Family Law Commons^™

Gps Monitoring May Cause Orwell To Turn In His Grave, But Will It Escape Constitutional Challenges? A Look At Gps Monitoring Of Domestic Violence Offenders In Illinois, 43 J. Marshall L. Rev. 845 (2010), Mary Ann Scholl

UIC Law Review

No abstract provided.

International Commercial Surrogacy And Its Parties, 43 J. Marshall L. Rev. 1009 (2010), Margaret Ryznar

UIC Law Review

No abstract provided.

Towards A New Lens Of Analysis: The History And Future Of Religious Exemptions To Child Neglect Statutes, Gregory Engle

Richmond Journal of Law and the Public Interest

In order to analyze the religious exemptions, this paper will begin with their history. Part II looks at the Child Abuse Prevention and Treatment Act of 1974 (CAPTA) the statute that precipitated their spread, as well as the justifications that it was bolstered upon: Free Exercise of religion and parental rights. The Equal Protection critique follows as Part III, followed by Part IV that discusses the traditional critique, grounded in the Establishment Clause. In Part V, the article will finish with an explanation of why the Equal Protection critique is a much stronger criticism.

Family Law Exceptionalism In Comparative Law, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

Today, family law is, to a surprising degree, at the center of comparative law inquiries committed to legal unification. Comparative family law projects range from analyzing convergence and harmonization proposals in the West, to law and development schemes in the rest of the world. The most salient reforms of abortion, same-sex marriage, transsexual, and adoption rights are increasingly promoted at the transnational level through international human rights and antidiscrimination principles. Regional and international human rights tribunals in Europe and Latin America are called upon to interpret the right to family life, non-discrimination, and freedom of movement principles to redefine the …

Significant Statistics: The Unwitting Policy Making Of Mathematically Ignorant Judges, Michael I. Meyerson, William Meyerson

All Faculty Scholarship

This article will explore several areas in which judges, hampered by their mathematical ignorance, have permitted numerical analysis to subvert the goals of our legal system. In Part II, I will examine the perversion of the presumption of innocence in paternity cases, where courts make the counter-factual assumption that regardless of the evidence, prior to DNA testing, a suspect has a 50/50 chance of being the father. In Part III, I will explore the unnecessary injection of race into trials involving the statistics of DNA matching, even when race is entirely irrelevant to the particular case. Next, in Part IV, …

Indian Law: Dangerous Gamble: Child Support, Casino Dividends, And The Fate Of The Indian Family, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.

Purple Haze (Book Review), Clare Huntington

Faculty Scholarship

This is a review of Red Families v Blue Families: Legal Polarization and the Creation of Culture. By Naomi Cahn & June Carbone. New York: Oxford University Press. 2010

Embracing The Affective Family, Clare Huntington

Faculty Scholarship

No abstract provided.

Stories Told And Untold: Confidentiality Laws And The Master Narrative Of Child Welfare, Matthew I. Fraidin

Journal Articles

In most states, child welfare hearings and records are sealed or confidential. This means that by law, court hearings and records may not be observed. The same laws and court rules also preclude those who are authorized to enter and watch from discussing anything learned or observed in a closed courtroom or from a sealed court record with anyone not involved in the case. It is the restriction on speech—on telling stories about child welfare—with which this Article is concerned. I will argue in this Article that the insights of narrative theory and agenda-setting studies help us understand the damaging …

Resurrecting Parents Of Legal Orphans: Un-Terminating Parental Rights, Lashanda Taylor Adams

Journal Articles

Despite federal and state legislation that requires termination of parental rights when a child has remained in foster care for a specified period of time, studies indicate that relationships with their biological parents (and other relatives) remain important to children in foster care.3 Especially for children whose parents’ parental rights have been terminated, the connection with their biological parent remains central to their development and these children make efforts to maintain that connection. Once it becomes clear that the purpose for terminating the parental rights (i.e., freeing the child for adoption) will not be served, in an increasing number of …

A Child's Journey Through The Child Welfare System., Susan Badeau, Ann M. Haralambie, Donald N. Duquette

Book Chapters

Once a child is known to the government child welfare agency, the child and his or her family become subject to a series of decisions made by judges, caseworkers, legal representatives, and others-all of whom have an important role to play. A child may encounter dozens of other new adults, including foster parents, counselors, and doctors. Most children enter foster care when removed from their homes by a child protective agency because of abuse or neglect, or both. Others enter care because of the absence of their parents, resulting from illness, death, disability, or other problems. Some children enter care …

Special Issues In Transcultural, Transracial, And Gay And Lesbian Parenting And Adoption, Frank E. Vandervort, Robert B. Sanoshy

