The Center for Children, Law & Policy at the University of Houston recently brought together a group of leading scholars to explore the connections and the tensions between “feminist jurisprudence” and “child-centered jurisprudence.” Audio from the conference is now available and video podcast will follow shortly. Publications from these presentations will be published next year in the Houston Law Review.

Agenda

Listen to Audio of the Presentations Below:

Polygamy and Child Welfare, Prof. Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law, New York University School of Law

Five Generations: Child Sexual Abuse and the Search for Transformative Justice, Prof. Angela P. Harris, Professor of Law; Executive Committee Member, Center for Social Justice, Boalt Hall, UC Berkeley

Voice, Vulnerability and Dependency: Politicizing Childhood, Prof. Annette Appell, Associate Dean of Clinical Affairs and Professor of Law, Washington University School of Law

Vulnerability Theory: Beyond Equality in Assessing the Interests of Mothers and Children, Prof. Martha Albertson Fineman, Robert W. Woodruff Professor of Law, Emory University School of Law

“A World Fit for Everyone:” The Role of Economic and Social Rights in Resolving the Tensions between Child-Centered and Feminist Jurisprudence, Prof. Barbara Bennett Woodhouse, David H. Levin Chair in Family Law, Director, Center on Children and Families, Fredric G. Levin College of Law

With Commentary by Prof. Ellen Marrus and Prof. Laura Oren of the University of Houston Law Center.

The conference has begun with Reflections on the Right to Counsel after 45 Years: Texas and the Nation, Prof. Norman Lefstein, Professor of Law and Dean Emeritus, Indiana University School of Law - Indianapolis, who starts with the question - if we imagined indigent defense from the ground up, how would it look? A few characteristics of this imagined system:

• Certification of lawyers, comparable to medical residency.
• Meaningful oversight and supervision (observations, file reviews, peer review, mandatory CLE)
• Client selection of counsel (something that resembles the private practice of law, where zealous advocacy of attorneys for the indigent promoted because livelihood depends on repeat business; judges don’t appoint prosecutors, they shouldn’t appoint defense lawyers; envisioning something like the English system)

Indigent Defense has too often lost sight of two principles from ABA Ten Principles of a Public Defense Delivery System, Feb. 2002

1. The public defense function, including the selection, funding, and payment of defense counsel, is independent.

2. Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar.

In traditional extended families in which adults are at least amicable, the relationship between children and their grandparents develops with parental support. Where disputes arise over access and visitation rights, the benefits to a child of grandparents in her life must be balanced against the financial and emotional costs of a potentially lengthy court battle.

The demographics of grandparenthood are changing. The percentage of the population who are grandparents is growing. People are becoming grandparents at younger ages and living longer. As a result, more children are growing up with at least two living grandparents and those relationships last longer.

A growing number of grandparents find themselves completely responsible for their grandchildren often because a court determined it was in the children’s best interest to be removed from parental custody. Data from the 2000 census indicate that 4.5 million American children live in homes with grandparents as head-of-household. Almost 10% of those grandparent-dependent children reside in Texas and 244,000 of those have no parent living with them. Of the approximately 250,000 Texas grandparents who report being primary caregivers, 21% do so in poverty.

The potential also exists for grandparents to have a negative impact on the parent/child relationship or the wellbeing of the child. Abuse is one obvious situation. Another might arise when there is such contempt between parent and grandparent that an ongoing relationship would be in conflict with the child’s general welfare and relationship with her parent.

State courts have been examining the question of grandparent visitation for decades. In the early part of the 20th century there were no statutes permitting grandparents to petition for visitation. Courts took four different approaches when deciding questions of grandparent visitation over parental objections.

1. If there was a pending action involving the child, the court may have allowed the grandparents standing to pursue visitation, and in the course of evaluating the particular facts, ordered such visitation.
2. In limited circumstances, courts granted standing and visitation to grandparents even when there was no other matter before the court.
3. Some courts granted standing to grandparents to seek visitation with their grandchildren and then conducted a best interest analysis.
4. Lastly, some courts denied grandparents standing to request visitation outright and never addressed whether or not the visitation was in the child’s best interests.

