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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 November 1998. This page provides a synopsis of current law review articles that discuss issues in family law. This month’s "Ethics Spotlight" will give tips on how a divorce attorney can screen for conflicts of interest. ~ PRIMARY FAMILY LAW PERIODICALS ~ AMERICAN JOURNAL OF FAMILY LAW (published quarterly; P .A56533) Aspen Law & Business (The following summaries are taken directly from the table of contents of the issue) Gary A. Shulman and David I. Kelley, Present Value Settlement: Using the Kelley-Shulman Scale to Choose (pages 135-140): The process of dividing pension plans often places the domestic relations attorney on the horns of a dilemma. This article offers a novel solution for choosing between a lump-sum settlement or a properly drafted qualified domestic relations order. Susan R. Bulfinch and Renee Sperling, When Mediation Meets Litigation: Cross-Over Dangers (pages 141-147): This article examines the interplay between mediation and litigation when a family law action has been filed and the parties vacillate between the two processes, choosing mediation to resolve issues yet keeping hearing dates on the calendar. The authors use a hypothetical case scenario to illustrate the cross-over dangers of mediation and litigation, when both processes are in play. Linda Roberson, Abby Rupp, and Liza Roberson-Young, Admissibility of Mental Health Care Records in Custody/Displacement Disputes (pages 148-154): While no national standard has been established regarding the admissiblity of mental health records in custody disputes, both state legislation and national case law delineate appropriate public policy. These authors begin to map out ways for courts to both preserve confidentiality and admit relevant records without violating psychologiest-patient privilege. Laura W. Morgan, Modification of Child Support Judgments (pages 155-163): Under common law, modification of a child support judgment can occur only if there has been a substantial and continuing change of circumstances since the last support order was rendered. This article explicitly considers the definition of a change in circumstances to the extent that such a change arises from application of the state child support guidelines mandated by the Family Support Act of 1988. Gary C. Randall, The Family Home: A "Best" Asset in the Property Division (pages 164-167): Property transfers became nontaxable with the advent of Section1041 of the Internal Revenue Code, but that same nontaxability gave rise to some very difficult questions when the family home and divorce came together (or apart) as one. This author explains how the new Section 121 reduces the tax liability on the sale of the family home. Robert J. Durst, II and Beth G. Baldinger, Marital Torts: Issues, Trends, and Practical Concerns in Pursuing Claims (pages 168-175): Presenting a marital tort claim poses many procedural and substantive issues for consideration by the family law attorney. Set forth here is a summary of those substantive issues and an overview of the practical concerns in pursuing marital tort claims, inverwoven with tips on thorough evaluation and strategizing of these claims to maximize the odds of their successful resolution. Mikol Benjacob, Is Their "I Do" Good Enough For You? - The Unconstitutionality of the Defense of Marriage Act, Section 2 (pages 176-189): This author addresses Section 2 of the Defense of Marriage Act, which allows states to refuse to recognize same-sex marriages contracted in other states, as an unconstitutional exercise of congressional authority. Ray Meyer, Professional Perspective: Family Law in Cyberspace (pages 190-192): The author notes some of the more useful stops on the information superhighway. CHILDREN’S LEGAL RIGHTS JOURNAL (ABA Center on Children and the Law and Loyola University Chicago School of Law) (published quarterly; P .C5373) William S. Hein & Company, Inc wsheinco@class.org (800) 828-7571 (Special Edition on Children with Life Threatening Diseases) Arthur J. Amman, M.D., Introduction: The Need to Resolve Emerging Ethical, Legal, and Policy Issues Affecting Children with Serious and Life Threatening Diseases (pages 2-5): The author discusses the need for legal and legislative intervention to protect the health and welfare of children in the United States and abroad. James G. Hoge, Jr. and Michael J. Parini, Perinatal HIV Transmission: