Family Court Review最新文献

This research paper explores active efforts as a transformative measure in the child welfare system. It argues how the currently used reasonable effort standard has not served the children or families in its care adequately. When a child comes to the attention of child protective services, measures to maintain family unity could see significant improvements in the child welfare system. Additionally, the current standard has shown to be particularly detrimental to the integrity of Black families and children. Through a critical examination of these failures as well the benefits of using an active efforts approach, this paper advocates for the adoption of this standard as a necessary step in the shift toward fostering stronger, more resilient family structures.

This article explores our national reactive child protection model which has focused on removing poor people from poor families and has resulted in conflating poverty with neglect. Significant issues of class and race are implicated given dramatic systemic racial and ethnic disparities and questions must be asked whether current practices have done more harm than good. In reviewing this landscape this article is descriptive and prescriptive and calls for adopting proactive public health-oriented policies which support children and families in their homes and a culture of due process and fairness in juvenile and family court hearings involving children and their families. Dependency or abuse and neglect cases involve state intervention. These are not disputes between private parties where the sole focus is the best interest of the child regarding which guardian to be placed with. Cheating the Evidence warns against diluting the constitutional requirement of proving the lack of parental unfitness by clear and convincing evidence by making comparative judgments about placement which are based on often subjective assessments on best interests of the child which are resource based. Given that high percentage of cases involving allegations of neglect versus inflicted abuse these concerns are of paramount importance. There is a need for more rigor in fact-finding and adherence to constitutionally required burdens of proof. Due process and fairness are best-served by supporting client-directed advocacy and greater transparency, including presumptively opening up the doors to closed juvenile and family court hearings as recommended by the National Council of Juvenile and Family Court Judges in 2005. Opening the doors is not a binary or either or proposition- we can preclude dissemination of records of youth, and protect confidentiality as a growing number of states have done. Transparency includes more than raising the level of practice of lawyers and judges- it includes encouraging systemic accountability from child serving agencies and educating the public about the complexities which are related to the birth or cradle to prison pipeline.

The web of law, regulation and policy which forms the modern day “child welfare” system is organized around one central unifying principle: the notion that these laws, regulations and policies are necessary to protect and save children. Yet an ever-growing and overwhelming chorus of “lived experts” – individuals who have been impacted as a parent and/or child by what is more aptly called the family policing system – as well as by advocates and scholars, are drawing attention to the degree of harm the system causes to the families it purports to help. Even though the harms the family policing system causes are well known, the family policing system continues to justify these harms as warranted in the name of protecting children. More concerning, even well-meaning advocates and scholars who acknowledge the harms, implicitly and explicitly continue to perpetuate the big lie that the family policing system's intention is benevolent and caring. The impetus for any law is a story; law identifies a problem and seeks to resolve it. But what happens when the story is false? The stories we tell about the need for family policing perpetuate harm and replicate systemic racism. Most importantly, the impact of these false narratives can be felt through generations of families leaving devastated communities. The stories, perspectives and opinions of those most impacted by the system historically have been, and continue to be, intentionally left out of the making of law and policy, and even in the teaching of the law. Unless the actual perspectives of families are present to challenge the stories that are woven into the law, these narratives will continue to create significant obstacles to critical thought about the law, prevent meaningful legal change, and ultimately cause continued harm to families and communities. In this essay, in the tradition of participatory law scholarship (Note: Rachel Lopez, Participatory Law Scholarship, 123 Colum. L. Rev. 1795 (2023) [“Participatory Law Scholarship or (PLS)… is an emerging genre of legal scholarship written in collaboration with authors… who have no formal training in the law but rather expertise in its function and dysfunction through lived experience.”]), the authors, a parent and professional advocate, and a clinical law professor and attorney, seek to unpack the myths which are built into the laws of family policing. In reckoning with these myths, the paper seeks to propose a critical framework to both acknowledge the intentional trauma and harm caused by the family policing system, and to disrupt and dismantle the fictions that are the underpinnings of the laws and regulations that continue to perpetuate these harms. Ultimately, this paper argues that by centering the lived expertise of families' voices and perspectives in legal advocacy, we can form a cogent vision for true safety for families and communities.

This article reviews the changing Black family and households. The core theme is to understand the uniqueness of those single and living alone in the Black middle class—the “Love Jones Cohort”—and how their intersecting identities of race, class, gender, and singleness inform their lifestyle, shape how they manage life decisions, and their relationship to policy as well as family law and family court. This essay moves beyond the popularized and omnipresent inquiry: “Why are Black women not getting married?” or “Why are there so many single professional Black women?” This line of questioning throws the spotlight squarely on Black women's individual dating practices, while often ignoring structural factors that undergird those decision-making processes. It implies that because of the individual actions of the Love Jones Cohort, specifically Black women, they are somehow at a deficiency if they are not married and child-free, rendering them invisible as a family. This article discusses the legal implications of the presence of the Love Jones Cohort.

