family law case study

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Top Ten Family Law Cases from the Last Ten Years

To help celebrate family lawyer magazine’s tenth anniversary, here is a top ten list of the most important/influential family law cases over the last decade..

To help celebrate Family Lawyer Magazine’s tenth anniversary, here is a top 10 list of the most important/influential family law cases over the last decade.

By Laura W. Morgan , Family Law Consultant

It was also difficult to decide which state cases to include. Sometimes, a state supreme court will issue a decision that is decidedly influential, because other states adopt the reasoning of the ruling. Tropea v. Tropea , 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996), which set out the standard for considering the relocation of the custodial parent, comes to mind. It can be hard, however, to predict if a recent state supreme court will be influential because influence takes time. We may not know if a decision issued by a state supreme court today is truly influential until years from now.

With these caveats in mind, here is my top ten list of important/influential family law cases over the last ten years. Reasonable minds may differ.

Top 10 Family Law Cases from the Last 10 Years

United states supreme court cases.

Fulton v. City of Philadelphia , 141 S. Ct. 1868 (June 17, 2021). The City of Philadelphia contracts with private agencies to certify and support foster parents. City contracts and ordinances prohibited these agencies from discriminating on the basis of sexual orientation. When Catholic Social Services refused to commit to certifying same-sex foster parents, Philadelphia refused to renew its contract. Catholic Social Services sued, arguing the city violated the First Amendment by forcing CSS to either espouse support for same-sex marriage or abandon its charitable mission. Philadelphia argued CSS could not claim a right to serve as a City contractor while refusing to follow anti-discrimination rules designed to meet the City’s duty to protect LGBTQ children and parents in the foster care system. The Supreme Court held that the city violated CSS’s right to free exercise. The Court reasoned that the Philadelphia law was not neutral and generally applicable because it allowed for exceptions to the anti-discrimination requirement at the sole discretion of the Commissioner. Additionally, CSS’s actions do not fall within public accommodations laws because certification as a foster parent is not “made available to the public” in the usual sense of the phrase. Thus, the non-discrimination requirement is subject to strict scrutiny, which requires that the government show the law is necessary to achieve a compelling government interest. The government failed in that showing. www.supremecourt.gov/opinions/20pdf/19-123_new_9olb.pdf
Monasky v. Taglieri, 140 S. Ct. 719 (February 25, 2020). The first question presented concerned the standard for habitual residence: Is an actual agreement between the parents on where to raise their child categorically necessary to establish an infant’s habitual residence? The Supreme Court held that the determination of habitual residence does not turn on the existence of an actual agreement. The second question was: What is the appropriate standard of appellate review of an initial adjudicator’s habitual-residence determination? The Court held that neither the Convention nor ICARA prescribed modes of appellate review, other than the directive to act “expeditiously.” The first-instance habitual-residence determination under the Hague Convention was subject to deferential appellate review for “clear error.” Thus, under the Hague Convention, a child’s “habitual residence” depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parties, and such a determination is subject to review for clear error. www.supremecourt.gov/opinions/19pdf/18-935_new_fd9g.pdf
Sveen v. Melin , 138 S. Ct. 1815 (June 11, 2018). Mark A. Sveen and Kaye L. Melin were married in 1997. Sveen purchased a life insurance policy that year, and the following year he named Melin the primary beneficiary, and his children the contingent beneficiaries. Sveen and Melin divorced in 2007, and Sveen died in 2011. Meanwhile, Minnesota had changed its probate code in 2002 to apply a revocation-upon-divorce statute to life insurance beneficiary designations. Sveen had never changed the designation on his life insurance policy, and Melin was therefore still listed as the primary beneficiary at the time of his death. The Supreme Court held that Minnesota’s automatic-revocation-on-divorce statute did not substantially impair pre-existing contractual arrangements, and thus, application of the statute to revoke the ex-wife’s primary beneficiary designation under life insurance policy that was made before statute’s enactment did not violate the Contracts Clause of the Constitution. www.supremecourt.gov/opinions/17pdf/16-1432_7j8b.pdf
Sessions v. Morales-Santana , 137 S. Ct. 1678 (June 12, 2017). In this case, the Supreme Court cured the unequal treatment of children born to unwed U.S.-citizen fathers by extending a burden to children of unwed U.S.-citizen mothers. The particular statute at issue in the case regulates the transmission of citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship. When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children. Morales-Santana’s constitutional challenge required the Justices to grapple with two crucial and contested issues: the extent to which constitutional gender equality principles govern regulation and recognition of family relationships and the nature of the judiciary’s role in the enforcement of the Constitution at the border. The Supreme Court declared that the law governing the acquisition of citizenship violates equal protection principles. They remedied the equal protection violation by “leveling down”: that is, rather than giving unmarried fathers and their children the benefit of the more generous standard in the citizenship statute, the Court nullified that standard for unmarried American mothers and their children. www.supremecourt.gov/opinions/16pdf/15-1191_2a34.pdf
Howell v. Howell , 137 S. Ct. 1400 (May 15, 2017). A veteran’s ex-wife filed a motion to enforce the divorce decree’s division of military retirement pay after the veteran waived a portion of such pay in order to collect nontaxable service-related disability benefits. The Supreme Court held that states were prohibited from increasing, pro rata, the amount a divorced spouse received each month from his/her veteran’s retirement pay in order to indemnify the divorced spouse to restore that portion of retirement pay lost due to veteran’s post-divorce waiver of retirement pay to receive service-related disability benefits. The Court did not rule out the parties agreeing to such indemnification, although later cases have misinterpreted Howell to so hold. The Court also did not rule out increasing alimony to account for the lost property benefit. www.supremecourt.gov/opinions/16pdf/15-1031_hejm.pdf
Obergefell v. Hodges , 576 U.S. 644, 135 S. Ct. 2584 (June 26, 2015). The Supreme Court held that the Constitution entitles same-sex couples to civil marriage “on the same terms and conditions as opposite-sex couples.” As we all know, the game-changing nature of this decision cannot be overstated. This decision led to Pavan v. Smith, ___ U.S. ___, 137 S. Ct. 2075 (June 16, 2017), which held that an Arkansas statute that denied married same-sex couples access to the constellation of benefits that Arkansas linked to marriage was unconstitutional to the extent that the statute treated same-sex couples differently from opposite-sex couples. (The Arkansas statute generally required the name of the mother’s male spouse to appear on the child’s birth certificate when the mother conceived the child by means of artificial insemination, but allowed omission of the mother’s female spouse from her child’s birth certificate.) www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf
U.S. v. Windsor , 570 U.S. 744, 133 S. Ct. 2675 (June 26, 2013). In many ways, this case teed up Obergefell. The Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and that the federal government cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections. In a nutshell, Edie Windsor and Thea Spyer were married in Canada. New York state, where the parties lived, recognized their marriage as valid. When Thea died, the federal government refused to recognize their marriage and taxed Edie’s inheritance from Thea as though they were strangers. Edie challenged DOMA, alleging that DOMA violates the Equal Protection principles of the U.S. Constitution because it recognizes existing marriages of heterosexual couples, but not of same-sex couples, despite the fact that New York State treats all marriages the same. On June 26, 2013, the U.S. Supreme Court ruled that Section 3 of DOMA is unconstitutional and that the federal government cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections. www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

Cases from the Federal Court of Appeals

Brackeen v. Haaland , 994 F.3d 249 (5th Cir. April 6, 2021). I have included this case because the United States Supreme Court granted certiorari on February 28, 2022. In this case, Texas, Indiana, Louisiana, and individual plaintiffs sued the federal government, contending that the Indian Child Welfare Act is unconstitutional. The Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians intervened in the case. The Fifth Circuit Court of Appeals, hearing the case en banc, held that parts of the law were constitutional and parts were unconstitutional: 1) ICWA’s mandatory placement preferences violated equal protection; 2) provision of ICWA granting Indian tribes authority to reorder congressionally enacted adoption placement preferences violated non-delegation doctrine; 3) ICWA provision requiring states to apply federal standards to state-created claims commandeered the states in violation of the Tenth Amendment; 4) Bureau of Indian Affairs (BIA) exceeded its statutory authority in promulgating regulations, in violation of the Administrative Procedure Act (APA); 5) BIA regulations were not entitled to Chevron deference; and 6) prospective and adoptive parents whose adoptions were open to collateral attack under ICWA had no fundamental right to care, custody, and control of children in their care. Look for the Supreme Court decision in the future. www.ca5.uscourts.gov/opinions/pub/18/18-11479-CV2.pdf
Andochick v. Byrd , 709 F.3d 296 (4th Cir. March 4, 2013), cert. denied, 134 S. Ct. 235 (2013). In Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285, 129 S. Ct. 865, 172 L. Ed.2d 662 (2009), the Supreme Court held that an ERISA plan administrator must distribute benefits to the beneficiary named in the plan, notwithstanding the fact that the named beneficiary signed a waiver disclaiming her right to the benefits. The Kennedy Court left open the question of whether, once the benefits were distributed by the administrator, the plan participant’s estate could enforce the named beneficiary’s waiver against her. In Andochick, the Fourth Circuit took up the question left open by Kennedy and held that ERISA does not preempt “post- distribution suits to enforce state-law waivers“ against ERISA beneficiaries. Thus, wife number one and wife number two are free to duke it out with each other. www.ca4.uscourts.gov/opinions/121728.P.pdf

State Supreme Court Cases

Stone v. Thompson , 428 S.C. 79, 82, 833 S. E.2d 266, 267 (July 24, 2019), reh’g denied (Oct. 16, 2019). A wave of statutes across the country in the 1960s and 1970s abolished common law marriage. One of the last holdouts was South Carolina. This decision abolished common law marriage in South Carolina. “Our review in this case has prompted us to take stock of common-law marriage as a whole in South Carolina. We have concluded the institution’s foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted. Accordingly, we believe the time has come to join the overwhelming national trend and abolish it.“ This decision may be the bellwether for the remaining holdouts to abolish common law marriage. www.sccourts.org/opinions/HTMLFiles/SC/27908.pdf

Laura W. Morgan, Esq., is the owner/operator of Family Law Consulting in Amherst, Massachusetts. She provides legal research, writing, and advocacy services; legal memoranda; precis of transcripts; and other written products for trial or appellate court advocacy to family lawyers nationwide. www.famlawconsult.com

Defining “Habitual Residence” in the Hague Convention SCOTUS defined “habitual residence” and proclaimed a uniform legal standard for the first time – altering the trajectory of U.S. Hague Convention jurisprudence on this issue.

A Tale of Two Family Law Appeals For the family lawyer, these cases illustrate the importance of creating and “protecting” the record in the course of a trial or other evidentiary hearing.

U.S. Supreme Court Tackles Discrimination Against Same-Sex Couples Laura W. Morgan, the owner of Family Law Consulting, sums up the constitutional developments in the cases of discrimination against same-sex couples.

About the Author

Diana Shepherd, CDFA®

Diana Shepherd has over 30 years of experience as a marketing, branding, SEO, copywriting, editing, and publishing expert. As Content Director for Family Lawyer Magazine, Divorce Magazine , and Divorce Marketing Group , she oversees all corporate content development and frequently creates SEO-friendly videos, podcasts, and copy for family law and financial firms. The Co-Founder of Divorce Magazine and Divorce Marketing Group, Diana is an award-winning editor, published author, and a nationally recognized expert on divorce, remarriage, finance, and stepfamily issues. She has written hundreds of articles geared towards both family law professionals and divorcing people, and she has both performed and taught on-page SEO for 20+ years. Diana spent eight years as the Marketing Director for the Institute for Divorce Financial Analysts® (IDFA®), and she has been a Certified Divorce Financial Analyst® since 2006. While at IDFA, she wrote, designed, and published The IDFA Marketing Guide , and she also created seminars for CDFA professionals to present to family lawyers (approved for CLE), as well as to separated and divorcing individuals. She has represented both DMG and IDFA at industry conferences and events across North America, and she has given marketing as well as divorce financial seminars at many of those conferences.

Family Law Cases Outline

Family law governs issues such as marriage, divorce, spousal support, child custody, and child support. Constitutional questions sometimes arise, such as the fundamental right to marry and to make parenting decisions. Other sources of family law include statutes, such as state laws prescribing procedures for marriage and divorce, and case law. Below is an outline of key cases in family law with links to the full text of virtually every case, provided free by Justia.

1 Defining Family
3 Same-Sex Marriage and Relationships
4 Models of Marriage and Gender Roles
5 Domestic Violence
6 Divorce and the Constitution
7 Fault Divorce
8 No-Fault Divorce
9 Child Custody
10 Property Division
11 Spousal Support / Alimony
12 Child Support
13 Separation Agreements

Defining Family

Family may describe individuals related by blood, marriage, or adoption. In addition, family may sometimes describe individuals who treat each other like family, regardless of whether they are related in the traditional sense.

In re B.L.V.B. 一 It is unreasonable and unnecessary to terminate a natural mother's parental rights if her children are adopted by a person to whom she is not married.

Braschi v. Stahl Assocs. Co. 一 The surviving partner in a same-sex relationship is considered family for the purpose of interpreting a New York law prohibiting the eviction of a surviving spouse or family member.

Village of Belle Terre v. Boraas 一 A city ordinance restricting land use to one or more related people or not more than two unrelated people does not violate the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment.

Penobscot Area Housing Development Corp. v. City of Brewer 一 A single-family zoning ordinance is constitutional because it is rationally related to a legitimate state interest.

Marriage confers certain rights and benefits not afforded to unmarried people in areas such as property, health care, and tax law. The right to marry is a fundamental right, although it may be restricted in some ways. State laws generally prescribe marriage definitions and requirements.

Loving v. Virginia 一 State laws banning marriage between individuals of different races violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Zablocki v. Redhail 一 While a state’s interest in protecting child welfare is valid, prohibiting a parent from getting married because they have outstanding child support obligations is not sufficiently tailored to accomplish that interest.

Turner v. Safley 一 An inmate’s right to marry may not be infringed when the regulation is not reasonably related to a legitimate penological interest, such as safety and security.

Michael H. v. Gerald D. 一 An individual outside a marriage does not have a constitutional right to challenge the paternity of a child born into that marriage.

Singh v. Singh 一 A statute prohibiting marriage between related individuals may extend to those related by half-blood.

Catalano v. Catalano 一 A marriage contrary to public policy in one’s domicile may be invalid even if it is valid where it was performed.

Back v. Back 一 A marriage between a man and his ex-wife’s daughter may be valid because the relationship of stepfather and stepdaughter that existed through marriage was terminated upon the termination of that marriage.

Moe v. Dinkins 一 A state law requiring that a minor obtain parental consent before marriage does not violate the Constitution because it is rationally related to a legitimate state interest of preventing unstable marriages and protecting parental rights.

Bronson v. Swensen 一 A state law prohibiting polygamy does not violate the Constitution because there is a compelling state interest to protect monogamous marriage.

Reynolds v. U.S. 一 It is not a valid defense to a crime, such as polygamy, to cite a religious belief or religiously imposed duty.

Sanderson v. Tryon 一 Polygamy alone is not a sufficient basis to deny a parent custody of their children.

Rappaport v. Katz 一 Federal courts should not supervise the marriage forms and procedures of a city clerk’s office.

Lester v. Lester 一 A marriage procured by coercion or fraud may be annulled, but an antenuptial agreement purporting to invalidate a marriage is unenforceable.

In re Marriage of Johnston 一 A marriage procured by fraud may only be annulled when the fraud goes to the essence of the marital relationship.

In re Estate of Love 一 A common law marriage may exist when the parties are able to contract, they agree to live together as husband and wife, and they consummate the agreement.

M.T. v. J.T. 一 A marriage’s validity may be based on the sex of the individuals at the time of the marriage, and an individual may be female at the time of the marriage if they had successfully undergone sex reassignment surgery.

Same-Sex Marriage and Relationships

Same-sex relationships have not always received the same treatment under the law as opposite-sex relationships. Not all states recognized a same-sex couple’s right to marry until the 2015 Supreme Court case, Obergefell v. Hodges.

Baker v. Nelson 一 A state statute only authorizing marriage between two people of the opposite sex does not offend the Constitution.

Baker v. State 一 Under the Vermont Constitution, same-sex couples are entitled to benefits and protections equal to those of opposite-sex couples.

Bowers v. Hardwick 一 The Fourteenth Amendment does not prevent a state from criminalizing private sexual conduct involving same-sex couples (overruled by Lawrence v. Texas ).

Lawrence v. Texas 一 A Texas law criminalizing consensual sexual conduct between individuals of the same sex violates the Due Process Clause of the Fourteenth Amendment.

Goodridge v. Dep’t of Public Health 一 Same-sex marriage must be legally recognized under the Massachusetts Constitution.

Wilson v. Ake 一 The Defense of Marriage Act and a state statute declining to recognize same-sex marriages are constitutionally valid.

U.S. v. Windsor 一 The federal government cannot define the terms “marriage” and “spouse” in a way that excludes married same-sex couples from the benefits and protections that married opposite-sex couples receive. The Court thus struck down Section 3 of the Defense of Marriage Act (DOMA) under the Due Process Clause of the Fifth Amendment.

Obergefell v. Hodges 一 Under the Fourteenth Amendment of the U.S. Constitution, all states must license a marriage between two people of the same sex and recognize such a marriage if it was lawfully licensed and performed in another state.

Models of Marriage and Gender Roles

While marriage may be somewhat defined by the traditional roles that each spouse is expected to assume, definitions and subsequent restrictions based on stereotypical gender and marriage norms have been challenged and sometimes invalidated.

