Family Law in Focus (Focus Casebook)

Halftitle page Editorial Advisors Title page Copyright page About Aspen Publishing Dedication Summary of Contents Table of Contents The Focus Casebook Series The Focus Casebook Series Preface Acknowledgments Chapter 1. The Law of the Family Key Concepts A. Marriage: Evolving Legal Frameworks 1. The Peculiar Nature of the Marriage “Contract” 2. The Relationship of Husband and Wife 3. Married Women’s Property Acts 4. Protecting the Marital Relationship 5. Marital Dissolution 6. Modernizing Trends B. The Parent-Child Relationship: Evolving Legal Frameworks 1. The Historical Patriarchal Household 2. The Erosion of the Patriarchal Domestic Order 3. Investing Parenthood with Constitutional Status 4. Modernizing Trends Chapter Summary Applying the Rules Family Law in Practice Chapter 2. Marriage and the Legal Regulation of Nonmarital Couples Key Concepts A. State Regulation of Entry into Marriage: The Choice of a Marital Partner 1. Loving and Beyond: The Fundamental Right to Marry 2. Fundamental Is Not Absolute: State Restrictions on the Choice of Marital Partner B. State Regulation of Entry into Marriage: Procedural Requirements 1. Obtaining a Marriage License 2. The Marriage Ceremony and Proxy Marriages 3. Consequences of the Failure to Comply with a Licensing Requirement 4. Common Law Marriage C. Legal Recognition of Nonmarital Couples 1. Cohabitation 2. Domestic Partnerships and Civil Unions 3. Protecting Relational Interests Chapter Summary Applying the Rules Family Law in Practice Chapter 3. Premarital and Postmarital Agreements Key Concepts A. The Traditional Approach to Premarital Agreements B. The Growing Acceptance of Premarital Agreements C. Legal Requirements 1. The Fairness Requirement 2. Requirements of Procedural Fairness 3. Requirements of Substantive Fairness 4. The Interdependence of Procedural and Substantive Fairness 5. The Growing Emphasis on Freedom of Contract Principles over Substantive Fairness D. Common Types of Provisions 1. Property 2. Spousal Support 3. Child Custody and Support E. Postmarital Contracts Chapter Summary Applying the Rules Family Law in Practice Chapter 4. The Law of Divorce, Annulment, and Legal Separation Key Concepts A. Historical Roots of Our Divorce Laws 1. Religious Underpinnings 2. The English Experience 3. The American Experience: Divorce in the Colonies B. Fault Divorce: Common Grounds and Defenses 1. Fault Divorce Grounds 2. Fault Divorce Defenses C. No-Fault Divorce 1. The Underpinnings of Reform 2. No-Fault Laws 3. The Divorce Counterrevolution D. Annulments 1. Distinguished from Divorce 2. Annulment Grounds 3. Consequences of an Annulment Decree E. Legal Separation Chapter Summary Applying the Rules Family Law in Practice Chapter 5. Child Custody Key Concepts A. The Best Interest Standard 1. The Modern Best Interest Test 2. Factoring Parental Characteristics and Life Style Choices into the Best Interest Test B. Alternative Custody Standards 1. The Primary Caretaker Presumption 2. The American Law Institute’s Approximation Rule C. Custody Arrangements 1. Distinguishing Physical and Legal Custody 2. Distinguishing Sole and Joint Custody D. Visitation 1. The Visitation Schedule 2. The Distinction between Joint Physical Custody and Sole Custody with Visitation Rights 3. When Unrestricted Visitation Is Not in a Child’s Best Interest E. Parenting Plans, Parenting Coordinators, and Parent Education Programs 1. Parenting Plans 2. Parenting Coordinators 3. Parenting Education Programs F. Post-Divorce Disputes 1. Complaints for Modification and Contempt 2. Relocation Disputes 3. Virtual Visitation G. The Custodial and Visitation Rights of “Nonparents” 1. Grandparents 2. Stepparents 3. Co-Parents Chapter Summary Applying the Rules Family Law in Practice Chapter 6. Child Support Key Concepts A. Historical Overview