Family Law Prof Blog

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

Tuesday, February 16, 2010

Ratner: "But from Where Will the Money Come? Community Property Liability for Child Support and Other Premarital Obligations"

James Ratner (University of Arizona) has posted "But from Where Will the Money Come? Community Property Liability for Child Support and Other Premarital Obligations" on SSRN.  Here is the abstract:

Marital debt is normal, but confusing. In some community property jurisdictions, debts incurred by one spouse can be satisfied from all of the assets managed and controlled by the debt incurring spouse (a managerial regime), while in others from the debt-incurring spouse's separate property plus that spouse's "share" of the marital assets (a partition regime), and in still others from only the separate assets of the debt-incurring spouse for separate debts and from all the community assets if it is a community debt (a CP debt/SP debt classification regime). The various community property jurisdictions have fined-tuned these structures to create hybrid systems that combine aspects of each of the regimes. Frequently debt originates prior to a marriage (hence the description "premarital debt"), however, creating an additional problem: During a marriage, which assets should be available for premarital creditors? A pure managerial regime fails to adequately protect the nondebtor spouse's undivided one-half ownership interest in each community asset, while a pure CP debt/SP debt system effectively enables a debtor to commit "bankruptcy by marriage." Partition systems developed to address these problems offer premarital creditors access to those assets for which the creditor would have had access if there had been no marriage. This partition-style premarital debt structure, however, is employed for child support and spousal support orders as well as for more typical debt and tort liability incurred prior to the marriage.

Application of such premarital debt structures to child support is unfortunate. It implicitly may facilitate child support shirkers, effectuates a hierarchy for a choice between support of children of relationship #1 and children of relationship #2, and perpetrates an old stereotype - the wicked, unsupportive step-parent. Child support is more sensibly treated as an on-going obligation of a support-owing parent's current marital community, and not as a premarital debt. Thus I propose that all community assets, including the earnings of the spouse who is not obligated to pay child support, be available to satisfy a child support order. Under the current regime, those earnings are unavailable, because they are not assets that would be the debt-incurring spouse's separate property except for the marriage. While a usual argument against my proposed approach is a fear of discouraging marriages, such a fear is unwarranted in this context. The specific nature of child support obligations, which cannot be bargained-around and which are limited in duration by the age of the child, drives my conclusion that it is not a premarital SP debt. Spousal support obligations, in contrast, more closely resemble typical premarital debt, and should continue to be treated as premarital obligations to which a premarital debt partition structure sensibly applies.


February 16, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Sweetie, Can You Change Na’vi Tsu’tey’s Diaper?

Apparently, you might overhear this more often as people name their children after the characters in film blockbuster Avatar.  Read more here.


February 16, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, February 15, 2010

The Effectiveness of Abstinence Education

The debate rages on about the effectiveness of abstinence-only education in delaying the start of sexual activity in adolescents.  In December, a new study (using federal data) suggested that abstinence education may actually have a negative effect.  From the Washington Post:

Teenagers who pledge to remain virgins until marriage are just as likely to have premarital sex as those who do not promise abstinence and are significantly less likely to use condoms and other forms of birth control when they do, according to a study released today.

The new analysis of data from a large federal survey found that more than half of youths became sexually active before marriage regardless of whether they had taken a "virginity pledge," but that the percentage who took precautions against pregnancy or sexually transmitted diseases was 10 points lower for pledgers than for non-pledgers.

"Taking a pledge doesn't seem to make any difference at all in any sexual behavior," said Janet E. Rosenbaum of the Johns Hopkins Bloomberg School of Public Health, whose report appears in the January issue of the journal Pediatrics. "But it does seem to make a difference in condom use and other forms of birth control that is quite striking."

The study is the latest in a series that have raised questions about programs that focus on encouraging abstinence until marriage, including those that specifically ask students to publicly declare their intention to remain virgins. The new analysis, however, goes beyond earlier analyses by focusing on teens who had similar values about sex and other issues before they took a virginity pledge.

Read the Washington Post story here or the study itself in the Journal of Pediatrics here.

A study published this month in the Archives of Pediatrics and Adolescent Medicine, however, suggests that some abstinence-only education may be effective at curbing the onset of sexual activity in inner city youth.

Read more about this study here.


February 15, 2010 | Permalink | Comments (0) | TrackBack (0)

Are We Having Fun Yet?

The winter weather in DC has created plenty of family fun time:

From the Wall Street Journal:  

WASHINGTON—The most powerful people in Washington, D.C., this week were demanding another juice box and a Sesame Street video.

