Family Law Commons^™

Cracking The Foundational Myths: Independence, Autonomy, And Self-Sufficiency, Martha Albertson Fineman

Faculty Articles

In this Article, I will bring into view the family, or more explicitly, the dependency hidden within the assumed family. Policy development and social theory considerations should center on assessing the appropriateness of the aspirations and expectations we have for the family. This assessment is crucial to one of the most compelling problems facing society at the end of the Twentieth Century-the increasing inequitable and unequal distribution of societal resources and the corresponding poverty of women and children.

Lies Between Mommy And Daddy: The Case For Recognizing Spousal Emotional Distress Claims Based On Domestic Deceit That Interferes With Parent–Child Relationships, Linda L. Berger

Scholarly Works

This Article discusses whether courts should recognize spousal IIED causes of action based on intentional lies that interfere with the establishment or the continuation of parent-child relationships. The Article begins with an overview of the currents in family law and tort law that converge in domestic tort actions. Next, it reviews the current status of a particular domestic tort: spousal emotional distress. It then examines the evolution of emotional distress claims based on interference with parent-child relationships, moving from California's early and continuing rejection of these claims to the very recent recognition of these claims by other states. Finally, it …

Adoption, Identity, And The Constitution: The Case For Opening Closed Records, Naomi R. Cahn, Jana B. Singer

Faculty Scholarship

No abstract provided.

Substance Abuse, Families, And The Courts, Margarete Parrish

Journal of Health Care Law and Policy

No abstract provided.

Modern Coverture: Old Wine In Old Bottles, William P. Lapiana

Articles & Chapters

No abstract provided.

Parental Rights And The Ugly Duckling, Margaret F. Brinig, F. H. Buckley

Journal Articles

Hans Christian Andersen's "The Ugly Duckling" is best remembered for its moral, "To be born in a duck's nest, in a farmyard, is of no consequence to a bird, if it is hatched from a swan's egg." Having read and thought about this story many times, we should like to suggest another, less heart-warming, interpretation. The story of the Ugly Duckling, that most resilient of cygnets, masks the tragedy of children who suffer abuse. Its message, that personal spirit will triumph when a child grows up, misrepresents the experience of many victimized children. If we wait for the child to …

Count The Brown Faces: Where Is The “Family” In The Family Law Of Child Protective Services, Ana M. Novoa

Faculty Articles

Can a system developed from intrusion into the lives of the poor be reconstituted to provide services that will nurture the quality of the lives of all children? If not, then the system should be scrapped and start over. 
Child Protective Services (CPS) has never recovered from its roots in distrust and discrimination against the poor and its mistaken defense of a false moral high-ground, which is perceived from the narrow focus of child-saving rather than on the legitimate and long term needs of children. The foster care system’s lack of concern for natural parents reflects centuries of a dual …

Suffer The Little Children: Justifying Same-Sex Marriage From The Perspective Of A Child Of The Union, Lewis A. Silverman

Scholarly Works

No abstract provided.

Crime Or Punishment: The Parental Corporal Punishment Defense - Reasonable And Necessary, Or Excused Abuse, Kandice Johnson

Faculty Publications

The parental right to use physical force to discipline and restrain children is a privilege firmly rooted in the American system of jurisprudence. This privilege is often asserted as a defense when parents are charged with a crime of aggression against their child. While the privilege to use disciplinary force is universally recognized as a defense in criminal actions, it is equally acknowledged that child abuse is a pervasive reality of American life. This article postulates that current laws, addressing assertion of the parental privilege defense in criminal actions, fail either to provide adequate guidance to parents or to sufficiently …

Kentucky Law Survey: Family Law, Louise Everett Graham

Law Faculty Scholarly Articles

This Article addresses some of the family law developments occurring since the Kentucky Law Journal last published a Kentucky law survey. Space limitations preclude discussion of every post-1985 change. Instead, this Article focuses on general trends, significant cases, and legislative developments.

