By Alexa Gonzalez and Nora Kelly
This article provides summaries and context for 31 changes to family law that were enacted in 2023 by legislatures in 26 states and the District of Columbia. The topics include (1) Child Custody and Visitation, (2) Nonparent Custody and Visitation, (3) Children’s Representation, (4) Child Welfare, (5) Child Support, (6) Domestic Violence, (7) Companion Animals, (8) Age of Marriage, and (9) Other Topics. More specifically, the topics of the laws featured in this article include (among others) presumptions of 50-50 parenting time; virtual visitation; enhancement of children’s voices in child protective proceedings; pets and property division; and strengthened domestic violence protections, including special consideration of pets, addressing tracking devices, and financial abuse. These topics are based on annual Charts published in the Year in Review issue of the Family Law Quarterly along with developing trends in the area of family law. The Charts are updated each year to track changes in specific areas of law and survey statutes within the 50 states, the District of Columbia, and Puerto Rico.
The laws in this article were identified and selected in the course of updating the Charts and through additional research. The laws included here do not represent all new family law legislation from 2023 but do reflect growing trends in the area. For example, there are summaries for two states that adopted 50-50 parenting time presumptions, three states that raised the age of marriage, three states that included restrictions on tracking devices in orders of protection, and two states that included specific “financial abuse” provisions in their definitions for domestic abuse. This is our third year featuring this article in the Family Law Quarterly’s annual Year in Review issue. We look forward to covering new legislation in these rapidly changing areas of family law in the years to come.
By Nimra Tariq and Nicole Keegan
This law addresses the type of visitation that can be reasonably granted to a parent who is the subject of a protective order, including virtual visitation. The type of visitation granted, if any, is based on the nature of the act(s), the time passed since the protective order was issued, and “whether the restrained party has committed further acts of abuse.” The type of visitation may include supervised visitation, which may be provided by a person suggested by a parent if approved by the court. The court may order virtual visitation, which may be supervised or unsupervised. The law further provides that supervised visitation or exchanges for the child may be provided at a superior court and that the court “may designate employees and contractors to provide supervised visitation and exchange services or assistance with those services.” The statute considers the safety of the child, other parent, and family members from any fear of or actual perpetration of abuse requiring altered visitation. If the custodial parent is living in a confidential domestic violence shelter, the court may order in-person visitation only if the court determines in-person visitation is in the child’s best interest, and must consider the person’s access to firearms and ammunition, any violations of a protective order, and the potential to disclose the confidential location.
In support of the law, the California legislature made findings that there is an increased risk of child abuse after parents separate when one partner has been abusive to the other, even if the child was not previously abused. In California, there have been many cases of children being seriously harmed or murdered during unsupervised or even supervised visitations. Between 2008 and 2022, 887 children were killed by a parent involved in divorce, custody, separation, and visitation issues. In 2022, a father subject to a domestic violence restraining order shot his three children and a chaperone in Sacramento. Ultimately, domestic abuse survivors may be granted protective orders and/or be in confidential living arrangements; however, the mere separation from their partners and being granted such orders and living arrangements are not enough to protect them from future abuse when a child is shared between them and their abusive partner. Accordingly, the amended law adds more specificity to child safety factors; extends visitation settings to include virtual visitation; and emphasizes the protection of not only the child but the other parent as well. Furthermore, these parents and their children are now afforded a higher level of protection from continued fear of abuse from their partner.
By Gianna Vitiello and Nicole Keegan
This new legislation now prohibits a family court from ordering a child to participate in “family reunification treatments, programs, or services” that include certain requirements for participation. Prohibited requirements include “[a] no-contact order”; “[a]n overnight, out-of-state, or multiday stay”; and “a transfer of physical or legal custody of the child.” Additionally, “acutely distressing circumstances,” such as “[t]he use of threats of physical force, undue coercion, verbal abuse, isolation from the child’s family, community, or other sources of support,” may not be used as a means of child involvement.
This amendment, which also enhances training for judges and other court personnel in child abuse and domestic violence, is called Piqui’s Law due to the tragic murder of a five-year-old boy—Aramazd “Piqui” Andressian Jr.—who was killed by his abusive father during an unsupervised court-ordered visitation. Previously, some family court judges had ordered that children be placed into so-called reunification camps. Supporters of the legislation raised the concern that “reunification treatment” employs “questionable, coercive, and even dangerous methods to ‘reunify’ [a] child with [a] supposedly ‘alienated’ parent” whom the child has allegedly falsely accused of abuse. In one reported instance, children who did not cooperate with people who came to bring them to a “reunification therapy” program were “physically picked up and forced into a car” and taken to the program for four days. Courts are now prohibited from ordering a child to participate in reunification programs as outlined in the law. The legislature’s goal is to provide greater protection to children, by shielding them from interacting with an abusive parent and averting any additional potential harm.
By Gino Bova and Taylor Oslacky
The new law strengthens the ability of courts “to recognize and adjudicate adult and child abuse allegations” in child custody proceedings based on admissible evidence, allowing courts “to enter orders that protect and minimize [the] risk of harm to the child.” Millions of children are exposed to domestic violence and child abuse every year. “In parental allocation cases in which an alleged or known abusive parent claims alienation from the child, courts are four times more likely to disbelieve the parent who claims child physical or sexual abuse.” With the new law, in the context of child custody proceedings, if a claim has been made or the court “has reason to believe that a party has committed domestic violence or child abuse,” it will consider the admission of qualified expert testimony and evidence “if the expert demonstrates expertise and experience working with victims . . . that is not solely forensic in nature,” giving judges a more educated idea of a child’s family dynamics. Furthermore, the law provides for training of judges and other court personnel that is intended to improve the courts’ ability to recognize domestic violence and child abuse in parental allocation proceedings.
Additionally, if in a child custody proceeding a claim has been made or a court has reason to believe that a party has committed domestic violence or child abuse, the court cannot order reunification treatment without “generally accepted and scientifically valid proof of the safety, effectiveness, and therapeutic value of the reunification treatment.” Nor can the court order reunification treatment that is “predicated on cutting off the relationship” between the child and the protective party.
Some opponents of the legislation argued that it was “attempting to fix a parent-child problem by directing blame . . . to one parent, ignoring the nature of” family dynamics. However, supporters suggested the real problem was judicial personnel were not taking child abuse and domestic violence allegations seriously, allowing abusers to gain custody of their children. The new law “prohibits a court from removing a child from or restricting contact between a child and a protective party who is competent, protective, not physically or sexually abusive, and with whom the child is bonded or attached solely in order to improve a deficient relationship with the accused party.”
By Toni-Ann Kreisberg
A new Florida law creates a rebuttable presumption that an equal parental “time-sharing schedule” of a minor is in the best interest of the child. “Time-sharing schedule” is defined as a schedule approved or established by the court that specifies times, including overnights and holidays, when the child will be with each parent. A party who rebuts the equal time-sharing presumption generally must show by a preponderance of the evidence that equal time-sharing is not in the best interest of the child. Additionally, while the law previously provided for sharing of parental responsibility “by both parents unless the court finds that shared parental responsibility would be detrimental to the child,” the new legislation requires the court to consider (1) “[e]vidence of domestic violence . . .”; (2) “[w]hether either parent has or has had reasonable cause to believe that he or she or his or her minor child or children are or have been in imminent danger of becoming victims of an act of domestic violence . . . or sexual violence . . . by the other parent . . . regardless of whether a cause of action has been brought or is currently pending in court”; (3) “[w]hether either parent has or has had reasonable cause to believe that his or her minor child or children are or have been in imminent danger of becoming victims of an act of abuse . . . , abandonment . . . , or neglect . . . by the other parent . . . regardless of whether a cause of action has been brought or is currently pending in court”; and (4) “[a]ny other relevant factors.”