The one-two snow punch that crippled the nation's capital did more than bring the federal government to a halt: It brought hundreds of hard-charging, workaholic parents to their knees, imprisoning them inside their homes with eager children and a dwindling list of activities to keep them entertained.

Across the Washington, D.C. area, parents were grasping for ways to fill the days as two powerful snowstorms cancelled schools, closed day-care centers and shuttered many businesses. On Thursday—day seven for some parents with a three-day weekend ahead and more snow in the offing—nerves were beginning to fray.

"I am about ready to eat my children," said one mom...

Read the rest here.


February 15, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, February 14, 2010

Happy Valentine's Day...


...on what must be Family Law's favorite holiday.                                       


February 14, 2010 | Permalink | Comments (0) | TrackBack (0)

Saturday, February 13, 2010

Catania: "Accounting to Ourselves for Ourselves: An Analysis of Adjudication in the Resolution of Child Custody Disputes"

Francis Catania Jr. (Widener University School of Law) has posted "Accounting to Ourselves for Ourselves:  An Analysis of Adjudication in the Resolution of Child Custody Disputes," 71 Neb. L. Rev. 1228 (1992) on SSRN.  Here is the abstract:

The adjudicatory process for resolving child custody disputes is out of synch with the way most functioning families operate. It is inherent in the adjudicatory process that judgment is passed upon the parties by a superordinate stranger-adjudicator. Each party to child custody adjudication approaches the ostensibly problem-solving court as a supplicant and an inferior, having to tacitly admit that (s)he cannot handle her/his own affairs. In the small percentage of child custody cases reaching impasse and adjudication, the legal process entails the creation and operation of a body of legal norms that has grown through legal opinions resolving individual disputes. Because only a small percentage of family law cases reach the appellate reporters, the law is slow in reacting to developing social norms. American family law responds to social developments sporadically, inconsistently, and often only when its failure to respond creates discrepancies between social norms and legal norms that are plainly unconscionable.

Adjudicatory systems are inherently unable to accommodate conflicts and collisions among legal norms. The law has become silent with respect to social or moral values of any kind other than those protecting and encouraging the independence and autonomy of individuals, the law fails to reflect the realities of most families, particularly of mothers with young children. In reaching and rationalizing outcomes, child custody courts focus - upon finding any given proposition of fact as either true or false; - choosing among competing or conflicting norms in a binary fashion (as if only the dominant norm were applicable; as if each disputant is generally either “right’ or “wrong’); - upon an act-oriented approach to determining what has happened, rather than a person- or relationship-oriented approach to what will happen in the reordered family; and - upon strict neutrality and objectivity.

In short, the child custody determination - a central process in the reordering of family relationships - is not typically characterized by norms that recognize the dissolving and reforming relationships in a family going through the upheaval of a child custody dispute. Nor does the process facilitate continued interdependence and accommodation in these relationships. To usurp from the reordering family the power to accommodate varying norms is to devalue the family because it is reordering.

This article proposes tempering or replacing the adjudicatory process in child custody disputes with a more graduated and accommodative negotiatory process - a process more adept at addressing the complexity of family relationships and at preserving, as much as possible, the prerogatives and autonomies of family life in the reordering family. Specifically, the Article proposes a process utilizing the primary caretaker presumption and an impasse procedure known as Final Offer Selection.


February 13, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Friday, February 12, 2010

Male Fertility Problems Inherited?

A new study suggests that they may be, as male children born through at least one type of IVF carried more traits correlated to infertility than did their counterparts born naturally.

Doctors have uncovered the first evidence that fathers of test-tube babies may be passing on their infertility to their sons.

A new study has found that boys conceived through IVF treatment involving a single sperm being directly injected into a female egg often inherit shorter fingers, a trait known to be associated with infertility.
Almost one in 50 British babies is conceived artificially and nearly half the couples having treatment go through a procedure known as ICSI (intracytoplasmic sperm injection).

The technique bypasses the normal competition where only the healthiest sperm cell is able to reach the female egg and fertilise it.

Alastair Sutcliffe, a pediatrician at the Institute of Child Health in London, led the Anglo-German study which compared 211 six-year-olds conceived through ICSI with 195 naturally conceived children of the same age.

The ICSI group were similar heights to the naturally conceived group, but the boys had significantly shorter fingers.

It is known that men with low sperm counts often have ring fingers the same length as their index finger, whereas fertile men are more likely to have a ring finger which is relatively longer than their index finger.

The effect is reversed in women, where the most fertile are likely to have index fingers significantly longer than their ring fingers.

Sutcliffe’s findings appeared recently in the journal Reproductive Biomedicine Online.

“This is the first study of this kind on these children,” Sutcliffe said.

