Family Law Commons^™

A Hidden Crisis: The Need To Strengthen Representation Of Parents In Child Protective Proceedings, Vivek Sankaran

Articles

A national consensus is emerging that zealous legal representation of parents is crucial in ensuring that the child welfare system produces just outcomes for children. National groups, inclucing the Pew Commission on Children in Foster Care, the American Bar Association Center on Children and the Law, and the National Association of Counsel for Children, have been outspoken on the need to strengthen legal advocacy on behalf of parents, and a number of states-including Colorado, Connecticut,' and Washington7 have initiated efforts to comprehensively reform their systems of appointing lawyers for indigent parents to better serve families. A national movement is afoot …

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 …

Families For Tax Purposes: What About The Steps?, Wendy C. Gerzog

University of Michigan Journal of Law Reform

At least 4.4 million families in the United States are blended ones that include stepchildren and stepparents. For tax purposes, these "steps" receive preferential treatment as a result of their status because, on the one hand, they are treated as family members for many income tax benefit sections, but on the other hand, are excluded from the definition of family member for business entity attribution purposes and for gift and estate tax anti-abuse provisions. In the interests of fairness and uniformity, steps should be treated as family members for all tax purposes where they act like their biological or adoptive …

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 …

Judicial Oversight Over The Interstate Placement Of Foster Children: The Missing Element In Current Efforts To Reform The Interstate Compact On The Placement Of Children, Vivek Sankaran

Articles

This article argues that current efforts to reform the Compact are flawed because they lack an essential element: judicial oversight of agency decision-making. The first section explores the important role that juvenile court judges play in making placement decisions for foster children. Next, an examination of the current problems in the interstate placement process demonstrates the vital need for judicial oversight of the system. Finally, a specific proposal is put forth on how best to incorporate judicial oversight without interfering with the sovereignty of states.

The Uses And Abuses Of Religion In Child Custody Cases: Parents Outside The Wall Of Separation, Joshua S. Press

Indiana Law Journal

Religious custody disputes such as those at the Fundamentalist Church of Jesus Christ of Latter-Day Saints compound in April, 2008 are very complex and are finding their way into courts with increasing regularity. This Essay argues that in responding to these religious custody disputes, courts should abstain from either analyzing a parent’s religious practices for their perceived “risks of harm” to the child, or from applying a flat rule to ensure that the custodial parent’s religious preferences take primacy. Instead, courts should employ the actual or substantial harm standard—which would only bar a parent from fully practicing her religion if …

Challenging Monohumanism: An Argument For Changing The Way We Think About Intercountry Adoption, Shani King

Michigan Journal of International Law

In Part I, this Article provides a brief history of ICA. In Part II, using a post-colonialist theoretical framework, the work of legal scholars from the past twenty years on the subject of ICA is explored. This analysis exposes the centrality of MonoHumanism to our discourse on ICA. In Part III, this Article illustrates how our discourse regarding intercountry adoption contributes to our violating the rights of children (and families) as they are defined in the CRC. Lastly, in Part IV, this Article explores how this argument fits into the current and somewhat polarized debate on ICA and how the …

Protecting A Parent's Right To Counsel In Child Welfare Cases, Vivek Sankaran

Articles

A national consensus is emerging that zealous leagal representation for parents is crucial to ensure that the child welfare system produces just outcomes for children. Parents' lawyers protect important constitutional rights, prevent the unnecessary entry of children into foster care and guide parents through a complex system.

When Child Protective Services Comes Knocking, Vivek Sankaran

Articles

A child protective services (CPS) worker knocks on the door of your client, a 36-year-old mother involved in a contentious child custody case. The worker reveals only that she received an anonymous phone call alleging that your client physically abused her son and now she must investigate those allegations under state law. The worker demands to enter the house, interview the children, and inspect the premises. She threatens that a lack of cooperation may result in the filing of a court petition and the possible removal of the child. Your panicked client calls with a plethora of questions: Can CPS …

Thou Good And Faithful Servant, Carl E. Schneider

Articles

Lawmakers are stewards of social resources. A current debate-over screening newborns for genetic disorders-illuminates dilemmas of that stewardship that have particularly plagued bioethics. Recently in the Report, Mary Ann Baily and Thomas Murray told the story of little Ben Haygood. He died from MCADD, a genetic disorder that can make long fasting fatal. Screening at birth would have let doctors alert Ben's parents. "After Ben died," Baily and Murray wrote, "his father became a passionate advocate for expanding Mississippi's newborn screening program to add MCADD and other disorders." Soon, the Ben Haygood Comprehensive Newborn Screening Act increased the number …

Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran

Articles

Over the past hundred years, a consensus has emerged recognizing a parent's ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings. Yet, …

Protocol For Attorneys Representing Parents In Child Protective Proceedings, Frank E. Vandervort, Vivek S. Sankaran

