July 24, 2010
CA Family Judges Kept Busy
Family judges in
July 23, 2010
Parness & Townsend: "For Those Not John Edwards: More and Better Paternity Acknowledgments at Birth"
Jeffrey A. Parness & Zachary Townsend (Northern Illinois University College of Law) have posted "For Those Not John Edwards: More and Better Paternity Acknowledgments at Birth" (forthcoming University of Baltimore Law Review) on SSRN. Here is the abstract.
When former U.S. Senator and Presidential candidate John Edwards (finally) declared his paternity of Quinn, born of sex to Rielle Hunter, many assumed he could then begin to raise as well as financially support the child he once publicly shunned. Many assumed legal paternity could arise through a court order, if not Rielle’s wishes. Had he been on the Maury Povich television show, the positive genetic tests would have prompted the host to declare John the father. Yet notwithstanding these declarations, there would be no childrearing by John if Rielle determined he should have no contact with Quinn, even if Rielle sought child support from John and even if Quinn’s best interests favored contact between her and John. For genetic fathers like John whose bedmates are not like Rielle, there are often no opportunities to present Christmas gifts.
As John and Rielle were never married and as Rielle was not married to another, Quinn was a nonmarital child with no federal constitutional legal father at birth. At birth, John may have had a federal constitutional opportunity interest in establishing parentage, seized by stepping up to parental responsibilities. Yet, as John only declared paternity two years after birth, after denying fatherhood and prompting another man to declare his genetic ties with Quinn, he may have been too late to seize the federal opportunity interest in order to fully parent Quinn without Rielle’s cooperation. Only with Rielle’s consent could John now complete a voluntary paternity acknowledgment, a prerequisite to placing John on Quinn’s birth certificate. And with Rielle’s opposition, any paternity lawsuit by John to establish regular contacts with Quinn would most likely fail even though any paternity lawsuit to establish John’s financial support of Quinn would most likely succeed.
Popular misconceptions about legal paternity for nonmarital children born of sex largely arise due to confusion and ignorance about voluntary paternity acknowledgments. Our exploration of the federal and state acknowledgment laws reveals that a John Edwards is often no new father with legal childrearing rights so that without a Rielle Hunter’s help, his relationship with a Quinn would be limited to checks in the mail.
Voluntary acknowledgment laws are especially important today because about 1.7 million nonmarital children are born of sex each year in the United States, with about one third, like Quinn, having no legal father at birth. In 1940, there were only about 90,000 nonmarital children. Like Quinn, some of today’s fatherless children have late arriving declarations about genetic ties, and perhaps paternal child care. Far more nonmarital children remain fatherless, though possibly the subject of later suits seeking child support.
Many nonmarital children will be born fatherless under law even though U.S. governments proclaim that these children should have both a mother and father under law at birth. Voluntary paternity acknowledgment laws can better prompt dual parentage. After reviewing contemporary acknowledgment forms, we suggest laws to prompt more, and more reliable, paternity acknowledgments, and thus more legal fathers at birth for nonmarital children.
Family Lawyering Undesirable?
Are Canadian lawyers unique in shying away from family law? Read about it here.
July 22, 2010
Fertility Saving Procedure Performed on Youngest Ever Toddler
The New York Post reports on the youngest child ever to have a fertility saving procedure performed in the wake of a serious illness:
Thanks to a new miracle surgery, the hope that little Violet Lee can one day have children won't be killed by chemotherapy.
The plucky, 2-year-old Brooklyn girl is set to become the youngest person ever to undergo a fertility procedure when a New York doctor removes one of her ovaries Tuesday and freezes it while she undergoes treatment for a serious immune disease.
The tiny organ will be put on ice for 20 years or more, ready for re-implantation if and when a grown-up Violet decides to have kids of her own.
"It was important that I found a way to allow her to have children," her mom, Tikesha Lee, 32, told The Post.
Violet is set to begin chemo Wednesday, to help her with a bone-marrow transplant she must undergo because of her immune-system troubles.
Both chemo and radiation therapies can render patients sterile.
"It was hard enough to find out your baby needs to go through chemotherapy, but to hear your daughter will be sterile after the treatment -- that one thing gets healed, but another destroyed -- I felt someone punched me in the stomach," her mom said.
The day before the chemo, little Violet will head to Westchester to visit Dr. Kutluk Oktay, who will perform the experimental "fertility preservation" procedure.
The doctor has already performed the surgery on some 40 girls under the age of 18. The previous youngest was 3 years old.
Ovary transplants have already worked in adults. Of the few dozen women who have had the procedure, which Oktay pioneered in 1999, about one-third have had children, he said.
