Family Law Commons^™

Fundamental Rights And Fair Fights: Holding Out For Legal Patent Recognition Under State Multiparent Recognition Statutes, Heather Kolinsky

Loyola of Los Angeles Law Review

This Article considers the impact of the behavioral proxy of holding out to establish legal parenthood, and how that proxy functions in new statutory frameworks designed to recognize more than two legal parents for a child. Holding out was originally conceived as a mechanism to allow unmarried biological fathers to seek legal parent status. Holding out has been extended to intended and intentional parents in surrogacy and assisted reproductive technology as well as to married and unmarried same sex partners. In these iterations, holding out has facilitated legal parent recognition as the modern family form has evolved to include more …

Parent-Child Contact In Family-Focused Programs For Incarcerated Individuals, Carol Marie Nettie Mcdonald

Electronic Theses, Projects, and Dissertations

The following research study will evaluate family-focused programs offered to incarcerated individuals and determine if these programs are hindered when there is little to no contact between parents and children during incarceration. Family-focused programs include parent/child bonding, and/or parenting classes and other similar programs. The research method that will be used in this study is a qualitative design and will gather data through interviews of formerly incarcerated individuals as well as former children (now adults) who have been involved in family programming. The study will also gather data from licensed clinical staff who have been involved in related programming while …

Prosecuting Families, Anna Arons

Faculty Publications

Hundreds of thousands of parents are prosecuted in the family regulation system each year. Their cases are investigated by family regulation agencies and prosecuted by lawyers employed by the government—family regulation prosecutors. Like police and prosecutors in the criminal legal system, this family regulation prosecutorial team wields immense power, particularly over race–class subjugated communities. Yet even as scholarship on criminal prosecutors and on the family regulation system has proliferated, the role of family regulation prosecutors has gone underexamined and undertheorized.

This Article offers a critical examination of the role of these family regulation prosecutors. Drawing on a variety of primary …

Mired In Meyer'S Mischief A Century After Fabrication Of Constitutional Parents' Rights, James G. Dwyer

Faculty Publications

The seminal Supreme Court decisions Meyer v. Nebraska and Pierce v. Society of Sisters, now commemorated on their centenary anniversary, are odd doctrinal ducks. They are both still routinely cited as the foundation for ascribing to persons on whom the state has conferred legal parent status a right under the Fourteenth Amendment Due Process Clause of the United States Constitution. (According to Westlaw, judicial citation count for Meyer now nears 3000, and secondary-source citations have surpassed 7000.) It is a constitutional right to force states to confer on them greater legal power than the state is otherwise inclined to …

The Three-Dimensional Chess For Parents Facing A Child Protective Services Investigation: Navigating The Child Welfare Exception To The Constitution, Gregory M. Varner

Pace Law Review

This article examines the intricate dynamics faced by parents dur-

ing a child protective services (CPS) investigation, highlighting the complexities of navigating the child welfare system within the framework of constitutional exceptions. It outlines the unique challenges parents en- counter, including legal rights, procedural requirements, and the emotional toll of being under investigation. By analyzing relevant legal standards and the roles of various stakeholders, the article provides essential guidance for parents on how to effectively engage with CPS while protecting their family’s interests. Emphasizing the importance of in- formed advocacy, the article aims to equip parents with the knowledge and …

Habeas Corpus—A Better Remedy In Visitation Denial Cases, James A. Albert, Gregory A. Brodek

Maine Law Review

Most family law statistics are sobering. For example, in 1986, there were 2,400,000 marriages in the United States and 1,159,000 divorces. In 1985, there were 2,425,000 marriages and 1,187,000 divorces. Millions of children are affected by these divorces each year as courts decide which parent should be awarded their custody. In 1986, there were approximately 63,000,000 American children and 6,139,000 of these children came from broken homes. According to official census statistics, twenty-one percent of America's children live only with their mother while less than three percent live only with their father. In most divorce cases, Mom gets custody and …

Together Or Apart? The Effects A Parent's Relationship Dynamic Has On Their Child(Ren)'S Romantic Relationship, Kailee Delos Santos

University Honors Theses

The relationship between parents is considered one of the most influential interactions a child will experience; as it is usually the first relationship a child witnesses where personal values and interests develop (Stanger, 2019). Nonetheless, it is a consistently understudied population in family research and, when studied, children are primarily examined during adolescence and often only in the context of conflict and rivalry. Additionally, much of this research does not examine the effects of a child's romantic relationship on the larger family system. This thesis seeks to address this gap in the literature by understanding how the relationship of a …

How To Bring Your Kids Up Queer: Family Law Realism, Then And Now, Kris Franklin, Noa Ben-Asher

Faculty Publications

(Excerpt)

Paula Ettelbrick fought for us.

As a pragmatic and radical litigator, Ettelbrick spent years trying to use a frequently uncomprehending and often outright hostile court system to protect LGBTQ+ Americans. While her work took her into the many areas of law that touched queer lives, a special focus and passion of her advocacy was reserved for queer families.