Inquiry into family law developments in Kentucky is timely, not only because of the social importance of family relations, but also because of other contemporaneous efforts at family law reform. The American Law Institute ("ALl") is currently considering a final draft of principles governing family dissolution. That draft, and the discussions that surround its ultimate acceptance or rejection by …

Two Parents Are Better Than None: Whether Two Single, African American Adults--Who Are Not In A Traditional Marriage Or A Romantic Or Sexual Relationship With Each Other--Should Be Allowed To Jointly Adopt And Co-Parent African American Children, Angela Mae Kupenda

Journal Articles

This article proposes an additional adoption model to allow joint adoption and co-parenting by single African Americans who are not in a traditional marriage relationship with each other and not in a romantic or sexual relationship with each other. Under this model, for example, two friends, two sisters, two brothers, a sister and a brother, etc., could jointly adopt and co-parent a child. If some new model such as this one is not devised, many single blacks may hesitate to take on the entire adoption responsibility alone. As a result, many black children will continue to go without any parents. …

Dutch Uncle Sam: Immigration Reform And Notions Of Family, Lolita Buckner Inniss

Publications

No abstract provided.

The Removal Of Adam's Rib: The Creation And Polarization Of Male And Female Virtues, Ana M. Novoa

Faculty Articles

Soft virtues, normally associated with women, have been deemed to have no legal, market or public value, and this has caused problems within American society. The devaluation of cooperative and nurturing virtues, coupled with the dangerous myth of independence and self-reliance, and general acceptance of consumption as a positive attribute, have had a profound effect on American society as a whole and, in particular, on general views on the care of children and other dependent members of our society. Prior to the Industrial Revolution, the composition and character of the family were very different because the family was not a …

"Irresponsible" Reproduction, Linda C. Mcclain

Faculty Scholarship

In recent years, there have been countless calls for reversing the rise in irresponsibility in American society.' Calls for restoring personal responsibility in both private and political life sound from both of the major political parties as well as from various cultural critics, pundits, and academics. 2 Proponents of a return to personal responsibility wage their battle on numerous fronts, advocating a cultural revolution, a moral revival, and a recovery of "virtue" to bring about a reformation of attitudes and behaviors regarded as troublesome. 3 Many voices now urge that law and public policy should encourage, or require, personal responsibility …

Children's Rights In Intercountry Adoption: Towards A New Goal, S. I. Strong

Faculty Publications

Each year, hundreds of thousands of children languish in foster or institutional care worldwide, while at the same time, thousands of adults, married and unmarried alike, are denied children because of “shortages.” How did this tragedy occur, and why does it continue to be repeated daily in countries around the world? The unfortunate truth is that many of the legal and societal norms now in place effectively prohibit needy children from finding suitable homes. While potential parents in Western countries cry out for babies of their own, millions of children live in physical and psychological poverty in underfunded orphanages around …

Masking Dependency: The Political Role Of Family Rhetoric, Martha Fineman

Faculty Articles

In this Article, I want to explore the schizophrenic nature of the interaction between social ideals and empirical observations concerning dependency. I am particularly interested in the family as a social and political construct that facilitates this interaction. Specifically, I argue that continued adherence to an unrealistic and unrepresentative set of assumptions about the family affects the way we perceive and attempt to solve persistent problems of poverty and social welfare. In the normative conclusions that are generated and reiterated in political and popular discussions about family, we assess the "justice" of particular policies addressing societal problems with reference to …

Marriage And Divorce: Legal Foundations, Azizah Y. Al-Hibri

Law Faculty Publications

This unique reference is a comprehensive encyclopedia dedicated to the institutions, religion, politics, and culture in Muslim societies throughout the world. Placing particular emphasis on the nineteenth and twentieth centuries, The Oxford Encyclopedia of the Modern Islamic World contains over 750 articles in four volumes on Muslims in the Arab heartland as well as South and Southeast Asia, Europe, and the Americas.

