Family Law Commons^™

In Memoriam: The Canadian Research Institute For Law And The Family, 1987–2018, John-Paul E. Boyd

Canadian Journal of Family Law

No abstract provided.

Faire Valoir Ses Droits À La Chambre De La Jeunesse : État Des Lieux Des Barrières Structurelles À L’Accès À La Justice Des Familles, Emmanuelle Bernheim, Marilyn Coupienne

Canadian Journal of Family Law

S’il est convenu que l’intervention en protection de la jeunesse constitue en soi une atteinte aux droits fondamentaux des parents, il est souvent pris pour acquis que les droits des parents et des enfants s’opposent autour de notions telles que l’intérêt supérieur de l’enfant et le projet de vie permanent. Au Québec, dans un contexte où les mères vivant dans la pauvreté, et plus particulièrement les mères autochtones ou issues de minorités visibles, sont surreprésentées en protection de la jeunesse et où le nombre de dossiers judiciarisés a cru de 20% depuis les années 1990, il apparaît non seulement pertinent …

Relationally Speaking: The Implications Of Treating Embryos As Property In A Canadian Context, Kathleen Hammond

Canadian Journal of Family Law

In July 2018, the Ontario Superior Court, in S.H. v D.H., dealt with a dispute between a recently separated couple over a frozen embryo that the couple had created. In his judgment, Justice Del Frate stated that the embryo should be conceived of as property. This was the cause of uproar among feminist legal scholars who were concerned with the possible repercussions for cisgender women of labeling embryos as property. The Superior Court decision was subsequently overturned by the Ontario Court of Appeal this past May (2019). However, given the likelihood that embryos will be treated as property in …

Autonomous Motherhood In The Era Of Donor Linking: New Challenges And Constraints?, Fiona Kelly

Canadian Journal of Family Law

The number of single mothers by choice (SMCs), that is, unpartnered women who choose to conceive a child that they intend to raise on their own; has grown rapidly in Australia, where they now represent the largest user group of clinic-based donor sperm. Despite the growing visibility of SMCs, constraints remain for women who wish to parent autonomously from a partner. This article explores a complex new challenge for Australian SMCs: whether to participate in the increasingly popular phenomenon of “donor linking,” defined as the process by which parents who use donated gametes to conceive seek access to the donor’s …

All Families Are Equal, But Do Some Matter More Than Others? How Gender, Poverty, And Domestic Violence Put Quebec's Family Law Reform To The Test, Suzanne Zaccour

Canadian Journal of Family Law

Who needs family law? While it is tempting to answer “everyone”, the stakes are not the same for all. I propose to evaluate family law rules in terms of how they address high-stakes situations—that is, the condition of vulnerable women. Thus, the test of good family law should be how well it deals with poverty and domestic violence, factors that directly constrain women’s ability to negotiate fair outcomes.

To explore this method, I take the example of a recent proposal, developed by Alain Roy’s reform committee (the “Comité consultatif sur le droit de la famille”), and regarding which the Quebec …

Hong Kong's Children Proceedings (Parental Responsibility) Bill: Comparative Family Law Reform And Multidisciplinary Collaboration, Katherine Lynch

Canadian Journal of Family Law

Many comprehensive reviews of family justice systems have been undertaken in common law jurisdictions over the past 20 years, all seeking to provide more meaningful affordable access to justice for families and children. Hong Kong is also under pressure to enact legislative reforms originally proposed in 2002-2005 which deal with children’s matters and more broadly, with family and matrimonial issues. Legislative reform was anticipated when the Government announced the long awaited Children’s Proceedings (Parental Responsibility) Bill (“Children’s Bill”) in 2015. After significant public consultation, however, the Government announced in 2018 that it would delay implementation of this draft legislation. Unfortunately, …

Front Matter

Canadian Journal of Family Law

No abstract provided.

Introduction To The Special Issue: Shifting Normativities, Régine Tremblay, Erez Aloni

Canadian Journal of Family Law

On May 9 and 10, 2019, we held an international and interdisciplinary conference entitled Shifting Normativities: Families, Feminisms, Laws—Celebrating the Work of Professor Susan B. Boyd. This event, cohosted by the Centre for Feminist Legal Studies and the Canadian Journal of Family Law, brought together to the Peter A. Allard School of Law at the University of British Columbia scholars from different countries and disciplines. It had three principal goals. First, celebrating the work of Professor Susan B. Boyd; second, producing cutting-edge scholarship in under-researched fields, namely, family studies and feminist theory; and third, creating new networks of …