Prior to 2023, there was no rebuttable presumption that equal time-sharing of a minor was in the best interest of the child. Previously, when a court was determining a time-sharing schedule, there was no default split of time that the court needed to start at, and there was a non-exhaustive list of factors to determine what time-sharing schedule would be in the best interest of the child.
Florida’s courts and public policies have held that a parent’s right to care for and have custody of their children warrants deference in the absence of countervailing interests. Additionally, it is important for a child to have frequent and continual contact with both parents even after the dissolution of a marriage. Joint custody presumption provisions have been supported by fathers’ rights activists who have strived to put a stop to alleged prejudice against fathers in custody proceedings. Bill sponsor Jenna Persons-Milicka stated: “[W]hen the parents walk into court, they do so from a place of fairness and on equal footing. It does not mean that they walk out of court on equal footing.”
By Ranielle Nulman and Elaine Villanueva
This new rule allows for the court to appoint a “parenting coordinator” in co-parenting disputes. Under the rule, “parenting coordinators” are licensed family law or mental health professionals who assist in resolving disputes between co-parents who are unable to effectively work together or communicate with one another involving situations regarding their child. When a parenting plan is submitted to the court, a parenting coordinator can be appointed in a situation where there is (1) unsuccessful mediation, (2) failure to communicate and cooperate, or (3) unsuccessful implementation of the parenting plan. Additionally, when there’s an existing parenting plan, parenting coordinators may be appointed to aid in communication between the co-parents.
Once a parenting coordinator is appointed, they are responsible for working with co-parents to assist them in making decisions in the best interests of their children. For example, a parenting coordinator can input their opinion on an existing parenting plan by (1) suggesting the time and place of pickups regarding the child, (2) resolving scheduling conflicts, (3) resolving physical and mental health issues regarding the child, and (4) resolving any problematic behaviors of the child. However, a parenting coordinator is limited because they are unable to make suggestions relating to (1) parental decisions regarding the child, (2) any initial parenting time allocation, (3) relocation, (4) granting visitation rights to a nonparent, or (5) anything regarding child support, spousal maintenance, or the distribution of property/debt in the marriage.
Before this rule was adopted, there was no provision in Illinois specifically addressing the need for parenting coordinators. Some Illinois circuits believed that they were unable to appoint parenting coordinators “without statutory or Supreme Court authority. . . .” Co-parents then used the court’s resources for minor disputes, taking up a significant portion of the court’s time. This rule aims to conserve the court’s resources and promote successful co-parenting by helping co-parents resolve minor conflicts outside of judicial proceedings. Reducing the number of co-parenting disputes allows the strained court system to resolve more serious disputes that cannot be resolved through parent coordinators. With the implementation of this new rule in Illinois, parents, family courts, and children will be in a better position to resolve these minor disputes.
By Anya Patterson and Mary Sharmaine Tan
Missouri courts are now required to apply a rebuttable presumption during custody proceedings that an equal division of parenting time between parents is in the best interest of the child. The amendment provides that the presumption of equal parenting time is solely rebuttable by a preponderance of the evidence in accordance with all relevant factors, including the following: (1) the parents’ wishes regarding custody and their proposed parenting plan; (2) the child’s need for a frequent, continuous, and meaningful relationship with the parents, as well as the parents’ willingness to actively carry out their responsibilities as parents of the child; (3) the child’s relationship with the parents, siblings, and other people who may have a considerable impact on the child’s best interests; (4) which parent is more likely to allow the child to have a frequent, continuous, and meaningful relationship with the other parent; (5) the child’s adjustment to their home, school, and community (however, the court is prohibited from considering the fact that a parent home schools their child as the sole factor in determining custody); (6) the mental and physical health, including any history of abuse, of all parties involved; (7) whether either parent intends to relocate the child’s principal residence; and (8) the child’s unobstructed opinion “free of coercion and manipulation” regarding their custodial arrangement. Further, the presumption may be rebutted in cases where the court determines that the parents agree on all aspects of the custody arrangement or finds a pattern of domestic violence.
Before this amendment, there was no presumption of equal parenting time. Supporters of this law believe that this change reflects a shift in our society away from the “rule of one,” which was that “children needed the stability of a single home rather than going back and forth between two parents’ homes.” Some believe that defaulting custody to one parent favored mothers, who were thought to be more natural caregivers. This change reflects the Missouri legislature’s public policy goals of ensuring that (1) children maintain frequent, continuous, and meaningful contact with both parents in the event the parents separate or dissolve their marriage (provided that such contact is in the best interest of the child) and (2) parents participate in the decisions affecting their children’s health, education and welfare. To facilitate their goals and as part of this new amendment, the court is encouraged to enter a temporary parenting plan as early as practicable in custody proceedings. Additionally, this amendment has significant financial effects on determining child support payments in custody proceedings. Courts may divide custody from a range of no parenting time up to equal parenting time. Awarding equal parenting time can decrease child support payment obligations down to a zero sum. Opponents of the amendment are concerned about assigning custodial rights to abusive parents. However, as discussed above, the presumption may be rebutted if the court finds a pattern of domestic violence. Missouri joined several other states that recently enacted equal parenting time legislation, including Arkansas, Kentucky, Florida, and West Virginia.
By James Kelly and Elaine Villanueva
Hawaii’s newly amended grandparent visitation statute implements new requirements to comply with due process. Under the new version of the law, a requirement is added that a grandparent seeking reasonable visitation rights with their grandchild must be the parent of an individual who is the parent of the subject child and is either deceased or incarcerated. Furthermore, the court must find that denying visitation “would cause significant harm to the child.” The amended statute also requires the petitioner to overcome a rebuttable presumption that the respondent’s decision regarding visitation with the child is in the best interest of the child. This presumption follows the Troxel v. Granville plurality ruling that parents have a fundamental right to have control over their child’s upbringing and “there is a presumption that fit parents act in the best interests of their children.” The presumption in the Hawaii statute may be overcome through a showing by clear and convincing evidence that not granting visitation “would cause significant harm to the child.” The court must be guided by Hawaii’s best interest of the child statute in its decision. The amendment allows for sanctions against a person who violates the court’s award of grandparent visitation.
The necessity for the new version of the grandparent visitation statute came after the 2007 state case of Doe v. Doe, where the Hawaii Supreme Court ruled that Hawaii’s previous visitation statute was unconstitutional because it did not require a grandparent seeking visitation to show significant harm to the child if visitation were not granted. In testimony released by Hawaii’s Attorney General Anne E. Lopez, she discussed the need to remedy the unconstitutional components of the statute and still provide a path to visitation for grandparents. Before the statute was revised, it was only required that visitation with grandparents be in the best interest of the child. Most significantly, the previous version of the law did not require a showing of significant harm to the child, nor did it require the grandparent to overcome a rebuttable presumption that a custodian’s visitation decision was in the best interest of the child. With this amendment now passed, Hawaii’s grandparent visitation statute may satisfy the court’s requirements in Doe.