But adult patients are only separated from their ovaries for a couple of years -- not decades, like Oktay's kid patients.
"This is experimental -- down the road, they may or may not get any benefit," Oktay said.
Read more here.
Yu: “Sequence Matters: Understanding the Relationship between Parental Income Support Receipt and Child Mortality”
Peng Yu has posted Sequence Matters: Understanding the Relationship between Parental Income Support Receipt and Child Mortality, Australian Social Policy Journal (2010). Here is the abstract:
Previous research indicates there is a complex relationship between parental income support receipt and child mortality. This research improves understanding of the relationship using a unique administrative dataset, the Second Transgenerational Data Set (TDS2), which contains information on 127,826 Australian children, almost a whole birth cohort, and their parents. Generally, parents of children who died under age 15 years were more disadvantaged and were on income support for longer periods than were other parents. A robust finding of the research is that the association between child mortality and parental income support receipt varied significantly with the time of the receipt – before, at or after child death. In particular, the incidence of parental income support receipt reduced significantly following the death of a child, probably due to a temporary loss of income support eligibility. The research suggests that income support receipt has more complicated implications than simply as an indicator of economic disadvantage in such a case, and recommends enhanced social and economic support to bereaved parents and families.
July 21, 2010
The battle rages on in Massachusetts to reform what many critics characterize as an antiquated and often inequitable set of principles governing alimony:
Steve Niro got married in 1981 at age 23 and divorced less than five years later. At the time of the divorce, he and his wife were in their late 20s, and both were working. Niro remarried nearly 15 years ago, but he’s still paying his alimony.
Two years ago, Niro’s youngest son graduated from college, ending child support payments and leaving his former wife with alimony of $65 a week. “The next thing I know, I get summonsed to court for alimony adjustment,’’ he says. A probate court judge increased the alimony to $700 a week even though the couple had divorced nearly a quarter of a century ago — five times longer than they were married.
“I paid child support. I paid college. I was never late. I fulfilled my obligations,’’ says Niro, 52, a Milford native who works for an environmental engineering firm in Portland, Maine. “I just have to hope that legislators in Massachusetts have enough sense to pass a law that puts guidelines on alimony because the courts don’t exercise any common sense or logic.’’
Niro and other men — and women — like him say the state’s alimony law is archaic, reflecting an era when women kept house and men provided. Today, with women making up nearly half the workforce, they say alimony should be a temporary boost, not a lifetime subsidy.
Critics charge that the Legislature has avoided the issue for years in part because drawn-out divorce litigation is lucrative for lawmakers, many of whom are lawyers. Now these critics are working to change the law, a vague statute that gives judges wide discretion over alimony awards. Two bills have been introduced, and a legislative task force is working on a third version.
The current law sets no formulas or guidelines, saying only that the length of the marriage, assets, occupation, and employment aspects will be considered in setting alimony. Massachusetts probate judges have relied largely on case law and generally consider any marriage of more than 20 years a long-term marriage that merits lifetime alimony, or payments until the recipient remarries. But often marriages of much shorter duration — such as Niro’s — also result in lifetime payments.Last fall, a crowd of frustrated alimony payers testified at a State House hearing on a bill that would amend the law.
Introduced by Steven Walsh, Democrat of Lynn, the bill attracted 72 cosponsors. It would limit alimony payments to half the length of the marriage, with a cap of 12 years and automatic termination when the payer turns 65. It would protect second spouses’ income from contributing to the alimony award for first spouses. The court would have to consider “the marketable skills’’ and “willingness and diligence’’ of the recipient to seek work. In addition, if the recipient is cohabiting with a partner, alimony would be decreased substantially.
But that bill has been shelved, and critics of the existing law say the large number of lawyer legislators, many of whom practice family law, is the reason. They argue that the current law encourages endless expensive litigation.
Read the full story here.
Surrogacy in Ireland
Irish couples have been experiencing troubles with surrogate parenthood, going abroad to engage in surrogacy. Read more here.
July 20, 2010
Riba: "Principles and Prospects for a European System of Child Protection"
Josep Ferrer Riba (Universitat Pompeu Fabra) has posted "Principles and Prospects for a European System of Child Protection" on SSRN. Here is the abstract:
In the process of restating the principles of European family law currently underway, it should be asked to what extent a common European system of child protection exists and what principles and values it comprises. In our view this system is multi-polar and has to be built from the principles of the United Nations Convention on the Rights of the Child (1989), the instruments emanating from the Council of Europe, and especially from European Court of Human Rights case law. The article sets out and discusses the procedural and substantive principles derived from this case law. Although the UN Convention and ECtHR case law – applying the Rome Convention – approach child protection from opposing perspectives (in one case the affirming of children’s rights, and in the other, the right to respect for family autonomy) a trend towards convergence and interaction between Conventions and their monitoring bodies can be discerned in recent ECtHR decisions. The final part of the article assesses this trend and the perspectives for the future.
