Linda S. Anderson, Associate Professor of Legal Skills
Stetson University College of Law
Since 1978, when the first “test-tube baby” was born in England, the use of technology to assist with the process of conception has evolved quickly. Today, advances in technology allow the various steps in the process of conception and gestation to be carried out in multiple locations, with multiple contributors to the process, and over an extended period of time. These technological advances call into question many of the assumptions about parenthood and procreation that were indisputable prior to the use of assisted reproductive technology (ART). Courts have attempted to apply the old meanings to questions involving the use of new technology, especially with regard to cryopreserved embryos, but admit that they are venturing into uncharted territory. When doing so, they often fall back on language that is familiar, but too imprecise to be helpful.
My article analyzes how courts determine when one becomes a parent, which is essential to identifying who will be the legal parents. As courts and legislatures attempt to address the changes in relationships and processes involved with becoming a parent, they often struggle. Often courts include the term “parent” within their definition of “legal parent,” yet that key term – parent – is never actually defined. When deciding disputes between various parties who have used assisted reproductive technologies courts balance competing interests. At times they characterize these as the conflict between an interest in becoming a parent and an interest in avoiding parenthood. At other times courts refer to the tension between the right to procreate and the right to avoid procreating. The results of these analyses are unsatisfactory, because they describe these interests and rights as equivalent, yet then choose one over the other to reach a result.
My article suggests that, regardless of how the interests are labeled, now that there are multiple ways to build families, it is critical to define what the terms “parent” and “procreate” actually mean. Doing so will: (1) allow courts and legislatures to determine the rights of those involved in ART situations in a manner that more accurately reflects the intent of the parties involved; (2) allow courts and legislatures to relieve objecting progenitors of parental responsibility while still allowing others to use cryopreserved embryos for family building; and (3) eliminate some of the uncertainty and confusion that accompanies these new methods of family-building. Now that science has provided multiple ways to create a child, we need to know more precisely who should be considered the legal parent, and what rights and obligations are, and are not, associated with this designation. Building on recent efforts by several state legislatures, I conclude by suggesting a more precise definition of parent, based on actions that ultimately cause a cryopreserved embryo or other gametic material to become a child, and consequently, additional definitions for others involved in the ART process who may provide necessary materials for the reproductive process, but would not have done so to create the particular child that results without the involvement of the more precisely defined “parent.”
Mature Minors in Canada: Refusing Treatment for Religious Reasons
Professor, Faculty of Law, Queen’s University
The common law "mature minor" doctrine is well-entrenched in Canada. Under this doctrine, minor children, rather than their parents, have the right to determine their own medical treatment if the children have sufficient intelligence and understanding to make treatment decisions. Child welfare authorities who have taken a child into care stand in the place a parent in regard to consent to medical treatment. Indeed, one of the grounds for taking a child into care is that the parents are refusing or neglecting to provide or consent to medical treatment.
Each of the provinces in Canada has legislation dealing with health care consent. In addition, each province has legislation dealing with child welfare proceedings and the power of child welfare authorities to make health treatment decisions for children who have been taken into care. The interplay between the mature minor doctrine and the statutory regime governing health care consent and the power of child welfare authorities to make treatment decisions was largely unaddressed prior to the Supreme Court of Canada's 2009 decision in A.C. v. Manitoba.
The A.C. case raised the issue of the constitutionality of a Manitoba statute that accorded the child welfare authorities the power to order blood transfusions for a 14-year-old girl who refused consent for religious reasons. The Supreme Court ruled that the statute did not violate the girl’s right to liberty and security of person, equality rights or freedom of religion and was constitutional. The majority ruled that a child’s refusal of treatment must be considered when determining whether treatment will be ordered, but the child’s refusal will never be determinative even if the child is deemed to have capacity.
This paper will provide a critical commentary on the A.C. case and offer an alternative approach to the problem of mature minors who refuse treatment on religious grounds.
Gaia Bernstein, Professor of Law
Seton Hall University College of Law
Today the child is king. Child rearing practices have changed significantly over the last two decades. Contemporary parents engage in Intensive Parenting. Parents devote their time to actively cultivating the child, ensuring the child’s individual needs are addressed and he is able to reach his full potential. Parents also keep abreast of the newest child rearing knowledge and consistently monitor the child’s progress and whereabouts. Parents are expected to be cultivating, informed and monitoring. To satisfy these high standards, parents utilize a broad array of technological devices, such as the cellular phone and the Internet, making Intensive Parenting a socio-technological trend.
Many legal doctrines aim at defining the scope of parental responsibilities. Yet, courts, legislatures and scholars alike have ignored this significant change in child-rearing practices. Unattended, the law already plays an important role in enhancing the socio-technological trend of Intensive Parenting. In the area of custody disputes, legislatures and courts effectively enforce Intensive Parenting norms. Other recent legal developments, such as the constriction of the Parental Immunity Doctrine and the recurring transformation of new knowledge of preferred child-rearing practices into legal standards, open the door to the incorporation of additional Intensive Parenting norms into the law.
The Article argues that Intensive Parenting can, at times and for some, become over-parenting. First, the Article shows that Intensive Parenting is not a universal trend. It is class, race, ethnicity and culture dependent. Enforcement of Intensive Parenting in a multicultural society would increase existing biases in the child welfare system and coerce Intensive Parenting on those who may be financially unable or ideologically unwilling to adopt it. Second, the Article reveals that although Intensive Parenting carries important advantages it might disrupt healthy child psychological development. The Article, therefore, cautions against hasty incorporation of Intensive Parenting norms into the law.
Religion, Race and Motherhood
Margaret F. Brinig, Associate Dean for Faculty Development and Fritz Duda Family Chair in Law
Notre Dame Law School
Often when we think about motherhood, we think about ourselves or our friends or our own mothers. What has the experience of motherhood meant to us? How does society expect us to act as mothers? How do we combine market work and active mothering? How are we protected as mothers, and by whom? Can single women, lesbians, adoptive mothers, non-genetic mothers, working mothers be as good as mothers are expected to be?
This paper looks at motherhood as not a monolithic status or institution, but as it varies through American culture. The basic idea is that, within all but the very extreme kinds of families, mothers, mothering, and what matters most for children vary tremendously. Different kinds of children seem to be affected differently by parenting styles. It turns out that virtually any consistent parenting seems to be effective in reducing visible problems like delinquency, though most seem to do little about building character traits like optimism. While wealth matters to most mothers and their children, it matters more to some subgroups in the United States than to others. Mothers of various religious persuasions mother differently as well. As I’ve noted elsewhere (Margaret F. Brinig and Steven L. Nock, The One Size-Fits All Family, 49 Santa Clara Law Review 137 (2009)) but will demonstrate again, even legal forms like marriage and adoption seem to matter more to some than to others.
This is an empirical project. It uses a large national sample of mothers and children called the National Longitudinal Survey of Youth, begun in 1979, with children of the original subjects surveyed in 1997 and again in 2002. The survey was begun to study employment behavior and “lives” on the website of the Bureau of Labor Standards, but is maintained by Michigan State University. For this conference, I have restricted my study to those children who live with their mothers, biological or adopted, but other than that, I have allowed for variance in a number of ways: I look at all mothers, black mothers (about 27% of the sample), white mothers (58%), Latina mothers (21%), and Asian mothers (about 2%). I also look at mothers of various religious persuasions: Catholic mothers (about 27%), Baptist mothers (the largest Protestant denomination surveyed, nearly 21% of all the mothers), Jewish mothers (less than 1% of the sample) and Muslim mothers (also less than 1%). Finally, I look at the effects of various parenting styles: authoritarian (13%), authoritative (42%), permissive (35%) or uninvolved (10%).
Valuing Reproductive Labor
Pat Byrn – William Mitchell College of Law
Morgan Holcomb – Hamline University School of Law
This paper explores the failure of market economics in determining the value of reproductive labor – specifically surrogacy and egg donation. Reproductive labor has long been located in the private sphere. Such labor is historically not compensated and marginalized as “women’s work.” As women demanded entry into the public sphere and began undertaking jobs typically thought of as “man’s work,” some reproductive labor, by necessity, became paid. Some childcare, for example, migrated into the public, paid sphere. Even in the public sphere, however, childcare work continues to be low-paid and undervalued. Similarly, surrogacy and egg donation have entered the public marketplace. Thousands of women each year are paid for gestating a child or donating eggs. These reproductive services, however, are similarly undervalued. This paper explores that undervaluation.
We argue that a variety of factors cause surrogacy and egg donation to be undervalued including: the Assisted Reproductive Technology industry’s control of the market; state and federal legislation, and the lack thereof; the historic placement of reproductive labor in the private sphere; society’s discomfort with placing a value on services which to many are priceless; and the pervasive notion that “women’s work” is something that ought to be undertaken only for altruistic reasons.
Cultural Cognition and Gay and Lesbian Parenting
John Theodore Fey Research Professor of Law
George Washington School of Law
Carbone, Professor and Edward A. Smith/Missouri Chair of Law, the Constitution
University of Missouri Kansas City School of Law
Studies investigating the phenomenon of cultural cognition have demonstrated that in debates over everything from HPV vaccine to HIV positive health workers to gun control to global warming, individuals of diverse cultural outlooks come from competing factual beliefs that are highly resistant to empirical data. The debate over gay and lesbian parenting has many of the same characteristics as other debates where this kind of bias is present: a culturally divided public, anxious about whose values will be privileged in the law, becomes cognitively disposed to ignore or dismiss empirical evidence.
With funding from the Arcus Foundation, we are engaged in a three stage examination of these attitudes. This paper will present the results from the first stage of the study. It shows that the issue of gay and lesbian parenting generates strong opinions on both sides of the issue, producing particularly polarized results. These views correspond with party, religious and ideological views. Unlike other issues the Cultural Cognition Project has examined, however, these views divide more in accordance with hierachical versus egalitarian preferences, and less in accordance with individualistic v. communitarian preferences.
