Family Law Prof Blog

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

Saturday, April 3, 2010

Lawyerless Divorces...

...might sound good to many.  According to Catherine Jun of the Detroit News:

Breaking up is hard to do — especially in a recession.

With depressed home values and a dicey job market, divorces in Metro Detroit are down, as unhappy couples ride out the financial storm, the theory goes.

But of those who do file for divorce, more are financially strapped and duking it out without attorneys, according to courts. These do-it-yourself divorces are crowding legal aid offices and court dockets and slowing proceedings with incomplete paperwork and tutorials judges must deliver from the bench. And as more couples represent themselves, many are losing out on property and custody claims that are legally theirs, judges and attorneys say.

Read more here.


April 3, 2010 in Divorce (grounds) | Permalink | Comments (2) | TrackBack (0)

Friday, April 2, 2010

Does Air Pollution Decrease the Success Rate of IVF?

A new study indicates that exposure to air pollution during any phase of the IVF process may have a negative impact on its success.  

One common pollutant -- nitrogen dioxide (NO2), largely produced by vehicle exhaust -- was consistently linked to lower odds of IVF success. When NO2 levels were higher-than-average near a woman's home, or near the IVF lab, during any parts of the IVF process or during pregnancy, the chances of having a baby dipped.

The study, published in the journal Human Reproduction, included 7,403 women who underwent IVF at one of three fertility clinics between 2000 and 2007; the centers were located in Hershey, New York City and Rockville, Maryland, representing rural, urban and suburban areas.

Of the whole study group, 36 percent of the women had a baby following their first IVF treatment. Overall, Legro's team found that those odds dipped by 20 percent when the NO2 levels near a woman's home were 0.01 parts per million above average at the time she was taking medication to spur ovulation.

Similar effects were seen when the researchers focused on NO2 levels near the IVF center at the time of egg retrieval and fertilization, and levels near the women's homes after the embryos had been implanted. Although IVF labs are tightly controlled environments, their indoor air quality still varies, Legro said.

Still, while the study points to an association between air pollution, particularly NO2, and IVF outcomes, it does not prove cause-and-effect.

"We can't show a mechanism," Legro said. "We can't say that (for example,) poor air quality leads to poor egg quality."

And a key limitation of the study, he and his colleagues note, is that it did not have direct measurements of the women's personal exposure to various air pollutants.

"We still need to do further studies and confirm these findings," Legro said. "It's too soon to say what the ultimate effects (of air pollution) on reproduction are."

In theory, high levels of air pollutants could affect pregnancy outcomes for several reasons, according to Legro. Air pollution might cause widespread inflammation in the body, increase the body's production of cell-damaging oxygen-free radicals, or make the blood more prone to clotting -- all of which could pose a risk to pregnancy.

Read more here.


April 2, 2010 | Permalink | Comments (1) | TrackBack (0)

Bermuda Family Law Backlogs

Backlogs in Bermuda family law cases may prompt a judicial change:

From the Royal Gazette:

There is a backlog of up to 5,000 family law cases in the Magistrates’ Court, a seminar heard today.

The figure was revealed by British judge Christopher Barnett QC, who is on the Island to lead a training workshop for justice workers.

Mr. Barnett told an audience at the Fairmont Hamilton Princess that a new review of the Island's family law recommends the creation of a unified family court which places mediation at the heart of its work.

Read the rest here.


April 2, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, April 1, 2010

Ver Steegh: "Family Court Reform and ADR: Shifting Values and Expectations Transform the Divorce Process"

Nancy Ver Steegh (William Mitchell) has posted "Family Court Reform and ADR:  Shifting Values and Expectations Transform the Divorce Process" (Family Law Quarterly, Vol. 42, No. 3) on SSRN.  Here is the abstract:

During the last fifty years, the process of divorce has undergone a remarkable transformation. This article examines the sweeping breadth of the change and the underlying societal forces behind it. As the family court landscape has changed, a ripple effect has occurred necessitating reconsideration of the roles that lawyers and judges play in the divorce process. Although lack of judicial resources has fueled some of the change, deep funding cuts foreshadow a less positive transformation, one potentially resulting in a two-tiered system of justice for families.


