Family Law Commons^™

Federal Legislation Protecting Children And Providing For Their Well-Being, Frank E. Vandervort

Book Chapters

Over the past several decades a national model for child welfare practice has emerged. In Child Welfare Law and Practice, also known as "The Red Book", experienced NACC authors and child welfare advocates have captured and refined that model, offering a comprehensive guide for those who make child welfare advocacy their priority. Designed as a study guide for attorneys preparing to take the NACC Child Welfare Law Certification Exam, the Red Book serves as a day-to-day guide for child welfare advocates across the country, offering in-depth analysis and instruction on wide variety of topics in the field of child welfare …

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 …

Reforming (But Not Eliminating) The Parental Discipline Defense, Hazel Blum

University of Michigan Journal of Law Reform

This Note argues that although states should retain the parental discipline defense, their legislators should rewrite their statutes to limit the defense to a specific range of disciplinary methods that social science research has shown to have either net-beneficial or net-neutral effects on children. Part II explores religious and cultural attitudes about corporal punishment, including an overview of traditional American attitudes toward corporal punishment. Specifically, it explores how religious teachings, including Evangelical Christianity, Methodism, and Judaism, affect attitudes towards parental discipline. Additionally, Part II will examine the build-up to and aftermath of Sweden’s ban on corporal punishment—the first nation worldwide …

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 …

Religiously-Motivated Medical Neglect: A Response To Professors Levin, Jacobs, And Arora, Doriane Lambelet Coleman

Faculty Scholarship

This Response to Professors Levin, Jacobs, and Arora’s article To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties? focuses on their claim that the law governing religious exemptions to medical neglect is messy, unprincipled, and in need of reform, including because it violates the Establishment Clause. I disagree with this assessment and provide support for my position. Specifically, I summarize and assess the current state of this law and its foundation in the perennial tussle between parental rights and state authority to make decisions for and about the …

Representing Parents With Disabilities, Joshua B. Kay

Book Chapters

Parents with disabilities are more likely than other parents to become involved in the child welfare system, and once involved, their cases are more likely to end in termination of parental rights. This chapter covers basic information about parents with disabilities and child welfare involvement, including the prevalence of disability among parents generally and the frequency with which parents with disabilities are involved in child welfare cases. It discusses why these parents are disproportionately involved in child welfare proceedings and the biases of professionals that contribute not only to this frequent involvement but also to the poor outcomes in many …

Strange Bedfellows: How Child Welfare Agencies Can Benefit From Investing In Multidisciplinary Parent Representation, Vivek S. Sankaran, Patricia L. Rideout, Martha L. Raimon

Other Publications

This is the second of a series of articles that examines the role that advocates for parents and families can play in furthering the wellbeing and safety of children. This article highlights emerging parent representation models that expedite the safe reunification of children already in foster care.

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 …

Foster Kids In Limbo: The Effects Of The Interstate Compact On Children In Foster Care, Vivek Sankaran

Articles

Each year, child welfare agencies make over 40,000 requests for home studies to determine whether children in foster care can be placed with parents, relatives, and others living in another state. Each request is governed by the Interstate Compact on the Placement of Children (ICPC), a uniform law adopted by every state to coordinate the placement of foster children in other states. Under the ICPC, a child can only be placed in foster care in another state after the receiving state conducts a home study and approves the proposed placement. Despite its good intentions, the ICPC has become unworkable...A study …

Bio Family 2.0: Can The American Child Welfare System Finally Find Permanency For 'Legal Orphans' With A Statute To Reinstate Parental Rights?, Meredith L. Schalick

University of Michigan Journal of Law Reform

The American child welfare system terminates parental rights for thousands of children each year even though adoptive families have not yet been identified for the children. Every year, there are more than 100,000 of these “legal orphans” waiting for new families. Given the lower rates of adoptions for children of color and older children, and the poor outcomes for most youth who age out of the foster care system, the American child welfare system must start to think differently about permanency options for children. This Article proposes a model statutory provision to reinstate parental rights under certain circumstances to give …

Case Closed: Addressing Unmet Legal Needs & Stabilizing Families, Vivek S. Sankaran, Martha L. Raimon

Other Publications

This is the first of two articles that examines the role that advocates for parents and families can play in furthering the well-being and safety of children. This article highlights how the work of multidisciplinary advocacy teams with legal expertise can help prevent children from entering foster care. The next article will discuss emerging parent representation models that expedite the safe reunification of children already in foster care.

