Family Law Prof Blog

Goodman, Quas & Ogle: "Child Maltreatment and Memory"

Gail S. Goodman (UC Davis), Jodi Quas (UC Irvine) & Christin Ogle (UC Davis) have posted "Child Maltreatment and Memory" (forthcoming Annual Review of Psychology) on SSRN.  Here is the abstract:

Exposure to childhood trauma, especially child maltreatment, has important implications for memory of emotionally distressing experiences. These implications stem from cognitive, socio-emotional, mental health, and neurobiological consequences of maltreatment and can be at least partially explained by current theories concerning the effects of childhood trauma. In this review, two main hypotheses are advanced: (a) Maltreatment in childhood is associated with especially robust memory for emotionally distressing material in many individuals, but (b) maltreatment can impair memory for such material in individuals who defensively avoid it. Support for these hypotheses comes from research on child abuse victims' memory and suggestibility regarding distressing but nonabusive events, memory for child abuse itself, and autobiographical memory. However, more direct investigations are needed to test precisely when and how childhood trauma affects memory for emotionally significant, distressing experiences. Legal implications and future directions are discussed.

AC

Appleton: "Gender and Parentage: Family Law's Equality Project in Our Empirical Age"

Susan Frelich Appleton (Washington University School of Law) has posted "Gender and Parentage: Family Law's Equality Project in Our Empirical Age" on SSRN.  Here is the abstract:

This essay joins the debate about the place of gender in the law of parentage, an issue that looms large in today’s “culture war,” including the continuing battle over same-sex marriage. As part of the conversation about contrasting conceptions first presented at a conference on What is Parenthood? and later revised for a forthcoming book with the same title (edited by Daniel Cere and Linda McClain), this essay makes the case for a legal regime based on the “diversity approach.” This approach supports recognition of a diverse range of parent-child relationships, without regard to sex or gender, in contrast to the “integrated model,” which calls for an understanding of parentage that integrates biological and other functions and aspects of parentage.

In advocating that parentage laws reflect the diversity approach, this essay makes two primary contributions. First, it challenges the constitutional validity of parentage laws that would impose an integrated model. Most proponents of this model, by one route or another, conclude that children need exactly one mother and one father - a gendered combination missing or disrupted when a child has two legal parents who are both women or both men, when a child has only one legal parent, or in the occasional case in which courts have recognized three legal parents for a given child. This essay shows how this model and its underlying normative premises rest on gender stereotypes that equality jurisprudence and family law have thoroughly repudiated.

Second, this essay questions recent arguments, both for and against laws based on the integrated model, that rely on empirical investigations of the purported effect of various familial arrangements on children. Whatever the contemporary attraction of multidisciplinary analyses, empirical data cannot resolve disputes about competing laws of parentage. In particular, empirical findings purporting to show that the normative one-mother-one-father configuration serves most children well would not justify enshrining it in parentage rules applicable to all children. Several reasons support this position. For one, across-the-board rules based on empirical evidence of an optimal parental arrangement for children in general would sacrifice the best interests of some individual children, while also contravening family law’s frequent preference for fact-specific assessments. In addition, conclusions based on such evidence not only rest on value judgments and questionable assumptions about causality but also change over time. Finally, reliance on such empirical evidence fails appropriately to take into account the power of family laws to shape the experiences of the very children and other family members in question.

The essay concludes by using some ingredients from the integrated model to begin to sketch an alternative framework based on the diversity approach. These preliminary steps in turn show why the analysis outlined in this essay makes sense as a matter of family law and promises to address children’s interests at least as well as the alternatives.

AC

Family Rights to a Child in IL

The Illinois appellate court recently held that when parental rights are terminated, the rights and interests of the parent’s relatives are also severed and they have no rights to the child.  The lower court therefore properly struck grandparents’ response to foster parents’ petition for adoption of a child.  The case is In re the Adoption of S.G., No. 4-09-0912 (May 3, 2010, Ill. Ct. of App.).  Read the opinion here.

