Monday, October 27, 2008
Family Law Prof Blog previously drew your attention to an interesting op-ed by two Family Law Prof colleagues, June Carbone of University of Missouri-Kansas City and Naomi Cahn of George Washington University, in STLtoday.com, from St. Louis. (September 5, 2008).
Now The New Yorker's November 3, 2008 issue features Margaret Talbot's article, Red Sex, Blue Sex: Why do so many evangelical teen-agers become pregnant, quoting from Naomi Cahn and June Carbone. Talbot writes:
Two family-law scholars, Naomi Cahn, of George Washington University, and June Carbone, of the University of Missouri at Kansas City, are writing a book on the subject, and they argue that “red families” and “blue families” are “living different lives, with different moral imperatives.” (They emphasize that the Republican-Democrat divide is less important than the higher concentration of “moral-values voters” in red states.) In 2004, the states with the highest divorce rates were Nevada, Arkansas, Wyoming, Idaho, and West Virginia (all red states in the 2004 election); those with the lowest were Illinois, Massachusetts, Iowa, Minnesota, and New Jersey. The highest teen-pregnancy rates were in Nevada, Arizona, Mississippi, New Mexico, and Texas (all red); the lowest were in North Dakota, Vermont, New Hampshire, Minnesota, and Maine (blue except for North Dakota). “The ‘blue states’ of the Northeast and Mid-Atlantic have lower teen birthrates, higher use of abortion, and lower percentages of teen births within marriage,” Cahn and Carbone observe. They also note that people start families earlier in red states—in part because they are more inclined to deal with an unplanned pregnancy by marrying rather than by seeking an abortion.
It's great to see Family Law Profs being part of this important conversation!
Friday, October 24, 2008
"Multiple Families, Multiple Goals, Multiple Failures,"
32 Harvard Journal of Law and Gender ____ (2009).
The abstract posted on ssrn provides:
Current child support laws are based on false assumptions about families that fail to reflect family complexity and the realities of parenting. As a result, the federal goals of child support laws are not met. New federal child support goals should be centered on the needs of poor families and multiple families and should consider more of the resources available to the families.
Multiple families are families where at least one existing parent has a child with a different partner. Federal child support laws ignore the way that children in multiple families compete for the limited resources of their parents. States lack guidance about how to choose between the two policy ways to allocate child support among families, "first family first" or "equalization."
This Article argues that the federal government should provide guidance to the states in answering the question of who bears the cost of subsequent families; this article proposes a new theory of child support, "limited equalization," which makes an explicit policy choice in favor of existing families.
Limited equalization includes five new child support goals: (1) an explicit policy choice about supporting multiple families giving a preference to existing families; (2) attention to the demographics of the families that need child support; (3) an expanded definition of parenting and the duty of support; (4) attention to poverty prevention; and (5) attention to gender equality. Limited equalization re-envisions the goals of child support and provides a mechanism to examine all of the circumstances and realities of the families in calculating child support awards. This major structural change attempts to address the complexities of child support, particularly in multiple families, while giving preference to existing families.
Monday, October 20, 2008
In a new report from the Pew Internet and American Life Project, the authors focused on families and found:
The internet and cell phones have become central components of modern family life. Among all household types, the traditional nuclear family has the highest rate of technology usage and ownership.
A national survey has found that households with a married couple and minor children are more likely than other household types -- such as single adults, homes with unrelated adults, or couples without children to have cell phones and use the internet.
The survey shows that these high rates of technology ownership affect family life. In particular, cell phones allow family members to stay more regularly in touch even when they are not physically together. Moreover, many members of married-with-children households view material online together.
People in families may "go their separate ways," the report says, but technology allows them to "stay connected."
The 44 page report is here as a pdf.
Nebraska's "safe-haven" law which allows parents to abandon children at hospitals without being prosecuted has been garnering lots of news. The reason? While other states have similar laws, other states also have an age-limit. Nebraska's law does not. So parents can abandon their teenagers - no need for a "person in need of supervision" or other proceeding.