By Emily Fabbrini and Kaitlyn McNeil
Mississippi law has been expanded to ensure that youths have the right to legal representation during all stages of abuse and neglect proceedings and requires that the youths have representation at these proceedings. Mississippi House Bill 1149 also created the independent agency the Mississippi Department of Child Protection Services, separating this department from the Mississippi Department of Human Services. This new law requires the Department of Child Protection Services to be a necessary party in the proceedings involving a child where the Department has custody and permits a guardian ad litem to assume a dual role, unless a conflict of interest emerges. In the event of a conflict, the court will permit the guardian ad litem to continue representing the youth’s best interests while also appointing an attorney to represent the youth. Additionally, this new law requires a child who is alleged to have experienced abuse or neglect to be a party in their own abuse or neglect proceedings.
Following the overturn of Roe v. Wade, one priority of the Mississippi lawmakers was to create legislation that aimed at reforming the state’s foster care system. According to the organization First Place for Youth, before the enactment of this new law, youth in foster care often had no legal representation in court and were not aware if or when they had a court proceeding. The legal roadblocks these children faced kept many youths in foster care limbo for years. Enhanced legal representation was one of a number of recommendations made by Mississippi Youth Voice, part of the nonprofit First Place for Youth. The Youth Voice members, who were formerly in foster care, stressed the importance of giving youths a voice in their proceedings because of the direct impact these decisions have on them.
By Janie Mai and Pamela Sausaitis
The new law makes additions relating to the duties of attorneys ad litem representing children. The changes specifically concern children placed in a residential treatment center (RTC) or qualified residential treatment program (QRTP). A residential treatment center, for purposes of statutory provisions relating to the review of placement of children under the care of the Department of Family and Protective Services, is a licensed general residential operation that provides treatment services.
New outlined responsibilities for attorneys include reviewing the child’s information and needs to determine appropriate placement; eliciting and advocating the child’s preferences concerning placement when the child understands and has formed an attorney-client relationship with the attorney ad litem; advising the child; and, when appropriate, requesting and participating in placement conferences. Additionally, the new law safeguards parents’ ability to participate in meetings regarding their child’s treatment in an RTC, as well as “enables judges to proactively monitor the child’s progress” and “plan to return the child to [their] family as quickly and successfully as possible.”
Prior to the enactment of this law, there were no statutory requirements for children’s attorneys ad litem that were specific to RTCs. The bill sponsor’s statement of intent indicated that “[f]oster care facilities, such as RTCs, may hamper healthy childhood development, make it harder for children to find permanent homes, and can cost up to 10 times more than placement with a foster family.” Furthermore, the sponsor indicated that “[s]erious safety issues for children have been highlighted in [RTCs] all across Texas.” Data from the Department of Family and Protective Services showed that even though only five percent of children in Texas foster care were placed in RTCs, “one-third of all abuse, neglect, or exploitation [that] occurs in the foster care system” transpires in an RTC. Additions to the law were made to provide greater protections for children in RTCs.
By Jillian Colombo and Kaitlyn McNeil
Minnesota incorporated federal protections of the Indian Child Welfare Act (ICWA) into Minnesota state law for both voluntary and involuntary child placement and permanency proceedings involving Indian children. Minnesota previously enacted the Minnesota Indian Family Preservation Act (MIFPA) in 1985.
Before the 2023 legislation was enacted, Minnesota had the nation’s highest rate of separation of indigenous children from their homes. MIFPA is a strengthening companion to ICWA, directing state courts to follow federal procedure for mandatory Tribal court access and jurisdiction over all cases regarding Indian child custody and placement proceedings, regardless of whether the tribe is on or off the reservation. For MIFPA to stand alone without reliance on ICWA, Minnesota made a number of changes to the Act. The state codified its policy of acknowledging the authority of federally recognized Indigenous Tribes to retain their own systems of government and to determine jurisdiction subject to federal law. It added language to clarify the law that applies for “any child placement proceeding involving an Indian child where custody is granted to someone other than a parent or an Indian custodian.” The law incorporates language providing that parents or Indian custodians may withdraw voluntary consent of placement or termination of parental rights to regain custody prior to adoption or termination of parental rights. It details the requirements for notice to Tribes of family assessments or investigations and requires notice “to all Tribes to which the child may have any Tribal lineage.” The law added provisions similar to ICWA concerning temporary emergency removal and state jurisdiction where the child’s safety is at risk, and transfer of jurisdiction to the appropriate Tribe. The statute strengthened the requirement that involuntary placement proceedings include “active efforts” by a child-placing agency or petitioner to preserve the child’s family. The law also added language concerning the right of an Indigenous child’s Tribe, parents, or Indian custodian to intervene in state court child placement proceedings involving an Indian child. A key permanency placement procedure expressly added from ICWA includes the order of preference being, first, to a noncustodial parent or Indian custodian; second, to extended family; and third, to “other members of the Indian child’s Tribe.” An amendment also reinforced ICWA’s expansive definition of “extended family” to any adult defined by the child’s Tribe as “extended family” or, “in the absence of any law or custom of the Tribe,” to include grandparents, aunts, uncles, brothers, sisters, sisters- and brothers-in-law, nieces, nephews, first or second cousins, and stepparents.
While not exhaustive, this list illustrates the Minnesota legislature’s commitment to preserving the existence of its 11 Tribal nations and protecting families. The Minnesota legislature made these changes in anticipation of the U.S. Supreme Court decision in Haaland v. Brackeen, which challenged the constitutionality of ICWA. Before the enactment of ICWA, courts tended to rely on untrained caseworkers, were not familiar with Tribal social norms, and were unable to measure the emotional impact on children removed from Indian communities. Minnesota legislators viewed the threat to ICWA as a threat to Tribal sovereignty and sought to avoid “endless litigation” in the event that the U.S. Supreme Court found the federal ICWA protections unconstitutional. The goal is to put the best interest of the child first, by fostering a sense of belonging within the Tribal system and promoting Tribal input in child placement proceedings.
By Sarah Khan and Meg Beauregard
This new law, which aims to improve the child welfare system, states that children’s placements while in resource families or congregate care must be considered in light of maintaining sibling relationships unless their best interests say otherwise. If it is not feasible, the siblings should be placed in close proximity or have consistent contact with each other. A committee statement emphasizes the purpose of the law, in which even if siblings are not placed together, the child’s best interest and their relationships with their siblings must still be prioritized. The state’s goal is to ensure that children are actively involved in the lives of their siblings, “including planning and attending celebrations, birthdays, holidays, graduations, and other meaningful milestones, to the greatest extent possible; . . . [and] have access to a phone or computer that allows for virtual visits between or when face-to-face visits are not feasible. . . .” Further, when face-to-face visits are not feasible, the law requires that updated contact information of siblings must be provided at least annually, and their contact with their siblings cannot be deprived as a behavioral consequence.
Prior to this enactment, the rights of a child placed beyond their home were limited to the words of § 9.6B-4, which, in summary, states that “the applicable department” should exemplify their “best efforts” to place a child in the same setting as a sibling who is also placed outside of the home; and if they cannot be placed together, they should “otherwise maintain contact. . . .” After considering the recommendations of a Youth Council created by the Department of Children and Families, which involved 24 individuals ages 14–23, the New Jersey Legislature and Governor Phil Murphy amended § 9.6B-4 and other statutes to create this law. The amended law, otherwise known as the New Jersey Siblings’ Bill of Rights, emphasized the need for siblings placed in congregate care systems or resource families to be in “close proximity” of each other and to even allow a child to be involved in their sibling’s permanency planning decision. In signing the ”Siblings’ Bill of Rights” law, Governor Murphy stated that he was “deeply moved” by the Youth Council’s sharing of possibly “the most difficult time of their young lives” and that “it is our hope that this bill will allow siblings in the child welfare system to maintain some measure of stability and continuity.” He further stated that the goal of his administration was “to make sure the children and families in this state’s welfare systems are treated with compassion and empathy.”
