• Selected
• Entire List

Abstract:
The way in which families resolve disputes has undergone dramatic change over the last decade. Scholars have focused much attention on a number of substantive law changes that have contributed to this transformation. These include the changing definitions of marriage, parenthood, and families. But less attention has been paid to the enormous changes that have taken place in the processes surrounding family dispute resolution. These changes have been even more comprehensive and have “fundamentally altered the way in which disputing families interact with the legal system.” Both the methods and goals of legal intervention for families in conflict have changed, altering the roles of judges and lawyers and moving much of dispute resolution out of the courtroom. These developments have profound implications for the family justice system. They also reflect a broader jurisprudential shift away from the traditional values of the adversary system in both the civil and, to a lesser extent, the criminal justice system. The impact of this shift in this context has not been fully explored, particularly the direct and harmful impact of such changes on low income litigants. Part One of this Article describes the changes that have contributed to this paradigm shift. Part Two explores the fundamental ways in which the shift alters the traditional adversary system and, the risks presented by these shifts. Finally, the Article offers some preliminary proposals to assist in weighing the relative benefits of the therapeutic and adversarial approaches in designing a justice system that serves all families.

family law, alternative dispute resolution, adversary system, therapeutic, ADR, jurisprudence

Abstract:
Over the last two decades, mediation of family law cases has become well-established in American courts. As mediation has grown, experts have recognized that power imbalances between couples may interfere with mediation. This imbalance is particularly evident where one partner has been abusive to the other. Widespread consensus has developed that decisions about whether mediation is appropriate are particularly crucial and delicate when domestic violence is present. Despite this consensus, there is evidence that courts are still ordering couples who have experienced domestic violence to mediate their family law disputes with little or not particularized examination of the couples' circumstances.

This Article begins by exploring and explaining the risks of mediating cases where a power imbalance exists between the disputing couple, particularly where domestic violence is present. Rather than engaging in the often polarizing debate about whether domestic violence cases should be mediated, the Article seeks to re-frame the debate by improving understanding about the meaning of both mediation and domestic violence in this context. It describes the consensus that has been reached among courts, legislatures and academics that domestic violence cases require special treatment in the mediation context in order to protect victims of such violence. It also analyzes the court rules and statutes as well as recent research suggesting significant failures in effectively implementing such statutes. Finally, the Article offers some proposals to improve the ability of both attorneys and courts to screen for domestic violence. The adoption of these proposals should narrow the gap between theory and practice in this area and fulfill the promise of better protecting and empowering domestic violence victims.

family law, domestic violence, mediation

Abstract:
This Article analyzes the issue of paternity disestablishment, an issue courts and legislatures have been struggling with over the last several years. For a variety of reasons explored in this Article, an increasing number of fathers have filed requests to set aside paternity orders seeking to be relieved of the legal obligations of fatherhood. As a result families have been destabilized and children are becoming fatherless. The implications for the future of the family are profound. Although some scholars have examined this phenomenon, none have addressed the link between paternity disestablishment and welfare reform.

This Article explores the law's evolving definition of fatherhood and concludes that the law's response to the paternity disestablishment crisis threatens to impose a narrow definition of fatherhood based on biology. This new definition of fatherhood has not developed to serve any of the traditional goals of family law, protecting children and preserving family stability. Rather, this trend appears to be one of the unintended consequences of two decades of federal and state policy designed to reform the nation's welfare system. The broad goals of these policies may be well founded. But modern child support enforcement policy, so central to welfare reform and aimed most aggressively against low income fathers, is pushing fathers to seek disestablishment of paternity. In response, courts and legislatures are reinstating a construct of paternal functions defined in economic terms and grounded in biology. This new definition of fatherhood ignores other bases for fatherhood based on marriage, care taking or both. As a result, the state's interests in collecting child support, protecting children and preserving families are undermined by the very laws that should protect those interests.

family law, paternity, disestablishment, child support, parenthood, fatherhood

Abstract:
New laws and policies aimed at protecting victims of domestic violence have been adopted across the country over the last twenty years.The legal approaches taken to protect battered women and control family violence have resulted in significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and/or visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent's fitness by considering past acts of violence to other family members results in decisions that are more likely to protect children than decisions that discount or disregard spousal abuse. Civil protection orders can provide abused women and their children with a quick and easily accessible remedy that provides housing, financial relief, and an order for custody. While there is some controversy about the effectiveness of such orders in cases involving severe violence, most advocates and scholars agree that these statutes can make some improvement in the lives of women and children.

