Family Law Commons^™

The Creative Legal Histories Of Cervantes And Jurist Antonio De La Peña, Susan Byrne

Department of World Languages Faculty Research

In the Quijote’s intercalated novella titled El curioso impertinente, Miguel de Cervantes narrates the story of a husband inducing his best friend to seduce his wife. This study compares Cervantes’ use of juridical detail in that story with contemporaneous legal arguments and punishments for a husband who acts as procurer for his wife.

The 100-Year Life And The New Family Law, Elizabeth S. Scott, Naomi Cahn

Faculty Scholarship

This draft book chapter, prepared as part of a symposium on The 100-Year Life by Linda Gratton and Andrew Scott, reflects on the future of family law in an era of longer lives. Our analysis leads us to conclude that the 100-year life is indeed likely to have an impact on the nature, scope, and definition of family law, but that families will continue to function as the primary setting for intimacy and for caregiving and caretaking, whatever form those families take. Further, the importance to both individual and social welfare of family support throughout life points to a need …

Properties Of Intimacy, Emily J. Stolzenberg

Faculty Publications

Today, nearly nineteen million U.S. adults are cohabiting with an intimate partner. Yet family law continues to struggle with the question whether these unmarried partners should have relationship-based rights in one another’s property. Generally speaking, states answer “no.” Because cohabitants are not spouses, they’re treated like strangers. As a result, their property rights usually follow title, and richer partners tend to walk away with a large proportion of the property acquired during the relationship. This Article shows the “cohabitant problem” to be no anomaly, but rather the clearest manifestation of family law’s overarching structure. In marital property regimes as well …

What Is Nonmarriage?, Katharine Baker

All Faculty Scholarship

As rates of cohabitation rise, and marriage becomes a status reserved almost exclusively for socio-economic elites, the scholarly calls for family law to recognize more nonmarital families grow stronger by the day. This Article unpacks contemporary proposals to recognize more nonmarital families and juxtaposes those proposals with family law’s contemporary marital regime. Family law’s status-based system provides a mostly simple and efficient means of distributing resources at the end of a marriage by imposing a formulaic, but distinctly communitarian, non-market-based approach to obligation, entitlement, and value. In full, the Article defends family law’s status-based system for what it does well, …

Law In The Time Of Covid-19, Katharina Pistor

Faculty Books

The COVID-19 crisis has ended and upended lives around the globe. In addition to killing over 160,000 people, more than 35,000 in the United States alone, its secondary effects have been as devastating. These secondary effects pose fundamental challenges to the rules that govern our social, political, and economic lives. These rules are the domain of lawyers. Law in the Time of COVID-19 is the product of a joint effort by members of the faculty of Columbia Law School and several law professors from other schools.

This volume offers guidance for thinking about some the most pressing legal issues the …

The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson

Faculty Scholarship

The Covid-19 crisis has laid bare the fragility of social insurance systems in the United States and the lack of income security and basic benefits for many workers and residents. The United States has long had weaker protections for workers compared to other liberal democracies racial and economic disparities among those most affected by these dislocations (analyses are hampered by a paucity of demographic data). Those who were socially and economically vulnerable before the pandemic (for example due to homelessness, immigration status, or incarceration) are likely to suffer the most harm. Changes in workplace conditions as a result of the …

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined …

Child Welfare And Covid-19: An Unexpected Opportunity For Systemic Change, Jane M. Spinak

Faculty Scholarship

The COVID-19 pandemic has already wrecked greater havoc in poor neighborhoods of color, where pre-existing conditions exacerbate the disease’s spread. Crowded housing and homelessness, less access to health care and insurance, and underlying health conditions are all factors that worsen the chances of remaining healthy.Workers desperate for income continue to work without sufficient protective measures, moving in and out of these neighborhoods, putting themselves and their families at risk. During periods of greater disruption, tensions are heightened and violence more prevalent. Already some experts are warning of an onslaught of child maltreatment cases, citing earlier examples of spikes in foster …

The Disconnect Between Family Law And Immigration Law In The Usa That Results In Undocumented Immigrants Losing Parental Rights, Mercedes Aznar, Sara Schechter

Publications and Research

Due to increasing violence in Latin American countries, the flow of immigrants seeking asylum in the United States has risen. In our research we look into possible legal consequences of the practice of separating immigrant families. Through the analysis of scholarly articles and legal documents we found that oftentimes, undocumented immigrants lose parental rights while being detained by the Immigration and Customs Enforcement (ICE), due to lack of coordination between Family Law and Immigration Law. Findings in this study reinforce the urgency to find solutions to this problem.

