Family Law Prof Blog

Judge Delays Contoversial Abortion Survey

An Oklahoma judge has delayed a decision on the constitutionality of an Oklahoma law which would survey doctors performing abortions and then post facts relating to those abortions on a public website.

An Oklahoma judge Friday put off until Feb. 19 any decision about an anti-abortion law that critics have said is "like undressing a woman in public."

The law, which was to have gone into effect on Nov. 1, requires doctors performing abortions to ask the patient 37 questions -- from her age to her marital status and financial condition -- which would then be posted on a public website.

Supporters of the bill say the information is crucial to understanding why women have abortions. Opponents say the questions are invasive and the public posting of the answers could easily lead to women being identified in rural parts of the state, even though their names are not used.

Read the full story from ABC News here.

AC

Gift Giving Not Over Yet?

Now might be the best time for grandparents to give away parts of their estates, with the 45% estate tax lapsing soon and Congress’s lack of action.  However, Congress may impose a new estate tax that would apply retroactively to cover the gap period.  Nonetheless, some may choose to gamble and gift—speculating that no such retroactive tax will occur.  But, really, will Congress resist the temptation of an easy tax?

For further speculation, see here and here.

MR

 

Custody Battle Involving Quadriplegic Mother

A quadriplegic mother is fighting her ex-boyfriend in court to retain custody of their son. The ex-boyfriend claims she cannot be a competent mother because of her disability. It is a case that touches on important questions about the rights of the disabled.

Kaney O'Neill, 31, lost the use of her legs and much of the use of her arms 10 years ago when she fell from a balcony in Newport News, Va. Now, as she tries to raise her 5-month-old son, Aidan, she is locked in a court battle with her ex-boyfriend, David Trais, over custody rights.

That disability says little about ability to parent, said Tuleja, the disability advocate.

"Even if someone is helping a parent who has a disability, the parent can orchestrate so they remain central," she said, explaining that the child understands that the disabled parent is directing their upbringing. "It's the richest part of parenting…that psychological and emotional connection to the child."

While disability itself does not have much, if any, bearing on a parent's fitness, in O'Neill's case, other factors may be at work. O'Neill sustained her injuries when she was knocked off a balcony during Hurricane Floyd. The balcony was lower than regulations dictated, but she was found to be partially negligent, possibly owing to alcohol, according to the Virginia court ruling on her lawsuit against the housing company, meaning she could not collect damages from the housing company under Virginia law.

Experts say the incident itself does not bear on her ability to raise a child, or how a court will judge her.

"The fact that she was injured, perhaps doing something irresponsible, will weigh, but not greatly," said Caplan. "Courts can be relatively forgiving…if it's a single incident."

"She may have been in the past irresponsible in some way," said Allen. "Those kinds of things are way less extreme than things which parents are accused of every day which never lead to the loss of a child."

Read the full ABC News story here.

AC

Science Comes in Aid of Dating in Time For New Year's Eve

Before families are formed, there must be dating (sometimes unfortunately so).  Luckily, science can help us there too:

Striking the right balance between revealing too much and being too conservative in how much skin is on show has long been a dilemma for women when choosing the right outfit for a night out.

However, a study by experts at the University of Leeds has come to the rescue by calculating the exact proportion of the body that should be exposed for optimum allure.

Read about the optimal proportions here before going out this New Year's Eve. 

MR

Madoff Losses Not "Mutual Mistake" in Divorce Settlement

Business Week reports on an unsuccessful argument that a divorce settlement might be rescinded for mutual mistake relating to the Madoff scam.

A judge says a prominent New York City lawyer can't recover money he paid in a divorce agreement when he believed he and his ex-wife had millions of dollars invested with Bernard Madoff.

Steven Simkin says he gave Laura Blank $6.6 million as her share of marital assets in July 2006 after more than 30 years of marriage. The figure included $2.7 million that was half the value of Simkin's Madoff account.

But the account with Bernard L. Madoff Investment Securities was empty. Madoff later admitted cheating thousands of investors and was imprisoned.