“We don’t yet know the implication of the findings because the children are very young, but we need to inform people [about the possible risks of the ICSI procedure].”

Read the full story here.


February 12, 2010 | Permalink | Comments (0) | TrackBack (0)

Find Your Match for Only $2,000 and a Few Cheek Cells

With Valentine's Day coming up, this dating service might become a hit.

From the Washington Post:

ScientificMatch subscribers are asked to send in a DNA sample --"just a cotton swab you rub on the inside of your mouth for a few seconds," Holzle explains -- which is then analyzed and entered into a database. Users are still asked to create profiles that include photos and information about their interests and personalities. Genetic information isn't shared with any of the users, but only profiles of people with compatible -- meaning very different -- immune system genes will pop up as matches.

The idea is that it is best for couples to have complementary immune response potentials for various pathogens so that the resulting children have a stronger, more responsive immune system.  Those with complementing immune response systems are therefore attracted to each other.  

A scientist friend of mine lends assurances that this dating service will not lead to genetic matching with cousins twice removed.

Read more here.


February 12, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, February 11, 2010

A Better Way to Divide Community Property?

Who needs expensive lawyers and hours upon hours of judicial time to divide community property between wealthy spouses?  Kate Walsh, star of the television show Private Practice (and formerly Grey's Anatomy), and her ex-husband have adopted a new approach to dividing the property acquired during their 14-month marriage.

"One-half of the community property furniture and artwork to be divided by alternating picks after the flip of a coin to determine who will pick first," their settlement agreement reads.

Read the settlement agreement here or more news coverage here.


February 11, 2010 | Permalink | Comments (1) | TrackBack (0)

IL Rules of Evidence Inapplicable to Best Interests Hearing Under Adoption Act

An Illinois appellate court recently held that the formal rules of evidence do not apply to the second step of the dispositional hearing under the Juvenile Court Act and the best interest hearing under the Adoption Act, which are functional equivalents.  Therefore, all helpful evidence may be admitted and relied upon to the extent of its probative value.  The case is In re Jay H., Jas. H., and T.W., Minors, Nos. 4-09-0439, & 4-09-0460 (4th Dist. Nov. 9, 2009).  Read the opinion PDF here.   


February 11, 2010 in Adoption | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 10, 2010

Wright: "Guardianship for Your Own Good: Improving the Well-Being of Respondents and Wards"

Jennifer Wright (University of St. Thomas School of Law) has posted "Guardianship for Your Own Good:  Improving the Well-Being of Respondents and Wards" on SSRN.  Here is the abstract:

Adult guardianship is a coercive exercise of the state’s power over an innocent individual, justified only by: 1) the ward’s incapacity; and 2) the need to protect the ward’s well being. The raison d’être of guardianship is thus to improve the well being of the incapacitated ward. Studies of actual guardianship proceedings have long indicated serious ongoing concerns with the process. Repeated revisions of statutes have attempted to improve guardianship procedures, with some success. However, relatively little attention has been paid to the actual effect of guardianship on the well being of respondents and wards, when the system functions as intended. The presumption that guardianship, when not abused, is in the best interests of an incapacitated adult is called into serious question by empirical research into the role of internal locus of control and autonomy on human well being. Indeed, a wide range of data indicates that guardianship itself can have significant negative effects on the physical and mental well being of respondents and wards. The guardianship system must be reformed to maximize the therapeutic effects of guardianship and to minimize the unnecessarily anti-therapeutic effects. I examine the effects of guardianship from a therapeutic jurisprudence perspective and propose and analyze modifications that could enhance the therapeutic effects of guardianship.


February 10, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Saints: 31, Colts: 17, Relationships: -14

The blogosphere has recently been abuzz regarding the negative portrayal of romantic relationships and family in the 2010 Super Bowl commercials.  Critics point to the Dodge commercial featuring a beaten down husband with only a car saving him, as well as the FloTV commercial featuring a boyfriend with his spine removed by his girlfriend.  See one of the commercials here, and commentary here.  Super Bowl commercials have generally been thought to reflect cultural attitudes and the brightest of advertising talent.


February 10, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 9, 2010

Sexless Year as Grounds for Divorce?

A Maryland lawmaker is backing legislation that would allow couples who have lived together but have not had sex for a year to skirt the state's one-year waiting period for no-fault divorce.  Yes, you read that correctly.  I thought it was a joke too until I read the bill.

Simmons said it would ease the initial financial burden for couples -- especially those with children -- because they could remain in the same house during the year-long waiting period.

Read the bill here, more news coverage here, or humorous blog commentary on this "hump or dump" legislation here.