Weber: “A New Look at Section 504 and the ADA in Special Education Cases”
Mark C. Weber (DePaul University College of Law) has posted A New Look at Section 504 and the ADA in Special Education Cases, Texas Journal on Civil Liberties and Civil Rights (forthcoming) on SSRN. Here is the abstract:
School districts are finding fewer
children eligible for services under the Individuals with Disabilities
Education Act (IDEA). At the same time Congress has expanded the number of
children who are protected by section 504 of the Rehabilitation Act and title
II of the Americans with Disabilities Act (ADA). These developments present the
largely unexplored question of what obligations school districts owe children
who have disabilities and are protected under section 504 and the
July 19, 2010
DiFonzo: "A Vision for Collaborative Practice: The Final Report of the Hofstra Collaborative Law Conference"
J. Herbie DiFonzo (Hofstra University School of Law) has posted "A Vision for Collaborative Practice: The Final Report of the Hofstra Collaborative Law Conference" (Hofstra Law Review, Vol. 39, p. 101, 2010) on SSRN. Here is the abstract:
In November 2009, Hofstra University School of Law’s Center for Children, Families and the Law hosted a Conference on the Uniform Collaborative Law Act, in conjunction with the Uniform Law Commission, the Association of Family and Conciliation Courts, the International Academy of Collaborative Professionals, and the American Bar Association Section of Dispute Resolution. This event marked the first time a law school has sponsored a conference exclusively focusing on the innovative practice of collaborative law.
The goal of the Conference was to assess collaborative practice in light of the adoption of the Uniform Collaborative Law Act (“UCLA”). This Report addresses the central concerns of collaborative practice in eight parts. Part II deals with the collaborative lawyer’s extended responsibilities in assuring that the client fully understands the collaborative law participation agreement. Because the disqualification clause forbids lawyers from representing a client in litigation of a matter which the lawyer handled as part of the collaborative process, obtaining the informed consent of a client to this relatively new concept is critical. Part III discusses the circumstances which trigger a lawyer’s duty to cease representing a client in a collaborative process. Collaborative lawyers must withdraw from representation if either party commences litigation in a collaborative law matter, or if a client violates certain provisions of the collaborative law participation agreement.
Part IV analyzes the disclosure of information requirements. Collaborative practice disavows formal discovery. Instead, as the UCLA provides, “a party shall make timely, full, candid, and informal disclosure of information related to the collaborative matter without formal discovery.” This section analyzes the role of information exchange in collaborative practice. Part V addresses issues in connection with the substantial involvement in collaborative practice by professionals with expertise in mental health, mediation, and financial planning, often as third-party neutrals hired jointly by the parties. Part VI discusses the UCLA’s requirement that a lawyer “make reasonable inquiry [into] whether [a] prospective party has a history of a coercive or violent relationship with another prospective party.” This section examines whether collaborative law may provide a reasonable ADR method for victims of domestic violence.
Part VII explores the world of civil collaborative practice. While most collaborative lawyers today practice family and matrimonial law, the methodology has expanded to civil disputes generally. This section considers particular concerns about collaborative practice in those areas. Part VIII discusses key issues in access to justice and vulnerable populations. Collaborative practice at present primarily serves wealthy clients, because retaining a team of collaborative professionals for each case is quite expensive. At the same time, collaborative practice offers clients the potential for a less expensive and more durable resolution than litigation. This section analyzes the UCLA’s provisions modifying collaborative law to afford greater representation to low income clients, as well as several practical ways that collaborative practice may be adapted to serve that same population. Part IX focuses on the education and training of future collaborative lawyers. How should law schools and professional groups allocate their resources to ensure the proper development of this new practice methodology? Finally, the conclusion suggests that the radical heart of collaborative law has the potential to convert dispute resolution to peacemaking.
Dating: A Family Affair?
A mom has set up a "Date My Single Kid" website. From CNN.com:
The idea of moms and dads meddling in a young person's love life may evoke shudders and headaches for some singles. But parents like Geri Brin say parental involvement is natural today, when many parents act more like friends of their children. Already her site has lured in more than 200 parents, who are advertising their 20-, 30- and 40-something children as available for dates.
Read more here.
July 18, 2010
Prenups on the Rise
An Australian news outlet reports that approximately 10% of couples there are now signing prenuptial agreements (which became legal in Australia only 10 years ago). If only American couples would take note . . .
Read more here.