Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Saturday, December 12, 2009

Chinese One-Child Policy Still Favored

Zhao Baige, vice-minister of National Population and Family Planning Commission of China (NPFPC), has been described to defend China's one-child policy in terms of the environment:

Meanwhile, she said studies have also shown that family planning programs are more efficient in helping cut emissions, citing research by Thomas Wire of London School of Economics that states: "Each $7 spent on basic family planning would reduce CO2 emissions by more than one ton" whereas it would cost $13 for reduced deforestation, $24 to use wind technology, $51 for solar power, $93 for introducing hybrid cars and $131 electric vehicles.  

She admitted that China's population program is not without consequences, as the country is entering the aging society fast and facing the problem of gender imbalance.

"I'm not saying that what we have done is 100 percent right, but I'm sure we are going in the right direction and now 1.3 billion people have benefited," she said.

She said some 85 percent of the Chinese women in reproductive age use contraceptives, the highest rate in the world. This has been achieved largely through education and improvement of people's lives, she said.

China’s implementation of the one-child policy in 1979 had little to do with this type of reasoning, but it’s interesting to see continued support for the policy from Chinese officials.  Read more from the China Daily here.  


December 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, December 11, 2009

Breast Implants as Marital Property?

The North Dakota Supreme Court heard a case last week questioning whether a wife's breast implants and surgical eye improvements (through Lasik) are marital assets to be divided on divorce.

"Do we have any lines to be drawn? Is dental work a marital asset? Is a hip replacement a marital asset?" Justice Daniel Crothers asked attorney Christina Sambor during Supreme Court arguments on Thursday.

Sambor represents Erik Isaacson, of Mandan, who is appealing South Central District Judge Robert Wefald's decision to exclude the value of his former wife Traci's breast implants and Lasik vision improvement surgery from a list of their assets and debts. Sambor said the expense should be included in instances when a medical expense is "clearly cosmetic, elective, (and) non-necessary." Insurance companies often make those judgments in deciding what to cover, she said.

I think the district judge's comments about the issue are great:

"I can't imagine people would actually waste time thinking that breast implants are marital assets. It just defies common sense.  I don't know how you would expect me to award breast implants, if you want me to have them cut out and given to Mr. Isaacson. It is absolutely nonsense."

Read the news report here.


December 11, 2009 in Property Division | Permalink | Comments (7) | TrackBack (0)

Will California Dismiss the Polanski Conviction?

On December 10 a California court of appeal heard arguments from Mr. Polanski's lawyers to the effect that his conviction should be dismissed due to judicial and prosecutorial misconduct in the earlier trial in 1978.  The primary evidence brought forth by Mr. Polanski's lawyers is a statement made by a former prosecutor in a filmed interview that he improperly communicated ex parte with the judge about Mr. Polanski's sentencing.  Both lawyers for Mr. Polanski and lawyers for the victim of Mr. Polanski's sexual conduct urged the court to dismiss the case. Lawyers for the State of California urged the appellate court to affirm the ruling of the trial court that Mr. Polanski did not have the right the challenge his conviction due to his unlawful flight from California.  The appellate court should rule on the appeal in the near future.


December 11, 2009 | Permalink | Comments (0) | TrackBack (0)

Shmueli: "Tort Litigation Between Spouses: Let's Meet Somewhere in the Middle"

Benjamin Shmueli has posted Tort Litigation Between Spouses: Let's Meet Somewhere in the Middle, 15 Harvard Negotiation Law Review__ (forthcoming 2010), on SSRN.  Here is the abstract:

In the past, and, to a certain extent, even at present, immunities existed in common law against tort litigation within the family. Is it appropriate today to block such claims, or should they be considered in the same way as any other tort suit? The present essay will address this question, by examining the possibility of establishing a delicate balance between the individualistic approach, which focuses on realizing the autonomy of the individual to sue for harm done to him, and the family-collectivist approach, which attempts to determine what is best for the family as a whole, and is concerned that legal intervention in its affairs may be more detrimental than beneficial.

The assumption in this essay will be that, although we are talking of a claim under tort law, rather than under family law, and that this claim may be consistent with the goals of tort law, one cannot ignore the fact that this is not a suit involving two strangers. Moreover, since these are particularly charged, emotional claims, the real remedy desired may at times not be financial compensation at all, but some other remedy, an emotional one, which the law cannot provide, but which might be provided specifically through extrajudicial proceedings. But requiring the parties to take part in such a proceeding under the auspices of the court (e.g. mandatory mediation) is itself problematic, since these are essentially voluntary proceedings.

