Family Law Commons^™

Domestic Violence As A Factor In Child Custody Determinations: Considering Coercive Control, Lisa A. Tucker

Fordham Law Review

Many states1 have begun formally to recognize coercive control2 as a form of domestic violence in several contexts: criminal domestic violence cases,3 civil motions for protection from abuse,4 and child removal proceedings.5 This Essay argues, however, that while new laws recognizing coercive control may be noble and well-meaning, they are unlikely to increase support for mothers who have been victims of coercive control abuse and now seek custody of their children. In fact, this Essay argues, the codification of these laws may do more harm than good; by taking power away from men—and coercive control is practiced almost exclusively by …

From Empathy Gap To Reparations: An Analysis Of Caregiving, Criminalization, And Family Empowerment, Charisa Smith

Fordham Law Review

America’s legacy of violent settler colonialism and racial capitalism reveals a misunderstood and neglected civil rights concern: the forced separation of families of color and unwarranted state intrusion upon caregiving through criminalization and surveillance. The War on Drugs, the Opioid Crisis, and the COVID-19 pandemic are a few examples demonstrating the precariousness of our nation’s collective empathy well toward caregivers and our tattered social safety net. In fact, these instances illuminate what this Essay coins an “empathy gap” in perception when the general public, policy makers, and the mainstream media view similarly situated families with different identities. Ironically, the COVID-19 …

Punishing Maternal Ambivalence, Elizabeth Kukura

Fordham Law Review

There are certain landmarks on the road to parenthood that together comprise a cultural narrative about becoming a parent, a narrative that many aspire to emulate and that some achieve: celebrating a (heterosexual) marriage with a big wedding; a positive pregnancy test leading to overjoyed reactions; first ultrasound pictures hung on the fridge (and shared on social media); a healthy pregnancy with baby showers and nesting to prepare for the new arrival; maternity photo shoots and babymoons to celebrate the final moments before life changes; and finally, an uncomplicated labor and delivery that, in an instant, transform the couple into …

Standby Guardianship For Incarcerated Custodial Parents, Lyla R. Bloom

William & Mary Journal of Race, Gender, and Social Justice

When a child’s custodial parent is incarcerated, the child is left to either live with relatives who do not have the legal authority to make decisions for him or to live with strangers by way of the foster care system. This Note identifies standby guardianship laws as a means to better care for children of incarcerated parents by expanding an already existing legal framework. Currently, standby guardianship laws allow custodial parents suffering from debilitating illnesses to grant legal custody over their children to another adult for the length of their incapacity without terminating their own parental rights. This Note argues …

Fertility, Immigration, And Public Support For Parenting, Eleanor Brown, Naomi Cahn, June Carbone

Fordham Law Review

As this Essay shows, the fertility discourse of the last half century deals with the profound effects that come from the transformation of the economy and the place of modern families within it. Discussions of race and class have been an important—and, often, pernicious—part of a transformation in family values, as the upper-middle-class efforts to channel ever greater investment into children have increased economic inequality and contributed to racial, ideological, and gender division. We see the convergence in fertility rates as an indication that, at a practical level, a much larger part of the country is embracing the new family …

The Enduring Importance Of Parental Rights, Clare Huntington, Elizabeth Scott

Fordham Law Review

Parental rights are—and should remain—the backbone of family law. State deference to parents is warranted not because parents are infallible, nor because parents own their children, but rather because parental rights, properly understood and limited, promote child wellbeing.1 This is true for several reasons, but two stand out. First, parental rights promote the stability of the parent-child relationship by restricting the state’s authority to intervene in families. This protection promotes healthy child development for all children, and it is especially important for low-income families and families of color, who are subject to intensive state scrutiny.2 Second, parental rights ensure that …

Multi-Parent Families, Real And Imagined, Courtney G. Joslin, Douglas Nejaime

Fordham Law Review

This piece is the first in a series on functional parenthood growing out of an empirical study of all electronically available cases from the last forty years decided under functional parent doctrines, including cases that feature more than two parental figures.20 Our goal is to provide a more empirically grounded understanding of the circumstances under which a child may have functional parents, including situations in which a child has more than two parents, and an accurate assessment of the range of factual contexts in which courts may be asked to adjudicate the issue. We supply a more comprehensive and detailed …

