Family Law Prof Blog

It's my party, and I'll cry if I want to...

I would not want to be anywhere within earshot of this competition, which must support the theory of cultural relativism in the understanding of child abuse/neglect:

From Telegraph.co.uk:

Eager mothers bring the babies to the event where Sumo wrestlers and high priests are on hand to coax babies into a maddened state of wailing.

The event, which marks the high point of spring, is held each year at the Sensoji Temple in Tokyo.

The baby to cry loudest and longest wins the contest. The competition is also intended to generate good health for the babies.

Read more here.

MR

What's Better than Sex?

According to a new study, IVF!

Having sex to conceive a child will become unnecessary within a decade, as in-vitro fertilization becomes more popular among 30-somethings, scientists predicted Monday.

Calling human natural reproduction "a fairly inefficient process," Australian veterinarian John Yovich told London's Daily Mail that sex will soon become just a recreational activity.

"Within the next five to 10 years, couples approaching 40 will assess the IVF industry first when they want to have a baby," said Yovich, a veterinary doctor from Murdoch University in Perth, Australia.

He said in-virto fertilization will advance to the point of having "a near 100% success rate."

Currently, about 15% to 20% of women ages 38 to 40 are able to conceive using IVF, according to the American Pregnancy Association. That figure drops to about 6% to 10% after age 40.

The predictions, which Yovich and Australian vet Gabor Vajta co-wrote with two other scientists, were published in the medical journal Reproductive BioMedicine.

Read more here.

AC

Mother-in-Law Jokes Protected Speech

To the chagrin of many mother-in-laws, a federal judge in New Jersey has ruled that the First Amendment protects mother-in-law jokes:

From AP:

LOS ANGELES — A standup comedian who was sued for making mother-in-law jokes has had the last laugh after a federal judge threw the case out of court.

Sunda Croonquist, whose shtick for years has been to describe her life as a half-black, half-Swedish woman who marries into a Jewish family, was sued two years ago after her mother-in-law, sister-in-law and brother-in-law said her jokes were holding them up to public ridicule.

In a 21-page ruling issued Friday, U.S. District Judge Mary L. Cooper of New Jersey concluded that the examples they cited — including one in which Croonquist says her sister-in-law's voice sounds like a cat in heat — fell under the category of protected speech.

Many of the jokes, Cooper said, were clearly statements of opinion and not fact and therefore protected by the First Amendment. The cat-in-heat joke, the judge said, quoting from a previous court decision, was "colorful, figurative rhetoric that reasonable minds would not take to be factual."

Read more here and the opinion here.

MR

Cohen: "Well, What About the Children? Best Interests Reasoning, the New Eugenics, and the Regulation of Reproduction"

Glenn Cohen (Harvard Law School) has posted "Well, What About the Children? Best Interests Reasoning, the New Eugenics, and the Regulation of Reproduction" on SSRN.  Here is the abstract:

Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over age 50 be allowed access to reproductive technologies? Should the state fund abstinence education? One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result (absent state intervention) from these forms of reproduction. This focus on the Best Interests of the Resulting Child (“BIRC”) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention – the protection of the best interests of existing children – visible in areas such as adoption, child custody, and child removal. While, as I document, parallel reasoning is frequently offered (by legislatures, by courts, by commentators, by physicians) to justify state or third-party interventions that seek to influence whether, when, and with whom individuals reproduce, in this Article I show that such justifications are problematic and misleading.

Drawing on insights from bioethics and the philosophy of identity relating to the so-called “Non-Identity Problem,” I show why this form of justification, at least stated as such, is problematic both as a normative and constitutional matter: Unless failing to intervene would foist upon the child a “life worth not living” any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist. Nevertheless I show that BIRC arguments are frequently relied upon to justify these interventions. At a doctrinal level I also show that this reliance on BIRC justifications is in tension with the partial recognition of the Non-Identity Problem by courts rejecting wrongful life torts.