Legislators are supposedly going to close the "loophole."
Monday, October 13, 2008
This call for papers seeks submissions for the University of Baltimore School of Law's Second Annual Feminist Legal Theory Conference, "Applied Feminism: How Feminist Legal Theory is Changing the Law." The conference will be held at the University of Baltimore on Friday, March 6, 2009. The conference will bring together law students, legal academics, practitioners and activists to explore the concrete ways in which feminist legal theory is (or is not) changing the law.
This conference will look at discrete areas of the law and ask how feminist legal theory operates or could operate to expand existing law, create new law, or combat contractions in the law. This conference will address these issues from the perspectives of activists, practitioners and academics. The conference will provide an opportunity for participants and audience members to exchange ideas about the current state of feminist legal theory by looking at how those theories are being actualized in practice and in specific areas of the law. From the conference, we hope to further the discourse about the future of feminist legal theory and its practical applications to the law. In addition, the conference is designed to provide presenters with the opportunity to gain extensive feedback on their papers.
The format of the papers is flexible in order to encourage academics, law students and practitioners to participate. Papers should address the themes discussed above and could focus on the following subject areas: sex, sexuality and gender; education; family law; employment law; poverty and welfare law; civil rights law; bioethics; immigration; international human rights; reproductive justice; criminal law; and women and politics. We encourage papers that explore the intersectionality of gender, race, ethnicity, sexual orientation, disability, class, and/or age.
Abstracts for the papers should be sent by October 17, 2008 to Leigh Goodmark. Abstracts should be no longer than one page. Abstracts for the papers selected to be presented at the conference will be posted on the website and distributed to all presenters and attendees.
Deadline for Paper Submissions
Working drafts of papers are due no later than February 13, 2009. The working drafts will be posted on the conference website to be shared with other participants and attendees. Materials from last year's conference can be viewed on UB's website. Finally, please note that a limited amount of money may be available to presenters for travel expenses. (last viewed by MIF 10-13-2008)
An Ohio newspaper is reporting a 15 year old girl who may be adjudicated a sex offender and who has been charged with illegal use of a minor in nudity-oriented material, a second-degree felony; and possession of criminal tools, a fifth-degree felony. Her acts? Using her cell phone to send nude photos of herself to other teenagers. The story is here.
(Thanks Feminist Philosophers blog!)
Friday, October 10, 2008
The Connecticut Supreme Court has just released its opinion in the state same-sex marriage case, Kerrigan v. Commissioner of Public Health, SC 17716 (October 10, 2008), with three dissenting opinions.
The Court held the state's opposite-sex marriage requirement UNCONSTITUTIONAL under its state constitutional equal protection clause applying intermediate scrutiny.
Wednesday, October 8, 2008
According to LawProf Art Leonard:
New York County Supreme Court Justice Harold B. Beeler has allowed NY Court of Appeals Chief Judge Judith Kaye's dissent in the 1991 case of Alison D. v. Virginia M. To guide his steps in ruling that a woman should have a hearing to attempt to establish that she is a “de facto parent” of the child born to her former same-sex domestic partner, who was also her New York City registered domestic partner and her Vermont civil union partner. Debra H. v. Janice R., No. 106569/080.
Professor Leonard's discussion of the case can be found at his blog, Leonard Link, here.
Tuesday, October 7, 2008
A press release from the CENTER FOR GENDER & REFUGEE STUDIES at UC-Hastings College of Law entitled " New Ruling by Attorney General Mukasey May Endanger Rights of Women Asylum Seekers."
In a move that could change the course of protection of women asylum seekers across the country, Attorney General Michael Mukasey certified the case of Guatemalan asylum seeker, Matter of R-A- , to himself, overruling the decisions of two prior Attorneys General, Janet Reno and John Ashcroft.
The case involves the claim for asylum of Rodi Alvarado, who fled Guatemala after suffering more than a decade of brutal domestic violence in a situation where neither the police nor the courts responded to her pleas for protection.
