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Abstracts

Family Equality - Plenary One

The Triple System of Family Law

June Carbone & Naomi Cahn

In this paper, we articulate a new three-level structure of family law, a structure that has developed as a result of the combination of women's changing status and greater economic inequality. One system characterizes the upper middle class, and it deals with women’s greater power through more egalitarian relationships. It has the benefit of legal rules that express and reinforce emerging norms concerning equality, autonomy, and interdependence. The second system imposes a two parent norm on lower income individuals, regardless of the reality of the relationships, as these families become involved in the legal system through public welfare and child support. The third strand involves couples who neither use the law to order their relationships nor are subject to the involuntary public support system. The legal norms of the formal system are less likely to reflect the parties’ agreement with each other, and people are more likely to deal with these differences by avoiding the formal system than by challenging it.

Equality in Defining Parent-Child Relationships: The Impacts of Gender, Class and Family Form

Leslie J. Harris

As courts and legislatures define the criteria for imposing various aspects of the parent-child relationship on families outside the two-married-parents-with-their-biological-children, they are wildly inconsistent from one jurisdiction to the other and even within jurisdictions from one fact pattern to the other. It is common, for example, for state law to say that an unmarried father who has not played a role in his child’s life cannot prevent the child from being adopted, even by the mother’s new mate, but that if the mother is raising the child alone, he is entitled to visitation, perhaps even custody, upon establishment of his legal paternity. In a number of states, a child born to an unmarried couple who conceive by sexual intercourse is the man’s legal child, but if the couple conceives through artificial insemination within the assistance of a doctor, the man is not the legal father. And yet he may be if the man and woman conceive by do-it-yourself artificial insemination.

This paper examines cases and statutes about child support, child custody and visitation, adoption and assisted reproductive technology to examine these different approaches and to tease how possible explanations for the inconsistencies.

Permitting Prejudice: How Exemptions from Anti-Discrimination Laws Harm Queer Families

Julie Shapiro

Legal recognition of same-sex relationships and enactment of state anti-discrimination statutes has enhanced the status and security of queer families in many ways. In states with anti-discrimination statutes, queer families can claim equal access to a wide array of resources and services, some provided by the state and others by private entities.

Increasingly claims to equal treatment have been met with objections arising from assertions of religious freedom. From faith-based adoption agencies to wedding photographers, service providers assert that they have religiously grounded objections to same-sex families and that their religious objections are entitled to some recognition. As these religious freedom claims have multiplied they have also grown more prominent in media coverage of lesbian and gay rights. Indeed, religious freedom arguments figure prominently in opposition campaigns in the four states with marriage access legislation on the ballot. Religious freedom claims have also been the subject of a developing body of academic literature.

Scholars considering these claims have generally accepted a formulation where harm to the family seeking access to services is weighed against the potential burden on religious freedom. This consideration of the individualized harms frequently leads to endorsement of a compromise that provides a religious opt-out where there is at most minimal damage to the family seeking services. Thus, refusal might be permitted where a family can readily obtain adoption services from another provider at no added cost and with no delay.

The prevalent analysis is incomplete, however, and this paper seeks to highlight and remedy that deficiency. In fact, religious objectors are seeking government permission to discriminate against queer families. Permission to engage in discriminatory practices necessarily stigmatizes queer families. It is a clear statement that these families are not equal members of the community entitled to all rights that citizens generally claim, but instead have lesser status.

There can be no doubt that stigmatization—particularly institutional stigmatization by the government—causes significant harm. This harm is experienced not only by the specific family denied services but by all queer families. The recognition of this harm is amply demonstrated by the body of cases considering stigma in the context of race discrimination—cases ranging from Brown vs. Board of Education to Palmore v. Sidoti. The acceptability of the proffered compromise must be reassessed in light of this broadly experienced harm. That reassessment is the final project of this paper.

Marriage Equality, Gender Equality and the Women’s Convention

Barbara Stark

‘Marriage equality’ remains an elusive goal in this country. This paper argues, as many have, that marriage equality—at least as it refers to equality within heterosexual marriages-- requires gender equality. It argues further, however, that U.S. law cannot assure gender equality because of its pinched, narrow conception of ‘rights.’ Those seeking marriage equality in the United States, accordingly, should look to international human rights law, specifically, the Convention Against All Forms of Discrimination Against Women (“CEDAW’).

