Family Law Commons^™

Women's Work, Jana B. Singer

Faculty Scholarship

No abstract provided.

Rethinking Alimony: Marital Decisions And Moral Discourse, Carl E. Schneider

Articles

The riddle of alimony is why one former spouse should have to support the other when no-fault divorce seems to establish the principle that marriage need not be for life and when governmental regulation of intimate relationships is conventionally condemned. Perhaps the most intelligent and probing recent attempt to solve that riddle is Ira Ellman's The Theory of Alimony. In this article, I have two purposes. The first is to ask some questions about Professor Ellman's admirable inquiry into this intricate and intractable problem. These questions are not intended to disprove "the theory." Professor Ellman has, at the least, identified …

Family Support Of The Disabled: A Legislative Proposal To Create Incentives To Support Disabled Family Members, Judith G. Mcmullen

University of Michigan Journal of Law Reform

Several authorities in the field of estate planning have examined in great detail the options currently available to the parents of disabled children. The options are limited. Ideally, laws should address the concerns of the families of disabled children while providing those families with the incentive to help bear the financial costs of providing for their children. New legislation is needed to achieve this dual objective. This legislation must establish a method by which parents can improve meaningfully the quality of a surviving disabled child's life without substantially increasing the social cost of supporting that disabled child. This Article proposes …

The Relevance Of Temporary Child Custody Orders To The Formation Of An Established Custodial Environment: A Model Statute For Uniform Application Under Michigan Law, Christine M. Drylie

University of Michigan Journal of Law Reform

This Note presents a Model Statute that clearly indicates when a court may find that an established custodial environment has arisen out of a temporary custody order. The Model Statute thus clarifies when it is appropriate to apply the clear and convincing evidentiary standard to situations involving temporary child custody orders. Part I of this Note describes the court's use of temporary custody orders to determine whether an established custodial environment exists. Part II sets forth the Model Statute, which integrates current case law into statutory language designed specifically for temporary custody situations. Part II also analyzes each section of …

Stepparents, Biologic Parents, And The Law's Perception Of 'Family' After Divorce, David L. Chambers

Book Chapters

The drama of divorce always contains at least two characters, a woman and a man, and often a third, a child born to the woman and the man. If you have read the other chapters of this book, you have rarely encountered any of the other persons who may be affected by a divorce, such as the children of either person from a prior marriage, or later spouses or partners of either party, or later born children of either party-all the persons who are or become stepchildren or stepparents. You have not encountered them because, in this country, with minor …

Law, Science, And History: Reflections Upon In The Best Interests Of The Child, Peggy C. Davis

Michigan Law Review

A Review of In the Best Interests of the Child by Joseph Goldstein, Anna Freud, Albert J. Solnit, and Sonja Goldstein

Legislatures And Legal Change: The Reform Of Divorce Law, Carl E. Schneider

Michigan Law Review

A Review of A Silent Revolution: Routine Policy Making and the Transformation of Divorce Law in the United States by Herbert Jacob

State-Interest Analysis In Fourteenth-Amendment "Privacy" Law: An Essay On The Constitutionalization Of Social Issues, Carl E. Schneider

Articles

Asked to resolve a social issue, Americans today turn readily to rights and to the Constitution that is understood to embody them. Many "vice" issues have long been thought particularly apt for a rights analysis. A constitutional resolution of vice issues is therefore inevitably a possibility, and its wisdom is inevitably a question. In this essay, I want to address that question by investigating an area of the law that has been recently constitutionalized family law. Family law is an example worth studying because rights thinking has won a considerable prominence in it: The Constitution has been used to transform …

Some Aspects Of Householding In The Medieval Icelandic Commonwealth, William I. Miller

Articles

There has been much, mostly inconclusive, discussion about how to define the household in a manner suitable for comparative purposes. Certain conventional criteria are not very useful in the Icelandic context, where it appears that a person could be attached to more than one household, where the laws suggest it was possible for more than one household to be resident in the same uncompartmentalised farmhouse; and where headship might often be shared. Definitions, for example, based on co residence or on commensalism do not jibe all that well with the pastoral transhumance practised by the Icelanders. Sheep were tended and …

The Legal History Of The Family, Lee E. Teitelbaum

Michigan Law Review

A Review of Governing the Hearth: Law and the Family in Nineteenth-Century America by Michael Grossberg

Improving Parent-Child Relationships Within The Divorced Family: A Call For Legal Reform, John S. Murray

University of Michigan Journal of Law Reform

In this Article, I address these three questions within the framework provided by the goal to be achieved. Part I outlines the present system and its problems, discussing both its effects on divorced family members and the problems inherent in the exclusive custody rule. Part II builds a proposal for legal reform by first considering the effect of conflict within the family, then identifying five value guidelines that should control the relationships, and finally describing the proposal in detail. Part III analyzes the pros and cons of the reform proposal to determine whether its adoption could establish a healthier environment …

Frye V. Frye: Maryland Sacrifices The Child For The Sake Of The Family

Maryland Law Review

No abstract provided.

