Family Law Commons^™

Global Child Welfare: The Challenges For Family Law, Ann Laquer Estin

Oklahoma Law Review

No abstract provided.

No Harm, No Foul? Why Harmless Error Analysis Should Not Be Used To Review Wrongful Denials Of Counsel To Parents In Child Welfare Cases, Vivek Sankaran

Articles

The application of a harmless error standard by appellate courts reviewing erroneous denials of counsel in child protective cases undermines a critical procedural right that safeguards the interests of parents and children. Case law reveals that trial courts, on numerous occasions, improperly reject valid requests for counsel, forcing parents to navigate the child welfare system without an advocate. Appellate courts excuse these violations by speculating that the denials caused no significant harm to the parents, which is a conclusion that a court can never reach with any certainty. The only appropriate remedy for this significant problem is a bright-line rule …

Give Peace A Chance: A Guide To Mediating Child Welfare Cases, Jennifer Baum

Faculty Publications

(Excerpt)

Would you like to speed up your cases, achieve more satisfying results for your clients, and cut back on needlessly polarizing motion practice? Since its introduction in the 1980s, child welfare mediation has helped attorneys do just that by facilitating resolutions in child protective disputes more quickly, less contentiously, and with more acceptance from stakeholders than its courtroom alternative, adversarial litigation.

If you've handled dependency cases for any length of time, you are already familiar with the crushing caseloads, emotional volatility, and high-stakes decision-making that are the hallmarks of child welfare litigation. In a growing number of jurisdictions, attorneys …

More Therapeutic, Less Collaborative? Asserting The Psychotherapist-Patient Privilege On Behalf Of Mature Minors, Bernard P. Perlmutter

Articles

No abstract provided.

The State Of The American Child: Securing Our Children’S Future: Hearing Before The Subcomm. On Children & Families Of The S. Comm On Health, Educ., Labor & Pensions, 111th Cong., Nov. 18, 2010 (Statement Of Professor Peter B. Edelman, Geo. U. L. Center), Peter B. Edelman

Testimony Before Congress

You have asked me to reflect on the achievements and disappointments of recent decades with regard to child poverty in our country, on lessons learned, and on what we need to do going forward.

It is impossible to understand child poverty trends without placing them in a context of what has happened to the American economy and to the distribution of income and wealth. Except for the last half of the 1990s, the economic history of the past four decades has been one of near‐stagnation for people with jobs that pay below the median wage in the country ‐‐ the …

The Indian Child Welfare Act., Frank Vandervort

Book Chapters

Few child welfare lawyers routinely confront the application of the Indian Child Welfare Act (ICWA or "the Act"). When the statute applies, however, it is crucial that its provisions be strictly followed. There are at least three reasons why counsel should attempt to ensure that ICWA's provisions are carefully applied. First, ICWA's provisions are jurisdictional. Failure to abide by its requirements invalidates the proceeding from its inception. Indeed, any party or the court may invoke ICWA at any time in the proceeding, including for the first time on appeal. Second, unlike most federal child welfare legislation which provides funding streams …

Non-Adversarial Case Resolution, Donald N. Duquette

Book Chapters

A lawyer practicing in child welfare is increasingly likely to either want to refer a case to a Non-Adversarial Case Resolution (NACR) program or to be ordered into NACR by the court. This chapter is intended to orient a lawyer to the most common forms of NACR in the United States today, prepare him or her to participate competently in that structure, and to encourage more widespread use of these promising alternatives.

Federal Child Welfare Legislation., Frank Vandervort

Book Chapters

This chapter provides a brief overview of federal statutes that impact the practice of child welfare law. Since the enactment of the Child Abuse Prevention and Treatment Act in 1974 (CAPTA), the federal government has played an ever increasing role in handling child maltreatment cases.

A Hidden Crisis: The Need To Strengthen Representation Of Parents In Child Protective Proceedings, Vivek Sankaran

Articles

A national consensus is emerging that zealous legal representation of parents is crucial in ensuring that the child welfare system produces just outcomes for children. National groups, inclucing the Pew Commission on Children in Foster Care, the American Bar Association Center on Children and the Law, and the National Association of Counsel for Children, have been outspoken on the need to strengthen legal advocacy on behalf of parents, and a number of states-including Colorado, Connecticut,' and Washington7 have initiated efforts to comprehensively reform their systems of appointing lawyers for indigent parents to better serve families. A national movement is afoot …

Embracing The Affective Family: Tribute To Eve Kosofsky Sedgwick, Clare Huntington

Faculty Scholarship

Scholars are often quick to label the affective family a relic. Indeed, the description of this panel invites us to "return to the conventional understanding of the family as a primarily affective, altruistic, and solidaristic social domain," and then asks "[w]hat is to be done with this archaic remnant of separate spheres ideology?"' As this description accurately expresses, the separate spheres ideology demands that we bifurcate emotion and rationality, directing the former into the family and the latter into the market.