Other Publications

This protocol is intended to guide attorneys through the strategic decisions they will need to make while representing parents in child protective cases. The protocol does not provide a comprehensive action-step checklist. Parents’ attorneys can find that kind of guidance in other resources, including the “How-To-Kit: Representing Parents in Child Protective Proceedings” by the Institute of Continuing Legal Education; “Guidelines for Achieving Permanency in Child Protection Proceedings” by Children’s Charter of the Courts of Michigan; and the American Bar Association’s “Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases.”1 For its part, this protocol delves more substantively …

Legal Status And Effect On Children, Margaret F. Brinig, Steven L. Nock

Journal Articles

One of the haunting claims of each poor, unmarried mother in Edin and Kefalas' Promises I Can Keep is that at least she can guarantee she will love her child, even though she cannot promise to make a lifelong commitment to a mate. That love, each young mother says, will be a sustaining gift both to her and the child. Similarly, in work done by sociologists McLanahan and Garfinkel to counteract the claim that it was not single parenting that made children's prospects dim, but poverty, sociologists have found that many of the bad effects of single parenting go away …

Navigating The Interstate Compact On The Placement Of Children: Advocacy Tips For Child Welfare Attorneys, Vivek Sankaran

Articles

Legal advocates across the country confront hundreds of cases like Samira's each year. Many of those cases end with arms raised in frustration due to what appears to be a lack of options after the receiving state either fails to complete the home study or denies a placement. That frustration is understandabkle given the absence of language in the Compact outlining any process to compe states to complete home studies or to permit judicial review of placement denials. Yet, as advocates, we must move beyond this initial state of paralysis and develop creative ways to vindicate the rights of our …

Advocating For The Constitutional Rights Of Nonresident Fathers, Vivek Sankaran

Articles

Months after a child welaare case is petitioned, a nonresident father appears in court and requests custody of his children who are living in foster care. Little is known about the father, and immediately, the system-judge, caseworkers, and attorneys view him with suspicion and caution, inquiring about his whereabouts and his prior involvement in the children's lives. Those doubts, in turn, raise complicated questions about his legal rights to his children. As a practioner working in the child welfare system, you're likely to face this scenario. The largest percentage of child victims of abuse and neglect come from households headed …

Children's Beliefs And Family Law, Margaret F. Brinig

Journal Articles

In a recent series of opinions authored by Justice Stevens, the Court has recognized that children may have independent religious rights, and that these may be in conflict with their parents'. The questions for this piece are whether considering children's rights independently is a good thing whether it is warranted by children's actual religious preferences and whether children's religious activities actually do anything measurable for the children.

I do not advocate that the Supreme Court become more involved with family law than it has been since the substantive due process days of Meyer and Pierce. I am also not one …

In Defense Of The Indian Child Welfare Act In Aggravated Circumstances, C. Eric Davis

Michigan Journal of Race and Law

The Indian Child Welfare Act (ICWA) affords various protections to Indian families throughout child welfare proceedings. Among them is the duty imposed upon the state to provide rehabilitative services to families prior to the outplacement of an Indian child, or termination of parental rights. An analogous provision for non-Indians in the Adoption and Safe Families Act (ASFA) excuses rehabilitative services in "aggravated circumstances" of child abuse. The ICWA contains no such exception, and that absence has been controversial. In 2002, the Alaska Supreme Court applied ASFA's aggravated circumstances exception to the ICWA, thereby excusing services when a father severely abused …

Reflections On The Future Of Child Advocacy, Bobbe J. Bridge

University of Michigan Journal of Law Reform

This Essay emphasizes the foster child's rights to well-being and permanency, as well as safety. Noting an ongoing parent-centered approach, this Essay advocates a new paradigm, moving away from a focus on adults and toward a focus on the child. This Essay concludes by reviewing recent advances that promote a child-centered approach.

The Multiethnic Placement Act: Threat To Foster Child Safety And Well-Being?, David J. Herring

University of Michigan Journal of Law Reform

Despite the efforts of public officials to reduce the time children spend in foster care, many children live in foster homes for a substantial portion of their childhoods. In fact, a child placed in a foster home may remain in that home for an extended period, with a significant possibility of remaining there permanently. In light of this situation, the decision to place a child in a particular foster home is extremely important.

The federal Multiethnic Placement Act ("MEPA ") significantly affects foster care placement decisions. This law expressly prohibits public child welfare agencies from delaying or denying a child's …

Child Well-Being: A Beneficial Advocacy Framework For Improving The Child Welfare System?, Sarah H. Ramsey

University of Michigan Journal of Law Reform

This Article explores the advantages and disadvantages of child well-being as a child welfare system advocacy framework. It examines the use of the concept of child well-being as a social indicator and the importance of poverty rates to the child welfare system. It also examines the use of child well-being as an outcome measure for the child welfare system, in particular in Child and Family Service Reviews ("CFSRs") and court evaluations. The possible impact of the child wellbeing concept is considered in the context of several programs, including income supports and problem-solving courts. The Article concludes that, overall, well-being provides …

Neither Dyad Nor Triad: Children's Relationship Interests Within Kinship Caregiving Families, Sacha M. Coupet

