Family Law Commons^™

"Are You My Mother?": Ohio's Crazy-Making Baby-Making Produces A New Definition Of "Mother", Michelle Pierce-Gealy

Akron Law Review

Part I of this Comment introduces the roots of parental rights and responsibilities. Part II briefly describes modern reproductive techniques and their effect on parental rights. Part III explores the Ohio statutory definition of motherhood and analyzes the impact of Belsito on parentage determinations. It also analyzes the other cases defining motherhood and the proposed legislative responses. Part IV anticipates the legal repercussions of Ohio's new definition of maternity on each party's rights and responsibilities. Finally, the Comment concludes by advocating a new parentage paradigm that recognizes the important contributions of each party in collaborative reproduction.

Because I Said So: An Examination Of Parental Naming Rights, Ashley N. Moscarello

Chicago-Kent Law Review

Naming a child is often one of the most exciting parts of having a baby. Some parents, of course, choose to be more creative and unique, which leads to some very interesting names like Toilet Queen, Acne Fountain, Crimson Tide Redd, Messiah, Candy Stohr, and Violence. Although some of these names are quite absurd, should the government be able to tell parents that they have crossed the line?

When parents agree about the name they want to give their child, should the state or courts be able to intervene in that decision if the state has problems with the name? …

Summary Of Jennifer L. V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 30 (Jun. 04, 2015), Jaymes Orr

Nevada Supreme Court Summaries

The Court held that, although a legal guardianship had been established, and a parent had neither legal nor physical custody of a child, parents are not relived of their parental duties to provide for the care, support, or maintenance of the child.

The Other Side Of The Rabbit Hole: Reconciling Recent Supreme Court Personal Jurisdiction Jurisprudence With Jurisdiction To Terminate Parental Rights, Joan M. Shaughnessy

Scholarly Articles

This Essay contrasts the jurisdictional regime followed in termination of parental rights and other child custody cases with the regime that has dominated recent Supreme Court personal jurisdiction cases. Jurisdiction in child custody cases has long been based upon the connection of the child, not the defendant parent, to the jurisdiction. Recent Supreme Court cases, on the other hand, have focused nearly exclusively on the defendant’s connection to the forum state. This Essay argues that the Supreme Court cases betray a failure of the Court to provide a consistent constitutional justification for the jurisdictional limitations it has imposed. The Essay …

The New Permanency, Joshua Gupta-Kagan

Faculty Scholarship

Permanency is a pillar of child welfare law; children generally do better with legally permanent caretakers than in temporary foster care. Historically, when foster children cannot reunify with their parents, states have sought to terminate parental rights and find adoptive families. But recent legal reforms have created a continuum of permanency options, many of which permit ongoing legal relationships with biological parents and do not require termination of biological parents’ rights. Research has demonstrated that such options are as lasting as adoption, and can help more children leave foster care to legally permanent caretakers. This continuum promises to empower families …

Dangers In De Facto Parenthood, Jeffrey A. Parness

University of Arkansas at Little Rock Law Review

No abstract provided.

Bio Family 2.0: Can The American Child Welfare System Finally Find Permanency For 'Legal Orphans' With A Statute To Reinstate Parental Rights?, Meredith L. Schalick

University of Michigan Journal of Law Reform

The American child welfare system terminates parental rights for thousands of children each year even though adoptive families have not yet been identified for the children. Every year, there are more than 100,000 of these “legal orphans” waiting for new families. Given the lower rates of adoptions for children of color and older children, and the poor outcomes for most youth who age out of the foster care system, the American child welfare system must start to think differently about permanency options for children. This Article proposes a model statutory provision to reinstate parental rights under certain circumstances to give …

The Origin Of Parental Rights: Labor, Intent, And Fathers, Dara Purvis

Faculty Scholarship

Most theories of parentage fail to explain the genesis of the right to parent - for example, why does a biological relationship generate parental rights? This Article shows that the law of parental rights mirrors theories of acquiring property, and that the law has shifted over time, from favoring a property right based in genetics to a Lockean theory of property rights earned through labor. The growth of Lockean labor-based theories is epitomized in reforms to parentage laws that incorporate functional theories of parenting, meaning that adults who perform caretaking work that creates a significant relationship with children are recognized …

Recent Trends In California Law Concerning The Best Interests Of The Child, Darlene Selby

Pepperdine Law Review

No abstract provided.

