Family Law Prof Blog

Dauvergne & Millbank: "Forced Marriage as a Harm in Domestic and International Law"

Catherine Dauvergne (University of British Columbia Faculty of Law) and Jenni Millbank (University of Technology, Sydney) have posted "Forced Marriage as a Harm in Domestic and International Law" on SSRN.  Read the abstract here:

This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages both within Europe and elsewhere. We pay particular attention to British initiatives because they are in many ways the most far-reaching and innovative, and thus the contrast with the response of British refugee law is all the more stark.

AC

Murray: "Exposing the Underground Establishment Clause in the Supreme Court’s Abortion Cases"

Justin S. Murray (Georgetown University Law Center) has posted Exposing the Underground Establishment Clause in the Supreme Court’s Abortion Cases on SSRN.  Here is the abstract:

In Roe v. Wade, the Supreme Court held that women have a constitutional right to abortion based on the Due Process Clause. To arrive at this conclusion, the Court implicitly relied on concepts that properly belong to the Establishment Clause - in particular, the Establishment Clause requirement that all laws must be supported by secular purposes, not religious ones. This Article is the first attempt to describe and critically evaluate the Court’s use of Establishment Clause ideas in Roe and later abortion cases.

Some brief background is essential in order to grasp the structure and significance of the underlying Establishment Clause dynamic of Roe. The Due Process Clause allows the government to restrict fundamental constitutional liberties (such as abortion) if it has a compelling reason for doing so. States have defended their abortion laws by arguing that protecting unborn human life against homicide is a compelling reason to restrict abortion. This argument, advanced in Roe, directly presented the Supreme Court with the question of whether fetuses are human beings entitled to protection against homicide.

The Court, however, refused to answer the question and provided a convoluted, ambiguous explanation for its refusal. Careful interpretation of these ambiguous passages reveals the Court’s underlying concern that neither the judiciary nor the legislature may decide the question of fetal humanity because it is a controversial religious question. When the Court’s rationale is clarified and plainly stated in this way, it becomes clear that Roe’s method of analysis - rejecting the state’s interest not because it is false or unimportant, but because it is religious and therefore an inappropriate basis for political judgment - is identical to the Establishment Clause requirement that legislation must be based on a secular purpose.

However, the Court’s analysis is problematic, because Establishment Clause principles are consistent with governmental protection of fetal life. The humanity of the fetus can be plausibly supported, not only on religious grounds, but also on the secular grounds of philosophical, historical, and experiential reasoning. To be clear, I do not argue that these secular grounds prove beyond dispute that fetuses are human beings. Instead, I defend the more modest proposition that a debatable secular case can be made for viewing fetuses as human beings. This conclusion is not strong enough to justify criminalization or restriction of abortion (which is beyond the scope of this Article), but it does prove that such criminalization or restriction would not violate the Establishment Clause. Thus, the Court should revisit the fundamental question that it evaded in Roe and later cases: is the fetus a human being, such that legislatures have a compelling interest in protecting fetal life against abortion?

MR

 

Iowa Grandparents Seek More Rights

As Iowa state legislators resumed their work this week, they are facing calls to change the laws on grandparents’ visitation to favor the grandparent-grandchild relationship.  Of course, legislators will be somewhat restricted by the famous Supreme Court case limiting grandparents’ visitation, Troxel v. Granville, 530 U.S. 57 (2000), available here.

From the Associated Press and The Des Moines Register:

Some family-law attorneys are calling for changes in Iowa law to make it easier for a court to grant grandparents face time — especially if one parent is dead.

Judy O'Donohoe, the Schwerins' Charles City attorney, is among those who believe state lawmakers can better balance children's needs for their grandparents and a parent's right to determine with whom their children associate and not run afoul of state and federal court decisions.

Current Iowa law is so strict it's almost impossible to get visitation, several lawyers said. Grandparents and great-grandparents have the right to ask the court for visits, but they have no shot at winning unless they can prove the custodial parent is "unfit" to make decisions about whom the child sees.