Paula also tried to warn us.

In the absence of legal recognition for the families we construct, queer lives are rendered not just invisible but virtually nonexistent; we become legal strangers to our loved ones in ways that violently obliterate our …

"Work And Caregiving During Covid-19" And "Pregnant Employees And New Parents", Deborah A. Widiss

Books & Book Chapters by Maurer Faculty

Professor Widiss contributed chapter 6 "Work and Caregiving During COVID-19" and chapter 8 "Pregnant Employees and New Parents" in this Open Access book edited by Jeffrey Hirsh and Sachin Pandya.

The two Widiss chapters, combined into one .pdf file, can be downloaded above, or the entire book can be viewed HERE.

The Stability Paradox: The Two-Parent Paradigm And The Perpetuation Of Violence Against Women In Termination Of Parental Rights And Custody Cases, Judith Lewis

Michigan Journal of Gender & Law

Despite changing family compositions, entrenched in family law is the antiquated idea that a two-parent household, or its approximation vis-à-vis a shared custody arrangement, promotes stability and integrity and, thus, is in the best interest of the child. Yet, the concept that the two-parent household (or shared involvement of both parents in the child’s life if the parents separate) promotes stability for the family and is best for the child is a dangerous fallacy. When rape or intimate partner violence (IPV) is present, or the re-occurrence of violence remains a threat, the family unit is far from stable.

This Article …

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 …

Paper Courts And Parental Rights: Balancing Access, Agency, And Due Process, Tianna N. Gibbs

Scholarly Articles in Law Reviews & Journals

Across the country, state legislatures have created out-of-court, form-based processes that replace the adjudicative process in traditional courts. In the family law context, these out-of-court forms allocate fundamental parental rights, principally for unmarried and single parents, who disproportionately have low incomes and are people of color. In most states, instead of presenting their requests to a judge in a courtroom, parents can sign legal forms in a hospital room to establish paternity or at their kitchen table to assign their custodial rights to a third party. When a child is born to an unmarried mother, as 40% of children are, …

Serving-Up The Ace: Understanding Adverse Childhood Experiences (“Ace”) In Dependency Adoption Through The Lens Of Social Science, Cynthia G. Hawkins, Taylor Scribner

University of Michigan Journal of Law Reform Caveat

Almost certainly, every child who enters the foster care system has endured some sort of trauma. It is unrefuted that childhood trauma correlates with mental, physical, and behavioral problems well into adulthood. In 1998, one of the first major studies of the relationship between certain forms of childhood trauma and adult behavior and disease was reported. Collectively, these traumas are called “Adverse Childhood Experiences” (ACE).

Today ACE refers to ten common forms of trauma that individuals may have experienced as children. To put this issue in perspective, it is currently estimated that 34.8 million children in the United States are …

Compassion: The Necessary Foundation To Reunify Families Involved In The Foster Care System, Katherine Markey, Vivek Sankaran

Articles

Compassion plays a critical role in ensuring that stakeholders can engage with, and support parents trying to reunify with kids in the foster care system. This Article will explore the compassion crisis in foster care, will present the research documenting the impact of compassion on engaging families, and will identify key steps stakeholders can take to incorporate compassion into their work.

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

Michigan Law Review

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 …

A Cure Worse Than The Disease? The Impact Of Removal On Children And Their Families, Vivek Sankaran, Christopher Church, Monique Mitchell

Articles

Removing children from their parents is child welfare's most drastic intervention. Research clearly establishes the profound and irreparable damage family separation can inflict on children and their parents. To ensure that this intervention is only used when necessary, a complex web of state and federal constitutional principles, statutes, administrative regulations, judicial decisions, and agency policies govern the removal decision. Central to these authorities is the presumption that a healthy and robust child welfare system keeps families together, protects children from harm, and centers on the needs of children and their parents. Yet, research and practice-supported by administrative data-paint a different …

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 …

Champions For Justice & Public Interest Auction 2019, Roger Williams University School Of Law

School of Law Public Interest Auction

No abstract provided.

Transparenthood, Sonia K. Katyal, Ilona M. Turner

Michigan Law Review

Despite the growing recognition of transgender rights in both law and culture, there is one area of law that has lagged behind: family law’s treatment of transgender parents. We perform an investigation of the way that transgender parents are treated in case law and discover striking results regarding the outcomes for transgender parents within the family court system. Despite significant gains for transgender plaintiffs in employment and other areas of law, the evidence reveals an array of ways in which the family court system has systematically alienated the rights and interests of transgender parents. In many cases involving custody or …

A Cure Worse Than The Disease? The Impact Of Removal On Children And Their Families, Vivek Sankaran, Christopher Church, Monique Mitchell

Marquette Law Review

Removing children from their parents is child welfare’s most drastic

intervention. Research clearly establishes the profound and irreparable

damage family separation can inflict on children and their parents. To ensure

that this intervention is only used when necessary, a complex web of state and

federal constitutional principles, statutes, administrative regulations, judicial

decisions, and agency policies govern the removal decision. Central to these

authorities is the presumption that a healthy and robust child welfare system

keeps families together, protects children from harm, and centers on the needs

of children and their parents.

