August 17, 2006
Recent News and Scholarship on Transracial Adoptions
The New York Times reports that a growing number of white couples are pushing past longtime cultural resistance to adopt black children. In 2004, 26 percent of black children adopted from foster care, about 4,200, were adopted transracially, nearly all by whites. That is up from roughly 14 percent, or 2,200, in 1998, according to a New York Times analysis of data from the National Data Archive on Child Abuse and Neglect at Cornell University and from the Department of Health and Human Services.
Read the NYT Article (last visited August 17, 2006 bgf)
The past year has produced some provocative scholarship on the subject of transracial adoption by family law professors.
- Solangel Maldonado, Discouraging Racial Preferences in Adoptions, 39 U.C. Davis L. Rev. 1415 (2006)
Drawing on the rich literature on cognitive bias, Professor Maldonado debunks the myths about domestic and international adoptions and shows that racial preferences, even if unconscious, play a role in many Americans’ decisions to adopt internationally. She proposes that the law discourage adoptions based on racial preferences by requiring that Americans seeking to adopt internationally, while there are available children in the United States who meet their non-race-based criteria, show non-race-based reasons for going abroad. (read the article)
- Tanya Washington Loving Grutter: Recognizing Race in TransRacial Adoptions, 16 Geo. Mason U. Civ. Rts. L.J. 1 (2005) Professor Washington examines the available social science data that examines the success and failings of transracial adoptions. She argues for a mandatory racial competency training program designed to preserve and promote the best interest of transracial adoptees and analyzes the constitutionality of such a program. (George Mason U Civil Rights Law Journal)
Several articles appeared in the The Boston College Third World Law Journal Symposium Issue on Black Children and their Families in the 21st Century, including:
- Twila Perry, Transracial Adoption And Gentrification: An Essay On Race, Power, Family And Community, 26 B.C. Third World L.J. 25 (2006)
Professor Perry argues that both transracial adoption and gentrification represent contexts in which, in the future, there may be increasing competition for limited resources. Professor Perry argues that in any such competition, Blacks will increasingly find themselves at a disadvantage stemming from the consequences of institutionalized racism. Professor Perry urges increased government involvement to preserve Black families and to protect Blacks against the displacement that often results from gentrification. (read the article)
- Michele Goodwin, The Free-Market Approach To Adoption: The Value Of A Baby, 26 B.C. Third World L.J. 61 (2006)
Professor Goodwin argues that the current adoption model in the United States resembles an unregulated marketplace in children. She explores this marketplace and the way in which race, genetic traits, and class are implicated in adoption processes, resulting in higher fees associated with the adoption of children with desirable traits. She proposes two mechanisms by which the government could regulate the adoption market -- price caps and taxation and advocates greater transparency and information in the adoption process to protect the welfare of children who might otherwise be exploited in an unregulated adoption market. (read the article)
- Angela Mae Kupenda, Seeking Different Treatment, Or Seeking The Same Regard: Remarketing The Transracial Adoption Debate, 26 B.C. Third World L.J. 97 (2006)
Professor Kupenda urges a remarketing of the transracial adoption debate to reflect a request based on sameness, not difference. The request is not one for different treatment for black children. Rather, it is for black children to be given the same regard that is given to white children. This request is illustrated with the story of a black couple seeking to adopt healthy, fat white babies. (read the article)
Finally, for some broader perspectives on adoption, including transracial adoption, you may want to check out Barbara Bennett Woodhouse's article Waiting for Loving: The Child's Fundamental Right to Adoption, 34 Cap. U.L. Rev. 297 (2005) or Professor Lynn D. Wardle's article Parentlessness: Adoption Problems, Paradigms, Policies and Parameters, 4 Whittier J. Child & Fam. Advoc. 323 (2005)
(All links last visited August 17, 2006 bgf)
Race as a Consideration In Custody Actions
While we're looking at race and adoption, it seems appropriate to point out that the debate over how and if race should be considered in custody actions is not settled. A recent Illinois Appeals Court decision affirmed a trial judge's decision to grant sole custody of a 2-year-old bi-racial child to her African-American mother rather than her Caucasion father. The bitter custody battle included 15 days of trial, 128 exhibits and 15 witnesses (including four experts, the admissibility of whose testimony was a central issue in the appeal). The trial judge found both parents equally fit to care for the child but favored mother in part because "the mother was able to provide the child with the support she would need in a world that was potentially hostile to biracial individuals."