The effectiveness of these new laws in reducing the incidence of domestic violence, however, has been limited for a number of reasons. One of the major barriers to using these laws to protect women is that proving domestic violence in court is difficult. First, the victim is often the only witness to the abuse. For a variety of reasons, victims are reluctant to testify against their abusers and pursue civil and criminal remedies. Even when they do testify, women who experience domestic violence are often not believed. Despite changes in legal and popular conceptions of domestic violence, judges and juries continue to ignore or discount victims' testimony about the abuse.

It is, therefore, essential for practitioners to be able to introduce as much evidence of the abuse as they can gather. Established principles of evidence law, however, present particular challenges in domestic violence litigation. While there is expansive literature on evidentiary challenges in criminal prosecutions for domestic violence, there is very little written about the way courts have looked at particular evidentiary issues in civil cases where domestic violence is at issue. This article is intended to assist practitioners in anticipating and responding to some of the evidentiary challenges in civil cases in which relief is sought for the victims of domestic violence.

First, expert testimony is often necessary to dispel common myths about battered women and to educate judges and juries about the dynamics of domestic violence. Recent case law, however, has limited the admissibility of 'non-scientific' expert testimony and may make it difficult for practitioners to use experts in their cases. In addition, particular evidentiary issues arise when victims are pursuing both criminal and civil remedies against the batterer. This article will explore the ways in which evidence issues may benefit and inhibit civil actions arising from the domestic violence. Finally, we will discuss the difficulties in using prior bad acts evidence. Because batterers tend to engage in repeated acts of abuse, evidence of prior acts may be particularly relevant in proving the extent of harm and predicting the likelihood of future abuse. Traditional principles of evidence law, however, often prohibit the admission of other crimes, wrongs and acts.

evidence, domestic violence, battered women, family violence, family law, civil protection, restraining orders, child custody, child visitation, criminal remedies, evidentiary challenges, expert witnesses

Abstract:
Establishing legal parentage, once a relatively straightforward matter of marriage and biology, has become increasingly complex. The determination of legal status as mother may now involve several women making claims based on genetic contribution, contract, status as gestational carrier or other bases. The debate about the best choice for children when adults are competing for parental status is ongoing, lively and filled with many voices. Less attention has been paid to a much larger, second category of cases - cases in which the law is faced with resolving the legal status of the one adult who may be available to serve as the legal mother or father. For mothers, these cases most often arise in the context of determining their legal status as biological mothers when the state has identified them as being at risk for abusing or neglecting their infant children. These cases almost always involve mothers or fathers who are poor, often members of minorities and usually without legal representation in parentage establishment and/or disestablishment proceedings. In these orphan cases, the governing rules or legal standards chosen by the legislature or courts will not be used to choose among potential parents; rather, the issue is whether anyone will serve as a child's parent.

This paper examines the laws that establish and disestablish the maternal rights of poor women. The paper examines patterns of state intervention in child abuse and neglect law that determines the legal recognition of motherhood for these women. It concludes that current child welfare rules and policies promote the loss of birth mothers in poor children's lives, often with no long-term maternal substitute for affected children. The paper also notes that focusing on parentage laws alone cannot preserve fit mothers in children's lives. Notwithstanding the limitations of this exercise, the paper highlights the policies that have removed mothers from their children and urges a shift in policy direction. Finally, the paper concludes with some principles to guide the formulation of parentage laws that have as their primary goal protecting poor children by keeping mothers in their lives.

family law, parentage, biological mother

Abstract:
The role of the narrative or story in legal discourse has been explored and developed in legal scholarship over the last several years. The goals of the various calls for more storytelling in the legal context vary. They generally relate, however, to a desire to move away from exclusive reliance on abstract legal argumentation to persuade. The goals of ‘storytellers‘ are also linked to furthering an understanding of the dynamics of oppression based on race or gender, or both.

The judicial and legislative processes have always included a narrative component. Clinical legal scholarship has also explored the critical role of narrative in client representation, particularly in interviewing and counseling. Recently, however, scholars seeking methods to make the law more responsive to those historically unrepresented in lawmaking have argued for a more explicit use of the narrative to highlight the human concerns in a given legal issue. Others have built upon the work of these scholars to explore the specific ways in which legal storytelling can accomplish law reform goals. Most recently, a related body of scholarship has begun to develop which seeks to critique the value of narratives in both clarifying legal issues and persuading legal decision-makers to reform the law. Can stories persuade legal decision-makers to act in a particular way by ‘creat(ing) a bridge across gaps in experience and thereby elicit empathic understanding(?)‘

This Article seeks to respond to that question. It begins with a brief examination of the impact of law reform campaigns of the last twenty-five years aimed at eliminating race and gender discrimination. There is general consensus that many of the law reform efforts on behalf of women and people of color have failed to produce the full measure of positive change expected from the new laws. This Article suggests that the gap between goals and results may be explained in part by the deficiencies in the legal discourse surrounding the process of achieving legal change.