We will consider the implications of these findings both as a reflection of cultural tensions in the U.S. and as a basis for strategies to bridge cultural differences.
Reviving Proxy Marriage
Marriage is merely a contract. It creates myriad rights
conferring a status—but
the American states recognize without exception that the parties’ relationship
is at base nothing more than a contractual one. Still, modern society has
elevated the marriage contract above all others. This distinction has
overwhelmingly focused on the very personal nature of the marital relationship,
a feature nonexistent in the arms-length contractual dealings with which we are
accustomed to working when applying contract law. As a result, marriage
is subject to a number of requirements, even at the level of contractual
formation, which are unknown to the general law of contract. No contract
is subjected to as high an entry requirement—typically a formal ceremony—as is marriage. Moreover, the
application of one of the most fundamental doctrines of contract law, namely,
that a contracting party need not formally enter into the contractual
relationship himself but may instead designate an agent to act on his behalf,
is generally viewed as inapplicable to the marital relationship.
So-called “proxy marriages,” then, whereby one party authorizes an agent to
stand in his stead at the marriage ceremony, are widely disdained in the
Only five American states have recognized otherwise, and nearly all in an exceptionally narrow context involving military personnel. So serious is the contempt for proxy marriage that the doctrine has been rejected throughout most of this country for nearly one hundred years. Elsewhere, proxy marriage is not so abhorred; acceptance of the doctrine is viewed as an equitable necessity throughout much of the world. Indeed, a United Nations Convention studying marriage and its entry requirements identified diverse views on the permissibility of proxy marriage as one of the most globally divisive issues plaguing family law today.
This article argues that the time has come for American states to reevaluate the efficacy and equity of continuing a distinction between marriage and all other contractual relationships to which agency theory may apply. The proliferation of couples (and their children) who stand to benefit from the acceptance of proxy marriage is at an all-time high given rates of military deployment abroad, parties pursuing employment away from home, and the increased number of same sex couples seeking to establish a marital relationship. Each of these groups has a compelling argument for the necessity of proxy marriage, and no other avenue exists for conferring upon them the legal relief they desire. Moreover, agency law has evolved drastically in the last thirty years. Agency theories, once relegated almost exclusively to commercial transactions, now have application to scores of personal dealings. Among other things, one can, only as a result of very recent legal developments, appoint an agent to make end-of-life decisions, appoint an agent to draft a will, even appoint an agent to exercise custody over one’s child. In other words, agency doctrine has permeated the most personal of our relationships, save the marital relationship.
The time has come to reassess our long-standing intolerance of proxy marriage and to stop singling out the marital contract as unworthy of the regime of agency. Creating symmetry in agency law by sanctioning proxy marriage is simply the next logical step in the evolution of agency doctrine as applied to intimate relationships and it is a step that can be taken confidently given the strong foundation of protection that American agency rules already affords principals. In short, agency principles are ripe for application to the contract of marriage, and states should begin to embrace the idea of a proxy marriage—a groomless, perhaps even brideless, wedding.
The Game of Love: Polygamy, Default Rules, and Bargaining for Equality
Adrienne D. Davis, William
M. Van Cleve Professor of Law
Washington University School of Law
Most legal scholarship about polygamy has approached it in one of two ways. Some have framed it as a question of how far constitutional protection for religious freedom and privacy rights extends, including what we might think of as “intimacy liberty,” particularly in light of Lawrence v. Texas. Others have debated decriminalization, based on the contested effects of polygamy on matters ranging from women’s subordination to fraudulent behavior to democracy. This Essay shifts attention from the constitutionality and decriminalization debates to a new set of questions: whether and how polygamy might be effectively recognized and regulated, consistent with contemporary social norms. It argues that the gay marriage analogy, invoked on both the “left” and the “right,” is a red herring, a distraction from the real challenge polygamy raises for law - how plural marriage transforms the conventional marital dyad and whether law is up to regulating marital multiplicity. Both of the gay analogies, the slippery slope invocation and the alternative lifestyles defense, distract us from the fact that polygamy’s distinctive feature lies not in the spouses’ gender (as is the case for same-sex couples marriage) but rather in its departures from the two-person marital model. Polygamy’s defining feature, marital multiplicity, generates specific costs and vulnerabilities, as well as opportunities for exploitative and opportunistic behavior, some of which we have seen played out in distressing fashion in recent high-profile conflicts. Hence, this paper approaches polygamy as a problem of bargaining, cooperation, strategic behavior, and, forgive the pun, the problems it engenders. While analyses of marriage’s future have incorporated some attention to polygamy, few legal scholars have considered polygamy on its own and engaged in detail in the regulatory challenges it might pose to our currently family system. Put more crassly, many seem to assume it is merely dyadic marriage multiplied. Is the law up to regulating marital multiplicity? This Essay contends that, in contemplating the design of a plural marriage regime, we are not starting from scratch. While conventional family law, with its assumptions of the marital dyad, may not be up to the task, other legal regimes have addressed polygamy’s central conundrum: ensuring fairness and establishing baseline behavior in contexts characterized by multiple partners, on-going entrances and exits, and life-defining economic and personal stakes. In particular, commercial partnership law has addressed precisely these concerns through a robust set of off-the-rack rules. The Essay contrasts polygamy with aspects of partnership law to derive a set of default rules that might accommodate polygamy’s marital multiplicity, while addressing some of the costs and power disparities that polygamy has engendered. The point is not to use partnership law as a “map,” but rather to make the point that there are already conceptual models for what might be thought of as plural marital associations. The Essay ends by speculating about some other aspects of polygamy, including its effects on others, including children and civil society, and its implications for deriving a broader theory of intimacy and the state.
The Obligation To Maintain Italian Adult Child: Forever Will Be?
Anna Maria De Giacomo
Phd Doctor on Comparative Law,
University of Palermo, Italy
In the Italian legal system, like in the most of legal system belonging to the Western Legal Tradition, big changes in the family relationships have been occurred in the last 40 years. A change that seems very interesting concerns the condition (especially economic) of the adult child in Italy and the subsequent juridical relation with his parents.
This work would like to focus on the patrimonial duties to maintain the adult children. According to the new meaning of the parental responsibility there are two opposing interests: the wish to protect family’s members and the need to cut the dependence of children on their parents.
The purpose of this work is to overview the parents’ patrimonial duties towards their children, according to the general principle of the parental responsibility. This analysis will be conducted according to the legal rules stated by the articles of the Italian civil code, to the case law developed since the eighties, and to the guidelines of the doctrine.
In a second step, the latter results will be compared with the solutions elaborated by the Common Law Courts, especially by the English and U.S.A. Courts.
The main problematic topic of this discipline is to identify the extension and the limitation of the parental duty of educational and financial support. Indeed, in the Italian legal system, the duty to maintain the children is considered a “primary duty” of parents and it is stated also by the Republican Constitution (art. 30). But, even though the solemn declamation of this duty, a question remains controversial: Does the parents’ obligation to maintain their adult children last forever? To answer to this preliminary question, it is necessary to refer not only to statutory law, but also to the case law.
The article 147 of the Italian civil code, considered the point of start of this work, states that: “The state of matrimony requires from both the husband and wife the duty of supporting, raising and educating their children, keeping in mind their natural attitudes, their inclination and aspirations”. According to this article, no time limit is placed on the duty to maintain, but according to the jurisprudence, when an adult child becomes economically independent, the obligation ends and the respective roles of obligated person and beneficiary are reversed. This last affirmation is fruit of a long debate of Italian Courts, started in the eighties and still in act, where a very decisive role was vested by the Corte di Cassazione.
As it is possible to observe in the most cases, is the discretionary power of the judges that plays a decisive role in deciding whether the conditions to obtain financial support from parents towards the children and vice-versa are fulfilled. Indeed, valuation of attitudes, inclination and aspiration of adult child, consideration of his behavior and interpretation of external context are elements that do not have a general and objective interpretation that very often changes from time to time and from place to place.
South African Families: United In Diversity
Henriet de Ru - Advocate Henriet
de Ru LLB, LLM,
Lecturer: Department of Private Law University of South Africa
An overview will be given of the position in South Africa where the discourse on sexuality was rigidly controlled by apartheid. With the abolition of apartheid and the establishment of a new constitutional dispensation based on the values of equality, human dignity and freedom, discrimination against homosexuals was officially relegated to the past. Constitutional Court judgements led to legal recognition of same-sex partners, the authorisation of same-sex adoption, the recognition of same-sex couples as joint parents of children born to them with the assistance of modern reproductive technology and eventually the enactment of the Civil Union Act 17 of 2006 - one of the few statutes in the world that afford marriage rights to same-sex partners. The paper will give special attention to the consequences of same-sex marriage and modern reproductive technology which require a redefinition of the concept family. Although some sections of the community have shown openness to and acceptance of same-gendered families, stigmatisation due to heteronormativity and homophobia remains a reality. Sources indicating that same-gendered parenting are no different from heterosexual parenting, that parenting is not a gender function and that the child’s best interest can be served by same-sex parents will be referred to. It will be submitted that the greatest challenge is change of societal attitudes by fostering tolerance and appreciation of diversity. The speaker will conclude that acceptance and understanding will grow slowly after decades of bigotry and persecution and that the law is an imperfect mechanism for transformatory societal change.