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 …

In Re Sanders And The Resurrection Of Stanley V. Illinois, Joshua Gupta-Kagan

Faculty Scholarship

This Essay begins by reviewing Stanley v. Illinois, and outlines how that foundational case originally recognized parental rights in foster care cases yet became understood primarily as a private adoption case. Second, it explains how, simultaneously, family courts developed the One-Parent Doctrine and a related doctrine making it difficult to transfer custody of a child from an abusive or neglectful parent in one state to a non-offending parent in another. Both doctrines violate Stanley by allowing the State to take custody of children without ever proving parental unfitness. Cases adopting these doctrines literally ignore Stanley. Third, this Essay …

The Child-Welfare System And The Limits Of Determinacy, Clare Huntington

Faculty Scholarship

To read Robert Mnookin’s seminal 1975 article, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, is to see a blueprint for legislative action. To a remarkable degree, the reforms Mnookin proposed to the child-welfare system are what Congress and the states adopted in the following two decades. And yet reading Mnookin’s article is also a Groundhog Day experience. The problems he described with the child-welfare system nearly forty years ago sound all too familiar today.

Mnookin famously argued that the best-interests standard was indeterminate in the context of the child-welfare system. According to Mnookin, this open-ended standard created …

Using Preventive Legal Advocacy To Keep Children From Entering Foster Care, Vivek Sankaran

Articles

Children may unnecessarily enter foster care because their parents are unable to resolve legal issues that affect their safety and well-being in their home.[...] Yet these kinds of legal needs for poor families are rarely met. On average, poor families experience at least one civil legal need per year, but only a small portion of those needs are satisfied. For about every six thousand people in poverty, there exists only one legal aid lawyer. So legal aid programs are forced to reject close to a million cases each year. This lack of legal services threatens the well-being of children[...] who …

Wanted: Forever Home – Achieving Permanent Outcomes For Nevada's Foster Children, Miriam C. Meyer-Thompson

Nevada Law Journal

No abstract provided.

Parents With Mental Disabilities: The Legal Landscape, Dale Margolin Cecka

Law Faculty Publications

The ADA, coupled with federal and state child welfare laws, provides broad brush strokes for advocates of parents with mental disabilities and their children. To effectuate parents’ rights, child welfare professionals must work with the parents themselves, as well as with other state departments, to form service plans that are tailored for the success of each individual family.

Guidelines For Child Protection Mediation, Kelly Browe Olson Co-Editor

Law Faculty Scholarship

No abstract provided.

Every Adolescent Deserves A Parent, Dale Margolin Cecka

Law Faculty Publications

This article argues that all adolescents, indeed all human beings, deserve at least one parent—one person who takes the good with the bad because that person’s life is intertwined with the child’s. The child matters to the parent in a way that a friend, nephew, or foster child may not. Child welfare professionals must never lose sight of this principle when they recruit, train, and maintain parents for adolescents. The parent can be someone who is already in the young person’s life or someone who has been unable to parent in the past, but is now ready to secure that …

Purpose Vs. Power: Parens Patriae And Agency Self-Interest, Daniel L. Hatcher

All Faculty Scholarship

The purpose of human service agencies to serve vulnerable populations such as abused and neglected children derives from the common law doctrine of parens patriae, embodying the inherent role of the state as parent of the country. However, along with this foundational purpose, the parens patriae doctrine also provides power that is illusive to public knowledge and oversight. To maintain their cloak of power, the very agencies created to fulfill the parens patriae obligations — to protect the rights of children — have systematically battled the children’s efforts to claim those rights as their own. Also, the agencies have now …

Supporting Children, Balancing Lives, Katharine K. Baker

Pepperdine Law Review

This paper examines how U.S. child support policy validates traditional divisions of labor and thereby hinders individual attempts to achieve an acceptable work/family balance. It argues that by using the household as the relevant unit of measurement for child support purposes, family law doctrine legitimates the specialization contracts that arise within households. These specialization contracts, used most extensively in wealthy, elite households, undermine attempts to distribute caretaking and provider roles more equally between parents. The article suggest that by dispensing with the household as the relevant unit of measurement and treating all parents individually, each with a responsibility to caretake …

Spoliation In Child Welfare: Perspectives And Solutions, Dale Margolin Cecka

Law Faculty Publications

Author examines spoliation in child welfare litigation and provides ideas for preserving evidence and improvement record-keeping.