This Article then examines the legal story's potential as a key element in social change strategy by exploring the specific role it has played in domestic violence law reform. Domestic violence is a particularly useful lens through which we may examine much broader questions about whether and how the law can affect social change. Issues surrounding domestic violence are critically linked to the oppression of women. Freedom and equality for women can never be achieved without freedom from violence. Domestic violence is also an issue where the legal system's failure to respond effectively seems directly linked to the inability of the predominately male decision- makers to understand the victim's need for protection. It is, therefore, an issue where legal storytelling can help create the kind of empathic understanding needed to produce meaningful reform.

A case study analyzes a series of successful domestic violence law reform campaigns in one jurisdiction over the last decade. This ‘history of storytelling‘ gives an empirical backdrop to the theories advanced in recent scholarship about the power of the narrative in eliciting empathic understanding on the part of legal decision-makers. It provides a vivid example of a successful practical application of the theoretical work of feminist and critical race scholars. Advocates' decision to place greater and greater reliance on narratives from victims to persuade decision-makers played a significant role in achieving much-needed law reform. The lessons of this law reform campaign have value and application as strategies which can work in other law reform efforts. This analysis of these law reform campaigns also clarifies the ways in which narratives persuade and function in arguments for feminist or other legal change.

narrative, legal discourse, legal scholarship, storytelling, social change, legal reform, race discrimination, gender discrimination, women, people of color, domestic violence, case studies, critical race scholarship

Abstract:
This Article begins by exploring and documenting the connections between domestic violence, substance abuse, and child abuse. Part II of the Article examines the legal system's response to child protection cases in which maternal abuse and, in some cases, substance abuse are present. This section begins by describing the shifting theories underlying child welfare in this country. It then contrasts these theories with child welfare practice by reporting the results of a study of eighty-five Child in Need of Assistance (CINA) cases in four jurisdictions in Maryland. Although the study examines a limited sample, the cases examined confirm the strong connection between domestic violence, substance abuse, and child protection intervention. In addition, the study reveals the substantial obstacles to developing appropriate child welfare policies in a system that is 1) severely underfunded; 2) not designed to appropriately screen for domestic violence and substance abuse problems; and 3) able to provide only the most rudimentary and boilerplate services and referrals to deal with these problems. Any effort to refocus child welfare politics on family preservation must begin by addressing these issues. Reform efforts that seek to repeal or change ASFA may shift attention from the real barrier to effective assistance to families at risk. The Article concludes by calling for a shift in public policy priorities and summarizing the most promising proposals for improving a child protection system which must respond to these multiple problems.

domestic violence, substance abuse, child abuse, child welfare, child protection, CINA, Child in Need of Assistance, ASFA, Adoption and Safe Families Act

Abstract:
Part I of this Article explores the traditional idealized view of motherhood that child placement statutes and court decisions reflect. These laws include statutes and case law in custody disputes between parents and in child protection proceedings under civil and criminal laws where the dispute is between the parent and the state. Part II contrasts the legal construct of motherhood that child placement laws embody with the legal image of mothers in child support and welfare law.

Part III examines the impact of these conflicting images of motherhood on a particular group of mothers -- battered women. Battered women illuminate the thesis of this Article in a variety of ways. Being battered often pushes middle class women into poverty. The legal issues for these mothers may often move from conflicts with their partners over custody and child support disputes to struggles with the state in welfare and child protection proceedings. Battered mothers often fall short of the law's ideal image of motherhood, becoming subject to civil and criminal sanctions. At the same time, being battered makes them particularly unable to live up to the law's presumptions about economic equality. This Part considers whether the sanctions imposed on battered mothers are appropriate methods of protecting children and making mothers accountable for actions that truly endanger children. Further, it explores how laws governing economic benefits affect the choices of battered women, and whether the legal system adequately accounts for these constraints when evaluating maternal conduct.