Consent, Teenagers, and (un)Civil(ized) Consequences
Drobac, J.S.D., Professor and Visiting Scholar
UC Berkeley Law, Center for the Study of Law & Society
This presentation explores three questions regarding adolescent consent. First, is law consistent in its treatment of adolescent consent? Second, should state “ages of consent” set somewhat arbitrary but predictable points for attributing legal capacity to teenagers? And, if not, should presumptions give way in case by case evaluations? Negative answers to these questions prompt a reformed approach to adolescent consent—one which makes adolescent consent voidable by the minor—as under traditional contract law. This recycled approach accounts for new discoveries concerning adolescent development and old stereotypes about sexually active teenagers. Whether or not adolescents have legal capacity, they need maturing experiences. This recycled approach allows them decision-making power while protecting them under the law when they inevitably make unwise choices. It recommends placing the burden on mature adults to moderate their behavior in light of adolescent “developing capacity.”
Panel: Mainstreaming Gender Equality: A Reality Check
Professor of Law
University of North Carolina School of Law
Associate Professor of Law
Professor of Law
A.J. Quinney College of Law, University of Utah
Paul M. Siskind Research Scholar & Professor of
Boston University School of Law
Claims that gender equality has been achieved now abound. "It’s a Woman's Nation and that changes everything," Maria Shriver recently declared. Women now constitute more than half of the American work force, and the vast majority of women contribute income to the family economy. Indeed, the recession is accelerating this trend as women attempt to mitigate job losses mostly experienced by men. But has the gender playing field really been leveled? This panel will examine the status of gender equality and explore the continuing dynamics among law, gender, and families. Questions will include what is the reality of gender equality? How do we define equality? What is the interplay between law and social and cultural norms in fostering gender equality or entrenching inequality? Given the changes in women’s lives, what is the role of law in advancing the status of women? Maxine Eichner will discuss work-family conflict, and argue that the U.S.’s approach to managing the market-family boundary entrenches sex inequality. Alicia Kelly will talk about the persistence and even retrenchment of gender norms, and the impact that they still have on family resource allocation. Laura Kessler will discuss changes in the discipline of family law as it is conceptualized and taught inside law schools, particularly the shifting attention by family law scholars away from inequality inside the heterosexual marital family to other concerns and intimate configurations. Finally, Linda McClain will examine the fascination with First Lady Michelle Obama, the First Marriage, and the First Family as a template for making sense of support for -- as well as resistance to -- gender equality, particularly as it pertains to families and the relationship between personal and professional roles.
What Divorce Property-Division Rules Are Best?
Marsha Garrison, Suzanne J. & Norman Miles Professor of Law
Brooklyn Law School
Divorce is the most frequent form of family litigation, and property division the most frequent issue to arise in a divorce proceeding. But no consensus has evolved on an optimal scheme of property distribution.
All schemes for the division of property at divorce must provide a basis both for the identification and division of the marital estate. The most common identification schemes are “community property,” under which divisible assets are those acquired during the marriage except by gift, descent, or devise, and “universal community,” under which all assets, whenever and however acquired, are subject to division. The American Law Institute has also proposed a hybrid approach under which a legislatively determined share of separate assets would be reclassified as marital each year; thus a couple would begin marriage governed by a community-property norm and would gradually convert to a universal community norm. The most common division approaches are equal division (each spouse receives half of the available pool) and equitable division (each spouse receives a “fair” share, with fairness determined through examination of a number of factors, including need, contribution, and child-related concerns). Utilization of one or another scheme may produce a very large difference in post-divorce property entitlements.
This paper describes the reasons why consensus on an optimal property-division scheme has failed to develop. It presents results from a cross-national survey aimed at identifying public perceptions of fair divorce distribution in different factual contexts and evidence on spousal behavior. Using this evidence, the paper evaluates current property-distribution models, reaches tentative conclusions about their merits, and charts an agenda for further research.
No Way – The
Child’s Right To Maintain Contact With Both Parents
After Separation Under Articles 7 And 9 Of The UN Convention On The Rights Of The Child
Senior Lecturer in Law, London Metropolitan University
International law appears to give children a right to know and be cared for by their parents, and a right to maintain contact with both parents after separation. There is some evidence that following parental separation, children fare best when they maintain ongoing relationships with both parents. Implementation of these rights is made difficult by the “invisibility” of children. Although children are the object of contact applications and their welfare is the basis for deciding applications for contact, although children may be consulted as to their wishes and feelings about contact, cases are generally brought by parents or other adults, with very few applications by children themselves. Only a small minority of contact disputes come before a court, so the court has no role in contact arrangements for most children. A significant proportion of children lose contact with their non-resident parent within a fairly short time after parental separation.
What of the young child who is not capable of making an application to court, who longs for contact with a parent who has “disappeared” from their life? A parent who is perhaps indifferent to or unaware of the child’s feelings, resentful of their ex-partner, or demoralised, believing it is in the child’s interests to remove himself from the child’s life. What structures or procedures are in place to enable such a child to have contact?
The world of the child collides with the world of the parent who fails to respond to the child’s desire for contact, and with the world of legal regulation and enforcement of contact. In this paper I identify the international legal obligations concerning contact owed by states who are parties to the United Nations Convention on the Rights of the Child. I examine the remedies offered by the law to promote ongoing care by both parents such as shared day-to-day parenting, coercive or forced orders for contact, family assistance orders, enforcement of contact orders, offences of neglect, and a possible automatic minimum entitlement of contact with a non-resident parent. I highlight the limits of legal ordering and some possible dangers, and review alternative extra-legal initiatives such as the Child Contact Services in Australia and parenting information programmes in New Zealand. Various commentators have called for a move away from law and for a new agency and involvement of professionals in the social science disciplines to promote and facilitate contact, and I conclude that rights cannot be seen as susceptible to implementation solely by means of the law. The conception of rights as “meta-law” may assist the full implementation of children’s right to contact with their non-resident parent.
Competing Conceptual Frameworks in Family Law
Feinberg Professor of Law, James E. Beasley School of Law at Temple University
We are a society deeply divided about the purpose and role of the state in the lives of families. Scholars have explored many of these divisions, including those between those with traditional values who focus on the traditional marital family and those who seek to validate a range of family forms; those who seek to adapt traditional family structures to changing times and those who wish to begin afresh.
As these divisions are debated, however, certain themes, conceptual frameworks, or rhetorical strategies, come to the fore. These conceptual frameworks for family law are multiple, supporting multiple narratives, multiple behavioral norms of how people “should” behave, and what the state’s role should be in securing or enforcing such behavior. I have divided these frameworks into five: traditional morality; private ordering/contract, power/welfare; civil rights; and therapeutic. Because of the multiplicity of these competing frameworks, speakers often talk at cross-purposes when discussing the role and purpose of state intervention in the family and the assumed behavioral norms for families. I hope that this exploration of these varied frameworks and their implications can enable us to acknowledge their presence in our conversations and their implications for our choices about family law.
These frameworks shape family law at many levels: federal and state family law policy development; democratic exercises in and debates about family law creation; judicial decision making; lawyer’s interactions with clients; and individuals’ contestations with each other. Each of these frameworks envisions an idealized family form or behavior and those behaviors that are viewed as violating those important norms. They each build their definition of the role and purpose of the state in the lives of families based on that ideal/negative family form or set of behaviors. While many advocates and policymakers draw on more than one framework in developing their beliefs about the role of the state in family law, agreement on the right framework for analysis of an issue does not always lead to agreement on the substantive family law concepts. Each framework does, however, tend towards certain types of interventions in families. These frameworks often shape how particular disputes are viewed.
This paper will select and highlight particular cases or policymaking contexts in which these different frameworks are available interpretive options. Possible scenarios includes conflicts over same-sex marriage, conflicts over the religious upbringing of children by divorced parents, and custodial disputes involving claims of domestic violence.
Traditional Morality Framework
What are some of the key assumptions of this framework? First, it openly asserts the state’s role in enforcing individual behavioral norms. Civil order is dependent on the family; thus the state has a deep interest in structuring and controlling family relationships. Second, it derives those norms primarily from Christian religious principles and historical adherence to these principles, even as they merged into civil legal norms. These norms are associated with state restrictions on entry into marriage, such as sexual orientation and degrees of family relationships permitted to marry; on exit from marriage; and imposition of penalties based on fault in divorce proceedings. Family relationships outside the protected realm of those that are based on traditional morality are not given any protections.
This framework may lead in different directions regarding the degree of state involvement – while it justifies state restrictions on divorce it also tends to protect the traditional family – for example, grandparent visitation statutes that only apply to families already disrupted by divorce or death. It also tends to undermine an individual rights approach to family law.
Private Ordering/Contract Framework
This framework envisions a much more restrained role for the state in family relationships. Key assumptions of this framework: private individuals are capable of organizing their family relationships for themselves; the state’s role is quite limited, as individuals are expected to negotiate for themselves what they need in relationships. This framework does not readily acknowledge that it is based on certain behavioral norms; rather, it sees the state as having a very limited role, entering into family relationships only when they break down and the individuals cannot resolve their disputes themselves. It is largely hands off – for example, cohabitation is unregulated; cohabitants may enter into their own agreements about their obligations to each other. Where it does envision a state role, the first role envisioned is to facilitate agreement between the parties – for example, this approach is reflected in requirements that the parties mediate their disputes prior to adjudicating divorce or custody matters. If agreement is not reached, the state’s role become to to determine the intentions of the parties – through enforcement of agreements such as premarital agreements or surrogacy agreements. The behavioral norm expected is intentional and open ordering by those individuals – they are to talk to each other about what their relationship expectations are. If they don’t engage in such conversations, they are assumed to have agreed to the underlying legal norms – if married, to the rules governing marriage and divorce; if not married, to the cohabitation norms, which largely preclude forced sharing. There is an assumption of individualism that can only be overcome by evidence of intent to share. This framework presumes formal equality between the sexes and does little to counteract any possible inequalities.
