emotional and psychological consequences that may be worse than leaving the child at home. This is due to the trauma of removal itself, as well as the unstable nature of, and high rates of abuse in, foster care. Nevertheless, the child welfare system errs on the side of removal and almost uniformly fails to consider the harms associated with that removal. …

Religious Issues In Child Welfare Cases, Rebecca Stahl

All Faculty Scholarship

No abstract provided.

My Name Is Not 'Respondent Mother': The Need For Procedural Justice In Child Welfare Cases, Vivek S. Sankaran

Articles

You are a parent whose children are in foster care. Your court hearing is today, after which you hope your children will return home. Upon leaving the bus, you wait in line to enter the court. At the metal detectors you’re told you can’t bring your cell phone inside. With no storage options, you hide your phone in the bushes, hoping it will be there when you return.

The Empirical Turn In Family Law, Clare Huntington

Faculty Scholarship

Historically, the legal system justified family law’s rules and policies through morality, common sense, and prevailing cultural norms. In a sharp departure, and consistent with a broader trend across the legal system, empirical evidence increasingly dominates the regulation of families.

There is much to celebrate in this empirical turn. Properly used, empirical evidence in family law can help the state act more effectively and efficiently, unmask prejudice, and depoliticize contentious battles. But the empirical turn also presents substantial concerns. Beyond perennial issues of the quality of empirical evidence and the ability of legal actors to use it, there are more …

Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran

Articles

In New York City, an indigent parent can receive the assistance of a multidisciplinary legal team—an attorney, a social worker, and a parent advocate—to defend against the City’s request to temporarily remove a child from her care. But in Mississippi, that same parent can have her rights to her child permanently terminated without ever receiving the assistance of a single lawyer. In Washington State, the Legislature has ensured that parents ensnared in child abuse and neglect proceedings will receive the help of a well-trained and well-compensated attorney with a reasonable caseload. Yet in Tennessee, its Supreme Court has held that …

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

Maine Law Review

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 …

Child Welfare's Scarlet Letter: How A Prior Termination Of Parental Rights Can Permanently Brand A Parent As Unfit, Vivek S. Sankaran

Articles

In many jurisdictions, once a parent has her rights terminated to one child, the State can use that decision to justify the termination of parental rights to another child. The State can do so regardless of whether the parent is fit to parent the second child. This article explores this practice, examines its origins, and discusses its constitutional inadequacies.

The American Child Welfare System: The Inconspicuous Vehicle For Social Exclusion, Zachary Auspitz

University of Miami Race & Social Justice Law Review

No abstract provided.

Timely Permanency Or Unnecessary Removal?: Tips For Advocates For Children Who Spend Less Than 30 Days In Foster Care, Christopher Church, Monique Mitchell, Vivek Sankaran

Articles

Removal and placement in foster care is child welfare’s most severe intervention, contemplated as “a last resort rather than the first.” Federal law, with an overarching goal of preventing unnecessary removals, bolsters this principle by requiring juvenile and family courts to carefully oversee the removal of children to foster care. Expansive research reminds the field that removal, while often necessary, is not a benign intervention. Physically, legally, and emotionally separating children from their parent(s) can traumatize children in lasting ways. Yet review of federal data concerning children in foster care reveal a troubling narrative: each year, tens of thousands of …

Legal Issues In Child Welfare Cases Involving Children With Disabilities, Joshua B. Kay, Frank E. Vandervort

Book Chapters

This chapter examines the legal framework applicable when child maltreatment and disability intersect. It begins with a brief description of the constitutional foundation forparent-child-state relations. It provides an overview of relevant federal child welfare laws, which today shape each state’s child protection system. It then considers the application of various federal laws governing work with children and families when a child has a disability. In doing so, we consider the Americans with Disabilities Act, the Individuals with Disabilities Education Act, and Section 504 of the Rehabilitation Act, and we touch upon Social Security benefits for children. This chapter does not …

Failure To Protect: Our Civil System's Chronic Punishment Of Victims Of Domestic Violence, Kate Ballou