MR

Gay Parent Denied Equal Rights by Wisconsin Court of Appeals

From the Chicago Tribune:

A woman who raised two adopted children for years in a same-sex relationship is not considered their parent under Wisconsin law, an appeals court ruled Thursday.

The court ruled against a woman who was seeking legal guardianship of two children for whom she had been a stay-at-home mother. The District 4 Court of Appeals ruled that only the woman's former partner is their parent since the adoptions were done under the partner's name.

The woman, identified in court records only as Wendy because of the confidentiality surrounding guardianship proceedings, had been in a domestic relationship for 7 years before the couple decided to adopt a child from Guatemala in 2002. They adopted a second child from there in 2004.

In an interview, Wendy said she would consider asking the Wisconsin Supreme Court to overturn the decision.

"For someone like me that was in a relationship for 12 years and a stay at home mom for 7, I shouldn't have to fight to parent my kids who I've been parenting 24-7," she said. "For me to read in the court documents that I'm not a parent is disturbing and troubling."

Same-sex couples do not have adoption rights in Wisconsin, meaning that only one of them can be considered the legal parent. In this case, Wendy's partner, identified in court records as Liz, was named the legal parent so the children could be added to her health care plan.

Wendy agreed to stop working and stay at home to look after the kids while Liz, an attorney, was the family's breadwinner. The couple split up in 2008, and agreed to equally share custody of the children.

However, Wendy wanted legal recognition of her rights to the children, and she petitioned a court to be named a legal guardian. Wendy said she worries that she could not visit her children in the hospital without Liz's permission in the event of an accident, or wouldn't automatically get custody in the event of Liz's death.

Without legal recognition, she said she could also have problems with daily issues such as taking them to the doctor or out of school for a vacation.

Liz initially agreed to the guardianship, but then objected to the petition. A Dane County judge sided with Liz then Wendy appealed.

The appeals court ruled that "parent" is defined under Wisconsin law as someone who is either a biological or an adoptive parent, and Wendy is neither.

The court also rejected her argument that she should be granted guardianship because the children would be harmed by "depriving them of one of the two persons who has raised them from infancy."

Read the full news story here and the Wisconsin Court of Appeals' opinion here.

AC

Smith: “Equal Protection for Children of Gay and Lesbian Parents: Challenging the Three Pillars of Exclusion - Legitimacy, Dual-Gender Parenting, and Biology”

Catherine E. Smith has posted Equal Protection for Children of Gay and Lesbian Parents: Challenging the Three Pillars of Exclusion - Legitimacy, Dual-Gender Parenting, and Biology, 28 Law and Inequality 307 (2010) on SSRN.  Here is the abstract:

In this essay, Professor Smith contributes to an underdeveloped area of sexual orientation and gender identity scholarship by exploring the rights of children of same-sex couples who face discrimination because of their relation to or association with their gay and lesbian parents. Children of same-sex couples are rarely plaintiffs in same-sex marriage  litigation, or in cases outside of the marriage  context that challenge state actions denying them government benefits. This Essay takes the latter scenario and briefly evaluates common rationales against same-sex marriage in the context of a child litigant denied a wrongful death recovery of a non-biological gay or lesbian parent. Smith finds that common government rationales - based in legitimacy, dual-gender parenting and biology - are unlikely to prevail. Indeed, they fly in the face of existing equal protection jurisprudence designed to protect the rights and interests of children.

MR

Medical Marijuana and Custody

The Associated Press reports on recent cases denying custody and/or visitation to a parent making use of medical marijuana:

More than a decade after states began approving marijuana for medical use, its role in custody disputes remains a little-known side effect.

While those laws can protect patients from criminal charges, they typically haven't prevented judges, court commissioners or guardians ad litem from considering a parent's marijuana use in custody matters — even in states such as Washington, where complying patients "shall not be penalized in any manner, or denied any right or privilege," according to the law.

Arbiters often side with parents who try to keep their children away from pot. Medical marijuana activists in several states, including Washington, California and Colorado, say they've been getting more inquiries from patients wrapped up in custody-divorce cases in recent years as the ranks of patients who use marijuana swell.

