Family Law Prof Blog

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

Saturday, May 8, 2010

Will There Be No More Divorce?

Scientists have published a new study in the Journal of Neuroscience showing the results of a study that indicated the success of a nasal spray with oxytocin in making men more empathetic—as empathetic as a woman who did not receive the spray—for two whole hours.  Read more here and here.



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

Friday, May 7, 2010

8th Circuit Refuses to Exercise Jurisdiction in Frozen Embryo Case

The United States Court of Appeals for the Eighth Circuit recently issued a ruling refusing jurisdiction in a frozen embryo case.  Patricia Dodson (formerly Patricia Lay) and Dr. Jackson Lay were married when they enrolled in an IVF program at the University of Arkansas for Medical Sciences (UAMS).  Their participation in the program resulted in 18 cryogenically frozen embryos which were stored at UAMS.  After the parties divorced, Dodson asked UAMS to implant the embryos into her.  UAMS refused to do so until Dodson received Lay's written consent.  When he denied it, UAMS told Lay that her only options were embryo destruction, use of the embryos for medical research, or a transfer/adoption by another couple.  Dodson filed suit in Arkansas state court, seeking an order that she had the right (pursuant to language in her divorce decree) to choose among those options or implantation.  The Arkansas court held that UAMS held sole control over the embryos after the parties' divorce. 

After litigating the matter in state court for nearly 10 years, Dodson filed suit in federal district court.  The federal district court and the USCA for the 8th Circuit both held that the Rooker-Feldman doctrine prevents the federal courts from exercising jurisdiction in favor of "a state court loser seeking victory against his adversary in a subsequent section 1983 action in federal court."

Read the opinion here.


May 7, 2010 in Jurisdiction | Permalink | Comments (1) | TrackBack (0)

Katner: “Delinquency & Daycare”

David R. Katner (Tulane University--School of Law) has posted Delinquency & Daycare, 4 Harvard Law & Policy 49 (2010), on SSRN.  Here is the abstract:

As the nation faces policy challenges over juvenile delinquency and subsequent crime, one all-but-forgotten option remains as promising as ever despite its virtual absence in recent national discussions and debates: a comprehensive daycare and after-school care policy. For decades, social scientists in this country have examined various designs of early educational and daycare programs, some promising tremendous alterations in the lives of participants and others offering far more modest achievements. Today, however, long term studies provide a much clearer picture of how early child care programs and after-school programs offer significant benefits for communities. Longitudinal evidence suggests that early childhood intervention programs, which buffer the effects of delinquency risk factors, help prevent chronic delinquency and later adult offending. After-school care programs also provide healthy alternatives to otherwise unsupervised adolescent behavior and hopefully spare children and their communities the expense, fear, and suffering which often accompanies delinquent misconduct and subsequent adult criminal misconduct. Overall, early intervention programs help reduce risk factors that contribute to delinquent behavior and later adult offending, while after-school programs create activities for juveniles during the time period when many delinquent acts occur. European governments have funded early child care and educational programs for decades, and the time seems appropriate for this country to thoroughly review their programs and to consider following their lead.


May 7, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Thursday, May 6, 2010

Appellate Reversal of Child Removal for Parent's Drug Possession Charge

The Nebraska Court of Appeals has overturned a trial court decision to remove a child from the home based on his father's arrest for posession of crack cocaine.

Mere possession of an illegal drug does not mean the state can take custody of a child, according to a Nebraska Court of Appeals decision.

The father, whose full name is not used in the opinion, was picked up with a small amount of crack cocaine in March 2009.

That summer the Douglas County Juvenile Court determined that his infant son lacked proper parental care and supervision and took custody of the child.

The Appellate Court, in a split decision released Tuesday, overturned that ruling .

Juvenile Judge Donna Taylor based her decision that the child faced potential harm because the father might be incarcerated on a drug conviction.

However there was no evidence that the father was actually charged with any crime.

And if he were charged, he could get probation rather than a prison sentence, according to the Appellate Court decision.

Basing a decision on whether a parent might be incarcerated could apply to someone who got a number of speeding tickets or who wrote a bad check, said Stephen Kraft, a Douglas County public defender who represented the father.

