Significant changes in family forms and dynamics (such as increases in nonmarital cohabitation, children cared for by extended family, and same-sex couples with children) have prompted policymakers to rethink the question of who is a legal parent. . .
Relational Parents: When Adults Receive Rights in Children Because of Their Relationship with a Parent
Polygamy’s Emergence from a ‘Shadow World’: An Unintended Consequence of Thinning State Oversight of Marriage Post-Obergefell
John Witte’s perfectly timed book, The Western Case for Monogamy over Polygamy, questions whether Obergefell v. Hodges foreshadows a fight over polygamy. Although glorified by Sister Wives and Big Love as “mainstream, even edgy,” polygamy today is largely concentrated in “an African ‘polygyny belt’” and in Middle Eastern countries, where the now - “controversial” practice is “shrinking, . . .
The Perils of Privatized Marriage
Governments around the world continue to struggle with how to accommodate religious minorities in an increasingly pluralistic society. In February 2008, the Archbishop of Canterbury called for a "plural jurisdiction" in which Muslims could choose to resolve family disputes in religious tribunals or in British...
By Faith Alone: When Religious Beliefs and Child Welfare Collide
How to discipline one’s child, like decisions to treat “by faith alone,” run deep in religious and cultural belief systems. State regulation of child rearing not only impacts parents’ liberty but a community’s ability to maintain identity . . .
American Law Institute's Principles of the Law of Family Dissolution, Eight Years After Adoption: Guiding Principles or Obligatory Footnote
In 2002, after eleven years of work and four successive drafts, the American Law Institute (ALI) published its long-awaited Principles of the Law of Family Dissolution: Analysis and Recommendations (Principles). Adopted in 2000, the final product considered many of the foundational questions in...
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Children at Risk: The Sexual Exploitation of Female Children After Divorce
The continuing growth of nontraditional families in the United States presents unique problems for family law courts. Concerns regarding the welfare of children in nontraditional families loom larger in light of considerable evidence demonstrating that a female child, after her parents’ divorce, faces a significantly...
The Cradle of Abuse: Evaluating the Danger Posed by a Sexually Predatory Parent to the Victim's Siblings
Few people would disagree that incest is a harm from which we need to shield children. Indeed, most of us would act to protect a child from molestation if we could say with confidence that he or she is likely to be violated. Yet many courts refuse to intervene in the family even when faced with unmistakable evidence...
The Harmonisation of Family Law in the United States
In the US, state laws governing family relations can differ dramatically, even between geographic neighbors. Thus, states can have deep rifts and differences over some very fundamental questions: Who is a parent? Should individuals be able to walk away from the promises made at marriage, and if so...
Keeping Women in Business (and Family)
Newly minted young professionals in business, law, and medicine navigate taxing careers in which they have heavily invested at a time when people their age once formed families. For a growing segment of these professionals, work and family have become either-or propositions. Massive debt loads, staggering salaries...
Privatizing Family Law in the Name of Religion
In pockets across the world, a movement has quietly taken hold to allow funda- mentalist1 religious norms, rather than state law, to govern family matters like divorce and inheritance. Many of these religious norms depart significantly from the state’s background rules protecting individuals. Nonetheless, fundamentalist...
Removing Violent Parents from the Home: A Test Case for the Public Health Approach
Every once in a while, a ground shaking, paradigm-shifting idea is advanced that seems, after the fact, obvious. It is perhaps the obviousness of the idea that explains both why it escaped notice for so long and why it holds the promise for lasting, meaningful reform. Professor Marsha Garrison advances just such an idea...
The Precarious Status of Domestic Partnerships for the Elderly in a Post-Obergefell World
The Supreme Court’s landmark decision in Obergefell v. Hodges gave same- sex couples the right to marry in all fifty states, correcting the injustice that non- marital legal statuses like domestic partnerships were intended to remedy. Now that same-sex couples can marry nationwide, the federal government and states that...
Uncovering the Rationale for Requiring Infertility in Surrogacy Arrangements
Anyone who reads numerous statutes is frequently left scratching his or her head: is this provision a deliberate, rational requirement or filler thrown in for no apparent reason? One puzzling requirement peppering state surrogacy statutes is the limitation of surrogate parenting arrangements to couples in which the...
Undeserved Trust: Reflections on the ALI's Treatment of De Facto Parents
In chapter 2 of the Principles, the ALI proposes sweeping changes to the legal conception of parenthood. It would confer custody and visitation “rights” on a stepparent or ex-live-in lover of a child’s legal parent who shared caretaking responsibility for a child for as little as two years (“Ex Live-In Partner”)....
Bringing Up Baby: Adoption, Marriage, and the Best Interest of the Child
Who should care for children when their biological parents cannot? This is a question of potentially explosive dimensions under the proposals considered in this journal as to who the first (and hopefully last) legal parents will be for newborn children. Some of these proposals would potentially place drones of children...
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"Getting the Government Out of Marriage" Post Obergefell: The Ill-Considered Consequences of Transforming the State’s Relationship to Marriage
To say after U.S. Supreme Court's landmark decision extending the right to marry to same-sex couples that the simmering dispute over marriage turned into a "raging inferno" would be an understatement. Within hours of Obergefell v. Hodges, Texas Senator Ted Cruz called its release: some of the darkest 24 hours in our...
Sex Play in Virtual Worlds: Remove the Threat, Not the Child
When children play in proximity to adults, many of us naturally worry about less-than desirable results. This fear has existed since children began playing stickball on urban streets or kickball on suburban playgrounds. It now animates discussions of children playing in virtual worlds. The FBI's "Parent's Guide to Internet Safety,"...
Sexually Predatory Parents and the Children in Their Care
Myths surrounding child sexual abuse hinder the ability of judges and others to protect children from real threats they face. One particularly deep-rooted and damaging myth maintains that incest with one child is an isolated event that a parent is not likely to repeat with another child. This chapter argues that the...
Beyond the Bounds of Decency: Why Fault Continues to Matter to (Some) Wronged Spouses
Wrongs Committed During a Marriage: The Child that No Area of the Law Wants to Adopt, by Michelle Evans, does a fabulous job of unpacking the problems with trying to account for wrongs in a marriage outside of the divorce proceeding. These range from the "who goes first" problem of whether and how a divorce...
Limiting the Prerogatives of Legal Parents: Judicial Skepticism of the American Law Institute’s Treatment of De Facto Parents
On September 11, 2005, Haleigh Poutre suffered a traumatic brain injury like that “caused by high speed car wrecks.” Only eleven years old, she was rushed to Noble Hospital in Westfield, Massachusetts, with, according to a police report, “both old and new bruises, old and new open cuts, several apparent weeping...
Trusting Mothers: A Critique of the American Law Institute’s Treatment of De Facto Parents
On September 11, 2005, Haleigh Poutre suffered a traumatic brain injury like that “caused by high speed car wrecks.” Only eleven years old, she was rushed to Noble Hospital in Westfield, Massachusetts, with, according to a police report, “both old and new bruises, old and new open cuts, several apparent weeping...
Fractured Families, Fragile Children - The Sexual Vulnerability of Girls in the Aftermath of Divorce
Overwhelming empirical evidence suggests that a female child faces a significantly elevated risk of being sexually abused after her parents divorce, at the hands of a parent, a parent’s partner, or someone outside the home. This article considers whether the law can effectively mitigate this risk of child sexual abuse in...