This framework acknowledges that family relationships often involve great dependency and inequality and looks to state intervention in families to protect dependents and equalize those relationships. Its concerns are epitomized by domestic violence and children’s welfare laws, which protect adults from violence and children from abuse and neglect. It also takes a more skeptical approach towards premarital agreements, seeking to ensure substantive fairness at the time of enforcement to protect the weaker party to the agreement, highlights concerns about the pressures that poverty may exert to bring women into unwanted surrogacy agreements; seek to protect homemakers during divorce because of their dependency. This framework envisions an active role for the state in the lives of families; rather than seeing families as a sanctuary for “private ordering,” families are viewed as potentially dangerous, requiring easy access to state protection.
Civil Rights Framework
The civil rights framework has made some interesting bedfellows. On the one hand, it was used to support the aspirations of interracial couples to marry and is currently called upon to support same-sex marriage and other novel family relationship claims. On the hand, it is used by the father’s rights movement to eliminate the marital presumption of paternity and gain equality in child custody arrangements. This approach is most often aimed at state regulation of the family – its restrictions on entrance to marriage, or its regulation of post-divorce custody, or paternity findings. It may seek active engagement in the family, such as through the approval of same-sex marriage, or restrict the state’s role, such as by leaving cohabitants alone.
This most recent proposed framework envisions the state’s role as facilitating more beneficial family relationships and family dissolutions. It is based on the view that most family relationships continue after divorce, especially when children are present. It believes that the negative emotions that are generated in family dissolution proceedings are harmful to all participants, and that the state’s role is to assist participants in resolving their anger and becoming able to engage in positive relationships with each other. The state’s role is to help reduce anger and facilitate these positive relationships. While this framework envisions an active role for the state, it is less an adjudicative role and more of a social services approach to intervention in the family. It has been criticized by those concerned with the power dynamics in families as tending to obscure or marginalize issues of violence within families.
Adolescent Decision-Making and the Right to Vote
Associate Professor William & Mary Law School
Research on children’s development shows that adolescents reach cognitive maturity (re ability to reason abstractly, understand complex concepts, etc.) by age 15 or so. Maturity in terms of other types of decision making lag, of course. Yet, the research raises the question of whether the sort of capacities that older adolescents do have aren’t exactly what’s required of citizens when voting. Several other countries do extend the vote to 16-year-olds and others are conducting studies and considering whether to do so. There may be other good reasons for extending the vote to older adolescents—including the possibility that doing so would result in more child-protective (or at least child-considerate) legislation. This article will explore these issues and make arguments grounded in both science and in political theory/participatory democracy.
Foster Care: Intractable Problem or Highly Effective Strategy?
Leslie Joan Harris, Dorothy Kliks Fones Professor
School of Law, University of Oregon
In the child welfare system, as in the criminal system, the fundamental tension is between individual autonomy and liberty and social protection. This tension is more complicated in the child welfare system because, in addition to the person who is the object of the state’s coercive power (in the criminal setting the defendant, in child welfare the parent), there is a second person, the child, who is independently entitled to respect and protection. The child’s interests are not aligned exclusively either with the parents’ claim to autonomy nor with the state’s claim to protection of society. Sometimes the child’s interests are served by the same measures that protect parental rights, sometimes by those that the state advances, and sometimes the child’s needs are best served by a path different from that of either the parents or the state. While all can agree that child maltreatment has terrible consequences, leaving a child in long-term foster care can be a form of child maltreatment with equally bad consequences, including increasing the risk that the child will break laws that result in him or her being adjudicated delinquent and, later, convicted as an adult of crimes. Even though respect for parental autonomy and the goal of protecting children from harm seem to be served by sparing use of foster care, a half million children spend time in foster care every year, and efforts to reduce that number have been disappointingly unsuccessful.
This paper examines the problem of the overuse of foster care and argues that conventional reform efforts are unlikely to succeed, as they have not succeeded for a century. From one perspective foster care is not overuse -- heavy reliance on foster care, as part of the broader child welfare system -- facilitates social control and replication of poor, minority families. Using this analytical lens, many reform proposals turn out to be simply more of the same. Others, however, offer promise because they challenge the power structure that underlies the current system.
The first part of this paper reviews recent research that demonstrates how harmful foster care can be for children. The next two parts look to the history of child welfare interventions over the last century and find repeatedly that well-informed professionals argued that children should be left at home if possible, but that these calls did not have a major effect on practice. The last parts of the paper develop the analysis of foster care as a tool of social control and consider the implications of using this analysis for evaluating proposals to change the child welfare system.
Recasting the Canon of Family Law
Julius E. Davis Professor of Law
University of Minnesota
The family is one of society’s core constitutive institutions, shaping social organization, socioeconomic status, intergenerational relationships, gender dynamics, intimacy, and daily living. Family law pervasively structures family life by regulating the creation and dissolution of family relationships, and determining the rights and responsibilities that family members have because of their family status. Indeed, family law is one of the most important and far-reaching areas of the law, whether importance is measured in terms of significance in shaping people’s lives, volume of litigation, or goods (monetary and psychological) at stake. Yet family law is remarkably undertheorized and poorly understood.
This book is about the family law canon. By canon, I mean the dominant narratives, stories, examples, and ideas that judges, legislators, and commentators repeatedly invoke to describe and explain family law and its governing principles. No one else has examined the family law canon. But the canon shapes how authorities and advocates understand family law’s current operation, how they envision the dilemmas and decisions that family law faces, and how they structure and reason about specific family law policies. The canon helps explain the answers that are considered established wisdom in family law, the questions about the field that go unasked, and the choices that decisionmakers endorse. Recasting the Canon of Family Law explores, uncovers, and critiques the family law canon, and outlines the path to reform. As it reveals, the canon misdescribes the reality of family law, misdirects attention away from the actual problems that family law confronts, and misshapes the policy interventions that courts, legislatures, and advocates pursue.
The Performative Family
Clare Huntington, Associate Professor
University of Colorado College of Law
Families perform in many ways—metaphorically, economically, socially, and literally. These familial performances and family law are mutually constitutive, with family law shaping the performances and the performances shaping family law. Scholars have largely failed to recognize this symbiosis, missing both the salience and perniciousness of familial performances. This Article first identifies and analyzes these performances and then argues that the failure to recognize families as performance art has important implications for family law scholarship and family law policymaking. First, performances define “The Family,” excluding those who are not cast in the leading roles from laying any claim to membership in the family. Second, the discrepancy between the public performance and the private reality of family life contributes to the cognitive dissonance surrounding issues like child sexual abuse. We resist believing, for example, that a father would rape his daughter. And yet innumerable fathers do. Finally, detecting the public aspect of familial performances further dismantles the tenacious myth that families are private, separate from the public market and state.
Melanie B. Jacobs, Associate Professor
Michigan State University College of Law
Increasingly, family law scholars are interested in how many parents a child can have, especially if it is more than two. In prior writings, I have advocated for “multiple parentage” and written about dual paternity and the legal recognition of more than two parents when more than two adults intend to parent or function as parents to the child. The flip side of recognizing multiple parents for a child is to recognize only one; just as courts have been loathe to consider more than two parents for a child, many courts have been equally uncomfortable recognizing only one legal parent for a child, specifically a single mother who used assisted insemination with a known donor. Yet, in this context, deviation from the two parent paradigm seems warranted and further reflects the intent of the adult parties. Sperm donor recognition as a father - the second legal parent - usually arises because of courts’ concern in protecting children. Yet, conferring legal parentage on a known donor is often at odds with the parties’ initial intent and thus conflicts with other cases in which intent is the basis on which parentage is conferred. Furthermore, if we accept that assisted reproduction is an extension of procreative privacy, then forcing a single mother to co-parent is at odds with both her procreative privacy and parental autonomy.
Several courts have recognized that a child born through use of ART may have only one legal parent (e.g., a single mother using a sperm donor). In In re KMH and Ferguson v. McKiernan, for example, the courts of last resort in Kansas and Pennsylvania decided that a single woman who used sperm from a known donor could be a single parent. Although precedent existed for one legal parent in the context of a single mother and anonymous sperm donor, courts had been reluctant to confer legal rights in only one parent where both genetic parents were known. In KMH, the man sought paternal rights while in Ferguson, the mother sought to establish the donor’s paternity against his wishes. Both courts decided that only the mother would be the legal parent and both courts were troubled by their decisions. Specifically, the courts wondered if it was in a child’s best interests to have only one legal parent.
The single mother as sole legal parent thus raises issues concerning her legal right to parent alone; the rights, if any, of the known sperm donor; and the rights of the child to know her genetic parentage and identity. The cases raise several additional points and demonstrate inconsistencies within family law jurisprudence. While some courts (and the Uniform Parentage Act) concede that single mothers can be single parents, this is in direct contrast to traditional paternity establishment and child support enforcement policy. Correspondingly, the cases illustrate that we essentially have two bodies of family law, each predicated on socio-economic class. Slightly overstated, single, professional women who use ART to have children can insulate their parent-child relationship from paternity claims but poor women who receive TANF, get pregnant, and carry the baby to term are not legally allowed to opt-out of the two parent paradigm (except in certain exigent circumstances).
In this paper, I will explore whether these two single parent regimes should exist and/or how they can be reconciled. I have previously advocated that we may be able to move from “one-size-fits-all” parentage to developing differentiated parental rights predicated on particular functions the adult assumes. I will analyze the possibilities of recognizing and enforcing agreements between single mothers and known donors that secure the legal parentage of the single mother only and preserve a very limited right for the known donor. I will examine whether the approach used in known donor cases can be applied to the current paternity establishment regime.