The court considered the effect of Palmore v. Sidoti, 466 U.S. 429 (1984) and concluded that, while race cannot be the sole factor in a custody determination, "Volumes of cases from other jurisdictions have interpreted Palmore as not prohibiting the consideration of race in matters of child custody."
A strongly worded dissent argued that "Despite this court's weak protest to the contrary, the remarks in the trial court's letter of opinion show that the court's decision for custody improperly hinged on the sole factor of race: that only an African-American person can properly raise a biracial child in this society."
In re Gambla, 2006 Ill. App. LEXIS 667 (July 31, 2006)
opinion on the web (last visited August 17, 2006 bgf)
Battle over Teenager's Choice of Medical Treatment is Settled
The Washington Post reports that the family of a Virginia boy who has refused conventional medical treatment for cancer reached a settlement today with state officials, agreeing that he will see a new doctor while continuing his alternative therapy. (See July 13th Family Law Prof Blog posting on this case)
Read the Washington Post article (last visited August 17, 2006 bgf)
Caseworker Visits Key to Foster Care Safety
Experts believe that frequent visits from caseworkers are key to keeping children safe in foster care. As a result of lawsuits, consent decrees, and collaborations with child advocacy groups, forty-three states have adopted standards calling for monthly caseworker visits to children in foster care. However, twenty-seven states have been cited as needing imporvement in this area. Information from Department of Health and Human Services, Office of Inspector General, State Standards and Capacity to Track Frequency of Caseworker Visits with Children in Foster Care, (2005) Link to Report (last visited 8-16-06 NVS)
Grieving Father Sues County for Failure to Stop Abuse
"Matthew Radke tried to get someone to pay attention to the bruises on his 18-month-old son, Makaio, for three months. First police, then a doctor, then a court-appointed advocate saw bruises on the toddler. Three times, Freeborn County child-protection workers visited the Albert Lea home where Makaio lived with his mother and two friends of hers. Three times, Peggy Radke's explanations satisfied the caseworkers. On April 21, 2001, less than 24 hours after the last visit, Makaio was found dead — his ribs broken, his lungs punctured and his body nearly covered with bruises. He had been left alone for 12 hours with 27-year-old Paul Gutierrez, who is now serving life in prison without parole for the boy's death.
But Matthew Radke also blames the county. In what could turn out to be a landmark case, Radke is suing Freeborn County, claiming it failed to stop the abuse. Last year, the suit was given a green light by the Minnesota Supreme Court — the first time a citizen has been allowed to sue a county under the state's child-protection statute." By Rick Links, Pioneer Press Link to Article (last visited 8-16-06 NVS)
Read Radke v. County of Freeborn, 694 N.W.2d 788 (Minn. 2005) Link to Westlaw (last visited 8-16-06 NVS)
Parents' Companions Linked to Child Abuse
"When the boyfriend moved in, the bruises began. Kailyn Montgomery's mother was alarmed. Every few days, new bruises appeared on Lindsey Ostler's 2-year-old. Ostler took her daughter to a clinic and then a hospital, triggering an investigation. Ramsey County authorities put the Maplewood girl in protective foster care until her injuries healed, then sent her home. Two months later, 18-year-old Kyle Kelbel beat Kailyn to death.
