Family Court Review最新文献

This article discusses some key provisions of the new ALI Restatement of Children and the Law with a specific focus on how the Restatement reflects doctrinal developments in children's law over the last two decades as well as significant research that has informed those doctrinal developments, and points out how advocates can use the Restatement to further advance children's rights and interests in the justice system.

This essay reviews the most important lessons in this chapter for judges, legal practitioners, and child advocates with respect to the application of developmental science to policy and practice in the juvenile and criminal justice systems. First, some widely accepted beliefs about the nature of development ultimately have been disproven by developmental science. There was a time not long ago, when it was commonly believed that no significant brain development takes place beyond age 18. Second, developmental science can give more specific answers to questions about where to draw certain age boundaries than is possible solely on the basis of common sense. On average, studies have shown that by the time they are 16, individuals possess adult cognitive capacity to engage in thoughtful decision-making when they aren't under time pressure or emotionally aroused, but the capacity to be thoughtful when they are hurried, in situations that are affectively charged, or with other teenagers doesn't mature until 21 or later. Finally, science can help legal decision-makers determine how much an adolescent's behavior was voluntary and how much it was not under their control.

Since 1974, when Congress enacted the beginnings of the modern family regulation system, millions of families have been destroyed and countless more have lived in fear of its reach. Yet the field has been relatively overlooked by American law schools and has been treated as a subject that deserves very little, if any, attention. But now the prestigious American Law Institute has pronounced the field “important,” by making it a significant focus of its recently promulgated Restatement of Children and the Law. Only good can come from it. Hopefully, more law schools will study and teach the field and more law graduates will become inspired to become family defenders in the same way that law schools led the way for the thousands of law graduates who became public defenders over the past generation.

In 2011 the American Bar Association's (ABA) House of Delegates (HOD) voted against endorsing the Uniform Collaborative Law Act (UCLA) drafted by the National Conference of Commissioners on Uniform State Law (NCCUSL). In 2024 the ABA HOD reversed position and endorsed the UCLA. This article explores why and how the change came about and its implications for the future of collaborative law. Collaborative Law is a dispute resolution process in which lawyers represent clients for a limited purpose—to negotiate settlement of a dispute. Parties and their counsel sign a participation agreement which requires counsel to disqualify him or herself from representation in litigation if the collaborative law process terminates short of settlement. The purpose of the disqualification provision is to focus the parties and counsel on formulating solutions to problems rather than threatening adversarial proceedings to resolve negotiation impasse. Collaborative law was first developed and is most used in divorce and custody disputes where problem solving negotiations are particularly important to the welfare of parents and children. In 2011, when NCCUSL first presented the UCLA to the ABA's HOD for endorsement, opponents (mostly litigators) characterized collaborative law as “unethical” because it created an alleged conflict of interest between lawyer and client. Opponents also characterized the UCLA as a threat to the independence of the legal profession as it was regulation by legislation rather than court rule. In 2024, the ABA HOD reversed its 2011 decision and endorsed the UCLA. By then over a majority of the states adapted the UCLA despite the ABA's 2011 disapproval. State enactments reflected greater public and lawyer acceptance of ADR in divorce and custody disputes. Another essential factor in the ABA ‘s change of heart was dedicated advocacy within the organization by committed members of the Section on Dispute Resolution. This article makes recommendations for the future integration of collaborative law into the mainstream of dispute resolution including more state enactments for the UCLA, expansion of collaborative law to fields in addition to family law and integration into legal education.

Psychodiagnostic labels abound in family court, whether they are used colloquially by the parties to attack each other, or formally by professionals who are trying to help. We examine the history of these diagnostic terms, including ways they are useful and ways they cause problems. After exploring how psychodiagnostic labeling systems are limited and evolving to become more dimensional, we highlight the legal rights of people with mental health problems to showhow labels can inadvertently lead to discrimination. We conclude by sharing tools to help divorce practitioners overcome the biased assumptions often wrapped up in diagnostic language.

The Domestic Violence Survivors Justice Act (“DVSJA”) provided immense relief for domestic violence survivors (“survivors”) who had been convicted of committing crimes resulting from their abuse. However, the DVSJA failed to consider that survivors suffer the effects of domestic violence for much longer than abuse occurs. Research indicates that survivors can experience chronic post-traumatic stress disorder for years after their abuse ends. Furthermore, the DVSJA failed to consider that many survivors, specifically sexual abuse survivors, never report their abuse. This Note proposes two Amendments to the DVSJA that would: (1) allow victims still suffering the effects of abuse at the time of the offense to be eligible for relief; and (2) allow victims who never reported their abuse to be eligible for relief.

