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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 concerning family law issues, for April 1998. This page provides a synopsis of current law review articles that discuss issues in family law. In this month's "Ethics Spotlight" we discuss the ethical considerations raised by corresponding with clients and other attorneys via e-mail. This month's "Hot Cases" recaps a few of the more interesting cases from around the country concerning family law issues. ~ PRIMARY FAMILY LAW PERIODICALS ~
AMERICAN JOURNAL OF FAMILY LAW Gary A. Shulman & David I. Kelley, The New Standard of Care in Dividing Pensions (pages 1-14): The authors specify four areas of responsibility for the family law attorney in the area of dividing pensions: discovery of all pension assets; valuation of those pension assets competently; offering well-founded advice if a settlement is chosen; securing the collection of the proceeds of that settlement. Nancy M. Czaplinski, How to Value and Treat Options (pages 15-21): The author discusses the nature of options and warrants, the factors affecting their value, and the methods of valuation. Caryn S. Lennon, Advising the Non-citizen Client (pages 22-25): The author notes those areas of family law practice that can be complicated for the non-citizen client, including taxation, custody, and division of marital assets, and advises attorneys how to recognize red flags that will warrant further investigation into a client's status. David L. Walther, Ethical Challenges for Lawyer Mediators (pages 26-29): The author examines the ABA Rules of Professional Responsibility as they relate to the lawyer as mediator. Sarah W. Young, The Calling of the Law (pages 30-39): The author maintains that the law is a "calling" whose full potential is unrealized by lawyers caught up in the purely business aspects of the practice of law. John C. Susko, The Life of a Wired Attorney (pages 40-54): The author relates a typical day as a modern lawyer utilizing the web and various software programs.
CHILDREN'S LEGAL RIGHTS JOURNAL Carol Daugherty Rasnic, European Domestic Secondary Legislation: A Better Route for the American Student?(pages 2-11): 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 (pages 12-17): 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 (pages 18-26): 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 (pages 27-42): 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." (ABA Center on Children
DIVORCE LITIGATION (National Legal Research Group) Brett R. Turner, Valuation of Businesses in Divorce Cases: An Annotated Survey of Methods (pages 41-50): In part one of a two-part article, the author explains the various methods used to value businesses in divorce cases, providing ample case law as illustrations for each method. The author also critiques the cases, explaining whether the method employed was proper given the facts of the case. Wendy Simpson Ricketts, Domestic Violence as a Factor in Distributing Property Upon Divorce (pages 51-56): The author discusses the how the presence of domestic violence, a fault factor, may have an impact on equitable distribution awards, despite statutory or case law providing that fault shall not be a factor in property division.
EQUITABLE DISTRIBUTION JOURNAL (National Legal Research Group) Joan L. Cobb, The Issue of Equal Division: the author examines statutes, case law, and commentary on the question of whether equal division should be a starting point or an ending point for equitable distribution.
FAIR$HARE (Aspen Law & Business) Leonard Karp & Laura C. Belleau, Litigating Domestic Emotional Distress Claims (pages 2-5): The authors present an overview of issues and practical points that need to be considered prior to filing a domestic tort case, including case assessment, types of evidence, psychological testimony, and defenses. Suzanne Reynolds, Content Provisions of the Uniform Premarital Agreement Act (pages 6-7): The author recaps types of provisions altering parties' rights that may be included in a premarital agreement under the UPAA. John Nichols, Oral Argument: Strategies and Alternatives (Part IV of IV) (pages 7-9): The last of a four-part series focuses on how to handle questions from the bench, how to "sell" the argument, and how to deal with time limits. Jay E. Fishman & William J. Morrison, Goodwill in Business Valuation (pages 10-11): The authors examine Potter v. Potter, a 1996 Washington Court of Appeals case, wherein the court of appeals affirmed a valuation of the husband's neurosurgery at $800,000, even though the husband's earning capacity was flat. The Honorable Howard I. Lipsey, Some Perspectives on Domestic Abuse (pages 17-18): His Honor states what he believes to be the most troubling aspect of dealing with domestic abuse: visitation.
