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October 02, 2018 Feature

Annual Survey of Periodical Literature

By Kendra Huard Fershee

Adjudicating Family Law

Margaret F. Brinig, Racial and Gender Justice in the Child Welfare and Child Support Systems, 35 L. & Ineq. 199 (2017). This piece uses documents from a single Indiana county’s unified family court to trace the effect of race and gender on unmarried families.

Stacy L. Brustin & Lisa V. Martin, Bridging the Justice Gap in Family Law: Repurposing Federal IV-D Funding to Expand Community-Based Legal and Social Services for Parents, 67 Hastings L.J. 5, 1265 (2016). Parents in family court overwhelmingly proceed pro se; however, in child support courtrooms, government attorneys representing the state child support agency frequently play a pivotal role. These attorneys represent the state’s ostensible interests in ensuring that children are financially supported and in preventing welfare dependence; they do not represent individual parents. The outcomes of child support proceedings have profound, long-term constitutional and financial implications for parents, yet litigants rarely understand their rights or the role of the government.

Marcia Canavan & Eva Kolstad, Does the Use of Social Media Evidence in Family Law Litigation Matter?, 15 Whittier J. Child & Fam. Advoc. 49 (2016). Examines whether or not social media evidence has made a difference in the final outcome of family law cases.

June Carbone & Naomi Cahn, Moore’s Potential, 85 Fordham L. Rev. 2589 (2017). Examines the Supreme Court opinions in Moore v. City of East Cleveland to demonstrate a foreshadowing of tension between individuals who wish to define “family” in their own terms and the state’s power to define what it considers to be a legitimate family form and who is therefore entitled to state support.

Marsha M. Dennis, Criminal Law as Family Law, 33 Ga. St. U. L. Rev. 285 (2017). Explores the criminal justice system’s reach into family law and its disproportionate and negative impact on black communities and families by weaving together criminal law, family law, and racial justice and examines the impact of community supervision on families.

Hon. Diane M. Guariglia, Dirty Deeds Done Not Dirt Cheap, 57 S. Tex. L. Rev. 503 (2016). Discusses a variety of misdeeds committed by attorneys and clients alike as well as whether the best interest of the child is a standard that is another dirty deed.

Josh Gupta-Kagan, Rethinking Family Court Prosecutors: Elected and Agency Prosecutors and Prosecutorial Discretion in Juvenile Delinquency and Child Protection Cases, 85 U. Chi. L. Rev. 743 (2018). Demonstrates how the family court prosecutors’ role has never been theorized and provides a description and critique of state laws that govern family court prosecutors.

Alicia LeVezu, The Illusion of Appellate Review in Dependency Proceedings, 68 Juv. & Fam. Ct. J. 83 (2016). Discusses the problems associated with forcing dependency hearings to fit into traditional appellate rules and recommends that every state should revise its rules of appellate procedure and create exceptions specifically for dependency proceedings.

Marsha M. Mansfield, Litigants Without Lawyers: Measuring Success in Family Court, 67 Hastings L.J. 1389 (2016). As the numbers continue to increase exponentially and access to free or low-cost legal services diminishes, courts, lawyers, legal service organizations, and law schools throughout the country continue to experiment with alternates to full-scale representation that can provide self-represented litigants with adequate legal assistance.

Jane M. Spinak, Family Defense and the Disappearing Problem-Solving Court, 20 CUNY L. Rev. 171 (2016). Presents an in-depth analysis of the Family Court Treatment Parts (FCTPs) in New York and New York City and discusses the broader lessons that can be learned from the creation of an effective system of parent representation.


Elizabeth A. Dahl, Re-Homing: The Underground Market for Adopted Children and How Current Laws Fail to Protect the Innocent, 6 Wake Forest J.L. & Pol’y 549 (2016). This article discusses the relatively new trend of “re-homing,” or taking an adopted child and moving him or her to a new home without going through the formal, legal steps. States have been slow to respond to this new crisis and an underground market for moving children has flourished as a result.

Sally Terry Green, The Law Demands Process for Rehomed Children, 69 Ark. L. Rev. 729 (2016). This article argues that the same administrative or judicial process that protects adopted children under established state law principles also must safeguard “rehomed” children, adopted children who are advertised by the adoptive parents on the Internet in efforts to “rehome” them.

Alternative Dispute Resolution

Deanne Sowter, Professionalism and Ethics in Family Law: The Other 90%, 6 J. Arb. & Mediation 1 (2016). Discusses ethics and professionalism in innovative processes, particularly what it means to behave ethically in family law alternative dispute resolution, by presenting empirical research gathered through round-table discussions with mediators, collaborative lawyers, and settlement-focused negotiators.

Artificial Reproductive Technology

Reuven Brandt, Sperm, Clinics, and Parenthood, 30 Bioethics 618 (2016). This article examines a recent approach to regulating assisted reproduction, whereby using medical intervention triggers more favorable laws governing legal parenthood and why these laws are problematic.

Megan Cahill, Reproduction Reconceived, 101 Minn. L. Rev. 617 (2016). Examines the law’s reproductive binary as it exists in judicial decisions, state and federal legislation, and academic commentary and offers conceptual and historical reasons for it.

Glenn Cohen et al., Sperm Donor Anonymity and Compensation: An Experiment with American Sperm Donors, 3 J.L. Biosci. 468 (2016). This is the first attempt to examine what would happen if the United States adopted a prohibition on anonymous sperm donation that used the most ecologically valid population, current sperm donors.

Dov Fox, Reproductive Negligence, 117 Colum. L. Rev. 149 (2017). Sets forth a novel framework of reproductive wrongs by distinguishing misconduct and introducing a right to recover.

Joseph Gregorio, Hatching a Plan Towards Comprehensive Regulations in Egg Donation, 65 DePaul L. Rev. 1283 (2016). Provides a background of the ART industry and the risks it poses to egg donors. Explains the current ART regulations in the United States at the federal and state levels and discusses deficiencies.

Seema Mohapatra, Assisted Reproduction Inequality and Marriage Equality, 92 Chi.-Kent L. Rev. 87 (2017). Examines how marriage equality post-Obergefell may impact the rights of same-sex couples to have biological children via assisted reproduction and surrogacy.

Mary Anne Pazanowski, Reproductive Rights Litigation May Spawn New Claim for Thwarting Ability to Have Child, 25 BNA’s Health L. Rep. (2016). The landmark abortion decision in Whole Woman’s Health v. Hellerstedt eclipsed quieter reproductive rights news out of the Supreme Court at the end of its term. Rye v. Women’s Care Center of Memphis MPLLC, 477 S.W.3d 235 (Tenn. 2015), involves a couple’s claim that the Tennessee Supreme Court violated their equal protection rights by refusing to recognize “disruption of family planning as either an independent cause of action or element of damages.”