An invaluable resource, the Encyclopedia offers extensive comparative and systematic analyses of Islamic beliefs, institutions, movements, practices, and peoples on an international scale. The alphabetically arranged articles range from brief 500-word essays to major interpretive and synthetic treatment …

"Running Hard To Stand Still": The Paradox Of Family Law Reform, Mary Jane Mossman

Dalhousie Law Journal

This essay explores the paradox of family law reform in common law Canada, focusing particularly on reforms relating to family property and inter-spousal support in the decades after the first federal Divorce Act of 1968. The paradox of this law reform activity is well-expressed in Carol Smart's colourful phrase about the (lack of) impact of law reform for women in the United Kingdom. In her view, while it is inaccurate to say that nothing has been done to improve the position of women, it is equally impossible to demonstrate that there has been any linear development of progressive legislation; in …

Finite Horizons: The American Family, Margaret F. Brinig

Journal Articles

In the summer of 1992, while I was reading and thinking about Martha Minow's latest book, I was struck with my double role as a responsible adult. Vacationing in the north woods of Wisconsin with my mother, I suddenly needed to care for her as well as my own small children. Generational connections, important before, swelled hugely in crisis. As I caught my breath between hospital runs and kids' activities, I was thankful that I had received so much from my parents during my childhood. And I resolved to rethink the relationships between parents and children, adults and elderly.

Policy …

Rethinking Wrongful Life: Bridging The Boundary Between Tort And Family Law, Philip G. Peters Jr.

Faculty Publications

Traditional tort law embraces an unduly narrow notion of corrective justice that fails to resolve wrongful life disputes satisfactorily. The unique circumstances associated with the creation of a new life bring into play another, broader paradigm of responsibility: one that resembles family law more than tort. From this perspective, children whose birth can be attributed to tortious conduct have a strong moral claim for supplemental child support whenever a tortfeasor's interference with the pro- creative rights of the parents foreseeably results in the birth of a child and that child's parents cannot provide adequate support. In such an instance, the …

Evolution And Revolution In Family Law, Victoria M. Mather

Faculty Articles

Family law has significantly changed over the last twenty-five years, and certain areas will likely continue to change. Family law tends to follow, rather than lead, social upheaval and adjustment in family decisions and structures. The most important legal changes in family law are a result of massive shifts in American social, political, and economic constructs in the 1960s, 1970s, and 1980s.

Family law will continue to evolve because of three critical developments. First is the expansion of the concept of what constitutes a “family” in the modern context. Next is the treatment of children as autonomous individuals, separate and …

Implementing Custody Mediation In Family Court: Some Comments On The Jefferson County Family Court Experience, Louise Everett Graham

Law Faculty Scholarly Articles

The Jefferson Family Court's custody mediation service was developed as part of a larger program creating the first family court system in Kentucky. The mediation service's connection with the Family Court has influenced both practical and policy aspects of its development. Any description of the mediation project necessarily entails some description of the court system that created it.

This Article describes the structure of the Jefferson Family Court and the custody mediation process as it has developed in Jefferson County. A review of one community's approach to custody mediation may be useful not only as a blueprint for a system's …

Starting Down The Road To Reform: Kentucky's New Long-Arm Statute For Family Obligations, Louise Everett Graham

Law Faculty Scholarly Articles

Kentucky has long needed a comprehensive family law provision for its long-arm statute. Before the general long-arm statute was amended by the 1992 General Assembly, it addressed only a narrow class of paternity cases among its specific jurisdictional provisions, ignoring the need for long-arm jurisdiction in other domestic relations cases. A second long-arm statute provided jurisdiction over some nonresidents to establish or enforce child support obligations. In the contexts of divorce and child support, Kentucky's failure to claim constitutionally available jurisdiction deprived Kentucky residents of important protection.