By Jordan Karpoff and Meg Beauregard
This new law creates a “safe haven” for children and guardians, protecting them from any adverse action when they allow a child to seek “gender-affirming care.” “Gender-affirming care” is defined as “any type of care provided to an individual to affirm their gender identity or gender expression; provided that surgical interventions on minors with variations in their sex characteristics that are not sought and initiated by the individual patient are not gender-affirming care.” The law prohibits enforcement of out-of-state laws that authorize a child to be removed from their parent or guardian if they receive gender-affirming care. Further, this law generally protects providers from adverse action that individuals might take against them, whether civil or criminal, for providing gender-affirming care to individuals and prevents insurance companies from refusing to cover a provider’s medical malpractice liability for providing such treatment. Prior to the enactment of this legislation, New York did not specifically address gender-affirming care in this way.
New York enacted this law in an effort to protect individuals from states that are specifically targeting LGBTQ+ people. In recent years, “at least a dozen states and Washington, D.C., have enacted ‘shield laws’ that protect access to gender-affirming health care for transgender minors, their families and their doctors.” As of May 31, 2023, more than 145 anti-LGBTQ+ bills had passed at least one chamber in 2023, and 74 anti-LGBTQ+ laws had been enacted nationally, with 16 specifically banning gender-affirming care for transgender youths. By enacting this law, New York is ensuring that families cannot be split up over the decision to seek gender-affirming care and showing that New York will not participate in punishing any child, parent, or health care provider for this choice. Under the new law, New York will act as a “safe haven” for those seeking gender-affirming care, regardless of whether they are from New York, protecting children, parents, and health care providers from anti-trans states from civil or criminal actions.
By Shelby Luria and Bogum Lee
This law provides that a court must set a hearing to determine whether a child placed in a qualified residential treatment program (QRTP) should remain in their given placement or can have their needs met in a less restrictive environment, like a foster family home. A QRTP is a trauma-informed clinical program that provides around-the-clock supervision and on-site care for children with serious emotional or behavioral needs. This amendment requires the court to schedule such a hearing within 60 days of a child’s initial placement in a QRTP, consistent with federal requirements under the 2018 Family First Prevention Services Act (Family First). This amendment will serve the goal of preventing a child from being in a more restrictive environment than necessary.
Before the amendments to this statute, there was no state statute expressly implementing federal requirements for a court to review and approve or disapprove QRTP placements within 60 days. The Oklahoma Department of Human Services (OKDHS) worked with the judiciary to employ consistent requirements across all 27 judicial districts in the state. The legislation codifies a hearing requirement for reviewing QRTP placements. Oklahoma legislators have remained focused on promoting the “least restrictive environment,” which aims to place a child in the least constraining setting that will allow them to thrive and develop independence and to promote family preservation where possible. This amendment was rooted in Family First, which prioritizes keeping children in family-based settings and utilizing institutional treatment when “clinically necessary,” and limits federal funding for placements that are non–family based. Now, the court must set a hearing within 60 days of placement to ensure that the child’s interests are met. This amendment will charge the courts to be more involved in the child-centered placement process and promote compliance with Family First initiatives.
By Madison Phillips and Sarah Silbowitz
Virginia’s amended child neglect statute narrows the definition of child neglect to exclude certain activities in which children are reasonably expected to remain free from risk, thus increasing childhood independence and parental agency. The definition of an “abused or neglected child” now excludes children who participate in activities that are appropriate for their age, maturity, and physical and mental abilities without adult supervision. Thus, parents who allow their children to partake in appropriate activities without adult supervision would not “for that reason alone” be found to have engaged in neglect. However, there is a limitation in that the lack of supervision during these activities cannot amount to “grossly negligent” conduct that would ultimately endanger the health or safety of the child. Under this newly founded category, when age-appropriate, parents are permitted to allow their child to travel to and from school, play outdoors, and remain at home for a reasonable amount of time without adult supervision.
Prior to the addition of this amendment, Virginia’s definition of child abuse or neglect only excluded very particular situations. The first exclusion to the definition of “child neglect” applied to children who are in good faith receiving health care treatment “solely by spiritual means” in accordance with their religious denomination. The second exclusion enumerates the elements that must be met for parents or guardians to refuse medical care for children with life-threatening conditions, thus omitting such refusal from the definition of child neglect.
Supporters argued that this amendment is significant because it allows children to retain reasonable independence, allowing them to learn self-sufficiency and responsibility at an appropriate age. Additionally, proponents of this amendment argued that this change could save time and resources pertaining to Child Protective Services (CPS) investigations. This change ensures that CPS can provide the necessary assistance needed to children who are being grossly neglected and abused, rather than expending valuable resources on children who are unsupervised when traveling to school and playing in their front yard. Advocacy groups have been supporting the implementation of similar amendments throughout the United States, arguing the effects have positive implications for both children and parents. Such groups contend that parents can best determine when their child is ready to be left unsupervised in specific situations and, in turn, these children retain more freedom when their parents are not in fear of being reported to state or local authorities for neglect. Parental independence laws such as this recognize that parents should have more autonomy to determine when their child is ready to be left unsupervised in certain settings, which increases childhood self-sufficiency and freedom.
By Jack Arakanchi and Grace Shim
This new legislation limits the maximum duration of retroactive child support awards to three years. This limit applies to child support orders (1) upon a paternity finding, (2) for an initial child support order generally, and (3) when a child support application is made by an adult child who is owed child support during the child’s minority. This three-year maximum is calculated from the date of the petition. However, if the child is three years old or younger, payment is calculated from the birth of the child, and if the obligor was not properly served with the petition and was not intentionally evading service, the three-year maximum is calculated from the date of service, not from the date of the petition.
Before the amendment of this legislation, there was no limit as to how far back the retroactive child support payment could be imposed. Once paternity was established, the court was mandated to order child support at a minimum of $10 per month calculated from the birth of the child. Once a custodial parent petitioned for an initial child support order, the court could order child support to go back to the birth of the child. The original bill aimed to limit retroactive child support awards in initial orders to no earlier than the date the paying parent was served with a complaint or motion, but it was modified to a maximum of three years for retroactive child support the court can grant.
The law’s lead sponsor, Senator Alan Clark, noted that courts encountered situations where, as minors were reaching or had just turned 18, they initiated lawsuits involving fathers who were either unaware they had a child or had been unable to participate in parenting during the child’s minority years, which resulted in a large amount of child support owed since the birth of the child. Cases such as Frazier v. Office of Child Support Enforcement highlight this situation, where a father was initially ordered to pay a judgment of $179,080.54, which represented 18 years in retroactive child support. The biological father allegedly did not know he had a daughter, nor had he had a chance to develop any parental relationship with the child. The new law is enacted to protect parents from being struck with significant and unexpected retroactive child support judgments while still allowing three years of retroactive child support.
By Sarah Sexton and Theodore Richert
In child support matters, West Virginia courts may now deduct student loan payments from a parent’s income to be used in the child support calculations. The student loan deduction may not exceed 25% of a parent’s total gross income and can be revoked if the parent does not disclose information related to the student loan payments timely to the family court, including annual statements, payment deferrals, changes in the monthly amount, and any student loan forgiveness granted. The failure to disclose this information to the court allows the court to modify the child support obligations. The court has the discretion to exclude part or all of the deduction if the parent is in arrears on either their child support or their student loan payments, if the student loan is being paid by a third party, and if the child is not receiving a benefit from the education associated with the student loan debt.
