UNINTENDED CONSEQUENCES OF BARGAINING FOR ADOPTION ASSISTANCE PAYMENTS

Families that adopt children who are in foster care may receive monthly adoption assistance payments to offset the cost of raising the adopted child. The amount of the adoption assistance payment is the subject of bargaining between the family and the child welfare authority. This article uses a bargaining model to highlight factors that, in addition to the expected costs of raising the child, might influence the outcome of bargaining over adoption assistance payments. Findings indicate that married parents who adopt children already in their care have an advantage in bargaining, and single women who adopt their kin or foster children have a disadvantage in bargaining.     

STATE CHILD EMOTIONAL ABUSE LAWS: THEIR FAILURE TO PROTECT CHILDREN WITH GENDER IDENTITY DISORDER

Emotional abuse of children with Gender Identity Disorder by parents is very difficult to identify and prevent. State investigators of abuse and neglect often have a hard time determining if the reasons for mental illness and psychological harm in children are due to the actions of their parents, or if they stem from other sources. Once identified, it becomes even harder to prove in court for purposes of ordering services or removing the child from the home if the abuse is severe enough. With children who are gender non‐conforming, this task becomes exponentially more difficult due to the low prevalence rate, discrimination, stereotypes, and a parent's right to bring up their child as they choose. These youth face discrimination and violence in school, work, their communities, and also within their own families. Emotional abuse statutes are too vague to protect youth who are gender non‐conforming. The vague and unclear laws lead to inconsistency in the application of the law and lack of protection of the children because judges and investigators are not aware of how parent's actions harms youth with gender identity disorder. Therefore, states should adopt the model statute within this Note which defines specific actions by parents which would not qualify as abuse when involving gender conforming youth but qualifies as abuse for children with gender identity disorder. Many states already have statutes which define physical abuse, sexual abuse and abandonment by specific actions by parents towards their children. This proposal will enable both the state and the judges to properly identify victims with gender identity disorder of emotional abuse and provide for their protection.     

Long-Term Follow-Up of Young Children Placed in Foster Care: Subsequent Placements and Exposure to Family Violence

This study examined the quality or characteristics of permanent placements at 6 years of age for 254 children who had been removed from their homes prior to attaining 3.5 years of age (mean = 13 months). Although the primary objective when removing children is protection, subsequent permanent placements are prioritized by federal legislation with a stable family environment, especially one with the biological parent(s), being preferred. Three a priori comparisons (i.e., reunified vs. nonreunified, adopted vs. foster care, relative vs. nonrelative foster care) were conducted for caregiver and child reports of exposure to family violence. The results indicate that both reunified children and their parents report more family violence (witnessed and child victimization) than do nonreunified children and their caregivers. Adoptive parents did report that they used more minor violence in disciplining their children than did foster caregivers, but their children reported witnessing significantly less physical violence in the home. Recognizing that the development of children removed from their homes because of maltreatment is likely a function of both the maltreatment as well as the quality of subsequent family experiences (i.e., violence exposure), implications of the findings for determining placements are discussed.     

MAKING A MOUNTAIN OUT OF A MOLEHILL: A LAW AND ECONOMICS DEFENSE OF SAME‐SEX FOSTER CARE ADOPTIONS

This article explores the methods by which homosexual partners can adopt children from foster care, primarily via the stepparent adoption method because most jurisdictions do not recognize same‐sex marriage or civil unions. In establishing that the children in foster care constitute a market not in equilibrium, I explore the significant barriers to entry that homosexual partners must overcome in order to adopt a child, including the biased rules of intestate succession, the inability of homosexuals to secure health insurance or other governmental subsidies for their nonbiological, adopted children, and the apparent misconception that homosexual parenting negatively affects the well‐being of the child. By deconstructing the barriers to entry in the foster care market for children, children will be afforded the opportunity to maximize their utility through permanency, and homosexual parents and the general public can maximize their utility through the reallocation of assets away from the foster care market, given that more children are likely to be adopted once homosexuals are granted unfettered adoption rights. The reallocation of assets away from the foster care market increases social efficiency, which is desired by all.     

