Family Law Commons^™

The Probate Definition Of Family: A Proposal For Guided Discretion In Intestacy, Susan N. Gary

University of Michigan Journal of Law Reform

Intestacy statutes may not match the wishes of many people who die intestate. Changes to the Uniform Probate Code (UPC) include or exclude potential takers, as the drafters attempt to bring the UPC provisions closer to the intent of more intestate decedents. As the UPC tries to fine-tune the intestacy statutes, however, family circumstances continue to get more and more complicated. Families headed by unmarried couples, blended families with children from multiple marriages, and families in which adults raise children who are not legally theirs, have become commonplace. For some decedents, non-family friends and caregivers may be more important than …

Renegotiating The Social Contract, Jennifer S. Hendricks

Michigan Law Review

Despite an economic recession and record levels of personal bankruptcy filings due to healthcare costs, President Obama's healthcare reform initiative sparked a season of protests. A "public option"-not to mention a single-payer system-was off the table even before the discussion began. As the question of the reform package's constitutionality wound its way to the Supreme Court, it became clear that a substantial number of American people do not want their government helping them stay alive. In this climate, it is difficult to imagine an America in which the state is an accepted partner in meeting the challenges and responsibilities of …

Disabled Kids And Their Moms: Caregivers And Horizontal Equity, Karen S. Czapanskiy

Faculty Scholarship

No abstract provided.

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 …

Against The New Maternalism, Naomi Mezey, Cornelia T. L. Pillard

Michigan Journal of Gender & Law

Parenting is a major preoccupation in law and culture. As a result of efforts of the American women's movement over the past forty years, the legal parent is, for the first time in history, sex-neutral. Our law has abandoned restrictions on women's education, employment, and civic participation that sprang from and reinforced beliefs about the primacy of motherhood as women's best destiny. On the flip side, U.S. law now also generally rejects formal constraints on men's family roles by requiring sex-neutrality of laws regulating custody, adoption, alimony, spousal benefits, and the like. The official de-linking of presumptive parenting roles from …

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.

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, …

Legislating After Janice M.: The Constitutionality Of Recognizing De Facto Parenthood In Maryland, Rachel Simmonsen

Student Articles and Papers

No abstract provided.

The "Enlightened Barbarity" Of Inclusive Fitness And Wrongful Death: Biological Justifications For An Investment Theory Of Loss In Wycko V. Gnodtke, Ryan Shannon

University of Michigan Journal of Law Reform

Wrongful death laws should permit and encourage courts and juries to consider the survivors' investment in decedents when determining wrongful death damages, given new biological justifications for this theory of loss. The investment theory of damages, which permits an award of damages based on the investment of financial resources relatives make in one another, originated in Michigan's courts in the early 1 960s, but as of present day has been largely abrogated. In the context of modern understandings of evolutionary biology, including kin selection theory and sociobiology, the investment theory of recovery accords with the goals of corrective justice as …

Purple Haze (Book Review), Clare Huntington

Faculty Scholarship

This is a review of Red Families v Blue Families: Legal Polarization and the Creation of Culture. By Naomi Cahn & June Carbone. New York: Oxford University Press. 2010

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 …

Families For Tax Purposes: What About The Steps?, Wendy C. Gerzog

University of Michigan Journal of Law Reform

At least 4.4 million families in the United States are blended ones that include stepchildren and stepparents. For tax purposes, these "steps" receive preferential treatment as a result of their status because, on the one hand, they are treated as family members for many income tax benefit sections, but on the other hand, are excluded from the definition of family member for business entity attribution purposes and for gift and estate tax anti-abuse provisions. In the interests of fairness and uniformity, steps should be treated as family members for all tax purposes where they act like their biological or adoptive …

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 …

Challenging Monohumanism: An Argument For Changing The Way We Think About Intercountry Adoption, Shani King

Michigan Journal of International Law

In Part I, this Article provides a brief history of ICA. In Part II, using a post-colonialist theoretical framework, the work of legal scholars from the past twenty years on the subject of ICA is explored. This analysis exposes the centrality of MonoHumanism to our discourse on ICA. In Part III, this Article illustrates how our discourse regarding intercountry adoption contributes to our violating the rights of children (and families) as they are defined in the CRC. Lastly, in Part IV, this Article explores how this argument fits into the current and somewhat polarized debate on ICA and how the …

