Family Law Commons^™

Legislative Update: Helping Overcome Trauma For Children Alone In Rear Seats Act, Gabrielle Long

Children's Legal Rights Journal

No abstract provided.

Table Of Contents, Children's Legal Rights Journal

Children's Legal Rights Journal

No abstract provided.

Review: My Sister's Keeper: Compelled Donations And A Minor's Right To Their Own Body, Ayah Elfarra

Children's Legal Rights Journal

No abstract provided.

State Action That Penalizes Children As Evidence Of A Desire To Harm Politically Unpopular Parents, Catherine E. Smith

Scholarly Articles

This Article is the first to advance the position that when the government takes the extreme step of denying children basic rights and benefits because of their parents, such state action should be recognized not just as evidence of animus against the children, but also as evidence of "a bare desire to harm" their "politically unpopular" parents. Identifying this type of government motivation and calling it what it is--animus toward parents--is just as important as condemning animus against the children themselves. Anti-parent animus that motivates harmful government behavior towards children should be prohibited as an impermissible means to accomplish an …

Intimate Partner Violence & Men’S Professional Sports: Advancing The Ball, Chelsea Augelli, Tamara L. Kuennen

Sturm College of Law: Faculty Scholarship

This article examines how men'sprofessional sports leagues treat domestic violence committed by players. Over the past twenty years, but particularly over the last five, the public has criticized, and the media has shone a spotlight on, the big leagues' ignoring of the issue. Many call for parity between how the criminal justice system treats the issue of domestic violence and how the leagues should treat it, arguing for a zero-tolerance approach. This article applies lessons learned by feminist law and policy makers and legal scholars in the development of the larger justice system response to domestic violence to the nascent …

Michigan's Religious Exemption For Faith-Based Adoption Agencies: State-Sanctioned Discrimination Or Guardian Of Religious Liberty?, Allison L. Mcqueen

Notre Dame Law Review

Historically, most of the legal obstacles faced by gay couples hoping to expand their families through adoption stemmed from prohibitions on marriage. That was until Obergefell. Barriers to same-sex adoption have been steadily falling over the past decade, and, in the wake of the Supreme Court’s decision, married couples are now able to adopt in every state. However, there remains one pressing barrier to adoption for same-sex couples: “conscience clause” adoption laws enacted to allow faith-based adoption agencies to turn away prospective parents whose sexuality conflicts with their “sincerely held religious beliefs.” Though Ms. DeBoer and Ms. Rowse successfully broke …

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 …

Too Stupid: Intellectual Disability As A Statutory Ground For Termination Of Parental Rights, Charlotte Jayne Cooper

The Modern American

No abstract provided.

A Parent’S Final Sacrifice: Self-Incrimination In Failure To Protect Cases, 51 J. Marshall L. Rev. 377 (2018), Maggie Butzen

UIC Law Review

When criminal proceedings commence, the passive parent is forced to choose the lesser of two evils: testify and risk self-incrimination or guard their constitutional right and risk the person who abused them and their child going free.The passive parent exists at a crossroads: defendant, parent, and victim. The main purpose of this Comment is to analyze this crossroads under a Fifth Amendment lens and propose a workable solution to allow these passive parents a way to better navigate these “two evils.” To be clear: this Comment’s purpose is not to assert whether a passive parent should be held culpable for …

Expert Report Of Catherine Smith, J.D.: Juliana V. United States, Catherine Smith

Scholarly Articles

The Founders created the architecture for the rights of children to self-determination and protection from the sins of their forebears. A central tenet of our democracy is that government, including these federal defendants, should not deprive children (the next generation) of the foundational elements of their lives, liberties or property and should not impose hardships on them for matters of which they have no control. This historical tradition and intent of the Founders of our nation has not always been realized, but has evolved over time as our society gains new insights and understandings of children and our notions of …

No-Fault Divorce: The Case Against Repeal, Joanna L. Grossman, Elicia Grilley Green

Hunter Center Publications

The Texas Legislature has recently been presented with House Bill 93 (“HB 93”), which aims to eliminate no-fault divorce for individuals seeking a divorce without the consent of both parties.

This paper refutes every argument made by supporters of the bill, showing why no-fault divorce is an appropriate and necessary option for the dissolution of an unsustainable marriage. The best argument against HB 93 is the history of fault-based divorce itself, which demonstrates the bill’s flaws in spades. Fault-based divorce neither lowers the divorce rate, nor alleviates the effects of divorce on children. There is no contractual or constitutional right …

Repealing No-Fault Divorce Would Harm Survivors Of Domestic Violence In Texas, Judge Elmo B. Hunter Legal Center For Victims Of Crimes Against Women

Hunter Center Publications

For the past two legislative sessions, the Texas Legislature has explored the repeal of no-fault divorce in the state. This paper explains why such action would be detrimental to the more than five million survivors of domestic violence in Texas. Briefly stated, requiring proof of fault in order to obtain a divorce imposes financial burdens that trap victims in abusive relationships and increases the risk of harm and lethality.