Graham v. Graham 一 A private agreement between married individuals or individuals about to be married that attempts to change the essential obligations of the marriage is contrary to public policy and unenforceable.

McGuire v. McGuire 一 A spouse cannot sue for support payments when they are not separated or living apart from their spouse.

Orr v. Orr 一 State statutes that require only one sex to pay alimony are unconstitutional under the Equal Protection Clause.

Edwardson v. Edwardson 一 Parties may contract before marriage regarding maintenance or disposition of property upon divorce so long as there has been full disclosure, and the agreement is not unconscionable.

Simeone v. Simeone 一 Prenuptial agreements should be evaluated based on the same concepts as contract law generally. An agreement will be enforceable if the parties entered into it after full disclosure, even if it is not reasonable or was not understood by both parties.

McCourtney v. Imprimis Technology, Inc. 一 A mother may not be disqualified from unemployment benefits if she was terminated for persistent absences due to her sick child but was an otherwise good employee who made good faith efforts to find a babysitter.

Nevada Dep’t of Human Resources v. Hibbs 一 State employees may recover damages for their employer’s failure to comply with the family-care provision of the Family and Medical Leave Act.

Knussman v. Maryland 一 A state may violate the Equal Protection Clause when it denies primary caregiver status under the Family and Medical Leave Act to a father on the basis of generalizations about typical gender roles.

Vaughn v. Lawrenceburg Power System 一 An employer’s policy that an employee must quit if they marry a coworker is not an unconstitutional interference with the right to marry.

Jones v. Jones 一 An attorney may not be disqualified from representing someone merely because their spouse is the legal counsel for an adverse party.

Griswold v. Connecticut 一 A right to privacy can be inferred from several amendments in the Bill of Rights, and this right prevents states from prohibiting the use of contraception by married couples.

Eisenstadt v. Baird 一 Unmarried people have the right to use contraception, based on the Equal Protection Clause of the Fourteenth Amendment and the more nebulous constitutional right to privacy.

Domestic Violence

Domestic violence is violent behavior that happens within a home, often between partners. An individual may obtain an order of protection against domestic violence in civil court to prevent a family or household member or certain other individuals from continuing to perpetrate such violence against them.

People v. Humphrey 一 Evidence of battered woman syndrome may be relevant as to the objective reasonableness of the defendant’s belief in the need to defend themselves when evaluating whether they were acting in self-defense.

Regina v. Malott 一 It is not necessary for a defendant to conform to the stereotypes associated with an individual with battered woman syndrome to assert a valid claim of self-defense.

Giovine v. Giovine 一 A wife diagnosed with battered woman syndrome may sue her spouse in tort for continuous acts of battering outside the statute of limitations if there is expert testimony that she was caused to have an inability to take action to improve or alter the situation unilaterally.

Mitchell v. Mitchell 一 The basis for an injunction for protection against domestic violence must be an objectively reasonable fear of imminent danger of domestic violence. A text message conversation that vaguely implies the distant possibility of violence without an overt act does not rise to the level of a reasonable fear of imminent danger.

C.O. v. M.M. 一 Due process requires that a defendant in a hearing to continue a temporary abuse prevention order be given the opportunity to present evidence and cross-examine witnesses.

Divorce and the Constitution

Divorce is the process by which a court grants the dissolution of a marriage, which may implicate certain constitutional protections.

Boddie v. Connecticut 一 Due process requires that divorce should be accessible to indigent individuals who cannot pay court fees but are seeking a divorce in good faith.

Sosna v. Iowa 一 Durational residency requirements for divorce are constitutional.

Aflalo v. Aflalo 一 A court may not order a divorcing party to provide a get for a Jewish divorce because this would violate the Free Exercise Clause of the First Amendment.

Fault Divorce

Traditionally, states required an individual seeking a divorce to allege fault on the part of their spouse. Some states continue to allow parties to pursue a fault divorce. Common fault grounds include cruelty, adultery, and abandonment.

Benscoter v. Benscoter 一 To obtain a divorce on the ground of indignities to the person, a plaintiff must establish a continuing course of misconduct, rather than sporadic actions.

Hughes v. Hughes 一 A divorce may be granted for mental cruelty even if the couple reconciled at one point.

Arnoult v. Arnoult 一 Circumstantial evidence may be enough to prove adultery because of the private nature of the act.

Crosby v. Crosby 一 A state law requiring a wife to move where her husband moves or effectively be denied alimony because of fault is unconstitutional under the Equal Protection Clause.

Rankin v. Rankin 一 To obtain a divorce on the ground of indignities to the person, the evidence must clearly show that the plaintiff was an injured and innocent spouse. If both spouses are equally at fault, they cannot obtain a divorce on this basis.

Robbins v. Robbins 一 Consent may be a valid defense to a divorce based on adultery if one spouse manifests a desire or willingness that the other commit adultery. However, is not enough that a spouse allows their spouse to go through with an adulterous act so that they may collect evidence of it.

Fonger v. Fonger 一 An individual may not obtain a divorce based on adultery if they have deliberately induced their spouse to commit the act.

Anonymous v. Anonymous 一 If insanity is used as a defense to a divorce action, the defendant must prove insanity by a preponderance of the evidence.

Twyman v. Twyman 一 A claim for intentional infliction of emotional distress may be brought in conjunction with a fault-based divorce, but the court may not consider the same conduct while dividing the marital estate if it would result in double recovery.

No-Fault Divorce

Every state now offers no-fault divorce, which encourages collaboration between the parties rather than confrontation. While a no-fault divorce does not require that either spouse accuse the other of any wrongdoing, some states require that spouses live apart for a certain period of time before they may obtain a no-fault divorce.

In re Marriage of Kenik 一 Spouses who live separately but in the same house may still be living separate and apart for the purpose of obtaining a no-fault divorce when a no-fault divorce statute requires spouses to live separate and apart continuously for two years.

Massar v. Massar 一 A marital agreement under which one spouse agrees to move out of the home in exchange for the other’s promise that they will only seek a no-fault divorce may be enforced so long as it is fair and equitable under the circumstances of the particular case.

Diosdado v. Diosdado 一 A marital agreement that guarantees $50,000 in liquidated damages on top of a divorce settlement award if a spouse cheats is unenforceable because imposing a penalty for fault is contrary to the public policy applicable to a no-fault divorce.

Child Custody

There are two types of child custody: legal custody and physical custody. When a parent has legal custody, they have the ability to make important decisions about the child’s life, such as those involving medical care, religious activity, and schooling. When a parent has physical custody, the child will physically live with that parent some or all of the time. Courts usually favor awarding parents joint custody.

In re Marriage of Carney 一 In awarding custody, courts should favor neither mothers nor fathers but instead focus on the best interests of the child. A parent’s physical handicap is not prima facie evidence of unfitness to parent. Furthermore, a change in custody should only be made if there has been a substantial change of circumstances.

Hollon v. Hollon 一 The best interests of the child are determined by weighing the following factors: the age, health, and sex of the child; who the primary caretaker of the child was before the separation; the parenting skills, willingness, and capacity of each parent; each parent’s employment status and responsibilities; the physical health, mental health, and age of each parent; the emotional ties between the child and each parent; the moral fitness of each parent; the home, school, and community record of the child; the child’s preference (if they are old enough); the stability of the home environment and employment of each parent; and any other factors relevant to the parent-child relationship. Furthermore, a parent’s alleged sexual activity is not a sufficient ground for determining child custody.

Palmore v. Sidoti 一 It is impermissible to consider race in determining child custody under the Equal Protection Clause.

Jones v. Jones 一 While race may not be the decisive factor in a child custody dispute, it may be considered in the context of each parent’s ability to expose the child to their ethnic heritage.

Kendall v. Kendall 一 A court may limit a child’s exposure to a parent’s religious beliefs if there is sufficient evidence that it will cause substantial harm to the child.

McMillen v. McMillen 一 The express wishes of the child are not controlling in a child custody determination, but they may be considered as part of an analysis of the best interests of the child.

Schult v. Schult 一 An attorney for a child in a custody dispute may take a position contrary to that of the child’s guardian ad litem.

Pusey v. Pusey 一 The “tender years presumption,” giving preference to mothers over fathers in custody decisions, is not constitutional because it discriminates against fathers on the basis of sex and relies on outdated stereotypes.

Garska v. McCoy 一 A young child’s best interest is presumptively satisfied by awarding custody to the primary caretaker, regardless of sex, so long as the primary caretaker is a fit parent.

Squires v. Squires 一 A court should not decline to award joint custody solely because of present hostility between the parents.

Young v. Hector 一 A primary residential custody award should attempt to preserve the caretaking roles of each parent that have already been established.

Hassenstab v. Hassenstab 一 The party seeking to modify a child custody order bears the burden of showing that a material change in circumstances has occurred to justify a change in child custody. A parent’s sexual activity may not be considered a change in circumstances that would justify a custody modification unless there is evidence that the child was exposed to or adversely affected by such activity.

Wetch v. Wetch 一 In deciding whether to modify a custody arrangement, a court may consider all the relevant facts, including conduct predating a previous judgment on the matter if the previous judgment was entered without a considered fact-finding by the court.

Baures v. Lewis 一 A custodial parent who wishes to move with the child must have a good faith reason for the move and show that the move will not be harmful to the child’s best interests.

Eldridge v. Eldridge 一 A court may limit or eliminate visitation if there is evidence that it would harm the child.

Zummo v. Zummo 一 A court may restrict a parent’s ability to expose their child to religious activity during periods of custody or visitation only if there is evidence of a substantial risk of harm to the child.

Troxel v. Granville 一 A state statute allowing third parties to petition for visitation over a custodial parent’s objection violates a parent’s fundamental right under the Fourteenth Amendment to make decisions regarding the care, custody, and control of their children.

Kinnard v. Kinnard 一 A stepparent may obtain custody or visitation of a stepchild if not awarding custody or visitation would be detrimental to the child.

Simons by and through Simons v. Gisvold 一 A biological parent has a supreme right to custody when such custody would not be harmful to the child.

Quinn v. Mouw-Quinn 一 A stepparent may be awarded visitation of a stepchild if not awarding visitation would be devastating to the child and their siblings.

Stanley v. Illinois 一 A state law that assumes that unwed fathers are unfit parents violates the Due Process and Equal Protection Clauses.

Lehr v. Robertson 一 An unwed father is not entitled to substantial protection of his parental rights under the Due Process or Equal Protection Clauses merely because he is the child’s biological father. Instead, an unwed father must demonstrate that he is fully committed to his parental responsibilities by participating in the child’s upbringing.

V.C. v. M.J.B. 一 A third party who can demonstrate that they stand in the shoes of a parent to a child, sometimes known as a psychological parent, need not prove unfitness of the natural parent to obtain custody. Furthermore, a psychological parent may be awarded visitation when it is in the best interests of the child.

Chaddick v. Monopoli 一 A trial court has the discretion to conduct an evidentiary hearing to determine whether another state has exercised jurisdiction in substantial conformity with the Uniform Child Custody Jurisdiction Act during a child custody dispute.

Thompson v. Thompson 一 There is no implied cause of action under the Parental Kidnapping Prevention Act to contest the validity of conflicting state court custody orders.

Ohlander v. Larson 一 When two civil actions are filed under the Hague Convention on the Civil Aspects of International Child Abduction in disparate courts because of the child’s removal from the court of first jurisdiction, the court of first jurisdiction should grant the plaintiff's request to voluntarily dismiss the action when there is no legal prejudice to the defendant.

Wolf v. Wolf 一 A court may award a primary custodian punitive damages for tortious interference with custody.

U.S. v. Amer 一 The International Parental Kidnapping Crime Act is not unconstitutionally vague, and disallowing a defendant from using the affirmative defenses found in the Hague Convention on the Civil Aspects of International Child Abduction may be permissible when the country to which the children have been removed is not a signatory to the Convention. Furthermore, a court may order the defendant to return the children as a special condition of supervised release.

Farmer v. Farmer 一 A court may not interfere with a parent’s visitation rights on the basis of their failure to pay child support.

Kulko v. Superior Ct. of California 一 A state court cannot exercise jurisdiction over a domiciliary of another state when they have insufficient minimum contacts with the forum state. The mere act of sending a child to the forum state is not a sufficient minimum contact.

Property Division

States generally adhere to one of two systems for dividing property between spouses: equitable distribution or community property. In equitable distribution states, the focus is on dividing marital property equitably but not necessarily equally. In community property states, property acquired during the marriage is usually marital property to be divided equally.

Innerbichler v. Innerbichler 一 A post-marriage increase in the value of a business owned by one spouse may be fairly considered marital property.

Ferguson v. Ferguson 一 A court may order the equitable distribution of property accumulated through joint contributions, both financial and non-financial, regardless of title.

Postema v. Postema 一 A law degree may be a marital asset when it is a result of a concerted family effort, and the supporting spouse should be compensated for their sacrifice.

Elkus v. Elkus 一 If an increase in a spouse’s career success was a result of a concerted family effort, the supporting spouse should be compensated equitably.

Siegel v. Siegel 一 One spouse may be wholly responsible for their dissipation of funds, such as gambling losses, that occurred before the divorce but after the marriage was irreparably fractured.

Laing v. Laing 一 If marital assets include an unvested pension, the court may reserve jurisdiction to divide the pension once it vests.

Niroo v. Niroo 一 Anticipated renewal commissions on insurance policies sold during the marriage may be marital property because they became a contractually established right during the marriage, even if they accrue after dissolution.

Marvin v. Marvin 一 Non-marital partners may bring claims for property division based on valid express or implied contracts.

Norton v. Hoyt 一 For a non-marital partner to recover for an alleged promise by the other to divorce their spouse, marry the partner, and support them for life, the promise must be clear and unambiguous, and the partner must have reasonably and justifiably relied on the promise to their detriment. Agreements believed to be in derogation of marriage, such as agreements to support a non-marital partner in an adulterous relationship, are against public policy and cannot be enforced.

Spousal Support / Alimony

Courts sometimes award spousal support (also known as alimony) in conjunction with a divorce. Courts tend to favor spousal support awards that will terminate when the receiving ex-spouse gets back on their feet, but spousal support may be awarded for reasons unrelated to financial need. Permanent spousal support is usually only awarded after fairly long marriages when the receiving ex-spouse is not likely to be able to find gainful employment.

In re Marriage of Wilson 一 A court may terminate spousal support even when the receiving ex-spouse is permanently disabled, especially when the length of the marriage was short, and there are no minor children.

Clapp v. Clapp 一 In awarding alimony, a court may consider the fact that one spouse reduced their earning capacity to contribute to the marriage as a homemaker and enable the other to increase their earning capacity.

Graham v. Graham 一 In certain cases, such as when the receiving ex-spouse’s contribution was at least partially responsible for the paying ex-spouse’s increase in income, a court may increase alimony payments when the paying ex-spouse’s ability to pay increases, but the receiving ex-spouse’s needs have not increased.

D’Ascanio v. D’Ascanio 一 A court must enforce and may not deviate from the terms of an alimony agreement set up by the parties and approved by the court.

Vanderbilt v. Vanderbilt 一 An alimony decision made without personal jurisdiction over the spouse potentially receiving the alimony is invalid and not subject to the Full Faith and Credit Clause.

Child Support

Courts may order parents who do not regularly live with their children and are not their primary caregivers to pay child support. Child support payments are usually determined by child support guidelines, but judges may deviate from the guidelines if applying them would be inequitable.

Schmidt v. Schmidt 一 A court may not deviate from child support guidelines without a factual finding that supports the deviation.

In re Marriage of Bush 一 A court may deviate from child support guidelines when the application of the guidelines would result in an excessive award.

Solomon v. Findley 一 A provision in a joint petition for dissolution of marriage dictating that a parent will pay for the post-secondary education of the child after they reach the age of majority should be enforced by a contract action because the divorce court only maintains jurisdiction to enforce child support provisions until the child reaches the age of majority.

Curtis v. Kline 一 A state law requiring separated, divorced, or unmarried parents to pay for the educational costs of a child even after they reach the age of majority violates the Equal Protection Clause.

Ainsworth v. Ainsworth 一 A court may deviate from child support guidelines when the award would be inequitable because of the paying parent’s expenses associated with supporting a new stepchild.

Little v. Little 一 If a parent’s income is reduced voluntarily, rather than for a reasonable cause, the court may impute income to that parent up to their full earning capacity when calculating a child support obligation. If a reduction in child support due to a voluntary reduction in income would place the child in financial peril, the reduction should not be allowed. If the reduction will not place the child in financial peril, the court should consider the overall reasonableness of the parent’s voluntary decision.

Bender v. Bender 一 Courts should apply a balancing test to determine whether to impute income to calculate child support obligations when a paying parent voluntarily leaves their job to stay home and care for another child.

Miller v. Miller 一 A stepparent who divorces a stepchild’s natural parent may be obligated to pay child support based on equitable estoppel.

Johnson v. Louis 一 A state statute providing that children of divorced parents but not children of unmarried parents may receive support for post-secondary education does not violate the Equal Protection Clause.

Eunique v. Powell 一 An individual may be denied a passport if they are in arrears on their child support payments.

State v. Oakley 一 A probation condition prohibiting an individual convicted of a felony for refusing to pay child support for multiple children from having any more children unless they can support all of their children is constitutional.

Hicks v. Feiock 一 If a determinate sentence imposed in connection with contempt proceedings for failure to pay child support may be purged if the individual pays their arrearages, it is civil in nature, and thus a statute placing the burden of persuasion on the alleged contemnor is constitutional.