FAMILY ADVOCATE Vol. 20, No. 3 (Winter 1998) (Rec'd 2/29/98) Ron W. Little, Getting Out Front Upfront (pages 12-15): The author recommends developing a preliminary pretrial motion strategy to maximize the strengths of your client's case. Kathleen A Hogan, Pretrial Discovery Motions (pages 16-17): The author summarizes the more common pretrial motions and analyzes their usefulness. Jill Hersh, Sure and Swift Relief: The TRO (pages 18-21): The author recommends securing a temporary restraining order whenever there is a need to protect: (1) a client's physical or emotional safety; (2) the physical or emotional safety of children; (3) the marital estate; (4) a client's economic stability. The author also provides practice pointers, such as obtaining corroborating evidence, serving necessary financial institutions, and how to draft the pleadings. Lynn S. Hilowitz, Money Matters (pages 22-25): The author provides guidance on how to put together pendente lite motions that will provide temporary financial assistance. The author provides checklists for preparing the client's affidavit and/or an appraiser's affidavit. Sidney S.F. Bennett, Property Thrust and Parry (pages 26-28): The author recommends the use of pretrial motions to protect and preserve marital assets from loss or dissipation, to aid in valuation, to determine entitlement, to allow for orderly management of property, and to allow for sale when necessary. George T. Carlson, Ellen R. Welner, and Thomas M. Mathiowetz, Bankruptcy Bailouts (pages 30-37): The author recommends that family law attorneys discuss bankruptcy with a client whose financial picture is bleak, since prompt filing could preserve a client's assets. Steven H. Levey, Divide and Conquer (pages 38-40): The author discusses when it may be appropriate to bifurcate a divorce case into component issues. David N. Hofstein and Michael L. Kleiman, Get to the Bottom of the Business (pages 41-43): The authors recommend the use of injunctive relief to preserve a family owned business which may be the most valuable marital asset. The authors provide a good sampling of case law and statutory authority. Ronald E. Lais, Curing Custody (pages 44-48): The author recommends certain pretrial motions to stimulate settlement of what is often the most contentious of issues: child custody.
FAMILY AND CONCILIATION COURTS REVIEW Kevin M. Kramer, Jack Arbuthnot, Donald A. Gordon, Nicholas J. Rousis, and Joann Hoza, Effects of Skill-Based Versus Information Based Divorce Education Programs on Domestic Violence and Parental Communication (pages 9-31): The authors compared two divorce education programs: the skill-based "Children in the Middle," and the information based "Children First in Divorce." The authors compared the programs in terms of efficacy in reducing domestic violence and increasing parenting skills. Geoffrey L. Grief, Many Years After the Parental Abduction (pages 32-40): The article reports on information in 48 families who have been followed for a number of years after the recovery of a missing child. Irene M. Cohen, Postdecree Litigation: Is Joint Custody to Blame? (pages 41-53): The Joint Symposium Project examined 600 court files in five jurisdictions to investigate the common perception that joint custody contributes significantly to relitigation rates. The authors conclude that this perception is false. Steven L. Abel, Social Security Benefits: The Last Insult of a Sexist Society (pages 54-64): The author concludes that for many retiring women, getting just half as much Social Security as their husbands is just one more insult from a sexist society that depresses women's wages. Nicole Pedone, Lawyer's Duty to Discuss Alternative Dispute Resolution in the Best Interests of the Children (pages 65-89): The author, co-winner of the law school essay contests, concludes that the ethical rules should be revised to require attorneys to discuss ADR with their clients.
