Vol. 38, No. 3, Fall 2004
Symposium on International Law
Barbara Stark, Introduction: Practical Applications and Critical Perspectives in International Family Law, 38 FAM. L.Q. 475 (2004).
This article introduces the Family Law Quarterly 2004 Symposium on International Law, which reflects two trends: (1) the emergence of human rights questions that have come to the fore in family law cases, as noted in virtually all of the articles in this issue and (2) growing efforts to coordinate and harmonize divergent, often competing, systems have exposed the increasing complexity of international family law and the growing need for practical guidance such as that offered by contributors to this issue.
Berta Esperanza Hernandez-Truyol, Asking the Family Question, 38 FAM. L.Q. 481 (2004).
This article proposes a fundamental shift in the approach to international policy and law-making as well as the engagement of international relations, to include a family-sensitive, culturally inclusive, and socially friendly perspective. The author urges that a key component to all international norm-making and relations be the asking of the family question.
Ann Laquer Estin, Toward a Multicultural Family Law, 38 FAM. L.Q. 501 (2004).
This article reviews areas in which cultural and religious accommodation has become an issue in private family law disputes, and examines: (1) what happens when courts extend recognition and respect to marriages, divorces, and custody decrees that originate within a particular tradition and that differ from the more familiar legal culture; (2) how courts respond to cases that raise questions of religious law or practice; and (3) courts' accommodations that demonstrate the importance of incorporating issues of diversity into the larger framework of fundamental values.
Carol S. Bruch, The Unmet Needs of Domestic Violence Victims and Their Children in Hague Child Abduction Convention Cases, 38 FAM. L.Q. 529 (2004).
Professor Bruch reviews cases under the 1980 Hague Convention on the Civil Aspects of International Child Abduction that return children to their habitual residences even when valid defenses to return have been established. She concludes that the Convention does not support their reasoning and that they needlessly endanger children and domestic violence victims. Finally, she recommends a return to the original structure and purposes of the Convention as a means to alleviate these difficulties.
D. Marianne Blair, International Application of the UCCJEA: Scrutinizing the Escape Clause, 38 FAM. L.Q. 547 (2004).
This article surveys the various sources of law in U.S. courts that impact choice of forum, recognition, and enforcement in international custody disputes. It also focuses specifically on UCCJEA Section 105, which controls the international application of the act, and examines arguments for expansive interpretation of the "escape clause," when to do otherwise would create a credible risk of harm to a parent or child. The article ends with a discussion of scenarios in which the UCCJEA could otherwise undermine defenses in the Hague Abduction Convention, as well as provisions that support a more expansive interpretation.
Merle H. Weiner, Using Article 20, 38 FAM. L.Q. 583 (2004).
This is a companion piece to the author's previous article,Strengthening Article 20. In this article, the author sets forth the article 20 defense that a domestic violence victim might make if she were a respondent to a Hague petition in the United States. For a history of article 20 and its defenses, see Strengthening Article 20.
Nancy G. Maxwell & Caroline J. Forder, The Inadequacies in U.S. and Dutch Adoption Law to Establish Same-Sex Couples as Legal Parents: A Call for Recognizing Intentional Parenthood, 38 FAM. L.Q. 623 (2004).
This article analyzes the legal inadequacies in U.S. law to protect the parent-child relationship between a child and his or her co-parent when same-gender couples raise children together. This situation is compared to the development in Dutch law, which is more expansive than U.S. law in granting protection to a child's relationship with a co-parent; however, it is demonstrated that the Dutch provisions are inconsistent. The article strives to provide a coherent solution by the endorsement of the concept of intentional parenthood. That concept, the authors argue, provides a solution in both countries to protect the social and emotional reality of children brought up by same-gender parents, which is that they do, indeed, have two parents.
William Duncan, The Development of the New Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, 38 FAM. L.Q. 663 (2004).
This article explains background negotiations and objectives of the new Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. It draws on a number of reports and preliminary documents drawn up by the author preliminary to or in preparation for negotiations.
Marcia Yablon, The Indian Child Welfare Act Amendments of 2003, 38 FAM. L.Q. 689 (2004).
This article, the first-place winner of the 2004 Howard C. Schwab Essay Contest, analyzes the potential impact of a number of proposed amendments to the Indian Child Welfare Act. The author argues that if adopted, these amendments would significantly improve application of the ICWA by clarifying many of the issues that have caused disagreement among counts. The author believes that a glaring omission in the amendments is a reference to the controversy over the "existing Indian family doctrine."
Alyssa Rower, The Legality of Polygamy: Using the Due Process Clause of the Fourteenth Amendment, 38 FAM. L.Q. 711 (2004).
This article, the second-place winner of the 2004 Howard C. Schwab Essay Contest, examines the validity of a challenge to anti-polygamy statutes through the Due Process Clause. The author begins with a discussion of the social and legal history of polygamy in the United States, and concludes with a discussion of the implications of the Lawrence decision and the social and public policy implications of legalizing polygamy.
Matthew J. Astle, An Ounce of Prevention: Marital Counseling Laws as an Anti-Divorce Measure, 38 FAM. L.Q. 733 (2004).
This article examines the recent trend of state premarital and pre-divorce counseling laws, comparing them favorably to covenant marriage laws as an effort to curb escalating divorce rates. The author compares the many different counseling laws, which vary widely in their provisions from state to state, and argues that the most effective ones provide real incentives for couples to think seriously about making their marriage work both before it starts and before it ends. The author responds to potential constitutional challenges to counseling laws and analyzes their effectiveness from a policy standpoint.
Publication Date: January 2005