A Children’s Human Rights Perspective (pages 6-19): An analysis of the human rights implications of public health programs to prevent perinatal HIV transmission. Harold Paul Katner, Children and Adolescents with HIV/AIDS: Medical Breakthroughs and Prevention Failures (pages 20-26): A review of some of the major medical breakthroughs that have given hope to those with HIV/AIDS. Ralph E. Kauffman, Drug Safety, Testing, and Availability for Children (pages 27-34): The author posits that the lack of clinical research to support approval and labeling of drugs for children presents physicians caring for children with an untenable conundrum: deprive children of possibly therapeutic drugs, or prescribe drugs off label. The author suggests the solution lies promoting ways the FDA can include pediatric information on drugs. Michael Lipson, Psychology and the Dying Child: A Fundamental Challenge to Health and Service Professionals (pages 35-38): A review of ways health professionals can understand children’s dying, and work to overcome the emotional barriers to adequate care. Ellen Wright Clayton, Genetic Testing in Children: The Law’s Role in Addressing the Challenges Posed by New Technology (pages 39-42): The physician’s role in preventing children from inappropriate genetic testing and parental treatment requests. Mary Z. Pelias, Genetic Testing: Who Decides, Who Informs? (pages 43-46): A family by family approach to the ethical question of whether to provide genetic testing and information. THE COMPLETE LAWYER (published six times per year) Special Issue: Children and the Law J. Thomas Dalby, Child Witness (pages 16-21): The author, a forensic psychologies and trial consultant, considers both the physical and metaphysical challenges of the child as witness. Kathelen Hunt Federle, The Child as Client (pages 22-25): When the client is a child, the lawyer’s obligations to that child do not differ from those duties owed to an adult client. The author, an Associate Professor of Law and Director of the Justice for children Project at Ohio State University, considers an attorney’s ethical duties to a child client. Larry Ramirez, The Individuals with Disabilities Education Act (pages 26-32): A review of IDEA, and how to secure rights under the Act. Joan M. Burda, Collecting Child Support From Federal Civilian Employees and Military Personnel (pages 34-39): The author notes federal law and regulations creating the authority to garnish the wages of federal civilian employees and military personnel to collect child support, including the Uniformed Services Former Spouse’s Protection Act and 32 C.F.R. § 63.6(e). John F. Thomasset, Planning an Estate, Protecting a Child (pages 40-43): Consideration of guardianship, children with special needs, education IRAs, and trusts to take care of children in estate planning devices. Edward D. Beasley, Special Needs Trusts (pages 45-48): How to plan for a child with disabilities. Joshua Van Kampen, The Fair Housing Act’s Protection of Children (pages LN1-LN4): The article examines the types of property governed under the FHA, the categories of unlawful conduct that are prohibited, proof models utilized in FHA claims, available defenses for landlords, and the remedial framework. E.E. Anderson, Sex Crimes Against Children (pages 50-52): An overview of the Child Protection and Sexual Predator Act of 1998, which prohibits contacting a minor over the Internet for the purposes of engaging in illegal sexual activity. DIVORCE
LITIGATION (published monthly) Brett R. Turner, Rehabilitative Alimony Reconsidered: The "Second Wave" of Spousal Support Reform (pages 185-212): This article provides an excellent historical review of all forms of alimony and spousal support, and discusses the present wave of spousal support reform known as rehabilitative alimony. EQUITABLE DISTRIBUTION JOURNAL (published monthly; P .E573) National Legal Research Group Joan L. Cobb, Military Service Benefits — Update: A discussion of recent cases on equitable distribution of military service benefits, including questions about modifying final decrees with regard to military retirement benefits, the impact of a service member’s waiver of nondisability benefits in favor of disability benefits or other compensation, state law issues relating to military retirement benefits, and a variety of benefits other than retirement pay. Aspen Law & Business Kathleen A. Miller, Cash from an IRA - Penalty Free? (Pages 2-3): A review of IRC