November 28, 2009
Strasser: "You Take the Embryos But I Get the House (and the Business): Recent Trends in Awards Involving Embryos Upon Divorce"
Mark Strasser (Capital University Law School) has published "You Take the Embryos But I Get the House (and the Business): Recent Trends in Awards Involving Embryos Upon Divorce," 57 Buffalo L. Rev. 1159 (2009). An excerpt:
More and more couples are delaying starting a family. Because fertility declines with age, delaying childbirth increases the likelihood that couples will have to make use of assisted reproductive technologies such as in vitro fertilization (“IVF') to fulfill their hopes of having children biologically related to at least one of them. As might be expected in a country with a relatively high divorce rate, the increased use of IVF has led and will continue to lead to more and more couples having to decide what to do with remaining frozen embryos upon dissolution of their marriages.While some divorcing couples have little or no difficulty in deciding who should control the disposition of their cryogenically preserved embryos, others must rely on the courts to determine who will have final say over how or whether those embryos will be used. State courts have suggested a variety of ways to resolve such conflicts, ranging from enforcement of prior agreements to balancing the needs and desires of the parties to requiring contemporaneous consent before implantation can take place. Regrettably, because the courts analyzing these issues tend not to give adequate weight to how related family law issues are resolved and because the courts have not adequately considered some of the practical implications of their positions, both the reasoning and the results in these cases are all too often anomalous.Part I of this article discusses Davis v. Davis and Kass v. Kass, in which the highest courts of Tennessee and New York respectively stated that initial agreements regarding the disposition of frozen embryos are enforceable. These cases illustrate the possible heartbreak that can be caused either when couples fail to make agreements regarding the disposition of their frozen embryos or when they make agreements without carefully considering the possible difficulties that might have to be confronted in the future. Part II discusses some of the subsequent decisions in which state courts have made clear that frozen embryos cannot be used if one of the progenitors objects, initial agreement to the contrary notwithstanding. These decisions not only reflect a preference against implantation but also create the opportunity to game the system at one of the worst possible times. Part III discusses two recent intermediate appellate decisions in which the courts seem to revert to the earlier Davis-Kass model whereby initial agreements are enforceable. The Article concludes that while the judicial enforcement of initial IVF agreements has its own difficulties, these pale in comparison to the difficulties posed by some of the competing approaches.
The abstract may also be viewed from SSRN here.
November 27, 2009
A Child Custody Breathalyzer?
The Wisconsin Law Journal reports on a movement to bring the Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet, used in many criminal cases, into family court to provide evidence pertaining to allegations of alcohol abuse.
Read the full story here.
Probert: "Cohabitation: Current Legal Solutions"
Rebecca Probert (University of Warwick - School of Law) has posted Cohabitation: Current Legal Solutions, 316 Current Legal Problems__(forthcoming), on SSRN. Here is the abstract:
paper considers the arguments that have been advanced to justify giving
cohabitants the same rights as married couples, and suggests a number
of reasons for caution: first, the fact that these are uncharted
waters, given the relative novelty of cohabitation as a family form;
secondly, the evidence that suggests that a ‘functional’ approach may
actually justify rules privileging marriage; and, thirdly, the
indications that the law may indeed play a role in individual
decisions. It then goes on to review recent developments in the areas
of contract, property and family law and to re-evaluate their potential
to meet the needs of cohabiting couples, viewed in the light of the
demographic background. It concludes by advocating incremental change
combined with a more wide-ranging review of the legal treatment of
marriage and cohabitation.
November 26, 2009
November 25, 2009
Delaying Divorce During Recession
The Washington Times reports on the growing phenomenon of decisions to delay divorce until the recession ends.
In the reality of this recession, even couples who both want a divorce can get stuck in a dead marriage.
Take Sheryl Schelin of Myrtle Beach, S.C. She and her estranged husband wanted to get a divorce two years ago but because of financially tough times that included job loss, they couldn't afford to maintain separate residences — a prerequisite to file for divorce in that state, she says.
So, Ms. Schelin now lives with the couple's 10-year-old daughter and her estranged husband lives with his new girlfriend and neither can completely move on emotionally.
"It's totally draining," she says, adding it feels like she's in limbo, neither going backward or forward. "I want my maiden name back, but that's not going to happen until the divorce goes through."