This Article then contextualizes theories about the law's view of motherhood by examining how the law operates in practice where battered women come before the courts to resolve child placement or economic disputes. By closely examining three cases -- a contested custody and support case between two parents, a child protection proceeding where the state sought to remove a child from a mother's care, and the criminal prosecution of a mother accused of failing to protect her child from her partner's abuse -- the Article reaches some conclusions about the harm that flows to women and children from the law's conflicting images of motherhood.

Finally, the Article makes some preliminary conclusions about reforms that may assist the legal system in responding more appropriately to mothers in general and, in particular, mothers who are victims of domestic violence. These reforms call for changes in the law's response to both child placement decisions and policies affecting families' financial support. Courts and child welfare bureaucracies evaluating child abuse and neglect allegations must move away from assumptions that mothers and their children are adversaries. In most cases, particularly where the mother is also a victim of abuse, protecting children is often best achieved by protecting their caretaker parent -- their mother. Policies designed to ensure financial support for children need to re-emphasize fathers' financial responsibility to their children and recognize mothers' limitations in shifting from childrens' primary caretaker to their financial provider.

motherhood, child custody, court decisions, statutes, parents, civil law, criminal law, battered women, battered mothers, economic equality, poverty, child support, child protection, domestic violence

Abstract:
Part One of this Article explores the meaning of morality by briefly reviewing a variety of attempts to explore the meaning of moral conduct. This Section draws on a variety of contemporary moral philosophers who have built on the classical tradition to develop a broader definition of moral behavior. This discussion provides a context for the current debate about the meaning of morality in family law and moral discourse in the no-fault era. Part One also reviews the historical debate about how law should strike a balance between promoting communitarian values and respecting autonomy and individual rights. The Article argues that the conflict underlying this debate may be overstated. All laws have moral implications, and decisions about law, made by citizens, legislators and policymakers, necessarily involve choices that privilege some values over others. Regulating family members is a particularly value-laden task. A tension will always exist between protecting individual freedom and privacy of family members and state intervention to further the common good. However, this tension does not require a retreat from the concept of rights within the family; rather, rights can be conceived in a way that furthers the moral vision of family law by using rights as a tool to ensure the protection of vulnerable members of the family. Part One concludes by noting that the hierarchy of values embodied in the moral vision of family law has changed over time. Sexual morality has become less important over time while protecting children has become central to the moral framework of family law. Part Two of the Article examines the traditional, fault-based moral discourse in the law governing grounds for divorce, alimony and child custody that prevailed in this country until the 1970's. It concludes that this approach has several significant drawbacks. First, the fault-era's emphasis on sexual practices and traditional gendered family roles reinforced patriarchy and tended to hurt custodial parents-primarily women-and children. Additionally, the fault-era's reliance on broad discretionary standards resulted in inadequate financial awards and dual standards for men and women. Further, because moral discourse in family law has been primarily focused on issues of sexual conduct in marriage, the fault-era moral vision excluded families created outside of marriage. Litigating issues of fault also exacted significant financial and emotional costs on families. Finally, the emphasis on regulating sexual conduct in the fault-era did little to promote the evolving moral goal of family law-protecting children. Part Three of the Article explores the ways in which some laws that developed in the no-fault era express morality in family law. Examining current laws governing divorce, marital property, child support and custody, the Article identifies ways in which both the language surrounding the debates about such laws and the laws themselves express values of equality, commitment and responsibility for family members, particularly dependent members. The Article notes that for the first time, the language of morality has expanded into two areas that were largely unregulated in the “fault” era-access to marriage and family violence. The Article concludes that these developments over the last thirty years represent a healthy trend toward an overall family policy that strengthens families and protects each family's weakest members. Nevertheless, more needs to be done to achieve a family policy that protects children. Finally, the Article identifies additional measures, both in traditional domestic law and in the broader policy arena, that must be accomplished to truly strengthen families, and most importantly, to protect children.

morality, moral conduct, moral behavior, family law, privacy, state intervention, sexual morality, divorce, alimony, child custody, sexual practices, sexual conduct, marital property

Abstract:
New laws and policies aimed at protecting victims of domestic violence have been adopted across the country throughout the last twenty years. The legal approaches taken to protect battered women and control family violence have brought about significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent’s fitness by considering past acts of violence to other family members results in decisions that are more likely to protect children than decisions that discount or disregard spousal abuse. Civil protection orders can provide abused women and their children with a quick and easily accessible remedy that provides housing, financial relief, and an order of child custody. While there is some controversy about the effectiveness of such orders in cases involving severe violence, most advocates and scholars agree that these statutes contribute to improving the lives of women and children.