In addition, the Appellate Court decision noted that there was no evidence that the father had a history of drug use.

The majority of the Appellate Court panel which heard the case also responded to a dissenting opinion that used information about drug addiction and abuse from government reports on websites.

"We strongly believe that we are limited to the evidence in the record," they wrote.

Read more news coverage here or the appellate opinion here.


May 6, 2010 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

IL Brings Finality to Disputed Custodies Earlier

The Illinois Supreme Court recently amended its rules to allow immediate appeals of child custody judgments, overruling In re Marriage of Leopando, 96 Ill 2d 114 (Ill. 1983).  The change aims to bring stability to children subject to custody disputes, so that they no longer have to wait while all other legal issues are being resolved.


May 6, 2010 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 5, 2010

Legal Battle Over Visitation with Mentally Incapacitated Mom

CNN reports the heartbreaking story of a father locked in a legal battle with his in-laws over the propriety of his triplets' visitation with their mentally incapacitated mother.

Abbie Dorn always wanted children, and in June 2006 she got her wish -- triplets. But during a difficult birth she suffered severe brain damage that took away her chance to raise them.

Now, her parents and former husband are locked in a legal battle over whether Dorn is capable of interacting with her children, and whether they should visit her.

On Tuesday, a judge in Los Angeles County Superior Court ruled that Abbie Dorn's parents have the right to fight for visitation rights on her behalf.

The ruling clears the way for a trial, scheduled for May 13. No matter who prevails, the case is likely to lead to years of appeals that could result in a legal landmark affecting the rights of mentally incapacitated parents.

Dorn, 34, last had contact with triplets Esti, Reuvi and Yossi in October 2007, when they were toddlers. They will turn 4 on June 20.

Paul and Susan Cohen, a physician and former nurse, are conservators of Abbie Dorn's estate and care for their daughter full-time at their home in Myrtle Beach, South Carolina. A $7.8 million medical malpractice settlement funds her treatment.

Her former husband, Daniel Dorn, is raising the triplets in Los Angeles, California.

Susan Cohen says her daughter has made considerable progress after intensive rehabilitation and now communicates by blinking her eyes.

"One slow blink means 'yes.' No response means 'no,'" said Cohen.

With his wife's parents overseeing her medical care, Dan Dorn found himself a young father raising triplets. He believed Abbie's prospects of recovery were faint. One year to the day after the triplets were born, Dan notified the Cohens that he was ready to move on.

At Dan's request, the Cohens initiated divorce proceedings on Abbie's behalf. The divorce was finalized in the fall of 2008.

Dorn and the Cohens continue to disagree over whether or not Abbie is making progress in her treatment. They also cannot agree on whether she has the ability to interact with her children.

Dan Dorn maintains in his legal papers that it is not in his children's best interest to see their mother now.

Court battles like the one between Dorn and the Cohens are rare but not without precedent.

But there are key differences between these cases: Carney's case dealt with custody of a physically disabled parent, while the Dorns' involves visitation by a mentally incapacitated parent.

"There's no reason for the triplets not to have a relationship with their mother, whatever that relationship may be," said Lisa Helfend Meyer, the Cohens' attorney.

Dorn's attorney, Vicki J. Greene, responded that he "wants to be the one to parent the children and tell them at an appropriate age the proper details of their life. From our perspective, he gets to make the decisions. He's the father."

Dorn, who is seeking child support from Abbie's estate, stated in court documents that he has not told the children what happened to their mother because they are too young to understand. He says he will consider taking the children to see Abbie when they are older -- if he receives medical evidence that she will be able to communicate with them.

The Cohens argue that if the children are properly prepared for the situation, the experience will not be detrimental. They have requested that the children see a psychologist to help prepare them.

Read the full story here.


May 5, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

A Quarter of Adult Women Don’t Like Being Around Their Parents

Released today, Tom Rath and James K. Harter’s book Wellbeing: The Five Essential Elements—a book on what makes people happy or unhappy—highlights some surprising statistics based on research done by Alan B. Krueger, Daniel Kahneman, David Schkade, Norbert Schwarz and Arthur A. Stone:

27.1% of women don’t like to be around their parents, as opposed to 7.2% of men

15.3% of women don’t like to be around their spouses, as opposed to 15.8% of men

17.7% of women don’t like to be around their children, as opposed to 10.2% of men

Read the blog commentary here, or check out the book here.