Deborah Zalesne, The Intersection of Contract Law, Reproductive Technology, and the Market: Families in the Age of ART, 51 U. Rich. L. Rev. 419 (2017). This article discusses the ways in which technology has affected existing assumptions about ownership and relationships, and the ways it has changed legal statuses and the law by specifically looking at the ways in which the law, technology, and the market intersect with respect to reproductive technology.

Child Custody and Visitation

William V. Fabricius & Go Woon Suh, Should Infants and Toddlers Have Frequent Overnight Parenting Time with Fathers? The Policy Debate and New Data, 23 Psych. Pub. Pol’y & L. 68 (2017). Criticizes recommendations by social scientists that are based on unwarranted theoretical assumptions that overlook social contexts. Explores the need for a systems perspective to be integrated into family policy.

Caroline Farris, Child Custody: An Overview of Child Custody Laws, Custody Laws in Alabama, and a National Trend Towards Shared Parenting, 41 J. Legal Prof. 159 (2016). Analyzes child custody laws from different perspectives. Discusses the origins of child custody laws. Looks at the applicable Alabama child custody laws. Discusses whether the national trend towards shared parenting laws will influence the state of Alabama.

Marie-Amelie George, The Custody Crucible: The Development of Scientific Authority About Gay and Lesbian Parents, 34 L. & Hist. Rev. 487 (2016). Drawing upon published appellate and trial court opinions, unpublished trial court documents and transcripts, gay and lesbian periodicals, national and local newspapers, personal correspondence, oral history interviews, and other primary sources, this article explains how these research agendas developed, establishing how custody disputes served as a crucible for the creation of and contests over scientific authority on gay and lesbian families.

Amy E. Halbrook, Custody: Kids, Council, and the Constitution, 12 Duke J. Const. L. & Pub. Pol’y 179 (2017). Explores whether a child’s right to traditional counsel should be extended to children in the private custody context. It concludes that children’s constitutional rights require traditional client-directed advocacy by attorneys in custody matters.

Maritza Karmely, Presumption Law in Action: Why States Should Not Be Seduced into Adopting a Joint Custody Presumption, 30 Notre Dame J.L., Ethics & Pub. Pol’y, 321 (2016). The author contends that while a joint custody presumption facially appears equitable and simplistic, its application in the practice of law increases the likelihood of decisions adverse to the best interests of children.

Sapna Kishnani, Working Towards the Welfare of Our Children: An Argument for a Rebuttable Presumption Against Awarding Abusers Custody and Other Non-Legislative Proposals, 22 Cardozo J.L. & Gender 287 (2016). This article argues too many domestic abusers still retain custody rights to their children, who are then at risk themselves from abuse and a host of detrimental effects. To solve this, the author proposes a rebuttable presumption against awarding abusers custody of their children and proposes using an existing state statute as a model for the nation.

Elena Langan, The Elimination of Child “Custody” Litigation: Using Business Branding Techniques to Transform Social Behavior, 36 Pace L. Rev. 375 (2016). Discussing how rebranding principles, already being used to alter social behavior in other nonconsumer contexts, could be utilized to accomplish the legislative goal to reduce litigation as well as diminish animosity in custody cases.

Jeffrey A. Parness, International Child Relocations from U.S. States, 56 U. Louisville L. Rev. 1 (2018). Reviews the challenges in determining custody rights due to the expanding U.S. state laws on de facto (and comparable) parentage and on nonparent childcare orders over parental objections.

Walter R. Schumm et al., Assessing the History of Exaggerated Estimates of the Number of Children Being Raised by Same-Sex Parents as Reported in Both Legal and Social Science Sources, 30 BYU J. Pub. L. 277 (2016). Questions the validity of the estimates of the number of children being raised by same-sex couples and the citations in legal and social science journals.

Child Protection

Valerie Brummel, Parental Kidnapping, Criminal Contempt of Court, and the Double Jeopardy Clause: A Recommendation for State Courts, 106 J. Crim. L. & Criminology 315 (2016). Argues that the Double Jeopardy Clause should not apply to contempt of court and child kidnapping so that courts can better deter and punish child kidnapping.

Pablo J. Davis, Spiritual-Treatment Exemptions to Child Neglect Statutes—State v. Crank: Vagueness and Establishment Clause Challenges to Selective Prosecution of Faith-Healing Parents, 46 U. Mem. L. Rev. 761 (2016). Discusses whether justice is served when states allow parents to treat their children through prayer but then prosecutes them for child neglect. It focuses on court cases that have made decisions on this issue and the effect.

Peggy C. Davis, Little Citizens and Their Families, 43 Fordham Urban L.J. 1 (2016). Examines the usefulness of the concept of human dignity in calibrating governments’ and families’ competing authority over, and complementary duty towards, their children.

Maxine Eichner, Bad Medicine: Parents, the State, and the Charge of “Medical Child Abuse”, 50 U.C. Davis L. Rev. 205 (2016). Explains medical child abuse and the process by which charges are brought forth. Argues that medical child abuse standards should not be the basis by which abuse cases are handled and that existing child abuse law should govern.

Lisa A. Kelly & Alicia LeVezu, Until the Client Speaks: Reviving the Legal-Interest Model for Preverbal Children, 50 Fam. L.Q. 383 (2016). Explores the concept of legal-interest advocacy as an alternative to best-interest representation for nonverbal clients and outlines how legal-interest advocacy can address the major criticisms of best-interest representation while ensuring that children are represented until they can speak for themselves.

Brittany Raia, Protecting Vulnerable Children in Indian Country: Why and How the Violence Against Women Reauthorization Act of 2013 Should Be Extended to Cover Child Abuse Committed on Indian Reservations, 54 Am. Crim. L. Rev. 303 (2017). Argues that the protections in the Violence Against Women Reauthorization Act (VAWA) of 2013 should be extended to cover child abuse committed by non-Indians on Indian land and suggests that “Child Abuse Extension” to VAWA 2013 should be designed to address child abuse on Indian land and close the jurisdictional gap that allows non-Indians to abuse Indian children with impunity.

Kele Stewart & Vanessa Thorrington, Collaboration Between Schools and Child Welfare Agencies in Florida to Address the Educational Needs of Children in Foster Care, 17 Fla. Coastal L. Rev. 241 (2016). Provides research from a study of nine counties in Florida about their interagency collaboration and information sharing. Discusses information about the educational outcomes of children in foster care and identifies the factors that contribute to successful interagency collaboration.

Jane K. Stoever, Parental Abduction and the State Intervention Paradox, 92 Wash. L. Rev. 861 (2017). Exposes the problem of domestically abusive abductors, utilizes social science data to demonstrate the state’s failure to implement relevant laws, and features a fifty-state survey that reveals areas for reform.