I will propose a desirable model that balances the two approaches, the individualistic and the family. This model will present a theoretical and practical framework for hearing such claims, applicable to the different stages of tort proceedings in the courts, while also making use, in the framework of such proceedings, of quasi-mandatory extrajudicial processes.


December 11, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 10, 2009

Military Divorces on Rise

From the Associated Press:

WASHINGTON- The divorce rate in the armed forces continues to edge higher, despite efforts by the military to help struggling couples.

There were an estimated 27,312 divorces among roughly 765,000 married members of the active-duty Army, Air Force, Navy and Marine Corps in the 12 months that ended Sept. 30, the Pentagon reported Friday.

That's a divorce rate of about 3.6 percent, compared with 3.4 percent a year earlier, according to figures from the Defense Manpower Data Center. Marriages among reservists failed at a rate of 2.8 percent compared to 2.7 the previous year.

To read more, and to learn of the stark contrast in divorce rates between men in uniform and women, see here.


Hat Tip: Brad Kukuk

December 10, 2009 | Permalink | Comments (0) | TrackBack (0)

Increased Police Power for Domestic Violence in UK?

The Crime and Security Bill (2010) before the UK Parliament has been published online here.  Among other things, the Bill allows increased police powers for domestic violence.  See here for a review of the Bill.


December 10, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 9, 2009

Research Sources Updated

We had previously posted some good research sources for researchers in family law here.  Recently, a kind reader provided us with some more sources:

(1) American Journal of Family Law

    * Since Fall 2007, issues have included annotated bibliography of recent articles, organized by subject

(2) Georgetown Journal of Gender & the Law

    * Annual Review of Gender & Sexuality Law

(3) Online supplement to Sexual Orientation and the Law: A Research Bibliography of Legal Literature . . .: an annotated bibliography of law review articles by subject, including family law:

The original post has been updated with these sources, as well.


Hat Tip: Kasia Solon

December 9, 2009 | Permalink | Comments (0) | TrackBack (0)

Monopoli: "Marriage, Property and [In]Equality: Remedying Erisa's Disparate Impact on Spousal Wealth"

Paula Monopoli (University of Maryland School of Law) has posted "Marriage, Property and [In]Equality: Remedying Erisa's Disparate Impact on Spousal Wealth," Yale Law Journal Online, Vol. 119, p. 61-65 on SSRN.  Here is the abstract:

Congress is considering pension reform in the wake of the tremendous loss in market value of retirement plans during the current recession. This article suggests that this is a historic moment to remedy a previously unidentified, unintended but profound gender disparity embedded in the federal law governing retirement plans in this country. It explores the common perception that while contemporary law and policy aim to facilitate equality within marriage, including in the area of property ownership, embracing equitable distribution in reallocating property upon divorce, the Employment Retirement Income Security Act’s (ERISA) structuring of retirement asset accumulation runs counter to this trend and in fact incentivizes the concentration of wealth in the hands of husbands rather than wives within intact marriages. It suggests that in order to remedy this inconsistency and facilitate equality within intact marriages, Congress should amend ERISA to confer an immediate ownership interest in one-half of the assets in each spouse as they are earned and contributed by one spouse, akin to a community property theory of ownership. Each half should then be allocated to a separate account, one in each spouses’s name. While this second step may be somewhat inconsistent with the view of marriage as a partnership, it minimizes the risk that one spouse will dominate investment decisions with regard to the assets. In the alternative, ERISA should at least provide that each spouse’s defined contribution plan be held in a joint account as a default rule. A less fundamental but equally important additional reform would be to allow married couples to equalize ownership by transferring unlimited amounts between their accounts without triggering income taxation and the 10% early withdrawal penalty. This would be akin to the existing unlimited marital deduction as applied to transfers under the current federal gift tax. The article concludes that, with these amendments, Congress could align federal pension law with the overall movement toward gender equality in marital property law.


December 9, 2009 in Property Division | Permalink | Comments (2) | TrackBack (0)

A New Kind of Crime? Attempted Abortion

CNN reports the story of a woman authorities say may be charged with "attempted abortion":

Prosecutors in Brooklyn have charged a 38-year-old woman with tricking a pregnant woman into taking an abortion-inducing drug because the suspect thought her husband had fathered the child with the other woman.

The suspect, Kisha Jones, allegedly went to great lengths to end the pregnancy of 25-year-old Monique Hunter, according to a complaint filed by the Brooklyn district attorney's office in an ongoing investigation that began over a month ago.

