Family Law


Pandemics, Privatization, and the Family

Melissa Murray, Caitlin Millat

From disparities in healthcare quality and coverage to housing and employment insecurity, the COVID-19 pandemic has highlighted existing inequalities in American society.  But critically, the pandemic has also exacerbated these inequalities, particularly those that exist within the family. As work and school activities have shifted from schools and other public sites to the home, and employment has become more precarious, more and more Americans have found themselves struggling to reconcile the demands of the workplace with household responsibilities and their new roles shepherding children through the travails of remote education.

Much has been made of the pandemic’s particular effects on professional women, who have disproportionately assumed the twin burdens of work and caregiving during these extraordinary times. These burdens, coupled with the collapse of service industries in which women are disproportionately employed, have prompted women to leave the workforce in record numbers. The consequences of this exodus of women from the workforce cannot be understated. Indeed, some argue that this “she-cession” will erase decades of hard-won progress for working women, while also exacerbating race and class inequalities.

But speaking of these dynamics solely in the register of economic disruption, gender inequality, and work-family conflict overlooks a crucial player in this landscape: the state. As this Essay argues, not only has the pandemic revealed endemic inequality, it has also highlighted the state’s thin support for caregiving and family responsibilities, as well as the underlying presumption that the family will serve as a means of privatizing care and dependency. It is only in recentering the state, and being clear-eyed about its conscription of the family (and those within it) in the discharge of public functions, that we can be clear-eyed about the inequalities that are produced—and exacerbated—by the privatization of care.

The “Marriage Gap”: A Case for Strengthening Marriage in the 21st Century

Leah Ward Sears, Chief Justice of Georgia

Brennan Lecture

In this speech delivered for the annual Justice William J. Brennan, Jr., Lecture on State Courts and Social Justice, Leah Ward Sears, Chief Justice of the Georgia Supreme Court, reflects upon the state and significance of marriage as we head into the twenty-first century. Chief Justice Sears calls attention to social science evidence that shows that the health of the institution of marriage is directly related to the health of our children and communities. Yet today, alarming numbers of children do not have the support of two married parents in the home. Single parenthood, divorce, and cohabitation are at all-time highs, and a great many of these families are failing. Through a review of social science evidence, Chief Justice Sears shows the far-reaching implications that family fragmentation, a potentially self-perpetuating phenomenon, can have for judicial backlog, child well-being, and community health. She unearths an opportunity gap that renders children from fragmented families less likely to succeed and communities where marriage is the exception more prone to violence and crime. Given these dramatic family transformations and their implications, Chief Justice Sears discusses how society, through its laws, should respond. Emphasizing the emotional, financial, and social benefits flowing to children and communities from marriage, Chief Justice Sears suggests dedicating a renewed vigor to exploring ways that law can promote the benefits of marriage. While she cautions that these changes should not be implemented to the detriment of existing legal policies that protect and support children regardless of the family form they are born into, she challenges society to renew its commitment to marriage in this country, thereby manifesting the United States’ commitment to principles of equality and opportunity for all children.

A Child’s Expertise: Establishing Statutory Protection for Intersexed Children Who Reject Their Gender Assignment

Emily A. Bishop

Intersexed children are born with genitalia and/or reproductive organs that do not look like those of most biological males or females. Doctors and parents usually assign an intersexed child a gender at birth or during early childhood. Occasionally, an individual will reject his or her gender of assignment and will want to take on a different gender role. Some clinicians and intersex advocates instruct parents to accept an intersexed child’s expressions of gender identity and to support the child’s gender role change. There is a risk, however, that parents may resist or prevent a child’s gender transition due to their own discomfort with the idea or based on a physician’s recommendation. A statutory framework that allowed intersexed minors to complete a “social gender transition,” coupled with a provision equating parental interference with this transition with actionable neglect, would protect intersexed children’s autonomy and prevent the trauma that can result from a forced existence in a gender role with which a child does not identify. The proposed framework would likely survive a constitutional challenge by the parents of an intersexed child because the harm caused by the parental decision to interfere with a child’s gender expression removes such interference from the realm of constitutionally protected parental decisionmaking.

Measuring Fatherhood: “Consent Fathers” and Discrimination in Termination of Parental Rights Proceedings

Amanda S. Sen

In New York State, unmarried fathers have only tentative rights to parent their children. Unmarried fathers, unlike mothers and married fathers, must prove that they are “consent fathers”—that is, a father who pays child support and maintains contact with his children—before they are allowed to intervene in adoption proceedings. While this makes sense in a private adoption scenario, in which the interests and rights of the mother must be balanced against those of the father, and in which the State has a substantial interest in promoting already intact families, the same analysis should not be unthinkingly applied to termination of parental rights proceedings, as it is now. Unlike the private adoption scenario, a termination of parental rights proceeding involves very different interests on the part of the mother and the State as well as a completely different analysis of what may be best for children. I argue that unmarried fathers should be given the protections in termination of parental rights proceedings that are automatically afforded mothers because the law as it currently stands works against the State’s interest in promoting unified families and violates the Equal Protection Clause of the U.S. Constitution.

Staging the Family

Clare Huntington

For many critical aspects of family life, all the world truly is a stage. When a parent scolds a child on the playground, all eyes turn to watch and judge. When an executive’s wife hosts a work party, the guests are witness to traditional gender roles. And when two fathers attend a back-to-school night for their child, other parents take note of this relatively new family configuration. Family is popularly considered intimate and personal, but in reality much of family life is lived in the public eye.

