Family Law Commons^™

Vaccination And The Child’S Right To An Open Future, Elias Feldman

Lewis & Clark Law Review

States commonly require the vaccination of children through their parens pa- triae and police powers. But many states also allow parents to opt for non- medical exemptions from these vaccination requirements, contributing to the emergence of a national vaccine hesitancy crisis. By permitting parents not to vaccinate their children, do states that grant these exemptions violate children’s rights? This Article posits that children may indeed have a right to be vac- cinated and thus protected against contracting a disease for which there is a scientifically proven vaccine. This Article examines this question through the lens of Joel Feinberg’s theory of …

Parents And The Interstate Compact On The Placement Of Children: A Flexible Approach, Alex Jones

Lewis & Clark Law Review

Before an Oregon court can send a child across the Columbia River to live with a Washington foster parent, the authorities on the Washington side must first approve the move. Unless and until that happens, the child stays in Oregon. But what if the Washington “foster” parent is the child’s biological father? The Interstate Compact on the Placement of Children (ICPC) imposes conditions on the sending of children across state lines to live with foster parents or potential adoptive parents. Courts in different states have long disagreed over whether those conditions ever apply to the placement of children with their …

The New Parental Rights, Anne C. Dailey, Laura A. Rosenbury

UF Law Faculty Publications

This Article sets forth a new model of parental rights designed to free children and families from the ideals of parent–child unity and family privacy that underlie the law’s expansive protection for parental rights. The law currently presumes that parents’ interests coincide with those of their children, creating an illusion of parent–child union that suppresses the very real ways in which children’s interests and identities, even at a young age, may depart from those of their parents. Expansive protection for parental rights also confines children to the private family, ignoring children’s broad range of interests beyond the family and thwarting …

Judicial Discretion Is Advised: The Lack Of Discretionary Appointments Of Counsel For Children In Washington State Dependency Proceedings, Marisa Forthun

Washington Law Review Online

State agencies initiate dependency proceedings when a child is alleged, often due to parental neglect or abuse, to be a dependent of the state. The state must intervene “[w]hen parents do not comply with [Child Protective Services] requirements, or when the state believes the child is at too great a risk to remain at home even if parents were to comply with services.” Dependency proceedings usually take place in juvenile courts and involve the local state agency, the parents, and the child. After the government files a petition alleging circumstances of neglect or abuse, “[t]he court issues temporary orders regarding …

Strengthened Bonds: Abolishing The Child Welfare System And Re-Envisioning Child Well-Being, Nancy D. Polikoff, Jane M. Spinak

Faculty Scholarship

The 2001 book, Shattered Bonds: The Color of Child Welfare, by Dorothy Roberts, called out the racism of the child welfare system and the harms that system perpetrates on families and communities. Twenty years later, despite numerous reform efforts, the racism and profound harms endure. It is time for transformative change. In this foreword to the symposium Strengthened Bonds: Abolishing the Child Welfare System and Re-Envisioning Child Well-Being, honoring the 20th anniversary of Shattered Bonds, we highlight Professor Roberts’ articulation of her development as a family policing abolitionist and summarize the articles and comments contributed from scholars …

Meaning, Biology And Identity: The Rights Of Children, Anika Smith

Catholic University Law Review

Sperm and egg donation in the United States is only loosely regulated, and the current regime privileges the anonymity of the adult donor over the child’s right to identity. The majority of people conceived through anonymous donation do not support the practice but find their rights abrogated by contracts made by their intentional and biological parents. Donor reliance on the anonymity guaranteed by those contracts is shifting as at-home genetic testing limits their expectation of privacy, with more biological ties being discovered by children conceived through gamete donation. This Comment explores the child’s right to identity in family law cases, …

Unfit To Parent: American And Jewish Legal Perspectives, Michoel Zylberman, Karen K. Greenberg, Daniel Pollack

Touro Law Review

No abstract provided.

The New Restatement Of Children And The Law: Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

This Essay is based on a previous article: Clare Huntington & Elizabeth Scott, Conceptualizing Legal Childhood in the Twenty-First Century, 118 Mich. L. Rev. 1371 (2020) (offering a comprehensive account of the Child Wellbeing framework).