Child Support

Leslie J. Harris, Child Support for Post-Secondary Education: Empirical and Historical Perspectives, 29 Am. J. Matrimonial L. 299 (2017). Looks at the need for post-majority children to receive child support, the laws states have implemented allowing courts to require post-majority support, whether such laws have had a measurable effect, why more states do not have the laws, and whether current circumstances support a recommendation that other states enact such laws.

Elizabeth Patterson, Turner in the Trenches: A Study of How Turner v. Rogers Affected Child Support Contempt Proceedings, L. & Soc’y: Fam. L., Rel. & Disp. Resol. eJournal (2017). The article reviews how the Supreme Court’s decision not to incarcerate for contempt those who were unable to pay child support ended up changing administrative policies to preclude judicial hearings altogether.

Noah D. Zatz, A New Peonage? Pay, Work, or Go to Jail in Contemporary Child Support Enforcement and Beyond, 39 Seattle U. L. Rev. 927 (2016). Forcing citizens to work for a private business in order to pay for child support is a form of peonage similar to the kind that Harlan opposed in Robertson v. Baldwin.


Albertina Antognini, The Law of Nonmarriage, 58 B.C. L. Rev. 1 (2017). Discusses the distribution of property difficulties couples face at the end of a relationship that is nonmarital and argues that courts should move beyond the “marriage-nonmarriage dyad.”

Courtney G. Joslin, The Gay Rights Canon and the Right to Nonmarriage, 97 B.U. L. Rev. 425 (2017). Discusses the recent LGBT successes and the effects some believe these to have had on the institution of marriage. Further, the article offers a rereading of Obergefell that extends the constitutional protections to those living outside marriage.

Pamela Laufer-Ukeles & Shelly Kreiczer-Levy, Family Formation and the Home, 104 Ky. L.J. (2016). This article considers the benefits and risks of home sharing in sexual- and nonsexual-based relationships and the different possibilities of how the law can recognize and support the role home sharing plays in creating familial lives.

Robin F. Wilson & Heidi L. Brady, The Precarious Status of Domestic Partnerships for the Elderly in a Post-Obergefell World, 24 Elder L.J. 49 (2016). Looks at the domestic partnership laws created by states and asks whether the reasons for opening domestic partnerships to the elderly continue to exist after Obergefell rendered moot the need for nonmarital statuses for gay couples.


Noa Ben-Asher, In the Shadow of a Myth: Bargaining for Same-Sex Divorce, 78 Oh. St. L.J. 1345 (2018). Shows how the myth of egalitarianism undermines current bargaining for same-sex divorce. Proposes a solution that argues that the legal actors who participate in same-sex divorce, including lawyers, mediators, courts, and the parties themselves, should reject divorce exceptionalism and apply ordinary divorce rules.

Jennifer Bjurling, Bringing a Lamb to Slaughter: How Family Law Attorneys Unknowingly Lead Clients to Financial Disaster in the Negotiation of a Divorce Stipulation, 40 Vt. L. Rev. 939 (2016). A creditor-spouse whose debt is discharged in bankruptcy can be left destitute. The equitable division of property contemplated by the settlement agreement implodes, and any concept of a post-divorce fresh start is dashed.

Paul Carrier, Potemkin’s Village on the Divorce River: The Façade of Macar v. Macar, 3 W. Mich. U. T.M. Cooley L. Rev. 295 (2016). Argues that Fed. R. Civ. Proc. 1.540(b) is being overused or loosely applied as a rule of convenience and therefore is not fully in compliance with statutory requirements.

Sally F. Goldfarb, Divorcing Marriage from Sex: Radically Rethinking the Role of Sex in Marriage Law in the United States, 6 Onati Socio-Legal Series (2016). Examines the legalization of same-sex marriage in terms of society’s focus on heterosexual intercourse.

Ralph Peeples & John Sarratt, Sinn Fein Amhain: Taking Collaborative Law Beyond Divorce, 52 Wake Forest L. Rev. 139 (2017). Collaborative law often is used in the family court system but should be expanded to other areas of law.

Domestic Relations

Stanley W. Abraham, Keeping Kids First: Trial Court Discretion and the Best Interest of the Child in Light v. D’Amato, 68 Me. L. Rev. 347 (2016). Critiques the Maine Supreme Judicial Court’s 2014 decision in Light v. D’Amato, which held that conditional grants of residency in a divorce judgment regarding custody do not constrain a parent’s right to travel, on the grounds that the court should have recognized the best interest of the child as a compelling state interest sufficient to constrain a parent’s right to relocate, rather than adopting an amorphous balancing test that family courts will struggle to implement.

Susan Frelich Appleton, The Forgotten Family Law of Eisenstadt v. Baird, 28 Yale J.L. & Feminism 1 (2016). This article reclaims focus on the famous Eisenstadt v. Baird decision, arguing its legacy lies in emphasizing the individual, not marriage, as much of family law does. The author exposes some areas of contradiction that define family law today in light of Eisenstadt.

Carmen Garcimartin, Regulating Marriage in a New Environment, 30 BYU J. Pub. L. 217 (2016). Conveying reflections on the crossroads of the regulation of marriage issue, as well as the perspective on the regulation of marriage in the future.

Leslie J. Harris, Family Policy After the Fragile Families and Relationship Dynamic Studies, 35 J.L. & Ineq. 223 (2017). This article addresses policies that encourage children’s biological parents to stay together or work closely together if separated and points out potential flaws in this way of thinking.

Suzanne A. Kim & Katherine A. Thurman, Social Rites of Marriage, 17 Geo. J. Gender & L. 745 (2016). Reviews literature regarding the inquiry into the social experiences of same-sex couples in marriage. Sets forth the methodology for the research discussed and explores findings and analysis.

Carlos Martinez de Aguirre, The Evolution of Family Law: Changing the Rules or Changing the Game?, 30 BYU J. Pub. L. 231 (2016). Proposes to shift the focus of family law towards children in order to recover the core meaning of marriage, as opposed to the current trend, which is focusing on the evolution of legal marriage.

James E. Pfander & Emily K. Damrau, A Non-Contentious Account of Article III’s Domestic Relations Exception, 92 Notre Dame L. Rev. 117 (2016). Explores the domestic relations exception and connects its origins to the Article III distinction between cases and controversies. Explains why Article III courts can issue decrees at the core of the domestic relations exception when the matter at hand implicates federal law.

Mark Strasser, Marriage, Divorce, and Domicile, 85 UMKC L. Rev. 145 (2016). Discusses the traditional approach to marriage recognition as reflected in the Restatements of the Conflict of Laws, clarifying some of the positions. Explores the limitations imposed by federal law on state recognition practices, noting some of the difficulties in discerning what those limitations are and whether they are statutorily or constitutionally imposed.