Justice Ruth Bader Ginburg’s early anti-stereotyping work Justice Ginsburg’s approach “was grounded,” as Cary Franklin notes, “[N]ot in a commitment to eradicating sex classifications from the law, but in a far richer theory of equal protection involving constitutional limitations on the state’s power to enforce sex-role stereotypes.” As Ginsburg herself has come to realize, however, anti-stereotyping is only the beginning. Barring the state from enforcing sex-role stereotypes is inadequate. This Article explains why anti-stereotyping is insufficient, what else is needed, and why the Constitution cannot be relied upon to provide it. Rather, the more pro-active approach developed through the CEDAW is far more promising.

From International Adoption to International Surrogacy: The Emergence of Gestation for Hire in Guatemala

Richard F. Storrow

Do surrogate mothers have the same rights as other mothers? Treating all gestational mothers alike—as a priori mothers—has the virtue of consistency, but it also has the ill effect of settling the question of motherhood based on generalizations about what it means to gestate a child. Equality has as much to do with choice as it does with bestowing the same status upon individuals in similar circumstances. Since not all gestating mothers are alike in their desire to bond with the child, becoming pregnant in a particular way should empower women to reject, as it were, their “right” to be a mother and all its attendant obligations. This is the principle that many jurisdictions in the United States have embraced. The question in those locations becomes, then, how we choose as a society to structure the choice to become a surrogate mother. Whether this conception of equality for surrogate mothers extends to international commercial surrogacy is a trickier question. This paper examines the emerging industry of gestation for hire in Guatemala, once a prominent center for international adoption, and asks whether an equal opportunity model of surrogacy makes sense in the country with the worst record in the Americas for women’s rights.

Family Equality - Plenary Two

Geographic Inequality in Family Law

Susan Appleton

Family law has traditionally been state law, specifically the law of the state of domicile. The emphasis on the state of domicile reflects not only important principles of our federalism but also family law’s focus on the home. This approach expressly contemplates different legal regimes for families in different states – inequality by design.

Although contemporary developments have addressed formally some of the inequalities that once marked family law (e.g., inequalities based on gender and the marital status of a child’s parents) and broad constitutional holdings about the family apply nationwide (e.g., limited reproductive freedom), inequalities from one state to the next persist. For now, the division among the states on same-sex marriage, nontraditional parentage rules, and hurdles to abortion access all illustrate this “geographic inequality.” “It depends on where you live,” as recent news reports state with professed astonishment. How do we understand the search for equality in family law, given the expected differences that stem from the fundamental principle of state authority? How do we understand these geographic disparities, given family law’s quest for equality?

What We Talk About When We Talk About Matriarchy

Tonya Brito

This article addresses the question of equality in family law by examining the status of single mother households in society. It takes on and critically evaluates the claim that a nascent Middle Class Matriarchy is emerging in post-recession U.S. society. Pointing to the progress that women have made in a number of domains, (e.g., education, workplace, family) alongside the declines that men have experienced, claims are being made (by, among others, author Hanna Rosin in her recently published book, The End of Men) that women are becoming the dominant sex. This article places its emphasis on the family and the relative position of men and women within families and the larger political economy. In so doing, the article unpacks the meaning of the term “matriarchy” and explores continuing societal anxieties surrounding single, female-headed households. The article begins its analysis from a historical perspective, examining earlier instances of “matriarchies” existing in other racial and economic subgroups in the United States, particularly the experiences of lower income black single motherhood in the 1960s and white single motherhood in the 1980s & 1990s. The article assesses the distinct features of those matriarchies and compares and contrasts them along several dimensions, including to what extent they reflect and/or reinforce gender inequality within families and in society more broadly. Finally, the article considers whether those earlier experiences speak to the current phenomenon and what lessons they hold for the field of family law.

Sharing Inequality

Alicia Brokars Kelly

Economic collaboration is an important part of family life. This process can bring significant financial benefits by supporting development and distribution of key resources for family members. It can also nurture affective relationships, as economic activities are woven together with the social and emotional, resulting in a web of inter-personal connections. Alongside its benefits, sharing also brings vulnerability to harm, both financial and personal. For example, individual family members sometimes bear financial disadvantages such as lost wages or reduced consumption for the greater good of the family.