The Family Law Doctrine Of Equivalence, Amy L. Wax

Michigan Law Review

Students of patent law learn the doctrine of equivalents. According to the doctrine, a patent protects an invention that does "the same work in substantially the same way, and accomplish[ es] substantially the same result," as the device described in the patent, even if it differs "'in name, form, or shape." In her new book, Nancy Polikoff has fashioned something like a parallel doctrine for families. Let's call it (with a slight play on words) the family law Doctrine of Equivalence. In today's world, according to Polikoff, a broad set of relationships now plays the same role as marriage and …

Protocol For Attorneys Representing Parents In Child Protective Proceedings, Frank E. Vandervort, Vivek S. Sankaran

Other Publications

This protocol is intended to guide attorneys through the strategic decisions they will need to make while representing parents in child protective cases. The protocol does not provide a comprehensive action-step checklist. Parents’ attorneys can find that kind of guidance in other resources, including the “How-To-Kit: Representing Parents in Child Protective Proceedings” by the Institute of Continuing Legal Education; “Guidelines for Achieving Permanency in Child Protection Proceedings” by Children’s Charter of the Courts of Michigan; and the American Bar Association’s “Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases.”1 For its part, this protocol delves more substantively …

Legal Status And Effect On Children, Margaret F. Brinig, Steven L. Nock

Journal Articles

One of the haunting claims of each poor, unmarried mother in Edin and Kefalas' Promises I Can Keep is that at least she can guarantee she will love her child, even though she cannot promise to make a lifelong commitment to a mate. That love, each young mother says, will be a sustaining gift both to her and the child. Similarly, in work done by sociologists McLanahan and Garfinkel to counteract the claim that it was not single parenting that made children's prospects dim, but poverty, sociologists have found that many of the bad effects of single parenting go away …

Valuing All Families: An Introduction To The 2008 Santa Clara Law Review Symposium, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

The family has changed over time, as has the law concerning families and relationships. Thank goodness. Until recent decades, the law punished nonmarital sex, delineated separate spheres for men and women, and restricted the grounds for ending marriage. The sexual revolution, feminism, and the demand for divorce were the social phenomena that facilitated these changes. Today we take for granted that marriage is not the right dividing line for the rights and obligations of parents. We now must revise our laws to protect the economic security and emotional peace of mind of the full variety of today's families and relationships.

Measuring The Next 30 Years, Beth Locker, Andrew Barclay

University of Michigan Journal of Law Reform

The last thirty years have seen many changes in the field of child protection, as child welfare law and policy have been undergoing nearly constant change. Those changes, however, have rarely been supported by data or scientific research; rather, they seem to have been largely driven by individual perception of events and gut instincts resulting in what has become essentially a folklore-based system. By focusing on data and scientific research, we hope for better outcomes, but short of that, we at least hope to know whether, and why, outcomes change. The move towards data collection and analysis has begun, but …

The Multiethnic Placement Act: Threat To Foster Child Safety And Well-Being?, David J. Herring

University of Michigan Journal of Law Reform

Despite the efforts of public officials to reduce the time children spend in foster care, many children live in foster homes for a substantial portion of their childhoods. In fact, a child placed in a foster home may remain in that home for an extended period, with a significant possibility of remaining there permanently. In light of this situation, the decision to place a child in a particular foster home is extremely important.

The federal Multiethnic Placement Act ("MEPA ") significantly affects foster care placement decisions. This law expressly prohibits public child welfare agencies from delaying or denying a child's …

Child Well-Being: A Beneficial Advocacy Framework For Improving The Child Welfare System?, Sarah H. Ramsey

University of Michigan Journal of Law Reform

This Article explores the advantages and disadvantages of child well-being as a child welfare system advocacy framework. It examines the use of the concept of child well-being as a social indicator and the importance of poverty rates to the child welfare system. It also examines the use of child well-being as an outcome measure for the child welfare system, in particular in Child and Family Service Reviews ("CFSRs") and court evaluations. The possible impact of the child wellbeing concept is considered in the context of several programs, including income supports and problem-solving courts. The Article concludes that, overall, well-being provides …

Neither Dyad Nor Triad: Children's Relationship Interests Within Kinship Caregiving Families, Sacha M. Coupet

University of Michigan Journal of Law Reform

Utilizing a research design lens as a platform for exploring children's relationship rights, this Essay examines first, the limitations of a rights-based framework and second, insufficient participation by children in decision-making regarding their access to and interest in relationships with significant others. This Essay posits that neither the dyadic rights-based framework in domestic relations nor the, ostensibly, triadic one in child welfare serve the interests of children, since children's rights are invariably subordinated to those of adults and the state. In place of a rights-based approach, this Essay endorses an interests-based model more attuned to the holistic aim of child …