Lauren Payne, legal services coordinator with a California marijuana law reform group called Americans for Safe Access, said that since mid-2006 her organization has received calls about 61 such cases.

In Colorado last month, an appeals court ruled that medical marijuana use is not necessarily a reason to restrict a parent's visitation. Washington courts have held otherwise.

"The court cannot countenance a situation where a person is using marijuana, under the influence of marijuana and is caring for children," an Island County, Wash., judge ordered in one such dispute. "There's nothing in the medical marijuana law that deprives the court of its responsibility and legal authority to provide for proper care of children so that people aren't caring for children who are under the influence of alcohol or drugs."

In that case, the medical marijuana patient, Cameron Wieldraayer, was granted only supervised visits with his two young daughters — a decision upheld by an appeals court.

Many patients insist that using pot makes them no less fit as parents, and that they shouldn't lose custody or visitation rights if there's no evidence they're abusing the drug.

According to the Washington, D.C.-based Marijuana Policy Project, two of the 14 states with medical marijuana laws — Michigan and Maine — specify that patients won't lose custody or visitation rights unless the patient's actions endanger the child or are contrary to the child's best interests.

Pouch, who grows marijuana in an old chicken coop, smokes a few puffs three or four times every day, and says he doesn't get high the way he did when he used marijuana recreationally in his younger days. He said he uses it to treat pain from carpal tunnel syndrome aggravated by glassblowing, as well as a shoulder that frequently pops out of its socket due to old sports injuries.

"I'm an outgoing, upstanding person. I do three different farmers markets and I'm a member of the Mason County Chamber of Commerce," said Pouch, 37. "I am not an activist at all, but I have the right to use this. It aids my pain, and it allows me to function in my everyday activities, where pills and opiates don't."

Opposing spouses often argue that they have a right to keep their children away from illegal substances, and marijuana remains illegal under federal law.

With some other medications, such as narcotic painkillers or bipolar medications, judges can require tests to establish how much of the drug a parent has in his or her system, said Eleanor Couto, a family law attorney in Longview, Wash.

But treatment providers can't prescribe specific amounts of marijuana without running afoul of federal law, so it isn't always clear what constitutes an appropriate level of the drug.

"How do you monitor how much someone can smoke?" Couto asked. "How do know they're able to adequately care for that child? I think it's got to be a case-by-case basis."

Seattle lawyer Sharon Blackford noted that urine tests can establish how much marijuana is in a patient's system based on current use, and that monitoring is "as easy to do for medical marijuana as it is for alcohol."

Early this year, a judge who called Washington's medical marijuana law "an absolute joke" and "an excuse to be loaded all the time" ordered that stepfather, Julian Robinson, to keep at least a quarter-mile from the teenagers because of his marijuana use, according to a transcript of the hearing.

That means Robinson can't be around the children he has raised for the past 13 years, even though they live in his home near Castle Rock, with his wife and their four younger children.

Read the full story here.

AC

Child Marriages in Malaysia

From AsiaoneNews:

KUALA LUMPUR, MALAYSIA: The concept of child marriage appears to be alive and well in Malaysia based on government statistics of premarital HIV screening for Muslims preparing to get married.

Last year, 479 children under 15 years, two of them boys, were getting ready to tie the knot. And 32 of them were below 10 years. None of them were found to be HIV-positive.

….

Malaysia is not a country that encourages child marriages. But neither does it outlaw it outright. Under Malaysian law, a Muslim girl below the age of 16 can marry, provided she has the consent of the syariah court. The syariah court is supposed to rule on each and every case and cannot give blanket permission.

And under the Law Reform (Marriage and Divorce) Act, which applies to non-Muslims, marriage is allowed only for people 18 years and above. However, a girl aged 16 years and above may marry, conditional upon a licence being obtained from the chief minister or menteri besar.

This means that it is supposed to be very difficult for a Muslim girl under 16 to get married, and it is supposed to be impossible for a non-Muslim girl under 16 to get married at all.

Read more here.

MR

Abortion by Telemedicine

From the NY Times:

The situation has played out hundreds of times. From his office here, a doctor asks a woman on the computer screen before him one final question: Are you ready to take your pill?

