The involvement of the law in the family is generally considered inevitable and desirable. The family is often depicted as the locus of important and delicate problems, which demand legal intervention through designated tools commonly referred to as “family law.” This Paper questions the veracity of this depiction with regards to the paradigmatic family dispute—divorce. Divorce cases are composed of three sub-cases: the divorce itself (i.e., the legal separation of the parties), child custody, and the division of property. The Paper examines whether, and to what extent, courts and legal rules decide family disputes. It argues that, with the rise of personal considerations such as autonomy and the best interest of the child, the law has become almost irrelevant to divorce and that courts currently have little substantive influence over custody disputes. The diminishing importance of the law in these contexts is particularly striking when compared to the reality of matrimonial property issues. Family law addresses familial considerations, legal norms, and judicial procedures. Based on the shortcomings this Paper identifies in the regulation of divorce and child custody, namely the gap between the perceived and actual regulation of these matters, this Paper calls for reconsideration of the regulation of these issues.
Continue reading “The Outlawed Family: How Relevant is the Law in Family Litigation?”Tag: Family Law
Minnesota’s System of Justice by Geography in Child Protection Proceedings: Base Issues in Minnesota’s Parental Representation Scheme and in the Discretionary Appointment of Counsel Under Section 260C.163.
In dealing with issues of parental representation, states must contend with the United States Supreme Court’s decision in Lassiter v. Department of Social Services of Durham County, North Carolina. The Court, using the factors established in Mathews v. Eldridge, held that there is no constitutional right to counsel for parents in child protection cases. This decision has led states to develop varying statutory schemes for parental representation in child protection cases. Differences in statutes by state lead to differences in outcomes for parents and children across the nation. While there are many factors that contribute to differing outcomes in legal disputes, research indicates that states providing representation to all parents in child protection proceedings leads to better outcomes for both parents and children within their state.
Continue reading “Minnesota’s System of Justice by Geography in Child Protection Proceedings: Base Issues in Minnesota’s Parental Representation Scheme and in the Discretionary Appointment of Counsel Under Section 260C.163.”