Family Law Commons^™

The Family Law Canon In A (Post?) Racial Era, Shani M. King

UF Law Faculty Publications

While the debate about a post-racial society rages, our justice system continues to operate in a way that is race-conscious. It seems as though most of the discussion about race and the justice system concerns criminal justice, juvenile justice, education, and immigration. But race consciousness also impacts family law. Nonetheless, the family law canon does not scrutinize race-based disparities in laws, procedures, and outcomes, and that omission feeds a mistaken notion of a race-blind or a post-racial society. One consequence of this omission is that it obscures race-based decision making by legislatures, judges, legal reform organizations, legal scholars, lawyers, and …

Family Law Scholarship Goes To Court: Functional Parenthood And The Case Of Debra H. V. Janice R., Suzanne B. Goldberg, Harriet Antczak, Mark Musico

Faculty Scholarship

Family law literature, while diverse in its exploration of contemporary families, also offers important threads of consensus. These strong points of coherence, when brought together with relevant case law, can be a useful means of advancing the academic conversation as well as engaging directly with courts to shape the law's development.

In a field as complex as family law, myriad academic viewpoints on any given issue often make it difficult to imagine scholarly discussion having utility for courts. As we aim to show here, however, amicus briefs can be important vehicles for synthesizing the literature, highlighting basic points of consensus …

Deadbeats, Deadbrokes, And Prisoners, Ann Cammett

Scholarly Works

Historically, child support policy has targeted absent parents with aggressive enforcement measures. Such an approach is based on an economic resource model that is increasingly irrelevant, even counterproductive, for many low-income families. Specifically, modern day mass incarceration has radically skewed the paradigm on which the child support system is based, removing millions of parents from the formal economy entirely, diminishing their income opportunities after release, and rendering them ineffective economic actors. Such a flawed policy approach creates unintended consequences for the children of these parents by compromising a core non-monetary goal of child support system – parent-child engagement – as …

Belonging And Trust: Divorce And Social Capital, Margaret F. Brinig

Journal Articles

To whom do spouses belong? Do they belong to their communities as well as each other and their immediate families? These questions are explored in an empirical paper demonstrating ways in which social capital in communities may affect even the marriages of people living in them.

A More Humane Vision Of Family Law: Holistic Approach Needed To Shield Children From The Trauma Of Breakups, Barbara A. Babb, Mitchell K. Karpf

All Faculty Scholarship

No abstract provided.

Tribe V. Pepion, 2010-J-308 (Blkft. Tr. Ct. App., Jun. 15, 2010), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court found that the Tribe had repeatedly violated the rights of Pepion, a minor, and had not followed the Blackfeet Family Code. The Court voided any outstanding probation obligations of Pepion.

Revitalizing The Adversary System In Family Law, Jane C. Murphy

All Faculty Scholarship

The way in which families resolve disputes has undergone dramatic change over the last decade. Scholars have focused much attention on a number of substantive law changes that have contributed to this transformation. These include the changing definitions of marriage, parenthood, and families. But less attention has been paid to the enormous changes that have taken place in the processes surrounding family dispute resolution. These changes have been even more comprehensive and have fundamentally altered the way in which disputing families interact with the legal system. Both the methods and goals of legal intervention for families in conflict have changed, …

(Re)Constructing The Framework Of Work/Family, Nancy E. Dowd

UF Law Faculty Publications

When we talk about the connections between work, family, and marriage, what are our assumptions or our implicit model? In this essay, I hope to expose the importance of questioning the framework within which we operate. Marriage continues to be a core focus of the typical family law course. As a matter of public policy, supporting and valuing marriage, and concern about the conflict between work and family because of the strains it imposes on marriage, makes balancing work and family within a marital framework a focus of law and policy.