Having demonstrated the unworkability of the BIRC argument as stated, I go on to consider six possible arguments that might substitute for BIRC as justifying these interventions. I begin with two less interesting and I think less satisfying possibilities relating to lives not worth living and illiberal culture control or kulturkampf. I then consider a strategy that would draw a novel distinction between what I call “perfect” and “imperfect” Non-Identity Problems and suggest that BIRC reasoning is only problematic for the perfect cases. I explain why I find none of these approaches satisfying as a normative and constitutional matter. I then examine and adapt three frameworks offered by philosophers for the wrongfulness of creating children with lives worth living that do not rely on BIRC-type reasoning: the first appealing to non-person-affecting principles and same number substitutions, the second relating to negative third party externalities, and the third (more deontologically flavored) claiming we can wrong children by bringing them into existence notwithstanding the fact that they are overall benefited. For each I aim to show three deficiencies as BIRC substitutes. First, they cannot support the full gamut of interventions for which BIRC is usually invoked. Second, I put pressure on their adequacy even as moral criterion for wrongfulness, including by showing that adopting any of these rationales has some disturbing implications. Finally, I argue that even if these approaches offer an appropriate criteria for the moral wrongfulness of becoming a parent in these cases, on a political theoretical level they may not be valid bases for legal interventions (especially those interventions that pose significant limitations on liberty such as the criminalization of conduct).

AC

Infertility Knows No Gender

New reports suggest that male infertility is becoming a significant problem:

From MailOnline:

Reports claim that as many as one in five healthy young men between the ages of 18 and 25 produce abnormal sperm counts.

Only 5 to 15 per cent of their sperm is good enough to be classed as 'normal' under World Health organisation rules  -  proving that infertility is not just a female problem. Indeed, among those experiencing difficulty with conception, a male fertility problem is considered important in about 40 per cent of couples.

But women trying to get pregnant are facing another astonishing claim: that the core problems of male fertility  -  while they may be exacerbated by environmental issues  -  start in the womb.

'Sperm counts are declining and there is mounting evidence that the problem starts even before birth,' says Dr Gillian Lockwood, medical director of Midland Fertility Services.

She cites growing evidence that although the process of sperm production  -  known as spermatogenesis  -  starts in adolescence, the crucial preparations are made in the few months before and after birth. 

Read more here.

MR

The Phone Company as Exposer of Adultery

This story makes me laugh:

A Toronto woman is suing Rogers Wireless Inc. for ruining her marriage.

Gabrielle Nagy, who subscribed to Rogers wireless services, requested her billing be addressed to her family home under her maiden name. When her husband ordered additional services — internet and cable television — from Rogers in June 2007, Rogers bundled Nagy’s billing with her husband’s.

Ms. Nagy’s husband realized his wife’s infidelity when he saw hours-long conversations with a particular phone number and confronted Nagy. The two are now separated.

Ms. Nagy is suing Rogers for $600,000, citing negligence and breach of contract.

“The defendant breached the said duty of reasonable care by acting in a manner below the standard of conduct expected from the defendant […],” says Nagy’s statement of claim.

Read more here.

AC

Travis: "What a Difference a Day Makes, or Does It? Work/Family Balance and the Four-Day Work Week"

Michelle A. Travis (University of San Francisco--School of Law) has posted What a Difference a Day Makes, or Does It? Work/Family Balance and the Four-Day Work Week, 42 Connecticut Law Review__ (2010) on SSRN.  Here is the abstract:

This Article considers the growing reliance that four-day work week advocates have placed on work/family claims. It begins by analyzing whether a compressed work schedule may alleviate work/family conflicts, and more importantly, for whom such benefits are most likely to accrue. While studies consistently find that many workers experience lower levels of work/family conflict when working a compressed schedule, the research also suggests that workers with the most acute work/family conflicts may be the least likely either to obtain or to benefit from a four-day work week design.

Nevertheless, the political climate surrounding the four-day work week provides a unique opportunity for action. This Article therefore considers how legal regulation might be used to shape four-day work week initiatives as a work/family balance tool. In particular, the Article considers how reflexive law proposals might contribute to the four-day work week debate. While existing reflexive law models typically rely on the creation and exercise of procedural rights vested in individual workers, this Article explores an under-developed alternative that would instead vest procedural rights primarily in workers as a group. The Article uses California's extensive four-day work week regulations and the Federal Employees Flexible and Compressed Work Schedules Act to illustrate this “collective reflexive” approach, and to explore what this type of regulatory model might offer advocates who are seeking to facilitate greater work/family balance for those who may need it the most.

MR

Supreme Court Rules in International Child Custody Case

From the Associated Press:

The Supreme Court ruled Monday that a Texas mother illegally moved her son from Chile to the United States during a custody dispute with the boy's British father in the first test of the boundaries of an international child custody treaty.