Intent To Parent Is What Makes A Parent? A Comparative Analysis Of The Role Of Intent In Multi-Parenthood Recognition, Nola Cammu

Canadian Journal of Family Law

In most jurisdictions, the two-parent rule does not take into account the social reality of intentional multiple-parent families where more than two parents share parenting tasks from a child’s birth. Many cases show that children in non-traditional parenting constellations are emotionally attached to all parental figures and perceive them as true parents. Unfortunately, the law does not adequately acknowledge multiple parenting practices, and thus a discrepancy exists between the social and the legal reality of (often young) children in intentional plus-two-parent families. This article argues that the law should aim to rectify this discrepancy by legally accommodating multiple parenthood, preferably …

Abortion Talk, Clare Huntington

Faculty Scholarship

Public service announcements routinely note that one in eight women will be diagnosed with breast cancer. Advocates frequently invoke the twenty percent wage gap between men and women. And educational groups often cite the (more contested) statistic that one in five women will be sexually assaulted during college. But there is another data point not regularly part of public conversation: nearly one in four women will have an abortion by the age of forty-five. The widespread — but largely secret — practice of terminating pregnancies is what Carol Sanger wants us to talk about. As much as possible.

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 …

Searching The Legacy Of The Reformation For Lutheran Responses To Modern Family Law, Marie Failinger

Faculty Scholarship

This article builds upon historical work on changes in the law of marriage, divorce and the family after the Reformation, and describes how modern Lutheran theology, formed during the Reformation, evaluates modern trends in American family law. From the key Lutheran theological insight that God is creatively ordering human activity as a partner with human beings, the Lutheran tradition approaches issues such as no-fault divorce and same-sex marriage with both trust and challenge.

Restructuring Rebuttal Of The Marital Presumption For The Modern Era, Jessica Feinberg

Articles

The marital presumption of paternity, which arose from English common law, has served as a core component of the law governing parentage in the United States since the nation’s inception. Pursuant to the marital presumption, a husband is presumed to be the legal father of any child born to or conceived by his wife during the marriage. Historically, the marital presumption was extremely difficult to rebut, generally requiring proof of the husband’s non-access to his wife during the time of conception, the husband’s sterility or impotence, or adultery on the part of the wife. As these early grounds for rebuttal …

Representing The Child In Child Protective Proceedings: Toward A New Paradigm, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

This article will attempt a new approach, one based on an analysis of the child's interests in a child protective proceeding. As will be discussed in Part 1, most interests are surprisingly overlooked or barely articulated in the representation debate. Part 2 will summarize the statutes and case law governing the role of the child's counsel in the child protective litigation continuum. The frequently lengthy process may range from initiation by a child protective agency to the achievement of family reunification or other permanency goal. For children, the continuum of sequential proceeding may span years or decades. Finally, Part 3 …

Equality, Equity, And Dignity, Nancy E. Dowd

Minnesota Journal of Law & Inequality

No abstract provided.

A Case For Legalizing Polygamy In Western Societies: Lessons From The Global South, John Joseph Wamwara

Minnesota Journal of Law & Inequality

No abstract provided.

Uncommon Misconceptions: Holding Physicians Accountable For Insemination Fraud, Jody Lynee Madeira

Minnesota Journal of Law & Inequality

No abstract provided.

Report Of A National Meeting: Parental Involvement Laws And The Judicial Bypass, Rachel Rebouche

Minnesota Journal of Law & Inequality

No abstract provided.

Bibliography Of The Writings (1976-2017) Of Robert Raphael, Joel Fishman

Law Faculty Publications

The following bibliography is based on the card catalogs of the Allegheny County and Jenkins Law Libraries as well as the collection located in the first library. Robert Raphael (1922-2019) was born in New York City, but spent his whole life in Pittsburgh, PA. He is known by his colleagues as the “father of divorce law” along with Albert Momjian in creating the Divorce Code of 1980.

Bibliography Of The Writings (1979-2019) Of Lynne Z. Gold-Bikin, Joel Fishman

Law Faculty Publications

Lynne Z. Gold-Bikin (1938-2019) was a major family law practitioner in Pennsylvania for the last 40 years. Members of the section paid tribute to her in the October 2018 issue of the Pennsylvania Family Lawyer as did Judge Daniel Clifford who gave a Memorial Minute published in the Spring 2019 issue of the Pennsylvania Family Lawyer from which the following is summarized.