A Diversity Approach To Parenthood In Family Life And Family Law, Linda C. Mcclain

Faculty Scholarship

Extraordinary changes in patterns of family life and family law have dramatically altered the boundaries of parenthood and opened up numerous questions and debates. What is parenthood and why does it matter? How should society define, regulate, and support it? Is parenthood separable from marriage or couplehood when society seeks to foster childrens well-being? What is the better model of parenthood from the perspective of child outcomes? Intense disagreements over the definition and future of marriage often rest upon conflicting convictions about parenthood. What Is Parenthood? asks bold and direct questions about parenthood in contemporary society, and it brings together …

Terminating Parental Rights Through A Backdoor In The Virginia Code, Dale Margolin Cecka

Law Faculty Publications

This article explores deficits in the statute, in light of constitutional law, other Virginia adoption and termination of parental rights statutes, and other states' codes and jurisprudence. Part II describes the history and practice of the statute. Part III describes the flaws of the statute, including Fourteenth Amendment violations and inherent conflicts of interest. Part IV calls for the revision of section 1202(H) based on recent precedent in which the Supreme Court of Virginia recognized the sanctity of the parent-child relationship and the state's interest in preserving it.

Singing Songs In A Strange Land: The Plight Of Haitian Children In The Space Of International Adoption., Glenys P. Spence

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

The best interests of children are not served by severing the familial bonds contemplated by international adoption law. Nonetheless, because of the high costs of the international adoption process, efforts to adopt their Haitian orphan relatives are ignored. In attempts to guarantee the “best interests of the child” are met, the United Nations Convention on the Rights of the Child (CRC) and the Hague Convention on the Protection of Children Co-Operative Respect of Intercountry Adoptions (Adoption Convention) were created as the two governing bodies of international adoption law. Global South countries, including Haiti, however, have not ratified the Adoption Convention. …

The Mother-Love Myth: The Effect Of The Provider-Nurturer Dichotomy In Custody Cases, Kalie Caetano

The Macalester Review

This paper is a discursive analysis that evaluates the effect of gender stereotypes relating to parenting roles and how they have influenced custody cases. Specifically it looks at the historically gendered distinction between the provider (typically the father) and the nurturer (typically the mother) and speculates as to how those identities may have initially formed in US society, what changes they have undergone and how these stereotypes still affect family court outcomes in cases of divorce. Particular focus is given to an article appearing in Working Mother magazine entitled “Custody Lost,” detailing a new trend in custody cases, which allegedly …

Separation, Deportation, Termination, Marcia A. Yablon-Zug

Faculty Publications

There is a growing practice of separating immigrant children from their deportable parents. Parental fitness is no longer the standard with regard to undocumented immigrant parents. Increasingly, fit undocumented parents must convince courts and welfare agencies that continuing or resuming parental custody is in their child’s best interest. This requirement is unique to immigrant parents and can have a disastrous impact on their ability to retain custody of their children. Best interest decisions are highly subjective and courts and agencies increasingly base their custody determinations on subjective criteria such as negative perceptions regarding undocumented immigrants and their countries of origin, …

"The Good Mother": Mothering, Feminism, And Incarceration, Deseriee A. Kennedy

Scholarly Works

As the rates of incarceration continue to rise, women are increasingly subject to draconian criminal justice and child welfare policies that frequently result in the loss of their parental rights. The intersection of an increasingly carceral state and federally imposed timelines for achieving permanency for children in state care has had a negative effect on women, their children, and their communities. Women, and their ability to parent, are more adversely affected by the intersection of these gender-neutral provisions because they are more likely than men to be the primary caretaker of their children. In addition, incarcerated women have higher rates …

Representing Children At The Intersection Of Domestic Violence And Child Protection, Annette Appell, Joshua Gupta-Kagan

Faculty Scholarship

Reflecting evolving norms surrounding the legitimacy of intimate violence, the law has made steady progress toward acknowledging that domestic violence is not a private family matter, but instead demands public assistance to help survivors of that violence protect themselves and their children. Most recently, child advocates, juvenile court judges, and domestic violence advocates have joined in a concerted effort to address the co-occurrence of domestic violence and child abuse and neglect, coordinate responses and remedies among the various court systems, and develop methods to avoid re-victimizing mothers and children through legal process. This article traces civil remedies and barriers domestic …

A Short History Of Sex And Citizenship: The Historians' Amicus Brief In Flores-Villar V. United States, Kristin Collins

Faculty Scholarship

The historians’ amicus brief that accompanies this essay was submitted to the Supreme Court in Flores-Villar v. United States, an equal protection challenge to federal statutes that regulate the citizenship status of foreign-born children of American parents. When the parents of such children are unmarried, federal law encumbers the ability of American fathers to secure citizenship for their children, while providing American mothers with a nearly unfettered ability to do the same. The general question before the Court in Flores-Villar – and a question that the Court has addressed in sum and substance on two other occasions during the last …