Court rulings don't require such a strict state law, advocates for change say. 

Read the full article here.

MR

Abel: "Keeping Families Together, Saving Money, and Other Motivations Behind New Civil Right to Counsel Laws"

Laura Abel (Brennan Center for Justice at NYU School of Law) has posted Keeping Families Together, Saving Money, and Other Motivations Behind New Civil Right to Counsel Laws, Loyola of Los Angeles Law Review (forthcoming), on SSRN.  Here is the abstract:

In 2006, the American Bar Association’s House of Delegates unanimously passed a landmark resolution, calling on states to provide a right to counsel in civil cases in which “basic human needs” are at stake. In the years leading up to the resolution’s passage, and since then, Alabama, Arkansas, Connecticut, Florida, Hawaii, Louisiana, Montana, New York and Texas have enacted laws expanding the right to counsel in civil cases.

While most of the bills concerned child welfare in some way, their approaches varied widely and included: 1) expanding an existing right to counsel in termination of parental rights cases brought by the state so that it now covers cases in which a private individual is seeking to terminate parental rights; 2) providing counsel for parents at the early stages of child abuse and neglect cases; 3) strengthening an existing right to counsel for parents in child abuse and neglect cases by taking various measures to improve the quality of representation provided; 4) requiring the state government (or a nonprofit providing foster care services for the state) to retain an attorney to file a petition to adjust the immigration status of children who appear eligible for special immigrant juvenile status, and 5) providing counsel to parents in child custody proceedings pending in the state’s trial courts of general jurisdiction.

 Although there is a growing body of law review articles regarding the civil right to counsel, until now the passage of these statutes has received little attention. Rather, most of the recent literature focuses on the potential for judicial expansion of the right. This article attempts to understand the reasons for legislative expansion of the right, and to draw some lessons for the future. Section II examines the legislature’s motivations for passing each statute. Section III explores motivations common to many of the bills, including expectations of financial savings, a desire to fix failing state child welfare bureaucracies, and notions of fundamental fairness. Most of the bills were enacted with little or no opposition. Section IV draws lessons that may prove helpful to advocates wishing to heed the ABA's call to expand further the right to counsel in civil cases.

MR

Evidentiary Issues in IL Domestic Violence Cases

The Illinois Court of Appeals recently affirmed that section 115-7.4 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.4 (West. Supp. 2007)), which permits prior acts of domestic battery to be admissible in a domestic battery trial, does not violate defendant’s due process.  This is because another statutory section provides a notice requirement, while yet another statutory section mandates that the trial court, before admitting such evidence, engage in an inquiry regarding whether the other-crimes evidence is relevant and whether its probative value outweighs its prejudicial effect.

The case is People v. Dabbs, No. 3-08-0709 (Ill. Ct. of App. 2009) and the opinion can be read here.

MR

Norwegian Study Shows No Significant Correlation Between Divorce Rate and Parenting a Child with Cancer

Using data on nearly 978,000 married couples in Norway, researchers found that divorce rates between 1974 and 2001 were no higher among couples with a child suffering from cancer compared with other parents.

When other factors were considered, such as parents' age and family income, couples who had a child with cancer were 4 percent more likely to get divorced than other parents -- a difference that was not significant in statistical terms.

Few studies have looked at divorce among parents of children with cancer. But there is often a "general perception" -- whether at cancer clinics or in support groups -- that the strain of having a child or a spouse with cancer puts couples at risk of divorce, noted Dr. Astri Syse of the Cancer Registry of Norway in Oslo, the lead researcher on the new study.

These perceptions, she told Reuters Health in an email, are "unsubstantiated myths that may add another burden to the people afflicted by cancer or afflicted family members, and thus important to highlight as incorrect."

"In general, our study ought to reassure parents of children with cancer," Syse said.

She added, however, that the study was conducted in a country with an extensive welfare system that includes free healthcare, and that may shield couples from some of the economic hardships and other stresses that can affect families dealing with a child's cancer.