April R. Trees & Jennifer E. Ohs, Making Sense of Family Communication About and at the End of Life: Family Communication Around End-of-Life Planning and Decision Making, 10 St. Louis U. J. Health L. & Pol’y 19 (2016). Discusses the theory and research about family communications that may offer insight into how family members navigate end-of-life decisions and provides recommendations for practice associated with each area of research and theory.

Domestic Violence

Johanna K. Bachmair, Asylum at Last? Matter of A-R-C-G-’s Impact on Domestic Violence Victims Seeking Asylum, 101 Cornell L. Rev. 1053 (2016). Analyzes Matter of A-R-C-G-’s potential impact on domestic violence-based asylum claims in the United States and, more specifically, on the proposed amendments to the Immigration and Naturalization Services (INS) regulations governing asylum and withholding eligibility.

Sara R. Benson, Assisting Rural Domestic Violence Victims: The Local Librarian’s Role, 108 L. Libr. J. 237 (2016). Examines the specific needs of domestic violence victims in rural areas where shelters and legal services are often limited.

Robert L. Bolton, Strangulation as a Felony Offense: A New Penalty Under W. Va. Code § 61-2-9D, 120 W. Va. L. Rev. Online 18 (2017). Discusses a new law that criminalized strangulation as a felony offense under state law. The purpose of this article is to compare the approaches of other jurisdictions on what constitutes “bodily injury” and also some proposals for future interpretations and revisions to the law.

Dale Margolin Cecka, It’s Time for the Fourth Circuit to Rethink Deshaney, 67 S.C. L. Rev. 679 (2016). Each year, the media uncover sex abuse scandals that implicate educational institutions. Civil actions are slowly making their way to federal courts, through 42 U.S.C. § 1983 claims, Title IX, and other causes of action. In 2015, the Fourth Circuit heard Doe v. Rosa, in which the parent plaintiffs sought to extend civil liability to the Citadel’s president for failing to protect their minor sons from sex abuse inflicted by one of the Citadel’s employees.

Dana Harrington Conner, Polyvictimized Children & Intimate Partner Violence: Promoting Healthy Outcomes for Children, 22 Widener L. Rev. 215 (2016). This article explores how available research can improve outcomes for children exposed to intimate partner violence through a polyvictimization lens.

Ryan D. Davidson and Connie J. A. Beck, Using Couple-Level Patterns of Intimate Partner Violence to Predict Divorce Outcomes, 23 Psych. Pub. Pol’y & L. 85 (2017). Explores intimate partner violence (IPV) and divorce outcomes alleging IPV. Argues that the establishment of early identification policies and case management can reduce the cost of judicial resources.

Allan R. De Jong, Domestic Violence, Children, and Toxic Stress, 22 Widener L. Rev. 201 (2016). This article discusses the severe effects domestic violence has on children and provides a medical background for understanding the urgency of appropriate intervention in situations where domestic violence occurs in the presence of children.

Caroline Forell, Domestic Homicides: The Continuing Search for Justice, 25 Am. U. J. Gender Soc. Pol’y & L. 1 (2017). Addresses the injustice of domestic homicide defenses and offers the solution of looking at a recent Australian provision that provides a presumption of self-defense for domestic violence survivors who kill their batterers.

Olivia S. Garber, Animal Abuse and Domestic Violence: Why the Connection Justifies Increased Protection, 47 U. Mem. L. Rev. 359 (2016). Encourages Tennessee lawmakers to implement new laws and improve existing state laws regarding animal and human protections from the often-interrelated issues of animal abuse and domestic abuse.

Leigh Goodmark, Should Domestic Violence Be Decriminalized?, 40 Harv. J.L. & Gender 53 (2017). Discusses the way criminal punishments for domestic violence have contributed to mass incarceration and looks at alternatives to criminalizing this behavior.

Emily C. Jeske, Punishing Victims for Being Victims: Aiding and Abetting Violations of Protective Orders, 7 Wake Forest J.L. & Pol’y 275 (2017). Discusses the issue of charging victims with aiding and abetting in a domestic violence case and how that represents a misunderstanding of abusive relationships.

Laurie S. Kohn, The False Promise of Custody in Domestic Violence Protection Orders, 65 DePaul L. Rev. 1001 (2016). This article explores the disconnect between the power and will to enforce the custody and parenting time provisions of protection orders through criminal mechanisms.

Monique Kreisman, United States v. Bryant, Federal Habitual Offender Laws, and the Rights of Defendants in Tribal Courts: A Better Solution to Domestic Violence Exists, 39 Campbell L. Rev. 205 (2017). Discusses the right to counsel in federal and tribal jurisdictions and the epidemic of domestic violence in tribal territories. Proposes different solutions in order to increase fairness for all in the system.

Trevor L. Larkin, Sex and Gender Violence in Asylum Law: Expanding Protection Beyond Domestic Violence, 9 Drexel L. Rev. 227 (2016). Analyzes the deficiencies of asylum law with respect to victims of sex and gender violence and recommends revising asylum law and policy to expand asylum protection to sufferers of sex and gender violence.

Margo Lindauer, “Please Stop Telling Her to Leave.” Where Is the Money: Reclaiming Economic Power to Address Domestic Violence, 39 Seattle U. L. Rev. 1263 (2016). The author argues that economic dependence is a critical factor in violence prevention. For many victims of domestic violence, the economic entanglement with an abusive partner is too strong to sever contact without another source of economic support. The author claims the article is a thought experiment in economic justice; it asks the question: Is there a way to provide outside economic support for a victim of violence fleeing a battering partner?

Jacqueline Mabatah, Blaming the Victim? The Intersections of Race, Domestic Violence, and Child Neglect Laws, 8 Geo. J.L. & Mod. Crit. Race Persp. 355 (2016). Explores the relationship between race, gender, domestic violence, and child neglect laws through a critical race feminist approach and argues that a framework should be adopted that shifts the focus away from what’s psychologically wrong with women who stay to why men are able to get away with persistent battery and face few legal ramifications.

Elizabeth L. MacDowell, From Victims to Litigants, 67 Hastings L.J. 1299 (2016). The study investigated how self-help assistance provided by partnerships between courts and nongovernmental organizations implicates advocacy and access to justice for domestic violence survivors. The primary finding is that self-help programs may inadvertently work to curtail, rather than expand, advocacy resources.

Robert M. McGee, How Acceptable Is Wife Beating in the U.S.A.?: An Empirical Study, Fayetteville St. U. 1 (2017). Measures the extent of support for wife beating in U.S. reports, as well as the results from the examination of demographic variables such as gender, age, social class, marital status, education level, and geographic location.

Marilyn M. McMahon & Paul McGorrey, Criminalizing Controlling and Coercive Behavior: The Next Step in the Prosecution of Family Violence, 41 Alt. L.J. 98 (2017). Analyzing criminal law in England that has begun criminalizing controlling or coercive behavior without violence.

