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FAM-LAW-LIT: A SURVEY OF CURRENT PERIODICAL LITERATURE ADDRESSING FAMILY LAW ISSUES
Laura W. Morgan, Esquire Welcome to FamLawLit, a survey of current periodical literature addressing family law issues. Beginning January 5, 1998, on the first Monday of each month, this page will provide a synopsis of current law review articles that discuss issues in family law. PRIMARY FAMILY LAW PERIODICALS
AMERICAN JOURNAL OF FAMILY LAW (John Wiley & Sons, Inc.) Bruce L. Richman, Taxpayer Relief Act of 1997: A Summary of Provisions Affecting the Divorce Practitioner: Summarizes the provisions of recent tax legislation that affects family law practice, including the change in the capital gains rates, the gain on the principal residence, the child tax credit, innocent spouse rules, education tax incentives, and deductions for interest paid on higher education loans. Gary Shulman, QDROs of Last Resort: Problems with the Government's Model QDROs: Critiques the model language for QDROs promulgated by the Pension Benefit Guaranty Corporation, a federal agency that insures retirement benefits. John N. Kirkendall, Setting Up a Family Court: Noting the trends toward unification of courts and the specialization of judges, the author, a presiding judge in the Family Division of Watshenaw County, Michigan, relates his experience in the new unified court David H. Kelsey, Ten Ways Lawyers and Psychologists Can Work Together: The author proposes five primary principles for lawyers and psychologists, three simple principles for lawyers, and two principles for psychologists, all with the goal of best representing the client. Richard P. Bicken & Diana M. Schobel, Attorney Advertising and the First Amendment: The authors propose that the Supreme Court's ruling in Bates v. State Bar Association of Arizona, the rules concerning lawyer advertising have not kept pace with technology. Thus, more recent cases that rein in attorney advertising is laudable.
CHILDREN'S LEGAL RIGHTS JOURNAL Carol Daugherty Rasnic, European Domestic Secondary Legislation: A Better Route for the American Student?: The author, drawing on her own experiences, suggests ways which might assure that a child's individual talents and aspirations are more realistically directed into the appropriate and desired career path, and further proposes that college or university study is not appropriate for all children. Julie Dworkin and Les Brown, Organizing Homeless Youth: A Strategy for Change: The authors propose that state child welfare systems have failed to assure that adolescent wards have a stable environment, and that advocate systems must step in to increase funding for homeless youth programs. Stephen Post, Patricia Frutig, and James Bennet, Children at Risk: A Moral Assessment of Protective Policies: The authors assert that for child protective services to work, there must be a social commitment to all children, parental responsibility for children that is defined, a wider definition of what constitutes a child "at risk," and a willingness to forego family preservation when the well-being of the child is compromised. Thus, foster care and adoption should be utilized on a greater basis. William S. Geimer, Abusing Abuse Evidence: Professor Dershowitz Knows Better: The article is devoted to illustrating the difficulty of the law's effort to accommodate evidence that a criminal defendant was a victim of abuse, and the author seeks to enlist the help of the legal community in avoiding the unjust consequences that will result if an indifferent public consigns the difficult matter to ridicule under the heading "the abuse excuse."
DIVORCE LITIGATION (National Legal Research Group)
Robert K. Downs, A New Paradigm for the Representation of Children: The "KinderCentric" Model: The author undertakes a nationwide survey of statutes permitting or requiring the representation of children in divorce and custody proceedings, and concludes that because the statutes do not define the role of the child's advocate, the child's best interests are routinely ignored. The author proposes a "KinderCentric" model of representation of a child's best interests, whereby the role the child's representative must play is well defined. Laura W. Morgan, Spousal Support: Enough is Not Enough: The author surveys those cases where a property award would be more than enough to maintain each spouse at the marital standard of living, but the court nonetheless grants spousal support under the theory of equitable division of income.
EQUITABLE DISTRIBUTION JOURNAL (National Legal Research Group)
Joan L. Cobb, Debts Incurred During Marriage: Recurring Issues: The author surveys recent case law concerning the classification, valuation, and distribution of debt incurred during marriage.
FAIR$HARE (Aspen Law & Business)
John Nichols, Oral Argument: Strategies and Alternatives (Part I of IV): This first part of a four-part series discusses general considerations in organizing an oral argument. The author suggests that fact sensitive arguments should be presented as a story, while procedural questions require a more technical framework. Usha R. Smerdon, Qualified Medical Child Support Orders: The author reviews the basic requirements for QMCSOs, including requirements for qualification, administrative requirements, problems and uncertainties, and drafting tips. Elaine Lewis, Dealing With An Expert With Little Trial Experience: Presents tips for preparing an expert, including making sure the expert understands his/her role, and preparing the expert for both direct and cross-examination.