In this essay, I argue that we need to …

Essay: (Re)Constructing The Framework Of Work/Family, Nancy E. Dowd

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Partitioning Paternity: The German Approach To A Disjuncture Between Genetic And Legal Paternity With Implications For American Courts, Shelly Ann Kamei

San Diego International Law Journal

This paper will address the strengths and weaknesses of the German approach as well as the potential use of this approach by American states, with particular emphasis given to the conflict between the right to know one’s origins and a child’s right to care and support. Part II discusses the challenge of defining legal paternity in an age of genetic certainty. It will first give a brief explanation of how courts have used functional–social and genetic considerations in defining legal paternity. It will then evaluate the legal implications of this approach on the rights of the father, mother, and child. …

Familial Norms And Normality, Clare Huntington

Faculty Scholarship

Social norms exert a powerful influence on families. They shape major life decisions, such as whether to marry and how many children to have, as well as everyday decisions, such as how to discipline children and divide household labor. Emotion is a defining feature of these familial social norms, giving force and content to norms in contexts as varied as reproductive choice, parenting, and same-sex relationships. These emotion-laden norms do not stand apart from the law. Falling along a continuum of involvement that ranges from direct regulation to choice architecture, state sway over social norms through their emotional valence is …

U.S. Immigration Law And The Traditional Nuclear Conception Of Family: Toward A Functional Definition Of Family That Protects Children's Fundamental Human Rights, Shani M. King

UF Law Faculty Publications

Although the paramount purpose of United States immigration law is not to protect the integrity of family, U.S. immigration law does explicitly aim to do so in certain circumstances. The Immigration and Nationality Act (INA) includes family reunification provisions, for example, which allow United States citizens and lawful permanent residents to petition for family members who live in other countries to join them in the United States. Even the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), often described as a draconian statute, technically allows otherwise removable "aliens" to remain in the United States if removal would result …

The "F" Factor: Fineman As Method And Substance, Nancy E. Dowd

UF Law Faculty Publications

In this book review, Professor Dowd reviews Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, edited by Martha Albertson Fineman, Jack E. Johnson, and Adam P. Romero (2009). Professor Dowd exposes the particular impact of the “F” factor by first describing the contributions of this volume and then exploring the methodological and substantive aspects of the “F” factor.

Annual Survey Of Periodical Literature, Nancy Ver Steegh

Faculty Scholarship

The Annual Review of Periodical Literature provides a sampling of law review articles published between November 1, 2008, and October 31, 2009. The survey highlights the variety and depth of family law scholarship produced during the year and calls attention to currently debated "hot topics." Readers are encouraged to read articles of interest in their entirety because the summaries included in the survey are necessarily abbreviated.

Empowerment, Innovation, And Service: Law School Programs Provide Access To Justice And Instill A Commitment To Serve, Dale Margolin Cecka

Law Faculty Publications

Law schools around the country seek to fill the legal needs of their communities in ways that are both innovative and mutually beneficial to clients and students. This article describes five pro bono and clinical programs, at the University of Richmond School of Law. The Earle Mack School of Law at Drexel University. Catholic University Columbus School of Law, the Thomas Jefferson School of Law, and Vermont Law School, where law students, under the supervision of law professors or community professionals, provide assistance or legal representation to underserved and often marginalized populations needing help with family law problems, including parents …

Stop The Killing: Potential Courtroom Use Of A Questionnaire That Predicts The Likelihood That A Victim Of Intimate Partner Violence Will Be Murdered By Her Partner, Amanda Hitt, Lynn Mclain

All Faculty Scholarship

Judges in domestic cases often underestimate the risk to a mother and her children that an angry and abusive father or other intimate partner poses. In a recent Maryland case, for example, two judges refused to deny a father visitation or require that visitation be supervised, despite the fact that the father had threatened suicide. During the father’s unsupervised visitation, he drowned all three of his children, then attempted to kill himself.