Yet, research and practice—supported by administrative data—paint a

different …

My Name Is Not 'Respondent Mother': The Need For Procedural Justice In Child Welfare Cases, Vivek S. Sankaran

Articles

You are a parent whose children are in foster care. Your court hearing is today, after which you hope your children will return home. Upon leaving the bus, you wait in line to enter the court. At the metal detectors you’re told you can’t bring your cell phone inside. With no storage options, you hide your phone in the bushes, hoping it will be there when you return.

Surrogate Mothers, Gestational Carriers, And A Pragmatic Adaptation Of The Uniform Parentage Act Of 2000, John C. Sheldon

Maine Law Review

Recent medical advances that permit human conception without intercourse, in combination with sociological changes in our country, dramatically enlarge the population of adults who can produce or raise children. The legal price for this broadening of opportunity, however, is a diminishment of certainty: We are no longer sure whom we should identify as a child's parents. These are important questions, of course, because ready answers will quickly dampen disputes about custody and will immediately establish support obligations and the children's eligibility for health insurance, for inheritance, for Workers' Compensation benefits, and for Social Security survivor benefits. But as important as …

Mothers With Disabilities, Nicole Buonocore Porter

Faculty Publications

For the past several decades, feminist theorists have focused on the intersection of sex and other identities: race, primarily, but also religion, sexual orientation, gender identity, and ethnicity. More recently, a few scholars have begun exploring the intersection of sex and disability, highlighting the unique obstacles facing women with disabilities. This Article advances the intersectionality literature by exposing and exploring the marginalization experienced by mothers with disabilities. Specifically, this Article will explore how the stereotypes that apply to women, mothers, and individuals with disabilities, intersect to produce a particularly precarious position for mothers with disabilities in the workplace (employment law) …

Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran

Articles

In New York City, an indigent parent can receive the assistance of a multidisciplinary legal team—an attorney, a social worker, and a parent advocate—to defend against the City’s request to temporarily remove a child from her care. But in Mississippi, that same parent can have her rights to her child permanently terminated without ever receiving the assistance of a single lawyer. In Washington State, the Legislature has ensured that parents ensnared in child abuse and neglect proceedings will receive the help of a well-trained and well-compensated attorney with a reasonable caseload. Yet in Tennessee, its Supreme Court has held that …

The Crossroads Of A Legal Fiction And The Reality Of Families, Andrew L. Weinstein

Maine Law Review

In Adoption of M.A., the Maine Supreme Judicial Court, sitting as the Law Court, held that an unmarried, same-sex couple could file a joint petition for adoption of two foster children in their care. This recent decision is only a fraction of a story that originated a long time ago when same-sex couples began raising children. This Comment begins by examining the role of the state courts and the United States Supreme Court in their exposition of family law relating to adoption by same-sex couples. The United States Supreme Court has periodically weighed in on family law and parenting in …

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.

The Pro Bono Collaborative Project Spotlight 09-06-2017, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

Timely Permanency Or Unnecessary Removal?: Tips For Advocates For Children Who Spend Less Than 30 Days In Foster Care, Christopher Church, Monique Mitchell, Vivek Sankaran

Articles

Removal and placement in foster care is child welfare’s most severe intervention, contemplated as “a last resort rather than the first.” Federal law, with an overarching goal of preventing unnecessary removals, bolsters this principle by requiring juvenile and family courts to carefully oversee the removal of children to foster care. Expansive research reminds the field that removal, while often necessary, is not a benign intervention. Physically, legally, and emotionally separating children from their parent(s) can traumatize children in lasting ways. Yet review of federal data concerning children in foster care reveal a troubling narrative: each year, tens of thousands of …

Sharenting: Children's Privacy In The Age Of Social Media, Stacey B. Steinberg

UF Law Faculty Publications

Through sharenting, or online sharing about parenting, parents now shape their children’s digital identity long before these young people open their first email. The disclosures parents make online are sure to follow their children into adulthood. Indeed, social media and blogging have dramatically changed the landscape facing today’s children as they come of age.

Children have an interest in privacy. Yet a parent’s right to control the upbringing of his or her children and a parent’s right to free speech may trump this interest. When parents share information about their children online, they do so without their children’s consent. These …

The Elimination Of Child “Custody” Litigation: Using Business Branding Techniques To Transform Social Behavior, Elena B. Langan

Pace Law Review

This article discusses how rebranding principles, already being used to alter social behavior in other non-consumer contexts, could be utilized to accomplish the legislative goal to reduce litigation as well as diminish animosity in custody cases. Part II of this article discusses the impetus for a transformation in the way parents view custody disputes. Part III discusses basic branding principles and how companies establish a brand and can successfully change their branding. Part IV explores the evolution of the current custody brand, identifies eight states that have eliminated “custody” and, in some cases, “visitation” from their vernacular, and discusses, in …