Family Law Quarterly
Volume 49, No. 3 (Fall 2015)
Symposium on Child Support and Family Law
Please note that pursuant to the ABA's copyright and reprint policies, these articles may not be disseminated without written permission.
International Abduction of Children: Why the UCCJEA Is Usually a Better Remedy Than the Abduction Convention
By Robert G. Spector
American lawyers involved in the international movement of children often rely exclusively on the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Abduction Convention) and often use federal courts. The author discusses provisions of the Abduction Convention as well as the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA), and the 1996 Hague Convention on the Protection of Children. He concludes that reliance on the UCCJEA would provide a better remedy in many cases. State courts are capable of expeditious handling of cross-border situations. With an existing custody determination, Article 3 of the UCCJEA provides a speedy enforcement remedy that can be used not only for enforcement of custody determinations between states of the United States but also in international cases.
The Shared Custody Child Support Adjustment: Not Worth the Candle
By Karen Syma Czapanskiy
Child support guidelines in more than half of the states provide for an adjustment when a child is in shared physical custody. When compared with the outcome under the same guideline for a child in sole custody, the adjusted child support received by the primary household is generally lower, with an accompanying reduction in the standard of living in the child’s primary household. The question posed by this article is whether mandating a reduced standard of living for the child in the primary household is good policy. The answer is no; at least without significant change, the adjustment is not worth the candle. The author provides three arguments for a mandatory shared-custody child support adjustment. She concludes there is little reason to support a mandatory adjustment at least in its present form. Despite a legal history of at least three decades, studies have not demonstrated that the adjustment is worth the cost it imposes on children, whether in terms of offsetting improvements in children’s well-being or development, in terms of improved economic fairness between the parents, or in terms of enhanced parental incentives about spending time with children.
Public Sentiments about the Parenting Time Adjustment in Child Support Awards
Sanford L. Braver, Ira M. Ellman, & William V. Fabricius
The states differ substantially among themselves as to what their guideline systems specify about reducing child support awards as a function of the division of parenting time after divorce. Most adopt a “cliff-model,” whereby no reductions are accorded until the parenting time to the noncustodial parent reaches some “shared parenting” threshold, generally about 35% of the total parenting time. As another in a series of experimental investigations about the sentiments of lay citizens pertaining to family law issues, the current investigation probed this issue, as well as the allied issue of whether the reason for non-visitation might influence the child support adjustment. Results showed that the public’s judgments displayed continuous visitation adjustments to child support (as opposed to the cliff-model system instituted by most states), and that the amount of the adjustment reflected the amount the custodial parent saved due to visitation, rather than the amount the noncustodial parent spent. Of the reasons for non-visitation, only the father’s move (not the mother’s move nor her refusal to permit visitation) significantly affected the respondent’s child support judgments.
The Supervised Visitation Checklist: Validation with Lawyers, Mental Health Professionals, and Judges
Michael Saini & Rachel Birnbaum
The Supervised Visitation Checklist (SVC) was developed to address the lack of standard criteria for decision-making regarding cases that require supervised access and exchange services. Focus groups were held with sixty-six lawyers and mental health professionals in Ontario and fifteen judges in Ohio to provide feedback about the utility of the checklist. Results indicate that the checklist is useful for exploring risk and protective factors; however, judges cautioned using the tool as a rating instrument. The tool demonstrates good overall internal reliability, particularly in discerning domestic violence and substance abuse. Practice and research implications are examined, including using the results of this study to explore guidelines for recommending supervised parent-child contact.
Characteristics of Attorneys Representing Children in Child Welfare Cases
By Britany Orlebeke, Andrew Zinn, Donald N. Duquette, and Xiaomeng Zhou
While there has been considerable interest in defining and improving the legal representation that children in child welfare cases receive from their attorneys, there is only limited understanding of who these attorneys are and what they are actually doing to fulfill this role, either as a GAL, a client-directed attorney, or both. This article reports on the results of a survey of 240 attorneys practicing child representation in Georgia and Washington State and describes and discusses the implications of the distribution of attorneys’ demographics, experience, income, training, support services available to attorneys, practice attitudes, and job satisfaction.
Controversial Medical Treatments for Children: The Roles of Parents and of the State
By Lynn D. Wardle
Parental decision-making about proper medical treatment for their children has led to some significant legal controversies between parents and state authorities. The proper balance between the roles of parents and of the state concerning medical care for and protection of children is a delicate matter.
This article reviews recent examples of conflicts involving medical treatment for children and identifies five categories of state-vs.-parent conflicts involving state intrusion upon such parental decision-making. Recent legislation in California, New Jersey, Oregon, and the District of Columbia barring access to professional psychotherapy to help children overcome unwanted homosexual attraction exemplifies the state-vs.-parents’ rights conflict. The new laws raise profound questions about state interference with the constitutional rights of parents to direct the upbringing and medical treatment of their children, and about the boundaries of state parens patriae responsibilities. The article reviews the Supreme Court decisions defining the parameters of state regulation of parental control of medical treatment of their children and suggests application of those precedents in this context.
By Naomi Cahn
This is a book review of Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights by Catherine J. Ross.