Section 72(t)(2)(A)(iv), which provides an exception to the 10% penalty for early withdrawal from an IRA. Gregg Herman, The Ten Commandments of Domestic Negotiations (Part II of II) (pages 4-6): The second five of ten rules for successful negotiation of divorce settlements: never negotiate backwards; never refuse to negotiate; never get personal; never get angry at a settlement proposal; be prepared. Kalman A. Barson, Using Pretax Income to Value a Professional Practice (pages 6-7): A review of Dugan v. Dugan from New Jersey, on how to value a law practice. Louis Parley, Family Law Ethics Focus (pages 7-9): Recent ethics cases of interest to the family law practitioner. American Bar Association Section of Family Law Stephen J. Harhai, Tools of the Trade: Atlas.ti (pages 4-5): A description of Atlas.ti from Scientific Software, a tool to assist in qualitative analysis. Kathleen A. Hogan, Case of the Issue: Professional Degrees Revisited (p0ages 6-7): An examination of Simmons v. Simmons, 244 Conn. 158, 708 A.2d 949 (1998) and In re Marriage of Speirs, 956 P.2d 622 (Colo. Ct. App. 1998), which address reimbursement for contributions to a spouse’s professional degree. Burton Young and Mitchell K. Karpf, Winning Trial Prep (pages 9-11): The authors, lawyers with winning reputations, disclose their four secrets for success in the courtroom: decent facts, preparation, preparation, and more preparation. More specifically: know your judge, know your trial opponent, develop a theme, prepare a trial book, focus attention, and pay attention to your closing. Cary B. Cheifetz, Deposition Strategies (pages 12-15): Winning deposition strategies, including how to prepare a deposition notebook, and how to prepare your witness. Stephen J. Harhai, The Latest Bells and Whistles (pages 17-19): A summary of The Interactive Courtroom (CD-Rom), HotDocs, Lotus Notes, PowerPoint, and Axon Idea Processor. Carroll J. Collins III and Christopher J. Donnelly, Witnesses Tell the Story (pages 21-23): How to let your lay and expert witnesses let the story unfold. Elaine Lewis, The Not-So-Secret Secrets of Good Witnesses (pages 24-26): Taking a cue from Aristotle, the author proposes that a good witness should exhibit ethos, logos, and pathos. Norman M. Sheresky, Dynamic Direct (pages 27-29): Hints on the fine art of staging and storytelling. Suzanne Harris, The Art of the Expert (pages 30-33): How to select, prepare, depose, and lay foundation for, your expert. James J. Jimmerson and Jennifer Leonescu, Cross-Examining the Opposing Expert (pages 34-41): How to effectively cross-examine the opposing expert, by outlining cross, using the expert’s deposition to impeach, and maintaining control at all times. Jami B. Hotsinpiller, Your Honor, I Object! Preserving Error for Review (pages 42-47): Tips on preserving error at the trial level by proper objections, motions to strike, and motions in limine. FAMILY AND CONCILIATION COURTS REVIEW (published quarterly; P .C6533) Association of Family and Conciliation Courts Thea Brown, Margarita Frederico, Lesley Hewitt, and Rosemary Sheehan, Problems and Solutions in The Management of Child Abuse Allegations in Custody and Acess Disputes in the Family Court (pages 431-443): The article summarizes a large research study that investigated the way the Family Court of Australia managed child abuse allegations in custody/visitation cases. Emily B. Visher and John S. Visher, Stepparents: The Forgotten Family Members (pages 444-451): A call by the authors to acknowledge the differences between traditional nuclear families and stepfamilies, and to support stepfamily strengths. Laurie Kramer and Amanda Kowal, Long-Term Follow-Up of a Court-Based Intervention for Divorcing Parents (pages 452-465): This study investigated whether participation in an educational program for divorcing parents is associated with a lower incidence of relitigating divorce issues over time. Daniel J. Hynan, Interviewing Children in Custody Evaluations (pages 466-478): The ways to maximize the accuracy and usefulness of child interviews in child custody evaluations. Mary F. Whiteside, Custody for Children Age 5 and Younger (pages 479-502): The empirical literature concerning the developmental consequences of postdivorce custody arrangements for children age 5 and younger is summarized. FAMILY LAW QUARTERLY (published quarterly) American Bar Association Section of Family Law Patricia M. Hoff, The ABC’s of the UCCJEA: Interstate Child-Custody Practice Under the New Act (pages 267-299): An introduction to the new and improved uniform child custody jurisdiction and enforcement act. Robert G. Spector, Uniform Child-Custody Jurisdiction and Enforcement Act (pages 301-384): The reporter for the Uniform Laws commission offers his comments on the new UCCJEA. John J. Sampson, Uniform Interstate Family Support Act (1996) (pages 385-520): An update of a previous article, explaining the provisions of UIFSA. INTERNATIONAL JOURNAL OF LAW, POLICY &