The effectiveness of these new laws in reducing the incidence of domestic violence, however, has been limited for a number of reasons. One of the major barriers to using these laws is the difficulty litigants often encounter when trying to prove domestic violence. First, the alleged victim is often the only witness to the abuse. For a variety of reasons, victims are reluctant to testify against their abusers and pursue civil and criminal remedies. Even when they do testify, women who experience domestic violence sometimes exhibit characteristics that make them less believable. Despite changes in legal and popular conceptions of domestic violence, judges and juries fail to understand some of the effects of domestic violence and their impact on perceived credibility.

domestic violence, complex evidence, battered women, family violence, family law

Abstract:
Lack of access to the courts to resolve domestic disputes is a national problem which deserves the attention of both family law scholars and practitioners. Family law scholars have exhaustively critiqued both the substantive and procedural law governing dissolution proceedings. This analysis of rules and standards, however, is rarely conducted with the explicit goal of maximizing access to the courts for people of low and moderate income. This paper begins by assessing the dimensions of the problem through an explanation of the existing domestic legal needs studies. This paper also presents a case study of a typical multi-issue domestic case to provide a context within which to explore procedural and other innovations aimed at both reducing formal requirements on simple domestic cases and replacing discretionary standards with structured, predictable rules. Procedural reforms identified in the paper include providing alternatives to full adversarial hearings in some domestic proceedings; relaxing barriers to non-attorney advice and representation; identifying the appropriate categories of cases for such procedural innovations; and designing appropriate mechanisms for informed pro se representation, including education programs and wider use of standardized forms.

family law, pro se, domestic relations, access to courts

Abstract:
The passage of the federal Violence Against Women Act of 2000 (“VAWA II”) marked an important milestone in the evolution of the domestic violence movement. VAWA II created, among other things, a complex system for state and federal funding in all fifty states to provide civil legal assistance to battered women. Its passage completed a process that began in the early 1980s when domestic violence advocates shifted their focus from grass roots efforts to help battered women and their children leave abusive partners to building alliances with government and advocating for legal remedies to assist battered women. This paper looks at the impact of this dramatic shift on both battered women and domestic violence programs. It draws on empirical data examining women's experiences using these new legal remedies to raise some preliminary questions about the broader issue of how well the strategy of “engaging with the state” serves the interests of battered women.

Violence Against Women Act of 2000, domestic violence, federal funding, civil legal assistance, battered women, empirical data

Abstract:
In this article we sketch an overview of the increasing federal involvement in the child-support area. Because the federal role has grown so dramatically over the past 25 years, family law practitioners need to understand the different federal programs and requirements that affect state management of child-support programs. While for many low-income parents state agencies handle child-support establishment and collection, the federalization of child support has practical implications when it comes to both establishing and enforcing child support. For example, as the time limits of the Personal Responsibility and Work Opportunity Reconciliation Act begin to have their effects, child support may become a supplement more and more needed by custodial parents.

We begin this article with a brief history of the changing nature of federal involvement in child support-focusing on the origins of the federally mandated state child-support departments (“IV-D” agencies)-and then examine the development of mandatory child-support guidelines. We conclude with a listing of the implications of the federalization of child support for the family law practitioner.

child support, federal government, state agencies, Personal Responsibility and Work Opportunity Reconciliation Act, custodial parents, "IV-D" agencies, mandatory child support guidelines, family law, child support collection

Abstract:
Reliance on judicial discretion to resolve disputes is one of the most fundamental characteristics of the American legal system. Nowhere have judges exercised more unfettered discretion than in family law. Judicial discretion in this area, however, is not without its critics. In this Article Professor Jane Murphy recommends limiting the use of judicial discretion in family law matters. Professor Murphy argues that the lack of predictability which flows from discretionary decisions undermines our confidence in the equity of decisions and encourages protracted litigation.

Professor Murphy reviews the developing consensus that fixed rules are necessary to guide judges' discretion in divorce dispute resolution. Examining the application of fixed rules to one particular area of family law-child support obligations-Professor Murphy demonstrates that the use of fixed rules has successfully provided judges and parties with a means of developing more equitable, predictable child support decisions. Professor Murphy concludes that fixed rules similarly will prove useful in other areas of family law that presently are governed by judicial discretion.

family law, judicial discretion, lack of predictability, fixed rules, divorce dispute resolution, child support obligations