Wednesday, February 28, 2007
The New York Times reports that Hawaii lawmakers effectively killed a proposal to create civil unions for gay couples by declining to vote on the legislation. More than 100 people packed the House Judiciary Committee hearing Tuesday, many waving pink signs reading, ''Civil Unions. Equal protection, justice for all.'' At least 400 people submitted extensive written or oral testimony. After five hours of testimony, though, the committee declined to vote. Representatives offered little explanation to the public, but it was a sign that the bill lacked enough support to become law.
Read the New York Times article (last visited February 28, 2007 bgf)
BBC News reports a major study of discrimination in the UK which reports that a partnered mother with a child aged under 11 is 45% less likely to be in work than a partnered man. The report suggests women with young children face more discrimination in the workplace than disabled people or those from ethnic minorities. It cites a survey of 122 recruitment agencies that revealed more than 70% of them had been asked by clients to avoid hiring pregnant women or those of childbearing age.
Read the BBC News Report (last visited February 28, 2007 bgf)
Tuesday, February 27, 2007
The Supreme Court will be hearing arguments in Winkelman v. Parma School District today, to determine whether parents who are not lawyers can represent their children in federal court in disputes under the Individuals with Disabilities Education Act. Circuits have split on the issue.
Read the opinion from the 6th Circuit Court of Appeals
Read the Legal Times article on the case (last visited February 27, 2007 bgf)
Monday, February 26, 2007
The Missouri Court of Appeals decided a case involving a divorce from a 27-year marriage in which maintenance, division of property and attorneys fees were disputed. The court affirmed the trial court's decision to award maintenance to wife, who had been a homemaker for most of the marriage and who had health problems and few job skills, and to award her a portion of the husband's retirement account, as well as the decision to award attorneys fees.
That the trial court's decisions were upheld is not particularly surprising given the high degree of deference given to trial courts on these issues and the fact that Missouri allows marital fault to impact these decisions.
What is striking about the case from a teaching perspective are the numbers:
Wife stayed at home for most of the marriage and never had earned more than $2000 a year.
At the time of trial, Husband had a monthly income of $3900, working as a machinest.
The couple had arrived at a settlement agreement and divided most of their marital property and debts. After the trial court divided the retirement account, the total property Wife received under the judgment was $9908. The total value of the property awarded to Husband, less the marital debt, came to $14,341. The trial court ordered Husband to pay modifiable maintenance to Wife in the amount of $550 per month.
Each party incurred about $3000 in attorneys fees for the dissolution action. For the appeal, Wife was awarded $6000 attorneys fees for her representation on appeal; Husband paid $18,000 for his representation on appeal.
Russum v. Russum, February 20, 2007
Opinion on the web (last visited February 26, 2007 bgf)
The Iowa Supreme Court's analyzed the effect of domestic abuse on child custody decision-making, noting that "Because domestic abuse reflects the ability of the parties to listen to one another and respect one another’s opinions and feelings, the existence of domestic abuse is a significant factor in determining whether joint physical care is appropriate." The court then went on to explain the legal status of the parents when it rejects a joint physical care arrangement:
When joint physical care is not warranted, the court must choose one parent to be the primary caretaker, awarding the other parent visitation rights.... Under this arrangement, the parent with primary physical care has the responsibility to maintain a residence for the child and has the sole right to make decisions concerning the child’s routine care.... The noncaretaker parent is relegated to the role of hosting the child for visits on a schedule determined by the court to be in the best interest of the child. Visitation time varies widely and can even approach an amount almost equal to the time spent with the caretaker parent. .... Thus, the main distinction between joint physical care and primary physical care with liberal visitation rights is the joint decision making on routine matters required when parents share physical care.
The case is interesting for the court's recognition that conduct need not result in broken bones, noting that in this case Father's "personal disagreements with [Mother's] decisions soon led him to behave in a way that not only alienated [her], but ultimately caused her to fear for her safety.... While his desperate efforts to learn why his wife had left him are understandable, we cannot ignore the fact that eventually his actions reflected not the attempts of a husband trying to save his marriage, but the bitterness of a man who had been rejected and who resented his former partner." Finding this, the court concluded that the trial court had not erred in find that the father would be unable to cooperate in joint physical case.