Moral Discourse And Family Law, Lee E. Teitelbaum

Michigan Law Review

It seems appropriate in the early stages of an experiment in legal publishing to say something about it, if only because few forms have been as resistant to innovation as the law review. The creation of a section for correspondence regarding recent articles provides a medium for conducting just the national discourse which scholarship aspires to provoke and which does occur in private conversations or letters and, occasionally, in panels at professional meetings. To talk in print about a colleague's work - to praise it, qualify it, pursue suggested or alternate lines of thought - is not only an enjoyable …

Moral Discourse And The Transformation Of American Family Law, Carl E. Schneider

Michigan Law Review

Family law has undergone momentous change in recent decades. In this Article, Professor Schneider proposes that the transformation in family law can be understood as a diminution in the law's discourse in moral terms about the relations between family members and as a transfer of moral decisions from the law to the people the law once regulated. Professor Schneider identifies countertrends and limits to the changes he describes, and then investigates the reasons for the changes. He hypothesizes that four forces helped change family law and moral discourse within family law: the legal tradition of noninterference in family affairs; the …

Coercive Freedom: A Response To Professor Chambers, Robert A. Burt

University of Michigan Journal of Law Reform

At this happy gathering of the Michigan family it is fitting to begin by discussing the law of the family. David used the Marvin case as the central example of the various principles which he supported and opposed.

I want to focus on that case in order to consider whether he has successfully distinguished among these principles of state coercion and state facilitation of individuals' free choice. Let me begin by briefly restating David's view of the Marvin case, as I understand it.

Introduction, Michael S. Wald

University of Michigan Journal of Law Reform

Virtually everyone agrees that the family is a vital institution. Because of the perceived importance of the family to the state, our society always has tried to regulate both the form and functions of families. Laws prescribe who may form a family, the rights and obligations of family members towards each other, and the substantive and procedural rules for dissolving families.

The 'Legalization' Of The Family: Toward A Policy Of Supportive Neutrality, David L. Chambers

Articles

The word "legalization" has conflicting meanings. One, intended to sound the theme of this conference, conveys the notion of government regulation permeating some area of human activity. The other-as found, for example, in the phrase "the legalization of marijuana"-is a near opposite: the process of making legal or permissible that which. was previously forbidden, taking government out of that which it had previously controlled. The recent history of government's relationship to the family amply displays both sorts of legalization, both government's intrusion and its withdrawal, and reveals a paradoxical relation between the two-that as government frees people to live their …

The Myth Of State Intervention In The Family, Frances E. Olsen

University of Michigan Journal of Law Reform

Most people concede that there are times when state officials should intervene in the private family. Doctrines of family privacy are no longer thought to justify societal neglect of beaten wives or abused children. Yet society continues to use the ideal of the private family to orient policy. It seems important therefore to examine the concept of state intervention in the private family. In this essay, I argue that the private family is an incoherent ideal and that the rhetoric of nonintervention is more harmful than helpful.

Divorce Bargaining: The Limits On Private Ordering, Robert H. Mnookin

University of Michigan Journal of Law Reform

In an article published in the Yale Law Journal, I suggested an alternative perspective for family law scholars concerned with divorce. It emphasized negotiation, not adjudication; private ordering, not regulation. This change in emphasis seemed timely, if not overdue. Available evidence has long shown that the overwhelming majority of divorcing couples resolve the distributional questions concerning marital property, alimony, child support, and custody without bringing any contested issue to court for adjudication. Therefore, the primary impact of the legal system falls not on the small number of contested cases, but instead on the far greater number of divorcing couples …

Beyond State Intervention In The Family: For Baby Jane Doe, Martha Minow

University of Michigan Journal of Law Reform

Newspapers and broadcasters gave major billing to the story. Headlines announced: "The Life or Death Question of Baby Doe;" and "Baby Doe's Parents Call U.S. Action Intimidating." The medical care decisions about this infant born with spina bifida, microcephaly, and other severe disabilities, not only attracted mass media attention, but also led to both state and federal court proceedings. Legislative hearings raised the issue of her care. Many commentators debated what should happen to this infant of Long Island parents. This article instead will ask: what was all the attention about?; why are cases like this so riveting?; and might …