That was December 2000. The murder made Kailyn one of at least 13 children since 1999 killed by their parents' companions, according to the Minnesota Department of Human Services. Her case illustrates what some say is a growing problem — desperate young women entrusting their children to men in situations that make them more likely to be abused." By Rick Links, Pioneer Press Link to Article (last visited 8-16-06 NVS)
August 16, 2006
Case Law Development: PKPA Requires Recognizing Originating States Custody Order Even if Another State Would be able to Exercise Jurisdiction under its own Version of the UCCJEA
The Connecticut Court of Appeals provides a brief and readable explanation of the interaction of the PKPA and the UCCJEA in a case in which Florida had originally entered a custody order and Father then obtained a modification of that custody order in Connecticut. The court found that since the Florida court properly exercised jurisdiction under the PKPA in the first instance and Mother still resided there, that state's courts continued to have sole and exclusive jurisdiction. Since Florida's version of the UCCJEA provided a basis for that jurisdiction, the Connecticut court could not modify custody without an order from Florida stating that it no longer has jurisdiction. This was so even though under Connecticut's version of the UCCJEA, there would be a basis for Connecticut to exercise jurisdiction over the custody action.
Scott v. Somers, 2006 Conn. App. LEXIS 369 (August 15, 2006)
Opinion on the web
Case Law Development: Emancipation May Not Be Based Solely on Poor College Grades
A New Jersey trial court ordered that a 20-year-old daughter would be emancipated if she did not earn a
"B" average in college that semester. In the court's words, " "Whatever she finishes this semester with, if it's a B average, [Father] pays. If it's not a B average, he's off the hook, and maybe she has to take a year off and get a job and save money so she can go to school the next year. Maybe she has to go to school at night and work during the day or vice-versa." When daughter's semester did not meet the grade standard imposed, the trial court ordered a termination of child support. The court of appeals reversed, concluding that "Early struggles at school do not take a child outside of the parental sphere and make him or her independent. On the contrary, when the child struggles in college he or she may need and rely on his or her parents even more than during times of success. The standard applied by the court was arbitrary, capricious and unreasonable." The appellate court also found that the trial judge had failed to make adequate findings as to the father's ability to contribute to his daughter's college expenses.
Keno v. Pilgrim, (August 15, 2006)
Opinion on the web (last visited August 15, 2006 bgf)
Case Law Development: Duress & Undue Influence in Post-Nuptial Agreements
The California Court of Appeals addresses the burdens of proof and standards for establishing the defenses of undue influence and duress when seeking to make a marital agreement regarding property unenforceable. The case involved a couple who had executed a premarital agreement giving Husband all his business property. Eleven years later, while Husband and Wife were staying at an inn, he executed a document transferring to Wife as her separate property 20% of the stock in his business and the family home. The couple separated a few months later and Husband soon thereafter filed for divorce. The trial court found that this document was unenforceable due to undue influence and duress, as Husband had provided credible evidence that he had signed the document after Wife had screamed at him, struck him, and threatened to divorce him and alienate him from their children if he did not provide her with this security. The court of appeals affirmed.
In regards to the undue influence argument, the court began with the presumption that, because married couples are in a confidential relationship with one another, "if one spouse secures an advantage from [an interspousal] transaction, a statutory presumption arises under section 721 that the advantaged spouse exercised undue influence and the transaction will be set aside." Since Wife gained an advantage from the transaction, she then had the burden of rebutting the presumption of undue influence by proving that Husband's signature was "freely and voluntarily made, with full knowledge of all the facts, and with a complete understanding of its effect." The court found that the trial court's decision that Wife had not met this burden was supported by the evidence. The court agreed Husband had "executed the document as a reaction to [Wife's] continued yelling and screaming and out of fear that she would otherwise block him from having a continued relationship with his children" and therefore the agreement was not freely and voluntarily made.
The court also found that the alternative grounds of duress was supported by the evidence.
