Family Law Commons^™

Integrated Nonmarital Property Rights, E. Gary Spitko

SMU Law Review

Nonmarital cohabitation has become a mainstream family structure in the United States. Yet despite the increasing prevalence of nonmarital cohabitants, American family property law generally fails to support nonmarital couples. This inequality under the law disproportionately disadvantages persons of color, those with relatively less education, and couples with relatively fewer economic resources. This Article considers the post-Obergefell need for law reform to better support nonmarital families, examines the principles that should ground nonmarital property rights reform, and proposes a novel approach to nonmarital property rights that integrates the law of dissolution with the law of succession, unifies the law …

An Unintended Abolition: Family Regulation During The Covid-19 Crisis, Anna Arons

Faculty Publications

In a typical year, New York City’s vast family regulation system, fueled by an army of mandated reporters, investigates tens of thousands of reports of child neglect and abuse, policing almost exclusively poor Black and Latinx families even as the government provides those families extremely limited support. When the City shut down in the wake of the COVID-19 pandemic, this system shrunk in almost every conceivable way as mandated reporters retreated, caseworkers adopted less intrusive investigatory tactics, and family courts constrained their operations. The number of reports fell, the number of cases filed in court fell, and the number of …

How To Bring Your Kids Up Queer: Family Law Realism, Then And Now, Kris Franklin, Noa Ben-Asher

Faculty Publications

(Excerpt)

Paula Ettelbrick fought for us.

As a pragmatic and radical litigator, Ettelbrick spent years trying to use a frequently uncomprehending and often outright hostile court system to protect LGBTQ+ Americans. While her work took her into the many areas of law that touched queer lives, a special focus and passion of her advocacy was reserved for queer families.

Paula also tried to warn us.

In the absence of legal recognition for the families we construct, queer lives are rendered not just invisible but virtually nonexistent; we become legal strangers to our loved ones in ways that violently obliterate our …

A Critical Race Theory Approach To Children’S Rights, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

This Article uses critical race theory to analyze the impact of corporal punishment and physical child abuse on African American children’s rights in the United States. From an international perspective, the banning of corporal punishment is consistent with multidisciplinary research about the negative effects of physical discipline on children. However, throughout United States history, African American parenting oftentimes utilizes physical discipline to teach children strict compliance with authority in order to prevent deadly violence from being inflicted upon them by white people. Using critical race theory concepts, this Article illustrates how state endorsement of corporal punishment within the family and …

Step-Parent As Fiduciary, Ruth Zafran

Lewis & Clark Law Review

Does a step-parent have any obligations toward the non-resident legal parent of the child? To date, the law has been silent on this point, and the scholarship has paid little, if any, attention to it. This Article argues that the conceptual framework of fiduciary enables us to recognize, both conceptually and legally, the relationship between the step-parent and the non-resident legal parent (who, generally speaking, spends less time with the child on a day-to-day basis). The aim of this fiduciary duty is to protect the more vulnerable party (in this specific context, the non-resident legal parent) from the more powerful …

Introduction: Family Court Review Special Issue Dynamic Pedagogy In The Family And Juvenile Law Classroom: Experiential And In-Class Exercises, Meredith Johnson Harbach

Law Faculty Publications

Over the last number of years, the legal academy has placed increasing emphasis on the need to diversify teaching methods, and in particular, has focused on expanding in-class, experiential teaching methods. Educational research confirms that learning experientially has multiple benefits for adult learners, including better retention of material, the ability to explore a more diverse range of representation contexts, the development and use of a broader range of analytical skills, and an emphasis professional collaboration and growth.1Consistent with this evolution of the scholarship on teaching and learning in law school, ABA Standard 303(a)(3) requires all students to complete“ one or …

Fringe Inheriting: Probate Avoidance At Both Ends Of The Wealth Spectrum, Allison Anna Tait

Law Faculty Publications

The principal system in the United States for transferring wealth from one generation to the next - the probate system - is a historically and steadfastly public one. Probate is a set of public processes and a court system created to situate and facilitate wealth transfer, giving legal imprimatur to the distribution of family money. Nevertheless, while the probate system may be the central and most conventional system for transferring wealth, not all families and individuals avail themselves of the system. The broad swath of families who avail themselves of the services and certain benefits of the probate system are, …

Calculating “Income” For Domestic Support Obligations In The Wake Of The Covid-19 Pandemic, Kimberly S. Krieg, Stephanie L. Tang

Oklahoma Law Review

No abstract provided.

Fundamental Rights And Fundamental Relationships: The Family In Comparative Constitutional Law, Paolo G. Carozza

Book Chapters

The chapter is part of the Proceedings of the 2022 Plenary Session
The Family as a Relational Good: the Challenge of Love
27-29 April 2022
Pierpaolo Donati (editor)
Acta 23, Libreria Editrice Vaticana, Vatican City, 2023

Why Does The Federal Government Get A Pass? Applying Best Practices In Child Protection To The Circumstances Of Migrant Children And Families, Randi Mandelbaum

American University Law Review

For too long, the United States has had a separate child-caring system for migrant children and families that operates alongside our domestic child welfare systems. The latter is a robust system focused on the principles of safety, wellbeing, and permanency; while the former flouts constitutional protections, separates children from parents, and perpetuates a system that is detaining children, warehousing them in large jail-like settings at worst, and sheltering them in large congregate care facilities at best. Children are being harmed, some irreparably.