Notre Dame Journal of Law, Ethics & Public Policy

This Note examines the effectiveness and enforceability of civil restraining orders in domestic violence cases in the wake of Town of Castle Rock v. Gonzalez, which held that there is no constitutional right to the enforcement of a restraining order. This Note analyzes the impact of Gonzales and the effectiveness of various restraining order statutory schemes more broadly. This Note subsequently addresses that as a result of experiencing continued contact from their attackers, victim mothers are more likely to have their children removed by the state in child welfare proceedings, due to the established presumption in most family courts that …

Child Support Collections To Offset Out Of Home Placement Costs: A Study Of Cost Effectiveness, Trish Skophammer

School of Business Student Theses and Dissertations

Families experiencing out-of-home placement (OHP) are in crisis. The fact that a child has been removed from the home means the family has become involved with the child welfare or juvenile justice system. Families that experience OHP are disproportionately poor, and the reasons for OHP often stem from poverty. Because OHP is expensive, and society values parental responsibility, federal and state laws require that parents be referred to the child support system to help offset the cost of OHP through child support collections. This study explores practices around OHP cases in the child support system and adds to the small …

“Letting Kids Be Kids”: Youth Voice And Activism To Reform Foster Care And Promote “Normalcy”, Bernard P. Perlmutter

Books and Book Chapters

In this chapter, I examine stories that foster care youth tell to legislatures, courts, policymakers, and the public to influence policy decisions. The stories told by these children are analogized to victim truth testimony, analyzed as a therapeutic, procedural, and developmental process, and examined as a catalyst for systemic accountability and change. Youth stories take different forms and appear in different media: testimony in legislatures, courts, research surveys or studies; opinion editorials and interviews in newspapers or blog posts; digital stories on YouTube; and artistic expression. Lawyers often serve as conduits for youth storytelling, translating their clients’ stories to the …

Structure And Service Delivery Approach Of The Children’S Bureau’S Resource Centers And Implementation Centers, Tammy Richards, Michelle Graef, Kathy Deserly, Peter Watson, Mark Ells

Center on Children, Families, and the Law: Faculty Publications

The Children’s Bureau (CB) provides a system of training and technical assistance (T/TA) to build the capacity of state and tribal child welfare systems, with the goal of improving outcomes for children and families. During the time period of 2008-2014, this infrastructure included ten National Child Welfare Resource Centers (NRCs), five Child Welfare Implementation Centers (ICs), and a Training and Technical Assistance Coordination Center (TTACC). Individual ICs and NRCs differed in structure and content expertise, yet they served the same jurisdictions and at times provided services concurrently. To increase cohesion and consistency, the NRCs, ICs, TTACC, and CB worked together …

Criminal Law As Family Law, Andrea L. Dennis

Scholarly Works

The criminal justice system has expanded dramatically over the last several decades, extending its reach into family life. This expansion has disproportionately and negatively impacted Black communities and social networks, including Black families. Despite these pervasive shifts, legal scholars have virtually ignored the intersection of criminal, family, and racial justice. This Article explores the gap in literature in two respects. First, the Article weaves together criminal law, family law, and racial justice by cataloging ways in which the modern criminal justice state regulates family life, particularly for Black families. Second, the Article examines the depth of criminal justice interference in …

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. …

Moore Kinship: Foreword, R.A. Lenhardt, Clare Huntington

Faculty Scholarship

Forty years ago, Mrs. Inez Moore, a widowed black mother and grandmother of little means, secured a victory that likely seemed improbable to many. Without any money, but with the assistance of a team of dedicated Legal Aid attorneys, she took her lawsuit challenging an East Cleveland, Ohio, zoning ordinance that made it a crime for her to live with her grandson all the way to the U.S. Supreme Court and won. The ordinance permitted certain extended family configurations to reside together within the city’s limits, but it prohibited Inez’s family arrangement. Just by bringing her infant grandson John Jr., …