This article illuminates the legal regulation of the economic rights of non-marital partners at separation or death. Current approaches have typically fallen into two categories: one advocating for the separation of legal regimes based on formal status, treating cohabitant partners as strangers, and the other taking a functional approach, treating cohabitation and marriage as substantively identical. However, both approaches fail to offer a coherent alternative for regulating cohabitation. This article proposes a novel third option – the institutional, autonomy-based, pluralist model. The pluralist model acknowledges the legal commitment between cohabitants while carefully distinguishing the legal regulation of cohabitation from that of marriage. Unlike prevailing models that offer a “package deal,” the pluralist model selectively applies only suitable components of marriage law to non-marital relationships, considering thoughtful criteria for their applicability and ensuring a nuanced approach. The pluralist model offers a middle ground between treating cohabitants as strangers and treating them as married for purposes of regulating marital property, spousal support, and inheritance. Ultimately, it provides a framework that considers the complexities of non-married relationships while maintaining a desirable level of legal clarity.

Recently, there has been more attention paid to trauma related to adoption. This article addresses the unacknowledged trauma which may exist with children adopted in infancy, before they had any retrievable recollection of their first families. Because this trauma has not been recognized, there has been inadequate attention paid to the adoptee's grief at the loss of the first family. This article suggests that all sealed records laws which prevent adoptees from having access to records otherwise available to non-adoptees be repealed, that all adoptions be presumed to be open, with the possibility for ongoing contact with first family members, and that more trauma-informed and adoption-competent therapeutic resources be made available to adoptees.

What is the role of preventive legal advocacy in promoting justice for families and redefining child welfare to focus on family and community-based systems which prioritize community-based support and to forego government oversight, regulation and punishment? Given the timeline for systemic reforms and the necessity of providing access to justice for families presently struggling to protect their family autonomy, preventive legal advocacy is a critical piece of reform efforts and scholarly attention. This article advocates for the expansion of existing preventive legal advocacy models and legislation codifying early access to counsel with the goal of disrupting the traditional pathways into the child welfare and family regulation system, enforcing the rights of parents and children to their family autonomy and meaningfully supporting families to thrive.

Youth and families impacted by legal systems now resoundingly attest to the systems' lasting harm, echoed by interdisciplinary research. Lawyering thus requires a vastly renewed outlook, boldness, and honest inquiry about the limits of what the law and public systems can (and should) attempt as purported problem-solving amidst broader socioeconomic forces and injustice. This report synthesizes recommendations from a groundswell of diverse, dedicated voices following an October 2023 convening hosted by the American Bar Association Commission on Youth at Risk, the ABA Center on Children and the Law, and Hofstra University's Maurice A. Deane School of Law. Entitled “Renewal and Revolution: Recommitting the Legal Profession to Serving Children and Youth, Their Families, and Communities,” the convening engaged various professionals—many with firsthand experience in foster and justice systems— and other advocates. Since the 2006 ABA Youth At Risk Initiative Planning Conference, the ABA Commission on Youth At Risk has elevated the representation and voice of youth through ethical practice standards, expanded access, and national initiatives. This report recounts findings of the 2023 convening's four working groups which met for two-days of (often tense) discussions to chart a path for the legal profession, law, and policy for the next decade and beyond. Priorities include: transcending conceptions of youth “at risk” towards recognition of harms done, a strengths-based lens, and lived experience leadership and expertise; cultivating next generation attorneys; prioritizing early family defense and diversion; divesting from systems and re-investing directly with youth and families; and further eliminating racial disparities.

Part 15 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 governs the breakdown of cohabiting relationships in the Republic of Ireland. However, although the introduction of the statutory redress scheme under the 2010 Act was considered an important response to the growing need for the protection of vulnerable cohabitants, the extent to which it has provided such protection has remained somewhat obscure. This contribution reflects on what we know about the operation of the scheme as currently framed and questions what scope might exist for it to be gently reformed going forward.

Divorces are an emotional battlefield requiring both parties to go to war over their fair share. With the addition of New York's ‘no-fault’ divorce, the process was supposed to alleviate spousal disputes and help those who did not want to relive the trauma that got them there. Nevertheless, one group left behind through that reform is domestic violence victims. This Note explores the ramifications of courts not being required to consider a finding of domestic abuse during equitable distribution and proposes to amend the current pathways to clear the way for financial relief for victims looking to divorce their abusers.