Family Law Prof Blog

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

Saturday, April 24, 2010

Wax: "Diverging Family Structure and 'Rational' Behavior: The Decline in Marriage as a Disorder of Choice"

Amy L. Wax (University of Pennsylvania Law School) has posted "Diverging Family Structure and 'Rational' Behavior: The Decline in Marriage as a Disorder of Choice" on SSRN.  Here is the abstract:

The past fifty years have witnessed a growing divergence in family structure by social class, income, education, and race. The goal is to explain why significant segments of the population are moving away from the traditional patterns of family and reproduction. Most demographers acknowledge that external and material constraints fail to account for most of the present dispersion by class and race in marriage, divorce, and patterns of childbearing. Nor do these factors explain the widening of disparities over time. In attempting to improve on prior theories, this paper proposes a different explanation for these developments. It argues that demographic trends can best be explained as the product of growing differences in styles of thinking about partner choice and reproductive behavior. Drawing on the work of psychologists Richard Herrnstein and Gene Heyman, the paper presents a model that contrasts two distinct types of “rational” choice: “global” and “local.” It then demonstrates that average disparities by race and class in the adoption of local or global decisionmaking methods can account for the significant demographic variations now observed in rates of marriage, divorce, and out of wedlock childbearing. The paper then suggests that this diversity emerged in the wake of the normative deregulation of the sexual revolution. The demise of strong heuristic mores and institutional constraints, and the rise of individualism, facilitated the development of contrasting decisionmaking styles in intimate relations.


April 24, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Friday, April 23, 2010

Embryo Adoption Dispute Between Two Married Couples

Two Missouri couples are battling over the fate of unimplanted embryos transferred by contract in 2009:

Edward and Kerry Lambert of Pleasanton filed suit this week in Alameda County Superior Court seeking to regain power over two frozen embryos they donated - or, as both religious families put it, gave up for adoption - to Patrick and Jennifer McLaughlin.

Jennifer McLaughlin also filed suit in Missouri to maintain legal custody of the embryos.

Kerry Lambert and Jennifer McLaughlin met in January 2009 via a Web site designed to facilitate embryo donation. The Lamberts had four embryos left over from an in-vitro fertilization procedure that had successfully given them a son in 2007.

All of their embryos were created in 2006 using the sperm of Edward Lambert, now 53, and the egg of an anonymous donor. The Lamberts considered their family complete, but didn't want to destroy the extra embryos or donate them to science.

Jennifer and Patrick McLaughlin, a 42-year-old attorney, had tried getting pregnant without success. They had already adopted five children, now ages 4 to 11, but wanted to expand their family.

Both families signed a contract in February 2009 granting custody of the embryos to the McLaughlins. The contract was a pro forma one previously drafted to satisfy the Catholic church's doctrine regarding the sanctity of life, according to Al Watkins, the attorney for Jennifer McLaughlin.

The contract is unusual in that it states that if the McLaughlins didn't implant the embryos within a year, the Lamberts could revoke the agreement. Watkins called the clause "a safety valve" so that if the embryos aren't used, the donors can find another solution.

The four embryos have always been stored at a fertility clinic in San Ramon, and McLaughlin flew to the Bay Area, where two of them were implanted on May 21, 2009. She gave birth to brown-haired, blue-eyed twin girls - Sarah Estelle and Anna Isabelle - on Jan. 8.

She said she delayed making a final decision about what would happen to the two remaining embryos.

The former first-grade teacher said she knew raising seven children would be incredibly demanding and wanted to see how she and her family coped before deciding whether to add two more to their brood. She has now decided she wants to try to give birth to the remaining embryos.

"I've always wanted to have a big family," she said. "Siblings should be kept together."

But she said she got e-mails from Kerry Lambert starting in December, saying she'd found another family to take the remaining embryos.

Last week, Jennifer McLaughlin received a phone call from the San Ramon fertility clinic saying the Lamberts intended to reclaim the embryos, prompting the filing of the lawsuits.

The Lamberts have refused to provide more details about why they want the embryos back. Jennifer McLaughlin, on the other hand, has hired a publicist and appeared on national television to discuss the case.