The Connection Between Permanency And Education In Child Welfare Policy, Kele Stewart

Articles

No abstract provided.

Neuroscience And The Child Welfare System, Clare Huntington

Faculty Scholarship

Increasingly, scholars and policymakers are calling for programs that take a preventive approach to child abuse and neglect, rather than our current tendency to respond only after a crisis. There are significant social and economic arguments supporting this shift. The Nurse-Family Partnership, developed by David Olds and discussed in this symposium, illustrates how specific investments in family functioning can lower rates of child abuse and neglect, leading to a host of positive outcomes for children and society, from greater educational attainment to less involvement in the criminal justice system. Thinking about child well-being more broadly, the Nobel laureate James Heckman …

Building Resilience In Foster Children: The Role Of The Child's Advocate, Frank E. Vandervort, James Henry, Mark A. Sloane

Articles

This Article provides an introduction to, and brief overview of trauma, its impact upon foster children, and steps children's advocates" can take to lessen or ameliorate the impact of trauma upon their clients. This Article begins in Part 11 by defining relevant terms. Part III addresses the prevalence of trauma among children entering the child welfare system. Part IV considers the neurodevelopmental (i.e., the developing brain) impact of trauma on children and will explore how that trauma may manifest emotionally and behaviorally. With this foundation in place, Part V discusses the need for a comprehensive trauma assessment including a thorough …

Don't Forget Dad: Addressing Women's Poverty By Rethinking Forced And Outdated Child Support Policies, Daniel L. Hatcher

All Faculty Scholarship

In the dialogues regarding reducing poverty among women, especially mothers, the inextricably linked issues surrounding low-income men must be simultaneously considered. In social policy addressing women’s poverty, poor fathers have too often been considered primarily as an enemy to be pursued rather than a fellow victim of poverty’s wrath, and potential partner towards the cure. We want someone to blame, and many assume that poor single mothers are best served by always being encouraged — and even forced — to pursue the noncustodial fathers for financial support through adversarial means. Mothers applying for public assistance are forced to sue the …

Shadow Works And Shadow Markets: How Privatization Of Welfare Services Produces An Alternative Market, Bridgette Baldwin

Faculty Scholarship

The Author attempts to fuse Ivan Illich’s misplaced ideas of gender roles with how privatization of welfare services has legitimized a shadow economy and work through mandated community service jobs. The Article provides a historical perspective of how social services were handled, leading to the current cost/benefit legacy of welfare privatization utilized by the Wisconsin Works program (W-2). Wisconsin’s program requires women recipients to engage in volunteer work, creating a subsidized labor force for private agencies based on the presumption that work, even meaningless and menial tasks, establishes job-readiness for women on welfare. The Author suggests that we need to …

"The Good Mother": Mothering, Feminism, And Incarceration, Deseriee A. Kennedy

Scholarly Works

As the rates of incarceration continue to rise, women are increasingly subject to draconian criminal justice and child welfare policies that frequently result in the loss of their parental rights. The intersection of an increasingly carceral state and federally imposed timelines for achieving permanency for children in state care has had a negative effect on women, their children, and their communities. Women, and their ability to parent, are more adversely affected by the intersection of these gender-neutral provisions because they are more likely than men to be the primary caretaker of their children. In addition, incarcerated women have higher rates …

Changing The Narrative Of Child Welfare, Matthew I. Fraidin

Georgetown Law Faculty Publications and Other Works

In child welfare, the difference we can make as lawyers for parents, children, and the state, and as judges, is to prevent children from entering foster care unnecessarily. And we can end a child’s stay in foster care as quickly as possible. To do that, we have to fight against a powerful narrative of child welfare and against the accepted “top-down” paradigm of legal services.

In this essay, Professor Fraidin suggests that we can achieve our goals of limiting entries to foster care and speeding exits from it by looking for the strengths of the people involved in our cases, …

Preventing The Unnecessary Entry Of Children Into Foster Care, Vivek Sankaran

Articles

A young mother of three endures abuse at the hands of the children's father. Her children repeatedly witness the violence in their home and describe it to a school teacher, who in turn places a call to Child Protective Services (CPS). A CPS investigator arrives at the home the next morning with a plethora of questions for the mother and her children. Have the children been hit? Did they observe the beatings? What steps has their mother taken to protect them? An adversarial conversation ensues. Unsatisfactory answers may lead to tragic consequences-the removal of the children from their home.