Children, Parents & The State: The Construction Of A New Family Ideology, Deseriee A. Kennedy

Scholarly Works

More than twenty-five states allow courts to consider parental incarceration or conviction of a crime in determining whether to terminate parental rights. This problem is of increasing significance as a result of dramatic growth in incarceration rates, particularly among women who were often the primary and sole caretaker of their children before their imprisonment. Social scientists have recognized that the reality for parents in many communities is one of widespread and repeated incarceration, which has a devastating effect on families and communities. The problem is magnified by a failed drug policy and the Adoption and Safe Families Act, which, in …

Legislating After Janice M.: The Constitutionality Of Recognizing De Facto Parenthood In Maryland, Rachel Simmonsen

Student Articles and Papers

No abstract provided.

Global Child Welfare: The Challenges For Family Law, Ann Laquer Estin

Oklahoma Law Review

No abstract provided.

Should I Stay Or Should I Go: Why Immigrant Reunification Decisions Should Be Based On The Best Interest Of The Child, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.

The Power Of The Parental Trump Card: How And Why Frazier V. Winn Got It Right, Jocelyn Floyd

Chicago-Kent Law Review

When two fundamental rights are in conflict, such that the protection of one requires the infringement of the other, courts must weigh those rights against each other to determine which is ultimately greater. In Frazier v. Winn, the Eleventh Circuit dealt with precisely such an issue: specifically, the rights of parents pitted against those of their children. This note explores the history of both parental rights and student's rights in school to show why the court appropriately affirmed that children's right to free speech is only as expansive as their parents allow, justified by the parents' fundamental right to …

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. …

The Indian Child Welfare Act., Frank Vandervort

Book Chapters

Few child welfare lawyers routinely confront the application of the Indian Child Welfare Act (ICWA or "the Act"). When the statute applies, however, it is crucial that its provisions be strictly followed. There are at least three reasons why counsel should attempt to ensure that ICWA's provisions are carefully applied. First, ICWA's provisions are jurisdictional. Failure to abide by its requirements invalidates the proceeding from its inception. Indeed, any party or the court may invoke ICWA at any time in the proceeding, including for the first time on appeal. Second, unlike most federal child welfare legislation which provides funding streams …

Representing Parents In Child Welfare Cases, Vivek Sankaran

Book Chapters

A parent's constitutional right to raise his or her child is one of the most venerated liberty interests safeguarded by the Constitution and the courts.2 The law presumes parents to be fit, and it establishes that they do not need to be model parents to retain custody of their children.3 If the state seeks to interfere with the parent-child relationship, the Constitution mandates that the state: (1) prove parental unfitness, a standard defined by state laws; and (2) follow certain procedures protecting the due process rights of parents. The constitutional framework for child welfare cases is premised on the belief …

Federal Child Welfare Legislation., Frank Vandervort

Book Chapters

This chapter provides a brief overview of federal statutes that impact the practice of child welfare law. Since the enactment of the Child Abuse Prevention and Treatment Act in 1974 (CAPTA), the federal government has played an ever increasing role in handling child maltreatment cases.

A Co-Parent Win In Nebraska, Arthur S. Leonard

Other Publications

No abstract provided.

Conceivable Changes: Effectuating Infertile Couples' Emotional Ties To Frozen Embryos Through New Disposition Options, Jody L. Madeira

Articles by Maurer Faculty

No abstract provided.

The Parent As (Mere) Educational Trustee: Whose Education Is It, Anyway?, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

The purpose of this Article is two-fold. First, the Article argues that the parent’s right to educate his or her children is strictly circumscribed by the parent’s duty to ensure that children learn habits of critical reasoning and reflection. The law has long recognized that the state’s duty to educate children is superior to any parental right. Indeed, the “parentalist” position to the contrary rests on an inflation of rights that is, in fact, a radical departure from longstanding legal norms. Indeed, at common law the parent had “a sacred right” to the custody of his child, and the parent’s …

Deporting Grandma: Why Grandparent Deportation May Be The Next Big Immigration Crisis And How To Solve It, Marcia A. Yablon-Zug

Faculty Publications

This Article explores the issue of grandparent caregiver deportation. The phenomenon of grandparents raising grandchildren is not new, but the number of children being raised by grandparents is at an all-time high and growing. Numerous circumstances can lead to a grandparent's assumption of caregiving responsibilities, but in most cases, grandparents assume this role because there is no one else. For thousands of children, grandparents are the only family they have, and without them these children would be placed in foster care and subject to the serious problems that plague children in foster care. The importance of grandparent caregivers cannot be …