U.S. v. Bongiorno 一 The Child Support Recovery Act, making a willful failure to pay past-due child support for a child in another state a federal crime, does not violate the Commerce Clause.

Child Support Enforcement Division of Alaska v. Brenckle 一 A state may have personal jurisdiction over a non-resident defendant to enforce a child support order under the Uniform Interstate Family Support Act when the child is a resident of the forum state, and the defendant has resided with the child in the forum state.

Separation Agreements

While parties may ask a court to decide the terms of their divorce, they are free to enter into a settlement agreement to determine things such as property division, child custody, and spousal and child support.

Duffy v. Duffy 一 A separation agreement in the form of a letter signed by both parties may be enforced as a contract so long as there is no evidence of fraud, duress, concealment, or overreaching. Furthermore, whether a court may modify a child support provision in a separation agreement depends on whether it was merged into the court’s judgment or incorporated by reference.

Toni v. Toni 一 A settlement agreement that divests the court of jurisdiction to modify spousal support may be enforceable.

Sidden v. Mailman 一 Separation agreements may be rescinded on the grounds of lack of mental capacity, mistake, fraud, duress, or undue influence. Separation agreements are also unenforceable if their terms are unconscionable.

Kelley v. Kelley 一 A court may always modify the terms of a child support agreement because parents cannot contract away their child’s right to support.

Kelm v. Kelm 一 Child custody and visitation matters may not be resolved through arbitration.

Crupi v. Crupi 一 An agreement reached through mediation will only be set aside when there is fraud, misrepresentation in discovery, or coercion.

This outline has been compiled by the Justia team for solely educational purposes and should not be treated as an independent source of legal authority or a summary of the current state of the law. Students should use this outline as a supplement rather than a substitute for course-specific outlines.

Last reviewed August 2023

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Case Studies in Family Law, Divorce & Child Custody

General custody, a stalking spouse.

The father, a high tech computer expert, had taken it upon himself to bug the entire house, including the phones and home computer. At the same time, the mother discovered hard core pornography on the home computer, a click away from the children’s Disney games. The computer was forensically downloaded by a computer consultant and a private investigator was hired to de-bug the home. With all of the evidence of the father’s dysfunctional behavior, a parenting plan was reached in mediation in which he agreed to go for a deviancy evaluation and went from supervised visitation to weekend visits over the course of many months.

Non-Parental Custody

Grandparents sought custody of their teenage daughter’s child after she abandoned the child. The child’s father refused to have any relationship with the child. We successfully established paternity on the out-of-state father and obtained a parenting plan granting the grandparents custody of the child.

International Custody

Threats to remove the child from the country.

The mother had married an Afghani national, who was a professional working in the United States. The mother was rightly concerned about having the father take their daughter out of the country. Our experienced family law team negotiated a parenting plan with many safeguards and had immigration flag the child to prevent a kidnapping situation.

Return of A Child

The father removed the child from the State of Washington to a country that was not a signatory to the Hague Convention. We filed a motion for contempt against the father. The court granted our motion and ordered the father to jail pending the return of the child.

Substance Abuse

The mother and father followed a parenting plan based on equal custody for several years. When the child hit adolescence, he became addicted to drugs and alcohol and stopped attending school. The mother was in denial regarding the extent of the child’s addiction. We successfully helped the father obtain a parenting plan changing child custody so that he could ensure the child successfully completed in-patient treatment.

The mother suffered from severe alcoholism warranting monthly in-patient treatment. The father was a high-level executive in a large local corporation who struggled to help the mother with her alcoholism during the entire relationship. Our office helped the father obtain a parenting plan limiting the mother’s visitation to supervised visits, subject to intermittent alcohol testing.

Mental Health Allegations

Professional family.

A stay-at-home mom married to a health care professional prided herself on her abilities as a wife and mother. The father was a demanding perfectionist. During the divorce, the father turned the mother’s homemaking abilities against her, and accused her of having an obsessive-compulsive personality disorder (OCD). Based on the mother’s alleged OCD, the father tried to get custody of the children. We brought in psychological experts and our client, the mother was awarded custody at trial.

Wrongful Sex Abuse

A father was accused of sexually abusing his children. After much litigation, including mental health evaluations of both parents, it was discovered that the mother had made false accusations. The psychologists determined that the mother’s abuse history had caused her to be “hyper-vigilant” about possible sex abuse. My client, the father, received forty percent residential time with his children.

Domestic Violence Issues

Mother as victim.

A mother had been the victim of ongoing psychological abuse by the father, who had drug and alcohol problems. After psychological evaluations of both parties, the father was ordered into anger management, while the mother went into a domestic violence shelter. A parenting plan was ultimately reached by agreement wherein the father had supervised visitation. Our client, the mother, went back to school with the proceeds of the financial settlement and is doing well parenting her daughter alone.

Father Wrongfully Accused

A mother strategically accused a father of domestic violence and obtained a Domestic Violence Protection Order against the father to gain a leg up on the divorce process by legally restricting his visitation. We hired a professional parenting evaluator who performed psychological testing on both parents and determined that the mother’s allegations were unfounded. Ultimately, we negotiated the dismissal of the Protection Order and obtained a parenting plan providing the father equal residential time.

Division of Marital Assets

Valuing a family owned business.

A husband and wife owned a successful business and were in deep disagreement about the value of the business and how to split their assets. Working with financial professionals and business lawyers, our family law team was able to mediate a settlement in which both parties received substantial assets as well as a piece of ongoing business.

Long-Term Marriage with Complex Financial Assets

The husband and wife had a 30 year marriage and owned a privately held Pacific Northwest business. Working with a team of financial professionals, we successfully traced the community and separate property interests in the estate, valued the business and considered various tax ramifications and advantages to successfully reach a settlement where the wife received one-half of the assets, spousal maintenance and established children’s trusts.

Dissolution of Long-Term Marriage with Lifetime Spousal Maintenance Award at Trial

A fifty-year marriage where the husband had been the primary breadwinner and the wife was the secondary breadwinner. The wife accused the husband of squandering several million dollars in a Swiss bank account. Our firm represented the husband in tracing separate property and community property interests in their estate. At trial, our firm successfully defended the husband against the wife’s claims of hiding assets. The husband was awarded one half of the wife’s retirement income as spousal maintenance and his share of the family home.

Amicable “Short-term” Marriage with No Children

The husband and wife were married for 3 years. The primary assets included the wife’s pension, the couple’s vehicles, the husband’s recording business, and their home. We represented the wife in a low-cost settlement where she walked away with the pension in full, the home and one of the vehicles.

If you have further questions concerning these issues or other issues involved in your Seattle or Bellevue-Redmond divorce, or want to arrange a confidential consultation, please contact us today. We have offices in Seattle and Bellevue-Redmond and can meet with you in one or both of those locations as needed. We look forward to meeting you and helping you achieve the divorce solutions you seek.

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The Unpragmatic Family Law of Marginalized Families

Mariela Olivares

Response To:

Pragmatic Family Law by Clare Huntington
See full issue

Introduction

In her excellent article Pragmatic Family Law , 1 Professor Clare Huntington argues that divisive issues roiling U.S. politics, law, and society — such as abortion rights, gender-affirming health care for children, and parental involvement in and control over public school curricula regarding race and identity — have put a spotlight on family law. She notes, though, that these debates need not focus on visceral disagreements but instead should coalesce around a foundational ideal in family law — that is, evidence-based decisionmaking that centers family and child well-being. Huntington offers that this “common methodological foundation . . . has implications for scholars, legal actors, and advocates” 2 to “advance the interests of children and families” 3 and “provide direction for institutional reform.” 4

At root, family law doctrine and the real-world experience of family court litigation do indeed strive for the best outcome — one in which parents, caregivers, and family members are heard and children are protected. In this sense, the premise of Pragmatic Family Law is exact. What pragmatism misses, though, is the deeply entrenched, inherent, and inextricable racism, classism, and xenophobia in the American legal system, which show up in family law courtrooms and family law systems around the country every day. To be sure, Huntington notes that pragmatism has “significant limitations, especially in addressing the root causes of racial inequity.” 5 She notes that despite these limitations, pragmatism can “recalibrate” family law to rely on empirical evidence and families’ lived experiences. 6

In this Response, I posit that precisely because empirical evidence and the lived experiences of marginalized families demonstrate the unique injustices that they experience in the family law system, family law is anything but pragmatic for them. In this sense, then, a pragmatic approach would serve those who do not experience targeted mistreatment based on race, class, immigration status, or other identity markers. Importantly, I do not question the philosophical underpinnings and relevance of pragmatism that Huntington carefully outlines. She expertly explains the doctrine and how seemingly contentious issues can be better clarified through the pragmatic approach than through polarizing debates. This is a solid, effective, and excellent argument. I assert, however, that faith in the power of pragmatism as a leveling tool in family law is misplaced because it does not incorporate the inequitable ways in which the law treats marginalized people. Therefore, the methodology is not incorrect or misapplied, but it falls short as it does not include all families. For the families it excludes, the approach is imprecise exactly because it does not value their lived experiences of racism and other forms of marginalization.

In this Response, I discuss how the law surrounding families of color, immigrant families, poor families, and families of other marginalized identities is not practically the same law that governs families who do not share those identity markers. Part I considers how the “common methodological foundation” 7 of family law that Huntington describes — while appropriately characterizing the Family Law (capitalization intended) doctrine — does not appropriately capture the radically different experiences of marginalized families. Through discussing my past experiences as a family law litigator for families of color, immigrant families, and poor families, and, more generally, the ways in which these families experience the family court system, we see the limitations of a normative approach in reaching common ground and depoliticization. Part II continues this exploration and focuses on the ways in which deep racialized and class divisions occur in the American child welfare system. Section II.B examines the fallacy of the primacy of child well-being and the best interests of the child standard, using as a case study the U.S. government practice of forcibly removing migrant children from their fit adult caregivers. This Family Separation Policy provides a stark example of pragmatism’s limits: although it may seem that putting families and children first would be a universal paradigm, experience shows differently. Interestingly, however, the formal end of the Family Separation Policy was due in large part to bipartisan calls for its termination from seemingly divergent political and societal camps. In this limited sense, then, empathy for all children’s well-being prevailed. Finally, I comment on the intrinsic limitations in any proposed methodology that does not contend with the inherent racism that forms the foundation of our country. To this point, and in conclusion, the lessons of pragmatism may be illustrative and meaningful, even if not within practical reach.

I. The Pragmatic Methodology Does Not Portray the Experiences of All Families

Soon after graduating from law school, I landed my dream job. I was a legal services lawyer at Ayuda, an immigrants’ rights organization in Washington, D.C. 8 I worked in the Family Law and Domestic Violence Division of the organization, where I was one of three lawyers. Each of us had a large client base that was exclusively from the richly diverse immigrant communities of the area — most notably immigrants from Central America and Ethiopia, but including people from all over the world. 9 There, I represented immigrants in their family law cases — domestic violence protection order petitions, renewals, and modifications; and child custody, child support, and divorce cases. As a legal services organization, Ayuda had client eligibility requirements that included living at a certain rate below the federal poverty guidelines — which meant that our clients were among the poorest in the city. Although I was an associate at a large Washington, D.C., law firm for a short time prior to this new job, I (like most such new attorneys) had never argued a case in court. 10 At the extremely busy legal services office, though, I was in D.C. Superior Court with a new client within my first three weeks.

A few years and countless court appearances later, I found my next dream job: as a teaching fellow in the Domestic Violence Clinic at Georgetown University Law Center. There, I helped law students represent domestic violence survivors in their protection order cases. 11 Here, too, to qualify for our free legal assistance, clients must have been living at a certain rate below the federal poverty guidelines. At the clinic, our client population was overwhelmingly Black, a disproportionate share considering the Black population of Washington, D.C., is 45.8%. 12 Thus, in my combined years in legal services prior to joining academia, my entire courtroom experience was in D.C. Superior Court, representing low-income Black, Latina/o/x, and other immigrant clients. And my clients were not anomalies in the D.C. domestic violence and family court dockets to which we were assigned. The existence of separate courtrooms and dockets for those less complicated divorce and custody issues was one way that the system distinguished between parties with financial resources and parties like my clients, who had little to no resources. The overwhelming majority of the families in our courtrooms, courthouse hallways, and self-help centers were Black, Latina/o/x, immigrant, and/or poor.

The same demographic and class realities ring true today — more than a decade after I left. 13 Further, as a family law lawyer, I did not represent clients in child welfare court, in which judges decide if parents accused of child abuse or neglect will be forced to proceed through the system and ultimately determine whether a parent loses their parental rights. Data shows that Black, Latina/o/x, Indigenous, and/or poor children are overwhelmingly represented in the child welfare system, which I explore more in Part II. Disparity in court access matters. Noting that in New York State, the supreme court system (which generally serves more well-off litigants) investigates custody cases differently than does the family court system (which generally serves less well-off litigants), 14 Professor Leah Hill argues:

I endorse . . . a consistent process of handling private child custody matters across supreme and family courts. Without consistency, we are left with a two-tiered system in which the cases of moneyed litigants are investigated by experts while the less well-off black and brown litigants are investigated by a public agency whose limited objective is to protect children from abuse. The obvious disparity is self-evident. 15

This view into the experiences of people of color, immigrants, people living in poverty, and their lawyers offers a contrast to the benefits of the pragmatic methodology described in Pragmatic Family Law . Huntington skillfully explains early pragmatic philosophical thought, contemporary American approaches to pragmatism, and, indeed, how critical race and legal scholars have employed pragmatism in their advocacy for equality. 16 Huntington describes family law pragmatism as when “decisionmakers sidestep abstract ideals and political ideology and instead focus on whether a law or policy promotes family and child well-being in specific, grounded ways . . . [a]nd legal actors learn from the lives of affected families, consult empirical evidence, and make context-specific determinations.” 17 In this vein, then, the pragmatic approach results in outcomes that are examples of convergence, depolarization, and nonpartisan pluralism 18 — making family law’s focus not on “abstract ideals and political ideology” but rather “on whether a doctrine or policy promotes core aspects of family and child well-being, such as a child’s need for a consistent caregiver and a family’s needs for basic resources.” 19

Huntington is correct that the law prescribes and seeks just outcomes without explicit deference to or discussion of political or abstract ideologies. Thus, for example, state laws on ideal parental custodial arrangements uniformly land on some type of presumption in favor of joint custody of children when parents divorce or no longer parent together. 20 These state laws rely upon research that shows that children are best served by both parents being present in the children’s lives absent concerns of child abuse or neglect. 21 In practice, courts therefore generally favor joint custody in a contested dispute between fit parents, 22 but will veer toward sole or primary custody upon a review of the state-defined factors that support diverting away from joint custody. 23

To further explain the sustainability of a pragmatic methodology, Pragmatic Family Law discusses the depolarization of once-contentious family law issues, which eventually coalesced around legal and social consensus. 24 Two examples are married women’s property acts (from a place of women’s complete nonagency to the legal ability to own property, among other rights) 25 and third-party parentage laws (from a place of recognizing only two biological or adoptive heterosexual parents to an expansion of the parent definition). 26 The article also mentions the ways in which the law has evolved around intimate partner violence, from a time when a husband had a legal right to physically abuse his wife to the current environment, where every state and Washington, D.C., have laws criminalizing domestic violence. 27 In 2022, Congress passed — and President Biden signed — the Bipartisan Safer Communities Act, 28 which contains a provision prohibiting dating partners who are convicted of domestic violence from owning guns. 29 The closing of the so-called “boyfriend loophole” regarding gun ownership marked a significant effort to protect victims of intimate partner violence from gun attacks even when the country was still engaged in political debate about, and remains divided over, the extent of gun rights and ownership. 30 In this sense, then, the new law provides an excellent example of policymakers recognizing the importance of strengthening protection measures for families based on evidence and common sense.

The discord occurs, though, when we look at people’s day-to-day courtroom and courthouse experiences in seeking assistance to leave a domestic violence situation. Poor mothers of color and/or immigrant mothers who experience domestic violence and seek help run the risk of entanglement with the child welfare system. Within the domestic violence justice system itself, research shows the obstacles for women and women of color in their efforts to obtain protection. Professors Deborah Epstein and Lisa Goodman detail how women (in general) are perceived as less credible, and Black women and poor women experience even further critical challenges when they seek help. 31 Their research reveals that Black witnesses have long been discredited in courtrooms. 32 “Such discrediting can occur,” the authors explain, “based on stereotypes that African Americans are less intelligent than are whites, or that they are untrustworthy and dishonest. Based on all of the above [detailing the perceived deceitfulness of women witnesses], it stands to reason that black women risk being doubly disbelieved.” 33

Further, domestic violence victims who are poor are doubted because they are “vulnerable to stereotypes about their trustworthiness . . . [as people] who cheat the system to take what is not theirs.” 34 Reinforcing what I also experienced as an advocate for these women, the authors conclude that “[b]ecause so many survivors live at the intersection of all three of these identities — they are poor women of color — these stereotypes feed into each other to further undermine assumptions about their trustworthiness.” 35 For immigrant victims of domestic violence, their reality further encompasses anti-immigrant animus. As I wrote:

This anti-immigrant animus stems in part from racialized and gendered attitudes about immigrant communities. Immigrants of color and immigrant women particularly bear the brunt of the negative rhetoric surrounding immigration reform. Moreover, as the literal noncitizen, the immigrant outsider does not benefit from the positive attribution that derives from being a citizen. 36

Further, “[b]attered immigrants frequently face additional layers of isolation. Poverty, inability to secure legal representation for access to courts, language barriers, and culturally derived limitations may operate as barriers to immigrants seeking to leave abusive relationships.” 37 Therefore, even within the system created to protect women, poor women of color and poor immigrant women are more likely to have negative, demeaning experiences.