Advancing The Future Of Family Violence Law Pedagogy: The Founding Of A Law School Clinic, Melissa Breger, Theresa Hughes

University of Michigan Journal of Law Reform

This Article advocates for law schools to integrate family violence law further into their curricula and proffers reasons why family violence training is critical in preparing students to practice law. The authors posit that although live-client specialty clinics are the most in-depth way to teach family violence law, the topic should also be offered through doctrinal courses, externships, or general subject matter clinics. The Article then describes the authors' own experiences in cofounding a child advocacy clinic in New York City, outlining the steps taken to transform a vision into the actual formation of a clinic. Finally, the authors conclude …

Looking Ahead: A Personal Vision Of The Future Of Child Welfare Law, Donald N. Duquette

University of Michigan Journal of Law Reform

The participants in the Thirtieth Anniversary Celebration of the Child Advocacy Law Clinic were all challenged to envision the future of child welfare and to address these questions: What should the law and legal institutions governing children's rights and child and family welfare look like in thirty more years? What steps are necessary to achieve those goals? After setting out the historical and optimistic circumstance in which the Child Advocacy Law Clinic was founded, this Article responds to the organizing questions by presenting the author's vision of the future of child welfare law and practice. When families fail children, what …

Adoption, Elizabeth Samuels

All Faculty Scholarship

In historical terms, the legal institution of adoption in the United Slates is relatively new. It was between the mid-1800s and the 1920s that the states began to pass laws providing for the adoption of children. Before then children had been adopted informally and in some instances by individual legislative acts, or they had come to live with other families under indenture contracts or as a result of legislation authorizing charitable organizations to place children. Under these new adoption statutes, initially the court records of adoptions were not subject to confidentiality, and adopted children were not issued new birth certificates. …

Protecting Abused, Neglected, And Abandoned Children: A Proposal For Provisional Out-Of-State Kinship Placements Pursuant To The Interstate Compact On The Placement Of Children, John C. Lore Iii

University of Michigan Journal of Law Reform

The Interstate Compact on the Placement of Children deals with the interstate placement of abused, neglected and abandoned children. This article addresses the critical need for reform of the Interstate Compact and attempts to tackle its most serious flaw-the lack of a provisional placement for children awaiting approval of out-of-state kinship placements. The recently enacted Safe and Timely Interstate Placement of Foster Children Act of 2006 (the "Act") is seriously flawed to the detriment of one of our country's most vulnerable groups and the very population it is designed to protect-children who have been abused, neglected and abandoned. This article …

Standing In Babylon, Looking Toward Zion, Katherine R. Kruse

Scholarly Works

This article defends the triumph of vision at the 2006 UNLV Conference on Representing Children in Families by examining the interrelationship between idealism and realism in the definition of lawyers' roles and the importance of idealized visions to the process of reforming dysfunctional systems. This article suggests that the vision of lawyering for children sketched in the UNLV Recommendations--though based in idealism--is both deeply realistic and ultimately practical. This article thus affirms the choice of the group of idealists who stood together for a few days in modern-day Babylon to keep their eyes trained on the vision of Zion as …

Federal Child Welfare Law And Policy: Understanding The Federal Law And Funding Process., Miriam Rollin, Frank Vandervort, Ann M. Haralambie

Book Chapters

This chapter provides an overview of federal and uniform statutes that impact the practice of child welfare law.

Making Work Pay: Promoting Employment And Better Child Support Outcomes For Low-Income And Incarcerated Parents, Ann Cammett

Scholarly Works

The New Jersey Institute for Social Justice prepared this report in response to concerns about child support debt—in particular as it creates a barrier to employment for low-income parents and works at cross-purposes with the goals of the child support program. Drawing on examples from other states, this report identifies a range of policies that inform child support practice in New Jersey and offers administrative, legislative, and programmatic solutions to address child support arrears owed by low-income and incarcerated parents.

Balancing The Demands Of The Workplace With The Needs Of The Modern Family: Expanding Family And Medical Leave To Protect Domestic Partners, Kimberly Menashe Glassman

University of Michigan Journal of Law Reform

This Note addresses the importance of expanding the federal Family and Medical Leave Act and state family and medical leave laws to protect domestic partners. Congress passed the Family and Medical Leave Act to allow workers to balance their work lives and family lives by granting workers the right to take leave time to care for an immediate family member in times of medical necessity. The term 'family member," however, is generally limited to relation y blood, adoption, or marriage, and does not include an individual's domestic partner. The concept of family has evolved in our legal system and is …