Family Law Prof Blog

Joslin: "The Evolution of the American Family"

Courtney Joslin (UC Davis School of Law) has posted "The Evolution of the American Family" on SSRN.  Here is the abstract.

This short piece examines the changing meaning of marriage and the family in the U.S. Among other developments, the piece chronicles: the changing role and legal status of women in marriage; race restrictions in marriage; the legal recognition of same-sex relationships; and the increasing numbers of nonmarital families. The article is the lead piece in the Summer 2009 issue of the ABA Human Rights magazine devoted to the New American Family.

AC

Psychological Violence Law in France

France is set to introduce a new offense: psychological violence between married couples or partners living together.  This is an unusual venture into regulating matters within a family.  There is some concern, however, that the law will be abused and turn into a he said/she said debacle.  Nonetheless, the numbers are sobering: almost 3 women die weekly in France after being assaulted by a partner or ex-partner.  Read more here.  For editorials on the subject, see here and here.

MR

Easteal: "Marital Rape: Conflicting Constructions of Reality"

Patricia L. Easteal (Univerity of Canberra) has posted "Marital Rape:  Conflicting Constructions of Reality" on SSRN.  Here is the abstract:

Marital rape is one manifestation of violence in the home. It involves more additional injuries than sexual assault by any other type of perpetrator. Yet, there is a dearth of literature in Australia – a silence that appears to have continued despite recent legislative changes that have abolished the immunity of husbands from prosecution for rape.

The current article examines three dimensions of the crime and how they are experienced by the victims and constructed within the courts: incidence, the dynamics or nature, and the effects. Differences are apparent with few rapes prosecuted, the nature of coercion interpreted narrowly by the court without a recognition of the range of duress that can be a part of a violent marriage, and the harms often minimized by judges who see the rapist’s marital tie to his victim as a mitigator. These examples indicate the need for women’s experiences to be validated and their reality reconstructed in the society and in the law.

AC

Removal Cases in Family Law

A recent Illinois appellate case reversed the lower court and permitted the removal of a child to a different state despite objections from her father, determining that the mother of the child met her burden of establishing the removal petition should be granted.  The removal will take the child from Illinois, where her father resides, to North Carolina, which will soon be the new home of her mother.  The dissent unsurprisingly suggests that de novo review is unwarranted and that instead the Court of Appeals should defer to the sufficiency of the evidence opposing removal.  Read the Illinois opinion here.

For me, these removal cases are perhaps the most unfortunate ones following a divorce because often a parent has legitimate reasons for moving to different parts of the world, even when at the risk of hurting the other parent’s relationship with the child.  This is particularly true in international marriages—and I suspect it will become a sticking point should Elin proceed with a divorce from Tiger. 

MR

Census Bureau Data Shows Highest Ever Median Age at First Marriage

Americans are waiting longer than ever to try matrimony for the first time. Statistics released by the U.S. Census Bureau show the median age of men who have their first wedding is now 28.1 years old, and for women it’s 25.9. In both cases, the age is the highest it’s ever been since the federal government first began keeping track of the rate in 1890.

See the data here or read news commentary on it here.

AC

Tattooing Children

We’ve previously touched on the difficulty of drawing a line between permitting parents to make certain medical decisions and having the state do so.  What about tattooing children with primitive instruments?  Is there something wrong with that?  How is different from piercing a baby’s ears, other than the permanency of having a “mom and dad” tattoo on your arm?

From myfoxdc.com:

CHATTOOGA COUNTY, Ga. - A Georgia couple is out of jail on bond after being arrested for tattooing six of their children.

Investigators say they put their children in danger, but they say they did nothing wrong.

Investigators said a plastic pen body with a needle made of a guitar string connected to an electric motor was used to tattoo the six children.

Read more here.

MR

Reform of Royal Marriage Rules on the Horizon?

Rules governing royal marriages and the succession to the throne of the UK breach the European Convention on Human Rights, an influential parliamentary committee has said.

The Joint Committee on Human Rights (JCHR) said that laws barring members of the Royal Family from marrying Roman Catholics were contrary to the Convention, while the rule that male heirs take precedence over older sisters in the succession was "arguably" also a breach.

The cross-party committee of MPs and peers urged the Government to adopt proposals put forward by Liberal Democrat MP Evan Harris to remove religious discrimination against Catholics in relation to royal marriages, and discrimination against women in relation to the succession.

Prime Minister Gordon Brown last year indicated sympathy with calls for reform, telling the House of Commons that "most people recognise the need for change" in the regime put in place by the 1701 Act of Settlement.

Read more here.

AC

Ahmed: "Personal Autonomy and the Option of Religious Law"

Farrah Ahmed (University of Oxford) has posted Personal Autonomy and the Option of Religious Law, International Journal of Law, Policy and the Family (forthcoming), on SSRN.  Here is the abstract:

The ‘millet’ and 'personal law' systems, found in countries such as India, Bangladesh, Sri Lanka, Singapore, Malaysia and Israel, are long-standing models of state accommodation of religious norms in family law. This paper, a work of applied normative legal theory, uses the Indian system of personal laws as a test-case to consider the extent to which these modes of accommodation undermine personal autonomy.