February 9, 2010 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

7-Year-Old Brazilian Girl Lands Coveted Carnival Role of Sexy Muse

In child welfare matters, every family law system must carefully balance between excessively intervening given parental rights, and not intervening enough to protect children’s interests.  This dilemma has most recently arisen in the Brazil, where a 7-year-old girl has been given the sexy role of being the drum corps queen during the Carnival—that of a sexy muse. 

From the Washington Post:   

RIO DE JANEIRO -- She is the Shirley Temple of samba, a 7-year-old named to a coveted Carnival role normally reserved for barely clad models who have undergone more plastic surgeries than little Julia Lira has seen birthdays. Naming the girl drum corps queen for the Viradouro samba group is raising eyebrows even in a city that has seen everything during the annual mega-party that begins next week.

A judge is considering blocking Julia's participation. A state agency that defends children's rights says she's too young to take on a traditionally sexy role. But the girl's father, who happens to be the president of the Viradouro group, says Julia is a natural who can easily samba through the 80-minute parade route in Rio's sweltering summer heat.

Read the rest here.


February 9, 2010 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Monday, February 8, 2010

Prop 8 Trial Judge Reportedly Gay

The San Francisco Chronicle reported yesterday that the federal judge who will issue the much-anticipated decision in California's Prop 8 trial (which we have blogged about here, here, and here) is gay.

Walker has declined to talk about anything involving the Prop. 8 case outside court, and he wouldn't comment to us when we asked about his orientation and whether it was relevant to the lawsuit.

Shortly after our conversation, we heard from a federal judge who counts himself as a friend and confidant of Walker's. He said he had spoken with Walker and was concerned that "people will come to the conclusion that (Walker) wants to conceal his sexuality."

"He has a private life and he doesn't conceal it, but doesn't think it is relevant to his decisions in any case, and he doesn't bring it to bear in any decisions," said the judge, who asked not to be identified because of the sensitive nature of the Prop. 8 trial.

"Is it newsworthy?" he said of Walker's orientation, and laughed. "Yes."

He said it was hard to ignore the irony that "in the beginning, when (Walker) sought to be a judge, a major obstacle he had to overcome was the perception that he was anti-gay."

In short, the friend said, Walker's background is relevant in the same way people would want to know that a judge hearing a discrimination case involving Latinos was Latino or a Jewish judge was ruling in a case involving the Anti-Defamation League.

Walker, by the way, didn't seek out the Prop. 8 case - it was assigned to him at random.

If the judge decides that Prop. 8 is unconstitutional, supporters of the measure are sure to take it to the federal appeals court and the U.S. Supreme Court, if necessary. Kendell expects that if that happens, the measure's proponents will make an issue of the judge's sexual orientation - at least in the public arena.

Read more here.


February 8, 2010 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

University Hired Housekeepers?

An article published last month in Nature asserts that married female scientists do more than twice the amount of housework than male scientists.  This is to be expected given some of the showings in the family law literature.  Unique, however, is the authors’ proposed solution that universities provide household help to their faculty.  For the record, I will pack my bags for the first employer—all other things being equal—offering to hire me a housekeeper.  Human Resources and Recruiting Departments across the country take note:

From Nature:

Female US scientists do nearly twice as much housework as their male counterparts, according to a study in Academe, the online publication of the American Association of University Professors.  Science historian Londa Schiebinger of Stanford University in Palo Alto, California, and analyst Shannon K. Gilmartin found that partnered women scientists at 13 top US institutions do some 54% of household tasks, requiring more than 10 hours a week on top of the 60 hours they work.  Partnered male scientists, however, do just 28%.  The remainder is done by hired help.  The authors propose that university benefits could be made more flexible to include support for housework help.

Obtain the full Nature article here.


Hat Tip: S.H.

P.S. Consistent with the theme of this post, this article is an entertaining one, about a working married woman keeping track of her minutes and hours (but not in the billable sense) in order to find the 30 leisure hours that a sociologist suggests married working women have per week.

February 8, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Sunday, February 7, 2010

If You Like Pina Coladas and Getting Caught in the Rain…

…oh, never mind, because any woman’s chances for love in China are nearly surefire, where the one-child policy will yield a 24M bride shortage by 2020.

From CNN:

Sex-specific abortions have led to a large male population born since the 1980s, the China Daily newspaper said, citing a study conducted by the Chinese Academy of Social Sciences.

The gender imbalance means that the next decade will see many intergenerational marriages: young men married to women much older than them, the study said.

China's Communist Party implemented the one-child rule three decades ago, amid fears that the country would not be able to feed a skyrocketing population.  The policy has prevented about 400 million births, China Daily said.

Read the rest here.


