WHO'S YOUR DADDY?: THE INHERENT UNFAIRNESS OF THE MARITAL PRESUMPTION FOR CHILDREN OF UNMARRIED PARENTS*

Many states have marital presumptions of legitimacy, which provide children born to married parents with protection against paternity lawsuits questioning their legitimacy. However, most states do not have legitimacy presumption statutes for unmarried couples. This lack of equality between married and unmarried couples makes it so that children born to unmarried parents, who have developed a psychological bond with a man they have always thought to be their father, are not afforded the same protection as other children in similar situations, simply because their parents were not married at the time of their birth. Therefore, this Note advocates for states to amend their paternity statutes to provide protection against nonpaternity lawsuits to psychological fathers and their psychological children. State statutes should provide a psychological father with the right to be declared the legal parent of his psychological child in cases where the child's legal father has been substantially absent from the child's life.     

Best Interest of the Child and Parental Alienation: A Survey of State Statutes

State statutes regarding the best interests of the child (BIC) in deciding disputed custody were reviewed and independently coded with respect to three issues (i) the child's preference and any limits (ii) parental alienation and (iii) psychological maltreatment. Results revealed that many states allowed for the child's preferences to be considered and none qualified that preference when undue influence has occurred; parental alienation as a term was not found in any state statutes but 70% of the states included at least one BIC factor relevant to its core construct of the parent supporting the child's relationship to the other parent; and many states included a history of domestic violence or child abuse but only three states explicitly mentioned psychological maltreatment. These findings highlight yet another way in which the BICS factors lack specificity in ways that could negatively impact children caught in their parents’ conflict.     

HOW JUDGES DECIDE WHETHER SOCIAL PARENTS HAVE PARENTAL RIGHTS: A FIVE‐FACTOR TYPOLOGY

Courts have issued conflicting rulings regarding the rights (e.g., custody, visitation) and responsibilities (e.g., child support) of non‐biological gay parents. This analysis establishes a typology of five factors that most commonly influence judges' decisions. These factors include: interpretation of parenting statutes, legislative intent, parental intent, legal documents establishing parenthood, and the child's best interests. Despite these common themes, there is still much discrepancy among court rulings. Based on this analysis, there are steps parents can take to protect their legal rights and living arrangements. Finally, policy suggestions are offered for courts and lawmakers. These legal actors can take steps (e.g., clarifying statutes) that would provide certainty for families in case of parental separation or the biological parent's death.     

Let's Make a Brand New Start of it in Old New York: Using Mediation to Resolve Open Adoption Disputes

There is no general consensus of how to handle disputes arising from open adoption agreements. Some states have statutes mandating mediation, but New York does not. This Note proposes that New York enact a statute that mandates adoptive and birth parents use mediation for disputes arising from open adoption agreements. The proposed statute provides a comprehensive approach to mediation by setting forth when mediation is appropriate and when it is not. The statute will also provide when the child's preference can be taken into consideration, and who will pay for mediation.     

SEX EDUCATION LEFT AT THE THRESHOLD OF THE SCHOOL DOOR: STRICTER REQUIREMENTS FOR PARENTAL OPT‐OUT PROVISIONS

Current state law creates the risk that, if sex education is not provided to a child in public school, no similar instruction will be given to the child. Legislatively enacted opt‐out provisions give parents broad control over their child's education by granting them the option to have their child excused from any sex education requirements within a public school's curriculum. Through public school sex education, professionals provide youth information aimed at protecting them from the dangers of pregnancy and sexually transmitted diseases (STDs). A stricter statutory opt‐out provision should be enacted by state legislatures that only allows parents to excuse their child from sex education after a parent attends a 90‐minute STD prevention course and receives the instructional material used in the school's sex education curriculum. Parents should be provided up‐to‐date information and a structural framework designed by the school to encourage them to discuss with their child the many sexual issues addressed within a school's sex education curriculum.     

