Family Law Commons^™

Why Does The Federal Government Get A Pass? Applying Best Practices In Child Protection To The Circumstances Of Migrant Children And Families, Randi Mandelbaum

American University Law Review

For too long, the United States has had a separate child-caring system for migrant children and families that operates alongside our domestic child welfare systems. The latter is a robust system focused on the principles of safety, wellbeing, and permanency; while the former flouts constitutional protections, separates children from parents, and perpetuates a system that is detaining children, warehousing them in large jail-like settings at worst, and sheltering them in large congregate care facilities at best. Children are being harmed, some irreparably.

Yet, if our child welfare laws reflect what we know to be proper standards for caring for vulnerable …

Presumed Unfit: The Dual Bind Faced By Pregnant And Parenting Youth In Foster Care, Kara R. Finck

American University Law Review

Pregnant and parenting youth in foster care are subject to a range of laws, policies, and practices that expose the realities of a child welfare system structured to focus on surveillance instead of support and family regulation instead of family integrity. Informed by my experience representing foster youth who become parents, this Article considers how youth in care are presumed unfit to parent their children because of a history in foster care and their age. A youth’s status as pregnant or parenting is weaponized to subject them to additional scrutiny, threats, and a shifting burden to justify their fundamental right …

Bell V. Goggles, 19-Ap-02 (Blkfet. Tr. Ct. App., July 19, 2021), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court dismissed a case for lack of jurisdiction over the parties. The case concerned child support obligations arising from the State of Wyoming, Wind River Indian Reservation. Neither the petitioner nor respondent are Blackfeet, nor the children concerned. While the Blackfeet Nation Honors full faith and credit, the respondent does not reside on the Blackfeet Reservation, therefore relief in this matter does not apply to the decision of the Blackfeet Tribal Court.

A Q&A With Homeschooling Reform Advocates Elizabeth Bartholet And James Dwyer, Elizabeth Bartholet, James Dwyer

Popular Media

Elizabeth Bartholet, Morris Wasserstein Public Interest Professor and Faculty Director of the Child Advocacy Program (CAP), and James Dwyer, the Arthur B. Hanson Professor of Law at William & Mary Law School, were interviewed by Harvard Law Today about their virtual conference titled, Homeschool Summit: Problems, Politics, and Prospects for Reform. The June event was attended by leaders in education and child welfare policy, legislators and legislative staff, academics and policy advocates, medical professionals, homeschooling alumni, and others, to discuss children’s rights in connection with homeschooling in the United States.

Homosexuality And Adoption Of Children: A Bibliometric Analysis, Karthiayani A. Ms., Manika Kamthan Dr.

Library Philosophy and Practice (e-journal)

This study is based on the bibliometric analysis of research publications that focus on highlighting the impact of homosexuality on the process of adoption of children. The primary objective of this study is to analyze the frequency of publications focusing on the impact of parental sexual orientation on the process of adoption in different countries. The data required for this study was collected from the Scopus database and was analyzed using VOSviewer software. Literature published from 2000 to January 2021 were extracted and analyzed. A total of 284 documents which are classified into articles, letters, editorials, conference papers, and reviews …

Deinstitutionalization, Family Reunification, And The "Best Interests Of The Child": An Examination Of Armenia's Child Protection Obligations Under Conventional International Law, George S. Yacoubian Jr., Esq.

Pace International Law Review

For nearly a century, the global community has sought to afford children legal protections, abandoning widely held views that children were pecuniary assets. In the United States and globally, a nascent children’s rights movement culminated in broad child welfare reform. Whether adoption, armed conflict, child labor, education, human trafficking, or deinstitutionalization, the post-war 20th century witnessed an evolution of international child protections. The prevailing standard of “best interests of the child” (BIC) has been incorporated into domestic and international law doctrine and, not surprisingly, has been operationalized in a variety of ways. In recent years, the standard has been explored …

A Taxonomy Of The Hardships Children Of Immigrant Parents Face Following Parental Deportation And Recommendations To Protect The Children’S Rights, Heather Sanborn

Chicago-Kent Law Review

No abstract provided.