February 7, 2010 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Saturday, February 6, 2010

"8: The Mormon Proposition"

A controversial new documentary about the Mormon church's role in the passage of California's Proposition 8 recently premiered last weekend at the Sundance Film Festival.

Using internal church documents and recordings of Mormon officials, and interviews with gay activists, political figures and former members of the church, Greenstreet and his fellow director, Miami journalist Reed Cowan, make the case that the church overstepped its bounds as a nonprofit, religious organization to ensure that Prop 8 passed. But the movie doesn't just focus on that single piece of legislation.

"8" also explores the broader impact of what the filmmakers describe as the church's historically intolerant attitude toward gays, using tales of suicide attempts by young Mormons struggling with their sexual orientations and men still grappling with memories of the shock treatments they endured in order to "cure" them of their homosexuality.

View the trailer here or read more news commentary from the Washington Post on in it here.


February 6, 2010 in Film | Permalink | Comments (0) | TrackBack (0)

Friday, February 5, 2010

Reproductive Coercion as the New Domestic Violence

Newsweek reports on the increasing phenomenon of "reproductive coercion."

This month, Miller published a study in the journal Contraception detailing "reproductive coercion," when the male partner pressures the other, through verbal threats, physical aggression, or birth-control sabotage, to become pregnant. According to Miller's research, about a third of women reporting partner violence experienced reproductive coercion, as did 15 percent of women who had never reported violence.

Overall, rates of reproductive coercion among family-planning-clinic patients are suprisingly high: about one in five women report their partner having attempted to coerce them into pregnancy. "What we're seeing is that, in the larger scheme of violence against women and girls, it is another way to maintain control," says Miller, who studied 1,300 female patients culled from five family-planning clinics in Northern California. "You have guys telling their partners, 'I can do this because I'm in control' or 'I want to know that I can have you forever.' " This may help explain previous findings of higher rates of unintended pregnancies in relationships with partner violence.

Read more here.


February 5, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 4, 2010

Dillard: "Future Children as Property" & "Valuing Having Children"

Carter Dillard (Loyola University New Orleans) has posted the following articles on SSRN:

Future Children as Property, Duke Journal of Gender Law & Policy (forthcoming).  Here is the abstract:

Between Skinner v. Oklahoma and the advent of modern substantive due process, procreation, at least in the eyes of many courts and commentators, became entrenched as a fundamental, if not absolute, right. And yet ironically, the establishment of this right, often taken as symbolic of personal liberty, has diminished autonomy for those persons inevitably caught on the other end of it – our future children. Expanding procreative autonomy has diminished public norms that might otherwise ensure that future children are born into circumstances that also expand their autonomy. Instead, the broad, modern, privacy-based version of the right to procreate leaves the matter exclusively and privately to the whims of prospective parents, allowing them to create any number of children in any manner of circumstances. This tends to institutionalize the classification of a group of persons, albeit future persons, who exist morally and legally though not yet physically, as property. It does so because it gives prospective parents exclusive and absolute power over members of the class; power to freely access them, use them, and determine their future relations, and to do so in exclusion of others’ power, including the constructive power of the members themselves. This power over future children, which the privacy-based right to procreate vests in prospective parents, is the unmistakable hallmark of one class of persons treating another as property. 

This article maintains that the most common notion of the right to procreate, the one seemingly derived from constitutional precedent and today taken as largely beyond question, tends to treat future children largely as a class of property, assigned as such to prospective parents. This article also traces the historical development of the right as part of the larger tradition of treating existing children as the property of those who create them. Throughout, this article suggests that the right to procreate so conceived is in tension with an embedded constitutional principle that prohibits one class of persons from treating another as property. This tension, which may be called the “property objection,” demands that we change the way we think about the right to procreate.

Valuing Having Children, 14 Journal of Law & Family Studies__ (forthcoming).  Here is the abstract:

Are there objective values on which to base the claim of a right to procreate? Can we articulate reasons for having children so powerful that they justify our doing so, as a matter of right, even where it would conflict with the interests and values of others? This Article systematically and critically examines many of the values that, before now, courts and commentators have simply presumed and relied upon when making the claim that there is and ought to be a fundamental right to have children. This Article first develops a methodology for examining the values and interests on which fundamental moral, and eventually legal, rights might be based. It then applies this methodology to three categories of values specific to procreation: autonomy and relational values, as well as self-regarding values, such as the value of creating genetic lineage. This Article critiques each category as a basis for a right to procreate, rejecting autonomy and relational values, and ending with what might be a surprising conclusion about the final category: that self-regarding values, and the right that would flow from them, are sated when one has a child.



February 4, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)