May 5, 2010 in Books | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 4, 2010

Civil Unions Approved by Hawaii Legislature; Will Governor Veto?

Legislation approving civil unions was approved, somewhat unexpectedly, in the Hawaii legislature last week.  Now all speculation turns toward whether Republican governor Linda Lingle will veto the bill.

Lingle has long avoided saying whether she would veto the measure or allow it to become law. She has until

"She's kept it very close to the vest," said Dennis Arakaki, executive director of the Hawaii Family Forum and Hawaii Catholic Conference. "She won't let us know how she feels about it. Now we'll know. ... The ball is in her court."

He's sending e-mails to churches and text messages to supporters urging them to contact the governor's office to let her know how they feel about the issue.

Civil union backers will send handwritten letters and postcards to Lingle in addition to e-mails and phone calls asking her to approve the legislation, said Tony Wagner, Western Regional Field Director for the Human Rights Campaign.

"It's going to be important to keep up the pressure on the governor in order to demonstrate that there is support for this bill and for treating all families equally," Wagner said.

In addition, civil union supporters will likely take to the streets to wave signs as drivers pass by, he said.

Lingle has sent mixed signals: She wanted lawmakers to drop the issue because the state had more pressing budget matters to deal with, but she also said representatives should have put their votes on the record when they postponed a decision on the measure in January.

Lt. Gov. James "Duke" Aiona, who is seeking the Republican nomination for governor this fall, wants the bill vetoed.

"If the Legislature wanted to establish the equivalent of same-sex marriage, they should have put it on the ballot for the people to decide," Aiona said in a statement. "This bill should not be allowed to become law."

Although Lingle has until July 6 to make a decision, her intentions will be known sooner. She must send the Legislature a list of bills that she'll potentially veto by June 22. Measures not on that list would become law, either with or without her signature.

Read more here.


May 4, 2010 in Marriage (impediments) | Permalink | Comments (1) | TrackBack (0)

Tebbe & Widiss: “Equal Access and the Right to Marry”

Nelson Tebbe (Brooklyn Law School) & Deborah A. Widiss (Indiana University-Bloomington, Maurer School of Law) have posted Equal Access and the Right to Marry, 158 University of Pennsylvania Law Review 1375 (2010) on SSRN.  Here is the abstract:

How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal protection law. Two other arguments have dominated litigation and adjudication so far, but both of them suffer from weaknesses. First, a liberty theory grounded in due process argues that everyone has a fundamental right to civil marriage. But civil marriage is a government program that states likely could abolish without constitutional difficulty. In that way, it differs from other family-related liberties such as the ability to procreate or engage in sexual intimacy. Second, an equality theory suggests that classifications on the basis of sexual orientation are constitutionally suspect. But that approach is unlikely to succeed in the Supreme Court or many state tribunals. Equal access, in contrast, requires states to justify laws that selectively interfere with civil marriage, regardless of any independent due process or classification-based equal protection violations. We show how this approach is grounded in precedent regarding intimate relationships, as well as in analogous law concerning voting and court access. Our proposal offers courts a workable way to evaluate the constitutionality of different-sex marriage requirements and a more satisfying conceptual basis for the right to marry generally. It also suggests a useful framework for thinking about recognition of other nontraditional family structures.


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

Monday, May 3, 2010

Catholic Bishop Objects to Same Sex Marriage Class at Seton Hall

A Catholic bishop is asking Seton Hall to reconsider its offering of a course on same sex marriage:

The governing board of Seton Hall University, the largest Catholic college in New Jersey, is reconsidering whether to allow a course on same-sex marriage this fall after Newark Archbishop John J. Myers said the class conflicts with Catholic teaching.

According to the Star-Ledger, Myers objected to the course for upperclassmen in a statement. Although he does not have the authority to cancel a class, he serves as chairman of the school’s board of trustees and leads the board of regents, which oversees academic issues.