Family Law's Coldest War: The Battle For Frozen Embryos And The Need For A Statutory White Flag, Mary Joy Dingler

Seattle University Law Review

Without concrete legislative guidance, courts are left to a variety of unsatisfactory methods of determining the disposition of frozen embryos in dissolutions and custody disputes. Beginning in 1992, courts have been issuing problematic rulings that are reached through the application of three approaches: (1) the balancing-interests test; (2) the contemporaneous mutual consent approach; and (3) the contractual approach. These approaches are examined in this Comment through the lens of selected cases and the largely inequitable outcomes for parties are critiqued. Courts even lament the lack of statutory guidance in deciding these disputes but are resigned to employing these largely flawed, …

No Right To Counsel, No Access Without: The Poor Child's Unconstitutional Catch-22, Lisa V. Martin

Faculty Publications

In the midst of the push for universal access to counsel in civil cases and the increasing proportion of litigants who represent themselves, a critical barrier to access to justice for children has been overlooked. Federal courts have created a catch-22 for child litigants. Children cannot bring claims themselves, so parents must bring the claims on their behalf. Federal courts refuse to allow parents to pursue these claims pro se, stating that parents cannot provide adequate legal representation. Yet, there is no right to counsel in civil cases, and these same courts typically conclude the children’s cases do not warrant …

Just Care: A Relational Approach To Autonomy And Decision Making Of Parents Committed To Religious Or Indigenous Traditional Practices, Tu-Quynh Trinh

LLM Theses

Hamilton Health Sciences Corp. v. D.H. and B. (R.) v. Children’s Aid Society of Metropolitan Toronto tell important stories about people and relationships—and about parenthood; autonomy; religious believers and cultural communities; and the role of the state in family, culture, and religion. Their narratives were influenced by liberalism and emphasize a degree of individualism that is incongruous given the subject matter of parent child relationships and their place within communities and the law. This thesis explores the application of relational theory and the integrated principles of justice and care to these issues. Ultimately, the stories these judicial opinions tell help …

Law School News: A Spring Break That Teaches - And Gives Back 03/11/2019, Edward Fitzpatrick

Life of the Law School (1993- )

No abstract provided.

Judicial Education, Private Violence, And Community Action: A Case Study In Legal Participatory Action Research, Kristin (Brandser) Kalsem

Faculty Articles and Other Publications

In this Article, I present a case study of a legal PAR project involving judicial training on best practices in domestic violence cases. This judicial education project started over coffee and waffles, involved an award-winning documentary film Private Violence, and resulted in the training of more than 375 judges on best practices developed from two years of collaborative research conducted by a community action group. In 2014, I coauthored an article titled It's Critical: Legal Participatory Action Research with my colleague Emily Houh. In this piece, we introduced legal scholars to the field of PAR, including its origins, complementary relationship …

Family Law: Above And Beyond The Call Of Duty, Marianne Cristina Gonzalez

Intercultural Human Rights Law Review

Family law practitioners play a delicate and important role in the lives of clients and their families. As lawyers, we have a duty and an obligation to listen to and understand the client's legal needs, while competently advocating to meet their goals and expectations. But how often do we really pay attention to the mental and spiritual needs of our clients to achieve their goal? Chances are we generally do not, since our own emotional baggage has been left unchecked. We have mastered the skill of tuning out the "red herrings" by trimming the excess, non-essential emotional noise that not …

The New Family Freedom, Emily J. Stolzenberg

Faculty Publications

In family law, “autonomy” has traditionally meant freedom from state interference in one’s intimate life. This Article describes an emergent, libertarian vision of autonomy as property rights that also demands freedom from other family members. This conception, “choice about obligations,” holds redistribution of resources between intimates to be illegitimate unless the richer party “chose” to take on financial obligations ex ante by ceremonially marrying or formally contracting. But as more people conduct their intimate lives outside these legal institutions, choice about obligations increasingly collides with another, more fundamental, family law principle: the imperative to “privatize dependency,” i.e., to redistribute resources …

The Impact Of Domestic Violence On Immigrant Women, Shawna C. Quast

DePaul Journal of Women, Gender and the Law

No abstract provided.

A Human Capital Theory Of Alimony And Tax, Tessa R. Davis

Faculty Publications

The current taxation of alimony is a broken scheme. Severed from any strong theoretical mooring, it draws lines in the sand between property settlement, child support, and alimony. The lack of coherence between the substance of alimony in family law and the tax concept of alimony (“tax alimony”) could be justified on other policy grounds, however. Yet current law, which allows the payor a deduction under §215 and requires inclusion by the recipient per §71, is difficult to interpret, resulting in frequent litigation and costly noncompliance. In short, the current concept of tax alimony fails to satisfy any of the …

What Judges Need To Know: Schemas, Implicit Bias, And Empirical Research On Lgbt Parenting And Demographics, Todd Brower

DePaul Journal of Women, Gender and the Law

No abstract provided.

Predictive Neglect And "Unfit" Mothers - When Having A Mental Illness Means The State Takes Your Child, Amelia Lyte

DePaul Journal of Women, Gender and the Law

No abstract provided.

International Survey Of Family Law, 2018 Ed., Margaret Brinig

Books

Margaret Brinig, editor The International Survey of Family Law is the annual review of the International Society of Family Law. It brings together reliable and clearly structured insights into the latest and most notable developments in family law from all around the globe. Chapters are prepared by an international team of selected experts in the field, usually covering 20 or more jurisdictions in each edition.