In the Iowa system, a doctor consults by video with a patient at a clinic, then remotely opens a drawer with two abortion drugs.

Then, with a click of his mouse, a modified cash register drawer pops open in front of the woman seated next to a nurse in a clinic — perhaps 100 miles from this city — with mifepristone, the medicine formerly known as RU-486, that is meant to end her pregnancy.

Efforts to provide medical services by videoconference, a notion known as telemedicine, are expanding into all sorts of realms, but these clinics in Iowa are the first in the nation, and so far the only ones, experts say, to provide abortions this way.

Advocates say the idea offers an answer to an essential struggle that has long troubled those who favor abortion rights: How to make abortions available in far-flung, rural places and communities where abortion providers are unable or unwilling to travel. So far only Planned Parenthood clinics in Iowa use this method, but around the country, abortion providers have begun asking how they might replicate the concept.

For some, however, the program tests the already complicated bounds of telemedicine. Abortion opponents say they are alarmed, fearful for the safety of women who undergo abortions after consulting with doctors who have never actually been in the same room with them. Opponents filed a complaint this spring with the Iowa Board of Medicine, arguing that a doctor’s remote clicking of a mouse hardly meets the state’s law requiring licensed physicians to perform abortions, and more objections are coming.

Before the videoconference begins, a patient in a distant clinic meets (in person) with a nurse. There, blood tests, a medical history, an exam, an ultrasound and counseling on matters like what to expect from the procedure and plans for a follow-up exam are completed. The results are shared (by computer) with a doctor miles away, and the doctor and the patient (at all times accompanied by the nurse, who sits beside her) meet by videoconference over a private network.

“I don’t feel like something is lost or missing,” Dr. Tom Ross, one of Planned Parenthood’s doctors, said.

Dr. Ross said he talked to patients — asking his questions and answering any of theirs — as if he were speaking to them in person. In most cases, he then clicks on a button that releases the drawer in front of the woman. Inside are two bottles — one for the mifepristone she will take immediately, while still sitting in the clinic, and the other for the misoprostol she will take later.

No serious complications have occurred in Iowa involving these videoconference patients. And the patients, mainly, seem fine with the procedure. They have a choice: when they call to seek an abortion, women who live far from city clinics can either take abortion medication in a distant office with the doctor on teleconference, or travel to the doctor.

It is uncertain how long it will take the State Board of Medicine to investigate Operation Rescue’s complaint that this method does not meet the state requirement that licensed physicians — not nurses or others — perform abortions.

Read the full article here.

Ac

Joslin: “Travel Insurance: Protecting Lesbian and Gay Parent Families Across State Lines”

Courtney G. Joslin has posted Travel Insurance: Protecting Lesbian and Gay Parent Families Across State Lines, 4 Harvard Law & Policy Review 31 (2010) on SSRN.  Here is the abstract:

Until recently, when a lesbian couple had a child through artificial insemination, only one member of the couple was considered the legal parent of the resulting child at the moment of birth. Today, in a small but growing number of states, this is no longer the case. Instead, in this small group of states, from the moment of birth, both members of the couple are treated as legal parents of a child born to the couple through artificial insemination. While this advancement in state law is tremendously important for many children, the resulting protections are extremely tenuous. These children are assured protection only so long as they and their families remain in one place, never crossing state lines. This essay explores why this legal vulnerability exists and offers a proposal for mitigating this potentially harmful state of affairs.

MR

Are We All in Need of Marriage Education?

From the Washington Post:

Horn was well versed in the literature that showed that -- all things being equal -- children raised in two-parent homes fare, on average, better than those who grow up in single-parent households. They have more economic stability, are less likely to exhibit behavioral problems or abuse drugs and alcohol, and are more likely to finish high school and go on to college.

"It made sense to start to think, 'What would government do if it were interested in preventing family breakup, and how would it go about doing that?'" he says.