This proposed course seeks to promote as legitimate a train of thought that is contrary to what the Church teaches. As a result, the course is not in synch with Catholic teaching," said Myers in the statement reported by the Star-Ledger. "Consequently, the board of trustees of Seton Hall have asked the board of regents to investigate the matter of this proposed course and to take whatever action is required under the law to protect the Catholicity of this university."

Larry Robinson, the vice provost, said the political science department and the dean approved the course because it was an objective examination of a public policy issue, not an advocacy course. 

Read more here.


May 3, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Illinois Department of Children and Family Services Diverting Cases to Probate Court?

From the Chicago Tribune:

DCFS has increasingly diverted families with issues of neglect or abandonment to probate court, a system typically reserved for guardianship cases that are less complex, according to a Tribune review of court documents and interviews with judges and lawyers.

Some judges and advocates said DCFS has steered these cases away in order to reduce its caseloads. Child-welfare officials, however, said they advise families to go to probate court only when their custody cases can be safely handled outside of an overburdened state system. But even DCFS director Erwin McEwen concedes that some cases are going to the wrong court.

The Tribune examined court records from dozens of cases and found a handful of examples where prospective guardians said they were pressured to go through probate court. In one case, relatives seeking custody said child welfare workers warned them that if they didn't take the probate route, the children might be taken away and placed them with strangers. In another case, a grandmother said caseworkers implied that her grandchild would be placed in a state facility if she did not seek guardianship in probate court.

A juvenile court judge can order home visits to monitor the children's safety, offer support services such as counseling to families and establish safeguards to ensure that children are not returned to parents who continue to neglect or abuse them. In general, a probate court judge does none of those things.

Read more here.


May 3, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, May 2, 2010

Revoking Marriage Licenses

I found this Time magazine article to be hilarious!  It suggests (inspired by Larry King's anticipated 8th divorce) that some individuals should be disqualified from obtaining marriage licenses.

Barring a last-minute reconciliation, Larry King is about to get unhitched for the eighth time. This despite the fact that his wife, Shawn Southwick, is 26 years younger and about a foot taller than he is. In other words, a perfect match. Nevertheless, it seems likely that the ex — Mrs. King club will soon welcome its seventh member — only seven, because one of the Mrs. Kings served two tours. And Mr. King will be back in the dating pool.

Losing a life partner or two could happen to anyone, but going through seven requires some effort. The vast majority of Americans — about 97% — wimp out and do not wed more than three times. As an octospouse, the 76-year-old King is in rarefied company. Elizabeth Taylor has also hatched and dispatched eight unions. (Recent reports of a ninth have proved erroneous.) So has Mickey Rooney. Zsa Zsa Gabor has been married nine times. William Shatner has an impressive number of exes, as do Billy Bob Thornton and Joan Collins. Like news anchoring, the field of extreme spouse collecting is dominated by women who were once considered very good-looking and men who almost never were.

The official record holder until recently, it's gratifying to note, was not a celebrity. The late Linda Wolfe of Indiana had 23 ex-husbands, although she admitted she married the last one as a publicity stunt. The other 22 were thus completely, totally genuine and heartfelt, and when last contacted by the press, Wolfe said she wouldn't mind marrying again. She was hoping for a straight man; on the two occasions she married a gay guy, it didn't take.

All of which raises the question: How many marriages are too many? Statistics show that more second marriages break up than first ones and more third marriages — about 75% — break up than second ones. Given that trajectory, shouldn't a referee step in after the third or fourth and suspend play for the good of all?

In no other area of life can grown people flame out so often and so badly and still get official permission to go ahead and do the same thing again. If your driving is hazardous to those around you, your license is suspended. Fail too many courses at college, and you'll get kicked out. You can lose your medical or law license for a single infraction. Stock analyst Henry Blodgett was prohibited from trading securities forever for publicly saying things he knew weren't true. So why do people who are committed vows abusers keep getting handed marriage licenses at city hall? If batters and violent offenders get only three strikes, why should bad spouses get more?

Read more here.


May 2, 2010 in Current Affairs | Permalink | Comments (1) | TrackBack (0)