Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, March 23, 2018

Fernando & Ross: "Stifled Voices: Hearing Children's Objections in Hague Child Abduction Convention Cases in Australia"

Michelle Fernando & Nicola M. Ross have posted to SSRN Stifled Voices: Hearing Children's Objections in Hague Child Abduction Convention Cases in Australia, (2018) 32(1) International Journal of Law, Policy and the Family. Here is the abstract:

In 2012, four Italian children unlawfully retained in Australia by their mother were sent back to Italy, even though they had been in Australia for over 2 years, all four objected to being returned and the two elder children were aged 12 and 14 years at the time of the first hearing. The High Court of Australia ruled that the children had been afforded natural justice and that their views had been appropriately heard and considered, despite the children not having had legal representation or the opportunity to express their views directly. This article examines the meaning and operation of the ‘children’s objection’ exception to a mandatory return order made in Australia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. While the general rule is that children unlawfully taken from their home country by a parent must be returned, Article 13 gives a court discretion to refuse to return a child if the child objects and is of sufficient age and maturity. In Australia, the child’s objection must also show a ‘strength of feeling’ beyond a mere preference or ordinary wishes. The authors discuss the limitations of the current procedures for hearing children’s objections in light of the child’s right to be heard pursuant to Article 12 of the United Nations Convention on the Rights of the Child, and advocate greater use of Independent Children’s Lawyers and meetings between children and judges in Hague Convention cases.

March 23, 2018 | Permalink | Comments (0)

Joslin: "Nurturing Parenthood Through the UPA (2017)"

Courtney G. Joslin has posted to SSRN Nurturing Parenthood Through the UPA (2017), 127 Yale Law Journal Forum 589 (2018). Here is the abstract:

Same-sex couples now have the right to marry throughout the country. Douglas NeJaime’s insightful article carefully explains how LGBT parent-families remain vulnerable despite this important development. NeJaime demonstrates that while the law recognizes nonbiological parentage, it does so in asymmetrical ways that “reflect[] and perpetuate[] inequality based on gender and sexual orientation.” These asymmetries harm the adults and the children in these families, and violate core constitutional mandates.

This Response shows how the recently approved revisions to the Uniform Parentage Act (UPA)—UPA (2017)—address many of the critical gaps in parentage law identified by NeJaime. The UPA (2017) expands the ways in which a nonbiological parent may establish her or his parentage. The Act carries over the longstanding holding-out provision, but revises it so that it applies equally to men and women. The UPA (2017) also adds a new provision on de facto parents, under which someone who has been acting as a parent can legally establish his or her parentage, and expands the classes of people who can establish parentage through the voluntary acknowledgment process. The Act also updates the assisted reproductive technology (ART) provisions to permit individuals of any gender to establish their parentage based on proper consent to the ART procedure.

In addition, the UPA (2017) removes many gender-based distinctions that long have shaped parentage law. In so doing, the UPA (2017) helps states bring their parentage statutes into compliance with the Supreme Court’s decisions in Obergefell v. Hodges, Pavan v. Smith, and Sessions v. Morales-Santana. These Supreme Court decisions make clear that family law provisions that discriminate on the basis of gender or sexual orientation may be constitutionally suspect.

By adopting the UPA (2017) and making these changes, states can reform parentage law to more evenhandedly protect all parent-child relationships.

March 23, 2018 | Permalink | Comments (0)

Thursday, March 22, 2018

Carbone & Madeira: "The Role of Agency: Compensated Surrogacy and the Institutionalization of Assisted Reproduction Practices"

June Carbone & Jody Lynee Madeira have posted to SSRN: The Role of Agency: Compensated Surrogacy and the Institutionalization of Assisted Reproduction Practices, Washington Law Review, Vol. 90, No. 7, 2015. Here is the abstract:

The surrogacy debate often conflates what should be seen as three distinct issues: the permissibility of the practice under any circumstances, the role of for-profit intermediaries in arranging surrogacy, and the role of compensation in influencing decision-making. For those who see surrogacy as intrinsically objectionable, nothing short of a total ban will suffice. For those who object to the commodification of reproduction or to the role of for-profit agencies in recruiting surrogates, however, the solutions lie in regulation rather than prohibition. Commercial agencies, unlike infertile couples who enter into arrangements with their friends and relatives, are repeat players. They are in a better position to institutionalize appropriate practices and instantiate acceptable norms than are parties driven by the desire to produce a child. We conclude that much of the objection to commercial surrogacy involves the practice’s growing pains. In the end, commercial agencies, particularly if they are subject to regulations that require transparency and provide oversight, may promote human dignity as well as, or better than, individually negotiated altruistic arrangements.

March 22, 2018 | Permalink | Comments (0)

Ryznar: "Alimony in Tax Reform"

Margaret Ryznar has posted to SSRN Alimony in Tax Reform, Tax Notes, Vol. 157, No. 11, pp. 1629-1631, December 2017. Here is the abstract:

The proposed changes to the current tax treatment of alimony do not take family law into account and would have the unintended effect of reducing alimony transfers. Although the current tax treatment of alimony has a substantial influence over matters of family law, its impact on the public fisc is small. If the goal of the proposed modifications is to preserve revenue, enforcement of section 71 is a better approach than denying special tax treatment to alimony.

March 22, 2018 | Permalink | Comments (0)

Predicting Divorce

From New Haven Register:

No one can say with 100% certainty that a couple is heading for disaster.

But social scientists have gotten pretty good at predicting who's most likely to wind up there. These couples share certain commonalities — in the way they fight and the way they describe their relationship, but also in their education level and employment status.

Below, we've rounded up seven factors that predict divorce.

Read them here.

March 22, 2018 | Permalink | Comments (0)

Wednesday, March 21, 2018

Supreme Court Hears Case Regarding Divorce & Insurance Policies

From Courthouse News Service:

The Supreme Court appeared unlikely Monday to strike down a Minnesota law that keeps people from collecting on their exes’ life-insurance policies.

Minnesota enacted the statute at issue in 2002 to address the tendency of couples unintentionally failing to update such documents after a divorce.

At a hearing on the law Monday, the Supreme Court noted that some people very well may prefer to keep former spouses as the beneficiaries of their life insurance policies, even after getting divorced. Justice Elena Kagan noted, however, that the Minnesota Legislature might be owed deference after using its judgment to finding that isn’t typically the case.

“If you’re saying really we look to the broad class of people, why shouldn’t we make the same judgment that the Legislature made, or at least accept that judgment, that if we look to the broad class of people, most of them would rather give their life insurance policy to their children than to their divorced spouse?” Kagan asked on Monday.

Read more here.

March 21, 2018 | Permalink | Comments (0)

Wisconsin Senate Passes Sara's Law

From WBAY:

The Wisconsin State Senate has given the green light to 'Sara's Law' Tuesday night. Supporters say the bill, named after Sara Quirt Sann, one of four people killed in the March 22nd shootings in Weston, is designed to better protect family lawyers.

Read more here. 

March 21, 2018 | Permalink | Comments (0)

Ferguson & Brake: "Introduction: The Importance of Theory to Children's and Family Law"

Lucinda Ferguson & Elizabeth Brake have posted to SSRN Introduction: The Importance of Theory to Children's and Family Law, in Elizabeth Brake and Lucinda Ferguson (eds), Philosophical Foundations of Children's and Family Law (OUP 2018). Here is the abstract:

What defines family law? Is it an area of law with clean boundaries and unified distinguishing characteristics, or an untidy grouping of disparate rules and doctrines? What values or principles should guide it – and how could it be improved? Indeed, even the scope of family law is contested. Whilst some law schools and textbooks separate family law from children’s law, this is invariably effected without asking what might be gained or lost from treating them together or separately. Should family law and children’s law be distinguished or treated together? 