Child Support And Joint Physical Custody, Raymond C. O'Brien

Catholic University Law Review

Child custody has evolved to the point where, at a minimum, states provide a mediated process by which parents may formulate parenting plans with court-appointed assistance. At a maximum state legislatures and courts increasingly consider joint physical custody awards. While joint physical custody safeguards the fundamental rights of parents, it nonetheless prompts practical concerns in awarding child support. Today, child support begins with state statutory guidelines, but the guidelines often fail to adequately address the economic consequences of two complete residences, one supported by a parent with fewer economic resources, and the fact that oftentimes the child drifts from one …

The Stability Paradox: The Two-Parent Paradigm And The Perpetuation Of Violence Against Women In Termination Of Parental Rights And Custody Cases, Judith Lewis

Michigan Journal of Gender & Law

Despite changing family compositions, entrenched in family law is the antiquated idea that a two-parent household, or its approximation vis-à-vis a shared custody arrangement, promotes stability and integrity and, thus, is in the best interest of the child. Yet, the concept that the two-parent household (or shared involvement of both parents in the child’s life if the parents separate) promotes stability for the family and is best for the child is a dangerous fallacy. When rape or intimate partner violence (IPV) is present, or the re-occurrence of violence remains a threat, the family unit is far from stable.

This Article …

The New Parental Rights, Anne C. Dailey, Laura A. Rosenbury

UF Law Faculty Publications

This Article sets forth a new model of parental rights designed to free children and families from the ideals of parent–child unity and family privacy that underlie the law’s expansive protection for parental rights. The law currently presumes that parents’ interests coincide with those of their children, creating an illusion of parent–child union that suppresses the very real ways in which children’s interests and identities, even at a young age, may depart from those of their parents. Expansive protection for parental rights also confines children to the private family, ignoring children’s broad range of interests beyond the family and thwarting …

Legal Representation For Children: A Matter Of Fairness, Wendy Shea

Mitchell Hamline Law Review

No abstract provided.

Paper Courts And Parental Rights: Balancing Access, Agency, And Due Process, Tianna N. Gibbs

Scholarly Articles in Law Reviews & Journals

Across the country, state legislatures have created out-of-court, form-based processes that replace the adjudicative process in traditional courts. In the family law context, these out-of-court forms allocate fundamental parental rights, principally for unmarried and single parents, who disproportionately have low incomes and are people of color. In most states, instead of presenting their requests to a judge in a courtroom, parents can sign legal forms in a hospital room to establish paternity or at their kitchen table to assign their custodial rights to a third party. When a child is born to an unmarried mother, as 40% of children are, …

The Pro Bono Collaborative Project Spotlight: Can You Help? December 2020, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

Serving-Up The Ace: Understanding Adverse Childhood Experiences (“Ace”) In Dependency Adoption Through The Lens Of Social Science, Cynthia G. Hawkins, Taylor Scribner

University of Michigan Journal of Law Reform Caveat

Almost certainly, every child who enters the foster care system has endured some sort of trauma. It is unrefuted that childhood trauma correlates with mental, physical, and behavioral problems well into adulthood. In 1998, one of the first major studies of the relationship between certain forms of childhood trauma and adult behavior and disease was reported. Collectively, these traumas are called “Adverse Childhood Experiences” (ACE).

Today ACE refers to ten common forms of trauma that individuals may have experienced as children. To put this issue in perspective, it is currently estimated that 34.8 million children in the United States are …

Homeschooling: A Response To Ahlberg, Howell, And Justice, James G. Dwyer, Shawn F. Peters

Faculty Publications

No abstract provided.

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 06-2020, Roger Williams University School Of Law, Michael M. Bowden, Katie Mulvaney

Life of the Law School (1993- )

No abstract provided.

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Michigan Law Review

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined …

Rethinking Foster Care: Why Our Current Approach To Child Welfare Has Failed, Vivek Sankaran, Christopher Church

Articles

Over the past decade, the child welfare system has expanded, with vast public and private resources being spent on the system. Despite this investment, there is scant evidence suggesting a meaningful return on investment. This Article argues that without a change in the values held by the system, increased funding will not address the public health problems of child abuse and neglect.

Emancipation Unlocke'd: Partus Sequitur Ventrem, Self-Ownership, And No "Middle State"In Maria Vs. Surbaugh, Diane J. Klein

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Promise And Failures Of Children's Medicaid And The Role Of Medical-Legal Partnerships As Monitors And Advocates, Kate Mitchell

Faculty Publications & Other Works

For decades we have known that access to health care and early and preventive diagnosis and treatment can dramatically alter the course of a child’s life. Because of this knowledge, immediately after Congress enacted Medicaid, it created the Early and Periodic Screening, Diagnostic and Treatment, or EPSDT, program for children. EPSDT requires broad holistic and preventive care to correct or ameliorate health defects identified in Medicaid-eligible children. This coverage currently extends to 2 out of 5 children and 48 percent of children with special health care needs. Because of the broad parameters of coverage mandated by EPSDT, eligible children should …

Unfit To Parent: American And Jewish Legal Perspectives, Michoel Zylberman, Karen K. Greenberg, Daniel Pollack

Touro Law Review

No abstract provided.