Before this amendment, the statute did not provide for child support payments to be adjusted based on student loan payments. The student loan deduction is only for parents who have student loans out in their name for their own educational expenses, and is for reasonable expenses that they themselves are paying back to the lender. This amendment eases the financial strain on parents who make both child support and student loan payments because it allows the child support obligation to be lowered accordingly.
By Arielle Edelheit and Taylor Oslacky
Although financial abuse is often part of a broader pattern of abusive conduct, a 2023 amendment to Delaware law empowers family court commissioners to grant a protective order and related relief where a petition is founded solely upon financial abuse. The statute now defines “abuse” to include (1) intentionally exercising “overwhelming control” over an adult’s financial resources, including withholding access to funds or unjustifiably limiting an adult’s ability to go to school or work, or (2) intentionally stealing from or defrauding an adult of their assets, exploiting their financial resources, or withholding access to essential resources such as “food, clothing, necessary medications, or shelter.”
Although financial abuse has been termed the “‘frequently hidden’ or ‘invisible’ form of abuse,” research estimates that 94% to 99% of survivors of domestic violence experience some form of financial abuse at the hands of their abuser. Despite this prevalence, although all 50 states criminalize physical and other forms of noneconomic, nonphysical abuse, barely one-third of states have enacted criminal laws likely to extend to financial abuse. Thus, financial abuse is “invisible” in name only, as its impact is manifest in the choice victims of domestic abuse must make between their personal safety and their financial security.
Prior to the 2023 amendment, the definition of “abuse” for Delaware protection from abuse proceedings made no mention of financial abuse, although it contained a “catch-all” provision that allowed family court commissioners to consider “[a]ny other conduct which a reasonable person under the circumstances would find threatening or harmful.” In support of the legislation, public commentators noted that financial abuse is often perpetrated with the “intention to limit [a woman’s] independence, coerce her into submission, or maintain power and control within an intimate relationship,” which invariably subjugates women and impedes social reform. The 2023 amendment recognizes the significant impact financial abuse has on the financial autonomy of victims of domestic abuse and allows survivors to obtain appropriate relief from the court on that basis alone.
By Kelly Jackson and Bogum Lee
Under this amendment to Hawaii’s order of protection statute, minors over the age of 16 and legally emancipated minors may petition for domestic abuse protective orders on their own behalf. The law explicitly adds two new categories of minors eligible to petition for these orders: minors over the age of 16 and minors legally emancipated pursuant to section Haw. Rev. Stat. § 577-25. Minors are deemed emancipated under § 577-25 when they have entered a valid marriage or received a declaration of emancipation issued by the family court.
This new law expands the classification of minors who can seek domestic abuse protective orders. Before the enactment of this law, petitions could only be made on behalf of a minor by a family member or a state agency. This amendment came after increased reports of domestic violence in Hawaii from 2020 to 2021. The earliest version of the bill amended the language of § 586-3 so a minor filing for a protective order was not required to demonstrate they were a victim of abuse if they were residing in a household with a victim of domestic violence. After multiple rounds of testimony from interested governmental organizations and community members, the Hawai’i State Coalition Against Domestic Violence (HSCADV) proposed an amendment allowing minors over 16 years of age as well as emancipated minors to petition on their own behalf. HSCADV cited rates of domestic violence reported from the CDC Youth Risk Behavior Survey, which found that one in 12 high school students experiences sexual dating violence. HSCADV further noted that in some cases, teens may be fearful to disclose abuse to a parent or legal guardian, especially if they did not have the adult’s consent to engage in that relationship. The legislation allows minors access to domestic abuse protective orders in the absence of a trusted adult willing to petition on their behalf. This measure ensures a broader swath of adolescents can seek protection under the law from abuse without having to demonstrate that their parent or legal guardian is unable or unwilling to do so.
By Erin Martin and Meridith Kennedy
Kansas law was amended to allow courts in domestic violence and other family law proceedings to restrain a party from utilizing an electronic tracking system or acquiring tracking information to determine the “location, movement or travel patterns” of the other party or their children. S.B. 217 amends Kansas law in several different areas, including the crime of stalking under the Criminal Code; the Family Law Code; the Code for Care of Children; the Protection from Abuse Act; and the Protection from Stalking, Sexual Assault, or Human Trafficking Act. The amended laws include specific language authorizing courts in civil proceedings related to family violence, child protection, and other areas to prohibit the use of electronic tracking systems or acquiring tracking information to determine a person’s location, movement, or travel patterns. The bill also extends the duration for most civil protection from abuse orders from no more than one year to at least one year but no more than two years (subject to extensions issued by the court).
In testimony provided by Ed Klumpp on behalf of the Kansas Association of Chiefs of Police, the Kansas Sheriffs Association, and the Kansas Peace Officers Association, these groups expressed support for the legislation and cited the growing number of cases where tracking devices have been used to stalk others. In his testimony, Klumpp referenced the growing number of cases in which an electronic tracking device was used and how it correlates to disputes within domestic relationships, occasionally ending in homicide, battery, or serious injury. Another proponent of the legislation, the Kansas Coalition Against Sexual and Domestic Violence, provided statistics from the Bureau of Justice Statistics that revealed that “80% of stalking victims report being stalked through technology and 14% of stalking victims [report having] their location tracked with an electronic device or application.” Testimony on behalf of the organization further indicated that these numbers will likely increase with expanded access to new technologies.
This amendment serves as a response to the misuse of technology and is designed to protect victims of crime and domestic abuse by implementing specific language to prevent the use of electronic tracking devices for these purposes in the future. Kansas now joins the growing number of states enacting similar legislation to prevent the unauthorized use of electronic tracking devices for tracking purposes.
By Evangelia Korkis and Pamela Sausaitis
This amendment expands the definition of “abuse” for Tennessee domestic abuse law to include “[i]ntentionally engaging in behavior that amounts to financial abuse.” “Financial abuse” is defined as “behavior that is coercive, that is deceptive, or that unreasonably controls or restrains a person’s ability to acquire, use, or maintain economic resources to which the person is entitled, including using coercion, fraud, or manipulation.” Further, the law provides three ways intentional behavior amounts to “financial abuse”: first, to “[r]estrict a person’s access to money, assets, credit, or financial information”; second, to “[u]nfairly use a person’s economic resources, including money, assets, and credit, to gain an advantage”; and third, to “[e]xert undue influence over a person’s financial behavior or decisions, including forcing default on joint or other financial obligations; exploiting powers of attorney, guardianship, or conservatorship; or failing or neglecting to act in the best interest of the person to whom a fiduciary duty is owed.”
Prior to the enactment of the law, the definition of “abuse” primarily concerned physical harm to the person or their personal property. The Tennessee police could not use financial abuse as the basis for a case against an abuser in escalating situations of domestic abuse. “Under the new law, even when petitioners cannot prove the respondent committed some physical act or threat, they can still obtain an order of protection if ‘financial abuse’ can be proven by a preponderance of the evidence.”
Tennessee “ranks 10th in the nation for the rate at which men kill women.” The majority of domestic abuse cases involve “some sort of economic abuse . . . .” Other states have similarly expanded their definition of domestic abuse to include financial abuse. Supporters of the legislation hope that including financial abuse in the definition of “abuse” will not only create a new category of domestic abuse but also help to promote safety in the context of escalating situations of domestic abuse that could turn physically violent.