Joan S. Meier, Dangerous Liaisons: Social Science and Law in Domestic Violence Cases, Geo. Wash. U. L. Sch. 1 (2017). This article discusses the differences between law and social science. The author points out that the courts often ignore or minimize parents’ past domestic violence and discusses empirical research.

Joan S. Meier & Sean Dickson, Mapping Gender: Shedding Empirical Light on Family Courts’ Treatment of Cases Involving Abuse and Alienation, 35 L. & Ineq. 311 (2017). This article focuses on how family courts treat abuse and alienation claims and provides strong critiques based on their pilot study.

Joann Sahl, Can We Forgive Those Who Batter? Proposing an End to the Collateral Consequences of Civil Domestic Violence Cases, 100 Marq. L. Rev. 527 (2017). Analyzes the effects of civil protection orders on the batterer and offers a solution to seal these CPOs from public view.

Anastasia M. Sotiropoulos, Words Can Cut the Deepest Wounds: Why the Family Medical Leave Act Should Be Amended to Expand Protection for Victims of Domestic Violence, 65 DePaul L. Rev. 1361 (2016). The author argues that, rather than relying on a state-by-state approach, Congress should amend the FMLA to provide broader protections for victims of domestic violence that incorporate factors of emotional and psychological abuse.

Kelly Gaines Stoner & Lauren Van Schilfgaarde, Addressing the Oliphant in the Room: Domestic Violence and the Safety of American Indian and Alaskan Native Children in Indian Country, 22 Widener L. Rev. 239 (2016). This article discusses how the holding in Oliphant, that tribal courts lack subject matter jurisdiction over non-Indians committing crimes in Indian country, and section 904 of the Violence Against Women Act essentially fail to adequately protect child victims of domestic violence and ancillary crimes against American Indian and Alaska Native children in Indian Country. This article calls for an amendment to section 904 in order to ensure better protections to these individuals.

Deborah M. Weissman, Countering Neoliberalism and Aligning Solidarities: Rethinking Domestic Violence Advocacy, 45 Sw. L. Rev. 915 (2016). This article discusses domestic violence within a larger analytical frame of the political economy, seeking to extend institutional responsibility for violence beyond the criminal justice system and to reform common bonds with other social justice initiatives. The article argues that improved remedies for domestic violence victims lie within the reform of the political economy.


Katharine K. Baker, The DNA Default and Its Discontents: Establishing Modern Parenthood, 96 B.U. L. Rev. 2037 (2016). Demonstrates how the DNA default necessarily magnifies the legal and social importance of sex, discounts the legal significance of women’s reproductive labor, and marginalizes all children living outside the binary, heteronormative model that a genetic regime necessarily edifies.

Monica C. Bell, Situational Trust: How Disadvantaged Mothers Reconceive Legal Cynicism, 50 L. & Soc’y Rev. 314 (2016). Drawing on interviews with poor African American mothers in Washington, D.C., this article develops an alternative conception of cultural orientations about law: situational trust.

Mary Anne Case, After Obergefell: Missing Sex Talk in the Supreme Court’s Same-Sex Marriage Cases, 84 UMKC L. Rev. 675 (2016). The Court in Obergefell does not properly discuss the importance of equality among the sexes or, in other words, the prohibition of discrimination in law on grounds of sex.

David B. Cruz, After Obergefell: Transgender Rights After Obergefell, 84 UMKC L. Rev. 693 (2016). Obergefell offers key support for the propositions that the Constitution protects peoples’ ability to define and express their gender identities and shape their own destinies and observes that courts can hold the Constitution to protect this gender autonomy without having to reason within the narrowly specified, historically cabined parameters for substantive due process rights.

Shamala Florant, A Chance for Positive Change: Exploring the Legal Hurdles Putative Fathers Face in the 21st Century, 19 Scholar 57 (2016). Argues courts should allow unwed fathers to exercise their rights and give them the same exclusivity to custody and presumption of parental fitness as afforded unwed mothers. Explores case law regarding fathers’ rights.

Jennifer S. Hendricks, Fathers and Feminism: The Case Against Genetic Entitlement, 91 Tul. L. Rev. 473 (2017). Suggests that rather than promote the superficial theory of equality that drives the genetic definition of parenthood, feminists should seek to restore and strengthen the focus on caretaking and work for reforms that protect existing parent-child relationships instead of patriarchal demands for authority over women and children.


Wesley C. Brockway, Rationing Justice: The Need for Appointed Counsel in Removal Proceedings of Unaccompanied Immigrant Children, 88 U. Colo. L. Rev. 179 (2017). Describes the influx of children coming into the United States via the southwestern border and children seeking asylum in the United States, and outlines how the children go through the U.S. court system to be removed from the United States and sent back to their country of origin, despite grave danger, all without counsel representing them during this process.

Beth Caldwell, Deported by Marriage: Americans Forced to Choose Between Love and Country, 82 Brook. L. Rev. 1 (2016). Argues that the Constitution should protect the marriages of binational couples in the same way it protects all other marriages and that strict scrutiny should apply to deportations of the husbands and wives of U.S. citizens.

Violetta K. Haralampieva, The U.S. Asylum Pro Se-Dures for Unaccompanied and Undocumented Children: Cost and Fear v. Child’s Best Interest, 25 B.U. Pub. Int. L.J. 43 (2016). Looks at the interests in providing undocumented and unaccompanied children the protection they have a right to by law, and contrasts that with competing interests of U.S. politics. It looks at the flawed asylum procedure currently in place and the reasons it remains this way.

Laila Hlass, Minor Protections: Best Practices for Representing Child Migrants, 47 N.M. L. Rev. 247 (2017). Discusses the need for immigrant children entering the United States to have representation. It further looks at ways this problem could be addressed.

Anita Ortiz Maddali, Left Behind: The Dying Principle of Family Reunification Under Immigration Law, 50 U. Mick. J.L. Reform 107 (2016). This article examines the origins and objectives of the principle of family reunification in immigration law and relies on legal, scholarly research to reveal how contemporary immigration law and policy have diluted the principle for many families that do not fit the nuclear family model.

Medha D. Makhlouf, Theorizing the Immigrant Child: The Case of Married Minors, 82 Brook. L. Rev. 1603 (2017). U.S. immigration laws provide special protections, benefits, and forms of relief for children. They also provide certain marriage-based benefits and exclusions.

Sarah Rogerson, The Politics of Fear: Unaccompanied Immigrant Children and the Case of the Southern Border, 61 Vill. L. Rev. 843 (2016). This article discusses the abuse and neglect of unaccompanied children claiming refugee status at the U.S.-Mexico border. Further, it examines the shift from immigration law and policy being shaped by fear, to now being shaped by more humanitarian-focused and individual-rights arguments.