The high court ruled that the Hague Convention on child abduction — aimed at preventing a parent from taking children to other countries without the other parent's permission — demands that the child goes back to the South American country.

However, Justice Anthony Kennedy, who wrote the 6-3 decision, said Jacquelyn Abbott can argue in lower courts in the United States for an exception to the international treaty that could allow her son to stay in the U.S.

The child, born in Hawaii, is a U.S. citizen.

Timothy Abbott accused his estranged wife of violating a court order in Chile by taking their 10-year-old son to Texas without the father's consent.

Timothy Abbott asked an American court to order the child returned to Chile, based on the treaty. The Chilean courts had given him visitation rights and the authority to consent before the other parent takes the child to another country, known as "ne exeat rights".

The mother argued that she has exclusive custody of the boy, and that U.S. courts are powerless under the treaty to order his return.

A federal judge acknowledged that taking the son to the United States violated the Chilean court order but sided with the mother, and the New Orleans-based 5th U.S. Circuit Court of Appeals agreed.

The Supreme Court reversed the appeals court decision.

"To interpret the Convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the Convention's purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes," Kennedy said.

Justices John Paul Stevens, Clarence Thomas and Stephen Breyer dissented from the court's opinion.

Stevens said the boy's father never had custody rights, only visitation rights. That means that the father cannot determine where the boy lives, he said.

"A parent without 'rights of custody,' therefore, does not have the power granted by (the treaty) to compel the child's return to his or her country of habitual residence," Stevens said.

Kennedy said that an exception to the Hague Convention deals with the safety of the parent.

"If, for example, Ms. Abbott could demonstrate that returning to Chile would put her own safety at risk, the court could consider whether this is sufficient to show that the child too would suffer 'psychological harm' or be placed in an intolerable situation," Kennedy said.

Lower courts can also take into account the child's wishes if he is mature enough to express them, Kennedy said.

Read more news coverage here and the Supreme Court decision here.

AC

Stance on Pork Costs Foster Placement

From the Baltimore Sun:

A company that denied a Baltimore woman the chance to become a foster mother after discovering she doesn't allow pork in her home defended its decision in a state-ordered corrective action plan, saying the woman lacks the flexibility needed to work with children.

Hyattsville-based Contemporary Family Services, which is authorized by the state to place foster children with families, said Tashima Crudup — a practicing Muslim — was unyielding in her stance, which in turn, could make her intractable in other issues involving children. Crudup initially had cleared a screening process and completed hours of training before her application was denied after a home visit from a CFS worker in August 2009.

Crudup took her case to the American Civil Liberties Union, which filed a complaint on her behalf with the Baltimore City Community Relations Commission, claiming religious discrimination. The commission is investigating the case and will set a hearing date.

Read more here.

MR

The Accuracy of Divorce Statistics

From an interesting Time magazine piece on the reliability of divorce statistics:

Do half of all marriages really end in divorce? It's probably the most often quoted statistic about modern love, and it's a total buzz kill, in line with saying that half of all new shoes will give you hammertoes or that 50% of babies will grow up to be ugly. Now the divorce stat is coming under scrutiny — and not just because of its unromanticity.

"It's a very murky statistic," says Jennifer Baker, director of the marriage- and family-therapy programs at Forest Institute, a postgraduate psychology school in Springfield, Mo. She's often erroneously credited with arriving at the 50% figure; it was around long before she used it. Figuring out divorce rates is tricky. Not all states collect marital data, and the numbers change dramatically depending on the methods and sources that are used. In the end, the best that researchers can do is look for trends within a specific group or cohort (say, all people who married in the 1980s) and project what will happen. As Baker says, "It's very difficult to know, if a couple gets married today, whether they'll still be married in 40 years."

But in an upbeat new guide to marriage, For Better, Tara Parker-Pope, a New York Times reporter (and divorcée), devotes a chapter to debunking the 50% stat, at least among the subset of the population that reads books like hers. Since the 1970s, when more women started going to college and delaying marriage, "marital stability appears to be improving each decade," she writes. For example, about 23% of college graduates who married in the '70s split within 10 years. For those who wed in the '90s, the rate dropped to 16%.

According to research at the University of Pennsylvania's Wharton School, one of the clearest predictors of whether wedding vows will stick is the age of the people saying them. Take the '80s: a full 81% of college graduates who got hitched in that decade at age 26 or older were still married 20 years later. Only 65% of college grads who said I do before their 26th birthday made it that far.