This results in a system that, though apparently focused on family protection, fails to properly protect all families. In fact, as is the practice in other imbalanced and unjust legal systems — the criminal justice system, for example — the law does not treat marginalized families in the normative ways that Huntington describes. 38 In this sense, then, the political depolarization that has expanded relief for domestic violence survivors over time has not resulted in comparable benefits for all. When the spotlight is not on the normative construct historically at the center of family law but rather on the families that have been pushed to the margins of legal protection, the injustice comes into focus. Therefore, the convergence of experiences is conceptual at most, not practical.

II. The Fundamental Error of Convergence as Policy Ideal

When I teach a seminar on domestic violence law and policy for upper-level law students at Howard University School of Law, one of the mandatory course assignments is to spend a few hours at the D.C. Superior Court in the courtrooms hearing civil or criminal cases involving domestic violence allegations. As a Historically Black College or University (HBCU), more than ninety percent of our students are Black — African American descendants of enslaved people in the United States, recent immigrants from throughout the global African diaspora or their descendants, and/or individuals identifying as multiracial. For the court visit assignment, I ask the students to reflect on a series of questions, including to comment on the racial and ethnic demographics of the people they see — litigants, judges, members of the public, courthouse staff, and lawyers. I ask them to reflect on any readily discernible class dynamics and to note what type of relief litigants are seeking. These are the same courtrooms and hallways that were my domain for the few years that I practiced family law, and I know that the answers to my questions have not changed since then. Unsurprisingly, then, my students unanimously comment that the litigants are mostly Black or Latina/o/x and sometimes require the help of an English-speaking court interpreter. They note that few people have lawyers in civil proceedings and most appear to not have significant financial resources. My students report that the petitioners seeking a protection order mostly ask for no-contact and stay-away provisions while some seek other forms of relief available to them — from return of property to the ordering of domestic violence prevention classes to financial redress, like child support. Some find witnessing the sometimes sad and dramatic outcomes jarring and unsettling. The court visit is a remarkable teaching tool as it puts the doctrine and policy that we read into practice. After reading and discussing illuminating and forceful works by Professors Kimberlé Crenshaw and bell hooks (among others) on how the legal system treats domestic violence victims of color differently because of their identities as women, Black, immigrant, and/or poor, 39 my students see firsthand what the authors mean. 40

Indeed, for lawyers, advocates, and people seeking help in family court, the reality is often far-removed from a conceptual methodology. This Part explores ways in which the paradigmatic normative construct does not apply to all marginalized families, using two examples. Section A discusses the ways in which the child welfare system unjustly targets families of color. Section B examines the ways in which family law does not protect migrant children and families. Finally, section C frames the analysis in both a critical theory and a critical race theory paradigm to argue that the idealization of children and family well-being works only for families of color, migrant families, and poor families when their interests happen to converge with the normative standard. Outside of this overlapping, these families experience an inherently racist and classist family court system that works just as intended in a society founded and reliant on the continuation of such principles.

A. The Experience of Families of Color in the Child Welfare System

In my time as an attorney for immigrant, Black, Latina/o/x, and poor victims of domestic violence, the threat of involvement with the child welfare system was omnipresent. Even if the mothers (most of my clients and indeed most victims of domestic violence are women 41 ) were not individually accused of child neglect and abuse, child protection laws may be interpreted such that if a parent “exposes” the child to domestic abuse or does not adequately respond to another adult’s abusive behavior, that parent may be found neglectful. 42 One such Ayuda client, a Latina immigrant, found herself in child abuse and neglect proceedings in which, as a condition of reuniting with her child, she was ordered to receive a civil protection order against her abusive partner. The problem, however, is that no person can guarantee any court outcome. How could she ensure a judge would grant her an order of protection, and why was this deemed to be a condition of her reunification with her child? Professor Dorothy Roberts details a similar case:

In a family court hearing, [the New York City Administration for Children’s Services (ACS)] insisted [that Angeline Montauban, a Black woman whose son was placed in the child welfare system when she sought social-service help to leave a violent partner,] file for an order of protection for her son against his father as well. Montauban disagreed, explaining to the judge that she wanted her son to maintain a relationship with his father, who had never hurt him.

A few days later, Montauban’s partner took their son to family court for an appointment. ACS instructed him to leave the boy at a daycare center on the first floor of the court building. It was a setup: ACS had filed a petition to apprehend Montauban’s son on the grounds that he was neglected because Montauban allegedly had allowed him to witness domestic violence and declined to file an order of protection against his father. That evening, the caseworker called Montauban to inform her that ACS had snatched her son from the family court daycare center. Her toddler was in foster care — in the custody of strangers in the Bronx. 43

For certain families, the very real threat of parents losing their children to the child welfare and foster care system hinders their ability to access needed social services while endangering their parental rights. In this context, then, even the most well-meaning and purposeful legislation and policies fail the very families that could perhaps be best served by resource and educational assistance.

Thus, although evidence-based decisionmaking in family law has resulted in gains such as the recognition of nontraditional family formation, 44 its focus on what is best for the family or child has not applied to all families. In discussing nontraditional family formation and the functional parenthood doctrine, Huntington describes how family court judges hear from the affected families, reflect on the testimony and evidence and thus “center the lived experience of children and their caregivers and eschew ideology about the primacy of nuclear families, instead ratifying the family forms they observe.” 45 Huntington concludes that, through this courtroom observance, judges provide families with individualized solutions. 46

For many families of color and poor families, however, this context-based approach may not reflect their lived experiences. So, though the law prescribes a judgment based on a child’s best interests, families from politically and socially marginalized communities may experience this aspect of family court decisionmaking differently than a white family with financial resources. Indeed, it may seem that for these families, their lives and family choices are disrespected and discounted as not fitting within the traditional normative understanding of families. Hill describes witnessing this phenomenon as a family lawyer for indigent clients in New York City, where the local family court relied on caseworkers from the city’s ACS, a child welfare agency, to conduct investigations in child custody proceedings between private parties who did not have resources to hire a private custody evaluator. 47 The result, she notes, is that ACS improperly intervened in families’ custodial decisionmaking by taking an adversarial lens to the cases in part to avoid the possibility (no matter how small or completely unsubstantiated) that a child could suffer harm. 48 New York City dispatched ACS caseworkers, even though the agency was already understaffed and overworked, 49 for purported judicial and administrative reasons. 50 But, as Hill writes:

If we couple the image of the courthouse filled with mostly poor, black and brown litigants with what we know about racial disproportionality and ACS, we see another possible explanation: in the minds of some decisionmakers, the poor families of color whose lives are impacted by these [child custody] decisions do not warrant the kind of principled risk-taking [as in a private, detailed, and neutral inquiry] necessary to defeat the officials’ fear of bad publicity. 51

In other words, for marginalized families, evidence-based family law does not operate in their favor.

Indeed, Huntington states that “race, racism, and deep divides about whether the United States should do more to address racial inequity are fundamental cleavages in the United States,” thus challenging the efficacy of the pragmatic method. 52 Huntington cites the stark disparities in the child welfare system, in which “Black children are 14% of the child population but 23% of the foster care population,” as stated in a 2021 Department of Health and Human Services report. 53 A scholar on the ways in which families of color and low-income families experience the family law system, Huntington writes in another recent article: “Families of color and low-income families tend to be subject to far more state intervention today than other families, and state actors are more likely to override these parents’ child-rearing decisions, often based on views of child wellbeing infused with middle-class biases.” 54 Revisiting this phenomenon in Pragmatic Family Law , Huntington notes that pragmatism could help families of color in the child welfare system because “[i]f the government centered the experience of families, this could transform the government’s response to child abuse and neglect by focusing on the support that families themselves so often identify as welcome and needed.” 55 Huntington decries the lack of political will to attack the roots of racism. 56

Indeed, ideally a pragmatic approach would eradicate the effects of the bedrock racism and classism that undercut a fair legal system. But this ideal presupposes a “race-neutral” vacuum in which policymakers and judges would not castigate families of color, migrants, and poor families no matter the methodology employed. Certainly, the stated purpose of child welfare policies is to protect all children regardless of race or identity. The implementation, however, is inextricable from fundamentally flawed systemic injustices. In other words, even if a pragmatic approach were used for all families, the result would still be outcomes that penalize marginalized families because their lived experiences are not valued in the same way as the white, middle-class normative family experience.

The experiences of families of color and poor families in the child welfare system present perhaps the most extreme example. In a recent comprehensive empirical study jointly produced by the American Civil Liberties Union (ACLU) and Human Rights Watch, the authors conclude: “The child welfare system in the United States disproportionately investigates and removes children from over-policed, underserved communities, especially Black and Indigenous children and those living in poverty.” 57 An October 2022 article by members of the American Bar Association’s Children’s Rights Litigation Committee reports that “[i]n 2020 over 70 percent of all children, and 63 percent of Black children, removed into the U.S. foster system were taken from their families for reasons related to ‘neglect.’” 58 “Neglect,” however, is an ambiguous term that may be weaponized against poor parents, deeming poverty as equal to inability to sufficiently parent. Roberts writes: “Based on vague child neglect laws, [child welfare] investigators can interpret being poor — lack of food, insecure housing, inadequate medical care — as evidence of parental unfitness. Caseworkers search homes, subject family members to humiliating interrogation and inspect children’s bodies for evidence, sometimes strip-searching them.” 59 In the lived experiences of poor families of color pulled into the child welfare system — even absent substantiated abuse or true neglect — the pragmatic approach seems to perpetuate systemic harm. Thus, although a call for political change of racist systems is valid and important, the everyday reality as shown by researchers, attorneys, advocates, and families belies reliance on a normative-based methodological approach.

B. Family Law Does Not Shield Migrant Families and Children

Huntington writes that “although policymakers and advocates will not argue against child well-being, when policy questions turn to adults, consensus can be harder.” 60 She explains this paradigm through excellent examples — corporal punishment laws, prekindergarten prioritization, Medicaid expansion, same-sex marriage, and others. 61 In discussing the reach of the Earned Income Tax Credit (EITC) and Medicaid expansion under the 2010 Patient Protection and Affordable Care Act 62 (ACA), Huntington explores how focus on children and healthy families won bipartisan support: “The EITC is the backbone of antipoverty relief for families, providing $64 billion to 31 million low-income workers annually.” 63 Additionally, she writes that:

Medicaid expansion has improved parental access to substance abuse treatment and mental health services, two conditions linked to child abuse and neglect as well as poor family functioning more generally. Further, Medicaid expansion has improved the finances of low-income families, increased employment rates, and promoted housing stability, all of which benefit children. 64

This data is certainly instructive, and the argument is exact.

In a 2012 article, I similarly discussed the bipartisan push to reenact the State Children’s Health Insurance Program (SCHIP), 65 the precursor to the current Children’s Health Insurance Program. 66 The program as currently administered provides health insurance to eligible children who are deemed to be above the eligibility guidelines for Medicaid but still unable to procure private insurance. 67 As I explained in the earlier article and as is still relevant in the children’s health insurance program, only some lawful immigrants are covered under the federal guidelines. 68 The inclusion of immigrants as any sort of beneficiaries was controversial in the early SCHIP political and legislative negotiations. 69 Similar to Huntington in Pragmatic Family Law , I wrote:

[A]n important component of the success of the 2009 reauthorization of SCHIP is how the legislation was labeled and lobbied. The focus by Democratic and Republican supporters alike was on the need to provide poor and modest-income children with health care coverage. Although [the reauthorization legislation] contained a strong and important provision expanding coverage to certain immigrants, supporters deflected the issue, purposefully keeping the immigrant in the shadows of the debate so as to ensure the legislation’s eventual passage. This strategy that was, of course, ultimately successful was summarized perfectly by Senator Richard J. Durbin (D-Illinois) during the 2009 debate on the legislation: “The bottom line is: This is a debate about children’s health coverage . . . . This is not a debate about immigration.” 70

As I argued then in 2012 and have continued to argue since, though, the narrative focus on child welfare and the best interests of children does not typically embrace immigrant children and families and certainly does not protect undocumented migrants. 71 Even in the SCHIP program, Medicaid, and the EITC, only lawful immigrant parents and children are eligible for participation and tax relief. 72 This targeted exclusion of certain migrants from benefits and protection — including those living within the country as undocumented immigrants and those seeking asylum relief when arriving at a port of entry pursuant to the proper immigration processes — is perhaps most starkly demonstrated in the ongoing family separation crisis, which began in 2017. 73 Within this example, we see blatant disregard for family unity and children’s safety, which are ostensibly bedrock family law principles.

In 2020, I discussed a news story about a Honduran mother and child who were apprehended at the U.S.-Mexico border during the Trump Administration’s Zero Tolerance Prosecution Policy and Family Separation Policy, which wreaked havoc on migrant families:

After declaring to U.S. Customs and Border Protection (CBP) officials her intent to seek asylum based on being the target of violence in her home country, the mother and her eighteen-month-old son were transferred to a holding facility where they spent the night together. The mother, Mirian, recounts what happened next: “When we woke up the next morning, immigration officers brought us outside where there were two government cars waiting. They said that I would be going to one place, and my son would go to another. I asked why repeatedly, but they didn’t give me a reason. The officers forced me to strap my son into a car seat. As I looked for the buckles, my hands shook, and my son started to cry. Without giving me even a moment to comfort him, the officer shut the door. I could see my son through the window, looking back at me — waiting for me to get in the car with him — but I wasn’t allowed to. He was screaming as the car drove away.” 74

Mirian’s story is like that of thousands of migrant families in which the U.S. government forcibly separated children from their fit adult parents or caregivers, absent any showing that such separation was in the children’s best interest. The Zero Tolerance Prosecution Policy and Family Separation Policy worked collaboratively to arrest arriving migrants (without regard to the viability of their pleas for lawful asylum relief), place them in detention (that is, jail), and take their children away from them. 75 The policies destroyed thousands of families until the public and political pressure was so loud that President Trump declared its formal end in 2018. 76 Indeed, the bipartisan, convergent outcry against the government ripping children away from their parents was one clear example where concerns about general child well-being superseded the political and societal attacks against migrants arriving from Central America. 77 A poll of voting Americans conducted in June 2018 — during the height of the media coverage of crying, inconsolable children who were taken from their parents — showed that two in three respondents disagreed with the policy. 78 Facing opposition to his actions from even within his own party, President Trump was forced to concede.

In my 2022 update about the family separation crisis, I discussed President Biden’s newly created Task Force on the Reunification of Families, which was formed to reunify the families targeted by the Family Separation Policy, report to President Biden on the progress, and recommend policies and practices to ensure that the government does not separate families again. 79 Recent Task Force reports state that the U.S. government took at least 3855 migrant children away from their parents in the name of immigration deterrence. 80 Some families remain separated. 81 Others who have been reunited are living through the ongoing trauma that they experienced. 82 What unifies their experiences is that harmful actions were done to them without any regard for the well-established and seemingly unassailable standard that law should act in children’s best interest. Indeed, the class action lawsuit brought by affected families against the U.S. government persuasively argued constitutional violations and challenged various defenses, including that the defendant agencies were properly operating under their executive authority for immigration decisions. 83 Thus, when family law intersects with immigration enforcement, the law does not protect all children. Although the policies are driven through the federal government by executive powers and not driven by state family law, the paramount best interests of the child standard that should govern all law concerning families and children is ignored. Here, too, the pragmatic method falls short.

C. Race Is Not an Obstacle; Race Is the Foundation

In her discussion of race in the article, Huntington notes the difficulties facing families of color: “[W]hen a problem is understood to affect primarily families of color, race has trumped pragmatism.” 84 In Social Justice and Family Court Reform , Professors Susan Brooks and Dorothy Roberts state:

The fundamental problem with family courts is that they treat family problems according to a family’s race and class status. White middle-class and affluent families almost always come to family court voluntarily to handle private matters, even though they may be seeking a coercive resolution to a dispute. Poor and minority families, on the other hand, are disproportionately compelled to appear before family court judges against their will. 85

Through the two brief examples of the child welfare system and the targeting of migrant families and children, we see but two ways in which family law fails to treat families equally or fails to uniformly prioritize child and family well-being. In this final section, I briefly echo an important point made in critical legal scholarship, and specifically by the theorists focusing on race and ethnicity, class, and immigration status. By using the lens in which the experiences of Black, Latina/o/x, poor, and immigrant families are the center, rather than the exception, we see that family law is just another area of law in which these families’ lives and lived experiences are not valued or believed. Moreover, this is not because entrenched racism is an obstacle. This is not due to a failure of the systems. As systems founded on racism, classism, and xenophobia, the family law and justice systems operate exactly as intended. Therefore, for these families, the solution cannot only be about incorporating an evidence-based methodology — but must also include a deep investigation into and dismantling of these degraded foundations of American law.

Professor Derrick Bell explains that the eradication of racism in America is not a mere political question or endeavor because “all of our institutions of education and information — political and civic, religious and creative — either knowingly or unknowingly ‘provide the public rationale to justify, explain, legitimize, or tolerate racism.’” 86 Crenshaw writes that we must be wary of efforts to minimize the rootedness of racism in what she deems a “post-racial pragmatism,” in which under the banner of purported colorblindness, the “pragmatist may be agnostic about the conservative erasure of race as a contemporary phenomenon but may still march under the same premise that significant progress can be made without race consciousness.” 87 Thus, if the aim is to assist all families, attempting to advocate around or over the racist foundations of our institutions is a fruitless endeavor.