Rachel Gonzalez Settlage, Uniquely Unhelpful: The U Visa’s Disparate Treatment of Immigrant Victims of Domestic Violence, 68 Rutgers U. L. Rev. 1747 (2016). Discusses the unique and substantial obstacles immigrants face, particularly in regard to domestic violence, because of the difficulty in obtaining protection.


Annette R. Appell, Gendered Due Process of Juvenile Justice, 53 Wash. J.L. & Pol’y 201 (2017). Analyzes the differences in the processes and protections of the child protection system versus the juvenile delinquency system and describes how this created a gendered justice system.

Maxine Eichner, Bad Medicine: Parents, the State, and the Charge of “Medical Child Abuse,” 50 U.C. Davis L. Rev. 205 (2016). Explains medical child abuse and the process by which charges are brought. Argues that medical child abuse standards should not be the basis by which abuse cases are handled and that existing child abuse law should govern.

Anne Elizabeth Goodgame, Best to Be Seen and Heard: A Child’s Right to Appeal Termination of Parental Rights, 50 Ga. L. Rev. 1269 (2016). Argues that children should be allowed to appeal termination orders. Discusses how the growing recognition of children’s rights is applied to children involved in family law cases, specifically termination of parental rights hearings, and argues that implementation of statutory and case law can remedy the problem.

Lorie S. Goshin, An International Human Rights Perspective on Maternal Criminal Justice Involvement in the United States, 23 Psych. Pub. Pol’y & L. 53 (2017). Discusses the concerns of maternal incarceration and its intergenerational implications and brings attention to the unique concerns of incarcerated pregnant and parenting women in the criminal justice system.

Olivia Horton, Mind the Gap: Theorizing Asymmetry Between Parental Involvement and Statutory Rape Laws, 28 Yale J.L. & Feminism 171 (2016). Within a single state, the age at which a minor can independently obtain an abortion rarely aligns with the age at which she can legally have sex. Additionally, the law currently exhibits a bias toward procreative over nonprocreative sex, motherhood over nonmotherhood. This article explores the problems with this, including construing freedom of choice and the law rewarding stereotypical female roles.

Christina Nguyen, Monitoring Your Teenagers’ Online Activity: Why Consent or Disclosure Should Be Required, 15 Seattle J. Soc. Just. 261 (2016). Explores the prevalence of teenagers’ use of electronic devices and the monitoring programs available to parents. Discusses privacy legislation that could be applied to teenagers in this area.

Candice L. Rucker, Whose Line Is It Anyway?: McDonald v. McDonald and the Substantive Use of the Guardian Ad Litem’s Testimonial Hearsay in Mississippi Chancery Court Proceedings, 35 Miss. C. L. Rev. 101 (2016). Explains how hearsay testimony from a guardian ad litem’s report should be substantively admissible in chancery court and discusses the McDonald v. McDonald case in Mississippi, which held that hearsay testimony in the guardian ad litem’s report is not admissible. Provides a reform proposal, which includes text for potential legislation.

Marital Agreements

Peter T. Leeson & Joshua Pierson, Prenups, 45 J. Legal Stud. 367 (2016). This article uses data on the Uniform Premarital Agreement Act adoption and investigates the effects prenuptial contracts have had on divorce rates.


Jessica Feinberg, Gradual Marriage, 20 Lewis & Clark L. Rev. 1 (2016). This article sets forth a comprehensive proposal for an improved legal framework governing marriage that is based upon the concept of spousal rights and obligations arising gradually over the course of a marriage. Under the proposed system, various marriage levels would be established, each providing a package of spousal rights and obligations tailored to marriages that have reached that particular level under the default rules.

Marriage Equality

Sandra Alcaide & Lynne Marie Kohm, Obergefell: A Game-Changer for Women, 14 Ave Maria L. Rev. 101 (2016). When the Supreme Court of the United States expanded marriage to same-sex couples in Obergefell, that decision became a game-changer for women in three areas. First, Obergefell changes women’s relationships with men. Second, it affects and alters equality for women in many ways. Third, Obergefell modifies the relationship between women and their children by removing a required complementary party of opposite gender in parenting, thus loading a double-burden of parenting on a greater number of mothers.

Susan Frelich Appleton, Obergefell’s Liberties: All in the Family, 77 Ohio St. L.J. 919 (2016). Debates whether Fourteenth Amendment liberty only protects against interference by the state or whether it also can compel affirmative support or government action and explores the relationship between constitutional law and family law that the Court’s liberty rulings have forged.

Carlos A. Ball, Bigotry and Same-Sex Marriage, 84 UMKC L. Rev. 639 (2016). It is unfortunate, but perhaps not surprising given the importance of the issues at stake and the passions and emotions they engendered, that some unfounded bigotry-related accusations emanated from both sides during the same-sex marriage debates.

Autumn L. Bernhardt, The Profound and Intimate Power of the Obergefell Decision: Equal Dignity as a Suspect Class, 25 Tul. J.L. & Sexuality 1 (2016). Provides an overview of the constitutional analysis in Obergefell, focuses attention upon the Supreme Court’s discussion of the four factors of the suspect class doctrine, and also celebrates Obergefell’s role in changing the American legal and cultural landscape.

Mary L. Bonauto, Equality and the Impossible—State Constitutions and Marriage, 68 Rutgers U. L. Rev. 1481 (2016). Discusses the origins of the state constitutional litigation strategy on marriage for same-sex couples, the progression of the litigation, and the eventual move to federal litigation.

Jessica Brown, Human Rights, Gay Rights, or Both? International Human Rights Law and Same-Sex Marriage, 28 Fla. J. Int’l L. 217 (2016). Discusses the background of promoting positive LGBT rights, the significance of marriage as a legal and cultural institution, and key reasons LGBT persons seek the benefits of marriage. Argues that the protection of marriage equality is a crucial source of legal and cultural benefits for LGBT persons.

June Carbone & Naomi Cahn, Marriage and the Marital Presumption Post-Obergefell, 84 UMKC L. Rev. 663 (2016). This essay concludes that the marital presumption should apply to same-sex couples at least to establish a presumption that they will assume joint responsibility for any children born into the marriage but that the failure of the states to agree on the policies or preconditions for parental recognition will prevent any uniform national resolution of who counts as a legal parent. The essay thus predicts that parenthood will continue to be a battlement for the recognition of families established by same-sex parents.

Peggy Cooper Davis, Challenge and Tradition, 19 N.Y.U. J. Leg. & Pub. Pol’y 563 (2016). This article discusses why Obergefell is a human rights victory and describes just some of the ways the institution of marriage is being reshaped as greater deference is given to the liberty interests of all people in their choices about intimacy and family formation.

Suzanne B. Goldberg, Reflections on Obergefell and the Family-Recognition Framework’s Continuing Value, 84 UMKC L. Rev. 707 (2016). The “family recognition” framework underlying earlier advocacy has value going forward, even after the Supreme Court’s ruling in favor of nationwide marriage equality.