Exclusion Of Families With Children From Housing, George Palmer Schober

University of Michigan Journal of Law Reform

This Note attempts to resolve the most significant problems raised by discrimination against children in housing. Part I briefly analyzes the prevalence of child exclusion in different types of housing. It also provides a statistical analysis of the rental housing market to enable the reader to gauge the extent of the problem in one type of housing. Part II discusses policy arguments supporting both those who seek to exclude children and those who advocate government policies forbidding exclusion. Part III then examines the various approaches that states have adopted in this area, as well as federal implications of the issue. …

The Next Step: Definition, Generalization, And Theory In American Family Law, Carl E. Schneider

University of Michigan Journal of Law Reform

The Journal of Law Reform's Symposium on Family Law comes opportunely, in legal scholarship's spring of hope, its winter of despair, at a time when we have everything before us, when we have nothing before us. As is natural in such an epoch, reflection about legal scholarship, about its history, purposes, and methods, has flourished. This Symposium invites us to extend that reflection to family law, and this essay attempts, tentatively and speculatively, to accept the invitation.

The Treatment Of Mandatory Tax Withholdings In Calculating Afdc Benefits: Fairness As A Relevant Inference In Ascertaining Congressional Intent, Michigan Law Review

Michigan Law Review

This Note contends that the more appropriate construction of the statute is to view mandatory tax withholdings as nonincome and nonwork expense items. Part I traces the pre-OBRA legislative and administrative history and examines the judicial interpretations of 42 U.S.C. section 602(a)(7) "income" and section 602(a)(8) "earned income." It concludes that under the "availability" principle, tax withholdings have always been regarded as nonincome items distinct from work expenses. It contends that, notwithstanding contradictory language in the regulations implementing section 602(a)(8), the status of tax withholdings as nonincome items under section 602(a)(7) is controlling. Part II considers the legislative history and …

Rethinking The Substantive Rules For Custody Disputes In Divorce, David L. Chambers

Articles

A few states, mostly in the West and South, still retain a preference in custody disputes for placing young children with their mothers. In most other states, legislatures or courts have replaced the maternal presumption with a rule directing courts to be guided solely by the child's "welfare" or "best interests." A few legislatures have created a new preference for joint custody, directing courts to consider favorably requests by a parent for such arrangements, even over the objection of the other parent. This Article argues that the trend away from the maternal presumption is sensible, but that the current best-interests …

Blest Be The Tie That Binds, Joan Heifetz Hollinger

Michigan Law Review

A Review of The New Family and the New Property by Mary Ann Glendon

The Constitutional Status Of Marriage, Kinship, And Sexual Privacy -- Balancing The Individual And Social Interests, Bruce C. Hafen

Michigan Law Review

Today's lopsided competition between the individual and social interests has made the law a party to the contemporary haze that clouds our vision of what a family is or should be. In that sense, recent legal developments have contributed to the crisis Stanley Hauerwas has identified regarding American family life today - our inability to define "what kind of family should exist" and our inability to articulate ''why we should think of [the family] as our most basic moral institution."

In response to those two questions, this Article considers whether, as a constitutional matter, the courts should recognize claims by …

The Coming Curtailment Of Compulsory Child Support, David L. Chambers

Articles

Absent parents ought to contribute to the support of their minor children and states can appropriately invoke the force of law to compel them to do so. Stated so generally, even absent parents behind in their payments would probably agree. Since so many others agree as well, and since the numbers of single-parent children have mushroomed, systems of governmentally compelled support in this country have grown enormously. By the early part of the next century, if current laws remain in force and current population trends continue, most of America's children on any given day will be entitled to support from …

Parenting At And After Divorce: A Search For New Models, Carol S. Bruch

Michigan Law Review

A Review of Surviving the Breakup: How Children and Parents Cope with Divorce by Judith S. Wallerstein and Joan Berlin Kelly

Comparative Family Law: Law And Social Change?, Charles Donahue Jr.

Michigan Law Review

A Review of State, Law and Family: Family Law in Transition in the United States and Western Europe by Mary Ann Glendon

Rheinstein: Marriage Stability, Divorce, And The Law, Robert F. Drinan, Michael Wheeler

Michigan Law Review

A Book Review of Marriage Stability, Divorce, and the Law by Max Rheinstein