This article examines the role that inadequate housing plays in key stages of a family regulation case. Inadequate housing is broadly defined as any housing related issue that a family regulation agency might consider relevant to a child's safety. With some of the highest housing costs in the country, New York City presents an interesting case study on the impact of inadequate housing on involvement with the family regulation system. Despite providing an explicit defense for parents who cannot afford to provide housing for their children, New York law and policy routinely facilitates the removal of children from their families, the adjudication of parents as neglectful, and even the termination of parental rights, due to inadequate housing. In this way, the family regulation system unfairly punishes parents for housing issues outside of their control and to the detriment of the children the system purports to protect. In order to prevent unnecessary and harmful family separations related to inadequate housing, New York should allocate more funding towards increasing both the supply of affordable housing and the availability of subsidized housing programs. Though limited to budget constraints, the state could finance this by shifting funding away from the family regulation system and towards subsidized housing instead. Additionally, narrowing New York's mandatory reporting and state central registry laws could help limit the negative impact housing issues have on affected families.

The past years have born witness to dramatic and rapid technological changes in assisted reproductive technologies (ART) to include mitochondrial replacement and artificial gametes, which by fragmenting traditional aspects of parenthood have challenged our deepest conceptions of what it means to be a parent. These two cutting-edge reproductive innovations raise a variety of ethical and legal dilemmas, inter alia, the determination of legal parenthood. This article will explore the medical background of these practices and the main dilemmas in determining parenthood in each scenario. In the context of mitochondrial replacement, it explores whether the nuclear mother or the mitochondrial mother is the “real” mother of the resulting child. Likewise, artificial gametes challenge us to define the genetic progenitor who provided the raw material that will eventually produce an artificial sperm and/or egg. Is he a genetic parent, similar to any “traditional” sperm or egg provider? Or is he a mere third party who is, legally, a total stranger to the child. After exposing shortcomings in non-contractual models of legal parenthood, I endorse intentional parenthood as a superior normative model. Normatively, it is an appropriate, just and flexible doctrine for resolving the various modern dilemmas that surface in the context of different ART, including these two latest innovations previewed here. First, I will elaborate on current applications of intentional parenthood in ART and specifically about children resulting from mitochondrial replacement or artificial gametes. Afterwards, I will suggest ways to practically implement intentional parenthood in the context of these two complex and challenging procedures, including unique suggestions of dual maternity, three legal parents, and “quasi” parents with a variety of parental statuses. I will then discuss how intentional parenthood remains available to service the challenges posed by future and as-yet-unknown reproductive practices, as in this steadily evolving field, the future is always (almost) here.

The cornerstone international instrument on children's rights protection that has become widely ratified since its adoption in 1989 is the Convention on the Rights of the Child. Аmong other things, it seeks to ensure that children are entitled to express their views on all matters affecting them. In 2009, Comment No. 12 was adopted by the UN Committee on the Rights of the Child to clarify that additional national legislation is needed to guarantee children's right to participate and state their opinions on matters of importance to them in proceedings before public authorities, including courts. With the growing trend for mandating parties of family conflicts to amicable dispute resolution processes, statutory regulations on mandatory family mediation often remain silent on the way the voice of the child should be integrated in these procedures. This article seeks to outline the problem that the voice of children is often marginalized in the field of mandatory family mediation in Europe given the lack or insufficiency of regulations and application of different protocols for children inclusion during mediation. Review of scientific literature and analysis on the practices deployed in some European countries established that different approaches exist on how children are integrated in mediation and there is a lack of synchronicity on the role of children in the procedure. This leads to the insurmountable paradox that while in court proceedings, hearing the child's view on matters that affect them is imperative. Children have no guaranteed seat in mandatory mediation, which has been designed to replace traditional justice. Herewith, it is suggested that the lack of such rigorous approaches and coherence in an ever-changing mediation setting jeopardizes the importance of children's voice in the process and endanger the best interest of the child. Thus, this article suggests the adoption of cross-European uniform guidelines on the specific role of children in mediation and particularly in its mandatory models and to suggests standards of practice that ensure adequate ways of hearing children's views and opinions in mediation.