April 1, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Lawsuits Against Popular Birth Control Maker


Because of several serious -- and sometimes deadly -- side effects, thousands of women across the United States have filed lawsuits against the makers of popular birth control pills Yaz, Yasmin and Ocella. Because of the large number of Yaz cases, all of the individual plaintiffs have been combined into a "multi-district litigation" (or "MDL") in federal court. The trial judge overseeing the Yaz lawsuits has entered new orders relating to the filing of new claims and the information that must be provided by each new plaintiff.

Read the rest here.


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

Wednesday, March 31, 2010

New York Court Declines to Impose a Constructive Trust in Girlfriend's Favor discusses a New York trial court's rejection of constructive trust and unjust enrichment arguments to transfer any property interest from a New York ad-exec to his long-time girlfriend:

A prominent advertising executive's alleged promises to support his longtime girlfriend if they broke up are unenforceable because the couple never married, a Manhattan judge has ruled.

In declining to impose a constructive trust, Supreme Court Justice Ellen Gesmer ruled that such statements as "I will always take care of you" and "everything that we put in, we will enjoy together" do not constitute legally binding promises.

"Indeed, even if [the defendant] had made an explicit promise that, upon separation, [the plaintiff] would be entitled to 'equitable distribution' of their assets, it would be unenforceable, as it would be contrary to the long-standing law and policy in New York that unmarried partners are not entitled to the same property and financial rights upon termination of the relationship as married people," Justice Gesmer wrote.

"Unless and until the law imposes equitable distribution on unmarried couples, in New York, as least, the legal status of marriage remains vitally important to establishing the economic rights of members of a couple."

The plaintiff, Malin Ericson, filed suit in 2009 against Fabien Baron, the advertising executive and creative director best known for reinventing Burberry, producing racy ads for Calvin Klein and designing Madonna's "Sex" book. According to her complaint, Ericson began working for Baron's fledgling company, Baron & Baron, in 1993, and became romantically involved with Baron in 1994. They moved in together later that year, had a daughter in 1999 and remained a couple until 2007, though they never married.

Ericson alleged that, in addition to the assurances Baron made throughout their relationship, when they broke up, he promised he would treat the separation as if the couple had married.

When Baron purportedly failed to live up to that promise, Ericson filed the present petition seeking a constructive trust on his Mercer Street loft, which was purchased in 1997 for nearly $1.5 million, his Amagansett real estate, bought in 1999 for nearly $1.3 million, and three years of profits from Baron & Baron. The company, according to the decision, has gross annual revenues of some $20 million.

Ericson claimed she contributed to the couple's household and Baron's burgeoning business in reliance on his assurances.

Read the decision here or more news coverage here.


March 31, 2010 in Property Division | Permalink | Comments (1) | TrackBack (0)

Eichner: “The Supportive State: Families, Government and America’s Political Ideals”

Maxine Eichner (University of North Carolina at Chapel Hill--School of Law) has recently published The Supportive State: Families, Government and America's Political Ideals, Oxford University Press (forthcoming).  The SSRN abstract is here:

There is broad agreement among politicians and policymakers that the family is a critical institution of American life. Yet the role that the state should play with respect to family ties among citizens remains deeply contested. This controversy over the state’s role undergirds a broad range of public policy debates: Does the state have a responsibility to help resolve conflicts between work and family? Should same-sex marriage be permitted? Should the state encourage marriage and two-parent families? Should parents who receive welfare benefits be required to work? Yet while these individual policy issues are endlessly debated, the underlying theoretical question of the stance that the state should take with families remains largely unexplored.