Frances Hamilton, Strategies to Achieve Same-Sex Marriage and the Method of Incrementalist Change, 25 J. Transnat’l L. & Pol’y 121 (2015–2016). Explores an appropriate strategy for enacting a lasting change for those favoring same-sex marriage. Recommends slow incremental changes and discusses possible backlashes for jurisdictions that do not implement these changes.

Krisin Haule, It’s Complicated: The Unusual Way Obergefell v. Hodges Legalized Same-Sex Marriage, 49 Loy. L. Rev. 561 (2016). Argues that the Obergefell decision is ambiguous and that there are potential ramifications because of the ambiguity, while offering three other alternatives the Court could have used to avoid this problem.

Steven J. Heyman, A Struggle for Recognition: The Controversy over Religious Liberty, Civil Rights, and Same-Sex Marriage, 14 First Amend. L. Rev. 1 (2015). Explores the conflict between religious liberty and civil rights in connection with same-sex marriage.

Aaron M. House, Obergefell’s Impact on Wrongful Death in Missouri and Kansas, 84 UMKC L. Rev. 733 (2016). When facing these arguments from defendants, attorneys should look to the presumptive parent statutes, the Equal Protection Clause, and equitable adoption as bases upon which such claims for wrongful death or loss of consortium should be allowed to proceed.

Suzanne A. Kim, Relational Migration, 77 Ohio St. L.J. 981 (2016). Takes the historical occasion of the Supreme Court’s decision in Obergefell v. Hodges to consider a particularly salient example of this kind of change—”relational migration,” the process of shifting from one relationship status to another.

Nancy J. Knauer, Religious Exemptions, Marriage Equality, and the Establishment of Religion, 84 UMKC L. Rev. 749 (2016). Religious marriage exemptions raise important questions concerning the role of religious conviction in public life and the nature of civil rights protections that are currently obscured under the banner of “conflicting rights.”

Regina M. Lambert & Abby R. Rubenfeld, Deviant to Dignified: From Campbell v. Sundquist to Tanco v. Haslam—The Progression of LGBT Rights & Marital Equality in Tennessee, 83 Tenn. L. Rev. 371 (2016). Addresses the perceptual transformation of the gay individual from a “deviant” societal view to one of “dignity” as acknowledged by the U.S. Supreme Court.

Lydia E. Lavelle, WWJD?: What the Judiciary Should Do About North Carolina’s Magistrate Recusal Bill, 19 J. Gender Race & Just. 279 (2016). Analyzes a North Carolina law based on “religious freedom” that allows magistrates to opt out of performing marriages and the law’s impact on marriage equality.

David Pimentel, The Impact of Obergefell: Traditional Marriage’s New Lease on Life?, 30 BYU J. Pub. L. 251 (2016). Argues that the Obergefell decision may signal a resurgence of marriage in our society, particularly if states are persuaded to stop recognizing alternatives to marriage, such as domestic partnerships, now that same-sex couples have full access to marriage.

Jane S. Schacter, Obergefell’s Audiences, 77 Ohio St. L.J. 1011 (2016). Analyzes the implications of Obergefell with respect to two types of audiences: (1) the legal audience and (2) the public audience.

Glen Staszewski, Obergefell and Democracy, 97 B.U. L. Rev. 31 (2017). Evaluates Obergefell from the perspective of deliberative democratic theory and concludes that while the Court could reasonably have waited to resolve the constitutional question or invalidated the state laws at issue on narrower grounds, the Court’s decision was democratically legitimate based on the relevant legal, moral, and sociological considerations.

Justice John Paul Stevens, Two Thoughts About Obergefell v. Hodges, 77 Ohio St. L.J. 913 (2016). Identifies two aspects of the Obergefell decision that clarify our understanding of the meaning of the Constitution. First, the “original intent” of the Framers and the original public understanding of the constitutional text do not always identify the current meaning of its provisions; and second, the rejection of Lochner v. New York, while broadening the power of government to regulate economic affairs, left intact the underlying doctrine of substantive due process.

Mark Strasser, Obergefell, Dignity, and the Family, 19 J. Gender, Race & Just. 317 (2016). Discusses the Supreme Court’s analysis of the right to marry in particular and substantive due process jurisprudence more generally and the Court’s equal protection analysis in Obergefell.

Lee-Ford Tritt, Moving Forward by Looking Back: The Retroactive Application of Obergefell, Wis. L. Rev. 873 (2016). Explores Obergefell and the history of same-sex marriage in the United States. Examines federal courts’ existing retroactivity jurisprudence and limitations, and reviews other case law regarding same-sex marriage.

Megan M. Walls, Obergefell v. Hodges: Right Idea, Wrong Analysis, 52 Gonz. L. Rev. 133 (2016–2017). Explains that the Obergefell majority correctly concluded that same-sex marriage is a right that cannot be abridged by the states but that the Court erred in failing to identify sexual orientation as a suspect class. Sets forth the standards used by the Court in identifying suspect classes and applying strict scrutiny to discriminatory laws and contrasts them with the methods used in Obergefell.

Parental Rights

Jamie R. Abrams, The Polarization of Autono(me) in Reproductive Decision-Making and Autono(thee) in Parental Decision-Making, 44 Fla. St. U. L. Rev. (forthcoming 2017). Women’s abortion decision-making and parental decision-making in child rearing are constructed as polarized methods of decision-making. Women’s abortion decision-making is understood as myopic and individualistic. Parental decision-making is understood as sacrificial and selfless. This polarization leaves reproductive decision-making isolated, marginalized, and vulnerable, while parental decision-making is essentialized, protected, and revered.

Frank Aiello, Would’ve, Could’ve, Should’ve: Custodial Standing of Non-Biological Same-Sex Parents for Children Born Before Marriage Equality, 24 Am. U. J. Gender Soc. Pol’y & L. 469 (2016). This article discusses the standing afforded to nonbiological, unmarried, nonadoptive, same-sex parents before the Supreme Court found that there is a fundamental right to marry for same-sex couples and distinguishes same-sex partner standing from other third parties.

Katherine A. Baker, Quacking Like a Duck? Functional Parenthood Doctrine and Same-Sex Parents, 92 Chi.-Kent L. Rev. 135 (2017). Unpacks the relationship between the functional parenthood doctrine, constitutionally protected parental autonomy rights, and intent-to-parent tests as they are applied in same-sex parenting relationships. It argues that, with the advent of same-sex marriage and voluntary acknowledgments of parentage, the functional parent doctrine is unnecessary and ultimately counterproductive to anyone interested in expanding legal recognition of nontraditional family forms.

Charles Cohen, Losing Your Children: The Failure to Extend Civil Rights Protections to Transgender Parents, 85 Geo. Wash. L. Rev. 536 (2017). Explores the current approaches used by courts to adjudicate custody and visitation claims by transgender people.