Book Chapters

The adoption of children whose natural parents are unable to or incapable of caring for them by adults who are able to provide for them has existed throughout human history in one form or another (In re Smith Estate 1955; Miller et al. 2007). Before the mid-1800s, however, there was no formal mechanism for a person interested in adopting a child in the United States to do so (Bartholet 1999). In 1851, the Massachusetts legislature enacted the Massachusetts Adoption of Children Act (General Court of Massachusetts 1851). Though enacted more than 150 years ago, the act's basic structure is clearly …

The Indian Child Welfare Act., Frank Vandervort

Book Chapters

Few child welfare lawyers routinely confront the application of the Indian Child Welfare Act (ICWA or "the Act"). When the statute applies, however, it is crucial that its provisions be strictly followed. There are at least three reasons why counsel should attempt to ensure that ICWA's provisions are carefully applied. First, ICWA's provisions are jurisdictional. Failure to abide by its requirements invalidates the proceeding from its inception. Indeed, any party or the court may invoke ICWA at any time in the proceeding, including for the first time on appeal. Second, unlike most federal child welfare legislation which provides funding streams …

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 …

How Much Anguish Is Enough - Baby Switching And Negligent Infliction Of Emotional Distress, 13 Depaul J. Health Care L. 255 (2010), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

No abstract provided.

Child Custody Modification Law: The Never-Ending Battle For Peace Of Mind, Brianna F. Isserdutt

Nevada Law Journal

Ellis v. Carucci represents an evolution in Nevada’s child custody laws that should continue. Before Ellis, Nevada courts modified custody arrangements without explicitly considering the best interests of the child. Ellis cemented the legislative intent behind Nevada Revised Statute (NRS) § 125.4803 to make the child’s best interest the focus of the judge’s decision in custody cases.

However, Ellis and NRS §125.480 are not enough to accomplish this overarching goal. The Nevada legislature should revise NRS § 125.480 so that the statute explicitly recognizes the instability and adjustments that children of divorce must endure. The statute should also be revised …

Unheard Voices: Adoption Narratives Of Same-Sex Male Couples, Malcolm Dort

Canadian Journal of Family Law

This is the first legal study in Canada on same-sex adoption law, adoption administrative practice, and the social realities of parenting as experienced specifically by same-sex male couples. This paper identifies a gap in existing legal literature and jurisprudence with respect to the adoption narratives of same-sex male couples. Next, focusing on the province of Québec, it offers insight into how legal rules and social expectations construct families headed by such couples. It also highlights how, post-adoption, same-sex male couples conceive of their own families in a legal and social environment that continues to privilege heterosexual family models. Contradictorily, by …

Newborn Adoption: Birth Mothers, Genetic Fathers, And Reproductive Autonomy, Lori Chambers

Canadian Journal of Family Law

Overwhelmingly, Canadian-born children relinquished for newborn adoption have been born to unmarried mothers. Under provincial adoption acts, in cases of "illegitimacy" only the mother's consent was necessary for a child to be eligible for adoption. Since adoption statutes were introduced, however, the distinctions between those born within and outside of marriage have been eliminated at law. Provincial legislation now recognizes a wide range of unmarried men as fathers, lists circumstances under which paternity will be presumed and provides for the use of genetic testing. But this raises significant questions in the context of newborn adoption. Whose consent is required to …

One Judge For One Family: Differentiated Case Management For Families In Continuing Conflict, Nicholas Bala, Rachel Birnbaum, Donna Martinson

Canadian Journal of Family Law

Understanding the differences between family cases and other types of litigation is essential for an appropriate response to family disputes. Judges have a role in family cases that markedly differs from the traditional judicial role. The authors argue that an effective and accessible family justice system requires pre-trial and post-trial case management by a single judge, an approach to family justice reflected in the slogan: "One judge for one family." Judges should have the necessary knowledge, skills, and training needed to resolve family disputes and to help effect changes in parental behaviours and attitudes, as well as the willingness to …

Front Matter

Canadian Journal of Family Law

No abstract provided.

Introduction To "Rethinking Assisted Conception", Fiona Kelly

Canadian Journal of Family Law

No abstract provided.

Revisiting The Handmaid’S Tale: Feminist Theory Meets Empirical Research On Surrogate Mothers, Karen Busby, Delaney Vun

Canadian Journal of Family Law

After briefly reviewing laws on surrogate motherhood in Canada, the United States, and Britain, the authors consider nearly 40 empirical research studies on the characteristics and experiences of women who have been surrogate mothers. Empiricism meets feminist theory as we revisit arguments against surrogacy arrangements, including the inability to give informed consent, the inherently exploitative nature of the arrangements, and the dangers of commodification. In light of our observations based on the empirical research, we argue that it may be time to review Canadian surrogacy laws.