This piece overviews some contrasting examples of the law’s regulation of economic collaborations in families, surveying a subset of rules governing married and unmarried couples as well as inter-generational relationships. The article argues that law often distributes the risks and rewards of financial sharing unevenly and inconsistently. This contributes to inequalities within and across relationships and tends to impose particular adverse effects on women caregivers, among other disadvantaged sub-groups. I suggest that law’s focus should not be on the form of the relationship, but rather on the economic activities and outcomes that occur within it. Recognizing and responding to financial behaviors and it impacts in families can advance equality.

Clintonism, Federal Family Law, and Equality, 1992-2012 and Beyond: FMLA, PRWORA, and DOMA

Linda C. McClain

My paper will examine issues of family law and equality through the lens of Clintonism and is legacy, 1992-2012 – and beyond. By the “beyond” I mean that, with President Obama re-elected and beginning a second term, my paper’s topic is more than simply of historical interest. Clintonism and its New Covenant introduced key concepts of opportunity and responsibility and values of work, family, responsibility, and community. An examination of Democratic platforms in each election year since 1992 reveals a continuity and evolution with respect to the family and family policy. To anchor my paper, I will consider the trajectory of three statutes enacted during Clinton’s presidency, focusing on issues of equality as well as the core themes of Clintonism, which, I argue, are also core themes in the Obama Administration. The three laws are: the Family and Medical Leave Act (1992), the Personal Responsibility and Work Opportunity Reconciliation Act (a/k/a welfare reform) (1996), and the Defense of Marriage Act (1996). With DOMA, for example, we have seen a complete turn-around in terms of the withdrawal of Democratic and Presidential support for DOMA and new arguments about marriage equality, calls for DOMA’s repeal (the proposed Respect for Marriage Act), and the Administration’s refusal to defend it in court. The U.S. Supreme Court has granted cert in Windsor v. United States, in which the Second Circuit held that Section 3 of DOMA is unconstitutional and has concluded (as the Obama Administration has argued) that classifications based on sexual orientation warrant heightened (intermediate) scrutiny. With respect to the FMLA, the Obama administration has identified work/family balance and flexibility as central issues, seeking to build on the FMLA. It identifies them as “not just women’s issues,” even as the White House Task Council on Women and Girls recognizes the importance of such issues to women’s equality. President Obama and First Lady Michelle Obama have also made the personal political, using their own work/family challenges to illustrate the need for policy response. PRWORA emphasized moving poor women “from welfare to work,” but also opened the door for a new federal role in promoting marriage and responsible fatherhood as part of welfare policy. This much-criticized law enjoyed bipartisan support; both parties took credit for in the 1996 election. In recent years, scholars and policy analysts have warned of a growing marriage gap related to broader issues of economic inequality and worried about the impact of this inequality upon children – a concern captured by terms like “the reproduction of inequality” or “diverging destinies” (Sara McLanahan). Here, too, the so-called First Marriage features as an opportunity for the Administration to address issues like marriage education, marriage quality, and parental responsibility.

In addition to looking at the impact of and evolution of FMLA, PRWORA, and DOMA, I will also examine the evolution of the ideals and key themes in federal family policy as expressed in party platforms adopted in the presidential elections since the end of the Clinton era, focusing especially on 2008 and 2012. Although the 2012 campaign focused far less than previous campaigns on families, family values, and family policy, the party platforms nonetheless reveal some striking points of agreement and sharp points of disagreement.

Reflections on Equality in Family Law

Lynn D. Wardle

Family Law as a separate discipline connotes that families are different from other kinds of human associations. Family relations are not the same as other kinds of relationships but are unique. The push for “equality” in family law may encourage ignoring vital differences between various relationships that matter for families and for society.

There are many different kinds of families. Marriage form/substance have varied across cultures and time. Likewise, parenting forms and standards have varied in our own society through the years. Some kinds of marriage and parenting styles have not been beneficial to society of individuals. All kinds of families are not equal. All kinds of marriages do not produce the same effects or the same potential for success of contribution to society. All kinds of parenting do not produce the same effects or the same potential for success of contribution to society. All feelings of love, affection, and emotion are not equal or equally beneficial.

Labels alone, even legal labels like marriage, spouses, parenting, and parents, cannot produce or protect equality. Substance and characteristics of relationships differ and matter. Different kinds of “marriages” and “parenting” have different effects.