In re Marriage of Hynick, February 16, 2007
Opinion on the web (last visited February 26, 2007 bgf)
Read the commentary of Iowa Attorney Alexander Rhoads at Iowa Family Law Blog
In other developments on Grandparent Visitation, you can read the amicus briefs filed for and against writ of certiorari in the Pennsylvania Grandparent Visitation case Fausey v. Hiller (See Family Law Prof Blog post of August 25, 2006). The briefs are posted at Howard Basham's blog How Appealing (last visited February 26, 2007 bgf)
Grandparent visitation cases seem to be taking center stage once again. Recently, the New York Court of Appeals unanimously upheld a constitutional challenge to New York’s grandparent visitation law. The court distinguished the New York law from the Washington law struck down Troxel v Granville, noting that the New York statute gave parents the presumption that they were acting the in their children's best interest. The Court noted that:
. . . courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one. And while ...the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. "It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement" ...
While this presumption creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost four until he was seven, grandmother was his surrogate, live-in mother. The court then properly went on to consider all of the many circumstances bearing upon whether it was in the child's best interest for his relationship with grandmother to continue — e.g., the reasonableness of father's objections to grandmother's access to the child, her caregiving skills and attitude toward father, the law guardian's assessment, the child's wishes — before making a judgment granting visitation.
The court concluded that the New York statute "does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild." First, the court must find standing based on death or equitable circumstances; and if the court concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild.
Matter of E.S. v. P.D. (February 15, 2007)
Opinion from Legal Information Institute
The Utah Supreme Court has held that individuals who have no biological or legal relationship with a child have no standing to seek visitation. Reversing the district court's decision that a former domestic partner could assert a claim to visitation under the common law doctrine of in loco parentis, the court held that Utah's doctrine of in loco parentis does not independently grant standing to individuals to seek visitation after the in loco parentis relationship has ended.
The couple in the dispute had entered into a civil union in Vermont and, after one bore a child conceived through artificial insemination, they were both obtain co-guardianship of the child and raised the child together until their relationship dissolved two years later. The court emphasized the temporary nature of the in loco parentis doctrine, concluding that it may be terminated by either the legal parent, the parent standing in loco parentis, or the child. The court further refused to expand the doctrine to recognize a new doctrine of de-facto or psychological parent, finding that a legislative task beyond the competence or power of the judiciary and in conflict with legislative policy.
Chief Justice Durham dissented, emphasizing that there had been no legislative pronouncements at all on the issue of surrogate parent standing to seek visitation or custody and finding the extension of such a doctrine to be an appropriate exercise of the court's power to adapt the common law to changing social realities.
Jones v. Barlow, Utah (February 16, 2007)
Opinion on web (last visited February 26, 2007 bgf)
Friday, February 23, 2007
REGISTER NOW FOR THE FIRST-EVER JOINT HARVARD LAW SCHOOL (HLS) -- AMERICAN BAR ASSOCIATION (ABA) CONFERENCE
Harvard Law School's new Child Advocacy Program (CAP), together with the ABA Center on Children and the Law (CCL), are co-sponsoring a conference this April 13-15, at HLS: "Promoting Children's Interests: Preparation, Practice & Policy Reform"
REGISTRATION: Register for the conference at: <http://www.abanet.org/child/>
We recommend that you register for the conference SOON to ensure you gain admission, and also that you book your hotel rooms soon (we have a limited hotel block and the conference is being held on the weekend preceding the very popular April 16 Boston Marathon).
This conference is designed to build upon and significantly expand the National Conference on Children and Law which CCL has put on in past years. The program is targeted to a broad audience including those from the worlds of practice, policy reform, and academia. The conference should be of interest to all law teachers in the family and child law areas. For an excerpted version of the agenda which highlights some of the sessions, and associated presenters, most relevant to the law school community, see: <http://www.law.harvard.edu/academics/cap/conference/capschedule.php>
We would especially like to draw your attention to two workshop sessions on Friday (April 13) afternoon (A1 and B1) which are specially designed for law school faculty and administrators interested in expanding, modifying, or creating child law programs (including but not limited to clinics). Our hope is to stimulate a productive conversation about the pros and cons of different models, as well as to generate new ideas about the form such programs might take. We expect that this set of workshops, together with the rest of the conference offerings, will be useful for law schools with existing programs to consider ways in which we might modify or expand, and for law schools without such programs to consider whether they might want to start one, and if so which models look most promising.
LAW STUDENTS: The conference should be of interest to all students interested in child law, welfare, and policy issues. We are WAIVING the conference fee for students. However, all students must REGISTER for the conference, including the specific sessions they will be attending, to gain admission. There is a special section on the on-line registration form where students can note their status and bypass the payment section.