One would expect disagreement on these questions in any context. In bringing together theorists from multiple jurisdictions and at least two primary disciplines, we should not be surprised to find deep differences in approach reflecting different methodologies and foundational questions. The tension between them, we hope, can illuminate and enrich discussion on all sides. Further, through combining insights from law and philosophy, we also intend to add another layer to the current trend to focus on the empirical in family lawresearch, and highlight how critical debates in children’s and family law are at once theoretical and empirical in nature. Understanding the nature and content of a child’s “best interests” as contained in multiple jurisdictions’ legal frameworks regulating private and/or public law concerning children, for example, requires us to approach the matter both conceptually – in order to adjudicate between frameworks – and in terms of fit with evidence from research. This immediately makes any satisfactory resolution more uncertain, contested, and subject to criticism. It is in this context that we hope that the conversations between law and philosophy, their points of agreement and divergence, can advance stalled debates. 

International differences correspond, of course, to differences in law, policy, and procedure. Contrast, for example, England and Wales’ ‘single pot’ approach to the distribution of property and maintenance upon marriage breakdown to the more common, “pillarised” treatment of matrimonial property, pensions, and maintenance. The difference in system design necessarily affects the available potential justifications. As a more nuanced aspect of the impact of system design, one might consider the normative difficulties created by the variation in default regimes adopted in relation to matrimonial (or marital) property between US states. Facing jurisdictional differences – like considering historical changes within one’s own jurisdiction – can yield an awareness of the context-specificity of one’s own starting points. And awareness of how things are done differently can lead us to call into question our own ways of doing things. Such awareness might alert us to unintended consequences of legislation or to innovative solutions. And, more fundamentally, it might cause us to interrogate what we take as the core, the normal, or even the natural. This is where philosophical investigation becomes indispensable. 

In Section II, we outline a number of respects in which the approaches taken by (academic) lawyers and philosophers writing in this field tend to differ, as well as how the structure of this collection seeks to cut across and highlight both these divergences and shared accounts. In Section III, we introduce the key themes that underpin the collection, which demonstrate the potential for cross-fertilisation between legal contexts as well as between legal and philosophical perspectives. When we refer to ‘lawyers’ and ‘philosophers’, we have in mind those working in family law and children’s law in particular.

March 21, 2018 | Permalink | Comments (0)

Saudi Women Gain Custody Rights

From CNN:

Mothers in Saudi Arabia can now retain custody of their children after divorce without filing lawsuits, according to a Saudi Information Ministry statement Monday, meaning the kingdom is breaking ranks with several other countries in the region that heavily favor male guardianship.

The move comes as part of a series of sweeping social and economic reforms known as Vision 2030. Initiated over the past two years, the reforms have been spearheaded by Saudi Arabia's 32-year-old Crown Prince Mohammed bin Salman.
Previously, a Saudi woman was required to petition courts, sometimes for years, to win custody of children after a divorce. The Saudi Justice Ministry released a circular to the courts that specifies that, barring a dispute between the parents, a mother is required only to apply for custodianship. This represents a significant improvement in women's rights in the country, even though custodianship still goes to the father by default.
Read more here.

March 21, 2018 | Permalink | Comments (0)

Tuesday, March 20, 2018

Philippines' Divorce Bill

From BBC News:

The Philippines' lower house of Congress has passed a divorce bill on the third reading, moving the country closer to legalisation.

The bill passed despite opposition from President Rodrigo Duterte, who had his own marriage legally annulled.

However, for divorce to become legal the Senate also has to pass a bill in favour, and even then Mr Duterte could still use his veto to strike it down.

Read more here. 

