Lawmaking by Public Welfare Professionals

In an era of shrinking state and local resources for domestic violence prevention and detection, governments face a critical question of how to best allocate scarce funds. This paper suggests some answers for treating violence by caregivers and presents a model for evaluating other programs. To reach our conclusions, we analyzed data and survey results supplied by more than 1700 county-level adult protective services (APS) authorities. We found that some expensive programs produce very few results in terms of reporting, investigating, and substantiating elder abuse. For example, requiring a specific education or experience level (and therefore guaranteeing higher salaries) or even instituting an elder abuse training program (expensive in terms of personnel required, record keeping and time taken off field work) in and of themselves made no statistical difference. It also appears to make no difference whether the program is administered on the state or local level, or whether the investigators used screening devices as opposed to a more gestalt approach. However, three factors do apparently contribute significantly to investigator effectiveness. The first, whether the investigator believes that intervention makes elders better off, sounds like a psychological issue. It probably reflects, however, the placement and program alternatives the survey respondents had available. Money could perhaps be saved from reducing education or training requirements and spent instead on services such as respite care and homemaking services for the caretakers. Another very significant group of results involved specialization by APS personnel. Holding constant state effects including laws and socioeconomic characteristics, workers who specialized in elders (rather than doing both child and adult investigations) consistently did significantly better. Similarly, those with longer (as opposed to merely token) training programs also had higher rates of investigation and substantiation. The policy recommendation seems clear. Instead of worrying about training all social workers to detect elder abuse, we urge that the resources should be concentrated on the social workers exclusively focusing on APS

Children\u27s Beliefs and Family Law

In a recent series of opinions authored by Justice Stevens, the Court has recognized that children may have independent religious rights, and that these may be in conflict with their parents\u27. The questions for this piece are whether considering children\u27s rights independently is a good thing whether it is warranted by children\u27s actual religious preferences and whether children\u27s religious activities actually do anything measurable for the children. I do not advocate that the Supreme Court become more involved with family law than it has been since the substantive due process days of Meyer and Pierce. I am also not one to abandon children to their rights or otherwise suggest that children should fend for themselves without their parents\u27 help. For me, a childhood without the nurturing environment of loving parents (or at least one parent) is dismal. However, I am encouraged that the Court seems to recognize that in families with children, the children\u27s interests do need to be considered, and will not always mirror their parents\u27. Children\u27s religious attendance does seem to make measurable differences to their well-being

Penalty Defaults in Family Law: The Case of Child Custody

This paper considers whether an amendment to state divorce laws that strengthens its joint custody preference operates as a traditional default rule, specifying what most divorcing couples would choose or as a penalty default rule the parties will attempt to contract around. While the Oregon statutes that frame our discussion here, like most state laws, do not state an explicit preference for joint custody, shared custody is certainly encouraged by Section 107.179, which refers cases in which the parties cannot agree on joint custody to mediation and by Section 107.105, which requires the court to consider awarding custody jointly. In addition, 1997 legislation noted in its very first section that it was state policy to [a]ssure minor children of frequent and continuing contact with parents who have shown the ability to act in the best interests of the child. The effect of this legislation was to strengthen the power of noncustodial parents, since denial of access to the children would give the right to terminate spousal or child support, change the parenting plan, or obtain an award for makeup visitation. The legislative history for the bill shows that it was a compromise between men\u27s rights groups and those concerned about domestic violence. After setting out the problem and describing the legislation in some detail, the paper tests whether the change in the Oregon statutes is to what most people would want (in which case there should be a substantially higher percentage of joint custody awards after its enactment than before). If the legislation functions as a penalty default, there should be more mediation after the statute and more filings of domestic abuse petitions to avoid application of the rule. If it does not function as a default rule, one would predict an increase in various kinds of transaction costs, including more court filings generally. We might also find that the legislation acts to disfavor primary custodial parents (largely women) as Mnookin and Kornhauser\u27s analysis would suggest (in which case there should be lower child support or property judgments than before enactment). What we find is some evidence of all these results, with quite strong effects even though this event study is hardly ideal since the 1997 changes in law were subtle and largely procedural

The Role of Socioeconomics in Teaching Family Law

The author argues that family law should take into account underlying human and societal problems. Socioeconomics helps students systematically examine those issues in ways that go beyond the anecdotal. Brinig teaches family law, and she uses empirical analyses to provide a richer understanding of divorce, cultural differences, and adoption

Does Parental Autonomy Require Equal Custody at Divorce?

This paper considers the affect of amendments to state divorce laws that strengthen their joint custody preference. It does so in the context of suits by noncustodial parents challenging substantive custody standards not requiring equal custody at divorce. The complaint is that most custody laws, by using a best interests standard rather than equally dividing custodial time, violate substantive due process. Further, two states, Iowa and Maine, have recently amended their custody legislation to strongly presume joint physical custody. After setting out the constitutional problem and describing the legislation in some detail, this paper tests the effects of the change in the Oregon statutes. Policy-makers might well want to know how children fare under joint custody as opposed to other possible visitation arrangements. In other words, does the child\u27s best interests, the hallmark of most current statutes, itself require joint custody? Empirical results from a broad national survey suggest that a close relationship with a non-custodial parent is significant in relieving various kinds of negative outcomes for adolescents, but that frequent over night stays, beyond once or twice a year do not matter much. Policy-makers might also question whether the stronger legislative preference really increases joint custody awards. Does its requirement that mediation alternatives be suggested (and, in some cases, ordered) in fact increase the number of cases that are settled by mediation? Do judges sometimes prescribe mediation in cases that are inappropriate (such as those in which domestic violence orders have been entered)? Do children receive less child support under the new statutory scheme? Is there evidence that the process makes divorce less painful and less expensive? Empirical results on Oregon suggest that while even small statutory changes have large effects, they are not necessarily the ones that motivated the legislation. The broader goal here is to suggest that changes in family law, while often made, are seldom systematically assessed. Society needs such accountability, particularly when children are involved. I show one way it might be done

Adultery: Trust and Children

Deborah Rhode writes that while adultery is admittedly not good, it should not be criminal. She argues that it should not generate a tort action either, because the original purposes for which the torts of alienation of affections and criminal conversation come from a time with quite different views about marriage and gender, while no-fault and speedy divorce today give adequate remedies to the wronged spouse. Further, adultery should not affect employment (as a politician or in the military) unless it directly impacts job performance. My own reluctance to disengage adultery and law stems from the seriousness of adultery. First, the destruction of trust that adultery both signals and produces does considerable damage. Second, though she certainly notes that the injured spouse has a beef against the adulterous one, and does briefly consider the harms done to children under various adultery scenarios, Rhode underplays the direct (through their own tendencies to trust or to be faithful as adults) and indirect (through the likely divorce to follow and its particular nastiness) damage done to the children of adulterous marriages