Family Law Commons^™

A Postcolonial Theory Of Spousal Rape: The Carribean And Beyond, Stacy-Ann Elvy

Michigan Journal of Gender & Law

Many postcolonial states in the Caribbean continue to struggle to comply with their international treaty obligations to protect women from sexual violence. Reports from various United Nations programs, including UNICEF, and the annual U.S. State Department Country Reports on Antigua and Barbuda, the Bahamas, Barbados, Dominica, Jamaica, and Saint Lucia (“Commonwealth Countries”), indicate that sexual violence against women, including spousal abuse, is a significant problem in the Caribbean. Despite ratification of various international instruments intended to eliminate sexual violence against women, such as the Convention on the Elimination of All Forms of Discrimination Against Women, Commonwealth Countries have retained the …

Changing Course In The Anti-Domestic Violence Legal Movement: From Safety To Security, Margaret E. Johnson

All Faculty Scholarship

No abstract provided.

Taming The Tigers: Domestic Violence, Legal Professionalism, And Well-Being, Jill C. Engle

Faculty Scholarship

Domestic violence kills thousands of American women every year. In 2013, one of them was my client. My law school clinic represented a woman divorcing her abusive husband after twenty years of marriage. Three days after we served him with the divorce complaint, he walked into the grocery store where she worked and shot her dead. He then turned the gun on himself, and died from self-inflicted gunshot wounds. The lead student working her case listened in horror as one of our local colleagues who had heard the breaking news described it to her in a phone call to the …

The Stereotyped Offender: Domestic Violence And The Failure Of Intervention, Carolyn B. Ramsey

Publications

Scholars and battered women's advocates now recognize that many facets of the legal response to intimate-partner abuse stereotype victims and harm abuse survivors who do not fit commonly accepted paradigms. However, it is less often acknowledged that the feminist analysis of domestic violence also tends to stereotype offenders and that state action, including court-mandated batterer intervention, is premised on these offender stereotypes. The feminist approach can be faulted for minimizing or denying the role of substance abuse, mental illness, childhood trauma, race, culture, and poverty in intimate-partner abuse. Moreover, those arrested for domestic violence crimes now include heterosexual women, lesbians, …

Danaher V. Hopkins (Sc 2879), Manuscripts & Folklife Archives

Manuscript Collection Finding Aids

Finding aid only for Manuscripts Small Collection 2879. Photocopy of decision of Kentucky Court of Appeals in Danaher v. Hopkins, rendered on 24 October 2014. The court rules on an appeal from the Warren Circuit Court regarding custody of the child of the parties in the case.

Divorce Involving Domestic Violence: Is Med-Arb Likely To Be The Solution?, Dafna Lavi

Pepperdine Dispute Resolution Law Journal

After an introduction in chapter one, the second chapter of this article presents statistics regarding the phenomenon of domestic violence and presents the definition of “violence” (with its attendant difficulties). The third chapter presents the existing problems regarding the judicial handling of divorce cases in general and those involving violence in particular. The fourth chapter analyzes the academic discourse regarding the issue of mediation of divorce cases involving violence (the position of the proponents and the opponents, as well as the problems of the current situation). The fifth chapter proposes med-arb as addressing the issue of divorce mediation in the …

Enjoining Abuse: The Case For Indefinite Domestic Violence Protection Orders, Jane K. Stoever

Vanderbilt Law Review

While countless studies demonstrate the complex and dangerous nature of intimate partner abuse, most jurisdictions permit only the entry of yearlong domestic violence protection orders. Judges may assume that danger ceases once the order takes effect, but evidence of the recurrent nature of violence demonstrates the importance of providing judicial protection over time. The brevity of domestic violence protection orders stands in stark contrast to the long duration of orders in other areas of the law, such as intellectual property, corporations, real property, and tax, where courts routinely enter permanent injunctions to protect individuals and businesses against "irreparable harm." What …

Reconsidering Dual Consent, Lisa V. Martin

Faculty Publications

Before a child may travel internationally, many countries require proof that both of the child’s parents consent. These “dual consent” requirements are aimed at preventing international child abduction, and many countries have adopted them as part of the coordinated effort to implement the 1980 Hague Convention on the Civil Aspects of International Child Abduction. In recent years, international air carriers have been urged to impose similar requirements for all children traveling on international flights. Although well-intentioned, dual consent requirements pose significant harms, especially to children of single parents and parents subjected to domestic violence. This article explores the unintended consequences …

Confrontation And The Re-Privatization Of Domestic Violence, Deborah Tuerkheimer

Michigan Law Review First Impressions

When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution of domestic violence predictably suffered as a result. But commentators at the time did not anticipate how the Court’s subsequent Confrontation Clause cases would utterly misconceive the nature of domestic violence, producing a flawed understanding of what constitutes a “testimonial” statement. Although the Court’s definition was especially problematic in the domestic violence context, its overly rigid approach finally became intolerable in Michigan v. Bryant, a 2011 case that did not involve domestic violence. In Bryant, the Court resurrected a public–private divide that …