FAMILY LAW QUARTERLY (American Bar Association Section of Family Law) Margaret Howard, A Bankruptcy Primer for the Family Lawyer (pages 377-392): The author provides an overview of the bankruptcy system, focusing on that part that family lawyers are most likely to encounter, highlighting those respects in which family claimants enjoy most favored creditor status. Margaret Dee McGarity, Avoidable Transfers Between Spouses and Former Spouses (pages 393-407): The article focuses not on interspousal conflict, i.e., what is dischargeable, but on transfers between spouses and former spouses that might be recoverable by a trustee for the estate, with the emphasis on the bankruptcy trustee obtaining assets, not on objecting to the discharge on account of the transfers. Bernice B. Donald and Jennie D. Latta, The Dischargeability of Property Settlement and Hold Harmless Agreements in Bankruptcy: An Overview of § 523(a)(15) (pages 409-432): A review of the history of § 523(a)(15) of the Bankruptcy Code, which changed the law of bankruptcy in making marital debts presumably nondischargeable, and how to litigate under this section. Richard H.W. Maloy, Using Bankruptcy Court to Modify Domestic Relations Decrees: Problems Created by § 523(a)(15) (pages 433-461): A review of the case law under § 523(a)(15) of the Bankruptcy Code and the ambiguities that exist in the case law. Michaela M. White, The Procedural Plight of the Property Settlement Creditor (pages 463-491): How to navigate around § 523(a)(15) when an ex-spouse has filed for bankruptcy. Allen M. Parkman, The Dischargeability of Post-Divorce Financial Obligations Between Spouses: Insights from Bankruptcy in Business Situations (pages 493-511): The author takes the position that none of the financial obligations of ex-spouses should be dischargeable in bankruptcy, demonstrating his thesis with illustrations from the business world. Sheryl Scheible Wolf, Divorce, Bankruptcy, and Metaphysics: Avoidance of Marital Liens Under § 522(f) of the Bankruptcy Code (pages 513-550): The article focuses on the mechanics and theories of marital lien avoidance, focusing on Farrey v. Sanderfoot, the United States Supreme Court case and the amendments to § 522(f) of the Bankruptcy Code. Daniel W. Shuman, What Should We Permit Mental Health Professionals to Say About "The Best Interests of the Child"?: An Essay on Common Sense, Daubert, and the Rules of Evidence (pages 551-569): The author examines the seeming contradiction between increased judicial control and scrutiny of expert testimony, and continued judicial reliance on expert testimony in child custody and visitation cases. Melissa Rothstein, The Defense of Marriage Act and Federalism: A States' Rights Argument in Defense of Same-Sex Marriage (pages 571-583): The author states that the Defense of Marriage Act is unconstitutional because it infringes on fundamental principles of federalism. Susan Higgenbotham, "Mom, Do I Have to Go to Church?": The Noncustodial Parent's Obligation to Carry Out the Custodial Parent's Religious Plans (pages 585-596): The author concludes that a court may require a noncustodial parent to carry out the wishes of the custodial parent regarding religious upbringing only when the best interests of the child demand it. J. Allan Cobb: What Happens When Cyberspace Is Used to Lure Children into Sexual Relations - A Brief Look at Important Federal Venue Provisions (pages 597-611): The article analyzes federal venue issues concerning child sexual abuse crimes which occur or are initiated in cyberspace, specifically discussing federal venue statutes concerned with sexual abuse crimes committed across state lines.
INTERNATIONAL JOURNAL OF LAW, POLICY & FAMILY The Honourable Peter Nygh, The New Hague Child Protection Convention (pages 344-359): The article examines in detail the adoption of the Draft Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children by the Eighteenth Session of the Hague Convention on Private International Law, and compares the provisions of the new Convention with the Convention on the Civil Aspects of Child Abduction of 1980. Michael Freeman, The Best Interests of the Child? Is the "Best Interests of the Child" in the Best Interests of the Children? (pages 360-388): The author believes it is time to move beyond the outdated ideas found in the landmark treatises Beyond the Best Interests of the Child and The Best Interests of the Child: The Least Detrimental Alternative, believing that the concepts found in these books leave children dangerously exposed.
JOURNAL OF THE AMERICAN ACADEMY OF MATRIMONIAL LAWYERS Samuel V. Schoonmaker, IV, Consequences and Validity of the Family Law Provisions in the "Welfare Reform Act" (pages 1-75): The author details the child and spousal enforcement provisions of the Welfare Reform Act, analyzes the validity of the Act, discussing constitutional, practical, and privacy issues, and forecasts the nationalization and globalization of family law. Patricia E. Apy, Managing Child Custody Cases Involving Non-Hague Contracting States (pages 77-97): The author offers suggestions on how to manage a custody case with international connections to countries which are not signatories to the Hague Convention on the Civil Aspects of International Child Abduction. Jan Rewers McMillan, Getting Them Back: The Disappointing Reality of Return Orders Under the Hague Convention on the Civil Aspects of International Child Abduction (pages 99-131): While noting that 47 countries have signed on to the Convention, the author concludes that the reality is that practitioners are faced with sometimes insurmountable obstacles in effecting the return of children once orders for return are issued. The author suggests ways to avoid these obstacles. Tania Bailey, Child Support from U.S. Military Personnel Stationed Abroad (pages 133-151): The author details the statutory framework for promoting the establishment and enforcement of child support orders against members of the military, including Executive Order No. 12953 and military regulations. Cassandra Terhune, Cultural and Religious Defenses to Child Abuse and Neglect (pages 152-192): The author surveys the use of the "cultural" and "religious" defense to charges of child abuse, focusing on the practice of female genital mutilation as a cultural defense to child abuse and the practice of spiritual healing as a religious defense to child neglect.