The economic impacts of repealing unilateral no-fault divorce will adversely affect not only victims of domestic violence but also the State of Texas itself. By its nature, fault-based divorce is significantly …

Loving Lessons: White Supremacy, Loving V. Virginia, And Disproportionality In The Child Welfare System, Leah A. Hill

Fordham Law Review

Part I of this Article introduces a brief discussion of the history of antimiscegenation laws and, specifically, their prevalence in the Commonwealth of Virginia during the 1950s. Next, Part II sets forth a short commentary about the Lovings’ triumph over antimiscegenation. Part III then details the Lovings’ judicial hurdles against the state, which argued that its antimiscegenation laws were enacted, in part, to prevent child abuse and thus served legitimate state interests. Part IV argues that the remnants of the white supremacist ideology at the center of Loving appear in our modern child welfare system, which has long been plagued …

An Immodest Proposal For Birth Registration In Donor-Assisted Reproduction, In The Interest Of Science And Human Rights, Elizabeth Samuels

All Faculty Scholarship

No abstract provided.

Backward Progress Toward Reinstating Parental Rights, Lashanda Adams

Journal Articles

States have passed reinstatement statutes to address the increased number of legal orphans in the foster care system. For the most part, however, these laws have been inadequate to address the problem because they are motivated by a view of terminated parents that does not fit current realities. Terminated parents have typically been viewed as obstacles to permanence rather than a realistic placement option. The laws often punish parents who opposed the termination of their parental rights and reward those who voluntarily signed relinquishments.

Reinstatement statutes alone are inadequate to address the growing concern over youth aging out of foster …

Overcoming Roadblocks To Reaching Settlement In Family Law Cases, John M. Lande

Faculty Publications

In “litigation as usual,” settlement often comes only after adversarial posturing, the original conflict escalates, the relationships deteriorate, the process takes too long and costs too much, and nobody is really happy with the resolution. This article describes roadblocks to negotiation and ways to overcome them to reach good settlements in family law cases.

Families Across Borders: When Immigration And Family Law Collide-Minors Crossing Borders, Stewart Chang

Scholarly Works

No abstract provided.

Married Couple, Single Recipient: Understanding The Exclusion Of Gifts And Inheritances From Default Matrimonial Regimes, Laura Cárdenas

Canadian Journal of Family Law

In most Canadian jurisdictions, default family property law regimes exclude gifts and inheritances from the property that will be divided between divorcing couples. In Quebec, this exclusion is not only present in the default regime (the partnership of acquests) but rendered mandatory by the public order nature of the “family patrimony”—a construct determining the property that will be shared equally between spouses upon their divorce. This article examines default regimes of family property in Ontario and Quebec and analyzes the justifications provided by the provincial legislators for excluding gifts and inheritances from the mass of assets that will be divided …

Moral Evils V Health And Safety Evils: The Case Of An Ovum “Obtained” From A “Donor” And Used By The “Donor” In Her Own Surrogate Pregnancy, Pamela M. White

Canadian Journal of Family Law

This paper critically examines the amendment made in 2012 to section 10(2)(c) of the Assisted Human Reproduction Act, 2004 mandating the screening and testing of “obtained” ovum “donated” by a “donor” and used in her own surrogate pregnancy. The amendment at section 10(1) of the Act cites the federal government’s obligation to reduce harm to human health and safety arising from use of sperm or ova for human reproduction, including the risk of disease transmission. This paper argues that the amendment mandating the screening and testing of surrogate ova when used by the surrogate in her own surrogate pregnancy creates …

Remembering Professor Judith Mosoff, Isabel Grant, Susan B. Boyd

Canadian Journal of Family Law

No abstract provided.

The Vanishing Body Of Disability Law: Power And The Making Of The Impaired Subject, Jonas-Sébastien Beaudry

Canadian Journal of Family Law

The influence of disability studies on legal scholarship is most visible in the social model, which claims that people are not disabled because of their bodily impairments, but by society in its refusal to accommodate their impairments.