The Danger Assessment tool (the D.A.) developed by a Johns Hopkins Nursing professor and validated by herself and other social scientists shows how much the father’s thoughts of …

Development Of Ectogenesis: How Will Artificial Wombs Affect The Legal Status Of A Fetus Or Embryo?, Jessica H. Schultz

Chicago-Kent Law Review

Scientists are currently attempting to create an artificula womb which would allow fetal development to occur independent of a woman's womb. This note analyzes legal questions which would emerge with this new technology, including how artificial wombs would affect the interests of the father and the state in the fetus; whether contracts involving artificial wombs would be enforceable; and what type of liability issues would arise due to artificial womb use. Finally, the note proposes answers for these questions and concludes that the development of artificial wombs will likely complicate rather than resolve issues surrounding reproductive rights and the legal …

Child Custody Evaluations: Review Of The Literature And Annotated Bibliography, Barbara A. Babb, Gloria Danziger, Judith D. Moran, J. Mason Weeda, William A. Mack

All Faculty Scholarship

This review of custody evaluation literature encompasses a number of perspectives gleaned from the following: practitioners who perform the evaluations; the professional organizations that recognize the necessity to establish performance standards for practitioners; and the judges who depend on the findings and recommendations in the evaluations to assist with difficult custody decisions.

General agreement exists among practitioners about the components of a comprehensive evaluation (interviews of adults responsible for child care, interviews of children and their preferences, life histories, observations, psychological testing, document review, and collateral source data), though little consensus exists about the details of performance concerning a given …

Fathers, Foreskins, And Family Law, Dena S. Davis

Law Faculty Articles and Essays

In the United States, a custodial parent has the right and responsibility to make medical decisions for one's child. But does that right encompass consenting for a surgical procedure for which there is little or no medical justification? What if the noncustodial parent opposed the procedure? And when is a child old enough to make the decision for him- or herself? How should a physician respond when asked to perform a surgical procedure when the decision is enmeshed in family controversy? These and other questions are considered in Boldt, a recent family law case decided by the Supreme Court of …

Foreword - A Dedication To Barbara Bennett Woodhouse, Nancy E. Dowd

UF Law Faculty Publications

Families and family law are at the cutting edge of social policy. As we navigate through difficult times, we are reminded not only of the importance of families, but also of their vulnerability. The challenge for family law and policy is to remain responsive and relevant. This requires that we confront the realities of families, their needs and issues. We live in times of enormous diversity in family forms. That reality is frightening and worrisome to some, but reminds us that it is how families function, rather than what they look like, that is most important. Embracing function over form …

Guest Editors’ Introduction To Special Issue On Substance Abuse And Addiction In Family Courts, Barbara A. Babb, Gloria Danziger, Judith D. Moran

All Faculty Scholarship

No abstract provided.

Dispute Resolution And The Post-Divorce Family: Implications Of A Paradigm Shift, Jana B. Singer

Faculty Scholarship

Over the past two decades, there has been a paradigm shift in the way the legal system handles most family disputes – particularly disputes involving children. This paradigm shift has replaced the law-oriented and judge-focused model of adjudication with a more collaborative, interdisciplinary and forward-looking family dispute resolution regime. It has also transformed the practice of family law and fundamentally altered the way in which disputing families interact with the legal system. This essay examines the elements of this paradigm shift in family dispute resolution and explores the opportunities and challenges it offers for families, children and the legal system.

How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis Of Metaphor, Narrative, And Imagination In Child Custody Disputes, Linda L. Berger

Scholarly Works

We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing "a sea-change," family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income.

This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, …

The Uniform Collaborative Law Act And Intimate Partner Violence: A Roadmap For Collaborative (And Non-Collaborative) Lawyers, Nancy Ver Steegh

Faculty Scholarship

This Article examines the intimate partner violence provisions of the Uniform Collaborative Law Act “UCLA” and provides an analytical roadmap for collaborative lawyers. The lack of required intimate partner violence training for collaborative lawyers presents a major roadblock for implementation of the Act. Consequently, states adopting the UCLA should take immediate steps to ensure that courts and bodies regulating lawyers require ongoing training. In the meantime, to gain valuable expertise and avoid potential liability, collaborative lawyers should voluntarily seek it.

