Family Law Commons^™

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.

The Continued Viability Of New York’S Juvenile Offender Act In Light Of Recent National Developments, Katherine Lazarow '12

NYLS Law Review

No abstract provided.

Posthumously Conceived Children And Social Security Survivors' Benefits, Kelsey Brown

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Staging The Family, Clare Huntington

Faculty Scholarship

For many critical aspects of family life, all the world truly is a stage. When a parent scolds a child on the playground, all eyes turn to watch and judge. When an executive’s wife hosts a work party, the guests are witness to traditional gender roles. And when two fathers attend a back-to-school night for their child, other parents take note of this relatively new family configuration. Family is popularly considered intimate and personal, but in reality much of family life is lived in the public eye. These performances of family and familial roles do not simply communicate messages to …

Summary Of In Re A.B., 128 Nev. Adv. Op. 70, Timothy A. Wiseman

Nevada Supreme Court Summaries

The court considered how a dependency master’s finding of facts and recommendations should be reviewed by the juvenile dependency judge.

Twenty-Five Years After Baby M: How Rules Can Bring Certainty To The World Of Surrogacy Contracts

Child and Family Law Journal

No abstract provided.

Defining Parenthood: Evolution Or Pendulum Swing?

Child and Family Law Journal

No abstract provided.

Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Margaret F. Brinig, Linda C. Mcclain

Journal Articles

This essay revisits Mary Ann Glendon’s comparative law study, Abortion and Divorce in Western Law and her subsequent book, Rights Talk: The Impoverishment of Political Discourse. Glendon’s comparative study actually included a third topic: “forms of dependency which are connected with pregnancy, marriage, and child raising.” The topic of dependency has obvious relevance to consideration of intergenerational obligations and the interplay between family responsibility and societal responsibility for addressing dependency needs. A central claim Glendon made in both books is that the U.S. legal tradition is “libertarian,” views individuals as “lone rights bearers,” and exalts the “right to be …

A Name Of One’S Own: The Spousal Permission Requirement And The Persistence Of Patriarchy, Beth D. Cohen

Faculty Scholarship

This Article addresses a discrete but inequitable issue in the area of name-change law. As the law currently operates in Massachusetts, the process by which a married person, usually a woman, can seek a legal name change requires signed permission—the written assent of a spouse. In the absence of such signed permission or spousal consent, a married person seeking a name change is required to serve his or her spouse by certified mail, as an adversary, in what is otherwise typically a nonadversarial administrative legal process. This requirement of spousal notification and consent, although gender neutral on its face, has …

Sexual Orientation Of Fatherhood, Dara Purvis

Faculty Scholarship

In this Article, I examine how same-sex fathers affect the perception of heterosexual caretaking fathers - and by extension, could affect the perception of heterosexual non-caretaking mothers. I conclude that gay stay-at-home fathers offer a provocative opportunity to broaden societal views of men and caregiving more generally, and argue that greater recognition of parents who counteract gender stereotypes - even where the recognition might arguably lessen women's rights in family law - ultimately helps women as well as children and nontraditional parents. Part I discusses fathers, particularly stay-at-home fathers, the practical problems fathers face combining work and caregiving responsibilities, and …

Family Law Equality At A Crossroads, David D. Meyer

Faculty Scholarship

No abstract provided.

Civil Actions For Acts That Are Valid According To Religious Family Law But Harm Women's Rights: Legal Pluralism In Cases Of Collision Between Two Sets Of Laws, Benjamin Shmueli

Vanderbilt Journal of Transnational Law

This Article analyzes the implications of legal pluralism when religious family law conflicts with state civil tort law. Refusal to grant a get (a Jewish divorce bill) in Jewish law, divorcing a wife against her will in Muslim Shari'a law, and bigamy and polygamy in Muslim Shari'a law are practices permitted by personal-religious family law that harm human rights. This Article seeks to answer the question whether tort law should overrule family law, with the proviso that it be applied sensibly when deciding family matters; or whether the two disciplines of law are complementary, in the sense that liberal tort …