Parental Social Capital And Educational Inequality, Solangel Maldonado

Fordham Law Review

This Essay argues that scholars must consider the nonmonetary resources—specifically, the social capital24—that middle- and upper-income parents bring to the predominantly White schools their children attend. While scholars have recognized middle- and upper-income students as educational resources that can help bridge the achievement gap, they have yet to explore the effects of nonmonetary resources that middle- and upper-income White parents bring to predominantly White school districts, and how these resources advantage children in these schools. This Essay calls on social scientists to study these effects and urges lawmakers to support parents by (1) integrating schools and (2) funding programs that …

The Public/Private Distinction In Public Health: The Case Of Covid-19, Jason Jackson, Aziza Ahmed

Fordham Law Review

In this Essay, we argue that the paradigm of the public/private distinction is implicitly operating as a primary frame in the public health response to the pandemic. The public/private distinction is particularly evident in the guidance around masking and other risk-mitigation policies and advice issued by public health agencies. This public health approach reifies the notion of the home as an exceptional private space that exists outside of the possibility of COVID-19 transmission, obscuring the reality of the high risk of transmission in some households.8 We argue that the manifestation of the public/private distinction in the COVID-19 response is deeply …

If You Grant It, They Will Come: The History And Enduring Legal Legacy Of Migratory Divorce, Michael J. Higdon

Utah Law Review

Fifty years ago, California became the first state to enact no-fault divorce, making it easier than ever before for individuals to dissolve unsuccessful marriages. Soon, every state would follow suit, and over the years, much has been written about this national shift in the law of divorce. What has thus far escaped scrutiny, however, is one of the prime casualties of that switch—the phenomenon of migratory divorce. This failure is somewhat ironic given that, although no-fault divorce has existed for just over fifty years, migratory divorce played a prominent role in American legal history for well over a century. Migratory …

Suspension Of Citizenship: Ethical Concerns In International Commercial Surrogacy And The Legal Possibility Of Stateless Children, Rachael Curtin

Vanderbilt Journal of Transnational Law

Legal issues often exist in ethical gray areas. Advancements in reproductive technologies have increased family-building options for those that were previously unable to procreate. Similarly, globalization has increased family-placement options for children in the adoption context. However, when assisted reproductive technologies advance in a globalized world without regulation or international cooperation, international com- mercial surrogacy arrangements are governed by contractual systems that often protect the commissioning parties, rather than those who are most vulnerable and in need of protections. This Note examines how the current lack of international regulation and cooperation in the international commercial surrogacy context can leave children …

Humanize, Don't Paternalize: Victim-Offender Mediation After Intimate Partner Violence, Ren Warden

University of Richmond Law Review

Retributive legal systems fail survivors of intimate partner violence. In criminal cases, when the government and the offender are the parties to the matter, the legal status of a survivor is reduced to that of a mere witness. Survivors then must surrender their agency in the fight against their own trauma. Survivors of intimate partner violence (“IPV”) who turn to civil litigation to recover after their experiences may experience further trauma as a result of time-consuming, extensive, and often invasive contact with the legal system. Even restitution, a largely restorative remedy, lacks the agency, finality, and emotive opportunities that IPV …

Choosing Children: Preventing Intra-Family Conflict From Feeding The Prison Pipeline, Samantha D. Mier

Richmond Public Interest Law Review

Parents struggling to raise challenging children often lack needed community

support. These parents turn to law enforcement when they feel their

child cannot be controlled. Problematically, law enforcement officers are

trained to respond to crime, not simple parent-child domestic disputes. Thus,

when parents call police during disagreements, the argument may end in arrest

and contact with the juvenile court system. Interaction with the juvenile

justice system carries a myriad of risks. This comment outlines the risks inherent

in calling the police and entering the juvenile court system. The author

evaluates existing alternatives to calling law enforcement and recommends

that communities …

A Gardener's Tale: Confronting Racial Discrimination At The Intersection Of The School-To-Prison Pipeline And Adolescent Health, Sogand Falahatpour

Richmond Public Interest Law Review

Racism is a public health crisis and it is killing Black youth. Systemic racism

in education is a root cause of a long list of inequities faced by Black

youth. These inequities compound over the years and create extreme hurdles

to academic success and, in many cases, are hazardous to overall health.