That, according to Syse, leaves the question of whether the findings extend to countries with different health and welfare systems, including the U.S.

Read the full story here.

AC

Psychiatrist Communications Unprotected Under Act in IL Custody Cases

In answering a question certified for interlocutory appeal, an Illinois Appellate Court determined that the Mental Health Confidentiality Act does not protect communications with Section 604(b) court-appointed psychiatrist in custody-visitation evaluation.  The party did no receive mental health services under the Act and the relationship was not therapeutic.  Here, the party also had no expectation of the confidentiality of the communications.

The case is Johnston v. Weil, No. 1-08-2861 (Ill. Ct. of App., Dec. 2, 2009) and the opinion can be read here.

MR     

Supreme Court Hears Oral Arguments on Civil Commitment of Sex Offenders Today

Today, the United States Supreme Court heard arguments in United States v. Comstock (08-1224), which deals with a federal law that indefinitely commits those who finished serving their sentences in North Carolina, typically for sexual offenses against minors.  During oral argument, General Kagan pointed that out of 103 people certified under these laws, 83 had committed sexual offenses.  She stated:

What is necessary [under this law] is two things: First, that the person in fact have engaged in sexually violent behavior or child molestation. So there is a factual predicate there. And -- and so far, the Bureau of Prisons has found that about 15,000 people whom it has reviewed meet that factual predicate. Of those, the Bureau of Prisons has certified only 105 of those, who were also found to have the kind of mental illness that made it reasonably likely that -- that they would continue to commit this -- these kinds of offenses. (Tr. 24-25).

The Supreme Court has previously upheld a similar Kansas law in Kansas v. Hendricks, 521 U.S. 346 (1997).

The Supreme Court oral argument transcript in United States v. Comstock (08-1224) is available here, and commentary on the law from a victim's perspective is here.

MR

 

More on the YouTube Debate

For those interested in reading more about the debate on whether trial recordings from the controversial Proposition 8 case now playing out in California should be posted on YouTube (see blog post about the case here), check out this CNN article.  The United States Supreme Court is expected to rule on the issue by Wednesday.

AC

The Beginnings of a Supreme Court Ruling on Same Sex Marriage?

CNN reports on on a trial that began yesterday in U.S. District Court in San Francisco challenging California's Proposition 8 (which bans same-sex marriage).

[Perry and Stier have] been committed to each other for eight years and have four sons together, but there's a component missing in one Berkeley, California, couple's life that's out of reach for them: getting married.  Perry and Stier, along with Jeffrey Zarrillo and Paul Katami, of Los Angeles, are the two couples at the heart of the case, arguing that California's ban on gay marriage is unconstitutional. They are asking Chief Judge Vaughn R. Walker to issue an injunction against Proposition 8's enforcement.

The case will likely head to the U.S. Supreme Court no matter what the outcome. It is expected to set legal precedents that will shape society for years to come and result in a landmark court decision that settles whether Americans can marry people of the same sex.

Representing them are two high-powered attorneys, Ted Olson and David Boies. They're an unlikely pair -- former courtroom adversaries best known for being on opposing sides of the "hanging chad" dispute of the 2000 presidential election in Florida.

Republican California Gov. Arnold Schwarzenegger and the state's Democratic Attorney General Jerry Brown are defendants in the lawsuit because of their positions in California government. However, both have said they would not defend the suit. Brown filed a legal motion saying he agreed with the position advanced by Olson and Boies. Schwarzenegger has taken no position.

And if you want to watch it all as it plays out:

Plans had been made to have a camera in the courtroom, and the proceedings distrubuted on YouTube, but the ballot initiative's sponsors prevailed in their 11th-hour bid to persuade the U.S. Supreme Court to restrict distribution of video of the trial -- at least temporarily.

The justices wrote in their terse order that they need until at least Wednesday afternoon to consider the camera issue.

Read the full story here.