Jones is in jail facing multiple charges, including attempted abortion and assault, according to authorities.

The complaint alleges that Jones in October used a doctor's prescription pad to forge a prescription for Hunter for a drug that can induce labor, telling the pharmacist that the drug was needed for a "procedure."

The complaint said it is not clear how Jones got a prescription notepad from a licensed doctor, but the doctor was not treating Hunter and said the prescription was not written by anyone in his office.

Authorities said that, after obtaining the drug, Jones called Hunter numerous times claiming to be the pregnant woman's doctor's office and telling Hunter that her doctor had sent a prescription for her to pick up and take immediately.

Hunter immediately took the drug after receiving the phone calls, thinking it was a legitimate prescription from her doctor, authorities said.

Soon after, she was rushed to a hospital with severe abdominal pain, and gave birth to a boy.

Read the full story here.


December 9, 2009 in Abortion | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 8, 2009

Are the Christmas Gifts You Give Your Spouse Community Property?

Maybe.  A California Court of Appeals just ruled (reversing the lower court's decision) that a Porsche bought for husband with wife's separate funds was to be classified as community property.  California law generally requires a writing to transmute the classification of property, but there is an exception for gifts of "tangible articles of a personal nature."  The California court held that a Porsche was not such property.  Read the full opinion here.  And if you're in a community property state, delight in the fact that you'll still own a portion of most items you gift to your spouse!


December 8, 2009 in Property Division | Permalink | Comments (1) | TrackBack (0)

West: "From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights"

Robin L. West (Georgetown University Law Center), has posted From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights, 118 Yale L.J. 1394-1431 (2009), on SSRN.  Here is the abstract:

The Essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative right that rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to term a choice. It thereby legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and for poor parents who might need greater public support. These marginalized groups need greater community and state assistance with the demands of parenting, and the equation of reproductive justice with a right to terminate a pregnancy is in tension with a political or legal agenda for meeting those needs. The Essay then explores the possibility of creating a right to legal abortion through ordinary political means, rather than through constitutional adjudication, in such a way as not to carry these costs.



December 8, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, December 7, 2009

Hiding Child in Custody Dispute Amounts to Abuse or Neglect

A mother's hiding of her son for nearly two years in his grandmother's home, often in a crawl space behind a wall, amounted to neglect, a judge ruled Friday.

Franklin County Circuit Judge Melissa Drew's ruling was based partly on her agreement with a counselor's belief that the seclusion left the boy, now 7, with post-traumatic stress disorder.

Authorities have said the child's mother, Shannon Wilfong, began hiding him in 2007 during a custody dispute with his father, Michael Chekevdia. Wilfong and her mother, Diane Dobbs, kept the windows of Dobbs' house near Royalton blocked off with shades or other items and deprived the boy of contact with peers, medical care and education, Drew said.

Testimony showed the boy was allowed outside only at night or in a fenced-in area not visible to passers-by.

The crawl space was roughly 5 feet by 12 feet and about the height of a washing machine, hidden behind what Drew said was "nothing more than a hole in the wall" concealed by a bookcase.

Wilfong's attorney, Susan Burger, argued there was no neglect during the boy's time in seclusion. He was home-schooled, had no issues requiring a trip to the doctor, and was allowed to play outside, she said.

"This was not a case where the child was locked up, put in a crawl space, behind walls," Burger said.

The child at issue is currently in the temporary custody of a relative, while his parents battle for custody.  Mom can't expect to fare too well when the court issues its ruling, expected in early January.

Read the full story here.


December 7, 2009 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Australian Government Asked to Criminalize International Child Abduction

The Family Law Reform Association of New South Wales is urging Australia’s government to make it criminal for a parent to take a child out of the country without the other parent’s consent.  Some are suggesting that these issues are best dealt with in the family court.  Read more here.  In the United States, however, parents already typically risk criminal charges for such actions.


December 7, 2009 | Permalink | Comments (1) | TrackBack (0)

Sunday, December 6, 2009

Electronic Communication as Parental Visitation?

Sections 607 and 609 of the Illinois Marriage and Dissolution of Marriage Act have recently been amended to address electronic communication in terms of parental visitation, to become effective January 1, 2010.  In essence, Illinois courts will have discretion in determining whether electronic communication is considered visitation.  See 750 ILCS 5/607 here and 750 ILCS 5/609 here for further details.


December 6, 2009 | Permalink | Comments (0) | TrackBack (0)