By Alexandria Neri and Pamela Sausaitis
A new Texas law authorizes the court to prohibit anyone with an order of protection against them from tracking or monitoring their victim’s personal property or motor vehicles and following their victim without consent. This law applies to criminal and civil orders of protection. In civil proceedings, orders of protection may be granted to victims of family violence, stalking, sexual assault or abuse, and more. Further, this revision not only applies to the victims of these incidents but includes the victim’s family and members of the victim’s household. Tracking includes using a tracking device or a tracking application that is on a personal electronic device owned by the victim or someone in the family or household. Additionally, the court may prohibit the abuser from physically following, or causing another to follow, the victim, family, or household members.
Before this enactment, applicants for protective orders did not have any express legal protections that would prohibit their abuser from tracking or monitoring their movements and the movements of family and household members without their consent. In cases of domestic violence and stalking, some abusers will use tracking and monitoring of their victims as part of a ploy known as coercive control. Coercive control is a behavior that may cause victims to suffer from physical, emotional, or psychological harm, and in purpose or effect unreasonably interferes with a person’s free will and personal liberty. Coercive control can take the form of “constraint and the monitoring and/or regulation of commonplace activities of daily living.” This new legislation now gives victims clearer protection by law to live without fear of their abuser using the coercive control tactics of tracking and monitoring.
By Abigail Paholski and Meridith Kennedy
Indiana law now authorizes courts issuing civil orders of protection in family violence cases to prohibit the use of electronic devices to monitor the petitioner and the petitioner’s property. Before this amendment, there was nothing specifically authorizing a court to issue a civil order of protection to prohibit a respondent from using electronic devices to track the petitioner. “Tracking device” is defined as (1) a data-storing GPS, (2) a real-time monitoring device, (3) an unmanned drone, (4) a cellphone, or (5) a device or application connected to or installed on a cellphone. The new legislation also makes changes to criminal law statutes concerning stalking and revises a prior definition of “tracking devices” to include new technologies.
Indiana State Senator Michael Crider—who authored this bill in response to these concerns—noted that Indiana attorneys and other supporters of the new legislation expressed “increasing concerns” about the use of electronic devices, like Apple AirTags, to “track and ‘stalk’ individuals in ‘custodial’ and ‘domestic violence’ situations.” A source from the Indiana Coalition Against Domestic Violence noted that “60% of the coalition’s survivors report being tracked daily by GPS monitoring.” Courtney Curtis, from the Indiana Prosecuting Attorneys Council, explained that the legislation should enable earlier intervention, resulting in a “disruption in that behavior.”
Numerous tragic incidents throughout the state fueled this new legislation; however, the catalyst took place in Hancock County. The victim, Millie Parke, filed an order of protection against her ex-boyfriend but—based on a sequence of uncoincidental events—suspected he was still stalking her. One night, while Millie was sitting in a parking lot and booking a hotel to evade him, Millie’s ex-boyfriend crashed into her car, forced himself inside it, and stabbed her to the point that she nearly lost her life. Millie later learned that her ex-boyfriend had a GPS tracking device attached to her car and had been tracking where she drove.
As discussed by State Senator Liz Brown, the amended law addresses a shortfall in the previous law and aims to strengthen protections for survivors of domestic violence and their families.
By Jennifer Amada and Grace Shim
This new law protects domestic violence survivors by safeguarding their companion and service animals from abuse. “Abuse” has a broader definition now—while the statute previously included damaging or taking tangible property of another, it now specifically includes inflicting physical injury on a companion or service animal. “Companion animal” is an animal who is primarily kept for companionship. Abuse now encompasses harmful acts directed at another person’s companion animal to coerce, control, punish, or intimidate that person who has a close bond to the animal. These acts include (a) “[i]nflicting or attempting to inflict physical injury on the companion animal,” (b) “[e]ngaging in conduct which is likely to cause the person to fear that the companion animal will be physically injured,” and (c) “[e]ngaging in cruelty to the companion animal . . . .” Lastly, under the new law, when the petitioner seeks a protective order, the court can grant sole custody and control of the companion animal to the petitioner or enter a stay-away order against the respondent and forbid him/her from “taking, transferring, encumbering, concealing, harming, or otherwise disposing of the companion animal.”
Before the enactment of this law, inflicting physical injury on a companion or service animal was not specifically identified as abuse towards the owner of the animal and received no express statutory protection. Further, in the old law, there was no provision specifically allowing the court to include companion or service animals in the protective order to safeguard them from abuse. In Delaware, there was no provision listed in the statute that protected domestic violence victims from being abused through harm to their companion or service animals. This amendment comes about from the introduction of three new bills that were built on a significant body of research, which evidenced a link between animal cruelty and domestic violence. The new law recognizes a need for change because injuring an animal is often a precursor to violence against an intimate partner. Proponents of the bill advocated for its passage, asserting that pets are members of the family who often get caught in disputes and are “used as tools of manipulation or abuse.” More than two-thirds of the states provided legal protections for pets from abusers when this legislation was enacted, and there may be more to follow.
By Jorge Herrera De León and Taylor Oslacky
The Animal Care and Control Omnibus Amendment Act of 2022 allows Washington, D.C., courts to consider the best interests of a “pet animal” when awarding its ownership once a proceeding for dissolution of marriage or legal separation ends. The statute defines a “pet animal” as “any animal that is community property and kept as a household pet.” Additionally, the amendment allows D.C. courts to order one of the parties to a divorce or legal separation to care for the pet animal while the proceeding is ongoing. Courts may enter this order when one of the parties to a divorce or legal separation requests it. This court order, however, would not impact the court’s final determination of ownership of a pet animal.
Prior to the enactment of this law, Washington, D.C., judges were not statutorily allowed to consider the best interest of a pet animal to determine its legal ownership. Rather, judges deemed pet animals as property in legal separation proceedings and largely awarded their ownership to the party that could prove its legal ownership. Proof of ownership included adoption paperwork or receipts of purchase.
Determining the ownership of a pet animal in this manner could cause distress to the parties during divorce or legal separations. The distressed parties were the parties to a divorce or legal separation who could not prove legal ownership of the pet animals but who developed significant bonds with their pets. Now, judges may even assign “joint ownership” of pets to the parties to a divorce or legal separation if it is found to be in the pets’ best interest. Although this new law does not indicate what should constitute a pet animal’s best interest, some authors suggest that the criteria might resemble the standard applied to the determination of custody of minor children. With the new status quo, the Washington, D.C., City Council joins other jurisdictions, including Alaska, California, and Illinois, in considering the best interest of the pet animal when awarding its ownership.
By Alexis Ho and Mary Sharmaine Tan
Nebraska expanded its order of protection relief for domestic violence victims to include household pets. The amendment provides courts with the authority to grant domestic violence victims who file for an order of protection sole possession of a household pet owned, possessed, or leased by (i) the domestic violence victim, (ii) the respondent of the order of protection, or (iii) any family or household member living with the domestic violence victim or the respondent, for the duration of the order of protection or as ordered by the court. A household pet is defined as any animal kept for companionship or pleasure rather than for commercial purposes or consumption like a livestock animal. For the duration of an order of protection, the court may bar the respondent from coming into contact with or harming or killing the household pet. A petitioner who is granted possession by the court while the order of protection is in effect is prohibited from permanently transferring, selling, or disposing of any household pet in their possession without the court’s prior approval. However, if a licensed veterinarian recommends that a household pet undergo humane euthanasia because of serious illness or injury, the court’s prior approval is not required.