UNIVERSITY OF LOUISVILLE JOURNAL OF FAMILY LAW Elvia R. Arriola, Law and the Family of Choice and Need (pages 691-701) Angelea Mae Kupenda, Two Parents are Better Than None: Whether Two Single, African American Adults, Who are Not in a Traditional Marriage or Romantic or Sexual Relationship with Each Other, Should be Allowed to Jointly Adopt and Co-parent African American Children (Proceedings of the Third Annual Mid-Atlantic People of Color Legal Scholarship Conference) (pages 703-720) Samuel A. Marcosson, The Lesson of the Same-Sex Marriage Trial: The Importance of Pushing Opponents of Lesbian and Gay Rights to Their Second Line of Defense (pages 721-753) Ana M. Novoa, The Removal of Adam's Rib: The Creation and Polarization of Male and Female Virtues (pages 755-764) Joann Blair, Honor Thy Father and Thy Mother, But For How Long? (pages 765-782) Laura D. Robertson, Breaking Down the Language Barrier: A Move Toward Requiring Non-English Speaking Parents to Facilitate English Proficiency (pages 783-793) Lee A. Webb, A Nation That Values Family, Except When a Family Member is Foreign: An Overview of Proposed Changes in Immigration Law and Their Devastating Effects on Many U.S. Families (pages 795-811) ~ OTHER PERIODICALS ~
Florida Law Review Nancy E. Dowd, Rethinking Fatherhood (pages 523-537): The author criticizes current legal constructs of fatherhood that focus on biological rights, economic responsibilities, and property entitlements, and suggests that fatherhood, like motherhood, should focus on nurturing.
North Dakota Law Review B.J. Jones, The Indian Child Welfare Act: In Search of a Federal Forum to Vindicate the Rights of Indian Tribes and Children Against the Vagaries of State Courts (pages 395-457): The author, Chief Judge, Turtle Mountain Tribal Court of Appeals, states that the stated goal of the Indian Child Welfare Act, that a uniform treatment of Indian Children be realized, has proven to be illusory and a farce. The author particularly faults the federal courts for failing to redress consistent violations of the act by state courts. The author concludes that there is a compelling need for federal court supervision of state court decisions to both promote uniformity and effectuate the design of the Act.
Suffolk University Law Review The Honorable Mark S. Coven, Welfare Reform, Contempt, and Child Support Enforcement (pages 1067-1095): The author, a Massachusetts District Court judge, explores the legislative and judicial response to child support enforcement, specifically focusing on the court's contempt powers to force payment of child support.
Temple Law Review Nancy J. Feather, Defense of Marriage Acts: An Analysis Under State Constitutional Law (pages 1017-1035): The author concludes that the states' response to the Hawaii decision of Baehr v. Lewin, enacting legislation that defines marriage as an act between a male and a female, is both unnecessary and unconstitutional.
ALSO OF INTEREST Whittier Law Review (Vol. 18, Fall 1997): Child Law Symposium University of Illinois Law Review (Vol. 1997, Summer 1997): Family Law Focus Brigham Young University Journal of Public Law (Vol. 11, Winter 1997): Parent and Child in North America ~ INTERNET RESOURCES ~
FAMILY LAW IN THE NEWS FAMILY LAW ARTICLES ON THE NET "An Evaluation of Post-Secondary Educational Support on a State by State Basis" "Summary of 1997 California and Federal Statutes Affecting the Practice of Family Law" 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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