March 20, 2018 | Permalink | Comments (0)

Adekile: "Human Rights Dimensions of Family Disputes Resolution, Essays in Honour of Prof Ogungbe"

Oluwakemi Mary Adekile has posted Human Rights Dimensions of Family Disputes Resolution, Essays in Honour of Prof Ogungbe (2017 ed. by Prof Sesan Oluyide). Here is the abstract:

Disputes in marriage have moved from localized to globalized standards in the face of human rights norms. Situated within international, regional and national legal systems, which are often pluralized, these human rights standards demand equality rights and non discrimination as well as the best interests of the child in the resolution of marital disputes, in sharp contrast with the traditional utilitarian mold which has the goal of preserving entrenched community, patriarchal, and religious interests. Drawing inspiration from different jurisdictions, this work investigates the gap between human rights standards and these traditional molds in disputes on access to divorce, property rights (maintenance, settlement of property, division of property) and custody of children. It finds that whilst formal equality and non discrimination is in positive law, substantial equality is still a far cry. It highlights State obligations in human rights standards towards the attainment of the goal of transformative justice. It concludes that since laws, religion and customs affirm discrimination and inequality most eloquently in marital disputes, human rights standards demand positive actions by State Parties towards the realization of justice.

March 20, 2018 | Permalink | Comments (0)

Huntington: "The Empirical Turn in Family Law"

Clare Huntington recently posted to SSRN The Empirical Turn in Family Law, Columbia Law Review, Vol. 118, No. 227, 2018. Here is the abstract:

Historically, the legal system justified family law’s rules and policies through morality, common sense, and prevailing cultural norms. In a sharp departure, and consistent with a broader trend across the legal system, empirical evidence increasingly dominates the regulation of families. 

There is much to celebrate in this empirical turn. Properly used, empirical evidence in family law can help the state act more effectively and efficiently, unmask prejudice, and depoliticize contentious battles. But the empirical turn also presents substantial concerns. Beyond perennial issues of the quality of empirical evidence and the ability of legal actors to use it, there are more fundamental problems: Using empirical evidence focuses attention on the outcomes of legal rules, discouraging a debate about contested and competing values. Reliance on empirical evidence overlays a veneer of neutrality on normative judgments. And uncritically adopting evidence about present conditions without interrogating the role of historical discrimination that continues to disadvantage some families can replicate that discrimination.

Given the promise and peril of the empirical turn in family law, this Essay proposes a framework to guide the use of this evidence. The framework preserves space for debating multiple values and advises decisionmakers when to use empirical evidence, with particular attention to the dangers for nondominant families. The framework also recommends strengthening evidentiary gatekeeping and elevating the potential for legal scholarship to serve as a bridge from the broader research base to the courts. With this guidance in place, empirical evidence can take its rightful place as a useful but cabined tool in the legal regulation of families.

March 20, 2018 | Permalink | Comments (0)

Happy Spring

March 20, 2018 | Permalink | Comments (0)

Monday, March 19, 2018

Northern Territory Parliament Passes Same-Sex Adoption Law

From Australian Broadcasting Corporation: 

In the remote community of Hermannsburg, about 130 kilometres west of Alice Springs, married couple Kara and Bronwyn Blair-Stuart are celebrating.

The Northern Territory Parliament, overlooking the Arafura Sea in Darwin, might be a long way from the Red Centre, but a change in law has given this married bush couple more choice.

Last week both sides of Parliament agreed to axe an old adoption law that only allowed married heterosexual couples, or those in a traditional Aboriginal marriage, the right to adopt children.

Read more here. 


March 19, 2018 in Adoption | Permalink | Comments (0)

Restrictive US Health Funding Rule Threatens Lives

From Human Rights Watch:

Before embarking on a five-nation tour of Africa this week, US Secretary of State Rex Tillerson acknowledged the link between women’s health and economic and social development as he lauded Washington’s massive global health fund, PEPFAR, for how it had “transformed the global HIV/AIDS response,” saying that “ … nowhere is this more evident than in Africa.”

As the largest global donor on global health, the US has supported many programs that help people get healthcare in some of Africa’s poorest countries. But President Donald Trump has also expanded the “Global Gag Rule” beyond any previous US administration – which threatens to undermine decades of progress on women’s health and undermine gender equality.

On his first working day in office, Trump reinstated and dramatically expanded the Mexico City Policy – also known as the “Global Gag Rule,” which conditions US funding for global health programs on a commitment from foreign nongovernmental organizations that they will not promote or provide abortions, even with non-US funds, except in cases of rape, incest or to save a woman’s life.