Before this amendment, there was no statutory clarification on who was to have possession of a household pet for the duration of an order of protection. The statute’s catch-all provision allowed the court to order “relief deemed necessary to provide for the safety and welfare of the petitioner and any designated or household family member,” but inadequately protected both human and household pet victims of domestic violence. Since the forms to apply for an order of protection did not explicitly mention household pets, a petitioner was “unlikely to have their memory sparked” to include the protection of their household pet. The president of a Nebraska domestic violence shelter program that accepts pets reported that 65% of victims refuse to leave their abuser without their pets, “50% in the shelters have left the abuse and the pets with their abuser, and 25% of those have returned because their abuser has used their pets to get them to return.” Updating the statutory language to include pets is a “game changer” because it provides an opportunity for victims to move into safe, healthy, and happy homes without the fear that their pets will be abused or used as leverage. As of December 2023, 40 states included animals in their protection orders, and most of those states allowed the court to grant the petitioner custody.
By Chloe Patrice Adasa and Bogum Lee
Connecticut now requires that a person be at least 18 years of age to be eligible to marry. This legislation eliminated previous exceptions to marriages such as those that were filed by 16- to 17-year-old minors and were approved in Probate Court. Prior to this amendment, parents or guardians of a minor at least 16 years of age could petition the Probate Court of their district to issue a marriage license to the minor. The process for this marriage license involved hearings and giving notice to the minor, the minor’s parents or guardian, and the other party in the petitioned marriage. The current statute, as amended, no longer permits the Probate Court to issue sought-out marriage licenses to minors in any circumstances. It was recorded that 1,251 child marriages occurred in Connecticut between 2000 and 2021, with 33 child marriages occurring between 2017 and 2023 following an earlier amendment to the statute that raised the minimum age for marriage to 16.
The Judiciary Committee report supporting this bill pointed to the higher rates of domestic violence, susceptibility to poverty, and emotional damage experienced by those who marry before the age of 18. These negative implications conflate with the fact that married minors cannot enter into legal contracts, consequently being unable to retain a lawyer, to file for a divorce, and to seek relief for other issues they might encounter with their health, educational attainment, and economic independence. Advocates and bipartisan groups of lawmakers in opposition to child marriage also argued that permitting child marriage would risk making Connecticut a “destination for adults seeking to marry minors.” Removing the exception for approved child marriages therefore eliminates dangerous legal loopholes that put these children at risk, helping to protect their human rights.
By Claudia Campos Martinez and Kaitlyn McNeil
Michigan now prohibits marriages of any individual under the age of 18. Additionally, the new law deletes a provision that allowed children ages 16 and 17 to get married with parental consent and children under 16 to get married with parental and judicial approval. This amendment applies to marriages entered on or after September 19, 2023.
Previously, Michigan had no minimum age for marriage, providing that children 17 and under met specific approval requirements. To marry, Michigan required 16- and 17-year-old individuals to obtain parental consent and younger children to acquire both judicial approval and a parent or guardian’s consent. This permitted parents and judges “to marry minors who are not . . . legally old enough to engage in consensual sex” with older partners. This new law prevents the marriage of children as young as 10 to partners with significant age gaps, like a “16-year-old girl married to a 45-year-old man and a 17-year-old boy married to a 68-year-old woman.” This amendment to Michigan law was part of a series of Senate Bills that obliterate underage marriage. To
Collectively, such amendments “aim to protect Michigan minors from being coerced or forced into traumatic and frequently dangerous marriages with adults.” With bipartisan support, this new law defeats the prior law, which supporters of the amendment noted dated back to the 19th century, that allowed these behaviors to persist. In 2023, a survivor-led nonprofit organization named Unchained at Last announced Michigan as the 10th state in the United States to ban the practice of child marriage completely. This nonprofit, dedicated to ending child marriage, performed a study in April 2021 that found roughly 300,000 minors were legally married between 2000 and 2018, with over 5,000 minors married in Michigan. Most underage marriages in the United States were girls wed to adult men, which “are often forced and sometimes used to avoid prosecution for rape of a minor.” Currently, the United States and 192 other countries are part of a worldwide effort to end child marriage, and this amended Michigan law responds to this cause.
By Felicia Tabachnick and Theodore Richert
During Wyoming’s 2023 legislative session, Wyoming amended its minimum marriage age statute to increase the minimum marriage age to 18, with some exceptions for children aged 16 to 17. The amended statute voids all marriages involving a minor under the age of 16. Marriages involving minors ages 16 and 17 are also void unless a “father, mother, guardian or person having the care and control” of the minor gives verbal or written consent and a judge of a court in Wyoming approves the marriage and authorizes the county clerk to issue a marriage license. If a minor age 16 or 17 has received a declaration of emancipation, they may marry without authorization of a judge.
Before the statute was amended, the minimum marriage age in Wyoming was 16 years of age. However, the exceptions in the amended statute that allow minors to get married at ages 16 and 17 applied without an age cutoff, meaning that before this amendment minors under the age of 16 could marry with the consent of a parent or guardian and judicial approval. Wyoming is raising its marriage age, in part, to protect minors from getting married too young; over the last 11 years, in Wyoming, an average of 20 marriages each year have involved a spouse under 18. A study conducted by Unchained at Last found that from 2000 to 2018 approximately 60,000 marriages occurred between two people at an age difference “that should have been considered a sex crime,” and in approximately 88% of those marriages the marriage license effectively functioned as a “get out of jail free card” protecting the spouse from culpability for what would be considered statutory rape. In 2019 and 2020, a similar bill failed in the Wyoming House. Like the 2019 and 2020 bills, this 2023 bill faced criticism from members of the Wyoming Republican party, who argued that the amendment denies the “fundamental purpose of marriage” and parental rights. Opposers to the amendment argued that since minors can bear children before they are 16, marriage should be an option. However, despite the debates, the amendment passed the House with a 36-25 bipartisan vote, and Governor Mark Gordon (R) signed the amendment into law. Wyoming joined Michigan, Connecticut, and Vermont in raising their marriage age in 2023.
By Natalie Halpin and Mary Sharmaine Tan
Montana now requires that school districts “develop and adopt a policy to promote the involvement of parents of children enrolled in the school district. . . .” There are seven enumerated policies, including those that empower parents to withdraw students from lessons that “offend the parent’s beliefs or practices” and require parental consent for students to use “a pronoun that does not align with the child’s sex.” Even with parental consent, schools are not required to honor students’ preferred pronouns. Other policies include plans for “parent participation in the school district” and involvement in its governance; and procedures to educate parents on parental rights under Montana law, their child’s course of study, and the “nature and purpose” of extracurricular activities, for which parental consent is required and withdrawal is permitted. Implementation may vary based on the policy decisions of each school district.
Prior to the new law’s enactment, Montana parents had broad rights to direct their children’s education. There was no statutory requirement that school districts adopt specific policies that are now required by law. Montana educators believe the new law was created in response to the growing “‘parental rights’ movement,” operating in politics today as a conservative effort to increase state legislation that would give parents more educational oversight. Supporters of the new law argue that school districts need to “set aside the identity politics” and “instead focus on reading, writing and arithmetic, and truth in history.” They argue it encourages collaboration between the school board trustees and parents. Critics of the legislation, however, are concerned about its effect on transgender and gender nonconforming students. If lacking parental consent, these students may be deprived of an important space to express their gender identity. Further, schools may be compelled to disclose students’ preferred pronouns with parents before students are ready to share that information. This has been one of several laws enacted by Montana’s 2023 Legislature that critics note predominantly affect transgender and gender nonconforming students. Regarding the other enumerated policies, critics fear that parental discretion to remove their children from lessons will result in students being deprived of an “environment where they can freely learn about topics their parents have sheltered them from.” In school board meetings and legislative hearings, parents inspired by the “parental rights” movement have alleged that educators and administrators are keeping parents out of the classroom in an effort to indoctrinate the students and push political agendas. Parental rights advocates have supported restricting the teaching of Critical Race Theory (CRT) and instruction in CRT was previously restricted pursuant to an opinion by the State Attorney General. Although school districts can decide how they wish to interpret and implement these policies, they must comply with the new law’s specified standards.