Recent amendments to Kentucky statutes fill previous gaps and expand Kentucky's jurisdiction in …

The Politics Of God And The Woman's Vote: Religion In The American Suffrage Movement, 1848-1895, Elizabeth B. Clark

Publications

This thesis examines the role of religion— both liberal and evangelical Protestantism— in the development of a feminist political theory in America during the nineteenth century and how that feminist theory in turn helped to transform American liberalism. Chapter 1 looks for the genesis of women's rights language, not in the republican rhetoric of the Founding Fathers, but in the teachings of liberal Protestantism and its links with laissez-faire economic theory. The antebellum understanding of rights is shown to have encompassed social and civil rights alike, and to have arisen from a vision of the mutual benefits that derived from …

Uniform Status Of Children Of Assisted Conception Act: A View From The Drafting Committee, Robert C. Robinson, Paul M. Kurtz

Scholarly Works

The "Status of Children of Assisted Conception" Act was designed primarily to effect the security and well-being of children born and living in our midst as a result of assisted conception. The Conference's Executive Committee and the general Conference, considering the plight of these children, some with five biological parents, some with no readily identifiable biological parents, and some with other deprivations, determined that the greatest priority and first call on the energy and talent of the Drafting Committee was to provide an act which addressed these and other deficiencies.

There was great urgency on the part of the Drafting …

The State's Interest In The Preservation Of Life: From Quinlan To Cruzan, Philip G. Peters Jr.

Faculty Publications

This article considers the kinds of limits on withholding that each of these policies might plausibly support, compares these limits to the judicial approaches taken in the refusal of treatment cases, and explores how apparent conflicts between these state goals and the interests of the patients might be resolved. Because this article focuses exclusively on the state's interests, however, it necessarily isolates and considers only one portion of a complex problem involving the interests of patients, families, providers, and others. No comprehensive examination of the nature and weight of the patient's interests or those of other involved parties is attempted. …

Civil Claims Of Adults Molested As Children: Maturation Of Harm And The Statute Of Limitations Hurdle, Carolyn B. Handler

Fordham Urban Law Journal

This Note, focusing on New York law, demonstrates that the statute of limitations is the primary procedural difficulty that adult victims of childhood incest abuse encounter in bringing their civil claims. Specifically, the traditionally short statutes of limitations for assault, battery and infliction of mental distress often preclude the adult victim of childhood incest from seeking a remedy within the statutorily prescribed time. Part II of this Note presents an overview of the nature of incest abuse and its resultant injuries and considers the purposes and policies behind statutes of limitations. Part II also sets out the various common law …

Whose Child Is It Anyway? Awarding Joint Custody Over The Objection Of One Parent, Daniel R. Mummery

Fordham Urban Law Journal

This Note addresses issues of joint custody of children in divorce cases where one parent objects to that arrangement. Part I examines New York's approach to custody, and finds it unduly restrictive and thus likely to inhibit full consideration of joint custody as an alternative. Part II of the Note discusses the historical background of child custody and explains the emergence of joint custody as a result of perceived inadequacies inherent in the sole custody arrangement. Part III discusses different approaches taken by various jurisdictions to the controversial issue of awarding joint custody over the objection of one parent, and …

The Law Of Alimony, Christopher L. Blakesley

Scholarly Works

No abstract provided.

Using Formulas To Separate Marital And Nonmarital Property: A Policy Oriented Approach To The Division Of Appreciated Property Upon Divorce, Louise Everett Graham

Law Faculty Scholarly Articles

Over the past ten years every writer venturing to discuss domestic relations must have been tempted to emphasize the importance of his or her work by opening with mention of the growing number of divorce cases confronting the court system. Beyond its numerical impact upon the judicial process, however, divorce litigation provides an important opportunity for the study of property rights and the institutions from which those fights are derived. Divorce cases increasingly involve difficult and complex questions concerning the marital property rights of the marriage partners. The importance of marital property cases is broader than the individual rules that …