But a deep exploration of Critical Race Studies, Latina/o/x Critical Studies, and/or Critical Legal Studies is left to the distinguished scholars of those fields. The rich body of critical race and theory scholarship challenges lawyers, advocates, and teachers to reimagine the way in which we use, teach, and confront the law by acknowledging that the American legal system depends on the marginalization of certain populations to uphold the principles of white supremacy. It is in this context that I assert that a seemingly practical, evidence-based approach does not encompass marginalized families.

When marginalized families benefit from a political or legal methodology, it is often because their interests happen to align with the interests of the majority. 88 Further, even though families of color may benefit from the programs and policies described in Pragmatic Family Law , like the Earned Income Tax Credit, they are overrepresented because systems operate to keep such families impoverished and in the lower strata of income earners. In the recent report researched and authored by Human Rights Watch and the ACLU, the authors provide data showing that “Black children were more than three times as likely to be living in poverty as white children. The wealth gap between Black and white families in the U.S. was the same in 2016 as it was in 1968, and . . . it has increased since the start of the Covid-19 pandemic.” 89 The authors discuss the deep research regarding how the legacy of enslavement is perpetuated by generations of “policies and practices” that “have subjected Black families to residential segregation, housing discrimination, discriminatory exclusion from employment opportunities, and limitations to social benefits and safety nets.” 90 Therefore, although such assistance programs ultimately include families of color and poor families, the deeper issues of why these families are disproportionally represented are never unearthed, exposed, or resolved.

Finally, when critically examining proposed methodologies, we must recognize that superimposing a normative ideal onto communities of color or otherwise ostracized people succeeds only when the majority allows it and/or benefits from it. As Bell explains, interest convergence theory dictates: “When whites perceive that it will be profitable or at least cost-free to serve, hire, admit, or otherwise deal with blacks on a nondiscriminatory basis, they do so. When they fear — accurately or not — that there may be a loss, inconvenience, or upset to themselves or other whites, discriminatory conduct usually follows.” 91 As he observes, progress toward racial equality remains elusive precisely because of the entrenched American foundation of white supremacy. 92

Pragmatic Family Law adds substantially to the family law literature, discussing the reach and limits of the pragmatic approach. Huntington notes, for example, that even when such evidence-based policymaking results in important changes to the law (like health care expansion, marriage equality, and nontraditional parenthood), there are still seemingly unmovable obstacles that remain to achieving broader protections — like universal health care, acceptance of polyamorous families, or robust and expansive support for LGBTQ people. 93 She persuasively demonstrates how family law’s strong foundations in family and child well-being have helped and can help advocates and policymakers to further embrace a pragmatic approach that already operates in some family law spheres and helps to depolarize divisive political issues.

To be sure, the shortcoming in embracing the approach is not just that it cannot fully account for the racism inherent in family law, which Huntington recognizes. 94 Instead, by centering the normative family experience, we miss the cornerstone question: what about families of color, immigrant families, and poor families? Their lived experiences, rooted in a heritage of marginalization and oppression designed to preserve the American status quo, are outside of the prescriptive family experiences. As Roberts states about the child welfare system’s assault on families of color and poor families: “Family destruction has historically functioned as a chief instrument of group oppression in the United States.” 95 As I state about the heinous practice of stripping children away from their fit parents at the U.S. border: “Policies shifting away from family unity and towards an inhumane treatment of immigrant families are anchored in the political rhetoric that normalizes the oppression of immigrants.” 96 And, as I and myriad family law practitioners experience every day in family courts around the country, the family court system continues to treat families from marginalized communities differently than the traditional normative family. Therefore, while evidence-based, individual decisionmaking is best for family and child well-being and should be operationalized, it is critical that we understand its deep limitations for many American families.

* Associate Dean of Academic Affairs and Professor of Law, Howard University School of Law; LL.M., Georgetown University Law Center; J.D., University of Michigan Law School; B.A., University of Texas at Austin. I sincerely thank those who have contributed greatly to this project. I am grateful for the contributions of my research assistants, Howard University School of Law second-year students Hafzat Akanni and Fedel Estefanos. I thank Howard University and Dean Danielle R. Holley of the Howard University School of Law for the continued support of my work and scholarship.

^ Clare Huntington, Pragmatic Family Law , 136 Harv. L. Rev. 1501 (2023).

^ Id. at 1502.

^ Id. at 1509 n.37.

^ Id. ; see id. at 1559.

^ Legal Services , Ayuda, https://ayuda.com/legal-services-4 [ https://perma.cc/9WVW-G8MC ].

^ See Am. Immigr. Council, Immigrants in District of Columbia 1 (Aug. 6, 2020), https://www.americanimmigrationcouncil.org/sites/default/files/research/immigrants_in_the_district_of_columbia.pdf [ https://perma.cc/QEJ7-XSKX ].

^ I represented many clients in court as a law student in the Child Advocacy Law Clinic at the University of Michigan Law School, under the supervision of our expert and excellent professors, who were practicing lawyers. That transformative experience, plus my own journey as a Spanish-speaking, Mexican American woman from South Texas, inspired me to pursue public interest law in service of vulnerable communities, especially Spanish-speaking indigent people.

^ Domestic Violence Clinic , Geo. L. , https://www.law.georgetown.edu/experiential-learning/clinics/our-clinics/domestic-violence-clinic [ https://perma.cc/XAA3-HGRY ].

^ QuickFacts: District of Columbia , U.S. Census Bureau , https://www.census.gov/quickfacts/DC [ https://perma.cc/R264-FL4A ]. Minorities comprise 62.7% of D.C.’s population. See id. Among other reported races and ethnicities, D.C. is 11.5% Hispanic or Latina/o/x and 4.5% Asian. Id.

^ Interestingly, the demographics of those seeking assistance in the D.C. domestic violence court system are no longer publicly available. Data from a 2012 D.C. domestic violence court watch report shows that Black was the perceived race of 86.3% of the petitioners (that is, those seeking help with a domestic violence case). DC SAFE , 2012 Report: DC Domestic Violence Court Watch Project 24 (2012), https://courtwatchdc.files.wordpress.com/2013/08/2012courtwatchreport.pdf [ https://perma.cc/XQ7V-YL9P ]. The percentage of Black people in the D.C. population in 2012 was 50.1%. Joy Phillips & Caryn S. Thomas, D.C. State Data Ctr., Fact Sheet 4 tbl.4 (2012), https://planning.dc.gov/sites/default/files/dc/sites/op/publication/attachments/2012%20DC%20Population%20Estimate_1.pdf [ https://perma.cc/5T4U-ADUW ]. Thus, my conclusions are drawn from personal and professional experiences and through informal conversations with practitioners and advocates over approximately twenty years in the D.C. legal community.

^ Leah A. Hill, Do You See What I See? Reflections on How Bias Infiltrates the New York City Family Court — The Case of the Court Ordered Investigation , 40 Colum. J.L. & Soc. Probs. 527, 546 (2007).

^ Id. at 547.

^ Huntington, supra note 1, at 1536–43.

^ Id. at 1536.

^ Id. at 1503–07.

^ Id. at 1507.

^ Anna Burke et al., Child Custody, Visitation & Termination of Parental Rights , 21 Geo. J. Gender & L. 201, 211 & n.52, 212 & nn.53–54 (2020) (noting that there is a general methodological presumption for joint custody in every state and citing examples).

^ See Kirsti Kurki-Suonio , Joint Custody as an Interpretation of the Best Interests of the Child in Critical and Comparative Perspective, 14 Int’l J.L. Pol’y & Fam. 183, 187–89 (2000).

^ See Milfred Dale, “Still the One”: Defending the Individualized Best Interests of the Child Standard Against Equal Parenting Time Presumptions , 34 J. Am. Acad. Matrim. Laws. 307, 308 (2022) (“[C]onsideration of joint physical custody and shared parenting have become more common in discussions of social policy, in the private voluntary development of parenting plans by parents, and in instances where custody disputes require court adjudication.”).

^ See, e.g. , id. at 310–13 (describing the history of the best interests of the child standard and the benefits of its use over stark presumptions); id. at 311 (“The strengths of the individualized best interests standard lie in its ‘child-centered focus, its flexibility, its minimal a priori bias relative to the parties, ’ and its ability to respond to changing social mores, values, and situations in a diverse society.” (footnote omitted) (quoting Melissa M. Wyer et al., The Legal Context of Child Custody Evaluations , in Psychology and Child Custody Determinations 3, 18 (Lois A. Weithorn ed., 1987))).

^ Huntington, supra note 1, at 1511–12, 1526.

^ Id. at 1515.

^ Id. at 1525–26.

^ Id. at 1527–28.

^ Pub. L. No. 117-159, 136 Stat. 1313 (codified in scattered sections of the U.S. Code).

^ Id. § 12005, 136 Stat. at 1332–33 (codified at 18 U.S.C. § 921(a)); see Huntington, supra note 1,at 1528. Importantly, the new law specifies that the person can resume gun ownership after five years of a clean record unless the person has a certain type of relationship (partner, spouse, parent) with the victim. See Rachel Treisman, The Senate Gun Bill Would Close the “Boyfriend Loophole.” Here’s What that Means , NPR (June 23, 2022, 11:47 AM), https://www.npr.org/2022/06/23/1106967037/boyfriend-loophole-senate-bipartisan-gun-safety-bill-domestic-abuse [ https://perma.cc/4BXD-8ZP7 ] (“The bill includes a related provision, allowing people who were convicted of misdemeanor domestic violence to have their gun rights restored if their record stays clean for five years. There are some exceptions for victims’ spouses, parents, guardians or cohabitants.”).

^ See Treisman, supra note 29 (“It also would close the so-called ‘boyfriend loophole’ in a law that prevents people convicted of domestic abuse from owning a gun. That law currently only applies to people who are married to, living with or have a child with the victim.”). Importantly, however, the law applies only when the person has been convicted of an intimate partner crime. 18 U.S.C. § 921(a)(33). Some victims may not wish or be able to pursue criminal charges. Moreover, as with crimes generally, whether the abuser is prosecuted and convicted of a crime is in the hands of the prosecutor, judge, and jury, not the victim needing protection.

^ Deborah Epstein & Lisa A. Goodman, Discounting Women: Doubting Domestic Violence Survivors’ Credibility and Dismissing Their Experiences , 167 U. Pa. L. Rev . 399, 435–37 (2019) (“[T]he available evidence indicates that, as a general rule, judges view women as less credible witnesses and advocates than they do men. And recent studies show that the police routinely discredit female survivors of intimate partner abuse.” Id. at 435 (footnote omitted).).

^ Id. at 436.

^ Id. (footnote omitted).

^ Id. at 436–37.

^ Mariela Olivares, Battered by Law: The Political Subordination of Immigrant Women , 64 Am. U. L. Rev. 231, 263 (2014).

^ Id. at 236. I further explained that “[l]ack of English-language skills remains a formidable barrier for immigrant domestic violence victims seeking legal assistance.” Id. at 237 n.16 (citing Donna Coker, Shifting Power for Battered Women: Law, Material Resources, and Poor Women of Color , 33 U.C. Davis L. Rev. 1009, 1031–32 (2000); Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color , 43 Stan. L. Rev. 1241, 1249 (1991)).

^ See generally Michelle Alexander , The New Jim Crow: Mass Incarceration in the Age of Colorblindness (rev. ed. 2012) (discussing how the “War on Drugs” and other so-called criminal justice campaigns led to the mass incarceration of Black people, decimating communities of color); Paul Butler , Chokehold: Policing Black Men (2017) (explaining how the law enforcement and criminal justice systems function as designed — that is, to target and imprison Black men); César Cuauhtémoc García Hernández , Migrating to Prison: America’s Obsession with Locking Up Immigrants (2019) (describing how the criminal justice system, the immigration enforcement system, and the private-prison industry work together with the aim of imprisoning immigrants, mostly people of color, in the United States).

^ See bell hooks , Violence in Intimate Relationships: A Feminist Perspective , in Talking Back: Thinking Feminist, Thinking Black, 84, 84–91 (1989); Crenshaw, supra note 37, at 1242–45.

^ In our seminar, we talk about the intersection of multiple types of identities while experiencing domestic violence. This principle of intersectionality explores the ways in which people with multiple identities (for example, Black, queer, woman) experience systems differently due to the unique intersection of these identities. In her pioneering 1991 article, Crenshaw writes: “Contemporary feminist and antiracist discourses have failed to consider intersectional identities such as women of color. . . . Because of their intersectional identity as both women and of color within discourses that are shaped to respond to one or the other, women of color are marginalized within both.” Crenshaw, supra note 37, at 1242–44.

^ To be sure, people of all genders and gender identities experience domestic violence. Still, research demonstrates that women are more likely to experience it than are men. See Fast Facts: Preventing Intimate Partner Violence, Ctrs. for Disease Control & Prevention , https://www.cdc.gov/violenceprevention/intimatepartnerviolence/fastfact.html [ https://perma.cc/JW4D-B2ZB ] (“About 1 in 3 women and [a]bout 1 in 4 men report having experienced severe physical violence from an intimate partner in their lifetime.”).

^ Nicholson v. Williams (Defending Parental Rights of Mothers Who Are Domestic Violence Victims) , NYCLU , https://www.nyclu.org/en/cases/nicholson-v-williams-defending-parental-rights-mothers-who-are-domestic-violence-victims [ https://perma.cc/CC5G-EXQV ] (discussing a New York case holding on appeal that a child cannot be removed from their parent on the sole basis that the parent was unable to protect the child from witnessing domestic abuse). Other states and courts continue to consider failure to protect or failure to act as grounds for neglect and/or even criminal prosecution. See, e.g. , Tim Talley, Group Takes Aim at Oklahoma’s Failure-to-Protect Law , AP News (Sept. 29, 2018), https://apnews.com/article/45a6f24af72c4750ac141f3fe10b3bc9 [ https://perma.cc/CZ8Y-NZGH ] (discussing the Oklahoma failure-to-protect law that goes so far as to allow for prosecution of parent victims of domestic violence who do not respond to or report abuse by their abuser and noting such practices in other states); Sara Tiano, Maryland Eyes Law to Protect Domestic Violence Survivors from “Failure to Protect” Charges , The Imprint (Feb. 14, 2023, 9:26 AM), https://imprintnews.org/youth-services-insider/maryland-eyes-law-to-protect-domestic-violence-survivors-from-failure-to-protect-charges/238491 [ https://perma.cc/8GXG-T6XC ] (discussing what would be the first law of its kind in the nation protecting parent victims of domestic violence from claims of child neglect due to exposure to domestic violence and reporting that only fifteen state child welfare systems have policies that protect parent victims from charges of child abuse or neglect). Therefore, most states do not have codified protections for parent victims of domestic violence, leading to a broad array of policies. See, e.g. , id. (“[Some] states have set a threshold of children being harmed or at risk of harm by their proximity to domestic violence. Under such policies, the parent experiencing the abuse can be charged with ‘failure to protect’ the children from the abusive partner.”).

^ Dorothy Roberts, How the Child Welfare System Is Silently Destroying Black Families , In These Times (May 24, 2022), https://inthesetimes.com/article/systemic-inequalities-in-the-child-welfare-system-target-black-families [ https://perma.cc/966E-DCQ7 ]; see also Susan Edelman, Mom Calls Years-Long War with City Foster System “Kidnapping , ” N.Y. Post (Aug. 21, 2016, 6:00 AM), https://nypost.com/2016/08/21/mom-calls-years-long-war-with-city-foster-system-kidnapping [ https://perma.cc/VU2F-W948 ] (describing the story and the class action lawsuit of which the mother was a part and providing pictures of the mother and son).

^ See Huntington, supra note 1, at 1507.

^ Id. at 1555.

^ Hill, supra note 14, at 532. Hill refers to a New York Family Court rule that provides for this service of the ACS. Id. at 539 (citing N.Y. Comp. Codes R. & Regs. tit. 22, § 205.56(a)(1) (2023)).

^ See id. at 541.

^ See id. at 542.

^ See id. at 541, 547.

^ Id. at 544; see also Dale Margolin Cecka, Inequity in Private Child Custody Litigation , 20 CUNY L. Rev . 203, 228 (2016). Professor Cecka draws on her own experience to make the following “striking” observation: New York City Family Court judges are often highly dissatisfied with the investigations and services that ACS provides. For Family Court judges to turn around and use ACS as a reliable and trustworthy gatherer of “facts” in a private case is ironic and further reinforces the message that Family Court litigants are not worthy of respect. Id. (footnote omitted).

^ Huntington, supra note 1, at 1569.

^ Id. at 1566 n.386 (citing Child.’s Bureau, U.S. Dep’t of Health & Hum. Servs., Child Welfare Practice to Prevent Racial Disproportionality and Disparity 2–3 (2021), https://www.childwelfare.gov/pubPDFs/racial_disproportionality.pdf [ https://perma.cc/FR5X-2TM9 ]).

^ Clare Huntington & Elizabeth Scott, The Enduring Importance of Parental Rights , 90 Fordham L. Rev . 2529, 2533 (2022) (footnote omitted).

^ Huntington, supra note 1, at 1571; see also Huntington & Scott, supra note 54, at 2540 (“Increasing state authority to supervise parenting can lead to a more intrusive state presence in communities of color to the detriment of the children affected.”).

