Vol. 40, No. 2, Summer 2006
Symposium on Fathers and Family Law
Deborah L. Forman, Fathers, Gender Conflict, and Family Law: A Multidisciplinary Perspective, 40 FAM. L.Q. 149 (2006).
This article introduces articles in the symposium issue on Fathers, Gender Conflict, and Family Law: A Multidisciplinary Perspective. Articles are organized around two themes: that fathers and fatherhood raise unique legal problems and that although much of family law, in theory, applies equally to mothers and fathers, many family law issues are perceived as gendered and indeed affect men and women as groups differently.
Laura Oren, Thwarted Fathers or Pop-up Pops?: How to Determine When Putative Fathers Can Block the Adoption of Their Newborn Children, 40 FAM. L.Q. 153 (2006).
This article examines the rights of unmarried fathers in the context of newborn adoptions. Even after the Lehr case suggested that putative father registries might provide a solution, uncertainties persisted. Legislation and judicial rulings have constructed putative fathers of newborns into two contrasting models: There is the "thwarted father," who was frustrated in his genuine efforts to develop a relationship with his child, and there is the "pop-up pop," who appears too late but nonetheless claims the right to disturb adoption proceedings involving his biological child.
Uncertain about the constitutional constraints, the Uniform Commissioners, legislatures, and the courts have crafted legal rules that distinguish between putative fathers who must receive notice, those who also must give their consent before their children are adopted (or have their rights terminated first), and those who do not merit any involvement at all. In the 1990s, cases arising in California, Illinois, Iowa, and Florida led courts to conflicting conclusions, all delivered under the heat of intense public scrutiny. Although the Uniform Adoption Act and the Uniform Parentage Act of 2000 suggested some mechanisms to resolve the newborn problem, a survey of recent cases in state courts shows that line-drawing is still not easy. Factors at play include, inter alia, the courts' concerns for the integrity of the judicial process and about the misbehavior of participants, for timeliness, and for the type of commitment offered by the putative father. At the same time, legislatures have rushed to enact so-called "safe haven" laws that ignore all of these factors and raise serious constitutional questions by extending a guarantee to troubled mothers that they may leave their babies in safe places anonymously.
Solangel Maldonado, Recidivism and Paternal Engagement, 40 FAM. L.Q. 191 (2006).
Part I of this article provides a brief overview of incarcerated fathers and their children, focusing on the lack of a parent-child relationship in most cases. Part II summarizes the literature on the detrimental effect of paternal disengagement on children who have lost their fathers as a result of their parents' separation or divorce. The negative effects of paternal disengagement in the context of divorce are magnified when children lose their fathers as a result of incarceration. Part III examines the reasons most incarcerated fathers have little or no contact with their children and argues that the law is party to blame. Part IV argues that children and society benefit when incarcerated fathers are involved in their children's lives and suggest ways the law can bring these father and their children together.
Cynthia C. Siebel, Fathers and Their Children: Legal and Psychological Issues of Joint Custody, 40 FAM. L.Q. 213 (2006).
The psychological and legal issues of joint custody seem to be, essentially, nonissues. Legally, fathers—biological, presumed, de facto, intended—have become increasingly a part of statutory and judicial considerations. Joint legal and/or physical custody are accepted, if not presumed, parts of custody determinations in most states. The issues that must be focused on are, first, the ways and means of educating parents about the needs of their children and about approaches to meeting those needs, especially during the divorce. Second, attention must be paid to the ways and means of further communicating to lawyers and judges the needs of children and the effects of varying custodial arrangements upon those needs. Most important is furthering the identification of high parental conflict situations, recognition of their detrimental effect on children, and consideration of arrangements that alleviate the stress upon children's continuing positive development.
Patrick Parkinson, Family Law and the Indissolubility of Parenthood, 40 FAM. L.Q. 237 (2006).
Few areas of public policy around the Western world today involve as much conflict as the law of parenting after separation. The thesis of this article is that many of these conflicts derive from the breakdown of the model on which divorce reform was predicated in the late 1960s and early 1970s. That model presupposed that divorce could end the relationship between parents in such a way that people could get on with their lives with only residual ties to their former partners. However, international trends suggest that there has been an irreversible shift towards a model of postseparation parenting which assumes that the family endures despite the separation of the parents. However, there has been no such fundamental conceptual re-evaluation which offers a new theoretical framework for policy formulation on family law issues. The consequence is that courts and legislatures around the Western world are now grappling with a tension between two irreconcilable conceptualizations of what divorce means when there are children. Resolving this tension has profound implications for family law and policy both in the United States and other countries.
Carol S. Bruch, Sound Research or Wishful Thinking in Child Custody Cases? Lessons from Relocation Law, 40 FAM. L.Q. 281 (2006).
This article examines flawed research and inaccurate reports of good research that threaten sound outcomes for children in child custody, visitation and relocation disputes. After identifying the legal issues, [the author provides an overview of credible U.S. research on children's post-separation needs and employs critiques by scholars in the relevant disciplines to expose the wishful thinking and mistaken analysis of some well-known authors whose works can mislead lawyers, custody evaluators, and courts.
Michele A. Adams, Framing Contests in Child Custody Disputes: Parental Alienation Syndrome, Child Abuse, Gender, and Fathers' Rights, 40 FAM. L.Q. 315 (2006).
This article examines the debate about Parental Alienation Syndrome (PAS) from a social scientific perspective. Drawing on social constructionist approaches and notions of frames, the author investigates the existence of a framing context over the situation in which a child, in the midst of a custody dispute, rejects the noncustodial parent. She begins by discussing social constructionism and framing perspectives that drive her conceptual analysis and then moves on to examine the social context within which the PAS frame emerged. The author presents the historical development of parental alienation syndrome and its emergence as a counter frame to allegations of child abuse in disputed custody matters. She concludes with an examination of PBS's Breaking the Silence: Children's Stories.
Publication Date: October 18, 2006