Family Law Quarterly
Volume 44, No. 3 (Fall 2010)

Potpourri Issue

Table of Contents

Please note that pursuant to the ABA's copyright and reprint policies, these articles may not be disseminated without written permission.

Editor's Note     
Linda D. Elrod (Cricket)

Everything Is Bigger in Texas, Except the Community Property Estate: Must Texas Remain a Divorce Haven for the Rich
J. Thomas Oldham

This article examines Texas community property laws in light of what happens in the other seven U.S. community property states. The author notes a significant variation among these state rules, and contends that as a result of its rules, Texas is a haven for wealthy divorcing spouses. The major reasons for this are the shockingly restrictive spousal support laws now in effect, coupled with rules that make it very difficult to challenge a premarital agreement. The author examines relevant aspects of Texas family law rules and details how wealthy spouses benefit from them and why this is unlikely to change..

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International Research Evidence on Relocation: Past, Present, and Future
Nicola Taylor & Marilyn Freeman

This article reviews the international research evidence pertaining to relocation. Overall, the empirical research findings indicate “heightened risk” when a child relocates, particularly if there have been prior moves and multiple changes in family structure. The authors believe that relocation disputes should be considered within the broader context of interparental conflict more generally, rather than as a distinct phenomenon They review the key points that emerge from research on geographic mobility in intact and separated families, and look to empirical research from the United States, Canada, Australia, England, and New Zealand on postseparation relocation disputes and adjudication trends in relocation case law.

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National and International Momentum Builds for More Child Focus in Relocation Disputes
Linda D. Elrod

This article discusses the national and international attempts at developing some uniform standards for relocation disputes. It explores the constitutional and fundamental rights of parents and children in the relocation context, and exposes the current lack of uniformity in relocation laws both here and abroad.  Because the definite trend appears to be away from presumptions for or against a move and toward a best interests of the child approach, the article concludes that the challenge is how to make the best interests test actually focus on child-centered factors. A child focus considers the risk to an individual child based on the child’s developmental stage, resilience and adaptability, relationship with both parents, and the child’s voice.

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A Tale of Two Families—Red Families v. Blue Families: Legal Polarization and the Creation of Culture by Naomi Cahn & June Carbone
Book Review by Rachel Rebouché

This book review concludes that even if the reader differs with the authors’ policy proposals, Cahn and Carbone have created an important and innovative new language for conversations about family values.

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2010 Schwab Essay Winners

The Schwab Essay Contest for law students is sponsored by the ABA Section of Family Law.

The Plan B Age Restriction Violates a Minor’s Right to Access to Contraceptives
Vanessa Lu

This article seeks to address the legal tension that exists since the FDA reclassified Plan B from prescription to nonprescription status for women eighteen years of age and older, even as it continues to restrict access to minors. Part II of the article contains a broad overview of the competing constitutional rights of parents, the State, and the female minor. It also discusses the constitutional rights of the State to regulate and protect adolescent sexual activity while balancing parents’ right to decide how to raise their child. Part III describes how the Fourteenth Amendment protects a minor’s right to privacy, including her decisions concerning contraceptives and procreation. Part IV argues from a legal perspective why female minors should be entitled to access Plan B without a prescription and without parental consent.

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Reestablishing the Humanitarian Approach to Adoption: The Legal and Social Change Necessary to End the Commodification of Children
Katherine Herrmann

This article focuses on the consequences resulting from the commodification of children, aiming to extinguish the fallacies and misconceptions upon which such an adoption market is based. Part I identifies the direct role prospective adoptive parents have had in increasing the popularity of international adoption—particularly adoption of children under the age of five.  Part II examines procedural restrictions inherent in the domestic adoption process in comparison to international adoption methods. Part III evaluates the potential for corruption created by an unnecessarily discriminatory domestic adoption process and the prevalence of adoption agencies unconcerned with the best interests of orphaned children. Part IV addresses the argument that further regulation of the international adoption process can only be detrimental, and examines the changes necessary to render both domestic and international law sufficient for thwarting corrupt adoption practices.

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Giving Back the Other Mommy: Addressing Missouri’s Failure to Recognize Legal Parent Status Following Same-Sex Relationship Dissolution
Nellie Herchenbach

This article focuses specifically on Missouri’s treatment of same-sex partners as parents following the dissolution of their relationship. However, this issue is not unique to Missouri. It is part of a larger national debate on the rights of same-sex couples. The law currently in place does not account for the best interests of the children, nor does it examine parenting ability, but uses a strict definition of “parent. Although the national debate seems to focus primarily on same-sex marriage, the author argues that the focus should be on the best interests of the children of these relationships.

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Growing Pains That Cannot Be Ignored: Automatic Reevaluation of Custody Arrangements at Child’s Adolescence
Jacqueline Genesio Lux

The author looks at the problem of custody arrangements that are crafted when children are very young and are not automatically changed or revisited as children grow. Studies show that young teens generally want to change their custody arrangement as they grow, but have no formal recourse to do so. She examines post-divorce adolescents in terms of their developmental changes, changes in the post-divorce lives of their parents, and the failure of a Pennsylvania custody approach to adapt custody arrangements. Next, she looks at possible solutions in light of four major concerns illuminated by research: providing adaptability of custody agreements, reasonably encouraging adolescents’ voices, allowing review without increasing conflict, and ensuring enforceability. Finally, she proposes the adoption of a periodic review of custody arrangements to address the best interests of young teens.

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Publication Date: January 2011


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Board of Editors

Editor in Chief
Linda D. Elrod

Associate Editors
Robert G. Spector
Nancy Ver Steegh

Board of Editors
Jeff Atkinson
Elizabeth B. Brandt
Jean N. Crowe
John DeWitt Gregory
Robert J. Levy
J. Thomas Oldham
John J. Sampson
Samuel V. Schoonmaker, IV

Reviewing Editors
Susan Appleton
Patricia M. Hoff
Harry D. Krause
Paul M. Kurtz

Managing Editor
Deborah Eisel

2010-2011 Student Editorial Staff
Washburn University School of Law

Student Editor-In-Chief
Jennifer L. Lemus

Student Executive Research Editors
Carol Longenecker-Schmidt
Kristin L. Klementowski

Student Senior Editors
Ashley R. Holm
Joshua V. Nicolay
Stacey L. Sheon

Student Junior Editors
Laura Allison
Samuel Feather
Corrine Johnson
Meghan Kelly
Diane Lautt
Kelly Navinksy-Wenzl
L T Obozele
Nicole Revenaugh
Madeline Rogers
Courtney Steele
Dillon Stum
Todd Thomason
Laura Windheuser

Staff Assistants
Penny R. Fell
Shirley Jacobson