Unintended and Unavoidable: The Failure to Protect Rule and Its Consequences for Undocumented Parents and Their Children

Parents without immigration status in the United States regularly face the threat of deportation and separation from their children. When an undocumented parent is brought to the attention of law enforcement through the child welfare system, they also face the potential of the loss of legal custodial rights to their children. The child welfare system and immigration enforcement mechanisms operate independent of one another with little regard for how actions in one can impact a parent's legal rights in the other, often permanently separating children from their parents. This article examines the particular issue of undocumented parents who are charged with the failure to protect their children from witnessing or otherwise experiencing abuse committed by a third party. It explores how such a charge, whether founded or unfounded, can result in loss of eligibility for immigration relief to which the undocumented parent would otherwise be entitled, as well as deportation of the parent and permanent separation of parent and child. These issues are situated within the larger context of the normative guideposts of both family and immigration law, namely, the best interests of the child and family unity. It identifies issues for further academic inquiry as well as tips for practitioners who may represent undocumented parents in either the family or immigration systems.

Key Points for the Family Court Community:
• Learn about the potential consequences under family law and immigration law when an undocumented parent's child is abused by a third party
• Gain strategies for planning with undocumented parents to avoid the loss of the custody of their children in the event of a sudden deportation
• Be able to identify and address particular concerns for clients who are undocumented victims of domestic violence

     

Who should pay for bad genes?

Parents have long been able to influence the genetic composition of their children through their choice of a reproductive partner, if only very approximately. They are, however, increasingly able to determine the genetic make-up of their children in other, more precise ways, such as by selecting a particular gamete or embryo or by genetically modifying an embryo prior to artificial implantation. This Article discusses parents' obligations to their children and other members of the community stemming from their children's genes. In a just state, it argues, parents would be responsible for redressing any genetic disadvantage their children suffer as a result of parents' voluntary actions. Within the context of a liberal egalitarian account of distributive justice, this responsibility might most fairly be discharged through a compulsory insurance plan that provides compensation to genetically disadvantaged children when they might have had non-disadvantaged children instead would in some circumstances incur greater liability, because they could not fairly push the cost of their choices off on other members of the insurance pool. The Article also asks whether parents wrong a child by allowing it to be born with a genetic impairment when, had they taken steps to remove the impairment, the unimpaired child they had would have been a different person from the genetically disadvantaged child because the better-off child's capacities and experiences differed considerably from those that the disadvantaged child would have had. Contrary to many people's moral intuitions, the Article argues that parents do not wrong such a child. Nevertheless, parents remain morally obligated to bear any added costs occasioned by the child's impairment. Any other approach would allow them unjustly to shift the burden of their choices to other parents. Finally, the Article takes up the much debated question of whether parents harm a child by allowing it to be born with a life not worth living when they could have prevented its birth. It suggests that the answer to this question should be irrelevant to parents' legal liability. Acting on behalf of the parental insurance pool, the state may nonetheless adopt a variety of measures to help potential parents avoid giving birth to such children, which one can assume virtually all would prefer.     

WINNING ESSAY: 1998 LAW SCHOOL ESSAY CONTEST

Courts are frequently confronted with children who, regardless of court orders, refuse to visit their noncustodial parents. This article examines the possible alternatives to holding a child, or parent, in contempt for such behavior. Furthermore, solutions and ideas that better serve the needs of children and parents in these highly volatile family situations will also be explored .     