According to Professor Karen Musalo, Ms. Alvarado’s attorney and director of the Center for Gender & Refugee Studies at U.C. Hastings, the case has been on hold since 2001. “Though we are glad to see some movement in the case, I am worried that that the current Attorney General is less sympathetic than his predecessors to the protection of women asylum seekers who flee brutal forms of persecution in countries where their governments will not protect them.”
Musalo explained that domestic violence is recognized as a legitimate basis for refugee protection by the United Nations High Commissioner for Refugees, as well as by countries around the world – including Canada, the United Kingdom, Australia and New Zealand; however its acceptance in the U.S. has been controversial.
Matter of R-A- has a convoluted legal history. In 1996 Ms. Alvarado was granted asylum by an immigration judge in San Francisco. In 1999 the Board of Immigration Appeals (BIA), the highest immigration tribunal in the country, reversed her grant of asylum and ordered her back to Guatemala. This decision mobilized thousands of women’s rights advocates, who successfully persuaded then Attorney General Reno to intervene. In response, A.G. Reno vacated the BIA’s decision in January 2001, and ordered the BIA to reconsider the case once regulations the Justice Department had proposed in 2000 were finalized.
In 2004 Attorney General John Ashcroft took jurisdiction over the case, and ordered lawyers for Ms. Alvarado and the Department of Homeland Security (DHS) to brief the case. Though the DHS itself recommended that Ms. Alvarado be granted asylum, without explanation, Attorney General Ashcroft did not rule on the case but sent it back to the BIA with the same order that his predecessor Janet Reno had – that the BIA reconsider the case once the regulations proposed in 2000 were issued as final. To this date, the proposed regulations have not been issued in final form.
In a surprise move on September 25, Attorney General Mukasey certified Matter of R-A- to himself, and issued a decision ordering the BIA to reconsider it, removing the requirement that the BIA await the issuance of proposed regulations. This means that the BIA can immediately begin to consider this decision, as well as many others that had been on hold waiting a BIA decision in Matter of R-A-.
Professor Musalo expressed concern about the Attorney General’s decision to eliminate the requirement that Matter of R-A- be decided under the authority of the proposed – but not yet finalized – regulations. “The proposed regulations were generally seen as a positive legal development, which recognized claims such as Ms. Alvarado’s,” Musalo explained.
The release is available here as a pdf.
RR (Thanks to Nate Treadwell for this lead).
Arkansas judges - - - well, a panel of 13 retired judges including retired justices from the state's highest court - - - said they are opposed to a ballot measure banning unmarried persons from becoming foster or adoptive parents.
The news report by Andrew DeMillo in Arkansas' Baxter Bulletin.com is here.
Monday, October 6, 2008
Polygamy is a "hot topic" in family law scholarship (as well as in the popular media). A few great looking articles with their SSRN abstracts:
Abstract: Legal doctrines banning polygamy grew out of nineteenth century Americans' view that Mormons betrayed the nation by engaging in conduct associated with people of color. This article reveals the racial underpinnings of polygamy law by examining cartoons and other antipolygamy rhetoric of the time to demonstrate Sir Henry Maine's famous observation that the move in progressive societies is "from status to contract." It frames antipolygamists' contentions as a visceral defense of racial and sexual status in the face of encroaching contractual thinking. Polygamy, they reasoned, was "natural" for people of color but so "unnatural" for whites as to produce a new, degenerate race, licentious and submissive to despotism. The article suggests that the tension between status and contract, together with anthropologist Edward Said's concept of Orientalism, bridge the seemingly separate issues of Mormon polygamy and racial inferiority. In particular, Orientalism explains how the nation deprived overwhelmingly white Mormons of citizenship rights such as voting on grounds of racial inferiority.