A Manhattan Supreme Court justice ruled Blank didn't have to "shoulder her share" of the Madoff losses and threw out the case.

Read the story here.

AC

Hanna: "Rethinking Consent in a 'Big Love' Way"

Cheryl Hanna (Vermont Law School) has posted Rethinking Consent in a 'Big Love' Way, Michigan Journal of Gender & Law (forthcoming), on SSRN.  Here is the abstract:

This paper is a working draft of an article that will be published in the MIchigan Jornal of Gender and Law as part of their symposium Rhetoric & Relevance: An Investigation into the Present & Future of Feminist Legal Theory. In it, I explore the problem of categorical exclusions to the consent doctrine in private intimate relationships through the lens of the HBO series Big Love, which is about modern polygamy. There remains the normative question both after Lawrence v. Texas and in feminist legal theory of under what circumstances individuals should be able to consent to activity that takes place within the context of a private, intimate relationship. These tensions between individual autonomy and state interests are beautifully explored in Big Love. Drawing on themes presented in the series, this paper asks if there is any principled way to make the distinction among those relationships in which there is some physical or psychological harm inflicted and those in which the state has proscribed a relationship because of some moral or social harm it allegedly causes. There are four case studies presented to prompt readers to try to answer the question of when consent should be a defense to otherwise proscribed activity. I conclude that the future of feminist legal theory depends on its ability to remain ambivalent about the tensions presented in the consent doctrine as applied to contexts such as polygamy, prostitution, sadomasochistic sex, obscenity, and domestic violence. Big Love seeks to persuade us to accept ambivalence and to be open to changing our minds because of the complicated nature of women’s (and men’s) lives; feminist legal theory ought to persuade us to do the same.

MR

Guggenheim: "Texas Polygamy and Child Welfare"

Martin Guggenheim (NYU School of Law) has published "Texas Polygamy and Child Welfare," 46 Hous. L. Rev. 759-816 (2009).  The abstract from SSRN:

This article explains why the child welfare process was used in the 2008 San Angelo, Texas raid on the FLDS community which resulted in the removal of more than 400 children from their families. It argues that the criminal justice system, not the child welfare system, should be the preferred means by which state officials attempt to prevent the practice of polygamy. The criminal justice system contains many more time honored protections of civil liberties than the child welfare system. In addition, using the child welfare system contains one additional danger: the contamination and expansion of child welfare law to permit coercive intervention, authorizing state officials to remove children from families based on notions of morality. The article suggests that the ultimate danger of the San Angelo raid is that child welfare interventions will become too much about the (mis)behavior of parents, with a particular emphasis on conduct that is criminal or "immoral," and too little about what should always remain the central inquiry: whether children are in danger.

AC

Husband Intentionally Infects Wife with HIV

From Sky News:

An HIV-positive man has confessed to injecting his blood into his sleeping wife and infecting her with the virus that can cause Aids, reports have said.

It is believed the man wanted to give her the disease so she would start having sex with him again, New Zealand's Sunday Star-Times said.

Court documents detailed how the man, 35, twice pricked his 33-year-old wife with a sewing needle laced with his infected blood.

The husband is now facing jail time, probably without conjugal visits.  To read more, see here.

MR

 

Domestic Violence Peaks During Holidays

Unfortunately, the holiday season is not all cheer:

A recent study by researchers at the University of California at Berkeley and UC San Diego documented police calls about partner violence, taking note of particular holidays. They found a 22-percent increase on Thanksgiving; a 17-percent increase on Christmas; a 32-percent spike on New Year's Eve; and a 28-percent hike on the Fourth of July, among other holidays.

Read the full article here, and blog commentary here.

MR

VA Family Law Firm Sponsors Dogs for Christmas

Kudos to the Virginia family law firm of Shoun, Bach, Walinsky & Curran, P.C. for sponsoring, as a holiday gift, 132 homeless dogs at the Friends of Homeless Animals of Northern Virginia for 3 months while they await their permanent homes.  Animal shelters have been particularly suffering in this economy.  Read more here.

MR

AND HAPPY HOLIDAYS TO ALL!