One purpose of family law is to channel persons into positive, beneficial kinds of marriage and parenting. Family law also protects against most potentially harmful, dangerous kinds of marriage and parenting. There is a need for boundaries to protect and to channel away from the harmful and toward the beneficial. But there is risk of unjust boundaries that wrongfully exclude, stigmatize.

There are many different meanings of “equality” and the outcome of legal analysis depends in no small part on which meaning of equality is used. The concept of equality in general of all sexual relations and of equality in law of all intimate associations is not only unsustainable but ultimately self-destructive.

Recognizing Familial Relationships - Session Three

Contractualizing Parenthood

Sarah Abramowicz

Many scholars otherwise in favor of the enforcement of family contracts agree that parent-child relationships should continue to prove the exception to any contractualized family law regime. This Article instead questions the continued refusal to enforce contracts concerning parental rights. It argues that the refusal to enforce such contracts contributes to a differential treatment of two types of families: those deemed "intact" - typically consisting of two married parents and their offspring - and those deemed non-intact. Intact families are granted a degree of freedom from government intervention, as long as there is no evidence that children are in any danger of harm. Non-intact families, by contrast, are subject to the perpetual threat of intervention, even in the absence of harm. The result of this two-tier system is that non-intact families are denied the autonomy and the stability that intact families enjoy, to the detriment of parents and children alike. The Article argues that in an age of serial divorce, unmarried parentage, new family forms, and assisted reproductive technology, marriage can no longer suffice to render families intact. Rather than force parent-child relationships into a marital paradigm that is increasingly out of touch with current realities, we should permit and encourage parents to use contract to create the intact status that marriage can no longer provide.

Proposal:

I propose to present the article described above, and to discuss its implications for equality in family law. My article proposes greater enforcement of custody and parentage contracts than the current legal regime permits. The article focuses on custody and visitation agreements, and discusses how such agreements are relevant across a range of contexts, including premarital and postmarital custody agreements; co-parenting arrangements; agreements between intended parents and sperm donors; and open adoption agreements. Under the current legal regime, custody and visitation agreements are largely unenforceable, or at best-- under the most deferential approach, which is applied by a minority of states, and then only where parents agree to a custody or visitation arrangement at the time that their relationship dissolves--such agreements can be rejected by courts if adverse to a child's best interests. The result is that while "intact" families are granted a degree of stability, autonomy, and freedom from state intervention, "non-intact" families--such as divorced or never married parents, or birth parents who have forged an open relationship with an adoptive family--are subject to the continued monitoring, intrusiveness, and unpredictability that the subjective and open-ended "best interests" standard entails. I argue that enforcement of custody contracts will help to bridge the current divide between "intact" families and those deemed "non-intact."

At What Price “Freedom?”: The Search for Equality for Nonconjugal Families

Sacha M. Coupet

In the context of family law, whether genuine equality requires that all families be treated exactly the same or that we recognize and honor their differences remains unclear. One thing we do know for certain is that we are far from our equality ideal. Indeed, however vaunted the value of equality as a cherished principle underlying our democracy, one need only take note of the various spaces in which family matters are addressed to appreciate just how unequal our present system for dealing with families is. One may reasonably argue that when families find themselves in strikingly distinct fora governed by very different rules, rights, privileges and protections, such segregation itself reflects a hierarchy antithetical to the concept of equality that we believe family law ought to ensure. For families outside of the traditional conjugal norm, particularly kinship families, concomitant with the inquiry into equality is that concerning freedom. Indeed, for families who exist in the interstices of family law the inquiry into equality is not far removed from that about freedom, liberty and choice. In the search for equality in family law, do such families enjoy freedom at the expense of fairness? How much freedom would or should such families have to give up in order to achieve equality?

This essay explores the ways in which the state of being treated equally in terms of status, rights, privileges and protections is at times at odds with freedom or liberty of choice. Observing the distinct legal systems in which family matters are addressed—domestic relations, dependency and probate— this essay discusses how gender, class and race influence the search for equality and may profoundly shape one’s definition and experience of freedom.