A Suggested Solution To The Problem Of Intestate Succession In Nontraditional Family Arrangements: Taking The "Adoption" (And The Inequity) Out Of The Doctrine Of "Equitable Adoption", Irene D. Johnson

Elisabeth Haub School of Law Faculty Publications

Part I of this Article examines the doctrine of equitable adoption, focusing on its deficiencies in addressing some of the issues of the modern family. Part II considers the specific issue of intestate succession, the way that the equitable adoption doctrine falls short in providing a consistent rational result of heirship in the modern family, and the reasons for expanding inheritance rights to “family members” claiming an intestate share despite the fact that they were not born into or legally adopted into the family arrangement. Part III proposes answers to these difficult problems, suggesting a statutory provision defining “child,” for …

Familial Norms And Normality Colloquium Celebrating 25th Anniversary Of Feminism And Legal Theory Project, Clare Huntington

Faculty Scholarship

Social norms exert a powerful influence on families. They shape major life decisions, such as whether to marry and how many children to have, as well as everyday decisions, such as how to discipline children and divide household labor. Emotion is a defining feature of these familial social norms, giving force and content to norms in contexts as varied as reproductive choice, parenting, and same-sex relationships. These emotion-laden norms do not stand apart from the law. Falling along a continuum of involvement that ranges from direct regulation to choice architecture, state sway over social norms through their emotional valence is …

Is The Family A Federal Question?, Meredith Johnson Harbach

Law Faculty Publications

There has long been conflict over the relationship between the states and the federal system vis-i-vis the family. The traditional account of domestic relations describes family law as the exclusive domain of the states, and federal courts have credited this account in the "domestic relations exception." Although scholars have analyzed and critiqued the exception's applicability to diversity jurisdiction, the intersection of federal question jurisdiction and this exception remains largely unexplored. This Article describes and critiques, on both instrumental and deeper normative terms, federal courts' willingness to expand the "domestic relations exception" to include federal question cases. The Article proceeds in …

The Changing Face Of Family Law: Global Consequences Of Embedding Physicians And Biotechnology In The Parent-Child Relationship, George J. Annas

Faculty Scholarship

Sexual reproduction, also known as making babies the old-fashioned way, has always brought with it significant challenges for family law, especially regarding protecting the best interests of children, and the identification of parents with the right and responsibility to rear them. But these challenges often seem mundane in the face of what has evolved since physicians have been injected into baby making and thus into novel parent-child relationships. The addition of physicians and their "new" medical technologies, sometimes called Assisted Reproductive Technology (ART), have forced the law to reconsider the very definition of motherhood and have radically altered society's view …

Family Law Cases As Law Reform Litigation: Unrecognized Parents And The Story Of Alison D. V. Virginia M., Suzanne B. Goldberg

Faculty Scholarship

Although the gap between law and lived experience comes as no surprise to most people, the divergence is especially striking – and disturbing – in the area of family law. Legal training quickly reveals that love is not a foundational element of family law, yet it can still be jarring to find that love has little, if any, bearing on the contours of the legal family. Love, after all, does not account for who can and cannot marry. Nor does the past love of an unmarried couple trigger the protections of divorce should the couple separate.

When children are involved, …

Family Court Reform And Adr: Shifting Values And Expectations Transform The Divorce Process, Nancy Ver Steegh

Faculty Scholarship

During the last fifty years, the process of divorce has undergone a remarkable transformation. This article examines the sweeping breadth of the change and the underlying societal forces behind it. As the family court landscape has changed, a ripple effect has occurred necessitating reconsideration of the roles that lawyers and judges play in the divorce process. Although lack of judicial resources has fueled some of the change, deep funding cuts foreshadow a less positive transformation, one potentially resulting in a two-tiered system of justice for families.