The court of appeals, found that duress does not require proof of illegal acts but rather "includes whatever destroys one's free agency" and may be proven by "threats, importunity or any species of mental coercion"'
In this case, Ralph's free will was constrained by Kathleen's threats to deny him access to his children. Kathleen disagrees, saying that any threat to deny Ralph access to the children could hardly constitute duress, inasmuch as child custody and visitation matters are resolved by the courts. She emphasizes that Ralph, as a successful businessman, had access to lawyers and should have known better than to be frightened at the suggestion that she somehow could have thwarted his rights to see his children. However, as Ralph testified, he did not discuss Kathleen's threats with legal counsel until after the date he was constrained to execute the October 1999 writing. Moreover, it is not unheard of for one parent to fail to comply with court custody or visitation orders or to engage in efforts to scuttle the relationship between the children and the other parent. As a practical matter, the courts are ill-equipped to undo the damage done by infighting parents....
It is also true, as Kathleen states, that Ralph admitted he was not actually afraid for his physical safety on account of Kathleen's physical abuse of him. The fact that he did not expect to wind up in the hospital the next time she struck him does not, however, mean that her abuse did not have a cumulative and real effect on his mental state.
In re Marriage of Balcof, 2006 Cal. App. LEXIS 1252 (August 15, 2006)
Opinion on the web (last visited August 15, 2006 bgf)
More Studies on the Health and Happiness Effects of Marriage
Care to catch up on some of the latest news reports on studies of marriage and family? Pick your proof...
- Depressed singles receive greater psychological benefits from getting married than those who aren't depressed;
- A women's libido starts to wane as soon as she feels sure she has got her man;
- Children of working mothers aren't as happy as children of stay-at-home moms; and
- those who never married tended to die earlier than those who were divorced, separated or widowed.
(all sites visited August 16, 2006 bgf)
Ballot Initiatives on Same-Sex Marriage
News on the same-sex marriage ballot issues around the country:
- Even though the State Board of Elections and a federal judge have ruled against them, Illinois conservatives who ardently oppose gay marriage say they will keep fighting to put a referendum on the issue before voters this November. The battleground now will be the 7th U.S. Circuit Court of Appeals in Chicago, where Protect Marriage Illinois - the group advancing the referendum - will argue that the state's election laws "excessively burden access" to the ballot, according to an 82-page brief filed in the case. Read more from the St. Louis Post Dispatch
- Family Law Prof Barbara Atwood's editorial in the Arizona Daily Star argues that the marriage question on the Arizona ballot isn't clear-cut and should be removed
- Colorado has officially added its own DOMA issue to the fall ballot
- The proposed Wisconsin amendment prohibiting same-sex marriage is drawing fire from some business leaders, concerned about the effect on the tourist industry should the law pass.
(all sites visited August 16, 2006 bgf)
Brave New World of Family Law Practice
Some general web surfing gave me the following press releases and news articles for me to provide my students as the possible futures of family law practice...
A nice little news piece from The Cincinnati Enquirer on the growth of collaborative law practice there.
A press release/advertisement from New York City attorney Jeremy D. Morley regarding his "Strategic International Divorce Planning Service" (providing a brief checklist of the issues to consider when shopping around the world for the best divorce forum)
Another press release/advertisement extolling the success of Internet Divorces in the UK
(sites last visited August 16, 2006 bgf)
Case Law Development: Family Institute Properly Denied Intervention in Same-Sex Marriage Constitutional Challenge
The Connecticut Supreme Court has upheld a trial court's refusal to allow the Family Institute of Connecticut to intervene as a party defendant in a declaratory judgment action challenging the constitutionality of Connecticut's denial of marriage licenses to same sex couples. (While the lower court had already granted summary judgment in the action, the court addressed the intervention issue because it would be relevant if the appeal from that summary judgment were to be successful. See Family Law Prof Post 10/1/2005 regarding this suit) The court found that the institute had no basis for intervention of right because its interest in the action was not of "direct and immediate character", but rather one of generalized interest in public policy and because the institute had failed to defeat the presumption that the attorney general would adequately conducting the defense of the marriage statutes.