The San Ramon clinic has agreed to keep the embryos until the case is resolved in court. A hearing date in the Missouri case is set for Wednesday.

Read more here.


April 23, 2010 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

U.S. Supreme Court Case Impacting Domestic Violence


Advocates for domestic violence victims are sounding the warning about a little-noticed U.S. Supreme Court case that they say could make it much harder for battered women and men to enforce restraining orders against their abusers.

 The case Robertson v. U.S. ex rel. Watson . . . challenges the way restraining orders are enforced in the District of Columbia. D.C. law allows victims themselves to bring criminal contempt charges when abusers infringe on a court order. At least 14 states have similar setups, according to an amicus brief filed by George Washington University Law School's Domestic Violence Legal Empowerment and Appeals Project.

Read more about this pending Supreme Court case here.


April 23, 2010 in Domestic Violence | Permalink | Comments (2) | TrackBack (0)

Thursday, April 22, 2010

Argument Heard in Texas Same-Sex Divorce Case

The Dallas Court of Appeals heard argument yesterday in a case in which two men married in Massachusetts sought a divorce from a Texas court.  The trial court granted a judgment of a divorce, and the Texas Attorney General has appealed.

The Dallas men, who declined to be interviewed for this story and are known only as J.B. and H.B. in court filings, had an amicable separation, with no disputes on separation of property and no children involved, said attorney Peter Schulte, who represents J.B. The couple, who married in 2006 in Massachusetts and separated two years later, simply want an official divorce, Schulte said.

Gay and lesbian couples who turn to the courts when they break up are getting mixed results across the nation. A Pennsylvania judge last month refused to divorce two women who married in Massachusetts, while New York grants such divorces even though the state doesn't allow same-sex marriage.

"The bottom line is that same-sex couples have families and their families have the same needs and problems, but often don't have the same rights," said Jennifer Pizer, a lawyer for Lambda Legal, a national legal organization that promotes equal rights for gay, lesbian, bisexual and transgender people.

"It really is an unenviable position that the courts have put these couples in," said Karen Loewy, an attorney at the Gay and Lesbian Advocates and Defenders.

Abbott, a Republican seeking re-election, declined to be interviewed for this story. He has argued in court filings that because the state doesn't recognize gay marriage there can be no divorce, but a gay or lesbian Texas couple may have a marriage voided. Attorneys representing such couples argue that voiding a marriage here could leave it intact in other states, creating problems for property divisions and other issues.

Dallas divorce attorney Tom Greenwald said he's advising gay couples to wait and see how things play out in the courts.

"Getting the court of appeals to even accept the issue is a step in the right direction in getting some clarity on this," he said. "We just don't know how to treat it."

Read more here.


April 22, 2010 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Easteal: “Marriage-Like Relationships: Can Battered Woman Syndrome or Reality Be Pleaded in Social Security Law?”

Patricia L. Easteal (University of Canberra) has posted Marriage-Like Relationships: Can Battered Woman Syndrome or Reality Be Pleaded in Social Security Law?, 34 Alternative Law Journal 174 (2009).  Here is the abstract:

The effects of living in domestic violence upon its victims’ ability to make choices have been documented in various legal areas. For instance ‘learned helplessness’ and the other disempowering effects of domestic violence are now well recognized in the criminal law relating to murder and provocation. Evidence showing how victims’ choice-making may become constrained thus affecting their capacity to leave the violent relationship has been deemed as relevant in a number of cases. But battered woman’s syndrome, or what is perhaps better described as ‘battered woman’s reality,’ has had only patchy acceptance in case law outside of homicide. A recent Administrative Appeals Tribunal decision suggests though that it may now be achieving acceptance in social security law.


April 22, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 21, 2010

Willis: "Property Transfers Incident to Divorce: the End of a Nightmare, the Opening of Two Loopholes"

Steven J. Willis (University of Florida College of Law) has posted "Property Transfers Incident to Divorce: the End of a Nightmare, the Opening of Two Loopholes" on SSRN.  Here is the abstract:

From 1987 until 2002, the assignment of income doctrine applied to property transfers incident to divorce. Since Revenue Ruling 2002-22 was issued, the doctrine has not applied. This article argues that the revenue ruling is poor public policy and it should be revoked. It effectively results in the deductibility of child support and alimony without restriction. As a result, the ruling effectively repeals two important statutory constraints.
For practitioners, however, this can be very beneficial, as it gives substantial tax benefits to some divorcing couples.