"Polygamists Out of the Closet: Statutory Prohibitions Against Polygamy are Unconstitutional Under the Free Exercise Clause as Currently Interpreted"
KEITH SEALING, University of Louisville Brandeis School of Law
Abstract: The Romer v. Evans colloquy between Justices Kennedy and Scalia over the applicability of the nineteenth century polygamy cases to the more current debate over gay rights and same-sex marriages was of more than academic interest to the estimated 25,000 to 50,000 Fundamentalist Mormon practitioners of polygamy, as well as the nearly 1,000 Christian polygamists, and Islamic and African practitioners of polygamy. The degree to which divergent religious practices will be accommodated is of increasing importance in a nation where the variety of religions is changing and expanding from the once overwhelmingly Protestant Christian colonial era. Part I of this Article first discusses at the Romer v. Evans colloquy. Part II briefly explores the history of the mainstream Mormon Church including its adoption and later repudiation of polygamy. Part II also examines non-Mormon polygamy. Part III considers the scriptural basis for polygamy. Part IV analyzes four nineteenth century cases that still apparently stand as anti-polygamy precedent. Part V explores modern Free Exercise Clause jurisprudence and legislation. Part VI argues that the Free Exercise Clause protects religiously motivated polygamy for two separate but interrelated reasons. First, because marriage is a fundamental right, the situation presents a hybrid claim of interference with a fundamental right as well as a Free Exercise claim. Second, under Church of the Lukumi Babalu Aye v. City of Hialeah, the prohibitions are not of general applicability but rather are aimed at a specific religious practice because they are born of antipathy to the underlying religion.
PENELOPE ANDREWS, Valparaiso University School of Law
Abstract: This Comment contextualizes the issue of polygamous marriages within the South African constitutional paradigm, one committed unequivocally to the principle of equality. This Comment analyzes how South African law, European in origin, had to incorporate the laws and institutions of indigenous communities within the national legal framework, as part of the overall transformative legal project underway in the country since 1994. By focusing on the Recognition of Customary Marriages Act, this Comment examines such incorporation, while questioning its effect on the overall project of constitutionalism, human rights, and equality.
Sunday, October 5, 2008
Saturday, October 4, 2008
According to the Washington Blade, attorneys for both sides call it the first same-sex parental rights trial in Montana:
A district judge on Monday ruled in favor of a Turah woman who sought parental rights to children adopted by her former same-sex partner. Michelle Kulstad sought joint custody of two children - an 8-year-old boy and a 5-year-old girl - adopted by Barbara Maniaci. "To discriminate further against Ms. Kulstad because of her sexual preference in this day and age is no different than telling a person to go to the back of the bus because of her skin color," Judge Ed McLean wrote. . . . McLean said Kulstad was a legal parent, even though Maniaci adopted the two children - the boy in 2004 and the girl in 2006. The judge also ruled that Kulstad must receive joint decision-making authority in the children's lives, including their "education, activities, health care and spiritual upbringing."
Link to full story in Washington Blade here.
(RR last visited October 4, 2008)
Thursday, October 2, 2008
Florida's "homosexual" adoption ban, as codified in Florida Statute section 63.042, providing "No person eligible to adopt under this statute may adopt if that person is a homosexual," is again the subject of litigation.
This time, it's a hearing in Miami in which a gay male couple is seeking to adopt two children who have been in their custody since 2004. The law guardian supports the adoption. Despite the constitutional challenge to the statute, however, it seems the hearing is closed to the press and public since it involves adoption.
The Miami Herald story is here. (A big thanks to Ricardo Pla for this lead).
Previous history of the Florida adoption ban includes a Key West judge holding the ban unconstitutional, discussed on Family Law Blog on September 12, 2008. And it is the same statutory provision that was upheld against
constitutional challenge by the Eleventh Circuit Court of Appeals in Lofton v. Secretary of Dept. of Children and Family Services, 358
F.3d 804 (11th Cir. 2004), with the en banc Eleventh Circuit declining
to reconsider the opinion, with concurring and dissenting opinions in Lofton v. Secretary of Dept. of Children and Family Services, 377 F.3d 1275 (11th Cir. 2004).
RR (October 2, 2008).