As to the argument regarding permissive intervention, the court concluded that:
Even if we were to assume, arguendo, that the institute has an interest sufficient to justify permissive intervention, we conclude that the trial court nevertheless did not abuse its discretion by denying the motion for permissive intervention. Reviewing the other factors, the trial court reasonably could have determined that the institute's interest in defending the constitutionality of the marriage laws would be adequately represented by the attorney general, whose defense of state statutes is "presumed" to be adequate.
...the trial court recognized the import of the institute's expertise in this area, including its proffered scientific studies with respect to children who lack mother or father figures, by permitting it to participate as an amicus curiae. n16 Indeed, our review of the record demonstrates that the institute has filed an extensive amicus brief that contains ample references to those scientific studies.
Kerrigan v. Comm'r of Pub. Health, 2006 Conn. LEXIS 298 (August 15, 2006)
Opinion on the web (last visited August 15, 2006)
August 15, 2006
Case Law Development: Wiretaps and Videotapes of Spouse as Torts
The New Jersey court recently addressed a divorce action which included Husband's allegations that Wife had violated the New Jersey wiretap act by tape recording home telephone conversations and that she had violated his privacy by placing hidden video cameras in the home office at their New Jersey marital residence and in the bedroom of their New York apartment. The trial court awarded Husband statutory damages of $1000 for the phone wiretap and, for the invasion of privacy claim, $1 in nominal damages (as there had been no proof of actual damages) and $125,000 in punitive damages.
The New Jersey Court of Appeals reversed, concluding that award was erroneous. As to the New Jersey home office, there was no finding that Husband had a reasonable expectation of privacy in the home office, as the whole family freely used the room. As to the New York apartment, New York law provided no common law or statutory right of privacy. Moreover, even if there were a right of action, the court held that before punitive damages can be awarded, there must be a finding of compensatory damages, for which there was no proof here.
Colon v. Colon, (August 11, 2006)
Opinion on the web (last visited August 15, 2006 bgf)
Call for Better Educated Case Workers
"A task force looking at ways to more effectively curb child abuse and neglect in Arkansas heard Friday that more and better educated case workers are needed in the field. Victor Vieth, director of the American Prosecutors Research Institute's National Center for Prosecution of Child Abuse, said young social workers are too often thrown into investigating difficult, often horrific child abuse cases with little or no real-life training. One goal, Vieth said, should be to expand college and university programs to include courses on abuse and neglect, which he said would give students important information before they hit the streets." By Rob Moritz, Arkansas News Bureau Link to Article (last visited 8-14-06 NVS)
Sheen and Richards Settle Divorce
"The acrimony is apparently over for the once-coupled Charlie Sheen and Denise Richards. There has been an amicable resolution in the couple's divorce case, lawyers for Sheen and Richards announced Monday after meeting with a judge in chambers." Yahoo News Link to Article (last visited 8-14-06 NVS)
African Grandmothers Cope With AIDS
"After burying their children, they must take care of the children of their children.They are the “AIDS grannies” of Africa: women like Matilda Mwenda, 51, of Zambia, who has lost two of her seven children to AIDS, leaving five orphaned grandchildren in her care, along with two nieces who were orphaned when her sister died of AIDS. Or Priscilla Mwanza, 49, also of Zambia, a widow who is herself infected with H.I.V. She cares for three grandchildren orphaned by AIDS in addition to her own surviving children, 16 and 3, a niece and her aging mother. Or Alicia Mdaka, 66, from Cape Town, who has seen four of her eight children die — two from AIDS, two from stabbings. Now, along with her four surviving children, she cares for seven grandchildren and five great-grandchildren.
The three women are among about 100 African grandmothers who flew here for a four-day gathering that ends Sunday with a march to the opening of the 16th International AIDS Conference. The gathering, which brought the African women together with about 200 Canadian grandmothers (very few of them dealing with AIDS in their immediate families), is believed to be the first large one dedicated to helping grandmothers cope with the AIDS pandemic." By Lawrence K. Altman, N.Y. Times Link to Article (last visited 8-14-06 NVS)