AC

Ate Too Much Over the Holidays?

Then let’s hope you’re not part of BeautifulPeople.com, an international dating site for beautiful people.  Many members, especially American ones, have been recently expelled because of gaining weight over the holidays.  Suddenly, I’m starting to understand that 50% divorce rate…  Read more here. 

MR

Happy Divorce Day!

Today is D-Day.  No, not that D-Day.  Divorce Day.

D-Day, or Divorce Day is widely accepted to be the busiest day of the year amongst family law circles.

It is the day that falls on the first Monday after the school spring term starts in January. In 2010 D-Day is scheduled to fall on January 11.

Kit, who has recently joined South West based law firm Pardoes, said: “The first full working week after Christmas when the kids have gone back to school is typically the time when couples whose relationships have been on the rocks for some time will often call it a day.

“The Christmas holiday period is usually a pivotal time when couples will make a last ditch attempt to affect some kind of reconciliation. But sometimes, it is this enforced time together that leads couples to make that final decision.”

Read more here.

AC

Schiltz: "Dueling Vocations: Managing the Tensions between Our Private and Public Callings"

Elizabeth Rose Schiltz (University of St. Thomas School of Law) has posted Dueling Vocations: Managing the Tensions between Our Private and Public Callings, a chapter from her forthcoming book Women, Sex, and the Church (2010), on SSRN.  Here is the abstract:

This chapter in a forthcoming book (Women, Sex, and the Church, ed. Erika Bachiochi (Boston: Pauline Books & Media 2010) argues that the work-life balance issues often characterized as “women’s issues” in discussions of social phenomena with labels like “the opt-out revolution” or the “Mommy wars” should be understood more broadly as manifestations of the tensions inherent in the precarious balance between the private vocation and the public vocation to which each of us, whether male or female, a parent or childless, is called.

By our private vocation, I mean our calling to live according to a Christian understanding of the web of relationships into which we are all personally imbedded. The most significant of these relationships is typically the relationship we have with our spouse and then the other members of our family, but they extend to relationships with our co-workers, fellow-parishioners, neighbors, the members of any religious orders to which we might belong and, most importantly, to God. By our public vocation, I mean our responsibilities to live and witness as Christians in and to the various social institutions to which we belong – the Church, our local communities, our places of employment, our country, and our world.

The flashpoint in most discussions of the tensions between our private and public vocations is typically the conflict between our responsibilities to our families and to our professional – paid – work. These two vocations are clearly, at this point in the world’s history, at a particularly tenuous balance. The market for paid work, as currently structured, makes demands on many of us that are not particularly conducive to living out our private vocations as primary caregivers of children or elderly parents. But our private vocations also include our relationships to God and others in our lives. And our public vocations also include our commitments to institutions and enterprises other than our paying jobs, such as volunteer work, apostolic activity, and social and political advocacy.

In this article, I argue that the teaching of the Catholic Church offer many resources for understanding and navigating the tensions between our private and public vocations. Using the controversial 2005 American Prospect article by Linda Hirshman (Homeward Bound) as an example of common contemporary feminists understandings of the issues at stake in these tensions, I first explore the commonalities between the positions of many of these feminists and that of the Church regarding the need to construct social policies that facilitate women’s participation in the workforce. Then, again using Hirshman’s article as an example, I explore the points at which the Church’s conception of family, work, and human flourishing diverges from that held by many – but not all – secular feminists. I will conclude that the Church’s conception of family, work, and flourishing offers Catholics a set of extremely useful tools for navigating not just the tensions between our family responsibilities and our paid work, but also the broader tensions between our private and our public vocations.

MR

Fighting Like Cats and Dogs Over, Well, Cats and Dogs

For those interested in pet custody issues, see the relevant pending legislation in several states:

Wisconsin 2007 Assembly Bill here

2008 Michigan House Bill 5598 here

2008 New Jersey Assembly Bill 2663 here

No doubt, our furry friends often become the subject of heated dispute upon divorce.

MR