Expanding The Vienna Convention On Consular Relations, Sarah G. Mccroskey

Vanderbilt Journal of Transnational Law

Article 37 of the Vienna Convention on Consular Relations (VCCR) aims to protect the interests of foreign national children by requiring consular notification whenever these children come into the custody of the state. Consular assistance can be invaluable for foreign national parents and children who may not understand the language or the culture and who may be subject to discrimination based on their nationality. However, the VCCR is currently inadequate in two major ways. First, the protections of Article 37 are only triggered when the child in custody is a foreign national, leaving vulnerable to unfair treatment families in which …

Child Welfare Cases Involving Parents With Disabilities, Joshua Kay

Articles

Many families include at least one parent with a disability. These parents become involved in the child welfare system more frequently than nondisabled parents, and their child protection cases are more likely to end in termination of parental rights. Parents with cognitive and/or psychiatric disabilities are particularly at risk of child welfare involvement. Cases involving parents with disabilities present special challenges and opportunities in child protection litigation, and strong advocacy is needed to ensure that these parents’ needs are met by the child welfare system and their rights are fully protected. With appropriate services, many parents with disabilities can provide …

How Congress Could Defend Doma In Court (And Why The Blag Cannot), Matthew I. Hall

Scholarly Works

In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor's challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor's equal protection and due process claims, but also on the question whether the defendants — the United States and the Bipartisan Legal Advisory Group of the House of Representatives (the BLAG) — have Article III standing to defend DOMA. The United States has agreed with plaintiffs that DOMA is unconstitutional, prompting the BLAG to intervene for the …

The Effect Of Pre-Legal Recognition Cohabitation On Alimony And Equitable Distribution In Same-Sex Dissolution Cases, Alison J. Miller

Student Works

No abstract provided.

Domestic Violence Does Not Discriminate By Color Or Race: Examining Domestic Violence Comparatively In The Jewish And Latino Communities, Victoria Gonchar

Student Works

No abstract provided.

Raising Hope For Children In Foster Care: An Argument In Favor Of Expanding The Pool Of Qualified Applicants, Tapia Mateo

Student Works

No abstract provided.

Three Strikes, Yet They Keep On Swinging: Athletes And Domestic Violence, Victoria Lucido

Student Works

No abstract provided.

[Including But Not Limited To] Violence Against Women, Giovanna Shay

Faculty Scholarship

This Article highlights three developments in criminal justice in 2012 that marked the move toward more gender-inclusive anti-violence movements: the FBI’s adoption of a gender-neutral definition of rape; the debate regarding the reauthorization of the Violence Against Women Act (VAWA); and the promulgation of new Department of Justice (DOJ) regulations under the Prison Rape Elimination Act of 2003 (PREA). These recent developments reveal a growing movement towards more gender-inclusive conceptions of rape and intimate partner violence. The change to a more gender-inclusive approach will have many implications for criminal justice policy and institutions. One critical project is to ensure that …

Marriage Rights And The Good Life: A Sociological Theory Of Marriage And Constitutional Law, Ari Ezra Waldman

Articles & Chapters

This is the first in a series of three Articles investigating the underappreciated role that the social theory of Emile Durkheim plays in the quest for the freedom to marry for gay Americans. To that end, this Article begins the discussion by examining the Durkheimian legal arguments that go unnoticed in equal protection and due process claims against marriage discrimination. This Article challenges two assumptions: first, that the most effective legal argument for marriage rights is a purely liberal one, and second, that the substance and rhetoric of liberal toleration cannot exist symbiotically in the marriage discrimination debate with a …

Prostitution 3.0?, Scott R. Peppet

Publications

This Article presents an entirely novel approach to prostitution reform focused on incremental market improvement facilitated by information law and policy. Empirical evidence from the economics and sociology of sex work shows that new, Internet-enabled, indoor forms of prostitution may be healthier, less violent, and more rewarding than traditional street prostitution. This Article argues that these existing "Prostitution 2.0" innovations have not yet improved sex markets sufficiently to warrant legalization. It suggests that creating a new "Prostitution 3.0" that solves the remaining problems of disease, violence, and coercion in prostitution markets is possible, but would require removing legal barriers to …