During his first few years in office, Horn redirected small pots of money from existing programs into marriage education initiatives. Then, in 2005, his team persuaded Congress to allot $100 million a year for the next five years to be spent on marriage education around the country. Another $50 million a year was set aside for programs about responsible fatherhood.

Horn's agency put out a request for proposals from organizations that wanted to provide marriage education services under the program, and awarded 122 Healthy Marriage grants, many of them focused on low-income communities. "Low-income couples, by definition, have less discretionary income, and what we want to do is provide free services," he explained recently, adding that all marriage education programs were offered on a voluntary basis.

So for almost five years now, the federal government has been spending tax dollars trying to teach couples how to be better at marriage.

Whether that's an appropriate use of public funds is a legitimate question -- marriage is hugely complicated, and anyone who's felt relief from exiting a bad one may think the government has no business meddling with our most personal affairs. But equally pressing is whether marriage education really works. And so far the government has published little evidence proving the effectiveness of the programs it has been funding.

A 2008 Government Accountability Office report looked at the Healthy Marriage Initiative but focused mainly on the administration and oversight of its grants. One study commissioned by ACF examined eight programs administered through the federal initiative and found that only one improved the quality of the relationship of participants. Two other multiyear studies of the initiative are underway, but results aren't expected until next year, when the funding will have run out. For fiscal 2011, the Obama administration has suggested a redirection of the initiative's funds into a one-year, $500 million investment that would focus largely on fatherhood and family self-sufficiency.

Even Sollee says that "we don't know" with certainty how successful the programs are at saving marriages.

But there's growing evidence that the workshops and seminars can improve the quality and longevity of unions. A 2009 analysis of more than 100 academic studies evaluating the effectiveness of marriage education found "modest evidence" that the programs can work preventively and as interventions, though no one suggests marriage education is the answer for couples dealing with abuse or acute dysfunction.

Read the full article here.

AC

Child Support Law in Quebec

From Examiner.com:

The lawyer who represented the woman known as "Lola" in a high profile child support case is in court for a similar case involving six women who feel Quebec's child support benefits are unfair and unconstitutional.

Anne-France Goldwater is alleging children of divorce in Quebec are victims of discrimination because child support payments are often lower than those in other provinces and child support is cut in half in joint custody cases.

Read more here.

MR

Racial Preferences in International Adoption

Fascinating report of an Italian high court decision on international adoption (from jurist.org):

The Italian Court of Cassation [official website, in Italian], the country's highest appeals court, ruled Tuesday that couples seeking to adopt children of a certain ethnicity or race "are not suitable for international adoption." The judgment was prompted by the case of a Sicilian couple who declared that they only wanted to adopt a Caucasian child of European descent. The decision cites violations of the Italian Constitution [text, PDF] regarding inalienable rights, equality, and international agreements. The court stated that parents who indicate a preference should not only have their particular application denied by the juvenile court under Article 30 of Law 184/1983 [text, PDF] of the Italian Civil Code, but their capacity to apply for adoption in general should be called in to question [ANSA report, in Italian]. The court also recommended that social services provide discriminatory parents with psychological support to allow them to overcome their aversion to adopting a child "who is not in [their] own image." The decision comes more than a year after the attorney general asked the court to intervene [Apcom report, in Italian] and ban these types of discriminatory requests. Children's rights group Friends of Children [advocacy website, in Italian], which initiated the complaint, said that they have been battling these types of requests for years and welcomed [press release, in Italian] the court's decision.

Ethnic tensions and discrimination are problematic in Italy, where illegal immigration is a growing problem. In January, the European Court of Human Rights (ECHR) [official website] dismissed a suit against Italy [JURIST report] by Palestinian immigrants alleging illegal expulsion from the country. Earlier that month, a group of African immigrants was evacuated [JURIST report] from the town of Rosarno after violence was directed towards migrant farm workers there. In August, rights groups criticized Italy [JURIST report] for returning a suspected terrorist to Tunisia, disregarding obligations imposed by the ECHR. Last July, the Italian Senate approved a law [JURIST report] that would criminalize illegal immigration with a fine of between 5,000 and 10,000 euros and up to six months detention before deportation.

Read more here.

AC