In The Supportive State: Families, Government, and America's Political Ideals, Maxine Eichner argues that government must take an active role in supporting families. She contends that the respect for human dignity at the root of America's liberal democratic understanding of itself requires that the state not only support individual freedom and equality – the goods generally considered as grounds for state action in liberal accounts. It must also support families, because it is through families that the caretaking and human development needs which must be satisfied in any flourishing society are largely met. Families’ capacity to satisfy these needs, she demonstrates, is critically affected by the framework of societal institutions in which they function. In the “supportive state” model she develops, the state bears the responsibility for structuring societal institutions to support families in performing their caretaking and human development functions. Meanwhile, families bear responsibility for the day-to-day caring for (or arranging the care for) family members with dependency needs. In this model, supporting families is as central to the responsibilities of the state as ensuring a competent police force to ensure citizens’ safety. Although not all family forms will further the important functions that warrant state support, she argues that a broad range will. Her vigorous defense of the state’s responsibility to enhance families’ capacity for caretaking and human development stands as a sharp rejoinder to the widespread conservative belief that the state’s role in family life must be diminished in order for families to flourish.


March 31, 2010 in Books | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 30, 2010

Tennessee Bill on Equal Physical Custody Drawing Attention

A bill pending in the Tennessee legislature to mandate equal sharing of a child's time with each parent (with few exceptions) is sparking serious debate between women's advocacy groups and fathers' rights groups.

On one side is an alliance of women's groups, some judges and the Tennessee Bar Association, who say the change would make divorces tougher to settle and give abusive ex-husbands leverage they shouldn't have. Spending half of the time with each parent would also impose impractical schedules on kids, they say.

On the other side are fathers' rights groups who say kids get deprived of full relationships with both parents. Courts have too long ignored laws calling for custody decisions to be made in children's best interests, they say, and judges are overly influenced by notions about the mother-child bond.

The state's House Children and Family Affairs' Family Justice Subcommittee is scheduled to meet today to review divorce-related data it requested from the Tennessee Bar Association, as it works to determine whether to send the bill to a second committee that could send it to the full House.

Other states, including Missouri, start from a presumption of an even custodial split unless there has been abuse, said Janet Richards, a law professor at the University of Memphis who specializes in child custody matters. Tennessee would be alone in requiring clear, convincing evidence that one parent is unfit before dividing custody unequally, she said.

"This law sets up a standard of proof that's just short of the criminal standard of beyond a reasonable doubt," Richards said.

Committee hearings on the bill have drawn standing-room-only crowds full of mothers wearing saucer-size lapel stickers that read "Vote no on HB 2916" and fathers wearing everything from military fatigues to business suits.

Read the bill here or more news coverage here.


March 30, 2010 in Custody (parenting plans) | Permalink | Comments (7) | TrackBack (0)

Cianciarulo & David: “Pulling the Trigger: Separation Violence as a Basis for Refugee Protection for Battered Women”

Marisa Silenzi Cianciarulo (Chapman University--School of Law) and Claudia David have posted Pulling the Trigger: Separation Violence as a Basis for Refugee Protection for Battered Women, 59 American University Law Review 337 (2009) on SSRN.  Here is the abstract:

For over a decade, women seeking asylum from persecution inflicted by their abusive husbands and partners have found little protection in the United States. During that time, domestic violence-based asylum cases have languished in limbo, been denied, or occasionally been granted in unpublished opinions that have not provided a much-needed adjudicative standard. The main case setting forth the pre-Obama approach to domestic violence-based asylum is rife with misunderstanding of the nature of domestic violence and minimization of the role that society plays in the proliferation of domestic violence. Fortunately, however, a recent Obama-administration legal brief indicates that women fleeing countries where governments are unable or unwilling to protect them from their abusive husbands finally may be able to avail themselves of U.S. asylum law. This article proposes a workable standard for adjudicating such claims. Based in part on psychological research on the dynamics of abusive relationships, particularly the phenomenon known as “separation violence,” this article formulates a particular social group that satisfies the various legal elements for political asylum: “women who have left severely abusive relationships.” This social group is based on research demonstrating that abusers strike out with increased violence when their partners leave the relationships, in many cases even killing them. This article explores the dynamics of abusive relationships, the failure of U.S. adjudicators to understand those dynamics, and the application of international human rights law to domestic violence survivors.