Neofeminism, Aya Gruber

Publications

Today it is prosaic to say that "feminism is dead." Far from being moribund, feminist legal theory is breaking from its somewhat dogmatic past and forging ahead with new vigor. Many modern feminist legal scholars seek innovative ways to better the legal, social, and economic status of women while simultaneously questioning some of the more troubling moves of second-wave feminism, such as the tendency to essentialize the woman's experience, the turn to authoritarian state policies, and the characterization of women as pure objects or agents. These "neofeminists" prioritize women's issues but maintain a strong commitment to distributive justice and recognize …

Re-Problematizing Anger In Domestic Violence Advocacy, Deborah Cantrell

Publications

Feminist advocacy commits wholeheartedly to a woman’s autonomous choices about how to respond to domestic violence, prioritizing a woman’s own lived experiences and her own assessments of her needs and goals over other supposedly “objective” assessments. Feminists robustly privilege individual choices of women in part as a way of revealing anti-woman bias in the dominant, patriarchal legal system as well to reject male constructions of feminine behavior. In feminist domestic violence advocacy, scholars and advocates have argued that a woman’s autonomous choices include capacious choices about the kinds of emotions that a woman might express about being subjected to abuse. …

Equality Between Adults And Children: Its Meaning, Implications, And Opposition, James G. Dwyer

Faculty Publications

Family law scholars have devoted much attention to equality among groups of adults and some attention to equality between groups of children. There has been little exploration, however, of the notion of equality between adults and children. In this Article, I first explain what it means at a basic, theoretical level to speak of such equality. I then identify some practical implications. Finally, I consider why there is great resistance to many practical implications of children's equality, even among those who would consider themselves advocates for child welfare.

Misused Concepts And Misguided Questions: Fundamental Confusions In Family Law Debates, James G. Dwyer

Faculty Publications

No abstract provided.

Sex And Statutory Uniformity: Harmonizing The Legal Treatment Of Semen, Myrisha S. Lewis

Faculty Publications

No abstract provided.

Late Fathers' Later Children: Reconceiving The Limits Of Survivor's Benefits In Response To Death-Defying Reproductive Technology, Jeffrey W. Sheehan

Vanderbilt Journal of Entertainment & Technology Law

When Congress instructed the Social Security Administration to begin paying a social insurance benefit to "widows and orphans" in the 1930s, it simplified the process of determining an applicant's relationship to an insured decedent in two significant ways: First, Congress ordered the agency to honor the intestate laws of each state when determining whether an applicant was actually the child of a decedent, and second, it ordered the agency to treat any child who could qualify as an intestate heir as if that child actually depended on the parent financially at the time of the parent's death. Three-quarters of a …

Imagining A Same-Sex Marriage Decision Based On Dignity: Considering Human Experience In Constitutional Law, Danieli Evans

Articles

California’s Proposition 8 allows same sex couples to join through civil unions, which grant the legal benefits afforded to married couples but denies them the official label of “marriage.” The lower court eschewed the question of whether Proposition 8 burdens any fundamental right by concluding there is not even a rational basis (the minimum standard for the constitutionality of any law) for this law, as its sole effect is to deny same sex couples the designation of marriage.

We appreciate the lower court’s caution not to extend our fundamentalrights jurisprudence beyond precedent. However, we are positioned to elaborate fundamental constitutional …

Not So Common (Law) Marriage: Notes From A Blue State, Tom Andrews

Articles

One of the continuing challenges for American marital property law in the twenty-first century, broadly understood, is what to do about property disputes between domestic partners who are not married. More precisely, the challenge is determining what to do when there are property disputes between unmarried intimate partners, whether heterosexual or homosexual. From what I can tell, this is as much of a challenge in Texas as it is in the rest of the country.

In the northwest corner of the country, we have a set of attitudes that, like many social and cultural norms, have found their way into …