Yet, if our child welfare laws reflect what we know to be proper standards for caring for vulnerable …

Presumed Unfit: The Dual Bind Faced By Pregnant And Parenting Youth In Foster Care, Kara R. Finck

American University Law Review

Pregnant and parenting youth in foster care are subject to a range of laws, policies, and practices that expose the realities of a child welfare system structured to focus on surveillance instead of support and family regulation instead of family integrity. Informed by my experience representing foster youth who become parents, this Article considers how youth in care are presumed unfit to parent their children because of a history in foster care and their age. A youth’s status as pregnant or parenting is weaponized to subject them to additional scrutiny, threats, and a shifting burden to justify their fundamental right …

Family Law, Joanna L. Grossman, Christine P. Leatherberry

SMU Annual Texas Survey

No abstract provided.

Accommodating Parents, Joshua Gupta-Kagan

Faculty Scholarship

The child protection legal system is supposed to work towards the reunification of parents and children in foster care through individualized services to help parents raise their children safely. But that legal system has long been criticized for frequent and severe invasions into the family integrity rights of parents with disabilities and their children, treating parental disabilities as grounds for permanent separation instead of individual characteristics to be accommodated. Several years ago, it seemed that the law was turning. In 2015, the U.S. Departments of Health and Human Services and Justice issued joint guidance stating that the Americans with Disabilities …

How To Bring Your Kids Up Queer: Family Law Realism, Then And Now, Kris Franklin, Noa Ben-Asher

Articles & Chapters

This essay, in honor of Paula Ettelbrick’s vast contributions to family law, examines a new site of conflict - the legal treatment of transgender children and youth - for which Ettelbrick’s work, alongside Eve Kosofsky Sedgwick’s seminal essay, How to Bring Your Kids up Gay (1991) are fundamental. We apply what we believe to be Ettelbrick’s emphasis on having legal structures recognize the reality and lives of queer people – what we call “family law realism” – to the current social and legal struggles that are unfortunately being fought upon the bodies of transgender identified children and youth. We recommend …

Family Law Trailblazers: Introduction, Lisa Grumet

Articles & Chapters

No abstract provided.

The Institutions Of Family Law, Clare Huntington

Faculty Scholarship

Family law scholarship is thriving, with scholars using varied methodologies to analyze intimate partner violence, cohabitation, child maltreatment, juvenile misconduct, and child custody, to name but a few areas of study. Despite the richness of this discourse, however, most family law scholars ignore a key tool deployed in virtually every other legal-academic domain: institutional analysis.

This methodology, which plays a foundational role in legal scholarship, focuses on four basic questions. Scholars often begin empirically, identifying the specific legal, social, and economic institutions that shape an area of legal regulation. Beyond descriptive accounts, scholars analyze how authority is and should be …

The Restatement Of The Law, Children And The Law: A Blueprint For Reforming The Child Welfare System, Clare Huntington

Faculty Scholarship

As part of the special issue on the foster care system, this essay challenges the assumption that all the children who are in foster care should be in foster care. The essay first describes the familiar—and still persuasive—argument that foster care does not serve the interests of most children and families. It then brings a new lens to bear on this argument by describing the work of the American Law Institute's Restatement of the Law, Children and the Law, which provides a blueprint for shrinking the child welfare system and promoting child well-being.

Re-Envisioning Child Well-Being: Dismantling The Inequitable Intersections Among Child Welfare, Juvenile Justice, And Education, Kele Stewart

Articles

Twenty years after Shattered Bonds, Dorothy Roberts' indictment that the family regulation system polices, disrupts, and restructures Black families and communities remains urgent. Black families remain overrepresented in foster care with enshrined disparate treatment and outcomes. Black children are more likely to be removed from their homes, and their longer stays in foster care are characterized by placement instability, overly restrictive placements, the risk of abuse and exploitation, and inadequate mental health and other services. Black children also have worse educational outcomes than even other children in foster care, are over-referred to the juvenile justice system, and are more …

Monasky’S Totality Of Circumstances Is Vague – The Child’S Perspective Should Be The Main Test, Sabrina Salvi

Touro Law Review

After decades of confusion, the Supreme Court ruled on child custody in an international setting in Monasky v. Taglieri, by attempting to establish the definition of a child’s “habitual residence.” The Court held that a child’s “residence in a particular country can be deemed ‘habitual, however, only when her residence there is more than transitory.’” Further, the Court stated that, ‘“[h]abitual’ implies customary, usual, of the nature of a habit.”’ However, the Supreme Court’s ruling remains unclear. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“HCCAICA” or “The Hague Convention”), which is adopted in ninety-eight …

The Role Of Adoption In Dobbs-Era Pro-Life Policy, Elizabeth Kirk

Scholarly Articles

It is incumbent upon those who wish to provide alternatives to abortion for pregnant women to advance policies that highlight the unique gifts of adoption in a way that ensures it is a meaningful option. Of course, there are many venues for this to occur, whether in education, media, advertising, private initiative, or legislation. The particular policy appropriate for each state will depend on many factors, including the availability of legal abortion.