FAMILY ADVOCATE (American Bar Association Family Law Section)
Frederick C. Hertz, When Legal Protections Are Few. . . Breaking Up Is Hard to Do: How to handle the breakup of gay and lesbian relationships where there are property issues. Kathryn Kendell: The Custody Challenges: The author seeks to debunk myths about gay and lesbian parents and their children, and suggests solutions to provide a custody arrangement acceptable to all parties. Charlotte J. Patterson, What Research Shows About Gay and Lesbian Parents and Their Children: A survey by a Professor of Psychology concerning the parenting abilities and skills of gay and lesbian parents. Beatrice Dohrn, Modification Based on Sexual Orientation: A survey of how courts will deal with a request to modify custody of children based on sexual orientation. Jane A. Marquardt, A Will - Not A Wish - Makes It So: The author presents estate planning options for same-sex couples when probate laws will not provide the solutions. Emily Doskow, Adoption Options For Same-Sex Couples: In an interview with a California adoption lawyer, the article presents the state of the law on adoption of children by same-sex couples.
FAMILY AND CONCILIATION COURTS REVIEW Sanford L. Braver, Melanie C. Smith, and Stephanie R. DeLuse, Methodological Considerations in Evaluating Family Court Programs: The authors consider how to evaluate court sponsored programs, especially divorced parent educations programs. Norman W. Park, Michele Peterson-Badali, and Jennifer M. Jenkins, An Evaluation of Supervised Access I, II, and III: The series of articles describe the Supervised Access Pilot Project implemented in 14 locates on Ontario, from the perspective of those offering services and community organizations whose members use the service. Joyce A. Arditti, Women, Divorce, and Economic Risk: The article examines mothers' postdivorce economic risk, illustrating income dynamics predivorce and postdivorce. The study concludes that women's economic decline appears to be more pronounced than men's. Specific recommendations for policy are offered. Joan K. Raisner, Family Mediation and Never-Married Parents: The author reviewed 441 cases of divorcing and never-married parents to compare their experiences with court ordered mediation over custody disputes.
FAMILY LAW QUARTERLY Carol A. Gorenberg, Fathers' Rights vs. Children's Best Interests: Establishing a Predictable Standard for California Adoption Disputes: An analysis of the trend in California's treatment of unwed fathers' rights to raise their newborn children when the birth mother has chosen adoption. The author notes that the courts have taken a more critical look at the behavior of a father who asserts his parental rights, and the author suggests that the legislature clarify the standards to be applied in these cases. Mary Ann Mason and Ann Quirk, Are Mothers Losing Custody? Read My Lips: Trends in Judicial Decision-Making in Custody Disputes-1920, 1960, 1990, and 1995: The authors seek to answer the question whether results in custody cases have changed, given the change in custody laws that no longer employ a maternal preference. Sanford J. Fox, Beyond the American Legal System for the Protection of Children's Rights: Based on the view that all legal tools should be mobilized for the protection of children, the author suggests ways that international law can contribute to the effort, such as the 1989 U.N. Convention of the Rights of the Child and the International Convention on Civil and Political Rights. Peter Nash Swisher, Reassessing Fault Factors in No-Fault Divorce: Opining that divorce reform is currently at a crossroads, the author seeks to explore the ways in which fault-based factors, when applied to egregious marital misconduct that significantly contributes to the marital breakdown, may be utilized to bring about enhanced social, economic, and legal protection to spouses on divorce. Julie Holland, Should Parents be Permitted to Authorize Genetic Testing for Their Children?: The author advocates the position put forth by the Institute of Medicine of the National Academy of Sciences that parents should not be able to authorize genetic testing for their children when there is no clear benefit to the children, such as when the children are tested for untreatable, late-onset disorders or for carrier status, because there is no danger in postponing testing. Christa Wiertz-Wezenbeek, Visitation Rights of Nonparents and Children in England and the Netherlands: The author surveys the : law in England and the Netherlands concerning nonparent, i.e., grandparent, stepparent, and cohabitants, visitation. The author pays particular attention to the interpretation given by the European Court of Human Rights, European Commission of Human Rights, United Nations Convention on the Rights of the Child, and the European Convention on the Exercise of Children's Rights.