^ Huntington, supra note 1, at 1569–71.

^ Hum. Rts. Watch & ACLU , “If I Wasn’t Poor, I Wouldn’t Be Unfit”: The Family Separation Crisis in the US Child Welfare System 32 (2022), https://www.hrw.org/sites/default/files/media_2022/11/us_crd1122web_3.pdf [ https://perma.cc/3TPH-HQSR ].

^ Shereen A. White & Stephanie Persson, Racial Discrimination in Child Welfare Is a Human Rights Violation — Let’s Talk About It that Way , Am. Bar Ass’n (Oct. 13, 2022), https://www.americanbar.org/groups/litigation/committees/childrens-rights/articles/2022/fall2022-racial-discrimination-in-child-welfare-is-a-human-rights-violation [ https://perma.cc/K9GC-7N6K ].

^ Roberts, supra note 43.

^ Huntington, supra note 1, at 1561 (footnote omitted).

^ Id. at 1544–53.

^ Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of the U.S. Code).

^ Huntington, supra note 1, at 1532.

^ Id. at 1523 (footnotes omitted).

^ See generally Mariela Olivares, The Impact of Recessionary Politics on Latino-American and Immigrant Families: SCHIP Success and DREAM Act Failure , 55 How. L.J . 359 (2012) [hereinafter Olivares, SCHIP Success ].

^ Children’s Health Insurance Program Reauthorization Act of 2009, Pub. L. No. 111-3, 123 Stat. 8 (codified as amended at scattered sections of the U.S. Code); see Children’s Health Insurance Program (CHIP) , Medicaid.gov , https://www.medicaid.gov/chip/index.html [ https://perma.cc/ZKY6-NJPG ].

^ CHIP Eligibility , Medicaid.gov , https://www.medicaid.gov/chip/eligibility/index.html [ https://perma.cc/VHV2-DTPT ].

^ See Olivares, SCHIP Success , supra note 65, at 371–77 (discussing the negotiations to include certain lawful immigrant classifications in the eligibility guidelines); Coverage of Lawfully Present Immigrants , HealthCare.gov , https://www.healthcare.gov/immigrants/lawfully-present-immigrants [ https://perma.cc/CW7B-HPDC ] (detailing which lawfully present immigrant children are eligible for CHIP coverage).

^ See Olivares, SCHIP Success , supra note 65, at 374–77.

^ Id. at 377 (footnotes omitted) (quoting Ceci Connolly, Senate Passes Health Insurance Bill for Children; Immigrant Clause Opens Rift , Wash. Post , Jan. 30, 2009, at A1).

^ Olivares, SCHIP Success , supra note 65, at 384–90; Mariela Olivares, Resistance Strategies in the Immigrant Justice Movement , 39 N. Ill. U. L. Rev. 1, 20–22 (2018); see Olivares, supra note 36, at 282–83; Mariela Olivares, Intersectionality at the Intersection of Profiteering & Immigration Detention , 94 Neb. L. Rev. 963, 964 (2016); Mariela Olivares, Narrative Reform Dilemmas , 82 Mo. L. Rev. 1089, 1090 (2017).

^ See Health Coverage and Care of Immigrants , Kaiser Fam. Found. (Dec. 20, 2022), https://www.kff.org/racial-equity-and-health-policy/fact-sheet/health-coverage-and-care-of-immigrants [ https://perma.cc/QL75-468U ] (“Undocumented immigrants are not eligible to enroll in Medicaid or CHIP or to purchase coverage through the [Affordable Care Act] Marketplaces.”). To claim the Earned Income Tax Credit, taxpayers must have a valid Social Security Number, which undocumented immigrants do not have. For eligibility guidelines, see Who Qualifies for the Earned Income Tax Credit (EITC) , IRS (Jan. 25, 2023), https://www.irs.gov/credits-deductions/individuals/earned-income-tax-credit/who-qualifies-for-the-earned-income-tax-credit-eitc [ https://perma.cc/BJC5-F23H ].

^ Mariela Olivares, The Rise of Zero Tolerance and the Demise of Family , 36 Ga. St. U. L. Rev . 287, 296 (2020).

^ Id. at 288–89 (footnote omitted) (quoting Mirian G., At the Border, My Son Was Taken from Me , CNN (July 11, 2018, 1:43 PM), https://us.cnn.com/2018/05/29/opinions/immigration-separation-mother-son-mirian/index.html [ https://perma.cc/6APC-72XH ]).

^ See Olivares, supra note 73, at 294.

^ See Miles Parks et al., Trump Signs Order to End Family Separations , NPR (June 20, 2018, 11:51 AM), https://www.npr.org/2018/06/20/621798823/speaker-ryan-plans-immigration-votes-amid-doubts-that-bills-can-pass [ https://perma.cc/PVD9-6HFY ].

^ David Smith & Tom Phillips, Child Separations: Trump Faces Extreme Backlash from Public and His Own Party , The Guardian (June 19, 2018, 2:23 PM), https://www.theguardian.com/us-news/2018/jun/19/child-separation-camps-trump-border-policy-backlash-republicans [ https://perma.cc/J89D-UQRE ] (summarizing the findings of a Quinnipiac University national poll).

^ See Mariela Olivares, Family Detention and Family Separation: History, Struggle, and Status , 9 Belmont L. Rev. 512, 519 (2022). I continue my research into the aftereffects of the policies in a recently published piece on child migration. See Mariela Olivares, Perspective, The Trauma of the Family Separation Policy on Migrant Children (2017–2022) , 12 Laws , no. 1, 2023, at 1 [hereinafter Olivares, The Trauma of the Family Separation Policy ]. The Task Force outlines seven broad goals of its work: (1) “[l]ocating [f]amilies and [e]xplaining [o]ptions”; (2) “[e]stablishing a [m]echanism for [f]amilies to [c]ome [f]orward”; (3) “[p]roviding [h]ome [c]ountry [s]upport”; (4) “[o]ffering [f]amilies [r]eunification [s]ervices”; (5) [s]ustaining and [i]mproving the [a]vailability of [b]ehavioral [h]ealth [s]ervices”; (6) “[i]dentifying a [l]ong-[t]erm [s]tatus [o]ption for [f]amilies”; and (7) “[i]dentifying [d]urable [f]unding [s]ources.” U.S. Dep’t of Homeland Sec., Interagency Task Force on the Reunification of Families, Interim Progress Report 1 (2021), https://www.dhs.gov/sites/default/files/publications/21_0826_s1_interim-progress-report-family-reunification-task-force.pdf [ https://perma.cc/5E4H-YBWL ] [hereinafter 2021 Interim Report] .

^ When the U.S. government undertook the family separation process, it did so haphazardly, carelessly, and without basic documentation. As a result, the total number of separated children may never truly be known. In the first Task Force 120-day progress report, the Task Force “identified 3,914 [separated] children . . . between July 1, 2017 and January 20, 2021 . . . . Additionally, the Task Force continue[d] to review . . . 1,723 separations involving parents who were previously determined to be out of scope.” 2021 Interim Report , supra note 79, at 3. The most recent Task Force report, from September 2022, states that the Task Force “has identified 3,855 children” impacted by the policy. U.S. Dep’t of Homeland Sec., Interagency Task Force on the Reunification of Families, Interim Progress Report 6 (2022), https://www.dhs.gov/sites/default/files/2022-10/22_1026_sec-frtf-interim-progress-report-september-2022-cleared.pdf [ https://perma.cc/BTN2-WVSF ] [hereinafter 2022 Interim Report ].

^ 2022 Interim Report , supra note 80, at 8.

^ Olivares, The Trauma of the Family Separation Policy , supra note 79, at 4–6.

^ Olivares, supra note 73, at 342–43; see Ms. L. v. U.S. Immigr. & Customs Enf’t, 310 F. Supp. 3d 1133, 1146, 1148 (S.D. Cal. 2018).

^ Huntington, supra note 1, at 1510.

^ Susan L. Brooks & Dorothy E. Roberts, Social Justice and Family Court Reform , 40 Fam. Ct. Rev. 453, 453 (2002) (footnotes omitted) (citing Judith Areen, Intervention Between Parent and Child: A Reappraisal of the State’s Role in Child Neglect and Abuse Cases , 63 Geo. L.J. 887, 899 (1975)).

^ Derrick Bell , And We Are Not Saved: The Elusive Quest for Racial Justice 156 (1989) (quoting Manning Marable, Beyond the Race-Class Dilemma , The Nation , Apr. 11, 1981, at 428, 431); see also Roy L. Brooks, Critical Race Theory: A Proposed Structure and Application to Federal Pleading , 11 Harv. BlackLetter L.J. 85, 90 & n.26 (1994). In her excellent historical work on Critical Race Theory, Crenshaw describes Bell’s pioneering work to discount “post-racial” legal scholarship: Bell’s work revealed how liberal, rights-oriented scholarship had been preoccupied with the task of reconciling racial equality with competing values such as federalism, free market economics, institutional stability, and vested expectations created in the belly of white supremacy, such as seniority. Bell sought to critique the liberal constitutional frame within which race scholarship was disciplined, uncovering the ways that these investments were not separate values to be balanced against the quest for racial equity but were themselves repositories of racial power. Kimberlé Williams Crenshaw, Twenty Years of Critical Race Theory: Looking Back to Move Forward , 43 Conn. L. Rev. 1253, 1282 (2011) (footnote omitted).

^ Crenshaw, supra note 86, at 1314.

^ See Derrick Bell , Faces at the Bottom of the Well: The Permanence of Racism 7 (1992).

^ Hum. Rts. Watch & ACLU , supra note 57, at 38.

^ Id. at 38–39.

^ Bell , supra note 88, at 7.

^ Derrick A. Bell, Jr ., Brown v. Board of Education and the Interest-Convergence Dilemma , 93 Harv. L. Rev . 518, 523 (1980) (“However, the fourteenth amendment, standing alone, will not authorize a judicial remedy providing effective racial equality for blacks where the remedy sought threatens the superior societal status of middle and upper class whites.”).

^ Huntington, supra note 1, at 1561–62.

^ In discussing certain disparate effects of law and policy on families of color, she writes: [P]ragmatism in family law should work for all families, but race, racism, and deep divides about whether the United States should do more to address racial inequity are fundamental cleavages in the United States. This makes it significantly harder to use the pragmatic method to address the root causes of racial inequity in family law. Id. at 1569.

^ Dorothy Roberts , Torn Apart: How the Child Welfare System Destroys Black Families — And How Abolition Can Build a Safer World 87 (2022).

^ Olivares, supra note 73, at 287.

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Loyola University > School of Law > Academics > Degree Programs > LLM Degrees > LLM in Child and Family Law

Llm in child and family law.

What defines a family? How are children's rights evolving? How do lawyers advance the needs of children and families? How can legal systems become more equitable? The practice of child and family law requires both a sensitive manner and a discerning legal mind to address these important and evolving questions impacting children and families. The Master of Laws (LLM) in Child and Family Law degree program is designed to sharpen and inform both qualities. This program offers a comprehensive study of the most current legal issues involving children and their families.

The opportunity to work closely with nationally recognized faculty members and experienced practitioners in the field means you'll be well-versed in this transforming discipline.

Our commitment to you

The LLM in Child and Family Law degree is committed to developing three resonate threads: advocacy, leadership, and equity. These three threads come to life in each course in the program, link your learning from one semester to the next, and prepare you to be a more effective lawyer working on behalf of children and families.

Upon graduation with the LLM in Child and Family Law, you will possess the following knowledge, skills, and professional values to advance these three threads:

You will demonstrate advanced knowledge of legal rules and procedures in the fields of child and family law. You will gain a deep understanding of the specific areas of the law that impact children and families—from education to child welfare, mental health to juvenile justice, domestic relations to domestic violence, and many others. Policy considerations will become familiar to you as you tackle current issues impacting the field of child and family law in well-informed ways. You will discover or enhance your own leadership qualities while exploring the meaning of advocacy in a variety of contexts. The knowledge you will gain will equip you to advance equitable solutions for children and families.

Conduct complex and specialized legal research and analysis;
Engage in scholarship that contributes to the greater understanding of law and policy as it affects children and families;
Understand how child development and family dynamics influence child and family law and policy;
Effectively compare perspectives on issues facing children and families in a global environment;
Comprehend the historical, socio-economic, and cultural context in which child and family laws, policies, and practices are developed and implemented;
Identify and articulate areas in which laws and policies should be improved to promote positive outcomes for children, families, and communities;
Appreciate the unique legal and ethical needs and circumstances of child and adolescent clients;
Further develop written and verbal advocacy skills that are central to being an effective advocate for children and families;
Advance the needs of children and families through the deepening of advocacy skills relevant to various contexts and circumstances;
Understand and apply professional leadership skills to organizational management and as a change agent;
Identify and strategize ways to create legal systems grounded in equity; and
Generate systemic reform and progress.

Professional Values

You will be prepared to exercise proper professional responsibilities to your clients and serve as a leader in promoting the legal needs of children and families by embracing the following values:

Integrate professional values of honesty, civility, and respect for others in your advocacy work;
Exercise ethically responsible judgment in interactions with clients and your peers;
Respect and abide by the laws, practice, and procedures of legal system while envisioning and harnessing opportunities for reform;
Adhere to the tenets of servant leadership to manage organizations and initiatives to serve children and families;
Understand the importance of using your knowledge and skills in service of advocacy to support children and families in times of need and to foster effective systemic responses that meet their need; and
Commit to transforming inequitable systems and building equitable responses in their place.

By the numbers

OFFERS MORE CHILD AND FAMILY LAW COURSES THAN ANY LAW SCHOOL

NAMED TOP FAMILY LAW PROGRAM IN 2015 AND 2018

Tailored to meet your background, interests, and professional ambitions, the program may be completed fully online or through a hybrid program with a mix of online and on-campus courses in one year or two years, depending on your pace. The curriculum is designed for maximum flexibility to meet your individual interests and needs. Students in the LLM program may elect to concentrate their studies in traditional family law, child law, or a combination of each.

Required Courses (1 COURSE/3 CREDIT HOURS)

LAW 651: LLM Child Law Paper/Thesis

Elective Courses (21 CREDIT HOURS)

You choose from a range of courses including family law, elder law, family finances law, legal marketing, child custody, adoption law, juvenile justice, child welfare, and international child rights. You may wish to create an emphasis within either family law or child law. Below is a sampling of our courses offered fully online. We seek to rotate new elective courses into the schedule each term (available courses subject to change).

LAW 166: Education Law Practicum
LAW 426: Special Education Law and Advocacy
LAW 608: Juvenile Justice Law and Policy
LAW 631: Child Law Graduate Externship
LAW 641: Child Law Directed Study
LAW 663: Children’s Summer Institute
LAW 668: Leadership Development
LAW 669: Education Law and Policy
LAW 670: Child Welfare Law and Policy
LAW 673: Mental Health Law and Children
LAW 678: International Children’s Rights
LAW 687: Introduction to Legislative Policy and Advocacy
LAW 689: Family Law and Policy
LAW 690: Financial Aspects of Divorce
LAW 691: Domestic Violence: Theories, Policies, and Societal Impact

We have a dedicated academic advisor who works one on one with students to craft an individual advising plan based on their anticipated course load and rate of pursuit as well as to hone special areas of elective interest.

Family law concentration

You can choose from a range of courses including family law, elder law, family finances law, and legal marketing.

Children’s law Concentration

Loyola’s comprehensive curriculum includes child welfare, juvenile justice, child custody, adoption law, and international child rights.

Education Immersion Weekends and Networking

The Graduate and Online Programs Team typically holds Education Immersion Weekends (EIWs) twice a year. EIWs offer programming to reinforce learning objectives, provide a venue for networking, and foster communication among students, alumni, and faculty members. EIWs are usually held at Loyola University Chicago School of Law. At this time, EIWs remain optional but strongly encouraged . For more information, please email [email protected] .

Degree Requirements

To earn an LLM in Child Law degree, you must compete a total of 24 hours, including the three-credit-hour LLM thesis. Visit our Registrar for a complete list of degree requirements, academic calendars, and information on the registration process. You may access full course descriptions through our student information system through guest access.

To apply for the LLM in Child and Family Law program, you must possess a bachelor's degree or its international equivalent from an accredited college or university and a primary degree in law (i.e., Juris Doctor). Applicants for the online program must demonstrate a professional connection to the subject area through three years of full-time, professional work experience.

Application Document Deadlines

August 1: Fall
December 1: Spring

To begin your free, online graduate application and to see additional requirements to complete your file, please click the button below.

How To Apply

Diane Geraghty

“Over the years, Loyola has played a key role in transforming children’s law and policy into a robust and well-respected area of professional specialization.”

Laura Hoffman

“I am forever grateful to Loyola for giving me a strong foundation to foster professional development. ”

Tuition and Fees

The School of Law and Loyola's Office of Student Financial Assistance are committed to helping you secure the necessary financial resources to make your legal education at Loyola affordable.

As part of our commitment, the Civitas ChildLaw Center awards a fellowship totaling up to 25% of tuition to a full-time incoming LLM student. In exchange for graduate fellowship support, LLM Fellows serve as research or teaching assistants, contribute to the Center’s monthly newsletter, assist in conference and event planning, and/or perform administrative tasks. You must apply and be accepted into the LLM in Child and Family Law degree program before a fellowship application will be reviewed. To apply, please submit a resume, cover letter and short writing sample no later than August 1 to the LLM Fellowship Committee at [email protected] or [email protected] .

Financial Aid

Do I need a JD degree and need to be a member of the Bar?