Which will be next summer at the earliest, she says.
So, in the end, can anything good come out of this temporary drop in divorce rates? A permanent reduction, perhaps?
Read the full story here.
Braithwaite, Ivec, & Harris: "Seeking to Clarify Child Protection’s Regulatory Principles"
Valerie Braithwaite (Australian National University), Mary Ivec, and Nathan Harris (Australian National University) have posted Seeking to Clarify Child Protection’s Regulatory Principles, Communities, Children and Families Australia (2009), on SSRN. Here is the abstract:
protection systems are expected to scrutinize the care offered to
children and to coordinate the provision of improved quality of care.
They are under stress in many developed countries with burgeoning
caseloads and a mixture of positive and negative outcomes. Because
child protection systems seek to change the course of parenting, they
can be thought of as highly formalised regulatory systems that cut
across one of our most entrenched informal systems, how parents raise
children. This paper asks whether the stress experienced by child
protection workers, support agencies and families alike is associated
in part with failures to satisfactorily address three basic regulatory
principles: identifying the purposes of the intervention; justifying
the intervention in a way that is respectful of broader principles of
democratic governance; and understanding how the informal regulatory
system intersects with the formal child protection system. Child
protection interventions are plagued by multiple purposes that are not
necessarily compatible; non-transparent processes; and high risk of
November 24, 2009
New York Court Rejects "Social Abandonment" as Ground for Divorce
A New York court of appeals has rejected a wife's claim for divorce on grounds of "constructive abandonment" on grounds that "the husband refused to engage in social interaction with the wife by refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and the wife's birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife's belongings from the marital bedroom, and by otherwise ignoring her." Such "social abandonment," the court held, does not rise to the level of constructive abandonment, which New York courts have held requires constant refusal to engage in sexual relations despite repeated requests.
The opinion details the history of constructive abandonment, and is a very interesting read. See it in full here.
Love and Marriage Go Together Like a Horse and Carriage
Leah Ward Sears—retired chief justice of the Georgia Supreme Court, partner at the Atlanta office of Schiff Hardin, William Thomas Sears Distinguished Fellow in Family Law at the Institute for American Values, and visiting professor on family law issues at the University of Georgia School of Law—has published an interesting editorial supporting marriage in our culture and society, available here. Some advice:
As a child grows up, the guideposts should be: finish school; become a productive citizen; marry a person you want to spend your life with; and, if you want, have children. In that order.
See another one of her editorials on marriage here.
November 23, 2009
Reality Adoption Show Premiering Tonight
ABC begins a run of a show called "Find My Family" tonight, which is a reality show centered around adoption. Members of the adoptive community are nervous, and I suppose we'll see tonight whether such a show can be done in good taste.
New York Times Offers an Interesting Series of Articles on Finances and Marriage and Divorce
For links to these articles, see
Child Advertised for Adoption on Craigslist
Is it a scam, or an anxious young woman seeking a home for her baby?
That's the question Federal Way police are trying to answer as they trace the person who posted an ad on Craigslist offering an unborn child for adoption.
"Maybe she's just ignorant of the law, and we can point her in the right direction," police spokesman Raymond Bunk said.
The poster described herself as 22 years old and 5 months pregnant. She said she was looking for a wealthy couple to adopt the baby and pay her medical expenses.
Independent adoptions are legal in the state, and so is the practice of adoptive parents paying the birth mother's expenses. But under state law, only licensed agencies or the Department of Social and Health Services can advertise a child for adoption.
Read the Seattle Times story here.
No Transferred Negligence Between Spouses in Illinois
That was the determination of the Illinois Supreme Court, which denied that the spousal relationship was a special one, akin to that of mother and fetus, for the purpose of tort liability based on a theory of transferred negligence.
See Tedrick v. Community Resource Center, Inc., 2009 WL
November 22, 2009
Grandparent's Dead Hand Continues to Guide Trust Bequest
In Estate of Feinberg, a grandparent had left money in trust to be given to grandchildren of the decedent who married in the Jewish faith or whose spouses converted within a year of the marriage. A grandchild who did not meet this requirement challenged this restriction as an invalid restriction on marriage. The challenge was successful at trial and at the appellate level, but the restriction was upheld by the Illinois Supreme Court.