The school-to-prison pipeline is a severe health equity issue affecting

Black children and adolescents. Racism is a core social determinant of health

that has a profound impact on child and adolescent health. Moreover, health

is not just an individual matter; institutional and structural forces influence

who has access …

Disrupting The School-To-Prison Pipeline: Reforming The Role Of The School Resource Officer, Olivia Seksinsky

Richmond Public Interest Law Review

A School Resource Officer (“SRO”) is a law enforcement officer employed

by local law enforcement agencies to provide security to public schools. As

a result of fatal and highly publicized school shootings such as Columbine

and Parkland, SROs have become a fixed aspect of many school communities.

There are tens of thousands of SROs patrolling the halls of Virginia’s

public elementary and secondary schools every year. Despite their intended

purpose to keep students safe and prevent crime, SROs too often contribute

to the school-to-prison pipeline. When SROs are brought into the classroom

to address “disruptive” behaviors, students are at an …

Timing Legal Parenthood, Noy Naaman

Arkansas Law Review

When does a parent become a parent? This Article examines this question through a novel framework that analyzes the tension between an individual’s evolving self-identification as a parent and the law’s acknowledgment of the individual’s parental status. It focuses on two forms of that tension. The first concerns a scenario occurring after the birth of a child, when the self-identification as a parent is established but the law has yet to formalize the parental status. The second involves a scenario occurring before the birth, when the self-identification as a parent-to-be—the process of becoming—is legally overlooked. This Article argues that this …

Same-Gender Pathways To Parenthood, Sydney T. Inger

James Madison Undergraduate Research Journal (JMURJ)

LGBTQ+ individuals and couples who want children negotiate systemic inequalities in the United States of America. This literature review surveys America’s confusing legal map and the gaps in its enduring scholarly theories. The paper then examines the challenges that LGBTQ+ individuals and couples confront in working through the common pathways—same-gender adoption and fostering, in vitro fertilization, and surrogacy—to become parents. Dispersing information on the pathways will be a positive step towards breaking down the inequities for those in the LGBTQ+ community who want to start a family.

Credible: Why We Doubt Accusers And Protect Abusers: A Book Talk With Author Deborah Tuerkheimer, Deborah Tuerkheimer, Emily Sack

School of Law Conferences, Lectures & Events

No abstract provided.

Creating Lightbulb Moments: Developing Higher-Order Thinking In Family Law Classrooms Through Court Observations, Sonia Gipson Rankin

Faculty Scholarship

This article fills a critical gap in the family law literature by arguing that teaching doctrinal family law in conjunction with the application of established learning theory and pedagogy yields a deeper engagement with the subject matter and leads to more practice-ready lawyers. ABA Standards 301, 303, and 304 do not clearly articulate the distinction between experiential education and experiential learning; doctrinal law classrooms are often bereft of experiential learning activities. By incorporating active learning and inclusive pedagogy in the doctrinal classroom and following recommendations from the MacCrate Report and Family Law Education Reform Project, students will be better prepared …

Insuring Contraceptive Equity, Jennifer Hickey

Northwestern Journal of Law & Social Policy

The United States is in the midst of a family planning crisis. Approximately half of all pregnancies nationwide are unintended. In recognition of the social importance of family planning, the Affordable Care Act (ACA) includes a “contraceptive mandate” that requires insurers to cover contraception at no cost. Yet, a decade after its enactment, the ACA’s promise of universal contraceptive access for insured women remains unfulfilled, with as many as one-third of U.S. women unable to access their preferred contraceptive without cost.

While much attention has been focused on religious exemptions granted to employers, the primary barrier to no-cost contraception is …