Since the 1960s, the law regulating children has become increasingly complex and uncertain. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children subject to a limited supervisory and protective role of the state, has broken down. Lawmakers have begun to grant children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, …

The Americans With Disabilities Act: Legal And Practical Applications In Child Protection Proceedings, Joshua B. Kay

Articles

Parents with disabilities, particularly those with intellectual disability and/or mental illness, are disproportionately represented in the child protection system.1 Once involved in the system, they are far more likely than parents without disabilities to have their children removed and their parental rights terminated. The reasons for this are many. Parents with disabilities are relatively likely to experience other challenges that are themselves risk factors for child protection involvement. In addition, child protection agencies, attorneys, courts, and related professionals often lack knowledge and harbor biases about parents with disabilities, increasing the likelihood of more intrusive involvement in the family. Yet research …

Punishing Families For Being Poor: How Child Protection Interventions Threaten The Right To Parent While Impoverished, David Pimentel

Articles

No abstract provided.

Keeping It In The Family: Minor Guardianship As Private Child Protection, Deirdre Smith

Faculty Publications

Due to the opioid use epidemic and an overwhelmed public child protection system, minor guardianship is an increasingly important tool for relative caregivers seeking to obtain legal authority regarding the children who come into their care because of a parent’s crisis. Yet minor guardianship originated in colonial law for an entirely different purpose: to protect legal orphans who had inherited property. Today’s guardianship laws are still based on this “orphan model” which does not fit today’s reality. This Article is the first to analyze how these outdated guardianship laws are being used as a form of “private child protection” and …

Fundamentally Fair? A Critical Look At The Due Process Afforded Parents In Child Protection Proceedings Under Minnesota Law, Brooke Beskau Warg

Mitchell Hamline Law Review

No abstract provided.

A Promising Start For Early Childhood Development And The Law, Clare Huntington

Faculty Scholarship

Examining the role of the law in early childhood development is not new; several legal scholars have engaged in such an inquiry, including scholars at this symposium. But this engagement has not led to a sustained debate about how the legal system can foster early childhood development, nor has it yet led to the integration of legal scholars into the interdisciplinary research on, and policy debates about, early childhood. I have argued that the creation of a new subdiscipline in family law — early childhood development and the law — would achieve these goals, sparking debate within law, bringing a …

Custody, Visitation, And Parental Rights Under Scrutiny, Mark Strasser

Cornell Journal of Law and Public Policy

The Supreme Court recognized long ago that the United States Constitution protects parental rights, even though those rights are not expressly mentioned anywhere in that document. However, in many of the relevant cases, the Court recognizes the importance of parental rights on the one hand and undercuts the breadth or robustness of those very rights on the other. The Court’s parental rights jurisprudence has consistently sent mixed messages, which has exacerbated the degree to which states differ with respect to how readily those rights may be overridden.

Part I of this Article discusses the Court’s parental rights jurisprudence, noting how …

Child Welfare's Scarlet Letter: How A Prior Termination Of Parental Rights Can Permanently Brand A Parent As Unfit, Vivek S. Sankaran

Articles

In many jurisdictions, once a parent has her rights terminated to one child, the State can use that decision to justify the termination of parental rights to another child. The State can do so regardless of whether the parent is fit to parent the second child. This article explores this practice, examines its origins, and discusses its constitutional inadequacies.

Prenatal Abandonment: 'Horton Hatches The Egg' In The Supreme Court And Thirty-Four States, Mary M. Beck

Michigan Journal of Gender & Law

This article addresses an issue critical to forty-one percent of fathers in the United States: prenatal abandonment. Under prenatal abandonment theory, fathers can lose their parental rights to non-marital children if they do not provide prenatal support to the mothers of their children. This is true even if the mothers have not notified the fathers of the pregnancy and if the mothers or fathers are unsure of the fathers’ paternity. While this result may seem counterintuitive, it is necessitated by demographic trends. Prenatal abandonment theory has been structured to protect mothers, fathers, and fetuses in response to a number of …

Prenatal Abandonment: 'Horton Hatches The Egg' In The Supreme Court And Thirty-Four States, Mary M. Beck

Faculty Publications

Under prenatal abandonment theory, fathers can lose their parental rights to nonmarital children if they do not provide prenatal support to the mothers of their children. This is true even if the mothers have not notified the fathers of the pregnancy and if the mothers or fathers are unsure of the fathers' paternity. While this result may seem counterintuitive, it is necessitated by demographic trends. Prenatal abandonment theory has been structured to protect mothers, fathers, and fetuses in response to a number of social factors: the link between pregnancy and increased rates of sexual assault, domestic violence, and domestic homicide; …

Fathers And Feminism: The Case Against Genetic Entitlement, Jennifer S. Hendricks

Publications

This Article makes the case against a nascent consensus among feminist and other progressive scholars about men's parental rights. Most progressive proposals to reform parentage law focus on making it easier for men to assert parental rights, especially when they are not married to the mother of the child. These proposals may seek, for example, to require the state to make more extensive efforts to locate biological fathers, to require pregnant women to notify men of their impending paternity, or to require new mothers to give biological fathers access to infants.