University of Michigan Journal of Law Reform

Utilizing a research design lens as a platform for exploring children's relationship rights, this Essay examines first, the limitations of a rights-based framework and second, insufficient participation by children in decision-making regarding their access to and interest in relationships with significant others. This Essay posits that neither the dyadic rights-based framework in domestic relations nor the, ostensibly, triadic one in child welfare serve the interests of children, since children's rights are invariably subordinated to those of adults and the state. In place of a rights-based approach, this Essay endorses an interests-based model more attuned to the holistic aim of child …

Birth Certificates, Elizabeth Samuels

All Faculty Scholarship

Birth certificates in the United States, which are issued by the states, have two different sections, and each section involves different privacy concerns. The first section, the legal record of birth, is always available to the adult whose birth it registers; access by other persons varies widely from state to state, ranging from a short list of specified relatives to the public at large. The second section of the certificate - which records health and medical information about the parents, the birth, and the infant - is used only for data collection and analysis, under regulations that protect the privacy …

The Road Goes On Forever And The Party Never Ends': A Response To Judge Tacoma's Prescription For A Return To Foster Care 'Limbo' And 'Drift', Frank E. Vandervort

Articles

This article responds to Judge Tacoma’s suggested changes in Michigan law. It begins with a very brief history of child welfare legislation at the federal and state levels. Next, it points out a number of errors in Judge Tacoma’s understanding of the current state of Michigan’s child welfare law.2 It is necessary to point out these errors because it seems that his misstatements of the law form the foundation for his recommended reforms. Then it will respond point-by-point to many of Judge Tacoma’s recommendations. Finally, I will off er several suggestions for addressing the problem of legal orphans that do …

Procedural Injustice: How The Practices And Procedures Of The Child Welfare System Disempower Parents And Why It Matters, Vivek Sankaran, Itzhak Lander

Articles

Many of us appear surprised when families involved in the child protective system do not reunify. A parent’s path to reunification seems straightforward. Upon a finding of neglect, the court prescribes a basic regimen, typically consisting of parenting classes, counseling, drug testing, and a psychological evaluation, that a parent must fulfill prior to having the child returned to his/her custody. If a parent successfully completes these seemingly minimal requirements, the law requires reunification unless the return poses a “substantial risk of harm” to the child. With such high stakes involved, a clearly defined path for success, and the prospect of …

Adoption, Elizabeth Samuels

All Faculty Scholarship

In historical terms, the legal institution of adoption in the United Slates is relatively new. It was between the mid-1800s and the 1920s that the states began to pass laws providing for the adoption of children. Before then children had been adopted informally and in some instances by individual legislative acts, or they had come to live with other families under indenture contracts or as a result of legislation authorizing charitable organizations to place children. Under these new adoption statutes, initially the court records of adoptions were not subject to confidentiality, and adopted children were not issued new birth certificates. …

Innovation Held Hostage: Has Federal Intervention Stifled Efforts To Reform The Child Welfare System?, Vivek Sankaran

Articles

The past thirty years have been marked by an increased federalization of child welfare law, which, like other areas of family law, traditionally remained within the sole purview of state legislatures. Despite increased oversight by the federal government, outcomes for foster children remain unacceptably poor The number of children in foster care has more than doubled over the past twenty-five years and reports of suspected maltreatment have skyrocketed. Children continue to stay too long in care and have too many placements. Case workers assigned to work with families and attorneys representing parents and children are overwhelmed and rarely provide meaningful …

Report Of The Working Group On The Role Of The Family, Working Group On The Role Of The Family

Nevada Law Journal

No abstract provided.

To Protect And Defend: Assigning Parental Rights When Parents Are Living In Poverty, Karen Czapanskiy

Faculty Scholarship

No abstract provided.

Introducing The Construct Of The Jury Into Family Violence Proceedings And Family Court Jurisprudence, Melissa L. Breger

Michigan Journal of Gender & Law

This Article draws upon both the theory of and research on procedural justice holding that litigants often focus on the appearance of fairness rather than on the actual outcome. Thus, when litigants are able to choose the modality of fact-finding, they may be more accepting of the legal process, even if the outcome is not favorable to them. Allowing the option of a jury, even if not exercised, may dramatically improve the perceptions of litigants and may affect the legitimacy and longevity of case outcomes.

The Rights Of Putative Fathers To Their Infant Children In Contested Adoptions: Strengthening State Laws That Currently Deny Adequate Protection, Robbin Pott Gonzalez

Michigan Journal of Gender & Law

This paper argues that states need to strengthen protection of putative fathers' rights to their infant children when the mother wishes for the child to be adopted. Part I frames the discussion around established parental rights through constitutional case law. To do this, the paper addresses both the Supreme Court's parental rights doctrine and its biology-plus doctrine, which requires unwed fathers to show that in addition to being the biological father they also have taken responsibility for their children. Part II describes common state statutes that affect putative fathers, including putative father registries, safe haven laws, and laws granting custody …