B. The Administrative Framework for the Establishment and Enforcement of Child Support Orders 1. At the State Level: The IV-D Agency 2. Eligibility for IV-D Services 3. Locating Absent Parents C. Child Support Guidelines 1. Guideline Formulas 2. Consideration of Specific Factors D. Enforcing the Child Support Obligation 1. Support Enforcement at the State Level Within the Cooperative Federal/State Framework 2. The Federal Offset Program 3. Interstate Cases 4. Enforcement Under State Law Procedures 5. Enforcement by Private Child Support Collection Agencies E. The Modification and Adjustment of Support Awards 1. Modification Based on Changed Circumstances 2. The Review and Adjustment Procedure F. Duration of the Parental Support Obligation 1. Termination of Support Prior to Majority 2. The Extension of Support Beyond Majority 3. Mental and Physical Disabilities G. Tax Implications of Child Support Awards 1. Characterization of Child Support Payments 2. The Dependency Exemption and Child Tax Credits Chapter Summary Applying the Rules Family Law in Practice Chapter 7. Spousal Support Key Concepts A. The Law of the Intact Family B. Historical Overview 1. Alimony Prior to the No-Fault Reform Era 2. Impact of No-Fault Reform on the Support Obligation 3. Critique of the “Clean Break” Approach C. Support Determinations 1. Determining the Amount of Support 2. Searching for Greater Certainty: Alimony Guidelines and the American Law Institute’s Compensatory Principle D. Structuring the Support Award 1. Permanent Alimony 2. Lump-Sum Support 3. Rehabilitative or Transitional Support 4. The Professional Degree Cases E. Post-Divorce Modification and Termination of Support 1. Modifiability and Termination of “Permanent” Support 2. Modifiability of Other Types of Support 3. Agreement of the Parties to Prohibit Modification F. Enforcement of Spousal Support Awards 1. Contempt 2. Other Enforcement Measures G. The Tax Consequences of Spousal Support Awards 1. The Basic Rule of Income and Deductions 2. Unallocated Payments 3. Recapture of Excess Payments Chapter Summary Applying the Rules Family Law in Practice Chapter 8. The Division of Marital Property Key Concepts A. Overview of the Two Marital Property Systems 1. The Community Property Approach 2. The Common Law Approach 3. Title to Equitable Distribution B. The Property Distribution Process 1. Is It Property? 2. Classification of Property 3. Valuation 4. Distribution C. Tax Consequences of Property Transfers Incident to a Divorce Chapter Summary Applying the Rules Family Law in Practice Chapter 9. The Divorce Process Key Concepts A. The Initial Client Interview 1. Cultural Awareness 2. The Emotional Context 3. A Three-Stage Approach to the Client Interview B. Initiating a Divorce 1. The Divorce Petition 2. Indigency and Access to the Courts 3. The Failure to File an Answer C. Discovery 1. The Quest for Information 2. Discovery of Electronically Stored Information D. Motion Practice 1. Ex Parte Relief: The Emergency Exception to the Notice Requirement 2. Diversion to Court Conciliation or Mediation Services 3. Specific Divorce Motions E. Avoidng Trial: Negotiation and Alternative Approaches to Dispute Resolution 1. Negotiation 2. Mediation 3. Arbitration 4. The Collaborative Law Model 5. Unbundled Legal Services F. Reaching Resolution: The Separation Agreement 1. Spousal Support 2. Custody 3. Parental Rights Clauses 4. Medical and School Information 5. Child Support Term 6. Personal and Real Property Terms 7. Division of Debt Terms 8. General Provision Terms G. The Divorce Hearing 1. The Uncontested Case 2. The Contested Case Chapter Summary Applying the Rules Family Law in Practice Chapter 10. Jurisdiction Key Concepts A. Subject Matter and Personal Jurisdiction B. Does the Court Have Jurisdiction to Dissolve the Marriage? 