Cohabitation at the Crossroads
D.C.L. Candidate, McGill University & Professor at the University of Sonora, Mexico
By bringing together the Canadian common law/civil law treatment of cohabitants and the Mexican institution of concubinage this paper will compare the issues that underpin the current differences in treatment of cohabitant support and property rights within both countries. While Mexico has recognized concubines support and property rights, Canada continues to limit cohabitants shared property rights and the civil law province of Quebec does not recognize cohabitants support rights. This idiosyncrasy stands out against common law/civil law presumptions where legal improvement or innovation can only move in a top-down and north-south direction. Through the comparisons the current central distinction between married and non-married partners of “autonomy” and “choice” as set forth in Nova Scotia v. Walsh this analysis will situate common law/civil law private law tensions of cohabitant recognition in Quebec and Mexico within the broader issues of race, gender and class that has sustained cohabitant recognition within the Latin American civil law and the different understandings of the social role of law in family matters through which this recognition
Toward Skeptical Marriage Equality
Suzanne A. Kim, Associate Professor
The debate on the left concerning same-sex marriage generally divides into those who argue for “marriage equality,” viewing the right of access to marriage as an important civil right, and those who demonstrate “marriage skepticism,” treating the effort to obtain marriage as regressive, limited, and troublingly assimilationist. But an implicit third position in the debate on the left concerning same-sex marriage has gone unexamined. This is the position in support of same-sex marriage but critical of marriage. I offer the term “skeptical marriage equality” to describe this hybrid position, skeptical of marriage as a legal category and its privileged place in law and society but favoring marriage equality for same-sex couples because of the motivations for or consequences of barring it.
Exploring the feasibility and possibilities of this hybrid position is critical to a nuanced approach to same-sex marriage. Without it, the law affecting family risks repeating the exclusion of a marriage-based system of legal and public support for families.
How can we harmonize the powerful and compelling critique of marriage advanced by feminist and gay rights scholars with support of same-sex marriage? This article argues that rather than being exclusive of one another, as is often assumed to be the case, marriage equality and marriage skepticism are interdependent and mutually reinforcing. Contrary to popular accounts, marriage skepticism’s interest in pluralism and family function has actually led to the movement for marriage equality. Conversely, marriage equality may actually better achieve the goals of marriage skepticism than an approach that eschews marriage entirely. Same-sex marriage may not only make marriage internally less hierarchical as feminists have argued, but it may, even more importantly, unsettle the hierarchical relationship between marriage and other intimacy forms to support a more pluralistic vision of state recognition of family connection.
Shaken Baby Syndrome and Other Myths: Child Abuse or Family Abuse?
Heather Kirkwood, J.D.
Is It Really So Elementary, My Dear Watson?
Thomas Young, M.D., Heartland Forensic Pathology, Kansas City, MO
An infant death is cause for mourning. For the past 40 years, however, when an infant dies unexpectedly, there has been a very good chance that the parents or caretakers will not be permitted to mourn with their families but will instead be charged with murder. The difference rests on 3 medical findings: subdural hemorrhage, retinal hemorrhage and cerebral edema (often referred to as “the triad”). For decades, these findings were viewed as diagnostic of “shaken baby syndrome” (SBS) or other types of abuse, and their presence led virtually inevitably to the removal of siblings, followed by criminal charges.
As a former child abuse prosecutor points out, “Despite its
lingering presence in the popular imagination, the scientific underpinnings of
SBS have crumbled over the past decade.”
D. Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87
These advances in medical thinking have not stopped the march of family law cases and criminal prosecutions. Even today, the discovery of the “triad” (or even one or two of its elements) typically sets off a cascade of events that destroys families. Frantic parents or caretakers of sick or dying babies may be arrested at the hospital or soon thereafter; their children are placed in foster homes; spouses are forced to turn on each other and often must agree to divorce and to testify against each other – if they don’t, their children will be placed for adoption. Typically they face long prison sentences, maybe even the death penalty. To raise money for lawyers, they lose their homes and their savings. They also often lose their jobs, their faith in the justice system, and their faith in mankind. Just when families are needed most – when a child is sick, dying or dead – the family is systematically destroyed.
Often, we think of shaken babies in the context of criminal law, but the process usually starts in a family court, where the parents are represented by family law lawyers who do not have the knowledge or the resources to disprove the allegations, but who are painfully aware of the dangers that their clients face. Ms. Kirkwood and Dr. Young, a former chief medical examiner, will address the legal and medical issues, using real case examples. As it has become clear that medical underpinnings for many of the allegations are not valid, innocence projects are addressing the criminal convictions. The family side is, however, equally compelling: how do we fix families that are broken, and how do we stop them from breaking in the first place?
Helping Parents Tell Their Children About Separation and Divorce: Social Science Frameworks and the Lawyer's Counseling Responsibility
Mary Kay Kisthardt , Professor
University of Missouri Kansas City School of Law
The role of the family law attorney should include counseling
clients about important interactions between the client and their children.
Most parents who are going through a divorce are very concerned about its
impact on their children. Addressing this concern in ongoing discussions with
clients is an important aspect of quality representation. Absent extenuating
circumstances, clients should also be encouraged to cooperate with the other
parent in deciding what will be said to the children and then jointly or
separately engaging in these conversations to further the interests of their
This presentation will summarize the research on the effects of divorce on children, how attorneys can educate their parent clients who are going through a divorce about diminishing the harmful impact of divorce on children, and why those conversations are necessary and desirable.
Assisted Reproduction in the US and Great Britain
Professor and Dean Emeritus, Wayne State Law School
The legal systems of the United States and Great Britain have a good deal in common, which is hardly surprising, given that the United States began life as a British colony. There are, however, significant differences in the law regarding bioethics in general and assisted reproduction in particular. Some of these differences derive from the manner in which reproductive technology is funded. In the United States, access to reproductive technology depends on good health insurance, personal wealth, or a combination of the two; in Britain, the National Health System funds fertility treatments, including in vitro fertilization. In addition, Britain has a centralized political system and a willingness to regulate ethical issues that has led to a more systematic approach to assisted reproduction. This paper will look at both the law and practice regarding funding and regulating reproductive technology.
Illegitimate Harm: Law, Stigma, and Discrimination Against Nonmarital Children
Seton Hall Law School
Legal and societal discrimination against nonmarital children was prevalent in the United States until the 1960s and 70s when the U.S. Supreme Court, in a series of decisions, struck down laws denying nonmarital children many of the rights available to marital children. In recent years, as rates of nonmarital births approach 40% nationwide and 70% in some communities, courts have repeatedly stated that “the law has tended to remove the stigma of illegitimacy by treating illegitimate children the same as children born of a marriage.” At first glance, this statement seems accurate. Child support enforcement agencies pursue noncustodial parents of nonmarital children as aggressively as divorced parents. Similarly, the Uniform Probate Code provides that nonmarital and marital children have equal rights to intestate succession. However, upon closer scrutiny, it appears that the law continues to treat marital and nonmarital differently, to the detriment of nonmarital children. Indeed, as one court has acknowledged, “although some . . . statutes purport to grant the same rights to legitimate and illegitimate children, there is still a difference between them, as the terminology indicates.”
In this article, I examine two areas in which the law privileges marital children—(1) postsecondary education support and (2) intestate succession—and argue that decisions in these areas suggest that lingering biases against nonmarital children remain. After examining the historical and current legal disadvantages of illegitimacy, the article explores the continuing social stigma of illegitimacy. Although some courts have stated that there is currently little, if any, social stigma attributable to illegitimacy, others have acknowledged that society disapproves of nonmarital children. For example, courts have upheld doctrines, such as the presumption of legitimacy, in part, to protect children from the social “stigma of illegitimacy.” Similarly, in the adoption context, courts have rejected petitions to open adoption records, in part, because doing so would expose children to the “stigma of illegitimacy.” The Massachusetts Supreme Court has cited the benefits to children of same-sex couples “such as the enhanced approval that still attends the status of being a marital child” as a reason to extend the right to marry to same-sex couples. In addition, married women have cited the desire to shield their children from assumptions that they were born out of wedlock as a reason for taking their husband’s surname. These actions suggest that courts and parents believe that societal biases against nonmarital children persist to some degree.
Finally, the article examines how the law itself might be reinforcing the social stigma of illegitimacy. Specifically, it argues that government efforts to promote marriage between unmarried parents, along with states’ rejection of same-sex marriage on the ground that only heterosexual couples can procreate accidentally, signal that nonmarital childbearing is undesirable, thereby reinforcing society’s perception that nonmarital children are not as deserving of the same protections and benefits as marital children.
Legal Characterizations of Women and Reproduction
Jody Madeira, Associate Professor
Indiana University Maurer School of Law - Bloomington
In this presentation, I will contrast legal scholars’ characterizations of infertile women and women considering abortion, arguing that constructions of infertile women inexplicably deny women’s ability to critically assess the health risks and life benefits of fertility treatments. In legal scholarship, a woman seeking infertility treatment is portrayed as emotionally distraught and desperate, her ability to give informed consent potentially imperiled. Yet, the legal academy has roundly rejected similar characterizations of pregnant women considering abortion, depicting them as confident and competent decision-makers. I argue that these paternalistic constructions must be corrected because they are inaccurate, demeaning, and could be incorporated into jurisprudence and legislation.
What constitutes the Right to Family Life for Foster Children?
Titti Mattsson, Associate Professor, Faculty of Law
Univ of Lund Sweden
The core of Family Law is, as the term applies, the Family. Traditionally, family and family life has been defined with a need-based approach in decisions concerning the child in a family. With such approach, adults (custodians, judges, social welfare officers etc.) define and decide what the child needs in different family matters. However, with a rights-based approach the child’s rights are in focus, including the child’s perspective and interests. As a consequence, decisions about the child’s family and family life may give different results with this perspective. The aim of this paper is to investigate the consequences of such change of perspective when it comes to decisions concerning socially exposed children in need of care. The main question is whether change of custody to the foster parents may be a suitable alternative to provide long-term care for children in need of care and, at the same time, protect the child’s right to her family and family life.