But just 49% of those who married young and did so without a degree lasted 20 years, a cohort that Parker-Pope spends little time discussing. Instead she contends that the 50% stat is a myth that persists because it's something of a political Swiss Army knife, handy for any number of agendas. Social conservatives use it to call for more marriage-friendly policies, while liberals find it handy to press for funding for programs that help single moms.

Perhaps, but there may still be truth to it. Penn State sociologist Paul Amato, in a thorough new report on interpreting divorce data, writes that the half-of-all-marriages-end-badly figure still "appears to be reasonably accurate."

What seems most clear is that less-educated, lower-income couples split up more often than college grads and may be doing so in higher numbers than before. "The people who are most likely to get divorced have the least resources to deal with its impact, particularly on children," says Amato.

Read the full story here.

AC

Appell: “Reflections on the Movement Toward a More Child-Centered Adoption”

Annette Ruth Appell (Washington University School of Law in St. Louis) has posted Reflections on the Movement Toward a More Child-Centered Adoption, Western New England Law Review (forthcoming) on SSRN.  Here is the abstract:

This Article reflects on a quiet sea change in adoption over the past two decades. This movement is reflected in the increasingly normative practice and regulation of post-adoption contact among adopted children and their birth kin. Although the regulatory movement in the U.S. has been toward privately ordering, but publicly protecting, these relationships, the U.K. publicly orders and protects these relationships, at least in adoptions from foster care. This Article assesses the development and propriety of these two regulatory approaches. After rehearsing the current state of statutory and judicial post-adoption contact regulation, the Article presents a brief overview of pertinent studies of post-adoption contact here and in the U.K. under its court-imposed post-adoption contact scheme. Paying special attention to the regulation of birth ties post-termination and adoption in Massachusetts, which has two different regulatory schemes for post-adoption contact, this Article suggests that the Massachusetts courts undervalue the wisdom and authority of the birth and adoptive parents to order their relationship after adoption. The Article recognizes that the Massachusetts approach is consistent with adoption studies which illustrate that adoptive families, regardless of whether they are privately or publicly regulated, are dynamic, collaborative, porous, and rich collectives centering around the child’s interests. The Article contains a table comparing U.S. adoption with contact statutes.

MR

Italy Embraces Divorce with a Fair!

From the New York Times:

The exhibitors at what was billed as Italy’s first divorce trade fair, held here over the weekend, were a predictable mishmash of lawyers, real estate agents, divorce planners, paternity testing centers and dating agencies.

No less predictable was the media scrum, come to record the latest seismic transformation of Italian society, a mostly Roman Catholic nation traditionally centered on the family.

That stereotype is fading fast.

In 2007, according to the most recent statistics available, there were more than 81,000 separations and 50,000 divorces among Italy’s population of 59 million. Thirty years ago, divorces did not break the 12,000 mark.

Lifelong marriages and close-knit family “values are great, but women have begun to live a different reality,” said Lorenza Lucianer, a twice-separated office worker who came to the fair with two friends. “We’ve turned into America. Everyone is on their second marriage. It happened later here, but it happened.”

Yet it is not quite like America.

For antsy Italian singles-in-waiting, American divorce laws (at least of the cinematic variety, where marriages are dissolved in the time it takes for ink to dry) are the stuff that dreams are made of. In Italy, divorces take around five years from the first separation hearing, said Claudio De Filippi, a lawyer who had a booth at the fair.

His firm, he said, was challenging Italy’s divorce laws at the European Court of Human Rights in Strasbourg, France, because in most European countries a divorce takes around one year. “But, of course, we have the Vatican here,” he said. “Divorce has tended to be viewed as an extreme measure.”

Italy ratified divorce only in 1974 in a referendum, and critics complain that Italian legislators have not kept up with changing times.

The growing divorce rate is what led Milena Stojkovic two years ago to open what she claims to be Italy’s first divorce planning agency, Ciao Amore. (“Ciao means both hello and goodbye in Italian,” she said, adding that she “wanted to give the idea of ‘I never want to see you again,’ and ‘this isn’t necessarily a goodbye.’ ”) With offices in Rome and Trieste, a branch is expected to open in Milan soon, she said. “Divorce planning was a very new concept in Italy,” she said, but the business has been satisfying.

Read more here.

AC