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 …

A Home With Dignity: Domestic Violence And Property Rights, Margaret E. Johnson

All Faculty Scholarship

This Article argues that the legal system should do more to address intimate partner violence and each party's need for a home for several reasons. First, domestic violence is a leading cause of individual and family homelessness. Second, the struggle over rights to a shared home can increase the violence to which the woman is subjected. And third, a woman who decides to continue to live with the person who abused her receives little or no legal support, despite the evidence that this decision could most effectively reduce the violence. The legal system's current failings result from its limited goals-achieving …

Converge! Reimagining The Movement To End Gender Violence Symposium: Panel On Intersections Of Gender, Economic, Racial, And Indigenous (In) Justice, Margaret E. Johnson

All Faculty Scholarship

JOHNSON: This presentation envisions what a better domestic violence legal system might look like for persons subjected to domestic abuse who have not had their needs met or who have been harmed by the current legal system. The paper reframes the focus of the civil legal system from a paradigm of safety into a paradigm of security, including economic, housing, health, and relationship security. This reframing permits a focus on the domestic violence legal system and its intersecting systems of oppression such as race, gender, class, and ethnicity.

Currently, the domestic violence legal system targets short-term physical safety of the …

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 …

Family Mediation After Hendershott: The Case For Uniform Domestic Violence Screening And Opt-In Provision In Montana, Eduardo R.C. Capulong

Montana Law Review

Hendershott is a welcome reaffirmation of Montana’s stand against domestic violence: domestic violence is a public matter requiring serious judicial attention. Without a systematic screening method, however, courts are ill-equipped to disqualify cases for mediation. Montana needs a method that not only diagnoses for domestic violence, but also distinguishes among different types as many, if not most, cases would benefit from mediation. An absolute bar is not the solution. What is required is a broad-based outreach and educational effort that would support what I suspect mediators across the state are already doing: tailoring mediation to address the needs of domestic …

Promoting The General Welfare: Legal Reform To Lift Women And Children In The United States Out Of Poverty, Jill C. Engle

Faculty Scholarship

American women and children have been poor in exponentially greater numbers than men for decades. The problem has historic, institutional roots which provide a backdrop for this article’s introduction. English and early U.S. legal systems mandated a lesser economic status for women. Despite numerous legal changes aimed at combating the financial disadvantage of American women and children, the problem is worsening. American female workers, many in low-paying job sectors, earn roughly twenty percent less than their male counterparts. Nearly forty percent of single mothers and their children subsist below the poverty level. The recession exacerbated this problem, mostly because unemployment …

Theorizing From Particularity: Perpetrators And Intersectional Theory On Domestic Violence, Elizabeth L. Macdowell

Scholarly Works

The role of identity-based stereotypes about perpetrators in domestic violence cases has not received much attention in legal scholarship, which has instead focused on the identities of victims. However, stereotypes governing who is a recognizable victim (e.g., that victims are white, middle-class, passive, and dependent women in heterosexual relationships) cannot by themselves explain why nonconforming victims are sometimes successful in family court cases and other, more “perfect” victims are not. Drawing on intersectionality theory, which studies the ways experiences are shaped by the interaction of multiple identity categories, I argue that understanding this phenomenon requires a relational analysis that examines …

[Including But Not Limited To] Violence Against Women, Giovanna Shay

Faculty Scholarship

This Article highlights three developments in criminal justice in 2012 that marked the move toward more gender-inclusive anti-violence movements: the FBI’s adoption of a gender-neutral definition of rape; the debate regarding the reauthorization of the Violence Against Women Act (VAWA); and the promulgation of new Department of Justice (DOJ) regulations under the Prison Rape Elimination Act of 2003 (PREA). These recent developments reveal a growing movement towards more gender-inclusive conceptions of rape and intimate partner violence. The change to a more gender-inclusive approach will have many implications for criminal justice policy and institutions. One critical project is to ensure that …

Neofeminism, Aya Gruber

Publications

Today it is prosaic to say that "feminism is dead." Far from being moribund, feminist legal theory is breaking from its somewhat dogmatic past and forging ahead with new vigor. Many modern feminist legal scholars seek innovative ways to better the legal, social, and economic status of women while simultaneously questioning some of the more troubling moves of second-wave feminism, such as the tendency to essentialize the woman's experience, the turn to authoritarian state policies, and the characterization of women as pure objects or agents. These "neofeminists" prioritize women's issues but maintain a strong commitment to distributive justice and recognize …

Family Mediation After Hendershott: The Case For Uniform Domestic Violence Screening And Opt-In Provision In Montana, Eduardo R.C. Capulong

Faculty Law Review Articles

In Hendershott v. Westphal, the Montana Supreme Court held that § 40-4-301(2) of the Montana Code Annotated absolutely bars mediation in family law cases involving domestic violence. Yet neither the Court nor the statute prescribes a method by which to screen for such cases. In this article, the author argues that a uniform, statewide screening method is the only way by which to implement this policy. The author also argues that Hendershott should be interpreted narrowly and Montana should allow parties to opt in to mediation and other forms of alternative dispute resolution. The Court's understanding of domestic violence …

The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey

Publications

This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims of intimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth.