The 2018 edition addresses highly topical matters ranging from assisted reproductive technology and sterilisation to end-of-life issues and estate settlement. The authors explore legislative changes, common law developments and challenges of integrating customary law or …

Family Law, Allison Anna Tait

University of Richmond Law Review

Another year of family law activity in Virginia brought both new

legislation, which will likely have long-term impacts, as well as a

new set of judicial opinions that will bring changes to the Virginia

rules. The terrain covered in the legislation and opinions varies,

but it includes certain fixtures such as marriage and divorce requirements,

equitable distribution, spousal and child support, and

child custody. This brief overview addresses all these areas, beginning

with the legislative changes and then moving to the courts.

Turner In The Trenches: A Study Of How Turner V. Rogers Affected Child Support Contempt Proceedings, Elizabeth Patterson

Faculty Publications

In its 2011 ruling in Turner v. Rogers, the Supreme Court held that a nonpaying child support obligor may not be incarcerated in a civil contempt proceeding if he did not have the ability to pay the ordered support or the purge necessary to regain his freedom. The Turner case arose in South Carolina, a state in which civil contempt proceedings are a routine part of the child support enforcement process. The author observed child support contempt proceedings in South Carolina both before and after the Turner decision to assess the extent to which indigent obligors were being held in …

Parents’ Perceptions Of The Lancaster Family Treatment Drug Court, Leah Engquist, Melanie Fessinger, Katherine Hazen

UCARE: Research Products

Juvenile dependency courts deal with cases that have allegations of child abuse or neglect by a parent or guardian. Lancaster's Family Treatment Drug Court (FTDC) is a problem-solving court that deals with cases of child abuse or neglect related to substance abuse. Parents on this track receive monthly team meetings, specialized services, and corrective measures. The research question of this evaluation was: "Do parents on the Family Treatment Drug Court perceive the court process more positively than parents who are not on the track (control)?" 144 parents completed an 11 item survey following their court hearings. Overall, both FTDC and …

Video: Elder Law For Beginners, Arlene Lakin, Gail Fisher

NSU Law Seminar Series

This particular seminar is designed to educate attorneys about how to be an elder law attorney. Practitioners will learn the various skill sets involved: estate and incapacity planning as well as protection of assets in order to qualify for, or remain qualified for, public benefits such as Medicaid and veteran’s pension with aid and attendance.

1. How to work with senior citizens and their families in a clinical as well as legal format
2. How to determine capacity of elderly clients to execute legal documents
3. How to analyze family relationships
4. How to design an estate and incapacity plan …

The Strange Life Of Stanley V. Illinois: A Case Study In Parent Representation And Law Reform, Josh Gupta-Kagan

Faculty Publications

This Article helps describe the growth of parent representation through an analysis of Stanley v. Illinois—the foundational Supreme Court case that established parental fitness as the constitutional lynchpin of any child protection case. The Article begins with Stanley’s trial court litigation, which illustrates the importance of vigorous parental representation and an effort by the court to prevent Stanley from obtaining an attorney. It proceeds to analyze how family courts applied it (or not) in the years following the Supreme Court’s decision and what factors have led to a recent resurgence of Stanley’s fitness focus.

Despite Stanley’s requirement that states prove …

Video: Unbundled Legal Representation In Family Law: Ethically Managing The Challenges, Hilary A. Creary Esq., Sheena Benjamin-Wise Esq.

NSU Law Seminar Series

• Understand a lawyer's duty under Fla. Fam. L.R.P. 12.040 "limited appearance"
• Learn how to manage clients when delivering unbundled legal services in a limited representation matter
• How to handle limited representation in various contexts: mediation, domestic violence, and court hearings
• Avoiding ethical violations

The Pro Bono Collaborative: Celebrating 10 Years Of Pro Bono Partnerships, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

Not Ideas Of The Thing But The Thing Itself: Imagining A Support Group For Separated And Divorced Fathers As A Site Of Legal Education, Thomas Mcmorrow

Dalhousie Law Journal

Legal education is not just about attaining an abstract knowledge of formal institutions, norms, and processes; it is also about developing insight into oneself and ones relationships. Therefore, understanding and developing the personal and social conditions that make governance through law possible are crucial elements of legal education. This article highlights legal education's potential role in fostering every person's sense of implication in-and responsibility forbuilding a just society In order to illustrate this concept, this article looks at the ways in which DADs, a support group for separated and divorced fathers, constitutes a site of legal education.

Governed By Marriage Law, Deirdre Mcgowan

Books/Book Chapters

Marriage law links the private and the political, connecting the aspirations of individuals to the regulatory ambitions of the state. Marriage has significant social and cultural importance, but the assumptions of stability and care it entails are also useful to government. As a result, marriage law has, both historically and in the present, been offered as the solution to a range of social problems. Using Ireland as a case study example, this essay focuses on the problems which marriage law reform has attempted to address and the political frameworks within which reform took place. It suggests that marriage law is …