Holning Lau, Shaping Expectations About Dads as Caregivers: Toward an Ecological Approach, 45 Hofstra L. Rev. 183 (2016). Analyzes the increasing number of men assuming household duties and childcare-related duties typically performed by mother figures or women.

Yehezkel Margalit, Bridging the Gap Between Intent and Status: A New Framework for Modern Parentage, 15 Whittier J. Child & Fam. Advoc. 1 (2016). Explores the dilemmas, significance, and implications of determining legal parentage in various scenarios.

Emily G. Narum, Making the Grade: School-Based Telemedicine and Parental Consent, 53 San Diego L. Rev. 745 (2016). Advocates for a uniform state-by-state regulation requiring schools to obtain parental consent immediately before any telemedicine service is provided to their children at school.

Hon. Leta S. Parks, In re Lee: How the Parental Right to Self-Determination Came to Trump Judicial Authority, 57 S. Tex. L. Rev. 483 (2016). Examines the significance of the In re Lee case decided by the Texas Supreme Court in light of the historical forces that led to the final ruling. These divergent forces include the judicial right to determine what is in a child’s best interest and the modern trend toward autonomous parental decision-making through the mediation process.

Jeffrey A. Parness, Formal Declarations of Intended Childcare Parentage, 72 Notre Dame L. Rev., Online Supplement (Mar. 20, 2017). Legal parentage for childcare purposes under American state laws is significantly and rapidly expanding, with the new norms growing increasingly imprecise. No longer is childcare parentage, that is, parentage carrying the superior right to the “care, custody, and control” of a child, only defined at precise moments in time, as by giving birth, having biological ties, marrying the birth mother, placing the name on a birth certificate, or formally adopting.

Jeffrey A. Parness, Marriage Equality, Parentage (In)Equality, 32 Wisc. J. L. Gender & Soc’y 179 (2017). Explains that the Supreme Court has not addressed intrastate parental childcare equality and that interstate parental equality is not viewed as being as important as intrastate equality for marital and biological parents.

Jeffrey A. Parness, Third Party Stepparent Childcare, 67 Mercer L. Rev. 383 (2016). Explores the federal constitutional limits on third-party stepparent child care over current parental objections and surveys both general and special contemporary American state laws on third-party child care, as well as some recent Illinois General Assembly proposals.

Jeffrey A. Parness & David A. Saxe, Reforming the Processes for Challenging Voluntary Acknowledgments of Paternity, 92 Chi.-Kent L. Rev. 177 (2017). Voluntary acknowledgments of paternity (VAPs) significantly determine male legal parentage at birth for many children born of sex to unwed mothers in the United States. VAP processes are chiefly dictated by the federal Social Security Act, which places certain mandates on states participating in federally subsidized welfare programs. These processes include norms on effective VAP establishments and on VAP disestablishments, either via early rescissions (within sixty days) by signatories or via later contests (after sixty days) by challengers, including signatories. The norms are driven by the Act’s desire to increase reimbursements of state child welfare payments from unwed fathers regardless of whether the fathers are childrearing.

Hannah K. Phillips, The “Association Restriction”: Should Child Sex Offenders Lose Their Constitutional Rights as Parents?, 11 Liberty U. L. Rev. 141 (2016). Proposes a solution to circuit splits on whether a child sex offender should lose his or her constitutional rights as a parent after posing a threat to children.

Margaret Ryznar, A Curious Parental Right, 71 SMU L. Rev. 127 (2018). Provides a framework for using more than one level of scrutiny for judicial review of interferences with parents’ care, custody, and control of their children in a consistent and predictable way.

Lionel Smith, Parenthood Is a Fiduciary Relationship, L. & Soc’y: Fam. L., Rel. & Disp. Resol. eJournal (2017). The author argues that equating parenthood with a fiduciary relationship is an appropriate characterization, despite differences and opposing commentators.

Parent-Child Relationships

Rebecca Covington, Incarcerated Mother, Invisible Child, 31 Emory Int’l L. Rev. 99 (2016). Argues that the United States should prioritize supporting incarcerated mothers and their children. Discusses the reforms made in Scotland’s criminal justice system and proposes that the United States should follow its example.

Shamala Florant, A Chance for Positive Change: Exploring the Legal Hurdles Putative Fathers Face in the 21st Century, 19 Scholar 57 (2016). Argues courts should allow unwed fathers to exercise their rights and give them the same exclusivity to custody and presumption of parental fitness as afforded unwed mothers. Explores case law regarding fathers’ rights.

Courtney Serrato, How Reasonable Are Reasonable Efforts for the Children of Incarcerated Parents?, 46 Golden Gate U. L. Rev. 177 (2016). Discusses the development of laws concerning children with incarcerated parents, specifically in California, and provides recommendations for California dependency law and the California Department of Corrections and Rehabilitation to work together in creating exceptions for parents and children.


Rosemary Auchmuty, The Limits of Marriage Protection: In Defense of Property Law, 6 Onati Socio-Legal Series (2016). Examines the benefits offered by property law in terms of marriage and gendered inequality.

Jo J. Carrillo, Liberty and Community in Marriage: Expanding on Massey’s Proposal for a Community Property Option in New Hampshire, 15 U. N.H. L. Rev. 289 (2017). Argues that intimate partners should have the right to adopt a default sharing economy within marriage no matter the state in which they are domiciled.

Kerry A. Ryan, Marital Sharing of Transfer Tax Exemptions, 57 B.C. L. Rev. 1061 (2016). This article analyzes portability and its antecedents in order to distill a positive account of marital sharing of transfer tax exemption amounts. It argues that a regime that authorizes elective sharing of estate and gift tax exemption amounts between spouses, in any proportion, during life or at death, is the ideal solution.

Taxation and Marriage

Fred B. Brown, Permitting Abused Spouses to Claim the Earned Income Tax Credit in Separate Returns, 22 Wm. & Mary J. Women & L. 453 (2016). Discusses the earned income tax credit and the difficulties married people suffering from domestic abuse face in filing their taxes and receiving this credit. The article proposes a modified rule to allow people in these situations to have easier access to EITC.

Michelle Lyon Drumbl, Joint Winners, Separate Losers: Proposals to Ease the Sting for Married Taxpayers Filing Separately, 19 Fla. Tax Rev. 399 (2016). Explores married taxpayer filing status limitations and the collateral consequences. Discusses the origin of the joint filing option and the concepts of the marriage bonus and the marriage penalty.

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Kendra Huard Fershee

Kendra Huard Fershee is Associate Dean for Academic Affairs and Professor of Law, West Virginia University College of Law; Editor in Chief, Family Law Quarterly. Many thanks to the WVU College of Law student editor team, which was instrumental in compiling this survey.