Read more here.

March 19, 2018 in Abortion, Current Affairs, International | Permalink | Comments (0)

Sunday, March 18, 2018

Iceland Wants to Ban Circumcision

From BBC News:

The draft law would impose a six-year prison term on anyone guilty of "removing part or all of the [child's] sexual organs", arguing the practice violates the child's rights.

Jewish and Muslim leaders however have called the bill an attack on religious freedom.

Iceland would be the first European country to ban the procedure.

The country is thought to have roughly 250 Jewish citizens and around 1,500 Muslim citizens.

Read more here.

March 18, 2018 in International, Religion | Permalink | Comments (0)

Saturday, March 17, 2018

Lande: "Overcoming Roadblocks to Reaching Settlement in Family Law Cases"

John Lande has posted to SSRN Overcoming Roadblocks to Reaching Settlement in Family Law Cases, 40 Family Advocate 26 (Winter 2018). Here is the abstract:

In “litigation as usual,” settlement often comes only after adversarial posturing, the original conflict escalates, the relationships deteriorate, the process takes too long and costs too much, and nobody is really happy with the resolution. This article describes common roadblocks to negotiation and ways to overcome them to reach good settlements. Although some dynamics described in this article are specific to family law cases, most apply in virtually any type of litigation.

March 17, 2018 | Permalink | Comments (0)

First Amendment Defense Act Permits Discrimination

From Human Rights Campaign:

HRC responded to a bill introduced by Sen. Mike Lee (R-UT), called the “First Amendment Defense Act” (FADA), which seeks to permit discrimination by individuals, many businesses, and non-profit organizations against same-sex couples, single parents and unmarried couples:

The bill, cosponsored by 21 Senate Republicans, would bar the federal government from ameliorating discrimination against same-sex couples, single parents, and unmarried couples when an entity evokes a sincerely-held religious belief or moral conviction. Under FADA, individuals, many businesses and non-profit organizations using taxpayer funds could openly violate non-discrimination policies or refuse to serve same-sex couples. As long as they claimed their actions are based on their belief about marriage, the government would have little recourse.

"The First Amendment Defense Act is harmful legislation that would legalize state-sanctioned discrimination and undermine key civil rights protections for LGBTQ people,” said David Stacy, HRC Government Affairs Director. “Supporters of this legislation are using religious liberty as a sword to hurt LGBTQ families rather than staying true to our long tradition of it serving as a shield to protect religious expression from government overreach."

Read more here.

March 17, 2018 in Current Affairs, Religion | Permalink | Comments (0)

Happy St. Patrick's Day

March 17, 2018 | Permalink | Comments (0)

Friday, March 16, 2018

Kessler, Joslin, & Hollinger: "Brief of Amici Curiae Family Law Professors in Support of Plaintiffs-Appellees and Affirmance in Kitchen v. Herbert"

Laura T. Kessler, Courtney G. Joslin, & Joan Heifetz Hollinger have posted to SSRN Brief of Amici Curiae Family Law Professors in Support of Plaintiffs-Appellees and Affirmance in Kitchen v. HerbertHere is a summary:

This amici curiae brief was filed in the United States Circuit Court for the Tenth Circuit on behalf of 40 family and child welfare law professors in Kitchen v. Herbert, the federal case challenging the state of Utah's ban on same-sex marriage.

The amici brief seeks to provide the 10th Circuit U.S. Court of Appeals with a more complete and accurate understanding of the multiple purposes of marriage, and its relationship to procreation and parentage. The right to marry, the Professors explain, has never been conditioned on an ability or willingness to procreate. Amici also explain that Utah's preference for "dual gender" parenting is inconsistent with constitutional principles, and they show that there is no legal basis for any assertion that federal law favors biological parentage over the decisions of many married couples - both opposite-sex and same-sex - to adopt children or conceive children through assisted reproduction. Finally, amici demonstrate that Utah’s same-sex marriage ban undermines rather than furthers the state’s interests in children and child welfare.

March 16, 2018 | Permalink | Comments (0)