AREAS COVERED: Child welfare issues will be the focus (e.g., abuse and neglect, adoption, foster care) with some sessions on education, juvenile justice, youth at risk, and related family law issues.
To register: <http://www.abanet.org/child/>
Capital University Law School and the National Center for Adoption Law and Policy will host the first annual Works in Progress Conference on Children and Family Law on Friday, June 15, 2007. The Conference offers an opportunity for children and family law scholars to present their works-in-progress or recently submitted articles and to receive comments from their colleagues. In addition to presentations on works-in-progress, a few participants will have the opportunity to give short presentations on ideas for future scholarship that have not yet developed into a paper. While all participants are welcome to present, presentation is not required. If time does not permit all interested participants to present, presentations by junior faculty scholars will be given preference. For more information and to register for the conference as a participant or presenter, please visit the following link. http://www.law.capital.edu/adoption/wip/flyer.htm
Thursday, February 22, 2007
Solangel Maldonado, Recidivism and Paternal Engagement, 40 FAM. L.Q. 191 (2006). This article surveys social science and legal literature concerning relationships between incarcerated fathers and their children. The author concludes that stronger father-child relationships lead to decreased delinquency in children and lower rates of recidivism for fathers. Link to Article on Westlaw (last visited 2-21-07 NVS)
Michele A. Adams, Framing Contests in Child Custody Disputes: Parental Alienation Syndrome, Child abuse, Gender, and Fathers' Rights, 40 FAM. L.Q. 315 (2006). This article analyzes PAS from a social constructionist and framing perspective. The author focuses on two competing frames: abuse of a child by a noncustodial parent versus alienation of the child from a noncustodial parent. The author discusses a possible middle ground where parental alienation is viewed as a potential issue rather than a psychological disorder. Link to Article on Westlaw (last visited 2-21-07 NVS)
The International Society of Family Law North American Regional Conference will be held June 18-20, 2007 in Vancouver, British Columbia.
“MAKING FAMILY LAW: FACTS, VALUES, AND PRACTICALITIES”
When the facts are clear and legislative values uncontroversial, it is relatively easy to design workable, cost-effective legal standards. But family law almost invariably involves contested facts and controversial values. Conference papers should address these special problems in the development of legal standards to govern family relationships. International and comparative approaches are encouraged but not required. The conference theme is inclusive, and papers may explore contested values (for example, individual autonomy vs. relational community, parents’ rights vs. children’s rights), facts (for example, the nature of cohabitation, the benefits and harms associated with divorce) or practical issues (for example, the relative advantages of discretion vs. rules, dispute resolution methods) in the context of either private rights and obligations (custody, property division, support) or public regulation of the family.
Please send a one-page proposal to: Professor Margo Melli, University of Wisconsin Law School, 975 Bascom Mall, Madison, WI 53706, E-mail: [email protected] DEADLINE FOR PROPOSALS: April 1, 2007.
The deadline is nearing for Family Law Professors to submit their proposals for presentations at the Family and Juvenile Law Section of the 2008 AALS Annual Meeting (January 2-6, 2008, New York City). The Panel topic will be "The Moral (and Policy) Foundations of Family Law" - discussing the ideas that either are, or should be, foundational, either for family law as a whole, or for some significant sub-area within family law.
Those taking part must write a 2-5 page (double-spaced) abstract, summarizing the (15-20 minute) presentation you would give if selected. The abstract must related to the Panel topic, given above.
Abstracts are due by 5:00 pm (Central Time), February 28, 2007.
Because abstracts will be judged “blind,” the following process will be used. Those taking part will need to send TWO files by e-mail attachment to Prof. Janet Richards (Memphis) [email protected]
The first file will contain identifying information (name, law school affiliation, contact information, along with the title of the abstract); the second file will contain the title and the abstract itself – but with NO identifying information. Only the second file will be forwarded for review.
Selections will be made as soon as possible after the deadline passes.
The University of Akron School of Law announces a call for papers for its upcoming symposium on The New Face of Women’s Legal History, Friday, October 19, 2007, Arkron, Ohio .
This one-day symposium will bring together legal scholars and historians to focus on modern scholarship reviving and recreating the field of women’s legal history. The broad theme encompasses the diverse array of topics in the recent work on gender and legal history. The University of Akron Law Review anticipates publishing a special symposium edition of the journal. If you are conducting research in the field of women’s legal history and would be interested in presenting your research at the symposium or contributing to the symposium issue, please email an abstract and CV along with a cover letter to Professor Tracy Thomas ([email protected]). Priority will be given to submissions received before April 10, 2007.