Associations between Parent and Child Reports Of Interparental Conflict/Violence And Child Difficulties in A Family Mediation Setting*

We examined the association between parents’ (N = 52 mothers and 52 fathers) and children's (N = 27) reports of interparental conflict and child difficulties in a family mediation setting. Parents’ reports of conflict were moderately associated with children's reports of exposure to parental conflict, but only fathers’ reports of conflict were associated with children's reports of negative responses to parent conflict. While mothers and fathers agreed on their child's difficulties, only mothers’, not fathers’, report of child difficulties were moderately related to child reports of child difficulties. Mothers’ and fathers’ reports of conflict generally were not strongly associated with reports of child difficulties. In contrast to parent reports, children's reports of exposure to parents’ conflict were moderately and significantly related to self‐reported child difficulties and moderately related to parents’ reports of child academic difficulties. The magnitude of the association between the child's report of interparental conflict and self‐report of difficulties was stronger than the association between parent report of conflict and parent report of child difficulties, suggesting that parents may not fully understand their child's exposure to parent conflict/violence or the problems their child is experiencing.

Key Points for the Family Court Community:
• Family law stakeholders prioritize the creation of parenting arrangements that are in the best interest of the child; however, it is unclear how to gather information about the child and the child's perspective in order to inform such arrangements.
• The study results suggest that parents may not agree with each other or with the child about important family issues, such as parent conflict and child difficulties. For example, parents may not fully understand their child's exposure to parental conflict/violence when in the midst of custody negotiations.
• More research is needed to determine the best method for gathering information about the child during custody proceedings. In the meantime, it is important to gather information from multiple sources and to consider the agreement and differences across such sources of information.

     

Who made the disclosure? Recorded discussions between children and caretakers suspecting child abuse

Within investigations of suspected child abuse, the child's account is often at the core of the judicial process. When analysing the child's account, it is therefore important to consider how parents may have discussed the suspected abuse prior to the official investigation. However, no studies up to the present time have investigated discussions in real cases where parents suspect that their children have been abused. We analysed a sample (N = 19) of recorded conversations between parents and their children, delivered to the police as evidence for alleged physical or sexual abuse. Analyses of the questions used and the information provided in the discussions showed that the parent's strategies when questioning their children were extremely leading and that in the majority of the cases, all new information was provided by the parents. In spite of this, the parents deemed the recorded conversations as records of the children's accounts. While the sample was small and likely to be unrepresentative of child abuse suspicions in general, the findings have important practical implications. The results indicate that when planning an interview in a case where the alleged abuse relies on what a child allegedly has told a parent, particular caution should be taken when referring to these conversations.     

DIVORCED PARENTS' FINANCIAL SUPPORT OF THEIR CHILDREN'S COLLEGE EXPENSES

Reliable, quantitative, and current information is needed to inform the policy debate about whether parents, most commonly noncustodial parents, should be compelled to provide support for their children's higher education. We report data from a large study of the financial support college students reported receiving from their divorced mothers and fathers in a state where such payment is completely voluntary. Mothers' and fathers' financial resources did not differ greatly; when these were statistically controlled for, mothers and fathers contributed remarkably similar amounts of college support. Among other findings, fathers contributed more proportionately than mothers in families that had joint legal custody but less in sole maternal custody families. Our findings suggest policies that will likely encourage more voluntary support for higher education from divorced families.     

PUNCHING THE PARENTING TIME CLOCK: THE APPROXIMATION RULE,SOCIAL SCIENCE,AND THE BASEBALL BAT KIDS*

The American Law Institute proposes that in contested physical custody cases the court should allocate to each parent a proportion of the child's time that approximates the proportion of time each has spent performing caretaking functions in the past. Examined through the lens of child development research, the approximation rule is unlikely to improve on the best interests standard. It is difficult to apply; is perceived as gender‐biased; creates a new focus for disputing parents; renders a poor estimate of parents’ contributions to their child's best interests; overlooks parents’ intangible, yet significant, contributions to their child's well‐being; and miscalculates the essence of how a child experiences the family. A preferable alternative is a better defined, contemporary best interests standard that accommodates new knowledge and reforms that encourage nonadversarial, individualized resolutions of custody disputes.     