There are different ways to intervene in families to protect socially exposed children, which comprise both public and private law. Sweden has four alternative options. Firstly, the family may receive social assistance in the family home or may be subject to foster care. Secondly, when consent to the care deemed necessary by the Social Welfare Board is not given by the child’s custodians, the Administrative court may decide that statutory care should be ordered without the consent of the custodians. Thirdly, the Board may decide to apply in court for a change of custody. The foster parents may then be assigned legal custodians as may someone otherwise suitable person. Finally, the custodians may agree to give the child up for adoption.
Even though the different decisions may be justifiable relatively their goal - to help socially deprived children, all the interventions do not necessarily encompass enough considerations of the child’s right to family and family life. As a consequence, an intervention may affect the child’s right to family negatively. For example, an adoption may constitute a total break in the child’s contact with her siblings and other relatives that are loved by her. Swedish law and legal court practice will act as a framework for this analysis of state child interventions with a rights-based perspective.
Toward a Feminist “Social Ecology”
Linda C. McClain, Professor of Law and Paul M. Siskind
Boston University School of Law
In this paper, I will look at the relationship between the notion of social ecology, as it is used in legal and political literature about associational life – including calls to revive civil society – and the notion of an ecological, or environmental, approach as it features in the resilience literature. In the former, a common claim is that the relationship among families, civil society, and the state is askew: in an earlier time, families sustained – and were sustained by – other “intermediate associations” between the individual and the state, such as religious institutions and community organizations. This social ecology generated the social capital that nurtures associational and political life. Dramatic changes in the economy and organization of work, family, and neighborhood have affected the capacity of associations to serve as “seedbeds of civic virtue” and to carry out functions traditionally assigned to them, putting families, communities, and the nation “at risk.” Nearly twenty years ago, Mary Ann Glendon urged a more ecological approach to families, civil society, and state, charging, in Rights Talk, that a peculiarity of American rights talk and the “missing dimension of sociality”: Americans lack an “adequate linguistic or conceptual apparatus to deal with the intermediate institutions that stand between the individual and the state and we regularly overlook the effects of laws and policies upon the environments within which society flourishes, and the settings upon which individuals depend for their full and free development.” She cautioned about the “fragile ecology” of social life and counseled attention to “social environments,” the “crisscrossing networks of associations and relationships that constitute the fine grain of society.”
These “then/now” stories also diagnose a transfer of functions once carried out by families to other social institutions and by the state. While some bemoan this transfer, others view it as an opportunity for new public/private partnerships and collaborations among families, other institutions of civil society, communities, and public institutions (such as schools, and local, state, and federal government). One example is Hillary Clinton’s book, It Takes a Village, which contrasts the village of yesteryear with the contemporary village and offers proposals for attending to the social ecology. Like Glendon, she compares U.S. family policy unfavorably with that of many nations that pay more attention to social environments.
There are useful parallels between this literature on reviving civil society and replenishing social capital and the literature on resilience. One parallel is a concern with risk factors and protective – or buffering – factors. Moreover, resilience scholars suggest an evolution from a first “wave” of “identifying individual resilience and factors that make a difference” to a second “wave” of “embedding resilience in developmental and ecological systems.”A third “wave”looks at “intervening to foster resilience.” These phases invite attention to the role of policy and, thus, the state, just as civil society revivalists invite attention to the proper role of the state in shoring up social capital. Yet, researchers caution, American cultural beliefs and values about individualism may be obstacles to implementing such policies.
The final part of the paper begins to canvass resources to construct a feminist approach to social ecology. As a possible resource for constructing a contemporary feminist social ecology, I look at a prominent Progressive Era feminist/maternalist approach to social ecology: the municipal/civic housekeeping associated with Jane Addams by way of her pioneering Hull House as well as her advocacy of association as a method for bringing about reform and shaping policy. This paper is part of my ongoing project, Free and Equal Association, which seeks to develop a feminist framework for thinking about the infrastructure of associational life. I am particularly interested in notions about the respective functions of families, other social institutions, and the state with respect to fostering capacity – and for that matter, resilience. I am also interested in the various interdependent relationships among families and other social institutions, as well as in public-private partnerships launched to strengthen the social ecology.
Multi-Tiered Marriage: Reconsidering the Boundaries of Civil Law and Religion
Associate Professor of Law, University of St. Thomas (
The Archbishop of Canterbury, Dr. Rowan Williams, caused an international uproar in February 2008 when he called for a “plural jurisdiction” over some disputes within the United Kingdom. The Archbishop specifically proffered a system wherein Muslims could choose to resolve family law disputes (and some other civil matters) in either religious tribunals or in British courts. In July 2008, Lord Chief Justice Lord Phillips (the most senior judge in Britain) seconded the Archbishop’s sentiment and, in public remarks, signaled his approval of the application of Islamic law (shari’a) so long as divorce rulings complied with the law of the land. These strong statements came only a few short years after contentious public discussions in Ontario, Canada, about the propriety of religious courts operating as arbitration tribunals in family law matters. Currently in South Africa, both the legislative and judicial branches continue to contemplate the interaction between civil law and religious law with respect to marriage (especially regarding “customary marriages,” polygamy, and same-sex marriage). And India and Israel lead a number of countries in delegating jurisdiction over marriage and family life to religious law or religious tribunals.
These international examples are especially interesting in light of the fact that the United States is, by all accounts, an increasingly multi-cultural and religiously-plural society. Despite such diversity, it is common lore that American family law is unitary with respect to jurisdiction and uniform in its application. That is, it is commonly thought that there may be only one unitary civil law of marriage and divorce within each state (although concepts of federalism allow for some distinctions between the states). Further, it is thought that the singular civil law of marriage must be applied in a uniform way to all citizens of the state.
This paper shows that the common lore of uniformity – even within America – is historically incorrect. Further, examples abound of pluralism within modern American marriage and divorce law already, especially in New York’s get statutes and in the covenant marriage laws of Louisiana, Arkansas, and Arizona. And pluralism further exists in the interaction between reified legal norms and other socio-religious norms that hold sway over individuals’ and communities’ lives, even if such norms are not codified officially. This paper lays the groundwork for fundamentally re-thinking jurisdictional boundaries of marriage law. It also starts the conversation about whether such rethinking is constitutionally permitted, whether it accords with the best precepts of liberal democracy in a plural society, and whether it is inevitable.
Teaching Family Law & Film
Mary Kay O’Malley, Clinical Associate Professor
University of Missouri Kansas City School of Law
A course in family law and film engages students to think about how family and identity shape and are shaped by law in a powerful and direct way. In this presentation, Professor O’Malley will share her experience in teaching courses in family and film, sharing outcomes one can expect from students in the course, resources for teaching the course and approaches to assessment.
Pop Cultural Family Law
David Papke, Professor of Law
Marquette Law School
Americans appear always to be hungry for stories about families and family life, and stories of this sort are often the main dishes in contemporary popular culture. Hollywood studios turn time and again to love stories and romantic comedies, and television programming includes countless family-based soap operas, primetime dramas, sit-coms, and even animated cartoons such as “The Simpsons” and “Family Guy.” Law and legal institutions need not necessarily be used in any of these pop cultural works, but it is surprising how frequently statements of the law, portrayals of lawyers, and depictions of courtroom proceedings appear. The resulting “pop cultural family law” is often in accurate and/or conveniently reshaped in order to tug on the heartstrings of viewers and to create more viable commercial products.
This presentation will discuss family law in contemporary American popular culture. I will use specific movie and television references to consider overall patterns and trends in the areas of marriage law, divorce, child custody, and adoption. What does the shaping of family law by the culture industry tell us about the goals of the industry and the attitudes of the public? Do movies and television series have any impact on what readers take to be actual family law? Should lawyers, judges, and legal educators be concerned with the characteristics and implications of “pop cultural family law”?
The Trust In Family Crisis – A Model To Regulate Child Maintenance Systems In A Civil Law System
Alessandra Pera – Professor of
Univer Palermo – Italy
Quite often conflicts between spouses also continue after the provision of separation or divorce, especially in order to the payment of the maintenance to the other consort and to children, which become an effective tool of "revenge" of the consort forced. It is, in fact, frequent that the obliged consort tries to escape to the connected obligations of maintenance, transferring the ownership of his/her estate to complaisant people.
In such cases, the trust can be considered a useful instrument to protect the different demands of the consorts. In fact, in the pathological moment of family life there are often different and opposing interests to satisfy.
In this divergence, the trust has found new space. On one side there is the comprehensible interest of the creditor consort and the children to achieve certainty that the maintenance obligation are carried out in time and correctly, without resorting to the executive actions, with their consequent costs and times.
On the other side, there is the interest of the debtor consort to see involved in the fulfilment the only necessary resources, avoiding the danger that - for executive actions - the creditor consort extends a tie of unavailability on his/her other assets.
The intervention of a third party, the trustee, that is inserted in the spouses conflict and guarantees the execution of the obligations coming from the separation or the divorce, represents a solution to mitigate the different interests in contrast.
Moreover, with the institution of the trust and the constitution of a separate estate, the assets included in the trust are “untouchable” by the creditors of the obliged consorts.
Also in the hypothesis in which, in a following moment, the obligation of maintenance has no more reason to exist, neither for children and for the consort, the deed can establish that the assets have to be transferred to the final beneficiary, pointed out by the settlor, or that the trust continues in the interest of other beneficiaries, specifically individuated.
Recently, many authors and Courts opinion in Italy is that nothing hinders to the institution of a trust in the record of consensual separation ratified by the judge or in the joined divorce and therefore consecrated in the final decision of the judge.
This instrument can give answer also to some situation that in Italy has not any legislative discipline, such as patrimonial relationship in de facto family, which cannot be regulated through matrimonial conventions or other figures stated in the civil code, reserved to the legitimate family. For example, in the case of two cohabitants that intends to settle a trust to preserve their patrimony for their children borne out of the marriage. In such cases, the trust choice is an act of free determination, expression of private autonomy, that should not suffer any limitations, coming from the legal system, but should be encouraged in the interest of the weak individuals involved.