Online registration will be forthcoming http://www.uakron.edu/law.
Tuesday, February 20, 2007
"About a dozen couples visited clerks’ offices in New Jersey on Monday, the first day on which people were allowed to submit applications for civil unions, which guarantee all the rights and benefits of heterosexual marriage. New Jersey is the third state to offer civil unions, following Vermont, which introduced them to rapt national attention in 2000, and Connecticut, which quietly followed suit in 2005.
Massachusetts is the only state in which same-sex couples can marry. California has a domestic partnership law that guarantees many of the rights of marriage.
A handful of couples in New Jersey were so eager to take advantage of the new law that they waited outside clerks’ offices until 12:01 on Monday, when the first civil unions could be processed. Among that group, some said the experience was bittersweet; activists had held out hope that New Jersey would follow Massachusetts as the second state to grant same-sex couples the right to marry." By Ellen Barry, N.Y. Times Link to Article (last visited 2-20-07 NVS)
"Adoptive parents invest more time and financial resources in their children than biological parents, according to a new national study challenging arguments that have been used to oppose same-sex marriage and gay adoption. The study, published in the new issue of the American Sociological Review, found that couples who adopt spend more money on their children and invest more time on such activities as reading to them, eating together and talking with them about their problems.
''One of the reasons adoptive parents invest more is that they really want children, and they go to extraordinary means to have them,'' Indiana University sociologist Brian Powell, one of the study's three co-authors, said in a telephone interview Monday.
''Adoptive parents face a culture where, to many other people, adoption is not real parenthood,'' Powell said. ''What they're trying to do is compensate. ... They recognize the barriers they face, and it sets the stage for them to be better parents.''
Powell and his colleagues examined data from 13,000 households with first-graders in the family. The data was part of a detailed survey called the Early Childhood Longitudinal Study, sponsored by the U.S. Department of Education and other agencies." AP, N.Y. Times Link to Article (last visited 2-20-07 NVS)
"Pakistan's ruling party introduced a bill on Tuesday aimed at outlawing the forced marriage of women and practices preventing them from inheriting property. President Pervez Musharraf has vowed to empower women as part of his vision of ``enlightened moderation'' for the predominantly Muslim country of 160 million people where women, particularly in poor, rural areas, face widespread discrimination and violence.
The Prevention of Anti-Women Practices Bill introduced in parliament on Tuesday is expected to be referred to a committee that will finalize a draft to be debated and voted upon later in the year. ``The credit for this goes to President Musharraf who is endeavouring to give due status to women in society,'' the head of the ruling Pakistan Muslim League, Chaudhry Shujaat Hussain, told the lower house National Assembly.
The bill seeks to end practices such as vani, a centuries-old tradition of marrying women off to settle disputes between families, and the practice of marrying women to the Koran, which deprives them of a share of family property, he said." Reuters, N.Y. Times Link to Article (last visited 2-20-07 NVS)
Thursday, February 15, 2007
The Iowa Supreme Court reviewed a property division in an unusual case involving a couple who, during their 10-year marriage, built up a business together with assets of over ten million dollars, but who kept all the business assets in wife's name to protect them from creditors. The trial court had ordered that wife be granted the business assets but that she make payments to her ex husband over a period of years, with each payment to become a judgment when due. The court granted husband an equitable lien on the company to secure these payments.
However, the Iowa Supreme Court found the trial court's approach to leave husband with too little protection. First, the court found that the trial court should have issued a judgement for the entire amount, with an allowance of periodic payments, so that a judgment lien would attach to the business's real property. Second, it found the trial court's refusal to assess interest on the judgment to be in error. Finally, it reversed the grant of the equitable lien, finding a combination of a judgment lien and a UCC lien to be the best combination of protections for the ex husband.
In re Keener, 2007 Iowa Sup. LEXIS 13 (February 9, 2007)
Opinion on web (last visited February 11, 2007 bgf)
Legislation is working its way through the Colorado legislature that would make it harder for Colorado to force people to pay child support to children DNA tests have proven aren't theirs. The text of the bill. See the CBS4Denver website for a news video on the bill.
According to the Kansas City Star, this week a bill was introduced into the MIssouri legislature allowing DNA evidence to disestablish paternity after the current one-year limitations period.
See this Time magazine article on the national movement to pass similar legislation.
(all links last visited February 15, 2007 bgf)