MR

New Seinfeld Series to Give Advice to Squabbling Spouses

Marriage is a sacred institution between a man and a woman…and entertainers, athletes and comedians, beginning on March 14, when Marriage Ref premieres on NBC.  Tom Papa will host the new series from Jerry Seinfield. On it, a panel of showbiz and sports celebs will give advice to squabbling spouses.

“This isn’t a therapy show; it’s a comedy show,” Seinfeld says. “After nine years of marriage, I’ve discovered that the comedic potential of this subject is quite rich.”

Most husbands and wives fight more than hockey players, so it’s about time the sacred institution of marriage (actually an asylum for the matrimonially insane) hired officials to break up the brawls.

Source.

As a Seinfeld fan, I, for one, cannot wait!

AC

Christmas Family Photos Barred on California Beach

You probably won’t be receiving a Christmas family photo card from a particular beach in California this holiday season:

APTOS — Howard "Boots" McGhee and his family felt like they had an encounter with the Grinch when they tried to take a holiday card photo at Seacliff State Beach last weekend.

Friday, a State Parks ranger told McGhee and at least two other holiday card photographers they were breaking the law by shooting photos in front of the pier at the state beach without a permit. The ranger stopped short of ticketing the photographers, but McGhee, a longtime Seacliff resident and professional photographer who regularly shoots at area beaches, said the interaction left [him] and his relatives confused.

For grinches in cold, snowy places this holiday season, that’s probably for the best. 

Read the full article from MercuryNews.com here.

MR

Brazilian Custody Case Finally Resolved?

The latest on the case from CNN:

It looks like the Brazilian relatives of a 9-year-old boy, caught in an international custody battle with the child's father, will not file any further appeals after the Brazilian Supreme Court ruled against them, their attorney told CNN Wednesday.

The family is just looking for a peaceful handover of Sean Goldman to his father, attorney Sergio Tostes said, and plan on starting dialogue to allow the transfer to happen immediately.

The chief justice of the Brazilian Supreme Court ruled Tuesday in favor of David Goldman, who had been battling the family of the boy's deceased mother for custody. The ruling by Chief Justice Gilmar Mendes will reunite Sean with his father. Last week, a lower court unanimously upheld a decision ordering that Sean Goldman be returned to his father in New Jersey.

David Goldman arrived in Rio de Janeiro to reunite with his son, but one Supreme Court justice issued a stay, ordering Sean to remain with his Brazilian relatives until the high court could consider the case. Mendes' decision lifted the stay.

Read perhaps the last story (I say this optimistically) on this case here and our previous blog post on the case here.

MR

Turkheimer: "Forfeiture after Giles: the relevance of 'domestic violence context'"

Deborah Tuerkheimer (DePaul University College of Law) has published "Forfeiture after Giles: the relevance of 'domestic violence context'." 13 Lewis & Clark L. Rev. 711-731 (2009).  Here is the abstract from SSRN:

This contribution to Lewis and Clark's symposium issue on California v. Giles contemplates the future of domestic violence prosecution in a period of uncertainty. Giles, the United States Supreme Court’s most recent pronouncement impacting the prosecution of domestic violence, has exposed deep judicial ambivalence about the newly transformed Confrontation Clause. This Article endeavors to guide lower courts in the task of implementation and to chart a course for the evolution of prosecutorial treatment of battering, concluding that Giles represents a significant opportunity for those concerned about the constraints Crawford v. Washington and Davis v. Washington had seemed to place on the prosecution of abuse. For the first time, the Court has identified "the domestic violence context" as a relevant construct, thereby compelling lower courts to grapple with the particularities of violence between intimates. This is a remarkable shift in relatively short order, and it allows us to glimpse the possibility of a jurisprudence informed by the realities of battering.