While the situation that gave rise to the battered women's movement in the 1970s is often presumed …

Re-Problematizing Anger In Domestic Violence Advocacy, Deborah Cantrell

Publications

Feminist advocacy commits wholeheartedly to a woman’s autonomous choices about how to respond to domestic violence, prioritizing a woman’s own lived experiences and her own assessments of her needs and goals over other supposedly “objective” assessments. Feminists robustly privilege individual choices of women in part as a way of revealing anti-woman bias in the dominant, patriarchal legal system as well to reject male constructions of feminine behavior. In feminist domestic violence advocacy, scholars and advocates have argued that a woman’s autonomous choices include capacious choices about the kinds of emotions that a woman might express about being subjected to abuse. …

Naming The Judicial Terrorist: An Exposé Of An Abuser's Successful Use Of A Judicial Proceeding For Continued Domestic Violence, Donna King

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.

Teaching Social Justice Lawyering: Systematically Including Community Legal Education In Law School Clinics, Margaret Martin Barry, A. Rachel Camp, Margaret E. Johnson, Catherine F. Klein, Lisa V. Martin

All Faculty Scholarship

There is a body of literature on clinical legal theory that urges a focus in clinics beyond the single client to an explicit teaching of social justice lawyering. This Article adds to this emerging body of work by discussing the valuable role community legal education plays as a vehicle for teaching skills and values essential to single client representation and social justice lawyering. The Article examines the theoretical underpinnings of clinical legal education, community organizing and community education and how they influenced the authors’ design and implementation of community legal education within their clinics. It then discusses two projects designed …

Surviving Castle Rock: The Human Rights Of Domestic Violence, Max D. Siegel

Student Articles and Papers

In 2005, the Supreme Court of the United States decided Town of Castle Rock v. Gonzales and held that Jessica Gonzales did not have a constitutional right to police enforcement of a restraining order. The decision highlighted the Court’s reluctance to recognize citizens’ affirmative rights, fortifying a deeply ingrained conceptualization of the Constitution of the United States as a “Negative Constitution” that creates a government with restraints on its actions and extremely limited obligations to its citizens. In August 2011, the Inter-American Commission on Human Rights released a report publicizing its finding that by failing to take affirmative measures to …

Consumer Rights Screening Tool For Domestic Violence Advocates And Lawyers, Leah A. Plunkett, Erica A. Sussman

Law Faculty Scholarship

The information is this document is intended for use by advocates and attorneys working with survivors of domestic violence in understanding the common types of consumer problems faced by the survivors. The document provides an overview of the common consumer issues faced by survivors and offers solid guidance on how advocates and attorneys can identify these issues when working the survivors. The report begins with an overview of the role of economic abuse in cases of domestic violence. This is followed by a brief look at common consumer issues faced by survivors that include managing household income and expenses, credit …

Look Before You Leap: Court System Triage Of Family Law Cases Involving Intimate Partner Violence, Nancy Ver Steegh

Faculty Scholarship

Family courts are increasingly interested in matching parties with appropriate dispute resolution processes and related services. For many parties, especially those who are self-represented, triage of cases could be helpful and efficient. Nevertheless, implementation of triage in complex cases may bring unintended repercussions, and in the spirit of averting these, this Article identifies and discusses challenging issues that become apparent when triage systems are viewed through the lens of intimate partner violence.

Some questions about triage in the context of intimate partner violence were raised at the Wingspread Conference on Domestic Violence and Family Courts and explored more fully by …

Representing Children At The Intersection Of Domestic Violence And Child Protection, Annette Appell, Joshua Gupta-Kagan

Faculty Scholarship

Reflecting evolving norms surrounding the legitimacy of intimate violence, the law has made steady progress toward acknowledging that domestic violence is not a private family matter, but instead demands public assistance to help survivors of that violence protect themselves and their children. Most recently, child advocates, juvenile court judges, and domestic violence advocates have joined in a concerted effort to address the co-occurrence of domestic violence and child abuse and neglect, coordinate responses and remedies among the various court systems, and develop methods to avoid re-victimizing mothers and children through legal process. This article traces civil remedies and barriers domestic …

Introduction: Jessica Lenahan (Gonzales) V. United States: Implementation, Litigation, And Mobilization Strategies, Caroline Bettinger-López

Articles

No abstract provided.

Renegotiating The Social Contract, Jennifer S. Hendricks

Publications

This review of The Supportive State: Families, Government and America’s Political Ideals highlights Maxine Eichner’s important theoretical contributions to both liberal political theory and feminist theory, applauding her success in reforming liberalism to account for dependency, vulnerability, and families. The review then considers some implications of Eichner’s proposals and their likely reception among feminists. It concludes that The Supportive State is a sound and inspiring response to recent calls that feminist theory move from being strictly a school of criticism to developing a theory of governance.

How House Bill 2063 And The Expansion Of Access To Protective Orders Could Have Saved Yeardley Love's Life, Amy Weiss

Law Student Publications

This paper will examine Virginia protective order law before the enactment of House Bill 2063, how Yeardley Love’s death was a catalyst for reform of the law, how the law will change under House Bill 2063, and possible future developments in legislative reform that could further help victims of intimate partner violence.