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Volume 2013, Number 4

Symposium: The American Academy of Adoption Attorneys:
The Future of Adoption in America Symposium


Conscience Clauses and the Placement of Children
Mark Strasser

Adoption is a creature of statute. There is neither a fundamental right to adopt nor to be adopted and states have much discretion with respect to the contents of their adoption laws. Nonetheless, that discretion is not unlimited. Both the United States Constitution and federal statutes limit states with respect to how they regulate adoption, though the contours of those limitations are not clearly laid out. Those contours are now becoming more contested, and the courts will likely be forced to clarify the degree to which states have discretion with respect to the contents of their adoption regulations and statutes.

2013 Utah L. Rev. 985 | (Download PDF)

Once Born, Twice Orphaned: Children’s Constitutional Case Against Same-Sex Adoption Bans
Tanya M. Washington

In the 2012 state elections, Maine, Maryland, and Washington voters elected to legalize same-sex marriage, increasing the number of jurisdictions recognizing same-sex marriage to ten. Proponents of same-sex marriage are encouraged by the 2012 election results, which signal greater support for same-sex marriage among the general population. As the political climate warms to laws recognizing same-sex relationships, one might expect to see an increase in legislation permitting same-sex adoption, particularly in light of the growing number of children available for adoption. Unfortunately, the forecast is less optimistic for orphans whose prospects for permanent placement are compromised by an increase in state laws that limit or proscribe adoption by gay and lesbian couples and individuals.

2013 Utah L. Rev. 1003 | (Download PDF)

The Oncoming Storm: State Indian Child Welfare Act Laws and the Clash of Tribal, Parental, and Child Rights
Philip (Jay) McCarthy, Jr.

An increasing trend has been the enactment of state laws that supplement the federal Indian Child Welfare Act of 1978 (ICWA). These state laws grant Indian tribes significant statutory rights that jeopardize the constitutional rights of both children and parents. Two particular examples where such state legislation infringes upon the constitutional rights of parents and children are: (1) mandating that notice be provided to Indian tribes in voluntary adoptions that do not involve state agencies, and (2) restricting the good-cause exception of the ICWA (regarding the grounds to deviate from the placement preferences or to deny a request to transfer jurisdiction from state court to tribal court). Indian tribes have increased their lobbying efforts for passage of state Indian child welfare (ICW) laws due, in part, to their increased political clout in many states, which the author believes is a result of Indian gaming revenue. In the past several years, state ICW legislation has been fast-tracked through many state legislatures.

2013 Utah L. Rev. 1027 | (Download PDF)

Transracial Adoption in the United States: The Reflection and Reinforcement of Racial Hierarchy
David Ray Papke

Transracial adoption strikes most as an appealing undertaking. People who have adopted a child of another race or been adopted by parents of another race are usually delighted by the results and consider themselves truly fortunate. People who have participated in a transracial adoption might even assert that their families have transcended race and become “post-racial.” These individuals might claim they no longer take race to be an important category and designation in their daily lives and express the hope that others would come to see things in the same way.

2013 Utah L. Rev. 1041 | (Download PDF)

The Corrupting Influence of the United States on a Vulnerable Intercountry Adoption System: A Guide for Stakeholders, Hague and Non-Hague Nations, NGOs, and Concerned Parties
David M. Smolin

The United States has been the most significant nation in the history and development of the modern intercountry adoption system. The United States was the receiving nation that initiated adoptions of South Korean children after the Korean War. Statistically speaking, approximately half of all children adopted internationally have come to the United States, with the percentage falling to around 40% since 2009. Practically speaking, this statistical dominance means that the characteristic ways in which the United States structures and practices intercountry adoption have a predominate influence on the entire system. Not surprisingly, the United States played a significant role in the development of international law governing intercountry adoption, including both the Convention on the Rights of the Child (CRC) and the Hague Adoption Convention. The conceptions of adoption in the United States legal system have come to have a favored place in the intercountry adoption system, despite being minority or foreign concepts in much of the world.

2013 Utah L. Rev. 1065 | (Download PDF)


A Remedy to Fit the Crime: A Call for the Recognition of the Unreasonable Rejection of a Parent by a Child as Tortious Conduct
Bruce L. Beverly

If we accept the fundamental premise that each parent has the obligation and the right to raise, know, enjoy, nurture, and encourage his or her children, then the insidious and often intentional act of subverting the relationship between one parent and a child by the other parent is reprehensible. Currently, due to the nature of the alienation and the complex relationships between the court and the parties, this act often has few consequences.

2013 Utah L. Rev. 1137 | (Download PDF)


A Win for Transgender Employees: Chevron Deference for the EEOC’s Decision in Macy v. Holder
Laura Anne Taylor

A recent decision by the Equal Employment Opportunity Commission (EEOC) in an administrative adjudication has the potential to dramatically alter the legal landscape for transgender workers with employment discrimination claims. The historic decision is predicted to improve the availability and likelihood of success of judicial and administrative remedies for claims of discrimination based on transgender status. In its ruling, the EEOC recognized that “claims of discrimination based on transgender status, also referred to as claims based on gender identity, are cognizable under Title VII’s sex discrimination prohibition . . .” and “conclude[d] that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on . . . sex,’ and such discrimination therefore violates Title VII.” This ruling reflects the changing attitudes toward transgender individuals in our society and signals a growing recognition that all individuals are entitled to basic civil rights that prevent discrimination on the basis of gender identity.

2013 Utah L. Rev. 1165 | (Download PDF)

Utah and Juvenile Incompetency
Dannon Lee

Juvenile courts around the country are considering what should be done if a minor is incompetent to stand trial. The Utah legislature considered this issue last year and enacted a law addressing it that went into effect in May 2012. The law gives juvenile courts a roadmap to follow when determining a minor’s competency; however, the law has some flaws that could create problems in the future. Some states have addressed these flaws, while others have not.  Incompetency has always proven to be a difficult problem for the judicial and legislative branches to solve.

2013 Utah L. Rev. 1193 | (Download PDF)


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