AC

Slobogin & Fondacaro: "Juvenile Justice: The Fourth Option"

Christopher Slobogin (Vanderbilt University - School of Law) and Mark R. Fondacaro (University of Florida, Dept of Pysch and Levin College of Law) have posted 95 Juvenile Justice: The Fourth Option, Iowa L. Rev.__(2009), on SSRN.  Here is the abstract:

The current eclectic mix of solutions to the juvenile-crime problem is insufficiently conceptualized and too beholden to myths about youth, the crimes they commit, and effective means of responding to their problems. The dominant punitive approach to juvenile justice, modeled on the adult criminal justice system, either ignores or misapplies current knowledge about the causes of juvenile crime and the means of reducing it. But the rehabilitative vision that motivated the progenitors of the juvenile court errs in the other direction, by allowing the state to assert its police power even over those who are innocent of crime. The most popular compromise theory of juvenile justice - which claims that developmental differences between adolescents and adults make the former less blameworthy - is also misguided because it tends to de-emphasize crime-reducing interventions, overstate the degree to which adolescent responsibility is diminished, and play into the hands of those who would abolish the juvenile justice system, since it relies on the same metric - culpability - as the adult criminal justice system. This Article argues that, with some significant adjustments that take new knowledge about the psychological, social, and biological features of adolescence into account, the legal system should continue to maintain a separate juvenile court, but one that is single-mindedly focused on the prevention of criminal behavior rather than retributive punishment.

MR

Hendricks: “Pregnancy, Equality, and U.S. Constitutional Law”

Jennifer S. Hendricks has posted a book chapter entitled “Pregnancy, Equality, and U.S. Constitutional Law,” on SSRN.  Here is the abstract:

This chapter will be part of a collection on international feminist constitutionalism, forthcoming from Cambridge University Press. The chapter proposes a feminist theory of reproductive freedom grounded in U.S. Supreme Court precedent and applies the theory to abortion rights and to parental rights in the context of surrogacy agreements.

MR

Only the Lonely

From CNN:

New research suggests loneliness can actually travel from person to person, spreading up to three degrees of separation. That means if your neighbor’s cousin's friend is lonely, you may have a good chance of being lonely, too.

 However,

Loneliness spreads more quickly among friends than family, but this finding may be limited to older people, as the average age in the sample was 64 years old, the authors said. Cacioppo, though, said the pattern generally makes sense because the cost of leaving a friendship is less than cutting off a family member, so people are more likely to isolate themselves from friends than close relatives or spouses.

Read more about the study here.

MR

Byrn and Ives: "Which Came First the Parent or the Child?"

Mary Patricia Byrn and Jenni Vainik Ives have posted, ""Which Came First the Parent or the Child?" Rutgers Law Journal (forthcoming), on SSRN.  Here is the abstract:

From the moment a child is born, she is a juridical person endowed with constitutional rights. A child’s parents, however, do not become legal parents until a state statute grants them the fundamental right to raise one’s child. The state, therefore, exercises considerable power and discretion when it drafts the parentage statutes that determine who becomes a legal parent. This article asserts that the state, through its parens patriae power, has a duty to act as an agent for children when it drafts its parentage statutes. In particular, the state must adopt parentage statutes that satisfy children’s fundamental right to legal parents at birth. This right derives from the Substantive Due Process privacy right to form intimate, familial relationships, as well as the right to intimate association and ensures that a child may develop the parent-child relationships necessary to preserve her liberty, protect her rights, and define her identity.

To guarantee children’s fundamental right to legal parents at birth, states must reform their current parentage statutes. This article argues that states must first replace all presumptions in parentage statutes with clear determinations of legal parentage at birth. Next, states must grant legal parentage of children conceived through sexual reproduction to the child’s genetic parents. For children conceived through assisted reproductive technology, states must grant legal parentage to the intended parents. By adopting statutes that assign children parents from these respective groups, states ensure that the persons who are most likely to act in the child’s best interest become the child’s legal parents. In so doing, the state fulfills its parens patriae obligation to guarantee every child’s fundamental right to legal parents at birth.

MR

20-Year-Old Son’s Incarceration Not Full Emancipating Event in Illinois

So held an Illinois Court of Appeals, determining that a 20-year-old son’s  incarceration would not terminate his father’s obligation to contribute to his educational expenses.

The case is Baumgartner v. Baumgartner, No. No. 109047 (Ill. App. Ct. 2009).  See here for the opinion.

MR