[Title Forthcoming]

Kevin Maillard

I wanted to submit something on Super Paternity, that is, men who have large numbers of children with multiple partners. These stories are fascinating for media outlets and never fail to attract the attention, awe, and scorn of the public. Just this year, a man in Tennessee was falsely reported to have thirty children by numerous women, up from 21 a few years earlier. In the UAE, a man with 93 children vows to have 100, and is somewhat of a national hero. Both of these cases exemplify the entanglement of the state with intimate life. States have long regulated sexuality, but when children come into play, it presents a conflict of fundamental rights of privacy and the best interests of the child. Does the state have a duty to regulate "responsibility"--a loaded term--when men choose to have unlimited numbers of children? Could the state prohibit fathers from having additional children if there is concern about them becoming public charges? Of course, forced sterilization is a clear violation of constitutional rights, but is there ever a justification for limiting reproduction?

The Sexual Orientation of Fatherhood

Dara E. Purvis

I believe that my work in progress The Sexual Orientation of Fatherhood would make a useful contribution to the “In Search of Equality in Family Law” conference. In the paper, I examine interlocking assumptions about gender, gender roles, and sexual orientation in the context of fatherhood, which raises several questions related to the sameness/difference debate that will be one of the conference’s themes.

My most recent work has focused on intent as a rule of parentage in two contexts: surrogacy and unwed biological fathers. As part of my argument as to how intent might be incorporated to increase the ability of unmarried biological fathers to be recognized as legal fathers, I began to discuss two interrelated questions: first, to what extent do current parentage laws rest upon assumptions that men do not and should not want to be active, engaged, nurturing parents; and second, can legal reforms that aim at strengthening fathers’ rights be viewed as feminist.

In The Sexual Orientation of Fatherhood, I add an additional dimension to this exploration of masculinity studies and family law, by exploring how legal recognition of same-sex intended parents affects stereotypes about fatherhood. I investigate the relationship between assumptions about fathers and heterosexism by comparing the treatment of heterosexual versus homosexual fathers. My paper examines these prejudices in two ways. First, it examines court decisions and legislative debate regarding giving same-sex couples parenting rights, both in the context of disputed legal parentage and adoption, and assesses descriptions of the parenting roles of same-sex male couples. Second, the paper compares custody and child support cases dealing with two male parents and contrasts the depictions of the fathers to the characterization of fathers battling a mother for custody and child support.

My paper expands upon existing scholarship about gay parenting, which generally focuses on legal barriers to parenthood for homosexuals as well as stereotypes of gay fathers as inadequate parents. In contrast, my paper analyzes how same-sex fathers affect the perception of heterosexual caretaking fathers – and by extension, could affect the perception of heterosexual non-caretaking mothers. I argue that greater recognition of parents who counteract gender stereotypes – even where the recognition might arguably lessen women’s rights in family law – ultimately helps women as well as children and nontraditional parents.

Capato, ART, and the Provision of Benefits to After-Born Children

Mark Strasser

In Astrue v. Capato, the Court held that twins conceived and born after the death of their father were not entitled to Social Security benefits. The decision itself might simply be read as an example of deference to an agency interpretation of a federal statute and thus might be thought not particularly noteworthy. Nonetheless, some of the Court’s analysis and public policy reasoning are worthy of note, if only because of the Court’s refusal to discuss some of the implications of its articulated position.

Courts in various states have been forced to confront the issues implicated when children are born through the use of assisted reproductive technologies (ART) after one of the child’s biological parents has already died. While some legislatures have passed legislation providing guidance to the courts in these kinds of cases, others have not, leaving the courts to fend for themselves. This has led to great variation across the states, resulting in dissimilar treatment of similarly situation children. This disparate treatment is exacerbated, because Social Security child insurance benefits piggyback on state intestacy laws.

While intestacy laws implicate a variety of state interests and it is thus neither alarming nor even surprising that states differ about the conditions under which ART children are entitled to a share of a biological parent’s estate, a separate issue involves whether social security benefits for children should be based on state intestacy laws, and, if so, why and how. Capato missed a golden opportunity to provide guidance on that issue.

Meaningful Rights for Children - Plenary Four

Accommodating Childhood

Annette Ruth Appell

Unlike other social categories, such as race, gender, sexual identity, and disability, the category of childhood has received little critical examination in the legal academy. Nevertheless, the category bears examination not only for what it reveals about us—adults, but also for what it reveals about children as complex and powerful subjects in their own right. Recognizing and embracing the important foundational and instrumental roles of childhood, and the importance of children to parents, this paper challenges the dichotomous developmental approach that dominates the regulation of human beings and limits consideration of children and their place in the social and political order.