1. The Importance of Domicile 2. Durational Residency Requirements 3. The Domestic Relations Exception to Federal Diversity Jurisdiction C. Does the Court Have Jurisdiction to Award Support? 1. The Divisible Divorce 2. Long-Arm Jurisdiction D. Does the Court Have Jurisdiction to Divide Property? E. Does the Court Have Jurisdiction to Determine Custody? 1. Jurisdictional Requirements Under the UCCJEA 2. Jurisdictional Requirements of PKPA 3. International Child Custody Disputes Chapter Summary Applying the Rules Family Law in Practice Chapter 11. Domestic Violence Key Concepts A. Historical Overview B. Abuse Laws 1. Qualifying Relationships 2. Covered Conduct 3. Available Remedies 4. The Court Process C. Enforcement of Protective Orders D. Supplementing the Enforcement Process: Criminal Anti-Stalking Laws 1. Protection from Harassing and Threatening Behavior 2. Cyberstalking E. Specialized Domestic Violence Courts F. The Federal Response to Domestic Violence: The Violence Against Women Act 1. The Extension of Full Faith and Credit to Abuse Prevention Orders 2. Protections for Battered Immigrant Women 3. Recent Amendments G. Working with Victims of Domestic Violence Chapter Summary Applying the Rules Family Law in Practice Chapter 12. Determining Parentage Key Concepts A. Historical Overview of Children of Unmarried Parents B. Constitutional Developments 1. The Equal Protection Challenge to Differential Treatment 2. The Legal Status of the Unwed Father C. Establishing Paterniy 1. The Adjudication of Paternity 2. The Voluntary Acknowledgment of Paternity 3. Following the Determination of Paternity D. Paternity Disestablishment 1. Considering Best Interest: Conflicting Approaches E. Determining Legal Fatherhood When the Genetic “Father” Is a Sperm Donor 1. Sperm Donation and Heterosexual Couples 2. Sperm Donation and Same-Sex Couples and Single Women F. Determining Legal Motherhood 1. Presuming Maternity Based Upon State Parentage Laws 2. Presuming Parenthood Based Upon Marriage Chapter Summary Applying the Rules Family Law in Practice Chapter 13. Child Abuse and Neglect Key Concepts A. Historical Overview 1. The Emergence of the Privatized Family 2. Child Rescue: Preventing Cruelty to Children B. The Rediscovery of Child Abuse and the Initial Legislative Response 1. The Battered Child Syndrome 2. The Child Abuse and Prevention Act of 1974 C. The Child Protective System 1. Defining Abuse and Neglect D. The Reporting of Suspected Abuse or Neglect 1. Mandatory versus Permissive Reporters 2. Screening and Investigation E. Substantiated Cases 1. The Federal Statutory Framework: The Adoption Assistance and Child Welfare Act (CWA) and the Adoption and Safe Families Act (ASFA) 2. The Federal Statutory Framework: The Indian Child Welfare Act (ICWA) Chapter Summary Applying the Rules Family Law in Practice Chapter 14. Adoption Key Concepts A. Historical Overview B. Types of Adoptions 1. Agency Adoptions 2. Independent Adoptions 3. Infant Safe Haven Laws C. The Adoption Process 1. Adoption Based on Parental Consent or Relinquishment 2. Adoption Based on the Involuntary Termination of Parental Rights 3. The Adoption Placement 4. The Social Study 5. The Adoption D. Open Adoptions E. Access to Adoption Records F. Adoption in Specific Situations 1. Stepparent Adoptions 2. Adoption by Same-Sex Couples 3. Unwed Fathers 4. Transracial Adoption G. Adoption Abrogation and the Tort of Wrongful Adoption Chapter Summary Applying the Rules Family Law in Practice Chapter 15. Assisted Reproductive Technologies Key Concepts A. General Overview B. Surrogacy 1. Traditional Surrogacy 2. Gestational Surrogacy C. The Disposition of Frozen Embryos 1. Human Beings? Property? Or Deserving of “Special Respect?”: The Legal Status of Frozen Embryos 2. Dispositional Frameworks Chapter Summary Applying the Rules Family Law in Practice Glossary Table of Cases Index