Many Family Law Quarterly issues are organized around a specific theme. This particular issue was not planned in this way, but, rather, it features three independently submitted articles that all recommend changes in policies and practices pertaining to child welfare. The title of the issue, Preserving Families: Parent Representation, Immigration Reform, and LGBTQ+ Rights, embodies this theme, as well as the range of issues addressed by the authors.
In the first article, How Family Defender Offices in New York City Are Able to Safely Reduce the Time Children Spend in Foster Care, Professor Martin Guggenheim describes the work of family defender offices in representing individual parents in child welfare proceedings. Professor Guggenheim is a leading advocate and scholar in the area of child welfare and parent representation, with almost 50 years of experience in the field. The family defender offices described in the article employ social workers and/or parent advocates as well as attorneys. In addition to their in-court work, the offices provide extensive out-of-court advocacy at meetings with child welfare agency personnel. They may also help clients to access services and public benefits and to address other issues such as housing or immigration needs.
As documented in a prior article co-authored by Professor Guggenheim, an extensive quantitative study showed that these offices achieved better outcomes than solo practitioners in that children whose parents were represented by the offices spent less time in foster care. Another article discussed a qualitative study that provided context for these findings through interviews of multiple practitioners and parents. The article published in this issue of FLQ uses specific examples to show how the family defender offices’ holistic approach benefits clients and families in individual cases. As Professor Guggenheim writes, the article “bring[s] to life the proactive nature of the multidisciplinary practice” and shows how it succeeds.
The second article, by Claudio J. Perez, is titled How U.S. Policy Has Failed Immigrant Children: Family Separation in the Obama and Trump Eras. As the title suggests, this article reviews the recent history of detention of undocumented immigrant families and the “zero tolerance” and family separation policies implemented under President Donald Trump. Mr. Perez discusses the harms that these policies and practices caused immigrant children and families, as well as statutory and constitutional issues raised by the Trump administration’s approach. The author discusses proposals for reform and concludes with hope for bipartisan support for change under the administration of President Joe Biden.
The final article, Wolves in Sheep’s Clothing: How Religious Exemption Laws for Discriminatory Private Agencies Violate the Constitution and Harm LGBTQ+ Families, was selected as the first-place winner of the ABA Family Law Section’s 2020 Howard C. Schwab Memorial Essay Contest. In this article, Benjamin N. Cardozo School of Law student Kharis Lund analyzes conflicts involving publicly funded adoption and foster care agencies that raise religious objections to working with LGBTQ+ individuals or couples. These conflicts are before the Supreme Court in the pending litigation Fulton v. City of Philadelphia, in which the City of Philadelphia was sued for ending a contract with a religious foster care agency that opposes same-sex marriage and that refused to comply with nondiscrimination requirements.
Ms. Lund argues that permitting publicly funded faith-based foster care and adoption agencies to discriminate against LGBTQ+ individuals or couples violates the Equal Protection and Establishment Clauses of the U.S. Constitution. The Essay expresses hope for a ruling favoring Philadelphia in the pending Supreme Court litigation and for changes in federal policy under President Biden to provide support for LGBTQ+ individuals and couples seeking to be foster or adoptive parents.
All three of these timely articles include meaningful discussion of policies and practices for preserving families in the best interests of children. Thank you to our authors for contributing their perspectives and proposals for reform during this time of significant change.