LLM applicants must possess a primary law degree. For U.S. lawyers, this is a JD degree. For international lawyers, the degree may vary per country. If you have earned a JD degree from a non-ABA accredited institution in the United States, you must also be a licensed attorney.

What are some of my "real world" study opportunities?

Represent child clients through the Child Law Clinic
Assist in the editing of the Children's Legal Rights Journal
Complete an externship in Chicago's large child advocacy community
Degree Programs

Upcoming Event

Join us for our llm and mj virtual information session.

Wednesday, May 22nd 12:00 – 1:00 PM (CT) – via Zoom REGISTER

Sam Wilks, Sr. Enrollment Advisor [email protected] 312.915.7173

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Area of Interest Children and Family Law

Law’s profound impact on children and families encompasses both the private realm of intimate relationships—marriage, divorce, adoption, custody, childrearing—and the public governmental systems that determine access to resources and services—education, health care, immigration, employment, taxation. With a range of courses to choose from and clinics and programs focused on family law, youth advocacy and policy, and LGBTQ+ advocacy, Harvard Law offers students the opportunity to understand the myriad ways the legal system influences people’s daily lives.

From Harvard Law Today

Hls professors, elizabeth bartholet.

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I. Glenn Cohen

James A. Attwood and Leslie Williams Professor of Law

Martha A. Field

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Jeannie Suk Gersen

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Family justice clinic, education law clinic / trauma & learning policy initiative, international human rights clinic, research programs and centers, access to justice lab, animal law & policy program, foundations of private law, institute for global law and policy, john m. olin center: law, economics and business, julis-rabinowitz program on jewish and israeli law, petrie-flom center: health law, biotech and bioethics, program in islamic law, program on law and society in the muslim world, harvard law school project on disability, youth advocacy & policy lab, related courses, modal gallery, gallery block modal gallery.

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Family Law Case Study

The Supreme Court ruled recently that a broad Washington state law allowing visitation rights for grandparents and other third parties violated the due process rights of a mother to raise her children as she saw fit. In a rare foray into the field of family law, usually reserved to state courts, the Court was sharply divided in the much anticipated case of Troxel v. Granville . The 6-3 decision produced six separate writings by justices — three in the majority and three in dissent — sapping some of the force of the decision.

Justice Sandra Day O’Connor, in announcing the main opinion from the bench, noted in an aside that, “unfortunately,” the members of this Court were as divided as the parties in the case before the Court. O’Connor wrote that “grandparents play an important role” in raising children in many modern households. But, she added, “So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the state to inject itself into the private realm of the family,” She stressed that her ruling struck down Washington’s broad visitation law “as applied” to the children of Tommie Granville.

Soon after Brad Troxel committed suicide in 1993, his parents Gary and Jenifer Troxel went to court to seek more time with their two grandchildren than the mother was willing to allow. A trial judge agreed that more visitation was in the children’s “best interests,” but the Washington Supreme Court sided with the mother. The state high court said the third party visitation law violates parents’ rights under the U.S. Constitution to decide how to rear their children. O’Connor agreed, asserting that the Washington law is “breathtakingly broad” and that the lower court judge who ordered greater visitation had given “no special weight” to the mother’s determination that less visitation was best for her daughters. But O’Connor was careful to limit the scope of her opinion, asserting that it does not decide “whether the due process clause requires all non-parental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context.”

Justices John Paul Stevens, Antonin Scalia, and Anthony Kennedy each wrote separate dissents. Stevens said “it is indisputably the business of the states” to weigh the conflicting interests in disputes such as the one before the Court.

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Interesting Family Law Court Cases

Family law cases address a wide variety of issues and disputes relating to familial matters, including parental disputes, divorce decrees, child protection, financial support for children, adoption and domestic violence (in some instances).

The Family Division of the High Court deals with such proceedings. District judges preside in County Courts and in Family Proceedings Courts, which are dedicated Magistrates’ Courts that house family court cases.

For issues relating to children, family law courts can deal with both public cases, that can be brought by local authorities or an authorised person (only the NSPCC at present), and private actions, that are typically brought by private individuals, often associated with divorce or separation between parents.

Here, we take a look at interesting family court cases that have presented notable rulings in recent years.

1. Chai v Peng (2014)

In Chai v Peng (2014) , the Family Division chaired one of the most complex and sizeable divorce cases to have entered the English courts. The case involved businessman, Khoo Kay Peng, and his former beauty queen wife Pauline Chai.

Married for 43 years, the Malaysian businessman had created a significant collection of enterprises that includes British textile design company, Laura Ashley.

In 2013, when Chai issued a petition for divorce in London, Peng disputed the claim, arguing against its jurisdiction in England and instead, issued his own separate petition in Malaysia.

Disputes over the most appropriate jurisdiction continued for two years, before the High Court ruled that England was the right jurisdiction to bring the case before (later upheld by the Court of Appeal). Chai was subsequently awarded one of the biggest divorce settlements in history, £64 million, in 2017.

2. Medway Council v Root (2019)

Medway Council v Root (2019) is a recent case that sought to resolve a dispute between parent and child.

In the digital era, the Family Division of the High Court had to consider whether an application for committal could be upheld where a parent published material regarding her children on social media, without their consent.

The first question for the courts was whether posting a hyperlink on social media on a judgement constitutes to publishing that judgement. The second question was to ask and decide if audio content on a video recording, whereby spoken words can be heard, amounts to displaying such material for the purposes of the law.

The judges were required to consider the legal framework in the context of hyperlinks and displaying material. Root applied to purge her contempt — atone an act by apology and/or payment of a fine — on the grounds of her deteriorating health and an unconditional apology for breaching orders and ensuring compliance in the future.

On the attempt to purge her contempt, the court considered that as she had removed the offending material from Facebook and Twitter, both those and related pages were no longer publicly accessible.

As a result, the local authority agreed that the purpose they sought committal had been achieved. The court allowed the parent to purge her contempt and demanded her immediate release.

3. Re A (a minor) (fact finding; unrepresented party) (2017)

In Re A (a minor) (fact finding; unrepresented party) (2017) , one of the most prominent and important statements were made by a judge in recent years, in the context of domestic abuse: “It is a stain on the reputation of our family justice system that a judge can still not prevent a victim being cross-examined by an alleged perpetrator.

“T his may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.”

Emphasising the inherent and profound fairness, such principles underpin the Domestic Violence Bill reforms proposed in 2019. The Bill seeks to secure:

A new statutory domestic abuse definition
A new role of Domestic Abuse Commissioner
A new regime of domestic abuse protection notices and domestic abuse protection orders that are made and enforced by the family courts (in instances when the application is not brought by the police)
A prohibition on in-person litigants in family cases cross-examining each other in certain situations. In these circumstances, the family court can appoint a legal representative to conduct the cross-examination on the person’s behalf
Domestic abuse offenders are subject to polygraph testing as a condition of their licence

In The Domestic Abuse Bill: a long-awaited overhaul or flawed legislation with an implementation problem? , Hannah Gomersall, Barrister, Coram Chambers states that while the bill is “creative and ambitious in its attempt to unify and reform both the family and criminal jurisdictions” , it appears to be unclear how this will align with current family court practices and whether it’s possible with available and accessible resources.

These are just a handful of interesting family law cases that have attracted media attention in the past few years. As aspiring lawyers, we must analyse and draw awareness to those that are prevalent, have raised important questions and set precedents that turn such legal judgements into landmark proceedings and famous family law cases.

Words: Natasha Spencer-Jolliffe

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Case Studies

The following case studies are based on real scenarios we have encountered in our collaborative law practice. The names and details included, however, have been altered to protect confidentiality.

John and Martha

John and Martha were married and had two children. After they separated, Martha had concerns about John’s ability to share parenting responsibilities. Martha felt that she had shouldered the bulk of the parenting duties and that John was exhibiting behaviours that were concerning to her.

The couple’s financial affairs were straightforward. John and Martha earned approximately equal incomes and their property issues were not complicated.

We created a collaborative team that included two lawyers and two coaches. The lawyers provided legal information regarding parenting arrangements, the financial needs of the children, the financial needs of the couple and division of family property. After receiving this information, John and Martha attended very few meetings with the lawyers, as the focus of their discussions was primarily their parenting plan.

With the assistance from the coaches, John and Martha were able to successfully negotiate a parenting plan that they both felt met their family’s needs. The coaches also helped them establish rules for communication that reduced the tension between them

The lawyers were involved with the division of John and Martha’s family property and determining how to best meet their children’s financial needs. The parenting plan and their financial settlement were then incorporated into a comprehensive separation agreement. At the appropriate time, John and Martha proceeded to an uncontested divorce with neither party having to appear in court.

Gordon and Denise

Gordon was paying spousal support to Denise pursuant to an order of the court. However, the order did not stipulate when Gordon’s obligation to provide support would end. He wanted to retire, but Denise continued to require his support in order to meet her needs.

Gordon and Denise’s situation involved complicated legal questions, but they didn’t have any communication issues that would prevent them from collaborating. Also, their children were financially independent adults. Accordingly, the professional collaborative team we assembled consisted of their two lawyers and a financial specialist.

The lawyers provided Gordon and Denise with legal information about the underlying principles of spousal support and how the courts may respond to the complicated factors involved in their situation.

The financial specialist assisted the two with developing budgets and information that they would need to help them make decisions.

Using this information, Gordon and Denise, with the assistance of the professional team, were able to generate options that they then systematically narrowed down to a resolution that met their mutual interests. The lawyers then assisted Gordon and Denise with preparing documents that they needed to achieve a final resolution to the issue of support.

Jim and Lisa

Jim and Lisa had an eight-year relationship. The two had a daughter together and Lisa had a son from a previous relationship. Her son’s biological father continued to be involved in her son’s life.

Jim and Lisa struggled to develop a parenting plan that would allow Jim to continue to have a relationship with Lisa’s son, with whom Jim had developed a close relationship. Lisa was concerned it would mean limiting her own time with her son as the biological father spent time with him as well. Jim was concerned about losing his close relationship with the boy.

Jim and Lisa were able to work with coaches to develop a parenting plan that met both their interests. Jim was able to continue his relationship with Lisa’s son in a way that was satisfactory to all involved.

Jim and Lisa also had some property issues that were complicated. Through the collaborative process, they were able to uncover viable options that would not have been available to them through the court system.

At the end of the collaborative process, Jim and Lisa were able to communicate more effectively with each other. When they later experienced issues, they were able to return to the parenting coaches for assistance without having to re-engage their lawyers.

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Home News and Insights Relationships and Family Law Case Study

Relationships and Family Law Case Study

20th April 2018

Family lawyers at Harrison Clark Rickerbys helped Juliet to feel more at ease discussing her divorce and the personal issues that accompany that.

She said: ” My case was complicated and I knew from the beginning that I was going to need a solicitor whom I could trust to understand my future needs and requirements, and who would be able to represent me all the way through, however difficult the situation became. I was recommended to use Harrison Clark Rickerbys after discussing my options with several people who all sang their praises.

“They guided me expertly through each process, helping me to understand at each step of the way the legal jargon often associated with a complex divorce. I was given guidance and support throughout, which helped reduce my fears and made me feel more confident of a successful outcome.

“When I first approached them to handle my divorce after unsuccessfully attempting to salvage my marriage, I was feeling very emotional and afraid of what the future held for myself and my children. I need not have had these worries. After a very successful outcome I am happier than I have been for many years.”

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Law Academic

Top 20 landmark Judgements on family law that every law student should know

Sushil Kumari Dang v. Prem Kumar

Here, a petition for restitution of conjugal right is filed by the husband and the husband accuses his wife for adulterous conduct. Following which he filed another petition for judicial separation which shows the extent of his sincerity and the interest in keeping the wife with him. So, the Delhi High Court set aside the decree of restitution granted by the lower court.

Yousuf v. Sowramina

It was held that at times, the determination of the question whether in fact a marriage has broken down or not is left to the courts. At other times, the legislature lays down the criterion of breakdown of a marriage and if that is established, the courts have no option but to dissolve the marriage.

Chand Dhawan v. Jawaharlal Dhavvan

The Supreme Court in this case makes it manifest that claim of maintenance under Section 25 is awardable when the marriage is “diseased or broken” as an ancillary or incidental remedy to the strained marital status due to passing of a decree for restitution of conjugal rights, or of judicial separation in favour of or against her or of nullity or divorce with or without her consent.

Ankush Narayan v. Janabai

Court held that on adoption by a widow, the adopted son becomes the son of the deceased adoptive father and the position under the old Hindu law as regards ties in the adoptive family is not changed.

Lily Thomas v. Union of India

The Supreme Court of India held that if any members of a legislative council (MLC), member of the legislative assembly (MLA) or members of Parliament (MP) who was convicted of a crime and awarded a minimum of two-year imprisonment, he/she shall lose membership of the House with immediate effect.

Sitabai v. Ramachandra

If the husband is not under such disqualification except the exceptions mentioned in the relevant act the wife cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife.

Guradas v. Rasaranjan

Adoption is made when the actual giving and taking had taken place and not when the religious ceremony is performed like Datta Homam. For a valid adoption, it would be necessary to bring on records that there has been an actual giving and taking ceremony.

Harvinder Kaur v. Harmander Singh Choudhary

In this case, the court rejected the plea that personal law was discriminatory towards Gender inequality in India. It also observed that introduction of Constitutional law into the home (referring to personal laws) was most inappropriate.

Jijabai v. Pathan Khan

Where the father and mother had fallen out and the mother was living separately for over 20 years and was managing the affairs of her minor daughter the apex Court observed though the father was alive but he was not taking any interest in the affairs of the minor and should be treated as if non-existent, and, hence, the mother is the natural guardian of the minor’s person as well as property.

Muhammad Usman v. Sainaba Umma

The Court has held that Section 2(9) is a residuary ground where courts have an area of discretion and freedom to dissolve the marriage. Where the court is satisfied that marital relations between have actually been broken down beyond reasonable doubt, the Court may include any reason or ground for giving relief to wife.

Aykut v. Aykut

The Court has powers to declare a marriage null and void on the ground that the consent of either party was obtained by force or fraud.

Mohd Ahmed Khan v. Shah Bano begum

Muslim personal law was challenged in this petition. The Supreme Court ruled in favour of Shah Bano and granted her alimony which the Muslim community felt as an encroachment on Muslim Sharia law. The decision of the case led to the formation of the All India Muslim Personal Law Board in 1973.

Thirumal v. Rajamma

Probably in the case of non-Hindus and non-Muslims, the high courts have inherent jurisdiction to provide the relief. Persons belonging to any community are free to enter into separation agreements under the general law of contract.

M.E. Querashi v. Hazraba

The husband’s retraction of the charge before the commencement of the proceeding nullifies the ground. On the question whether husband’s retraction after the filing of the suit will have the same effect, judicial opinion is divided.

Sitabai v. Ramcbandra

So there may be relationship by implication in the other cases also. The Supreme Court has also held that a son adopted by the widow of the deceased coparcener will also be a coparcener with the surviving coparceners of the deceased husband.

Sarla Mudgal Union of India

The Court held that if a Hindu converts to Muslim and then have a second marriage, he can not do so, irrespective of the fact that polygamy is allowed in Islamic Law.

Jijabai v. Pathankhan

Under the modern Hindu law father is the natural guardian of his minor legitimate children though mother is entitled to custody of the child upto the age of five. Mother is the natural guardian of her illegitimate children and after the death of the father of her legitimate children.

R.Virupakshaiah v. Sarvamma & Anr

Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is ancestral property.

Dipo v. Wassan Singh & Others

A person who has to inherit property from his immediate paternal ancestors up to 3 lines, holds it in coparcenary and to other relations he holds it and is entitled to hold it, as his absolute property. Hence, the property inherited by a person from any other relation becomes his separate property.

Chanmuniya v. Virendra Kumar Singh Kushwaha

Considering Sec 7 of the Hindu Marriage Act, 1955 the marriage performed in absence of customary rites and ceremonies of either parties to marriage is not valid. And Mere intention of the parties to live together as husband and wife is not enough. Further, there is no scope to include a woman not lawfully married within the expression of ‘wife’ in Section 125of the Code should be interpreted to mean only a legally wedded wife.

Family Law Course

About this course.

Family law pertains to the formation and dissolution of domestic relations, including the law of marriage, annulment, separation and dissolution, maintenance, and custody and support of children. This course will study the differences between community and separate property, the classification of property, and the impact of such classification. The role of the paralegal in family law practice and the importance of mediation of domestic issues will also be discussed.

Course Objectives

The course begins with an overview of divorce law and reviews important aspects to consider in property division, alimony, custody and support in a divorce. The course also describes post-divorce collection actions and necessary court actions after a divorce. Other aspects of family law are studied also, including common law marriage, prenuptial agreements, annulments, civil unions, adoptions, paternity and neglect actions. Students will learn common terminology in family law and some of the procedural concerns to consider in these areas of law.