Detection

Sexually abused children who are not treated will likely commit violent crimes and will probably abuse or condone the abuse of their own children. But the best of treatment programs are of no use if the abused children are not found. Reporting laws adopted in recent years, even though of somewhat limited scope, have greatly increased the number of children found and brought to treatment, and each child treated not only improves that child's pursuit of happiness, it also breaks a cycle of abuse to his children. Reporting laws can be strengthened. They can help more children. They can cast a broader net of those who must report abuse and of those who are protected when they report. They can clarify the procedures to be taken and the agencies responsible when reports are made. They can provide for confidentiality and protective orders to save the family a second trauma during judicial and administrative procedures. They can identify public policy as to when to treat and when to punish if both cannot be done. They can encourage research for determining the truth of reports and for improving treatment methods. There is resistance to reporting laws. Physicians are well aware that if they report an abuse they may well lose not merely that family as patients but also their friends and relatives which can be a severe economic hardship. Lawyers and physicians resist intrusions into the confidentiality of their relations with their clients and patients. Foster homes and residential care facilities know that even a hint of impropriety may end their arrangements for payment by the public and insurance carriers. Families often resist reporting because of its embarrassment and potential impact on their jobs and on their relationships with friends. Children resist because of guilt feelings or for fear of losing a parent. Mothers resist because they fear the breakup of their homes and loss of a breadwinner. Compulsory reporting laws may be the best means of helping sexually abused children and of breaking the cycle of sexual abuse by those who were sexually abused and even of reducing violent crime. It is not a simple solution. But just as we can do nothing about child abuse unless it is reported, neither can we do anything about abuse unless the reports are managed efficiently, with prompt investigation and prompt action when appropriate. A report allowed to gather dust may have cost a physician a part of his practice without protecting or helping the child.     

WHEN JAIL FAILS: AMENDING THE ASFA TO REDUCE ITS NEGATIVE IMPACT ON CHILDREN OF INCARCERATED PARENTS

The Adoption and Safe Families Act (ASFA) requires states begin termination proceedings when a child resides in foster care for fifteen out of the last twenty‐two months. Many states interpret this to mean that an incarcerated parent is unfit when they leave their child in foster care just because they are separated from their children. Parents and children can still have meaningful relationships even when separated. Thus, parental unfitness should depend on many factors such as the relationship with the child, age of the child, and ability to provide support for the child—not just the time spent away from the child. This Note advocates for the amendment of ASFA to include factors courts should consider when terminating the parental rights of incarcerated parents and encouraged states to focus not on a time frame for termination, but rather consideration of circumstances relevant to each individual family. States should incorporate the factors into their state laws. Further, states should actively work with prisoners and their children to help maintain contact and if possible, reunify families after incarcerations. These services will help prevent the need for termination after a parent completes their sentence and will help to reduce recidivism.     

Adoptions Gone Awry: Enhancing Adoption Outcomes Through Postadoption Services and Federal and State Laws Imposing Criminal Sanctions for Private Internet Rehoming

The federal government should invest in adopted children who make up the future of the country and are in dire need of rehabilitation and therapy because of their past circumstances. If the government steps in to rescue vulnerable children from inadequate or abusive birth parents by removal, it should also intervene when adopted families are faced with behavioral problems of adopted children that the adopted parents cannot address on their own. Postadoption services need to be accessible and effective to ensure the success of adopted families. Assisting families in crisis postadoption will lower the instances of dissolution and rehoming and keep adoptive families intact. In cases in which postadoption services fail, uniform federal legislation is necessary to make it a federal crime to advertise children for adoption on the Internet without proper certification and state legislation is required to make it a crime to pass on adopted children to strangers without judicial consent, to dissuade Internet rehoming. Internet rehoming of adopted children should be a serious crime as it is tantamount to child trafficking.© 2014 Association of Family and Conciliation Courts

Key Points for the Family Court Community:
• Postadoption services need to be more accessible and more narrowly tailored to the needs of adoptive families to ensure the success of adoptions.
• Better postadoption services create better adoptive families and adoptive parents will not reach the point of dissolution or private Internet rehoming.
• Adoptive parents should be provided with information regarding all available postadoption resources after adoption is finalized and a government Web site should be created that lists all available resources.
• The federal government needs to provide funding to states that specifically target postadoption services.
• A uniform federal statute is required to punish parties who use Internet forums to avoid government oversight and privately rehome their adopted children.
• States should enact laws that criminalize the unauthorized interstate placements of children.

