September 13, 2008
DC Foster Care Alleged In Contempt of Federal Court Order
Plaintiffs in LaShawn A. v. Fenty, the long-running federal court class-action case involving the District of Columbia's Child and Family Services Agency, have filed a contempt motion, alleging widespread violations of the Court's 1993 modified Final Order and 2007 Amended Implementation Plan. Read the Motion and other case documents here and the District's opposition to the motion here: Download d_c_response_to_contempt_motion.pdf (last visited MIF 09-13-08)
September 12, 2008
Red State/ Blue State Conference
The University of Missouri Kansas City School of Law is hosting “Red State v. Blue State: The Judicial Role in an Era of Partisanship” and family law is taking center stage in the presentations. The program has been put together by family law Professor June Carbone, the Edward A. Smith/Missouri Chair of Law, the Constitution and Society at the UMKC School of Law. “We have planned the conference to drive home the point that partisan divisions affect the gamut of cases, from high profile cases on abortion to the more numerous family law disputes on custody and cohabitation,” said Carbone, who is coordinating the conference.
Professor Suzanne Reynolds of Wake Forest University School of Law and candidate for the North Carolina Supreme Court, presented the keynote speech. Reynolds drafted statutes that modernized alimony and adoption law, and she co-founded a domestic violence program that the American Bar Association recognized for providing legal assistance to the poor. Her keynote called for more research on the role of public financing of judicial elections in preserving judicial independence.
The morning panel, moderated by Professor Mary Kay Kisthardt of the University of Missouri Kansas City, began with a presentation by Professor Vivian Hamilton, of William and Mary Marshall-Wythe School of Law, who framed the divergent values in family law as having their roots in biblical naturalism and liberal individualism. Her thesis was that each of these frames were flawed frameworks for family law decisionmaking. Professors Naomi Cahn of George Washington University Law School and June Carbone Linda C. McClain then presented their research on Red Families/Blue Families. They describe the "red family" framework in which the unity of sex, marriage and procreation is central and the "blue family" framework which supports deferred childbearing and diverse family forms. Their article argues that "the moral and symbolic conflicts between the two systems underlie the intensity of the increasing partisanship in U.S. politics which, in turn, may undermine the legitimacy of the judicial role. Cultural anxiety about changing family patterns combined with the strategic exploitation of these concerns for partisan advantage makes family issues an increasingly salient part of the political landscape. This poses challenges to the judicial role in resolving not only hot button issues such as abortion, but more prosaic individual family law cases." Finally Professor Linda C. McCain, professor at the Boston University School of Law contrasted the Carbone/Cahn theory with that of Richard Dworkin in his new book "Is Democracy Possible Here?" and found traces of both theories in the recent California Supreme Court decision finding prohibition of same-sex marriage unconstitutional. Your blogger Barb Glesner Fines provided commentary on the panel in terms of question about how the ideas presented in the program impacted family law teaching.
Case Law Development: Florida's "Homosexual" Adoption Ban
A Florida Circuit Court judge in Key West has allowed a gay man to adopt a child and has declared unconstitutional a portion of Florida Statute section 63.042 that provides "No person eligible to adopt under this statute may adopt if that person is a homosexual."
That's 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).
Judge David Audlin's 67 page opinion in In the Matter of the Adoption of John Doe is available as a pdf file here.
RR (September 12, 2008).
September 10, 2008
This is news?: Money Matters in Marriage
From the New York Times (the financial section) is this insight:
"Today, while most of us marry for romantic reasons, marriage at its core is still a financial union."
The link to the article is here.
In an article last month, the NYT revealed that health benefits can inspire marriage or divorce:
"More than romance, the couple readily acknowledge, it is [his] Blue Cross/Blue Shield HMO policy that is driving their rush to the altar."
The link to the article is here.
(RR last visited September 10, 2008).
September 9, 2008
Missouri Supreme Court Approves Collaborative Law Practice
The Missouri Supreme Court recently issued a formal ethics opinion approving collaborative law practice. Missouri joins the majority of states having addressed the issue. The formal opinion (one of only six issued since 1996) concluded that, as a type of limited scope representation, collaborative practice requires informed consent by the clients. On the issue of conflict of interest between attorney and client, the court concluded that the tension between the attorney's interests in continuing in a case and the client's interest in abandoning the collaborative process is little different from other situations in which an attorney must choose to put his or her client's interest first.
The court concluded, "The potential that individual attorneys may violate the duty of loyalty, from time to time, does not make the practice generally unethical, as long it is reasonable to believe that the vast majority of attorneys will fulfill their ethical obligations. In the context of collaborative law, the tension between the interests is not unreasonable."
Read the Missouri Formal Opinion 124 online (last visited September 9, 2009 bgf)
For an article summarizing the ethical issues and positions on collaborative law practice, see Barbara Glesner Fines, The Ethics of Collaborative Lawyering, Journal of the American Academy of Matrimonial Lawyers, Vol. 21, p. 141, 2008 Available online at SSRN (last visited September 10, bgf)