April 21, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Grief over a Parent’s Death

A recent CNN story confirms the obvious strength of the parent-child bond:

In fact, 73 percent of adults believe that their lives would have been "much better" had their loved ones not died when they were young, according to a survey released Monday by Comfort Zone Camp, a nonprofit provider of childhood bereavement camps, and Matthew Greenwald and Associates Inc.

 Read more here.


April 21, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 20, 2010

Minnesota "Couples on the Brink" Bill

Proponents of a pending bill in the Minnesota legislature argue it provides "an off ramp on the superhighway to divorce":

Minnesota courts are working to process divorces more quickly. Research shows the longer divorce cases drag on in the courts, the more animosity builds up, particularly if couples have children.

But some wonder if speedy divorces are too quickly rushing people to end marriages -- even couples who might have some hope of reconciling. To address such concerns, the Legislature is considering a bill that family advocates say would provide an "off ramp" on the superhighway to divorce.

"We have data on 2,500 divorcing people in Hennepin County. [They are] parents who are a lot more ambivalent and reluctant about getting a divorce than anybody realized," said Bill Doherty, a marriage expert at the University of Minnesota.

Doherty and his research team, which included a family court judge, surveyed 2,484 divorcing parents in 2008 and 2009, and found that 70 percent of couples agreed divorce was the best course of action. But in about one-third of the cases, at least one spouse wasn't sure.

Some were wavering. Others said they'd stay if their spouse significantly addressed problems such as alcoholism or infidelity, and others said they'd do anything to save their marriage.

The most likely person to be interested in saving a marriage was the person left behind. Since two-thirds of divorces are brought by wives, husbands are more often what Doherty calls "the hopeful spouse."

But the courts aren't designed for such uncertainty, said Doherty, a licensed psychologist and director of the university's Marriage and Family Therapy program.

"The way the courts view it is you have a legal right to a divorce," he said. "And just like when you show up to get your driver's license, nobody says, 'Are you sure you want to drive?'"

The Couples on the Brink bill that Doherty is championing would use an additional $5 tax on marriage licenses to develop a way to identify couples who might want to reconcile -- and improve the quality of marriage counseling they'd receive.

"They go to clergy who often don't know what to do with them," Doherty said. "They go to counselors who are sometimes not well trained in marriage counseling. And even if they do some marriage counseling, these are difficult situations."

Doherty likens it to practicing medicine in an emergency room. He said that with better training for counselors and clergy, 10 percent of couples headed for divorce might be able to restore their marriages.

Couples with a history of domestic violence would not qualify.

Divorce lawyers say there are better uses for this public money. The Minnesota State Bar Association family lawyers narrowly voted against supporting Couples on the Brink, said Pamela Waggoner, chairwoman of the bar's family law section.

"We have other programs that are wanting -- domestic violence prevention programs and programs that assist parents in successfully parenting their children as a separated couple," she said.

Read more news coverage here or the bill here.


April 20, 2010 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

Feinberg: "The Plus One Policy: An Autonomous Model of Family Reunification"

 Jessica Feinberg (DePaul University College of Law) has recently posted The Plus One Policy: An Autonomous Model of Family Reunification, Nevada Law Review (forthcoming), on SSRN.  Here is the abstract:

Citizens who share close, important relationships with non-citizens often face significant obstacles if they wish to continue these relationships on a permanent basis within the United States. In order to lawfully immigrate to the United States, non-citizen loved ones must fit within one of the narrowly defined admission categories established by the Immigration and Nationality Act. The majority of individuals able to immigrate can do so because they share relationships with United States citizens that render them eligible under the “family reunification” admission category. Unfortunately, immigration law’s definition of family includes only relationships that could fit within the “traditional family unit.” Thus, many citizens find themselves unable to reunite with the people they value most. This Article proposes adding a new category to immigration law’s current family reunification scheme. The “Plus One Policy” would allow an adult United States citizen to sponsor one important individual in her life who does not fit within any of the pre-existing family reunification provisions. The Plus One Policy seeks to supplement the current purely “bounded model” of family reunification, in which the government categorically decides which relationships are most valuable to its citizens, with an “autonomous model,” whereby citizens decide for themselves which relationships they value most. Not only would such a model demonstrate that the United States recognizes and respects the wide variety of domestic and global conceptions of family, it would also further the humane and practical goals of family reunification law.