De-Anonymising Sperm Donors In Canada: Some Doubts And Directions, Angela Cameron, Vanessa Gruben, Fiona Kelly

Canadian Journal of Family Law

This paper addresses whether sperm donor anonymity should continue in Canada and what the effects might be of abolishing anonymity, particularly for marginalized groups such as lesbian mothers. The first part of the paper outlines the legislative and historical context surrounding the donor anonymity debate in Canada. The second part of the paper addresses the interests of the various social and legal stakeholders, including donor conceived offspring, the social and biological parents of those offspring, and sperm donors. The final segment outlines a twofold law reform agenda. First, it is proposed that Canada prospectively abolish donor anonymity in an effort …

Réponse Jurisprudentielle À La Pratique Des Meres Porteuses Au Québec; Une Difficile Reconciliation, Louise Langevin

Canadian Journal of Family Law

Le présent article propose une analyse des récentes décisions des tribunaux québécois en matière de maternité de substitution. La jurisprudence interprète de façon très différente l'article 541 du Code civil, qui déclare nulles les conventions de maternité pour autrui. Mais semble se dessiner un courant en faveur d'une telle pratique, ce qui rejoint l'état du droit dans les provinces canadiennes. Le législateur devra donc clarifier les paramètres de la pratique des mères porteuses, puisque trop de questions sont laissées en suspend par les décisions récentes. L'auteure dénonce le discours d'égalité et d'altruisme présenté comme fondement à cette pratique. À …

Access To Assisted Conception: A Call For Legislative Reform In Light Of The Modern Family (Susan Doe V. Attorney General Of Canada), Lisa Feldstein

Canadian Journal of Family Law

This paper explores the impact of laws regarding assisted conception and the discriminatory effect these laws have in light of non-traditional family forms. Specifically, it considers the Processing and Distribution of Semen for Assisted Conception Regulations and how these regulations serve to exclude certain individuals who do not fit into the "traditional" nuclear family model. The author critiques the judgement of Susan Doe v. Attorney General of Canada and calls for legislative reform in order for the laws to accurately reflect realities of the family in the 21st century.

Navigating Potentially Conflicting Political Rationalities: Discursive Strategies About “Family” In Alberta’S Child Welfare Law, Joshua Friedstadt

Canadian Journal of Family Law

This paper empirically investigates how lawmakers navigate family law's contested terrain. Using Alberta's newest child welfare law, the Child, Youth and Family Enhancement Act (2004) as a case, I explain the discursive strategies used to pass this unique law through a socio-political context dominated by political rationalities with partially divergent ideas of "family." Analysis reveals two dominant discursive strategies. The first creates a discursive framework that expels welfarist rationalities and centers tensional neoliberal and neoconservative logics. The second navigates the tensions between neoliberal and neoconservative images of family by constituting the content of families as autonomous and responsible while leaving …

The Best Interests Of Children: An Evidence-Based Approach By Paul Millar, Gene C. Coleman

Canadian Journal of Family Law

No abstract provided.

Front Matter

Canadian Journal of Family Law

No abstract provided.

Access Barred: The Effects Of The Cuts And Restructuring Of Legal Aid In B.C. On Women Attempting To Navigate The Provincial Family Court System, Jaime Sarophim

Canadian Journal of Family Law

Self-represented litigants are becoming an epidemic in the B.C. provincial court system. Litigants who lack legal training and knowledge about the formalities of the court often slow and disrupt the justice system. The cuts to legal aid and the Supreme Court of Canada decision in Christie have contributed to this epidemic. The purpose of this paper is to discuss some of the challenges that self-represented litigants pose to the family law justice system. The erosions to legal aid funding and services have had a disproportionately negative effect on women. It has forced women to become self-represented litigants, resulting in women's …

An Alternative Conception: The Legality Of Home Insemination Under Canada’S Assisted Reproduction Act, Fiona Kelly

Canadian Journal of Family Law

Despite access to fertility clinics, at-home self-insemination with the sperm of a known donor is a common practice amongst lesbian and single women. Home insemination is understood to provide several advantages over conception at a fertility clinic, particularly given the federal prohibition on sperm donation by donors who have had sex with other men. Despite the prevalence of the practice, there is some doubt in Canada as to whether home insemination is legal. While the Assisted Human Reproduction Act ("AHRA") does not explicitly address home insemination, it could be interpreted as outlawing the practice. This article addresses the …