Participants will demonstrate the following skills through successful completion of all required coursework and assignments:

Identify various source of information available regarding Divorce
Define and explain the function of a Petition for Dissolution or Legal Separation
Discuss the importance of a Summons and identify the different types or factors that affect it
Explain the basic function and purpose of temporary orders
Distinguish the types of temporary order agreements
Explain the criteria of a Common Law Marriage
Explain the criteria of Prenuptial Agreements
Examine sample states’ formulas for calculating child support
Describe the requirements of final orders
Explain how attorney fees are handled in divorce cases
Examine the following settlement methods: mediation, alternative dispute resolution, separation agreements, legal separation, and property division
Discuss Paternity Actions.
Explain child custody and identify parenting time issues
Discuss visitation rights for grandparents in divorce and paternity actions
Examine parenting plans and parental education requirements
Identify when modifications are possible for child and spousal support
Identify ways to collect support by way of wage assignment, garnishment, lien
Illustrate when to file a Motion for Contempt of Court
Summarize appealable issues within Family Law, such as Temporary Orders and Final Orders
Explain the criteria of Annulments
Discuss what Civil Action Suits are and explain their purpose
Differentiate community property and equitable division of property
Examine procedures for Order of Protection in your state
Discuss Intimate Partner Violence and remedies for victims
Examine how Intimate Partner Violence affects child custody and visitation
Define Juvenile Delinquency
Review Juvenile Court Proceedings
Explain the purpose of the Interstate Compact on the Placement of Children (ICPC)
Explain the overall process of adoptions
Examine the procedures for International adoptions
Summarize the Indian Child Welfare Act (ICWA)
Identify the specifications for adopting children with Birth Parent(s) in the Military
Explain what an Equitable Adoption is
Discuss adoption by same sex partners
Summarize Annulments of Adoption
Examine child custody and paternity issues related to assisted reproduction
Discuss surrogacy
Review assisted reproduction law in your state
Discuss ethical issues in family law

Expectations

You will be expected to spend an average of 8 hours per week reading and completing writing assignments. Please note that extensions will not be granted for this online course. 70% is the minimum passing score on all tests and assignments for this course. Students may consider working ahead in the curriculum if they have the time. Coursework in Family Law is equivalent to 45 clock hours of study.

Prerequisites

Successful completion of Paralegal I and II, or equivalent experience.

Course Books

Required textbooks for this course:

Family Law in a Nutshell , Most Recent Edition. St Paul: West Group by Harry D. Krause.

Highly Recommended Legal Resources:

Oran’s Dictionary of the Law , 4th Edition, by Daniel Oran. Clifton Park: Delmar Cengage Learning

For more information, call CLS by BARBRI at 800-522-7737, or visit our Online Store to order.

Reading Assignments for Lesson Topics:

Lesson One: Family, Prenuptial Agreements, Cohabitation, Marriage and Divorce

Read the Preface and Chapters 1 thru 5 in Family Law in a Nutshell ( Nutshell )

Lesson Two: Paternity & Child Custody

Read Chapters 6 & 7 in Nutshell

Lesson Three: Child Support, Spousal Support & Collecting Support

Read Chapters 8 & 9 in Nutshell

Lesson Four: Property Issues & Annulments

Read Chapters 10 & 11 in Nutshell .

Lesson Five: Intimate Partner Violence & Juvenile Court

Read Chapters 12 & 15 in Nutshell

Lesson Six: Adoption, Assisted Reproduction & Ethics

Read Chapters 13, 14 & 16 in Nutshell

Writing Assignments:

For each lesson you will submit a 50-point writing assignment covering the topics in that lesson’s reading consisting of a variety of short answer questions and essay questions.

You will complete two exams. Each is worth 50 points. The Midterm exam is to be submitted with your Lesson Three Assignments; the Final exam is to be submitted with your Lesson Six Assignments. Exams are comprised of true/false, short answer and essay questions.

Legal Document Preparation Assignments:

You will prepare two legal document assignments. Each is worth 30 points. Legal Document Preparation Assignment One: Prenuptial Agreement will be due with your Lesson Three Assignments; Legal Document Preparation Assignment Two: Marital Separation Agreement will be due with your Lesson Six Assignments.

Bulletin Board Assignments:

You will also post your responses to six class participation assignments. These assignments are referred to as Bulletin Board Submissions and will be submitted by either selecting Bulletin Board Submission from within the lesson material, or by selecting ‘Forums’ under Activities in the course.

All lesson objectives, assignments, and tests can be found in the Lesson Materials.

Your grade will be based on your completion of six writing assignment assignments, two exams, two legal document assignments, and class participation/Bulletin Board Submissions. The exams, legal document preparation assignments, and writing assignments can be accessed from within the lesson material, or by selecting ‘Assignments’ under Activities in the course. You will have the opportunity to engage in “class participation” by using the Bulletin Board tool to respond to the bulletin board assignments throughout the course. Also, participating in the bulletin board assignments will enhance your understanding of the reading material.

Your final grade will be figured as follows:

The six writing assignments are worth 50 points each and comprise 40% of your grade.
The two exams are worth 50 points each and comprise 30% of your grade.
The two legal document preparation assignments are worth 30 points each and comprise 20% of your grade.
Your participation in class participation assignments comprises 10% of your grade.

Withdrawal Policy

Students may drop the course with a full tuition refund less a non-refundable $50 administrative fee if written notice is sent to CLS by BARBRI by email at [email protected] by the Wednesday before class begins. Students may drop the course with a 50% tuition refund if written notice is sent to CLS by BARBRI by email at [email protected] anytime from the Thursday before the course begins until the first Thursday of class. After the first Thursday of class, no refunds will be issued.

Please NOTE: If you registered for a CLS course directly with the college or university, you are subject to the school’s refund/drop policies.

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Family Law Case Study - The Separation Agreement

This Case Study is eligible for up to 1 Professionalism Hour

On May 4, 2018, Adam Robertson, partner at the family law firm of Robertson, Daniels & Leighton LLP, in Niagara Falls, Ontario, reviewed an urgent email from his junior associate, Herta Schiller. Her client, Olivia Callahan, had demanded an explanation from a senior partner as to why her offer to settle had not yet been sent to her husband’s lawyer. Olivia was due to arrive in the office in less than two hours and Adam had agreed to meet with her. Robertson, Daniels & Leighton LLP Adam Robertson, a senior partner at Robertson, Daniels & Leighton LLP, was called to the Bar in 1987 and founded the firm in 1994 with his partner, Joe Daniels. Fred Leighton joined the partnership in 2004. Prior to establishing the firm, Robertson practised family law in Niagara Falls as a sole practitioner. In 2018, the partnership employed two associates, one who was called to the Bar in 2012, and the other, Herta Schiller, who was called in 2017. The firm’s practice was restricted to family law and enjoyed a reputation as one of the leading family law firms in the Niagara region. The Callahan File Herta Schiller’s client, Olivia Callahan, retained the firm on April 16, 2018 after she was locked out of her business, Expresso! Coffee Bar by the other two shareholders: her husband, Sean Callahan, and Ethan Culbert. At the first consultation, Olivia told Herta that Sean had his own lawyer and that she was anxious to enter into a separation agreement to settle all issues with him as soon as possible. Herta gave Olivia a financial statement and net family property statement to complete in preparation for their next meeting two days later. At the second meeting, Herta reviewed Olivia’s financial information and received settlement instructions from her. The second meeting did not go well. Olivia disagreed with Herta’s position on what financial information was to be given to Sean’s lawyer. Olivia also insisted that Herta draft an offer to settle in accordance with terms she gave her. A few days later, Olivia called the office and spoke to Herta’s assistant who advised her that the offer had not yet been sent to Sean’s lawyer. Angry at the lack of progress on the file, Olivia insisted on seeing a senior partner that afternoon to explain why her instructions had not been followed. Herta drafted an urgent email to Adam ( Email to Adam Roberston, Exhibit 1) , setting out all the details of the matter to date. She was unable to meet with the client as she was called to trial that afternoon. Adam agreed to meet with Olivia.

From: Herta Schiller < [email protected] > Sent: May 4, 2018 To: Adam Robertson < [email protected] > Subject: Your meeting with Olivia Callahan this afternoon

Adam, Thank you for agreeing to meet with our client on such short notice. Instructions to Settle

In my second meeting with Olivia, she instructed me to prepare an offer to settle all outstanding issues by way of a separation agreement that would incorporate the following terms:

no spousal support payable to either party;
transfer to the wife the husband’s net interest in the matrimonial home;
transfer to the wife two (out of seven) espresso kiosks, coffee outlets, owned by the husband’s business, Expresso! Coffee Bar;
custody of their twin children, aged 9, to the wife, with alternate weekend access to the husband;
child support to the wife in the amount of $1,404 per month; and,
each party to keep his or her own vehicle.

Family Law Case Study

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Sylvia Kang'ara: Havard Graduate Serving in Ruto's Council of Economic Affairs

P rofessor Sylvia Kang’ara is a Kenyan legal scholar whose illustrious career spans academia, professional practice, and judicial advocacy.

With expertise in comparative private law, property theory, and international law, Kang’ara has emerged as one of the voices in legal academia, with a commitment to advancing justice, equality, and social change.

Born from a family of academic excellence, Kang’ara’s journey in law commenced at the University of Nairobi School of Law, where she obtained her Bachelor of Laws (LLB) degree with honors in 1996.

Subsequently, she pursued postgraduate studies at the Kenya School of Law.

Her academic pursuit reached its pinnacle at Harvard Law School, where she attained both a Master of Laws (LLM) degree and a Doctor of Juridical Sciences (SJD) degree, specializing in Comparative Private Law and Property Theory.

Peer Reviewed Journals & Law Reviews by Prof. Kang’ara

Kang’ara’s scholarly contributions delves into critical issues such as marriage reform, constitutive influences in legal thought, and the significance of private law in African contexts.

Noteworthy her publications include articles in journals such as the Hastings Race & Poverty Law Journal and the American University International Law Review.

“Sylvia Wairimu Kang’ara, Beyond Bed and Bread: Making the African State Through Marriage Reform-Constitutive and Transformative Influences in Anglo-American Legal Thought, 9 Hastings Race & Poverty L.J. 353-95 (2012) ,”

“Sylvia Wairimu Kang’ara, Why Take Private Law Seriously in Africa? Am. U. Int’l L. Rev. 1125-52 (2011) ,” University of Washington, Law Faculty quotes her publications.

Also Read : Miguna Counters David Ndii’s Stance on Ruto’s Ksh1 Billion Allocation to Advisors

Appointment in Economic Council of Advisors Team

President William Ruto appointed a diverse team of economic advisors, including Professor Sylvia Kang’ara.

The council, chaired by renowned economist Dr. David Ndii, comprises seasoned professionals from various sectors, poised to steer the implementation of crucial economic policies under “The Plan.”

Prior to her appointment, Kang’ara’s professional trajectory saw her serve as the founding Dean of Riara University Law School, where she played a role in shaping legal education.

Professor Kang’ara has also served at institutions like the University of Washington School of Law and Oklahoma City University School of Law.

Professional Affiliations

Beyond academia, Kang’ara’s involvement in various professional affiliations mirrors her commitment to social justice and legal advocacy.

Noteworthy roles include board memberships in organizations such as the Washington Law Review and Women for Justice in Africa, as well as active participation in international legal associations.

Also Read: Ndii Explains Azimio Dilemma with Raila’s Exit

Throughout her academic journey, Professor Sylvia Kang’ara has been the recipient of prestigious awards and fellowships.

These accolades include the Lincoln Institute of Land Policy Research Fellowship in 2001, the Institute for the Study of World Politics International Law Fellowship in 2000, the American Association of University Women (AAUW) International Fellowship in 1998, and the Samuel Morse Lane Harvard Scholarship in 1997.

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Professor Sylvia Kang’ara is a Kenyan legal scholar whose illustrious career spans academia, professional practice, and judicial advocacy. With expertise in comparative private law, property theory, and international law, Kang’ara has emerged as one of the voices in legal academia, with a commitment to advancing justice, equality, and social change. Born from a family of academic excellence, Kang’ara’s journey in law commenced at the University of Nairobi School of Law, where she obtained her Bachelor of Laws (LLB) degree with honors in 1996. Subsequently, she pursued postgraduate studies at the Kenya School of Law. Her academic pursuit reached its pinnacle […]

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Top Ten Family Law Cases from the Last Ten Years
Iowa, 419 U.S. 393, 404 (1975) (family law is a matter "virtually exclusive" to the states). Thus, federal cases affecting family law in the last ten years were few and far between. But when the Supreme Court or another federal court weighs in on a family law matter, you know the opinion is important.
Family Law Cases Outline
Family Law Cases Outline. Family law governs issues such as marriage, divorce, spousal support, child custody, and child support. Constitutional questions sometimes arise, such as the fundamental right to marry and to make parenting decisions. Other sources of family law include statutes, such as state laws prescribing procedures for marriage ...
Case Studies in Family Law, Divorce & Child Custody
The father was a demanding perfectionist. During the divorce, the father turned the mother's homemaking abilities against her, and accused her of having an obsessive-compulsive personality disorder (OCD). Based on the mother's alleged OCD, the father tried to get custody of the children. We brought in psychological experts and our client ...
Family Law
April 2023 Abstract Family law is a central battleground for a polarized America, with seemingly endless conflict over abortion, parental control of school curricula, gender-affirming health... Ziccarelli v. Dart. Seventh Circuit Entrenches Conduct Categories for FMLA Interference Claims. Vol. 136 No. 5 March 2023.
The Unpragmatic Family Law of Marginalized Families
Introduction. In her excellent article Pragmatic Family Law, 1 Professor Clare Huntington argues that divisive issues roiling U.S. politics, law, and society — such as abortion rights, gender-affirming health care for children, and parental involvement in and control over public school curricula regarding race and identity — have put a spotlight on family law.
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The LLM in Child and Family Law degree is committed to developing three resonate threads: advocacy, leadership, and equity. These three threads come to life in each course in the program, link your learning from one semester to the next, and prepare you to be a more effective lawyer working on behalf of children and families.
Family Court Review
Family Court Review is the leading interdisciplinary academic and research journal for family law professionals. The journal provides comprehensive coverage of family court practice, theory, research, and legal opinion. ... Evidence from Dutch studies on the consequences of shared residence for child and parent well-being is mixed, but suggests ...
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Family Law Publications The Section of Family Law provides a variety of publications to meet your educational and informational needs. Whether you're looking for case analyses, news-and-feature articles, Section updates or client information, we have the publication for you!
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Unchecked Biases in Family Law Are Pervasive and Harmful
In family law in California, one place discretion is taken underground involves the determination of spousal support at the time of divorce or thereafter. It is an open secret that lawyers, mediators, and the parties themselves tend to use a computer program to calculate such support, and widely suspected that judicial officers do the same.
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Area of Interest. Children and Family Law. Law's profound impact on children and families encompasses both the private realm of intimate relationships—marriage, divorce, adoption, custody, childrearing—and the public governmental systems that determine access to resources and services—education, health care, immigration, employment ...
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family law, body of law regulating family relationships, including marriage and divorce, the treatment of children, and related economic matters.. In the past, family law was closely connected with the law of property and succession (see property law), and, judging from the records available, it must have originated principally in the economic and property questions created by the transfer of ...
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The subject matter of the International Journal of Law, Policy and the Family comprises the following: analyses of the law relating to the family which carry an interest …. Find out more. Right to Respect for Private and Family Life, Home and Correspondence - A Practical Guide to the Article 8 Case-Law of the European Court of Human Rights.
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Interesting Family Law Court Cases
Here, we take a look at interesting family court cases that have presented notable rulings in recent years. 1. Chai v Peng (2014) In Chai v Peng (2014), the Family Division chaired one of the most complex and sizeable divorce cases to have entered the English courts. The case involved businessman, Khoo Kay Peng, and his former beauty queen wife ...
US Case Law, Court Opinions & Decisions :: Justia
States also usually have courts that handle only a specific subset of legal matters, such as family law and probate. Case law, also known as precedent or common law, is the body of prior judicial decisions that guide judges deciding issues before them. Depending on the relationship between the deciding court and the precedent, case law may be ...
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Collaborative family law case studies based on real scenarios we have encountered at Evans Family Law. (204) 992-3240 - 190 Sherbrook St. Winnipeg. Home; Our Team; Services. Collaborative Family Law; Negotiated Agreements; Mediation; Family Formation and Assisted Reproduction Agreements;
Relationships and Family Law Case Study
Relationships and Family Law Case Study. 20th April 2018. Family lawyers at Harrison Clark Rickerbys helped Juliet to feel more at ease discussing her divorce and the personal issues that accompany that. She said: " My case was complicated and I knew from the beginning that I was going to need a solicitor whom I could trust to understand my ...
Top 20 landmark Judgements on family law that every law student should know
1. Family Law Judgements. Top 20 landmark Judgements on family law that every law student should know. Sushil Kumari Dang v. Prem Kumar. Here, a petition for restitution of conjugal right is filed by the husband and the husband accuses his wife for adulterous conduct.
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The Influence of Artificial Intelligence on Family Law ...
Family law attorneys can offer clients more statistically based expectations, though human expertise remains essential for interpreting the unique circumstances of each case. Due to the fact the ...
Family Law Case Study
The Law Society has developed a series of Professionalism Case Studies to be used as the basis for discussion by study groups. A Professionalism Case Study is a description of an actual situation in which a lawyer or paralegal is faced with a decision involving one or more ethical, professional responsibility or practice management issues.
Family Law Case Study
Risk-taking can be fun, but not when it's a malpractice claim. Family Law Claim Lawyer sued for losing a child custody case due to alleged inadequate discovery and representation at trial Damages of up to $500,000 alleged TLIE successfully defended lawyer at trial INSURED BY TLIE Total out-of-pocket =$0 IF Read the full post
Sylvia Kang'ara: Havard Graduate Serving in Ruto's Council of ...
Born from a family of academic excellence, Kang'ara's journey in law commenced at the University of Nairobi School of Law, where she obtained her Bachelor of Laws (LLB) degree with honors in 1996.