These performances of family and familial roles do not simply communicate messages to others. They are also central to the deep structure of family law. Drawing on sociological and feminist theory, this Article argues that iterated, everyday performances are performative—that is, they create and then maintain collective understandings of mother, father, child, and family itself. The law plays an integral role in this by imbuing the performances with legal salience to define the categories at the heart of family law. This Article terms this dynamic process “performative family law.”

Aspects of this mutually constitutive relationship between performance and family law are deeply troubling, raising significant concerns for core areas of doctrine, policy, and theory. First, family law’s prevailing approach to defining familial categories is normatively narrowing because legal actors tend to give effect only to traditional, dominant images of the family despite seismic demographic changes in family form. Second, the obscuring effects of the public face of the family often warp the policies designed to address family violence, most notably child sexual abuse. Finally, by ignoring the pressure of performance, scholarly debates over the public-private divide are incomplete and have failed to explain why the concept of family privacy retains such enormous appeal.

In response, this Article proposes a new framework for family law that decenters dominant performances and provides an alternative means to define familial categories and counter family violence. It is not possible or even desirable to eliminate performativity entirely, but it is important to resist its more troubling aspects. A denaturalizing framework promises a more pluralistic approach to the emerging demographic transformation of the family and deeper engagement with the variety of family life today.

The Broken Safety Net: A Study of Earned Income Tax Credit Recipients and a Proposal for Repair

Sara Sternberg Greene

The Earned Income Tax Credit (EITC) is the largest federal antipoverty program in the United States and garners almost universal bipartisan support from politicians, legal scholars, and other commentators. However, assessments of the EITC missed an imperative perspective: that of EITC recipients themselves. Past work relies on largely unconfirmed assumptions about the behaviors and needs of lowincome families. This Article provides a novel assessment of the EITC based on original data obtained directly from 194 EITC recipients through in-depth qualitative interviews. The findings are troubling: They show that while the EITC has important advantages over welfare, which it has largely replaced, it fails as a safety net for low-income families. The problem is that the EITC provides a large windfall to families only once per year, during tax refund season. However, low-income families are particularly vulnerable to financial shocks and instability. Not surprisingly, such events rarely coincide with tax refund season. Without a fix, the EITC leaves many families on the brink of financial collapse. In the years to come, many more low-income families may file for bankruptcy or become homeless. Despite this grim outlook, this Article suggests a straightforward and promising new way to distribute the EITC that maintains the program’s advantages while also providing a more secure safety net for low-income families in times of financial shock and instability.

A Room of One’s Own: Safe Placement for Transgender Youth in Foster Care

Ariel Love

Transgender youth in foster care are not safe. While these youth face the daily danger of physical violence at the hands of others in their foster care group homes, administrators of child welfare services have shown deliberate indifference to these risks, and staff in foster care group homes do not effectively protect the physical safety of transgender youth in their care. Because resource constraints make it impossible to place all transgender youth in LGBTQ-only group homes, we need a solution that will make transgender youth safe in the group homes that already exist. This Note argues that the current New York City foster care system violates the substantive due process safety rights of the transgender youth under its care, and proposes legislation that would presumptively mandate transgender-only bedrooms and bathrooms. Such legislation would provide safe spaces within existing group homes in order to fix current constitutional violations.

Support with a Catch

Mikayla K. Consalvo

New York’s Persons in Need of Supervision and Parental Rights

When parents find they can no longer control their children—they are skipping school, staying out past curfew, and even getting in trouble with the police—what can they do? That answer depends, of course, on what types of resources are available to them. For unprivileged parents in New York State, the answer is often Persons in Need of Supervision (PINS). Intended to be a tool for parents in these situations that avoids exposing children to the criminal justice system, enlistment in PINS has become a “risky resource” to parents. In exchange for the support of county diversion programs offered by PINS, parents relinquish the control they have over their children’s lives. This is not required to happen through affirmative and fully informed waivers of their control, even though parents’ rights are afforded constitutional protection. Instead, parents are assumed to implicitly waive their right to raise their children by filing a request for PINS services. This Note argues that this system is out of line with Supreme Court precedent defining and outlining parents’ substantive due process rights and has serious consequences for children and their families. To remedy these constitutional and policy-based issues, this Note proposes that New York cease treating PINS petitions as implicit waivers of parental control. Though certainly not a complete fix for all concerns that arise from the PINS system, this solution would at least partially correct the imbalance between parents and the state under the PINS regime.

The Evidentiary Rules of Engagement in the War Against Domestic Violence

Erin R. Collins

Our criminal justice system promises defendants a fair and just adjudication of guilt, regardless of the character of the alleged offense. Yet, from mandatory arrest to “no-drop” prosecution policies, the system’s front-end response to domestic violence reflects the belief that it differs from other crimes in ways that permit or require the adaptation of criminal justice response mechanisms. Although scholars debate whether these differential responses are effective or normatively sound, the scholarship leaves untouched the presumption that, once the adjudicatory phase is underway, the system treats domestic violence offenses like any other crime. This Article reveals that this presumption is false. It demonstrates that many jurisdictions have adopted specialized evidence rules that authorize admission of highly persuasive evidence of guilt in domestic violence prosecutions that would be inadmissible in other criminal cases. These jurisdictions unmoor evidence rules from their justificatory principles to accommodate the same iteration of domestic violence exceptionalism that underlies specialized front-end criminal justice policies. The Article argues that even though such evidentiary manipulation may be effective in securing convictions, enlisting different evidence rules in our war on domestic violence is unfair to defendants charged with such offenses and undermines the integrity of the criminal justice system. It also harms some of the people the system seeks to protect by both reducing the efficacy of the criminal justice intervention and discrediting those complainants who do not support prosecution.