The Colombian Look To The Equalization Of Rights Between Heterosexual And
Jinyola Blanco Rodríguez
Universidad Antonio Nariño
The change in Colombian legal precedent for the recognition of rights to the husband-same sex made you think, mistakenly, that also involves recognition as one of the methods provided in the Constitution to form a family. In Colombia, the legislature has not enacted any law to protect one or another way to homosexual couples. It has been the case, mainly head of the Constitutional Court, which since 2007 has reiterated that there is a "protection gap"for the same, compared to the protection enjoyed de facto marital union formed between a man and a women as a way to be the natural family ties. Thus, without claiming that there is a familial relationship between members of the homosexual partner, gives them certain rights that will be analyzed throughout this paper, among which one can cite, by way of example, the rights to form a patrimonial society or in fact they hold property and entitlement to food, among others.
Matrimonial Property, Choice Of Law, Public Policy, Choice And The Exit Principle
David S. Rosettenstein, Professor of Law
Quinnipiac University School of Law
The mobility associated with globalization tends to confront jurisdictions operating in the Anglo-American tradition with the question of how to deal with matrimonial property arrangements made elsewhere. It is increasingly problematic, with the sensitivities of a post-colonial environment, to pursue the traditional sledgehammer approach, simply by virtue of difference, of rejecting foreign juridical activity on the grounds of public policy. This difficulty is compounded by a domestic jurisprudence that increasingly is willing to accept property arrangements grounded on personal choice, as distinct from status dictated outcomes. Even in this context, the question of whether choices made are acceptable has led to the evolution of, at times, complex procedural and substantive protocols. Whether a “foreign choice” regulating matrimonial property is acceptable is even more challenging. The question raises the issue of the extent to which a notion of choice rooted in an alien culture is inherently flawed, or can be evaluated against some universal yardstick of acceptability, or should be accepted unconditionally on pain of risking the rejection of the domestic legal regime itself. The paper will explore the last set of issues against a backdrop provided by what political philosophers have termed the exit principle -- the idea that a “good society”, and hence the acceptability of legal and social consequences, requires a population of voluntary participants.
The Collision Between Adult’s Conception Of The Best Interests Of The Child And The Child’s Wishes In Court
Eva Ryrstedt, Associate Professor, LLD
Faculty of Law, University of Lund
The best interest of the child is to be decisive in Swedish judgements on legal custody, residency or access. However, nobody seems to be certain of how to understand the concept – Sweden does not have any statutory checklist – but only a few general criteria to decide what are the most important circumstances to take into regard.
The problem is especially significant due to the interaction between the best interest of the child and the wishes of the child. Recent development in the law conveys a stronger child perspective. On the same time the interpretation of the best interest of the child seems to demand that the adults make the decisions on what is in the best interests of the child based on their knowledge and experience. Further, the lack of criteria on how to define the concept the best interest of the child seem to result in an over-interpretation of the general criteria that do exist.
I focus in this study on the best interest of the child in relation to what extent children are able to make their wishes heard in the investigations conducted by the social services regarding legal custody, residence and access that normally precede the courts’ outcomes. Furthermore the question is what impact the wishes of the child have in court and how the courts make the evaluation of what is in the best interest of the child.
Unmarried Cohabitations as a Legal Problem – Some Remarks From Polish Perspective
dr Anna Stepien-Sporek
University of Gdansk, Poland
Law Clerk to Myron H. Bright, U.S. Court of Appeals for the Eighth Circuit
The institution of marriage become less popular in many countries and it is replace by unmarried cohabitations. This trend should not stay without any legal response. However especially in Poland there is a large fear that regulations concerning such cohabitations could denigrate the marriage. On the other hand in some legal situations an extramarital cohabitation should be treated as if it was married because of the strong relationships between cohabitants. Another important argument for regulation of cohabitation is non-marital childbearing.
In Poland cohabitants are given with some rights (for example privileges in criminal law and some rights regarding to the common home of the cohabitants) but there is a far way from a comprehensive regulation. It is important to realize the policy makers that the problem of cohabitation will not stop existing if we do not talk about it. The allegiance to protecting the institution of marriage does not mean that law should omit cohabitations and the appellation “marriage” should be used to such relationships. It is clear that the regulation should protect both cohabitants and their children. However still there is a problem if all the cohabitations (opposite- and same-sex) should be regulated and to what extend should be transformed the legal attitude towards such relationships.
The Reproduction of Gender and International Reproductive Rights
Professor of Law and John DeWitt Gregory Research Scholar, Hofstra Law School
Women’s human rights, including their rights to participate in social, economic, cultural and political life on equal terms with men, are explicitly guaranteed in the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW” or the “Women’s Convention”). These rights include the civil and political rights familiar to Americans from our own Constitution, such as freedom of expression and freedom of association. These rights also include less familiar economic and social rights, such as the right to work and the right to health. Under CEDAW, these rights are to be assured in fact as well as in law. That is, CEDAW goes beyond formal equality (equality of opportunity) to require outcome equality. Under CEDAW, “discrimination” is genuinely robust:
For the purposes of the present Convention, the term `discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
Under Article 2, furthermore, “States Parties condemn discrimination against women in all its forms” and “agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women.” That’s not all, As set out in Article 5, States Parties must “take all appropriate measures”:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;
(b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children … (emphasis added)
This means that CEDAW bars what I refer to here as “the reproduction of gender.” While Article 5(b) explicitly recognizes women’s reproductive capacity, Articles 1, 2, and 5(a) bar the “sexual division of labor based on biological differences” that historian Gerda Lerner identifies as the bedrock for women’s subordination. The thesis here is that this bar on the “sexual division of labor” necessarily includes protection of women’s reproductive rights.
Part 1 of this Article sets out the concededly limited protection of reproductive rights under blackletter international law. Part II first describes the broad prohibition against the reproduction of gender under CEDAW. Part II then explains why this prohibition necessarily requires the assurance of reproductive rights, including subsidized family planning services and abortion. Part III explains how this plays out in international law.
Sex Therapy in The Age of Viagra: Fantasy, Feminism, and Phallocracy
Susan Stiritz, Lecturer
Washington University, Women, Gender, and Sexuality Studies, and
Susan Frelich Appleton, Lemma Barkeloo & Phoebe Couzins Professor of Law
Washington University School of Law
This paper examines the history of sex therapy and its contemporary practice during this age of Viagra. Sex therapy as a case study offers new insights about the contested divide between public and private and the persistence of phallic fantasy and gender hierarchy, notwithstanding several decades of equality-minded law reforms. Using as our example the evolution of sex therapy, from the “sensate focus” developed by William Masters and Virginia Johnson to its contemporary eclipse by Viagra, we explore the dynamic relationship between law and culture, including unconscious forces. In particular, we consider the tension between the feminist fantasy of mutual recognition, equality, pleasure, and personal power, which fueled women’s liberation during the Masters and Johnson era, on the one hand, and the fantasy of unbridled male power, ascendant in the age of Viagra, on the other. By examining the competing cultural fantasies in different models of sex therapy, we make more visible continuing struggle over gender, intimacy, and power.
We begin with the pathbreaking work of Masters and Johnson, who investigated human sexual response, introduced the concept of sexual dysfunction, and developed successful therapeutic interventions centered on couples’ communication, touching, and relationshipbuilding. Masters and Johnson “taught America how to love” (in the words of the title of Thomas Maier’s new book about them), and, in doing so, also broadcast their twin discoveries of the power of mutual connection and women’s amazing sexual prowess. While the world-famous sex researchers exposed vaginal orgasm as a masculinist fantasy, they identified the clitoris as a rapid-fire, multi-climaxing, robust sexual organ that made the fragility and unreliability of the penis all too evident. Only a few decades later, however, the legacy of Masters and Johnson has seemingly disappeared. Washington University, where the researchers started their work, has erased them from its history, couples therapists find sex too “private” a topic to broach with troubled clients seeking relationship repair, and the pharmaceutical industry has co-opted “sexual dysfunction” as a medical problem that makes the interpersonal component of sexual expression irrelevant. In place of relational techniques like “sensate focus,” Viagra now promises a quick physical olution to sexual and intimacy difficulty. Of course, Viagra reinvigorates male prowess and phallic fantasy, almost as if to recalibrate the sexual balance after Masters and Johnson gave women the edge. Significantly, when the subject is Viagra, sex is not too private for public discussion even on television and even by public figures.
Using as a point of departure Thomas Maier’s book Masters of Sex: The Life and Times of William Masters and Virginia Johnson, the Couple Who Taught America How to Love, we recount how Masters and Johnson’s work paradoxically generated the two contrasting interventions used most often today: conjoint therapy and Viagra prescription. Of the two, however, Viagra prevails. Our paper concludes with an account of what this outcome says about our current cultural moment.
Restrictions on Assisted Reproduction in Spain, Italy and Canada: A Comparison of Legislative Processes
Richard F. Storrow
Professor of Law, City University of New York
The primary aim of this paper is to identify, compare and contrast the conception, development and eventual enactment of restrictions on assisted reproduction in three different countries. My hypothesis is that the legislative process employed by Spain in incrementally enacting several measures to regulate assisted reproduction has led to fewer court battles, public backlash, cross-border reproductive travel, and other challenges to the law’s legitimacy than have either the perfunctory legislative process used in Italy or the protracted and painful legislative process used in Canada. Building on a comparison of the actual provisions of the law in these three countries, this study will entail in-depth research on two different fronts: reactions to the law’s legitimacy as gathered from court cases challenging the law and contemporary media accounts. The comparative analysis employed here will afford insight into how different legislative processes resulting in restrictive reproductive laws correlate with perceptions of the enacted laws’ legitimacy or illegitimacy.