However, a modest but growing discourse within disability studies argues that the notion of impairment, in addition to disability, is socially constructed. This article aims to bring this problematized conception of impairment, informed by Michel Foucault’s conception of power, into contact with legal scholarship. Judith Mosoff’s sensibility about the role of impairments in the legal treatment of disabled people illustrates this critical outlook, …

Crazy Women And Hysterical Mothers: The Gendered Use Of Mental-Health Labels In Custody Disputes, Suzanne Zaccour

Canadian Journal of Family Law

This research studies the use of gendered mental-health labels, such as “crazy,” “hysterical,” “insane,” and “emotionally unstable,” in Canadian custody cases decided between 2000 and 2016. Building on Judith Mosoff’s work on gender and mental health stigma in custody proceedings, it maps how these “pop-psychology” labels impact custody litigation. This investigation reveals that mental-health labels serve to discredit the mother, attack her parenting abilities, and distract from her allegations of violence by the father. The article also explores fathers’, mental health experts’, and judges’ roles in framing the mother’s credibility and parental capacity with regard to her alleged mental instability. …

Are You My Mother? Parentage In A Nonconjugal Family, Natasha Bakht, Lynda M. Collins

Canadian Journal of Family Law

No abstract provided.

Young People As Humans In Family Court Processes: A Child Rights Approach To Legal Representation, Donna J. Martinson, Caterina E. Tempesta

Canadian Journal of Family Law

The authors, a retired British Columbia Supreme Court judge and a senior member of Ontario’s Office of the Children’s Lawyer, address the important issue of legal representation for children. They are co-chairs of the Steering Committee which guided the development of the Canadian Bar Association’s new and comprehensive Child Rights Toolkit. As such, they are well-placed to discuss how a child rights approach, as required by the United Nations Convention on the Rights of the Child to which Canada is a ratifying party, supports legal representation for children who find themselves caught in contentious family law proceedings before the courts.

Quebec's Filiation Regime, The Roy Report'S Recommendations, And The 'Interest Of The Child', Régine Tremblay

Canadian Journal of Family Law

This article describes Quebec’s filiation regime and explains some of the Roy Report’s recommendations to reform parent-child relationships in Quebec. While this report is unlikely to lead to legislative change, it represents an important insight into issues animating family law in Quebec today. The Roy Report anchors filiation and family law to the ‘interest of the child’, a notion likely different from the best interests of the child in common law. The article offers some critical and comparative analysis of current and proposed rules. It makes this lesser known area of Quebec civil law accessible in English and to common …

Prestation Compensatoire Et Union De Fait En Droit Québécois : Étude Critique Du Discours Judiciaire, Laurence Saint-Pierre Harvey

Canadian Journal of Family Law

This paper analyzes a policy recommendation suggesting the compensatory allowance, a mechanism in Quebec matrimonial law, to be the solution of the cohabitation “problem.” The study draws on queer theory to analyze the discourse found in the compensatory allowance case law. The judicial discourse is polarized into two binary categories: spouse taking advantage / spouse being taken advantage of, normal contributions / abnormal contributions. This analysis sheds light on two defining traits of the compensatory allowance. First, as elaborated by judgments, it expresses gendered, heteronormative, and traditional ideas of spousal identity and roles. Second, it is difficult to conceive of …

(Some) Mothers Know Best: A Case Comment On Mm V Tb And The Plight Of Indigenous Mothers In Child Welfare And Adoption Proceedings, Catherine Wang

Canadian Journal of Family Law

Over time, courts have come to acknowledge the significance of Indigenous identity when deciding custody disputes, but they continue to struggle with how much consideration should be given to the broader history involved, which can leave Indigenous mothers particularly disadvantaged in family law proceedings. Not only do Indigenous mothers have to contend with the law’s general assumptions and expectations about mothers, they also have to endure the courts’ often limited ability to situate mothers’ individual actions in the wider context of structural barriers erected by government and societal forces. A close examination of the recent British Columbia Court of Appeal …

The "Family"—And "Families" In Law: A Review Of Archana Parashar And Franscesca Dominello, The Family In Law, Mary Jane Mossman

Canadian Journal of Family Law

No abstract provided.

Throwing The Baby Out With The Patriarchy, Scott Titshaw

Articles

Throughout the history of Europe and its former new world colonies, families have been a central unit for defining legal rights and duties, including those related to citizenship and immigration. Less than a century ago, a woman and her children automatically gained or lost citizenship in the U.S. and many other countries upon her marriage to a citizen or noncitizen. The family was treated as one unit reflecting the legal identity of the father-husband as “head of family.”

Fortunately, the United States and other governments have increasingly recognized women – and, to a lesser extent, children – as independent persons …

A Logical Step Forward: Extending Voluntary Acknowledgments Of Parentage To Female Same-Sex Couples, Jessica Feinberg

Articles

Under current law, stark differences exist between different- and same-sex couples who welcome children into the world with regard to the ease through which the member of the couple who did not give birth to the child is able to obtain legal parent status. While a number of simple, efficient procedures exist for establishing legal parentage for different-sex partners of women who give birth, same-sex partners of women who give birth often have to go through significantly more complex, time-consuming, and expensive procedures in order to establish legal parentage. The inequitable treatment of same-sex couples in establishing legal parentage has …