Family Law Quarterly
Volume 47, No. 3 (Fall 2013)

Potpourri of Family Law Topics

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

Child Support Guidelines and Guidelines Reviews: State Differences and Common Issues

Jane C. Venohr

For almost 25 years, federal regulation has required states to provide statewide child support guidelines and review their guidelines at least once every four years. This article explores similarities and differences among existing state guidelines, identifies changes to guidelines over time, and discusses current issues.  In general, states base their guidelines on similar underlying premises, but there is considerable variation in state guideline amounts.   Some of the common issues that arise in state guideline reviews are appropriate and fair adjustments for low-income parents, shared-parenting time, additional dependents and nontraditional families, and medical child support.

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Deconstructing the Impact of Divorce on Children
Sol R. Rappaport

What if divorce isn’t the main culprit in why some children have difficulty post-divorce?  Divorce research often focuses on the negative impact of divorce on children, without fully addressing whether it’s the divorce that causes harm or features associated with divorce.  This article will help readers gain a greater understanding of scientific research by addressing problems in earlier studies.  Current trends in the research are presented regarding the impact of divorce on children.  Finally, recommendations are provided that include changes in the legal process that can decrease the negative impact of divorce. 

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Children's Voices in Family Court: Guidelines for Judges Meeting Children
Nicholas Bala, Rachel Birnbaum, Francine Cyr, & Denise McColley

The authors review empirical research on judges meeting with children in family cases.  While more reliable evidence about a child’s views can be obtained from a full custody evaluation or lawyer for the child, there is value for the courts, children, and parents in giving children the opportunity to meet judges.  The authors propose guidelines for judicial interviews, and suggestions for the type of questions to be asked.  Lawyers for children and custody evaluators should ask children if they want to meet the judge, and, if appropriate, accompanying them to such meetings.  Professionals need more education and guidance about judicial meetings with children.

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Repercussions of the Windsor Decision Beyond DOMA: Family, Tax, Estate, and Employment Issues
Samuel V. Schoonmaker, IV & Wendy Dunne DiChristina

This article briefly summarizes Windsor and then surveys its implications for family law, tax, estate, and employment law. It is a precursor to a likely symposium on same-sex marriage for the Family Law Quarterly, after more dust has settled.

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Citizens' Views About Fault in Property Division

Sanford L. Braver & Ira Mark Ellman

States vary in whether they will consider marital fault in the allocation of property at dissolution. The authors explore whether this reflects ambivalence in the moral intuitions of the lay population, using a representative sample of ~600 citizens. The authors conclude (a) that on attitude items, most responded that fault should not be taken into consideration; (b) in responding to fourteen hypothetical vignettes, 83% of their judgments allocated property exactly equally; (c) nonetheless, significantly less was awarded to an admitted adulterer who offered no excuse or counterclaim. Analysis suggests respondents’ doubts about the law’s ability to deal with fault claims explains these results.

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2013 Schwab Essay Winners

Dramatic Leaps in the Right Direction: Protecting Physically Disabled Parents in Child Welfare Law
Kate Duncan Butler

The Americans with Disabilities Act (ADA) mandates that public entities, including state child welfare agencies, provide reasonable modifications for people with disabilities.  However, in child welfare litigation, raising an ADA argument or defense during termination proceedings often fails.  This article discusses the applicability of the ADA to termination proceedings, the benefits and detriments to raising ADA arguments at that time, and practices that both state agencies and attorneys can use to protect parents with disabilities.

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Do I Have a Voice? An Empirical Analysis of Children's Voices in Michigan Custody Litigation
Jacqueline Clarke

This article surveys fifty-one Michigan judges assigned to the family division of the circuit court as to how they ascertain and weigh the custodial preference of a child during a divorce proceeding. The survey examines what extraneous factors judges believe contribute to a child's preference as well as judicial views concerning the effect in camera interviews have on the rights of its participants. Furthermore, judges evaluated their own performances and considered whether other legal personnel were perhaps better-suited for the difficult task of interviewing children and whether the disparity in legal resources among circuits was a factor in the thoroughness and accuracy of obtaining a child's preference.

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War of the Wiretaps: Serving the Best Interests of the Children?
Allison B. Adams

This article argues that GALs should not be permitted to review and rely on recordings obtained in violation of either state or federal wiretap statutes. The article provides an overview of federal and state wiretap statutes; discusses the role of GALs in child custody proceedings; and offers three reasons GALs should not be permitted to rely on evidence gathered in violation of these statutes: (1) expert witnesses are barred from using such evidence; (2) permitting the use of inadmissible wiretap evidence exacerbates the potential conflicts in the GAL's role; and (3) permitting GALs to rely on such inadmissible evidence frustrates the purposes of the wiretap statutes.

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Publication Date: January 2014



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Board of Editors

Editor in Chief
Linda D. Elrod

Associate Editor
Robert G. Spector

Board of Editors
Jeff Atkinson
Jean N. Crowe
J. Thomas Oldham
John J. Sampson
Samuel V. Schoonmaker IV
Nancy Ver Steegh
Kendra Fershee

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

Managing Editor
Deborah Eisel

Washburn University School of Law
2012-2013 Student Editorial Staff

Student Editor-In-Chief
Travis L. Cook

Student Executive Research Editors
Hazel L. Gauthier
Justin J. Pierson

Student Junior Editors
Lindsee Acton
Elizabeth Billinger
Sara Ehret
Jason McIlrath
Jennifer Ouellette
Ashley Rohleder
Bradley Steen
Lisa Williams

Staff Assistants
Penny R. Fell
Shirley Jacobson