The Sound of Silence: Abstinence-Only Sex Education, Contraception, and the Establishment Clause
John E. Taylor
Visiting Professor, UNC School of Law
Professor, WVU College of Law
Case law uniformly declares that overtly religious forms of abstinence-only sex education violate the Establishment Clause, but what about facially secular abstinence-only programs? There are reasons to worry that these programs are “covertly religious” in constitutionally problematic ways. For example, the norm of abstinence- until- marriage is readily identified with conservative forms of religiosity. Further, it would be widely agreed that the bulk of the political support for abstinence-only education comes from the religious right. For these reasons and others, the existing law review commentary has uniformly concluded that all abstinence-only sex education violates the Establishment Clause. This paper raises doubts about that conclusion. The Establishment Clause issues regarding facially secular abstinence education are difficult, I suggest, because abstinence education cannot plausibly be said to have a religious purpose or to have a primary effect of promoting religion. The best approach to the Establishment Clause issues would focus not on religious purposes or effects, but on the question of whether abstinence education “impliedly asserts” the truth of a religious premise. On this view, facially secular programs of abstinence-education violate the Establishment Clause only if there is no rational secular basis that could have supported the programs. I argue that this is, quite properly, a difficult standard to meet. The best chance of meeting it is the argument that remaining silent about the benefits of contraception is not rationally related to any legitimate secular end, but even this argument is not as powerful as it might initially seem . There are many legitimate reasons to doubt the wisdom of abstinence-only sex education as a policy choice, and even more reasons to welcome the demise of federal funding tied exclusively to abstinence-only sex education. Nevertheless, I argue that facially secular abstinence-only sex education programs do not violate the Establishment Clause.
Myriad Reproductive Options
Dr. Andrew W. Torrance, Associate Professor of Law
University of Kansas
Genes can predispose people to medical conditions both conducive and detrimental to successful reproduction. Knowledge of the complete sequence of the human genome, including haplotype maps ("hapmaps"), single nuclear polymorphisms ("SNPs"), and copy number variation ("CNVs"), and accelerating progress towards a knowledge of gene functions and affordable personalized genomics now allows many people to predict many of the risks associated with reproduction and the risks to successful reproduction posed by susceptibilities to diseases.
For example, woman can be tested for the BRCA1 and BRCA2 mutations, whose presence in one's genome is associated with a greatly increased risk of breast and ovarian cancer. Patents owned by Myriad Genetics claim both isolated versions of BRCA1 and BRCA2 and methods of using the sequences of these mutant genes to diagnose future risk of breast and ovarian cancer. The recent decision in ACLU et al. v. Myriad Genetics invalidated Myriad Genetics' patents, and called into question the validity of all gene patents, including those useful for genetic diagnosis. This article reviews the law of gene patents, in general, and patents claiming aspects of genes useful in diagnosing genetic risks, in particular, and explores the implications that the rapidly evolving law of gene patents has now, and may have in the future, for the making of informed reproductive choices.
New Marriage, Old Succession – the Influence of New Conceptions of Marriage in the Successoral Protection of the Surviving Spouse
Paula Távora Vitor
and Rosa Martins
Univ. Coimbra – Portugal
In the past decades family has undergone profound changes. However the legislature has not always been able to answer adequately to them, reaching a suitable balance between new and old values and interests. One of these situations concerns the connection between the protection of the family as a group and the recognition of the autonomy of each family member. One may find the struggle between these goals within various areas of the spousal relation, namely within the laws that refer to the spouse’s successoral position.
Indeed the legislature has created several special rules on the behalf of the surviving spouse that restrict the autonomy of the de cuius, thus being an instrument of protection of the spousal family.
In this paper we shall analyze the current position of the surviving spouse taking into account the new conception of marriage. We intend to find out whether the legal rules that refer to such position are still in accordance with the status of the spouse in the overall system or not. In order to do that we shall try to ascertain if these rules pursue the same goals.
This reflection is particularly important since marriage has undergone profound changes, namely with the recent 2008 Portuguese Divorce Reform. Consequently marriage is pictured today as a contract whose duration is dependent on the self-fulfillment of each spouse and divorce seems to be considered as a fast and clean answer to the possible unhappiness that marriage may bring. This new conception of marriage as well as the growing number of remarriages has affected the legal position of the spouses.
The status of necessary heir (someone who will compulsory inherit, regardless of the de cuius wishes) of the surviving spouse is based on an idea of a “tendentiously perpetual marriage” that creates strong solidarity obligations among spouses. However, the new conceptions of marriage stress the importance of economical independency between spouses that put into stake those traditional ideas.
In conclusion, we shall try to foresee the new balance that shall be found in the future between the protection of the spouse and the autonomy of each individual, connecting Family Law and Succession Law.
Maturity as a Legal and Cultural Concept
Associate Professor, Georgia State University College of Law
The law draws the line on definitions of adulthood in different places for different purposes. Yet the basis for those decisions is not always clear or grounded in either science or culture. Currently, our punishment framework is a discouraging one-way ratchet. Even when children do not break the law, we do not allow them to participate fully in society. No matter how well a child behaves, how mature and thoughtful his or her decision-making, we do not allow them to vote, enter into contracts, serve on juries, drink alcohol, drive a car below a certain age or do any number of other things adults can do. We do that because we do not believe they have reached maturity. Yet when children make bad decisions and commit bad acts, we insist they were mature enough that they should suffer adult consequences. This project surveys the places in which the law defines adulthood and suggests that both science and cultural conceptions of adulthood could provide important touchstones for legal conceptions of maturity.
Gatekeepers for Divorce: Internal Conflicts Involving the Professional Responsibility of Attorneys to Counsel, Screen, Channel, and Refer
Professor Lynn D. Wardle, Bruce C. Hafen Professor of Law
J. Reuben Clark Law School, Brigham Young University
Lawyers’ internal worlds sometimes collide with regard to conflicting professional and other obligations. That is especially a sensitive issue concerning family lawyers giving counsel to clients in divorce and related cases reflecting non-legal considerations. May they, or should they, or must they, or are they forbidden to give non-legal counsel to clients in their legal representation in family proceedings?
This paper will have two parts. One part deals with the family attorney’s ethical duty to screen, counsel, channel and refer when clients come seeking a divorce. The second part deals with the family lawyer’s ethical duty to act with competence, and discusses the qualities and training needed to give counsel competently to clients considering divorce.
The first part will focus on the professional responsibility of the attorney to counsel with his client before filing her petition for divorce (genders interchangeable). Persons with marital problems often come to lawyers for information and advice; they want to know what their options are, what are the likely consequences will be for them and their children if they file for divorce. Even if the client comes to a lawyer assuming that the only remedy for her unhappiness is divorce, lawyers may have a duty to screen (ascertain if the client has tried other remedies, sought other solutions), counsel (help them to consider possible better solutions), channel (to try to find the best solution for the client’s situation), and refer (provide the client with contact information for other professionals, programs and providers that might provide better, or alternative remedies for the client’s problem that divorce. The relevant rules of professional conduct regarding a duty/option to screen, counsel, channel, and refer will be reviewed.
Second, lawyers have a duty to act with competence and the qualification, training, ability and skill of lawyers to engage in effective counseling, particularly in the context of family crisis. Our law schools provide basic foundational training in effective counseling to only a tiny fraction of graduating law students. Most lawyers include most who practice family law and handle divorces, must acquire the skills by on-the-job training. Data on how well lawyers perform this task is sparse, but there is cause for both concern and hope.
Uprooting Children in the Name of Equity
Merle H. Weiner
Philip H. Knight Professor of Law
University of Oregon
Since 2000, there has been a surge in the number of court opinions addressing the question whether equitable estoppel can be successfully invoked in child abduction cases arising under the Hague Convention on the Civil Aspects of International Child Abduction.. Attention to this issue is not surprising. Although the doctrine was initially rejected in a few cases between 1997 and 1998, the potential for the concept to defeat one of the defenses to an action initiated under the Hague Abduction Convention has led petitioning parties to raise the argument repeatedly. The argument eventually succeeded in 2002, and since then a growing number of courts have accepted and applied the doctrine of equitable estoppel in international child abduction cases.
This paper recommends that courts reign in, if not abandon, the doctrine of equitable estoppel as it is used in Hague child abduction cases. The doctrine is inconsistent with the Convention’s legislative history and raises administerability concerns. While the doctrine is often justified as essential to deterring the concealment of abducted children, real questions exist about its necessity and efficacy. The paper argues that courts would better deter concealment by addressing it in their assessment of whether children are “settled.” This approach reflects the intent of the Convention’s framers, maximizes the effectiveness of judicial review, and leads to the most optimal outcomes for abducted children.
 Nancy Polikoff
 Check out Bruce C. Hafen, Individualism and Autonomy in Family Law: The Waning of Belonging, 1991 BYU L. Rev. 1, 5.
 Emily J. Sack, The Burial of Family Law, 61 S.M.U. L. Rev. 459 (2008)(concluding that family law must be refocused to value the rights of individuals in families, including the promotion of women's autonomy, and remove moral values from the definition of family).[my own note: she seems to think that family law can only be saved by privileging autonomy over all other interests – basically, family law has to be constitutional law of the family.]
 Jane M. Spinak, Reforming Family Court: Getting it Right Between Rhetoric and Reality, 31 J. L. & Pol’y 11 (2010), forthcoming? I have SSRN copy(comparing individuals rights perspective to therapeutic or “problem-solving” approach to family law).
 Liz Trinder, ‘So Presumably Things Have Moved on Since Then?’ The Management of Risk Allegations in Child Contact Dispute Resolution, 24 Int’l J. L. Pol’y & Fam. 29 (2010).
 Prop 2005/06:99, s. 38ff.