March 30, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Monday, March 29, 2010

Grossman: "Civil Rites: The Gay Marriage Controversy in Historical Perspective"

Joanna Grossman (Hofstra) has posted "Civil Rites:  The Gay Marriage Controversy in Historical Perspective" (in Law, Society and History: Essays on Themes in the Legal History and Legal Sociology of Lawrence M. Friedman, Robert Gordon, ed., Cambridge University Press, 2010) on SSRN.  Here is the abstract:

This short essay, written for a volume that celebrates and reflects on Lawrence M. Friedman’s work in legal history and legal culture, explores the modern controversy about same-sex marriage through a historical lens. The legalization of same-sex marriage by five states, and the express condemnation of it by more than forty others, has reintroduced the age-old problem of non-uniform marriage laws and the complicated interactions that follow. This modern story - a challenge to traditional marriage, a divisive moral debate, and the emergence of strong oppositional forces that are stuck, at least temporarily, but perhaps indefinitely, in a kind of stalemate - is not an original one. American states have never been of one mind about the appropriate level of state control over domestic relations, and the federal government has, for the most part, steered clear. Though most conflicts involving state regulation of marriage and divorce had been resolved by the middle of the twentieth century, the battles were long, hard fought, and left an indelible imprint on family law history. In this essay, I argue that the same-sex marriage controversy re-invokes a long history of battles among states over regulation of marriage and divorce, and that lessons from these historical battles are still relevant. The lessons of history - about the legal structures produced in times of panic, the influence of social and economic pressures on law’s development, and the importance of the “separate histories of the law of the fifty states” - cannot be ignored. Nor should we lose sight of Friedman’s recurring observation that social forces, eventually, “shape the legal order.”


March 29, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Incarceration Does Not Toll Time Under IL Adoption Act

The Illinois Supreme Court, reversing the appellate court, recently held that, under the Adoption Act, the time for a parent to make reasonable progress toward return of child was not tolled by parent’s incarceration.  The appellate court had held that because respondent was incarcerated for 6 months of a 9 month period, she had only 3 months to demonstrate reasonable progress toward the return of her children—an insufficient amount of time.  The case is In re J.L., Minors, No. 108575 (Ill. February 19, 2010) and the opinion is available here.


March 29, 2010 in Adoption | Permalink | Comments (0) | TrackBack (0)

Sunday, March 28, 2010

Appell: "Controlling for Kin: Ghosts in the Postmodern Family"

Annette Appell (Washington Univ. St. Louis) has posted "Controlling for Kin:  Ghosts in the Postmodern Family" (Wis. Women's L. J.) on SSRN.  Here is the abstract:

This Article illustrates a paradox in the regulation of families. On the one hand, jurisprudence sanctions biological connection to promote liberty and the private production of value and culture, including the protection of the freedom of non-normative parents to parent. At the same time, however, this regulation serves as a restrictive paradigm for family composition, rigidly adhering to a biologically-evocative two parent maximum that fails to reflect the intricacies of private ordering or political constructions of biological connection. The legal and social disruption of these connections exposes their structural and subjective materiality to individual and group identity and challenges conventional notions of the two-parent family that continue to dominate postmodern family doctrine and theory.

The Article deploys the gendered and racial history and development of adoption law and the lived experience of adoption’s constituents to illustrate the perils and promise of the new postmodern families. Although this critique commends the new regulatory schemes for legitimating lesbian and gay family formation, assisted reproduction, and stepparent-child relationships, it problematizes the exclusive bionormativity of this regulation and suggests that the law should recognize and even legitimate the porousness of these new families. The article proposes a unique and perhaps controversial approach to kinship that pushes against current regulatory trends that privilege social relations at the expense of biological connections.


March 28, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)