November 20, 2008
Same-Sex Marriage - California Prop 8
The California proposition amending the state constitution to define marriage as limited to one man and one woman will be heard by the California Supreme Court. I have discussed this issue on the ConLawProf blog here.
Responsibility for the Elderly
The subject of so-called "filial responsibility" laws is a fascinating one. It is always sure to provoke an interesting class discussion. A few casebooks in Family Law include a case; most include a note discussing the issue and citing one or two articles.
The New York Times has an article today here by Jane Gross. Gross conveniently included a discussion of recent articles as well as a pdf file with citations of the current state laws; she writes:
So it fascinated me to learn that in 30 states, (PDF of 30-state list) adult children are legally responsible, at least on paper, to pay for necessities like food, clothing, shelter and medical attention for indigent parents. These statutes, known as filial responsibility laws, are modeled on the Elizabethan Poor Laws of 1601, which made blood relatives the primary source of support for family members, the elderly included. Public assistance was available only as a last resort.
Law Prof Katherine Pearson of Penn State Dickinson School of Law provides some of her recent articles on filial responsibility on her faculty webpage here. She also has list of the filial responsibility statutes, helpfully providing hyperlinks to the statutes as well as citations to cases.
November 19, 2008
Pres-Elect Obama & Family Law
The Obama Transition has been releasing materials on its change.gov website, many of which are important for Family Law Profs.
Under "Civil Rights," the portion addressing "Support for the LGBT Community," includes proposals relating to same-sex relationships:
- Support Full Civil Unions and Federal Rights for LGBT Couples: Barack Obama supports full civil unions that give same-sex couples legal rights and privileges equal to those of married couples. Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. These rights and benefits include the right to assist a loved one in times of emergency, the right to equal health insurance and other employment benefits, and property rights.
- Oppose a Constitutional Ban on Same-Sex Marriage:
Barack Obama voted against the Federal Marriage Amendment in 2006 which
would have defined marriage as between a man and a woman and prevented
judicial extension of marriage-like rights to same-sex or other
November 18, 2008
Divorce Actions by Guardians of Incompetents
The Dallas Morning News reported yesterday a case in which a son is seeking a guardianship for his 87-year-old father and to bring a divorce action on his behalf. The news report provides plenty of details on the facts of the case and would make a fine case study of divorce dynamics on its own, but it is especially useful for calling student attention to the increasing intersections of elder law and divorce law.
For a summary of the specific legal issues raised by this case, see the comment by UMKC Law Student Diane Snow Mills, "But I Love What's-His-Name": Inherent Dangers in the Changing Role of the Guardian in Divorce Actions on Behalf of Incompetents, 16 J. Am. Acad. Matrimonial Law. 527 (2000). That article reviews the state laws on the issue and notes that, at the time of the article, only eight states had statutes or rules which specifically provided for divorce actions brought by the guardian of an incompetent ward. In the remainder of the states, "the overwhelming majority of jurisdictions with no express statutory authority had held that the decision of whether or not to bring a dissolution action was such a highly personal one and could not be made by anyone other than the aggrieved spouse." The article does note a minority trend in the states to increasingly allow these actions and reviews the legal issues.
Recent cases on the subject have reflected this increasing willingness to allow these actions. In August of this year, the Ohio Court of Appeals held that a guardian could bring a divorce action on behalf of an incompetent ward. The court distinguished prior precedent that had prohibited such actions on the basis that those cases predated the adoption of the current Ohio Rules of Civil Procedure, which allow guardians "to sue or defend" on behalf of a ward. Broach v. Broach, 177 Ohio App.3d 664, 2008-Ohio-4132. (opinion online) Likewise, last month the New Hampshire Supreme Court issued a decision in a case raising a related issue: whether a guardian could continue an action for divorce that a husband had brought before he became incapacitated by stroke. While the court noted that the majority rule continues to be that guardians may not initiate divorces on behalf of their incompetent wards, the case before it was exceptional in that the intent of the ward was clear given his action of bringing the divorce petition before he had become incapacitated. In the Matter of John Salesky and Jacqueline Salesky, New Hampshire Supreme Court, October 8, 2008 (opinion online)(last visited November 18, 2008 bgf).