     

Doing the Right Thing: Cohabiting Parents, Separation and Child Contact

Over recent years, concern has mounted at the unstable natureof cohabiting relationships compared to marital ones, and alsoabout the fact that any children from these relationships aremore likely to experience the separation of their parents thanthe children of a marital union. The discourse of the FamilyLaw Act 1996 holds that separating parents should behave ina conciliatory and reasonable way to each other, maintain contactwith their children and continue to be involved in their upbringing,and ensure that financial obligations are met. This articleuses data obtained through interviews with previously cohabitingparents who have attended pilot group meetings designed to educatethem about the needs of their children on separation, to examineto what extent parents internalize this discourse when negotiatingpost-separation parenting. The article concludes that whileparents may take on board the principles of this socially acceptablediscourse, they have their own moral rules derived from theirown histories and experiences of what it is to live their lifeand parent their child that they must marry with this discourse.The extent to which current family policy discourses and legislativeframeworks can influence the behaviour of parents is thereforemitigated by their own interpretations within the context oftheir own lives.     

Why Listening to Children and Young People is Important in Family Justice

During the last 30 years, there has been a growing body of evidence indicating that children and young people often feel marginalized when their parents are making critical decisions that will shape their young lives, and they are calling for family justice professionals to hear their voices. This article explores the research evidence, examines the relevant theories about child development, and demonstrates how a focus on age‐related competency fails to take account of children's subjective meanings about their lives. The authors consider a model of participation first designed to understand adult participation in government and show how this can be usefully applied to understanding children's participation in family justice.     

Ensuring Insurance for Foster Care: Requiring Foster Parents to Obtain Liability Insurance to Cover Harm Done to Foster Children in their Care

This Note proposes that all states should require that foster parents have liability insurance before children are placed in their care. This Note also proposes that the liability insurance needs to cover not just harm to third parties but also harm to the foster children through the negligent acts of the foster parents. This legislation will allow foster children to have standing to bring claims against their foster parents and insurance companies and give them a greater opportunity for recovery. Currently, the policies and statutes governing the policies in place do not cover all types of harm that can occur during the foster parent–child relationship. Certain policies leave children who are harmed by their foster parents’ negligence unable to recover any damages from the people who have harmed them. Because foster parents can be left to defend the actions themselves, they often become judgment proof due to their low income, leaving the children who are harmed with little chance of recovery.

Key Points for the Family Court Community:
• States need to require foster parents to obtain liability insurance, which covers harm done by the foster children to third parties, harm to the home, and any harm done to the child by the foster parents.

     

Children's Participation in Family Law Proceedings: A Step Too Far or a Step Too Small?

The Children (Scotland) Act 1995 established children's rights to have their views considered in family law proceedings. These rights go further than elsewhere in the UK: in requiring parents to consult their children when making any ‘major decision’, in creating a range of mechanisms for children to state their views and through facilitating children becoming party to legal proceedings if they are legally competent. Such rights are not without controversy, either in abstract (Is it in children's best interests to be involved in court proceedings? Should children have such rights?) or in practice (Do children and parents know of these rights and accompanying duties? How do legal professionals judge a child's competency?). This paper explores such controversies, using findings from a feasibility study undertaken with children, parents and legal professionals.     

The Parenting Coordinator as Peacemaker and Peacebuilder

Parenting coordinators serve as case managers in high‐conflict families with the goal of protecting the children from parental conflict. Parenting coordinators are peacemakers and peacebuilders who identify and help set up structures in the family to support peace between the parents. The family court should promote and develop equipoise in litigants and professionals. Because parents who continue in conflict postdecree often have difficulty empathizing with their co‐parents and with their children, they might benefit from meditation training to increase mindfulness, empathy, and compassion. Self‐compassion training could also increase well‐being and more effective co‐parenting and aid in building peace in the family.

Key Points for the Family Court Community:
• Parenting coordination is a child‐focused intervention with high‐conflict parents that can help protect children from their parents' conflict.
• Parenting coordinators are peacemakers who resolve disputes between the parents and facilitate negotiation and communication between them and help them make decisions.
• Parenting coordinators are also peacebuilders who help identify and build structures and processes in the family system to strengthen interparental peace.
• Equipoise can be developed in litigants and professionals through mindfulness and compassion training.
• Family court judges can work with parenting coordinators in a team approach, in a manner similar to what occurs in problem‐solving courts, to benefit the families and the judicial system.