Although I reject the separate spheres ideology, I am not ready to disown the affective family. The corrective to …

Representing Parents In Child Welfare Cases, Vivek Sankaran

Book Chapters

A parent's constitutional right to raise his or her child is one of the most venerated liberty interests safeguarded by the Constitution and the courts.2 The law presumes parents to be fit, and it establishes that they do not need to be model parents to retain custody of their children.3 If the state seeks to interfere with the parent-child relationship, the Constitution mandates that the state: (1) prove parental unfitness, a standard defined by state laws; and (2) follow certain procedures protecting the due process rights of parents. The constitutional framework for child welfare cases is premised on the belief …

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

Georgetown Law Faculty Publications and Other Works

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.

The master narrative of child welfare depicts foster care as a haven for child-victims savagely brutalized by “deviant,” “monstrous” parents. …

Collateral Children: Consequence And Illegality At The Intersection Of Foster Care And Child Support, Daniel L. Hatcher

All Faculty Scholarship

This Article is the third in a series addressing the conflict between state revenue maximization strategies and the missions of state agencies serving low-income children. The Article examines the policy of foster care cost recovery through child support enforcement. When children are removed from poor families and placed in foster care, federal law requires child welfare agencies to initiate child support obligations against the parents. Resulting payments do not benefit the children but are converted into a government funding stream to reimburse the costs of foster care. This cost recovery effort often subordinates the child welfare system’s primary goals of …

Legal Strategies To Address Child Support Obligations For Nonresident Fathers In The Child Welfare System, Daniel L. Hatcher

All Faculty Scholarship

The legal and practical issues surrounding child support obligations have enormous impact on families in the child welfare system. Unfortunately, these issues are often ignored, overlooked, or misunderstood. A much-needed effort to engage nonresident fathers in the child welfare system is underway, but those efforts will often be derailed if child support is not properly addressed. This article sheds light on the legal and policy concerns regarding child support enforcement in child protection cases and provides legal strategies for advocates to address those concerns. While primarily aimed at advocates for nonresident fathers, this article should also benefit advocates for custodial …

Virtual Parentalism, Joshua A.T. Fairfield

Washington and Lee Law Review

Parents, not Laws, ultimately protect children both online and offline. If legislation places adults at legal risk because of the presence of children in virtual worlds, adults will exit those worlds, and children will be isolated into separate spaces. This will not improve safety for children. Instead, this Article suggests that Congress enact measures that encourage filtering technology and parental tools that will both protect children in virtual worlds, and protectfree speech online.

Supervised Visitation And Monitored Exchange: Review Of The Literature And Annotated Bibliography, Barbara A. Babb, Gloria Danziger, Judith D. Moran, William A. Mack

All Faculty Scholarship

Though courts increasingly rely on supervised visitation services in custody disputes and child welfare cases (Salem, Kulak, & Deutsch, 2007), a search of the literature produces few studies reporting empirically validated aspects of supervised visitation programs. The current literature about supervised visitation extensively documents the rationale for providing the service and contains numerous descriptions of provider programs (Birnbaum & Alaggia, 2006). The next generation of research must focus on long-term outcomes that demonstrate effectiveness of supervised visitation programs (Birnbaum & Alaggia, 2006).

This project involves a review of the literature concerning supervised visitation and child access services. The intent of …

Judicial Oversight Over The Interstate Placement Of Foster Children: The Missing Element In Current Efforts To Reform The Interstate Compact On The Placement Of Children, Vivek Sankaran

Articles

This article argues that current efforts to reform the Compact are flawed because they lack an essential element: judicial oversight of agency decision-making. The first section explores the important role that juvenile court judges play in making placement decisions for foster children. Next, an examination of the current problems in the interstate placement process demonstrates the vital need for judicial oversight of the system. Finally, a specific proposal is put forth on how best to incorporate judicial oversight without interfering with the sovereignty of states.

Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran

Articles

Over the past hundred years, a consensus has emerged recognizing a parent's ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings. Yet, …

When Child Protective Services Comes Knocking, Vivek Sankaran

Articles

A child protective services (CPS) worker knocks on the door of your client, a 36-year-old mother involved in a contentious child custody case. The worker reveals only that she received an anonymous phone call alleging that your client physically abused her son and now she must investigate those allegations under state law. The worker demands to enter the house, interview the children, and inspect the premises. She threatens that a lack of cooperation may result in the filing of a court petition and the possible removal of the child. Your panicked client calls with a plethora of questions: Can CPS …

Family Group Conferencing And Child Protection Mediation: Essential Tools For Prioritizing Family Engagement In Child Welfare Cases, Kelly Browe Olson

Law Faculty Scholarship

Family group conferencing (FGC) and child protection mediation maximize family engagement in child welfare cases by prioritizing families' roles in discussions and decisions. This article examines how FGC helps professionals to focus on family and community strengths, encourages family engagement, and provides targeted case plans for families and timely, permanent placements for children. It explores how courts and agencies use these interventions to empower families to contribute to resolutions in ways that are not possible in traditional litigation processes. These complementary processes help children and families by providing forums where families are allowed to make informed choices and take an …

Child Protection -- What Ought To Be, Donald N. Duquette

Articles

America's child protection system should not only protect our children, it should protect our liberty. Several recent cases, and perhaps others in your jurisdiction, highlight a general tension in America's child protection system between child protection and family integrity.

Protecting A Parent's Right To Counsel In Child Welfare Cases, Vivek Sankaran

Articles

A national consensus is emerging that zealous leagal representation for parents is crucial to ensure that the child welfare system produces just outcomes for children. Parents' lawyers protect important constitutional rights, prevent the unnecessary entry of children into foster care and guide parents through a complex system.

Raising The Cut-Off: The Empirical Case For Extending Adoption And Guardianship Subsidies From Age 18 To 21, Josh Gupta-Kagan

Faculty Publications

No abstract provided.

Happy Families? Translating Positive Psychology Into Family Law, Clare Huntington

Faculty Scholarship

Despite the well-documented finding in the field of positive psychology that close interpersonal relationships are significantly correlated with subjective well-being and thriving communities, scholars have yet to bring together positive psychology and family law. And what is family law if not the law of close interpersonal relationships? Positive psychology and related work have the potential to inform the what, the why, and the how of family law, but realizing the potential of positive psychology as a guide for family law involves challenges. In particular, it requires translating the descriptive science of psychology into the prescriptive policies of family law. This …

Bringing The Greenbook To Life: A Resource Guide For Communities, Leigh S. Goodmark, Ann Rosewater

Book Gallery

This book is designed for communities seeking to develop interventions that will improve their responses to families suffering both domestic violence and child maltreatment.

Advocating For The Constitutional Rights Of Nonresident Fathers, Vivek Sankaran

Articles

Months after a child welaare case is petitioned, a nonresident father appears in court and requests custody of his children who are living in foster care. Little is known about the father, and immediately, the system-judge, caseworkers, and attorneys view him with suspicion and caution, inquiring about his whereabouts and his prior involvement in the children's lives. Those doubts, in turn, raise complicated questions about his legal rights to his children. As a practioner working in the child welfare system, you're likely to face this scenario. The largest percentage of child victims of abuse and neglect come from households headed …

Kiddie Law Is Growing Up: Board Certification In Child Welfare Law, Donald N. Duquette

Articles

Few areas of the law are as personally rewarding as child welfarethat is, representing children, parents, or a government agency in cases of alleged child abuse and neglect. Few areas of the law provide a greater opportunity to make a tremendous difference in the lives of individuals. Few areas of the law are as intellectually challenging, fast developing, and dynamic as child welfare. Until recently the child welfare field was demeaned as "kiddie law"-not worthy of the intellectual and advocacy talents of the best of America's lawyers. The field is steadily being transformed, however, from a sleepy, assembly-line processing of …

Navigating The Interstate Compact On The Placement Of Children: Advocacy Tips For Child Welfare Attorneys, Vivek Sankaran

Articles

Legal advocates across the country confront hundreds of cases like Samira's each year. Many of those cases end with arms raised in frustration due to what appears to be a lack of options after the receiving state either fails to complete the home study or denies a placement. That frustration is understandabkle given the absence of language in the Compact outlining any process to compe states to complete home studies or to permit judicial review of placement denials. Yet, as advocates, we must move beyond this initial state of paralysis and develop creative ways to vindicate the rights of our …

Missing Parents, Clare Huntington

Faculty Scholarship

In an effort to protect children from abuse and neglect, the child welfare system focuses on parents, both as potential wrongdoers and as the locus for rehabilitation. This attention informs the discourse surrounding state intervention: parents' rights are balanced against children's rights, and family autonomy is understood as an overriding value. But the child welfare system centers parents in the wrong way, leading to academic debates that miss the mark and methods of intervention that are often counterproductive.

An effective child welfare system would be built upon the understanding that, in general, the state can best support children by supporting …

Right Responsibility: Does The Right To Procreate Include The Responsibility To Parent?, A Felicia Epps

Journal Publications

No abstract provided.