The category of childhood is both like and unlike other socio-legal categories such as gender, race, ability, and sexuality. Its particular uniqueness is more suited to ascendant approaches reflected in human rights and disability models, rather than in the regime of negative rights which has characterized sexual, gender, and racial liberty in the U.S. This analysis locates vulnerability not in children’s minds and bodies, but instead in negative liberties, an unaccommodating state, and a system that disenfranchises children. The paper helps illustrate this point by contrasting movements across the globe which seek to include children in important decisions about their own lives and the larger polity.

Accommodating Childhood offers both a grounded critical examination of childhood and adulthood and invokes an approach to children’s rights which aims to protect and promote children’s self-determination. This method is part of a broader conceptual movement away from negative rights to liberty rights and demands positive engagement with children and recognition of their individuality and humanity. I reject the equality metric as a tool to empower children, because it fails to take account of vulnerability and offers little of positive value to children. Instead, I suggest an approach that would protect children’s dignity and enhance their liberty. To help illustrate this approach and analyze the relationship between children’s rights and capabilities, I propose a Children’s Participation Act (CPA). This theoretical act is informed by human rights law’s impulse toward dignity and personhood and by the American’s with Disabilities Act, which requires accommodation for vulnerability. The CPA would promote and enhance children’s participation in their own lives and in the lives of their families, schools, and the state.

[Title Forthcoming]

James Dwyer

Most scholarly, judicial, and public deliberation about children, childhood, and parent-child relationships implicitly or explicitly treats the situation of children as sui generis. There is little appeal to general principles applicable to both adults and children. Instead much “reasoning” about legal issues implicating children’s wellbeing is ad hoc, rendering it both unpersuasive and likely to short change children. Yet there is general acceptance that children occupy a moral status equal to that of adults, such that children are deserving of respect in some sense equal to that owed to adults. In this presentation, I will begin with this premise of equality at the most fundamental level of moral status and work forward (quickly) to: 1) derive from that premise general principles as to when children should have legal rights that are identical to, equivalent to, greater than, or less than those which adults possess and then 2) apply those general principles to some particular substantive areas of law such as parentage, domestic violence, custody disputes between parents, and international adoption. Finally, I will suggest that in some legal contexts, such as child protection removals and parent-relocation cases, according children the rights they are due as a matter of equality renders misguided the quest for equality among groups of adults.

Permanency Puzzle

Cynthia Godsoe

This piece, tentatively entitled Permanency Puzzle, would explore how normative ideals of family relationships, particularly parenthood, impede equitable and effective policies and practices. I am particularly interested in the construction of parenthood in the public realm, an area which has not received much scholarly attention. Public parenthood critiques mothers who are invariably low-income and often members of racial minorities, raising significant questions about equality in the race, class and gender contexts. I began to explore this dynamic in earlier work, Parsing Parenthood, and now aim to challenge another aspect of the child welfare system contributing to this inequality—the concept of permanency.

Permanency lies at the heart of child protection policy. Only adults who can provide a child with “permanency” are deemed adequate for parenthood. Yet unpacking permanency reveals that the legal concept is based upon stereotypes about families—for instance, that the idealized nuclear family with one mother and one father is superior to more complex families—rather than empirical data. This narrow conception of permanency undercuts the reality of children’s and parents’ experiences, and ignores the modern psychological understanding of permanency as “an enduring relationship that arises out of feelings of belongingness.” Under the latter definition, studies show that there is no difference between children being adopted and those being cared for by a guardian. Yet the law has been slow to adapt, as evidenced by the ongoing funding prioritization of adoption, and the preference for adoption over subsidized guardianship in state and federal law.

The construction of permanency to reflect a middle class white ideal is particularly detrimental to families from different cultural and racial backgrounds because it recognizes a child’s attachment to only one or two adults total. This framework devalues the network of caregiving particularly common in certain marginalized communities and ignores the data that the two parent nuclear household is no longer a reality for most families (if it ever was). The contested nature of the construction of parenthood became clear this summer (2012) when the California legislature passed a bill which would have allowed legal recognition of more than two parents. The bill would have affected both public and private law families, but was inspired in large part by the former—a child was forced into foster care because neither of her two legal parents could care for her and the court was precluded from granting custody to a third capable adult, her biological father, due to the numeric limitation on parents.

