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FAM-LAW-LIT: A SURVEY OF CURRENT PERIODICAL LITERATURE ADDRESSING FAMILY LAW ISSUESLaura W. Morgan,
Esquire Welcome to FamLawLit, a survey of current periodical literature concerning family law issues, for May 1998. This page provides a synopsis of current law review articles that discuss issues in family law. This month’s "Ethics Spotlight" takes a quick look at an attorney’s ethical duties in his or her own divorce case. 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 John Wiley & Sons, Inc. 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 William S. Hein & Company, Inc wsheinco@class.org (800) 828-7571 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 Dworking 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." National Legal Research Group Lawrence D. Diehl, Recent Tax Law Changes and Their Impact on Divorce Practitioners (pages 57-64): The author recaps and explains the recent tax law changes, including sale of principal marital residence, capital gains rates for individuals, and the child tax credit. Edward B. Borris, Parents’ Ability and Willingness to Cooperate: The Friendly Parent Doctrine as a Most Important Factor in Recent Child Custody Cases (pages 65-75): An explanation of the evolution of the friendly parent doctrine as a part of the best interests of the child analysis, with emphasis on recent case law applying the doctrine. Hal L. Young, How To Work With a Valuation Expert: Tips for Attorneys From a CPA in the Trenches (pages 76-79): The author, a CPA who specializes in marital property valuations, gives tips to attorneys on how to work with a CPA. EQUITABLE DISTRIBUTION JOURNAL National Legal Research Group Joan L. Cobb, Interest and Deferred Payments (pages xx-xx): The author review the case law on issues relating to interest on distributive awards, such as whether a trial court must impose interest on deferred payments and whether the statute relating to interest on judgments applies to monetary awards. Aspen Law & Business Norma Levine Trusch, Relocation of Children After Divorce: The Winds of Change (pages 2-5): The author, a practitioner in Houston, examines the influence of Dr. Judith S. Wallerstein, author of Second Chances, in the Burgess and Tropea relocation cases, and discusses the AAML’s proposed model relocation act. Kevin C. McCullough and Amy M. Winebrake, Family Law Applications of Evidence Rules: Relevancy Issues (pages 5-7): The authors discuss selected cases which have interpreted evidence rules that frequently arise in family law cases. Phyllis G. Bossin, Don’t Overlook Hidden "Bonus" Assets (pages 7-8): The author notes hidden "bonus" assets that may be divided in a divorce case: frequent flyer points, hotel programs, credit car point systems, bank card credits, department store points, bonds for swim clubs, country club fees, equity in auto leases, and season tickets to sporting events and theatre events. Louis Parley, Letter of Nonacceptance or Nonrepresentation (page 8): Mr. Parley, author of "The Ethical Family Lawyer," provides a sample letter for an attorney who wishes to decline representation. American Bar Association Section of Family Law J. Dennis Casty, Claiming the Kids (pages 11-14): The author, president of FinPlan and creator of Divorce Planner® software, explains how the child tax credits interact with the dependency exemptions, and how to best take advantage of the change in the law. Bruce L. Richman, Dollars for Day Care (pages 15-17, 37): The author explains how the child care tax credit works, and whether it is more advantageous to use the credit or to use a dependent day care account. Melvyn B. Frumkes, Easing the Rules on Sale of Home (pages 19-21): Mr. Frumkes, author of "The Divorce Taxation Handbook," explains the changes in the tax law governing the sale of a home. Daniel J. Jaffe and Cynthia S. Monaco, Going It Alone: When to Say No to a Joint Return (pages 23-27): The authors review the IRS’s innocent spouse rules, and when it is advisable not to sign a joint return. James J. Podell, Tax Reform Tips and Traps (pages 28-31): A review of the provisions of the tax reform act, and the best way to take advantage of the changes. Joy M. Feinberg, New Wrinkles in Retirement Plan Withdrawals (pages 32-36): A review of the new tax-exempt education IRAs, the Roth IRA, and changes in child support withdrawals. Roseanna L. Purzycki, Taking Stock of Golden Parachutes (pages 38-42): A review of qualified and non-qualified plans, and the tax consequences of such plans. Carlton D. Stansbury and Gwendolyn G. Connolly, Map Out Your Relocation Case on the Web (pages 43-45): How to take advantage of web sites when planning a move. 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 Association of Family and Conciliation Courts Sage Publications Inc. 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 educations 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, Post-decree 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. 