The Chat Room Moderator: Creating a Duty for Parents to Control Their Cyberbully

The advent of new technologies allowing people to communicate via the Internet has opened many windows to social interaction. At the same time, it has shifted the focus of child harassment from the playground to the computer. Instead of face‐to‐face bullying, children are now being bullied on the Internet, in a phenomenon known as “cyberbullying.” Cyberbullying is widespread, affecting generally twenty‐five percent of the child population in the United States. It is also more dangerous, as a child can be bullied at any time in the supposed comfort of his/her own home. To combat this behavior, many states have passed measures to ban or criminalize cyberbullying in school‐related settings. Nevertheless, children and adolescents continue to cyberbully their peers. Furthermore, most of these statutes do not address cyberbullying that occurs outside school or from a child's own home. Thus, this Note proposes that cyberbullying can be better combated by placing responsibility on parents to reasonably control their children in cases of cyberbullying. Based on the recently enacted ‘Cyber‐safety Act” from the Canadian Province of Nova Scotia and Restatement of Torts § 316, this Note proposes (1) placing tort responsibility on parents who know that their child is a cyberbully and do nothing about it and (2) allowing parents to avoid liability when their child truly cannot be controlled.

Key Points for the Family Court Community
• Cyberbullying is a major problem that must be addressed beyond the schoolyard.
• The law may provide recourse for the parents of a cyberbullying victim and can hold the parents of a cyberbully responsible.
• The Nova Scotia Cyber‐safety Act is a good model for holding parents liable for their child's acts because it balances the desire to end cyberbullying and the understanding that some minors are uncontrollable.

     

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.     

Guardians Ad Litem and Children's Attorneys in Arizona: A Qualitative Examination of the Roles

An ongoing debate exists with little research support concerning the differences in the roles of guardians ad litem (GAL) and children's attorneys (CA) in dependency cases. Through qualitative interviews, this study examined GALs’ and CAs’ perceptions and execution of roles. Both executed their roles similarly and agreed the best interests of the child and the child's wishes are important. Shared goals included child safety, ensuring the child's voice is heard, keeping the family together, and minimizing the distress to the child. Challenges to executing their roles were often systemic, including overwhelmed courts and lack of community resources to serve clients’ needs.     

Challenging statutory limitations on children's education rights: a re-examination of the Canadian Supreme Court Decision in Auton

The 2004 Supreme Court of Canada decision in Auton concerns the right of autistic children to access services held by their parents to be essential to their children's ability to participate as members of a democratic society. It is argued that the child's right to have his or her basic developmental needs met is a constitutionally protected one. Having those developmental needs met engages both education and health rights. In Auton the parents had sought funding for the service at issue from the Ministry of Health, the Ministry of Children and Families (which dealt with mental health services and other particular support programs for the families of disabled children) as well as from the Ministry of Education. The case raises central questions regarding the very nature of education and the constitutionality of a discretionary power of government to set out statutory limitations upon fundamental human rights including education rights.     

An Interdisciplinary Case Management Protocol for Child Resistance or Refusal Dynamics†

High‐conflict parental separation cases associated with child's estrangement or contact refusal take an unusually large amount of court time and generate high emotional costs for parents and children. This paper reports on a study of a research‐based pilot project and protocol, called the Parenting Conflict Resolution (PCR), which is intended to reduce parental conflict, improve interparental communication, and support or restore the parent–child relationship. The protocol was developed at the Superior Court in Quebec City (Canada), and involves single judge case management, and lawyers' commitment to have the child's best interests as their primary consideration and to guide their clients to trust the process. The assigned judge and lawyers have the ongoing involvement of a mandated psychotherapist, taking a family systems approach with the case. The PCR also requires the parents to participate in a psycho‐educational, introspective group program to work on co‐parenting and communication skills. Ongoing communication between the professionals involved in the PCR is required to ensure cohesion and accountability. This pilot project was implemented with 10 high‐conflict families, 6 of which presented with the child's resistance or refusal to see one parent. A qualitative data study was undertaken into the experiences of all the participants. The most salient result is the resumption of parent–child contact in all six contact refusal cases. Discussion highlights key elements to successfully address these cases: (a) interdisciplinary program delivery, (b) systemic understanding of the contact problems, (c) focus on the child's best interest, (d) single judge assigned to the case, (e) lawyers' support of the parents' participation, and (f) psychotherapist reporting to the court.     