Child Protection Law As An Independent Variable, Josh Gupta-Kagan

Faculty Publications

Child protection professionals work in a multidisciplinary system in which the law and the family court play central roles and which collects an increasing amount of data. Yet we know little about what impact the law has on whether a child is removed by child protective services, is deemed neglected by a family court, or reunifies with a parent. Do state‐to‐state variations in child protection laws, or changes by individual states to their laws, lead to different outcomes for children and families? The dramatic variations in child welfare practice from one state to another suggest that legal variations do matter. …

Child Protection Law As An Independent Variable, Josh Gupta-Kagan

Faculty Publications

Child protection professionals work in a multidisciplinary system in which the law and the family court play central roles and which collects an increasing amount of data. Yet we know little about what impact the law has on whether a child is removed by child protective services, is deemed neglected by a family court, or reunifies with a parent. Do state‐to‐state variations in child protection laws, or changes by individual states to their laws, lead to different outcomes for children and families? The dramatic variations in child welfare practice from one state to another suggest that legal variations do matter. …

When Children Object: Amplifying An Older Child’S Objection To Termination Of Parental Rights, Brent Pattison

University of Michigan Journal of Law Reform

Each year, thousands of children become wards of the state when a court terminates the legal rights of their parents. Between 2010 and 2014, more than 307,000 children lost their legal relationships to their parents in Termination of Parental Rights (TPR) proceedings. A growing percentage of child welfare cases involve older children. At the same time, too many young people lose their legal relationships with their parents without a family waiting to adopt them. The stakes are high for children in TPR cases; nonetheless, many children—even older children—cannot meaningfully participate in proceedings. Moreover, TPR cases threaten parents’ and children’s rights …

Differential Response: Misrepresentation Of Cps Investigation And Case Fact Finding, Frank E. Vandervort, Ronald C. Hughes

Articles

Traditionally, a host of necessary case fact-finding responsibilities and activities has been used by public Child Protective Services (CPS) agencies to ensure that they can achieve mandates to protect children from maltreatment as well as to strengthen and preserve the families of atrisk children. The primary CPS case fact-finding activities include risk assessment, investigation (both CPS and forensic), and family assessment. Information collected while engaged in any one of these three activities will often be relevant and important to the others. However, each case fact-finding activity also requires specific inquiry to elicit information that is essential to achieve its distinct …

The Incest Horrible: Delimiting The Lawrence V. Texas Right To Sexual Autonomy, Y. Carson Zhou

Michigan Journal of Gender & Law

Is the criminalization of consensual sex between close relatives constitutional in the wake of Lawrence v. Texas and Obergefell v. Hodges? Justice Scalia thought not. The substantive due process landscape has changed dramatically in response to the LGBTQ movement. Yet, when a girl in a sexual relationship with her father recently revealed in an anonymous interview with New York Magazine that they were planning to move to New Jersey, one of the only two states where incest was legal, the New Jersey legislature introduced with unprecedented speed a bill criminalizing incest. But who has the couple harmed? The very …

Afterword: Reimagining Family Defense, Matthew I. Fraidin

Journal Articles

No abstract provided.

Mental Health Evaluations In Child Welfare Settings, Joshua B. Kay

Book Chapters

This chapter will focus mainly on parenting capacity evaluations performed by psychologists, as these evaluations tend to be the most legally fraught type of assessment in a child protection proceeding. Often, assessments of parenting capacity inform important, difficult, and potentially contentious questions in the case, including whether to remove a child from a parent's custody or maintain a child in foster care; the frequency and conditions of parent-child visitation; recommended interventions to address parenting deficiencies or problems in the parent-child relationship; and whether and when termination of parental rights should be considered. Despite their central role in providing information that …

Child Welfare Appellate Advocacy, Vivek Sankaran

Book Chapters

The appellate system serves important functions in child welfare cases. It ensures that the relationship between a child and his or her parent is not unjustly terminated. It forces juvenile courts and child welfare agencies to strictly follow statutes, court rules, and agency policies. And it preserves public faith in the system by serving as an independent check to correct mistakes that occur.

But the appellate system is only as good as the advocates who appear before it. This chapter is intended to be a resource for those advocates, both those who have practiced child welfare law for many years …