By Maria Panikidis and Sarah Silbowitz
Oregon’s new law provides that a minor under 15 years old may consent to an abortion without parental consent if it is provided by a health care provider who is acting within their scope of practice. The health care provider must also reasonably believe that involving the parent or guardian either would result in abuse or neglect or would not be in the best interests of the minor, for reasons documented after obtaining the approval of another health care provider from another facility. Additionally, a minor of any age may consent to receive reproductive health care information and services without parental consent. “Reproductive health care” as defined in the statute includes “family planning and contraception, pregnancy termination services, prenatal, postnatal and delivery care, miscarriage management, fertility care, . . . treatments for sexually transmitted infections and reproductive cancers and any other health care and medical services related to reproductive health.”
The law previously focused on a minor’s right to consent to birth control information, as well as medical, dental, and optometry treatments, without parental consent. Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, where the Court held that the Constitution does not confer a right to abortion, many states started implementing bans on abortions. Supporters of this bill wanted to ensure that reproductive health services would remain accessible to individuals of Oregon and provide them with the right to make important decisions about their own reproductive health.
This amendment and other provisions of the new law sparked significant debate. Supporters of this law described abortion as lifesaving and argued that it was a necessary measure to push back against anti-abortion legislation across the country. There are disadvantages to early childbearing for an adolescent mother, “including lower rates of school completion, higher rates of single motherhood,” and higher incarceration rates among male children. Additionally, mandatory parental involvement laws have adverse implications because they “do not promote family communication [and] do not protect the physical [and] emotional health of young women. . . .” Research has shown that most minors ages 14 to 17 are as competent as adults to understand the risks and benefits and can make voluntary and rational decisions when deciding whether to receive an abortion.
Opponents of this new law highlighted concerns regarding limits on parental rights and the long-term effects of allowing minors to make these decisions without parental approval. To prevent the passing of this bill, Oregon Senate Republicans conducted a six-week walkout that was prompted by the view that these abortion provisions and other provisions concerning gender-affirming care were “too extreme.” To end the walkout, Democrats agreed that in cases where minors seek to obtain an abortion without parental consent, like in cases of incest, a health care provider would have to obtain the approval of a second provider. The governor of Oregon, Tina Kotek, who signed and supported the bill, stated that “Oregon will continue to lead the way in building a more equitable health care system that centers patients and supports workers and providers.” Oregon’s new law provides a path for additional states to follow in protecting minors’ reproductive rights.
By Arya Parasnis and Sarah Silbowitz
The new law expressly provides that youth who are adjudicated a youthful offender may be referred to a youth-appropriate, community-based restorative justice program. In Vermont, a delinquent child is a person between the ages of 10 and 22 who has been alleged to have committed an act of delinquency. A youthful offender is between 14 and 22 years of age and has been charged with an offense in the Family Division in a petition that could otherwise be filed in or was transferred from the Criminal Division. Generally, under youthful offender statutes, a youth who meets certain requirements can receive rehabilitative rather than punitive treatment. This relieves those in that age group of the harshness of the usual criminal process with more informality and confidentiality. In Vermont, once a youth has been adjudicated a youthful offender, the case is continued in Family Court, as opposed to Criminal Court. In Family Court, a disposition case plan will be approved. The plan imposes certain conditions such as completion of juvenile probation, upon which their youthful offender treatment is contingent. Before the disposition case plan is approved, the court can directly refer the child to a community-based provider, including a community justice center or a restorative justice program for youth. Restorative justice allows those who are impacted by harm to share its impact and allows for the perpetrator to reveal why they committed the harm and reflect on how to help restore the victim and the community. The alternative of a community-based or restorative justice program does not require that the child be placed on probation. However, if the child fails to complete the program or the provider does not accept the case, then the child will return to court for further proceedings, such as the implementation of the disposition order.
Prior to the amendment, the statute simply laid out what the court must consider when deciding whether to treat a child as a youthful offender. Once the child was adjudicated a youthful offender, the court would create a disposition case plan and, if appropriate, the youth was placed on probation or given another rehabilitative consequence. However, the new law was not the first restorative justice program in the state. In 2016, the Legislature adopted a statute that allowed youth in delinquency matters to participate in a community-based or restorative justice program with the State Attorney’s approval, before any preliminary hearings. Once the child was alleged to have engaged in delinquency, the child could be referred directly to a community justice center or restorative justice program in place of filing charges. The new law codified the opportunity for these programs for youthful offenders. The change is significant because it ensures that children charged as youthful offenders can be diverted directly into community-based programs instead of receiving punitive punishment. This is beneficial to youth because it allows for an alternative to sentencing, and it also saves the court system and the Department of Children and Families time and effort because the children do not need to go on probation. Before 2016, Vermont was one of only two states in which 16- and 17-year-olds could be charged as an adult in court, regardless of the offense. The 2016 law, which made multiple changes to Vermont juvenile delinquency law, was enacted to focus on rehabilitation rather than punishment and to reduce the consequences of a criminal conviction on a youth’s record. Now, the 2023 amendment to the law codifies a youthful offender’s access to alternatives that the law previously only expressly provided for delinquency proceedings.
The work on this article was overseen by Executive Law in 50 Editors Alexa Gonzalez ’24 and Nora Kelly ’24, with support from Student Editor in Chief Alexandra Ogunsanya ’24; Curriculum Editor Toni-Ann Kreisberg ’24; Research and Reference Editor Chelsea Ryan ’24; Development and Communications Editor Darryl Bobb ’24; Executive Articles Editor Sofia O’Shea ’24; and Faculty Editor in Chief Lisa F. Grumet. Contributors include Senior Editors Meg Beauregard ’24, Nicole Keegan ’24, Meridith Kennedy ’24, Bogum Lee ’24, Kaitlyn McNeil ’24, Taylor Oslacky ’24, Theodore Richert ’24, Pamela Sausaitis ’24, Grace Shim ’24, Sarah Silbowitz ’24, Mary Sharmaine Tan ’24, and Elaine Villanueva ’24; and Junior Editors Chloe Adasa ’26, Jennifer Amada ’24, Jack Arakanchi ’26, Gino Bova ’25, Claudia Campos Martinez ’25, Jillian Colombo ’25, Arielle Edelheit ’26, Emily Fabbrini ’25, Natalie Halpin ’25, Jorge Herrera De Leon ’26, Alexis Ho ’25, Kelly Jackson ’25, Jordan Karpoff ’25, James Kelly ’24, Sarah Khan ’25, Evangelia Korkis ’25, Shelby Luria ’25, Janie Mai ’25, Erin Martin ’26, Alexandria Neri ’25, Ranielle Nulman ’25, Abigail Paholski ’25, Maria Panikidis ’25, Arya Parasnis ’25, Anya Patterson ’25, Madison Phillips ’25, Sarah Sexton ’25, Felicia Tabachnick ’25, Nimra Tariq ’25, and Gianna Vitello ’24.