Immigration, Adoption And Our National Identity, Shani M. King

UF Law Faculty Publications

In this Article, I tell the story of intercountry adoption. Our starting point is the beginning of the adoption process, with so-called “sending countries,” in which I explore the reasons that countries enter their children into the intercountry adoption market. We begin in the aftermath of World War II and continue until the present day. The story starts in Europe (specifically, in Germany, Greece, and Italy) and Japan. It then continues throughout the Korean War and the communist regime of Nicolae Ceauseacu, until present-day Russia and China. Next, I tell the story of receiving countries; I discuss the social, political, …

Equality, Equity, And Dignity, Nancy E. Dowd

UF Law Faculty Publications

In this Essay I explore the definition and scope of children’s equality. I argue that equality includes equity and dignity. The meaning of each of these concepts is critical in imagining a deep, rich vision of equality, and in constructing policies to achieve that vision. This definition of equality creates affirmative rights, demands action to resolve structural discrimination that creates and sustains hierarchies among children, and requires affirmative support for children’s developmental equality.

The View From Minnesota: How Early Neutral Evaluation Can Help In Family Cases, Kelly Browe Olson, Marty Swaden

Law Faculty Scholarship

No abstract provided.

2018 Survey Of Rhode Island Case Law

Roger Williams University Law Review

No abstract provided.

Introduction, June Carbone

Minnesota Journal of Law & Inequality

Introduction of articles published as a part of the North American Regional Meeting of the International Society of Family Law

The Spousal Support Advisory Guidelines, Soft Law, And The Procedural Rule Of Law, Jodi Lazare

Articles, Book Chapters, & Popular Press

The Spousal Support Advisory Guidelines facilitate discretionary spousal support determinations under the Divorce Act. Non-binding in nature, they are expected to restore some transparency to an uncertain and unpredictable remedy and to benefit dependent spouses who might previously have been deterred from claiming support. They may thus be seen as an important tool for advancing economic justice at family breakdown and promoting substantive economic gender equality. Several Canadian appellate courts have enthusiastically endorsed them. Others object to their application, grounding their resistance in their unofficial and non-binding character. This paper responds to that objection, based on the constitutional separation of …

The Spousal Support Advisory Guidelines, Soft Law, And The Procedural Rule Of Law, Jodi Lazare

Articles, Book Chapters, & Popular Press

The Spousal Support Advisory Guidelines facilitate discretionary spousal support determinations under the Divorce Act. Non-binding in nature, they are expected to restore some transparency to an uncertain and unpredictable remedy and to benefit dependent spouses who might previously have been deterred from claiming support. They may thus be seen as an important tool for advancing economic justice at family breakdown and promoting substantive economic gender equality. Several Canadian appellate courts have enthusiastically endorsed them. Others object to their application, grounding their resistance in their unofficial and non-binding character. This paper responds to that objection, based on the constitutional separation of …

The Constitutionalization Of Fatherhood, Dara Purvis

Faculty Scholarship

Beginning in the 1970s, the Supreme Court heard a series of challenges to family law statutes brought by unwed biological fathers, questioning the constitutionality of laws that treated unwed fathers differently than unwed mothers. The Court’s opinions created a starkly different constitutional status for unwed fathers than for unwed mothers, demanding additional actions and relationships before an unwed father was considered a constitutional father. Although state parentage statutes have progressed beyond their 1970s incarnations, the doctrine created in those family law cases continues to have impact far beyond family law. Transmission of citizenship in the context of immigration law and …

Childcare, Vulnerability, And Resilience, Meredith Johnson Harbach

Law Faculty Publications

The question of how to provide care for America’s youngest children, and the quality of that care, is among the most vexed for family law. Despite seismic demographic shifts in work and family, childcare law and policy in the United States still operates on the assumption that childcare is the private responsibility of parents and families rather than a state concern. But this private childcare model, based on unrealistic assumptions in liberal theory and buttressed by an ascendant neoliberalism, is inadequate to today’s childcare challenges. This project confronts the inadequacies of the private childcare model. Using Martha Albertson Fineman’s Vulnerability …

Zoned Out: How Zoning Law Undermines Family Law’S Functional Turn, Kate Redburn

Faculty Scholarship

A fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law doctrines have increasingly embraced the claims of “functional families” — those whose bonds can be traced to cohabitation and shared domestic life. At the same time, zoning laws have narrowed to recognize only formal families, effectively restricting residency to individuals related by blood, marriage, or adoption. As a result, family law’s “functional turn” remains vulnerable in at least thirty-one states. Using original legal analysis and historical research, this Note illuminates that contradiction, explains how it arose, and argues that …