     

Visit Coaching: Building on Family Strengths to Meet Children's Needs

Visits between children in foster care and their families often do not build on family strengths or help them demonstrate they can meet their children's safety and developmental needs. Visits can alienate parents, children, and foster parents, and the parent's grief, anger, and preoccupation with complying with court‐ordered treatment often obscure their children's needs. Visit coaching is an innovative approach that can replace parenting classes and office‐based visits with hands‐on guidance for families in meeting their children's needs. The visit coach, who may be their caseworker or a variety of other trained individuals, helps parents take charge of visits and demonstrate more responsiveness to each child.     

Why wrongful birth actions are right

A wrongful birth action is a claim in negligence brought by parents of a child against a doctor who has "wrongfully" caused their child to be born. These claims can be divided into two categories: those where a doctor performs a failed sterilisation procedure that leads to a healthy child being born; and those where a doctor fails to provide sufficient information to allow parents to choose to abort a handicapped child. The recent decision of the High Court of Australia in Cattanach v Melchior (2003) 77 ALJR 1312 falls into the former category. The decision to allow the parents to receive damages for the costs of raising and maintaining their child has generated much public debate. Despite the endorsement of this "wrongful birth" action, there are indications that the legislature will overturn the decision. This article examines whether there is a sound doctrinal basis for recognising wrongful birth actions.     

Parental warmth amplifies the negative effect of parental hostility on dating violence

Past research has documented the positive association between parental hostility and offspring involvement in intimate partner violence. Researchers, practitioners, and parents typically adopt the standpoint that parental warmth may counter these negative lessons. However, Straus and colleagues argue that parents foster IPV to the extent that they teach their child that verbal and physical aggression are a normal and legitimate component of loving relationships. A strict interpretation of social learning theory would suggest that these lessons are more, not less, likely to occur when parental hostility is interspersed with displays of affection. The present study tests this idea using data from 2,088 undergraduate students from a large university in the Southeast. Consistent with Straus' arguments, findings suggest that, rather than attenuating the negative effects of hostility, supportive interactions seem to amplify the probability that offspring will emulate aggressive behaviors in their own romantic relationships. The same is true for the effects of harsh parenting for women. It seems that the best way parents can avoid contributing to their child's chances of being in a violent dating relationship is to eschew family interaction involving verbal and physical aggression.     

Surrogacy,Identity, Parentage and Childrenʼs Rights – Through the Eyes of a Child

In this article I will focus on two important aspects of children's rights which are impacted by artificial reproductive technology (particularly surrogacy); being the rights to identity and the rights to legal parentage. The United Nations Convention on the Rights of the Child acknowledges the importance of a child's right to identity, to be protected from discrimination on the basis of the status or beliefs of the child's parents, legal guardians or family members. For many children born through surrogacy arrangements, they may have only one or no legally recognized parent. The adults caring for them may have parental responsibility orders but this falls well short of providing children with the benefits and protections that legal parentage does. The issue of identity can be complex. Increasingly, states have recognized the importance of children knowing the circumstances of their birth and being able to access biological and genetic information including medical information. From a child's perspective the issues of identity and parenthood are intertwined. Given the importance of identity, more needs to be done to ensure that identifying information about children born as a result of artificial reproductive technology is properly stored and readily accessible for these children. Denying a child legal parentage when there are no concerns about the care being provided by their parents cannot be justified when considered from a children's rights perspective.     

Contradictory interests: Work, parents, and offspring in early modern Holland

The consistory notes of the Dutch Reformed Church (1573–1700) reveal conflicts over work between parents and children during the early modern period. Two issues that caused particular tension were the labor experience of future sons-in-law and the division of household tasks. Parents' concerns about the financial position of their future son-in-law were sincere and realistic. Skills definitely bettered the new family's chances to survive financially. Children were not expected to take care of their destitute parents nor were parents obliged to support their poverty-stricken married children. Power struggles between children and stepparents also resulted in conflicts over work. After a widowed parent remarried, children and stepparents had to redefine their roles in the new situation. The child who had assumed responsibilities when a parent died resisted a stepparent who took over those tasks. Although the cases presented may not represent everyday interactions between parents and children, they do provide insights into how work caused problems between parents and older children.