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 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 ethical rules should be revised to require attorneys to discuss ADR with their clients. FAMILY LAW QUARTERLY (American Bar Association Section of Family Law) Vol. 31, No. 4 (Winter 1998) (Rec’d 4/30/98) Linda D. Elrod and Robert G. Spector, A Review of the Year in Family Law: A Search for Definitions and Policy (pages 613-659): The authors undertake their annual review of family law in the fifty states. Paul M. Kurtz, Annual Survey of Periodic Literature (pages 823-878): A review of all law review articles touching on family law topics. INTERNATIONAL JOURNAL OF LAW, POLICY & FAMILY Oxford University Press 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 (AAML) 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 University of Louisville 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 ~ Albany Law Review (Vol. 61, No. 3 (Winter 1997) Janet L. Dolgin, The Fate of Childhood: Legal Models of Children and the Parent-Child Relationship (pages 345-431) The Compleat Lawyer (ABA General Practice, Solo & Small Firm Section) Vol. 15, No. 2 (Spring 1998) Ellen Widen Kessler, Domestic Issues for the Mature Client (pages 27-32): The author touches on the special concerns of the older family law client, such as client competence, remarriage in light of adult children, and the advisability of antenuptial agreements. George Mason Law Review Vol. 6, No. 1 (Winter 1998) Raven C. Lidman and Betsy R. Hollingsworth, The Guardian ad Litem in Child Custody Cases: The Contours of our Judicial System Stretched Beyond Recognition (pages 255-306): The authors posit the need to redefine the role of the guardian ad litem. Georgetown Law Journal Vol. 86, No. 3 (Nov. 1997) William Mason Emnett, Queer Conflicts: Mediating Parenting Disputes Within the Gay Community (pages 433-449): The author explains how parenting disputes between gay co-parents present special considerations, and offers suggestions as to how best resolve those disputes in mediation. Hofstra Law Review Vol. 25, No. 4 (Summer 1997) Denise E. Lascarides, A Plea for the Enforceability of Gestational Surrogacy Contracts (pages 1221-1259) Houston Journal of International Law Vol. 20, No. 1 (Fall 1997) Lora Cordin, The Hague Convention on the Civil Aspects of International Child Abduction as Applied to Nonsignatory Nations: Getting to Square One (pages 141-172) Law and Policy (Malden, Massachusetts) Vol. 19, No. 1 (April 1997) Understanding Women’s Poverty: Special Symposium on the Relationship Between Domestic Violence and Welfare Receipt Missouri Law Review Vol. 62, No. 4 (Fall 1997) Joan C. Bohl, Family Autonomy vs. Grandparent Visitation: How Precedent Fell Prey to Sentiment in Herndon v. Tuhey (pages 755-806): A review of recent developments in grandparent visitation, focusing on Herndon v. Tuhey. Seton Hall Constitutional Law Journal Vol. 8, No. 1 (Fall 1997) Melissa A. Provost, Disregarding the Constitution in the Name of Defending Marriage: The Unconstitutionality of the Defense of Marriage Act (pages 157-203): Reviews constitutional jurisprudence to conclude that the Defense of Marriage Act is unconstitutional. The Transnational Lawyer (University of the Pacific McGeorge School of Law) Vol. 10, No. 1 (Spring 1997) Robert S. Gordon, An Overview of Adopting Children From China (pages 121-151): The author examines what he calls "the new Chinese export": children; recommends means to protecting exploitation of children. University of Kansas Law Review Vol. 46, No. 1 (Nov. 1997) Christine Arguello, The Marital Discord Exemption to Hearsay: Fact or Judicially Legislated Fiction? (pages 63-114): The author examines the federal rules of evidence and state cognates that allow the introduction of hearsay under the "marital discord" exemption, and reviews case law interpreting the exemption. University of Michigan Journal of Law Reform Vol. 31, No. 1 (Fall 1997) Special Symposium on Child Advocacy Donald N. Duquette, Developing a Child Advocacy Law Clinic (pages 1-32): Advocating an opportunity for law schools to step in to the representation of children. Suellyn Scarnecchia, Child Protection Practice (pages 33-56): An interdisciplinary seminar in child abuse and neglect. Jolene M. Lowry, Family Group Conferences (pages 57-92): Advocating court-approved alternative dispute resolution in cases of child abuse and neglect. Donald N. Duquette, Sandra K. Danziger, Joan M. Abbey, and Kristen S. Seefeldt, A Policy Framework for Child Welfare Reform (pages 93-157) Julian D. Pinkham, Children’s Court and Practice (pages 159-235): A proposal for a uniform children’s code to cover abuse and neglect cases. Albert E. Hartman, Crafting an Advocate for the Child (pages 237-261): Supporting legislation redefining the role of the guardian ad litem in abuse and neglect cases. Wake Forest Law Review Vol. 32, No. 4 (Winter 1997) Meredith L. Taylor, North Carolina’s Recognition of Tort Liability for the Intentional Infliction of Emotional Distress During Marriage (pages 1261-1281): Reviews the latest case law recognizing the emerging marital tort. ~ INTERNET RESOURCES ~ 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 © 1998 National Legal Research Group No information or materials posted here are intended to constitute legal advice, nor can we guarantee the accuracy of posted information, especially as to each individual situation. LawTek does not independently check the information contained herein and does not refer or endorse any product, service, or firm. This site does not constitute an attorney-client relationship; local counsel should always be consulted. Index of Fam-Law-Lit Issues |
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