FAMILY (published quarterly; P .I6786) Margaret Hall, A Ministry for Children: Abandoning the Interventionist Debate in British Columbia (pages 121-145) Catherine Blatier, The Specialized Jurisdiction in France: A Better Chance for Minors (pages 146-160) Debbie S.L. Ong, The Test of Sex for Marriage in Singapore (pages 161-179) Teresa Piconto-Novales, The Application of Spanish Child Welfare Law (pages 180-201) Suzanne Hoelgaard, Cultural Determinants of Adoption Policy: A Colombian Case Study (pages 202-241) JOURNAL OF THE AMERICAN ACADEMY OF MATRIMONIAL LAWYERS (published two times per year; P .A551j) 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. JUVENILE AND FAMILY COURT JOURNAL National Council of Juvenile and Family Court Judges Rick Rudell, G. Larry Mays, and Dennis M. Giever, Transferring Juveniles to Adult Courts: Recent Trends and Issues in Canada and the United States (pages 1-15): The authors researched the practice of transferring juvenile offenders to adult courts in Canada and the United States, and the consequences of the policies pursued by the two countries. William Bradshaw and Mark S. Umbreit, Crime Victims Meet Juvenile Offenders: Contributing Factors to Victim Satisfaction With Mediated Dialogue (pages 17-25): The results of studies showing higher levels of victim satisfaction with the victim offender mediation process. Patrick Yewell, Deborah Williamson, Michael Cornwall, and Paul Knepper, The Road to
Court Improvement in Child Protection Cases: A Comment (pages 27-39): A report on the
State Court Improvement Program funded by Congress in 1993. SPECIAL SYMPOSIA OF INTEREST 26 Hofstra Law Review (Spring 1998) Symposium on the American Law Institute: Process, Partisanship, and the Restatements of the Law 11 Georgetown Journal of Legal Ethics (Winter 1998) The Ethics of a Law Practice OTHER PERIODICALS (Alphabetical by author) Kathleen A. Bailie, The Other "Neglected" Parties in Child Protective Proceedings: Parents in Poverty and the role of the Lawyers Who Represent Them, 66 Fordham Law Review 2285 (May 1998) Brian Bix, Bargaining in the Shadow of Love: The Enforcement of Pre-Marital Agreements and How Think About Marriage, 40 William & Mary Law Review (Fall 1998) (A most excellent article on the topic) Charles J. Butler, The Defense of Marriage Act: Congress’s Use of Narrative in the Debate over Same-Sex Marriage, 73 New York University Law Review 841 (June 1998) Ronald Chester, Disinheritance and the American Child: An Alternative from British Columbia, 1998 Utah Law Review 1 (Winter 1998) Jim Eekelaar, Do Parents Have a Duty to Consult?, 114 Law Quarterly Review 337 (July 1998) (United Kingdom law) John DeWitt Gregory, Blood Ties: A Rationale for Child Visitation by Legal Strangers, 55 Washington and Lee Law Review 351 (Spring 1998) Heather Hamilton, The Defense of Marriage Act: A Critical Analysis of its Constitutionaltiy Under the Full Faith and Credit Clause, 47 DePaul Law Review 943 (Summer 1998) Ann M. Haralambie, In Whose Best Interest? Representing Children in Nondelinquency Cases, 34 Trial 42 (June 1998) Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA Law Review 1297 (June 1998) Melissa Lawton, The Constitutionality of Covenant Marriage Laws, 66 Fordham Law Review 2471 (May 1998) Cynthia A. McNeely, Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court, 25 Florida State University Law Review 891 (Summer 1998) Nancy Schmidt Roush, Beneficiary Designations After Divorce: Will the Ex-Spouse Benefit?, 25 Estate Planning 224 (June 1998) James M. Winner, Beds With Sheets But No Covers: The Right to Privacy and the Military’s Regulation of Adultery, 31 Loyola of Los Angeles Law Review 1073 (April 1998) Jennifer Wriggins, Maine’s Act to Protect Traditional Marriage and Prohibit Same-Sex Marriages: Questions of Constitutionality Under State and Federal Law, 50 Maine Law Review 345 (1998) 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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