April 20, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Monday, April 19, 2010

Bernstein & Triger: "Over-Parenting"

Gaia Bernstein (Seton Hall University School of Law) and Zvi Triger (The College of Management School of Law (Israel)) have posted "Over-Parenting" (forthcoming UC Davis Law Review) on SSRN.  Here is the abstract:

Today the child is king. Child rearing practices have changed significantly over the last two decades. Contemporary parents engage in Intensive Parenting. Parents devote their time to actively enriching the child, ensuring the child’s individual needs are addressed and he is able to reach his full potential. They also keep abreast of the newest child rearing knowledge and consistently monitor the child’s progress and whereabouts. Parents are expected to be cultivating, informed and monitoring. To satisfy these high standards, parents utilize a broad array of technological devices, such as the cellular phone and the Internet, making Intensive Parenting a socio-technological trend.

Many legal doctrines aim at defining the scope of parental responsibilities; yet, courts, legislatures and scholars alike have ignored this significant change in child rearing practices. Unattended, the law already plays an important role in enhancing the socio-technological trend of Intensive Parenting. In the area of custody disputes, legislatures and courts effectively enforce Intensive Parenting norms. Other recent legal developments, such as the constriction of the Parental Immunity Doctrine and recurring transformation of preferred child rearing practices into legal standards, open the door to the incorporation of additional Intensive Parenting norms into the law.

This Article underscores that despite its advantages, Intensive Parenting can become over-parenting. First, the Article shows that Intensive Parenting is not a universal trend. It is class, race, ethnicity and culture dependent. Enforcement of Intensive Parenting in a multicultural society would increase existing biases in the child welfare system and force Intensive Parenting on those who may be financially unable or ideologically unwilling to adopt it. Second, the Article reveals that although Intensive Parenting carries important advantages it can disrupt healthy psychological development in children. The Article, therefore, cautions against hasty incorporation of Intensive Parenting norms into the law.


April 19, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

First COA Sexting Case

From the ABA Journal:

A federal appeals court has upheld an injunction that bars the child pornography prosecution of a teen girl in Pennsylvania who appeared topless in a photo that ended up on high school students’ cell phones.

The opinion by the 3rd U.S. Circuit Court of Appeals is the first decision by a federal appeals court involving "sexting," according to the New York Times, the Associated Press, the Legal Intelligencer and the Philadelphia Inquirer. The opinion (PDF) found that the teen and her mother had a likelihood of success on the merits of their First and 14th Amendment claims.

Read more here, and the opinion here.


April 19, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, April 18, 2010

Is "Love Birds" An Oxymoron?

Perhaps so:

It's not all love in the avian world, where divorce, child abandonment and marrying up are part of everyday life.

"The Bird Detective," to be published in Canada this week, dispels the love-bird myth that birds pair up for life, and paints a picture instead that includes adultery and the pursuit of comfort.

"In terms of top 10 myths about birds, the permanent pair bonds that we think about, that does occur for some birds, but for most of the little songbirds that we studied, no," said the book's author, Bridget Stutchbury, a biology professor at York University in Toronto.

The book draws on 20 years of research from radio tracking and DNA testing and shows male Acadian flycatchers fertilizing females far away from their home nests, and female blue headed vireos premeditating divorce by checking out new mates before they abandon their young.

"The main discovery is that so many birds do divorce for what humans would describe as selfish reasons," Stutchbury said, noting that females may seek out males that are more colorful and better singers, or look to "step up in the world" and move to areas that are safer and have more food.

"Females are looking for the highest quality male so that their own offspring will be high quality," she said.

Divorce is surprisingly common among birds, and most live with one partner for only a few months or years. Divorce rates range from 99 percent in the greater flamingo to zero in the wandering albatross.

Read more here.


April 18, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)