After challenging the assumptions of permanency leading to these problematic results, this piece will conclude by suggesting a few specific changes to child protection law. These changes seek to more equally recognize various family forms and move more children to safe, loving homes—to real permanency.

The Value of Permanent Legal Guardianship/Custody as a Permanency Outcome in Child Welfare Cases: A Legislative Proposal for States

Sarah Katz

The Adoption and Safe Families Act of 1997(“ASFA”) was intended to prioritize the goals of safety, permanence, and well-being for children in the child welfare system, and to prevent “foster care drift,” whereby children remain in foster care without a clear plan or timetable for securing a permanent family. ASFA provides for a hierarchy of permanency outcomes, with reunification with family, and then adoption, being viewed as the most stable option for children. But when reunification and adoption are not possible, permanent custody or guardianship (permanent guardianship) is, in the eyes of the law, the next best option. Subsequent to ASFA, most states revised their child welfare statutes to include provisions for ‘permanent custody’ or ‘permanent legal guardianship’ as a possible “permanency outcome” resulting from a child’s placement in foster care. With the passage of the Fostering Connections and Increasing Adoptions Act of 2008, states now have the option of using federal Title IV-E money to subsidize legal guardianship. This change to the law was designed to further increase the number of children who can safely leave foster care through permanent guardianship arrangements. Under most states’ permanent guardianship statutes, the natural parents retain some sort of visitation or custodial rights – permanent guardianship is therefore distinct from adoption because it does not require termination of parental rights.

There are some advocates who see permanent custody as an undesirable permanency outcome for children, precisely because natural parents may retain some rights to the child, and concerns that these guardianships are not truly “permanent.” The advent of ‘open adoption’ statutes has convinced some that permanent guardianship is no longer necessary or desirable as a permanency outcome, because contact between the child and birth parent can be accomplished through open adoption. This paper will argue that: (1) permanent custody is an important and needed permanency outcome for many children in the child welfare system; (2) the best interests of children are sometimes served by modifying permanent guardianship arrangements; and (3) states can address any concerns about lack of stability in permanent guardianship arrangements through precision in crafting permanent guardianship statutes. The paper will then propose a legislative approach for states to follow.

Reasonable Efforts and Parent-Child Reunification

Raymond C. O’Brien

Among the increasing number of federal statutes impacting family law two continue to impact child permanency and parental rights. First, the Adoption Assistance and Child Welfare Act of 1980 mandates that state courts find that the state child welfare agency made reasonable efforts to reunite a dependent child with his or her parents prior to termination of parental rights. The child is dependent because a state court held that there was sufficient clear and convincing evidence to remove the child from the parents’ home. Often that evidence results from parental poverty, mental or physical disability, or the parents are undereducated and unworldly. Once the child is removed states are required to provide reasonable efforts to all parents to promote reunification and to provide permanency of placement for children. Second, the Adoption Assistance and Child Welfare Act is impacted by the Adoption and Safe Families Act of 1997 and the continuing economic malaise adversely affecting state budgets. These two federal legislative efforts, although purportedly in the best interest of children, shorten the time parents have to cooperate with reasonable state efforts; failure to meet the statute’s deadline requires the state to begin procedures resulting in termination of parental rights.

What constitutes reasonable reunification efforts differs according to the individual circumstances. But there has been a uniform challenge occasioned by the formidable obstacles resulting from the national recession commencing in 2008. Decreasing state revenues reduces state expenditures for reasonable reunification efforts, to include treatment programs and classes that could assist parents in overcoming addictive behavior or in developing better parenting skills. Will the recessionary reduction in reasonable state reunification efforts compound the specified time frame that parents have to cooperate with these state efforts prior to termination of their parental rights? A few state courts have already concluded that decreasing state budgets may constitutionally reduce reasonable reunification efforts. Yet, without ongoing reunification efforts parents may not be able to rectify the causes that occasioned the removal of the child or children from their home. And if the causes are not remedied within a specified period of time termination of parental rights will ensue. Inequality results from the varying budget reductions among the states due to the economic recession; inequality also results because the poor, undereducated, unworldly and disabled are singularly targeted for termination of parental rights.


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