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined …

Prenatal Drug Exposure As Aggravated Circumstances, Frank E. Vandervort

Articles

In Michigan, "a child has a legal right to begin life with sound mind and body." Yet the family court may not assert Juvenile Code jurisdiction until after birth. In re Baby X addressed the question of whether a parent's prenatal conduct may form the basis for jurisdiction upon birth. It held that a mother's drug use during pregnancy is neglect, allowing the court to assert jurisdiction immediately upon the child's birth. In deciding Baby X, the Court specifically reserved the question of whether parental drug use during pregnancy might be sufficient to permanently deprive a parent of custody. …

Advocating For Children With Disabilities In Child Protection Cases, Joshua B. Kay

Articles

Children with disabilities are maltreated at a higher rate than other children and overrepresented in child protection matters, yet most social service caseworkers, judges, child advocates, and other professionals involved in these cases receive little to no training about evaluating and addressing their needs. Child protection case outcomes for children with disabilities tend to differ from those of nondisabled children, with more disabled children experiencing a termination of their parents' rights and fewer being reunified with their parents or placed with kin. They also tend to experience longer waits for adoption. Furthermore, the poor outcomes that plague youth who age …

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 …

Puffing Away Parental Rights: A Survey And Analysis Of Whether Secondhand Smoke Exposure Is Child Abuse, Karly Huml

Journal of Law and Health

The steps taken thus far to protect children in public areas, custody cases, and in vehicles show the legislature's awareness of the chemical harms of secondhand smoke for children. This article will analyze those steps and discuss what they mean for both parents' and children's constitutional rights. This article proposes that the legislature take a vital fourth step by including secondhand smoke exposure in child abuse laws. Section II of this article provides the history of smoking tobacco and its transition from a trendy social status to an unpopular, harmful habit. Section II also introduces the steps that have been …

The Americans With Disabilities Act: Legal And Practical Applications In Child Protection Proceedings, Joshua B. Kay

Articles

Parents with disabilities, particularly those with intellectual disability and/or mental illness, are disproportionately represented in the child protection system.1 Once involved in the system, they are far more likely than parents without disabilities to have their children removed and their parental rights terminated. The reasons for this are many. Parents with disabilities are relatively likely to experience other challenges that are themselves risk factors for child protection involvement. In addition, child protection agencies, attorneys, courts, and related professionals often lack knowledge and harbor biases about parents with disabilities, increasing the likelihood of more intrusive involvement in the family. Yet research …

Properly Accounting For Domestic Violence In Child Custody Cases: An Evidence-Based Analysis And Reform Proposal, Debra Pogrund Stark, Jessica M. Choplin, Sarah Elizabeth Wellard

Michigan Journal of Gender & Law

Promoting the best interests of children and protecting their safety and well-being in the context of a divorce or parentage case where domestic violence has been alleged has become highly politicized and highly gendered. There are claims by fathers’ rights groups that mothers often falsely accuse fathers of domestic violence to alienate the fathers from their children and to improve their financial position. They also claim that children do better when fathers are equally involved in their children’s lives, but that judges favor mothers over fathers in custody cases. As a consequence, fathers’ rights groups have engaged in a nationwide …

Representing The Child In Child Protective Proceedings: Toward A New Paradigm, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

This article will attempt a new approach, one based on an analysis of the child's interests in a child protective proceeding. As will be discussed in Part 1, most interests are surprisingly overlooked or barely articulated in the representation debate. Part 2 will summarize the statutes and case law governing the role of the child's counsel in the child protective litigation continuum. The frequently lengthy process may range from initiation by a child protective agency to the achievement of family reunification or other permanency goal. For children, the continuum of sequential proceeding may span years or decades. Finally, Part 3 …

Multi-Partner Fertility In A Disadvantaged Population: Results And Policy Implications Of An Empirical Investigation Of Paternity Actions In St. Joseph County, Indiana, Margaret F. Brinig, Marsha Garrison

Journal Articles

In this paper, we report data on multi-partner fertility (MPF) in a population of children and parents for whom paternity actions were brought, in 2008 or 2010, in St. Joseph County, Indiana. The computerized, court-based record system we utilized enabled us to collect information on parental characteristics and child outcomes that other MPF researchers have been unable to access. Our research thus offers a unique, data-rich window into an important, and growing, aspect of contemporary family life. It also points the way to needed shifts in family policy and law.