Whatever Happened to Canadian Children's Equality Rights? A Reconsideration of the Eaton Special Education Case

This paper reconsiders the Canadian Supreme Court Decision in Eaton and examines its implications for the equality rights of Canadian children in general. The suggestion is made that a 'best interest of the child' standard cannot be met if it involves the violation of fundamental Charter rights. Segregated special education placement, when against the wishes of the parents or guardians and with no s. 1 justification, it is argued, is unconstitutional. The latter gives rise to violations of equality provisions with regard to the student's freedom of association, the right to personal autonomy in decision-making for parents in regards to their child's education, as well as, in some cases, security of the person insofar as the psychological, social and cognitive development of the disabled child is concerned. Such an exclusion from the mainstream, if imposed, it is suggested, does not generally meet the test for 'reasonableness' in accommodation consistent with Charter guarantees. The presumption in favor of integration unless the parent or guardian wishes otherwise is, it is argued, a constitutional imperative based on Charter equality rights rather than a preference for one pedagogical theory (integration) over another (segregated special education placement).     

The impact of timing and frequency of parental criminal behaviour and risk factors on offspring offending

This paper explores mechanisms of intergenerational transmission of criminal behaviour by investigating specifically the timing and frequency of the parents' criminal behaviour while including risk factors for criminal behaviour. The results demonstrate a dose–response relationship: parents' number of criminal convictions is positively related to offspring's conviction rate. Furthermore, children whose parents had only been convicted before the child's birth have more convictions than those whose parents had never been convicted. Children whose parents had been convicted after the child's birth have more convictions than those whose parents had only been convicted before the child's birth, but this difference can be explained partly by the observation that the latter group had fewer risk factors for crime. When parental convictions at different ages were examined, children whose parents had been convicted between their 7th and 13th birthdays exhibit more criminal behaviour than children whose parents were convicted in other periods, but none of the differences were significant. There does not appear to be a sensitive period for the impact of parental criminal behaviour. The results demonstrate support for static as well as dynamic explanations of intergenerational transmission such as the transmission of a criminogenic environment and/or mediation through risk factors.     

Privative clauses in special education legislative schemes: are they constitutional under the Canadian Charter?

This paper suggests that privative clauses in the enabling statutes (Education Acts) governing provincially appointed special education appeal tribunals (SET) are unconstitutional under the Canadian Charter of Rights and Freedoms. It is suggested that ‘final and binding’ SET decisions about children's designation as special needs and their educational placement infringe upon the Charter rights of both parent and exceptional child. The standard for judicial review of SET decisions, given a privative clause, is whether the decision is ‘patently unreasonable’ while ‘correctness’, according to case law, is the appropriate standard when finally determining fundamental rights. Parents of exceptional children in practice have recourse to the courts regarding only procedural rather than substantive issues regarding SET decisions due to the high deference the courts afford any administrat ive tribunal protected by a privative clause. The very high judicial review standard of ‘patently unreasonable’ rather than ‘correctness’ is not consistent, furthermore, with the child's ‘best interests’ or in meeting international obligations to disabled children under the Convention on the Rights of the Child.     

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.     

ADVOCATING FOR COMPREHENSIVE ASSESSMENTS IN DOMESTIC VIOLENCE CASES

Many jurisdictions handle domestic violence cases on a one‐size‐fits‐all basis, with a presumption in favor of a finding of child neglect and removal when children are exposed to domestic violence. Such a standard fails to recognize that not all domestic violence is the same and not all families are equally affected. The impact of domestic violence depends on several factors such as the different types of domestic violence the frequency and intensity of the violence, the frequency and extent of the child's exposure, and each family member's unique experiences and characteristics. This view takes the position that parents’ capacity to participate in counseling and services promoting the health and safety of their children varies, as does the appropriateness of children being removed from the home as a result of exposure to domestic violence. Therefore, this Note proposes that states develop a standard for both courts and child protective agencies that carefully examines each domestic violence case using an individualized factual analysis and attempt to mitigate the effects of a child's exposure to domestic violence by means other than a presumption for or against removal (temporary or permanent) in every case.     

大学中法学教育的规定性及其目的

诸多学者对当下大学中的法学教育脱离实践之现象进行了批评．并提出了大学中的法学教育应该进行实践化的转向这一观点。该观点与大学中法学教育的效果和社会需要不相适应有紧密关系，具有一定的进步意义；但本文认为，大学中的法学教育不应完全以经验为导向。更应重视法律精神、法律职业道德的培养和法律基本理论的传授。