These proposals disregard the mother's existing parental rights and …

Rights Of Incarcerated Parents, Angélica Cházaro

Chapters in Books

This chapter discusses the childcare and custody rights of incarcerated parents. According to the U.S. Department of Justice, an estimated 809,800 state and federal prisoners were parents to children under the age of eighteen in 2007. There are approximately 1,706,600 children under the age of eighteen who have a parent in prison.

As a parent in prison, you may fear that your child will not be cared for, that you will lose your child, or that your relationship with your child will suffer while you are incarcerated. This Chapter focuses on New York state law and describes how the law …

The Wages Of Genetic Entitlement: The Good, The Bad, And The Ugly In The Rape Survivor Child Custody Act, Jennifer S. Hendricks

Publications

This Essay analyzes flaws and assumptions in the recently enacted Rape Survivor Child Custody Act. The RSCCA offers a window into the problems with defining parenthood in terms of genes instead of caretaking relationships, which is what led to the problem of rapists being able to claim parental rights in the first place. Rather than address that underlying defect in family law, the statute attempts a solution that might work if all rapists were strangers, all rapists were men, and all rape victims were women, but glosses over complicated problems of violence and coercion in relationships. Despite this failure to …

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

Faculty Scholarship

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 …

A Chance For Positive Change: Exploring The Legal Hurdles Putative Fathers Face In The 21st Century, Shamala Florant

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Matter Of Anthony "S", Deborah A. Monastero

Touro Law Review

No abstract provided.

Biology, Genetics, Nurture, And The Law: The Expansion Of The Legal Definition Of Family To Include Three Or More Parents, Myrisha S. Lewis

Nevada Law Journal

No abstract provided.

Child Welfare Appellate Advocacy, Vivek Sankaran

Book Chapters

The appellate system serves important functions in child welfare cases. It ensures that the relationship between a child and his or her parent is not unjustly terminated. It forces juvenile courts and child welfare agencies to strictly follow statutes, court rules, and agency policies. And it preserves public faith in the system by serving as an independent check to correct mistakes that occur.

But the appellate system is only as good as the advocates who appear before it. This chapter is intended to be a resource for those advocates, both those who have practiced child welfare law for many years …

Meyer, Pierce, And The History Of The Entire Human Race: Barbarism, Social Progress, And (The Fall And Rise Of) Parental Rights, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

Long before the Supreme Court’s seminal parenting cases took a due process Lochnerian turn, American courts had been working to fashion family law doctrine on the premise that parents are only entrusted with custody of the child, and then only as long as they meet their fiduciary duty to take proper care of the child. With its progressive, anti-patriarchal orientation, this jurisprudence was in part a creature of its time, reflecting the evolutionary biases of the emerging fields of sociology, anthropology, and legal ethnohistory. In short, the courts embraced the new, “scientific” view that social “progress” entails the decline and, …

Robbing The Cradle: The Use Of Mediation In Parental Rights Termination With Evidence Of Drug Abuse By The Mother, M. Katherine Kerbs

Journal of Dispute Resolution

This Comment will explore the use of mediation in termination of parental rights proceedings where there is evidence of drug abuse by the parents. First, this Comment will give an overview of termination proceedings and examine a specific statute’s guidelines for termination. Then, this Comment will provide an overview of mediation and its uses in family law. Finally, this Comment will argue for increased use of mediation in termination of parental rights cases where there is evidence of drug abuse by the mother.

Mommy Dearest: Determining Parental Rights And Enforceability Of Surrogacy Agreements, William J. Giacomo, Angela Dibiasi

Pace Law Review

The governing law in this area is new and evolving and, as such, the allocation of the legal rights and responsibilities depend on which state has jurisdiction over the matter. This article will discuss the basic types of surrogacy agreements and examine the legal distinctions of their enforceability under New York and California law.

Representing Parents With Disabilities, Joshua B. Kay

Book Chapters

Parents with disabilities are more likely than other parents to become involved in the child welfare system, and once involved, their cases are more likely to end in termination of parental rights. This chapter covers basic information about parents with disabilities and child welfare involvement, including the prevalence of disability among parents generally and the frequency with which parents with disabilities are involved in child welfare cases. It discusses why these parents are disproportionately involved in child welfare proceedings and the biases of professionals that contribute not only to this frequent involvement but also to the poor outcomes in many …

No Money, No Lawyer — No Children: The Right To Counsel For Indigent Defendants In Nevada Termination Of Parental Rights Proceedings, Erik J. Foley

Nevada Law Journal

No abstract provided.