As state legislatures developed laws to govern these custody decisions, Washington created the most liberal and far-reaching legislation allowing virtually anyone to sue for visitation if they could present evidence of a meaningful relationship with the child. This is the statute under which the Troxels sued to increase visitation with their grandchildren.

When the Troxels’ son divorced, he usually brought the children to the grandparents’ home during his visitations.  Therefore, the children had a preexisting relationship with their paternal grandparents.  When the son died, the grandparent/child relationship continued as before. 

However when the children’s mother remarried, she reduced the visits hoping to encourage blending of the new family.  Although their daughter-in-law never denied them visitation, they feared that this reduction would eventually lead to elimination of visits altogether.

So the Troxels sued and won, Mrs. Granville appealed, and the appeals continued to the Supreme Court which decided for Mrs. Granville. 

The 2007-2008 Texas family code (FAM 153.433-434) allows that the court should order possession or access of a grandparent to a biological or adopted grandchild if at least one of the parents still have legal parenting rights, if the grandparent can prove by a preponderance of evidence that denial would “significantly impair the child’s physical health or emotional well-being.”

Further that the grandparent(s) requesting access is parent of an adult child who is either deceased, declared incompetent, incarcerated within the previous three months, or doesn’t have legal access to the child.

If both parents are deceased or have had their parental rights terminated and the child is subsequently being adopted by someone other than the child’s step-parent, grandparents aren’t granted the right to sue for access.

At least one other state has addressed the issue of grandchild visitation rights since Troxel v Granville. California law provides that a court may grant visitation if it finds that the bond between grandparent and child is such that visitation is in the child’s best interest.

Grandparents have standing to petition for visitation in California if the child’s parents are separated, one parent’s whereabouts are unknown for more than a month, or the child isn’t living with either parent. The refutable presumption is that if the parents (whether natural or adopted) or single parent oppose visitation then it probably isn’t in the child’s best interest.

A big difference between the California and Texas statutes is the extension of mandatory mediation to visitation disputes involving grandparents. Only if mediation is unsuccessful, does the mediator inform the court and a hearing is scheduled.

The first cultural system a child learns to function within is the family – first immediate then extended. They learn that each member plays a role in the family system and certain rules must be followed. The often unspoken rules of families vary greatly depending on ethnicity and culture, size and parenting style, income, class and education status, even geographic location.

The family is a basic building block of society yet also quite complicated and not easily defined by laws or courts. The generational bonds that connect a child to place and culture should not be severed easily.

Grandparents are vital to their grandchildren and the state when stepping in as substitute parents. They are just as important when simply playing the role of grandparents.

Constitutionality of more inclusive legislation will be preserved if resources such as family counseling and mediation are mandated in disputes prior to and hopefully instead of going to court. Doing so should save money for petitioners, parents, and the state.

In cases where mediation fails, parental rights will usually prevail. However, the need for visitation hearings will be reduced if the grownups try to work out among themselves what is in the child’s best interest before filing suit.

References

American Association of Retired Persons (AARP), Texas State Fact Sheet for Grandparents and Other Relatives Raising Children.

Ellen Marrus, Over the Hills and Through the Woods to Grandparents’ House We Go: Or do we, Post-Troxel?, 43 Ariz. L. Rev. 751 (2001). (.pdf)

Senate Jurisprudence Committee Testimony on Current Charges involving Grandparent Visitation Rights, May 23, 2008, (Interim, Charges, Audio of Testimony [requires RealPlayer])

Casper, Lynne M. (2002) Continuity and Continuity in the American Family. Sage Publications, Inc. Thousand Oaks, CA

Family Law Code, Selected States and Ali Principles with Commentary (2008) Wolters Kluwer, Austin, TX

O’Connor’s Family Code Plus (2007-08). Jones McClure Publishing, Houston, Texas

Click here for the event flier and more information

• Date: Thursday, March 13, 2008
• CLE/CEU Credits: 6.25 CLE’s and 6.25 SW CEU’s, pending approval
• Online Registration: Click here to register

The Fourth Annual Wells Conference on Adoption Law will focus on issues related to child’s rights in the adoption process. Panel topics and esteemed speakers include:

• Varying Perspectives on Determining a Child’s Best Interests - A Cacophony of Voices Representing the Child’s Interest
  Barbara Glesner Fines, Professor of Law, University of Missouri-Kansas City School of Law
• Permanency Decisions: Balancing Best Interests and Biology
  Solangel Maldonado, Professor of Law, Seton Hall University Law School
• Children’s Welfare Interests Against the Desires and Supposed Rights of Adults to Raise Their Offspring
  James Dwyer, Professor of Law, Marshall-Wythe School of Law, College of William & Mary
• Competing Claims: When do parents stop speaking for their children?
  Catherine J. Ross, Professor of Law, The George Washington University Law School
• An International Survey of Children’s Rights, Non-citizen Rights, and Native American Issues
  Achieving Permanency for American Indian Children: Lessons from Tribal Traditions
  
  Barbara Ann Atwood, Professor of Law, University of Arizona James E. Rogers College of Law
• International/Intercultural Adoption Issues – Protecting the Rights of Parents and Children through the Legislative Process
  
  Jini L. Roby, J.D., Associate Professor, School of Social Work, Brigham Young University
• Discussions on the Anna Mae He Case, Representing Children, and Common Red Flag Issues Encountered through the International Adoption Process.
  
  Susan Stockham, J.D., Partner, The Law Offices of Susan Stockham, P.A., and Robert D. Tuke, J.D., Partner, Trauger & Tuke

Capital University Law School is home to the National Center for Adoption Law & Policy. In light of the Law School’s strong focus and dedication to adoption law, the Capital University Law Review initiated the Wells Conference on Adoption Law in 2005, and, due to its success, is proud to host the fourth conference on Thursday, March 13, 2008, in Columbus, Ohio.

For questions, contact:

Michael Dillard
Wells Conference Coordinator
Capital University Law Review
303 E. Broad St.
Columbus, OH 43215-3200
Phone: (614) 236-6789
Fax: 614-236-6956
mdillard@law.capital.edu

The Southwest Juvenile Defender Center and the Center for Children, Law & Policy have opened registration for the seventh annual Zealous Advocacy Conference - Zealous Advocacy Conference 2008: Child & Adolescent Development & the Law

Firmly grounded in the belief that zealous advocacy = best interests in the representation of children, the Zealous Advocacy Conference enters its 7th year bringing together lawyers, child advocates, law professors, social workers, doctors and psychologists to discuss the current state and future of juvenile justice.

• Register Online: Zealous Advocacy Conference 2008: Child & Adolescent Development & the Law
• Download the Printed Zealous Advocacy 2008 Conference Brochure (.pdf)

To attend, download and send in the Conference Registration Form.

TOPICS & SPEAKERS:

THE COMPETENCE OF KIDS: A comprehensive discussion of competency of children on multiple levels, including competence to be in court, waivers of rights, and the effect of development on mental state defenses.

• MARSHA LEVICK
• DOUG WILSON: Colorado State Public Defender

THE ROLE OF THE GAL IN DIRECT FILE CASES

• DIANA RICHETT

CONSTITUTIONAL TRENDS IN DEFENDING JUVENILES

• KIM DVORCHAK

THE CONSEQUENCES FOR KIDS IN TODAY’S JUSTICE SYSTEM

• LINDY FROLICH: Alternate Defense Counsel

THE KARMA OF REPRESENTING KIDS: WHY WE DO WHAT WE DO AND THE IMPORTANCE OF DOING IT WELL

• BERNARDINE DOHRN

Room 144 – Bates Law Building
University of Houston Law Center
Registration 8:30 a.m. – 9:00 a.m.
Roundtable Event: 9:00 a.m. – Noon
Cost: FREE

Speakers
Michael Lindsay, J.D. , Ph.D.
Ellen Marrus, J.D.
Steven Mintz, Ph.D.
Wallace Mlyniec, J.D.
Irene Merker Rosenberg, L.L.B.

3.0 hours of CLE credit
(includes 1.0 hour of ethics)
This event is open to all, and includes a free lunch if RSVP is received before Oct. 30.

Click here to Register Online