JOURNAL OF THE AMERICAN ACADEMY OF MATRIMONIAL LAWYERS
UNIVERSITY OF LOUISVILLE JOURNAL OF FAMILY LAW
Peter Nash Swisher and Nancy Cook Douglas, Bottoms v. Bottoms: In Whose Best Interest? Analysis of a Lesbian Mother Child Custody Dispute: The article traces and analyzes the series of legal and factual events leading up to the most famouns Lesbian custody case. The author concludes with a criticism of the Virginia Supreme Court decision, declaring that the court ignored the evidence. Patricia A. Harris, Intentional Infliction of Emotional Distress and Divorce: An Argument Against Joinder: The author focuses on when it is proper to assert a claim for interspousal tort, and advocates the position that a court should hear a claim for intentional infliction of emotional distress subsequent to a divorce action, rather than during a divorce action. Jeffrey A. Cross, The Repeated Sufferings of Domestic Violence Victimjs Not Notified of Their Assailant's Pre-Trial Release from Custody: A Call for Mandatory Domestic Violence Victim Notification Legislation: The author advocates mandatory notification to victims of domestic violence an abuser's pre-trial release from custody. Jeff Brown, Rye v. Weasel: Applying the Indian Child Welfare Act of 1978 to Satisfy Conflicting Interests and Congressional Intent: The author examines the ICWA as it applies to jurisdictional disputes between states and Indian tribes, and recommends a course of action that will fully consider the interests of the child, the tribe, and the law as Congress intended.
JOURNAL OF JUVENILE LAW (University of La Verne College of Law)
Paymon M. Bidari, An Incompetent Child's Right to Have Medical Treatment Terminated When There is Uncontraverted Evidence That Medical Assistance is Futile: A survey of the law concerning an incompetent child's rights to terminate medical treatment. The author advocates that children should have the right to terminate treatment under certain circumstances. Alana J. DeGarmo, The Indian Child Welfare Act: Its Impact on Unknowing Adoptive Parents: The author criticizes the unintended consequences of the Indian Child Welfare Act on prospective adoptive parents. Kerry L. McBride, A Minor's Right to "Divorce" His or Her Parents: Fundamental Liberty Interest and Standing of a Minor Who is Dependent on the Courts to Bring Termination of Parent Rights Proceedings: The author revisits the Gregory K. case, and posits that children, as the most interested parties, should have the right to bring termination proceedings. Jennifer Mullins, Transracial Adoption in California: Serving the Best Interests of the Child or Equal Protection Violation?: The author surveys transracial adoptions in California, and surmises that the court's unwillingness to cross racial boundaries poses an equal protection violation. Robert Pfenning, The Best Interests of the Child: Do the Courts' Subjective Factors in Determining "Best Interests" Really Benefit the Child?: The author posits that because the "best interests of the child" test is so vague, there is little benefit to the child; rather, the benefit is to the parents. OTHER PERIODICALS
Indiana Law Review (University of Indiana Law School)
Linda L. Chezem and Sarah L. Nagy, Judicial Abrogation of a Husband's Paternity: Can a Third Party Seek to Establish Paternity Over a Child Born into a Marriage While That Marriage Remains Intact?: The authors examine the current case law concerning the standing of a third party to assert paternity of a child born during a still intact marriage. The authors also cover United States Supreme Court law and common law concerning the presumption of legitimacy. Candace M. Murphy-Farmer, Mandatory Appointment of Guardians Ad Litem for Children in Dissolution Proceedings: An Important Step Towards Low-Impact Divorce: The author advocates the position that appointment of a guardian ad litem should be mandatory in all dissolution proceedings, and not a matter of discretion with the judge.
Pepperdine Law Review (Pepperdine Law School)
Tracy Cashman, When is a Biological Father Really a Dad?: Starting from the case law holding that there is a clear distinction between a mere biological relationship and an actual relationship of parental responsibility, the author surveys the law concerning those cases where a biological father of a child born out of wedlock and placed for adoption later asserts parental rights to the child. The author proposes guidelines for adoption to be placed in the Uniform Adoption Act along with other specific legislation.
The Compleat Lawyer Mark E. Sullivan, The Trials (and Tribulations) of a Family Law Practice: Tips on how to deal with clients who say the darnedest things, how to make the most of cross-examination, how to be creative in the courtroom, and how to settle a case.
International Journal of Law, Policy and the Family Ira Mark Ellman, The Misguided Movement to Revive Fault Divorce, and Why Reformers Should Look Instead to the American Law Institute: The author examines the debate concerning whether no-fault divorce should be revived, and concludes that there is little evidence that no-fault divorce has had any negative effect.
FAMILY LAW IN THE NEWS Laura W. Morgan is a Senior Attorney in Family Law at the National Legal Research Group, in Charlottesville, Virginia, a firm that writes memoranda and briefs for attorneys nationwide. Ms. Morgan is the author of "Child Support Guidelines: Interpretation and Application," and is currently Chair of the Child Support Committee of the American Bar Association Family Law Section. She can be reached at: goddess@supportguidelines.com, or phone 1-800-727-6574 or 1-804-977-5690
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