In particular, it studies the claim, made both in the context of the Indian personal law system and in debates in other jurisdictions on the use of religious norms in family law, that if people had a choice between religious law and generally-applicable secular law, this would remove any objection to such systems on the grounds of personal autonomy. It also studies the further claim that such a power to choose would actually make the personal law system better for personal autonomy than a system of general secular laws.

Liberal states, including the United Kingdom and Canada, increasingly face calls from religious groups to reform family law in order to accommodate religious norms. The conclusions of this paper contribute to the broader question of whether these states should do so, as well as the question of what form any accommodation should take.

MR

 

New Jersey Supreme Court Allows Divorce to be Obtained After Death

Years ago, the New Jersey Supreme Court held that a spouse may continue divorce litigation after the other's death for the sole purpose of proving that the deceased spouse had diverted marital assets.  The divorce is an equitable method of recovering those diverted assets for equitable distribution. 

Last week, the New Jersey Supreme Court considered for the first time the reverse scenario.  In Kay v. Kay, the deceased spouse raised the claim that marital assets had been diverted during marriage.  The question was whether a divorce action to recover diverted assets for equitable distribution could be maintained by the deceased spouse's estate. 

The Court held that the right to continue divorce litigation under these circumstances is reciprocal.  Equitable distribution statutes exist to promote equity and fair dealing between the spouses, and depriving the estate of the opportunity to pursue its claim would not serve those policies.

Read the opinion here.

AC

C-Sections Overused?

A third of births in the United States and a quarter of births in England are done by c-section.  Such planned surgeries, along with the “too posh to push” attitude of some, have been a cause for concern in both countries.  Also problematic have been stories where new mothers have not even been given a choice anymore by health care providers, who chose to deliver by c-section.

Read here and here for more.

MR 

Cameras in California’s Federal Courtrooms

We have recently blogged here about whether cameras should be allowed into the California federal district courtroom in which the Proposition 8 case on same-sex marriage is ongoing, with the video then being posted on YouTube.  The Supreme Court has just ruled on the issue, determining, in a per curiam opinion, that “the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting.”  The full opinion is available here.

MR     

Teaching the Ongoing Proposition 8 Trial

Our friends at the Constitutional Law Prof Blog are closely monitoring the Proposition 8 trial in California—the first federal trial on the constitutionality of same-sex marriage bans.  They offer suggestions for using the trial in teaching here and provide a primer on the case here.

We have previously blogged about the case here and here.

MR    

Class Action Against State Agency for Lax Child Support Collection

A West Virginia attorney recently filed a class action suit against the State Bureau of Child Support Enforcement, claiming that the Bureau has taken no action in scores of child support enforcement cases, allowing limitations to run and otherwise mishandling enforcement cases.

“I think we have class action here,” Webb said to a woman sitting in his office several months ago as she told him how the Child Advocacy Office handled her case. Her husband owed more than $16,000 in support payments, but the statute of limitations had kicked in and the order lapsed with no action from the office that is supposed to collect from delinquent obligors.

Webb has been a family law lawyer for 23 and served two terms in the state legislature. He knew that his client, Kimberley Hoover, wasn’t the only mother in West Virginia with a child support problem.

“The Child Advocate Office has a duty to collect child support payments for children. It should have been on high alert not to allow statutes of limitations to run out on these judgments,” says Webb with a slightly perceptible growl. “But they weren’t. No one seems to notice or care that children were losing thousands of dollars because of a failure to draft and implement a very simple writ of execution.”

Webb anticipates that the Child Advocacy Board will claim to be “overworked and underpaid” and will say that “the child support payments were uncollectable” in many cases. He doesn’t think that will pass as a defense. It is a particularly weak argument in the case of Kimberley Hoover. “The parent who owed the money advised the court that he was receiving a lump sum payment for a disability claim,” says Webb. “This was a collectable judgment.”

Read the full story here.

AC

Warm Up Your January Monday...

...by checking out  this link, featuring pictures of parents whose kids think they are awesome.  No joke.

MR

Haiti Earthquake Impacts Adoption Process

The effects of the devastating earthquake in Haiti have been felt by the many American families awaiting adoption from Haiti, who cannot get their adopted children out of the country.

For example, this Wisconsin adoptive couple is waiting for a 16-year-old Haitian boy to get his passport to join them; in the meantime, he is sleeping in an orphanage’s courtyard as the orphanage is structurally unstable.

Meanwhile, this mother from Skokie, Illinois is awaiting the opportunity to bring home her 4-year-old HIV positive adopted child from Haiti.

Hopefully, these cases will be resolved soon, but that might be difficult in the midst of disaster.

MR

Fairfield: "Virtual Parentalism"

Joshua Fairfield (Washington and Lee University School of Law) has published "Virtual Parentalism," 66 Wash. & Lee L. Rev. 1215 (2009).  Read the abstract on SSRN here:

Parents, not laws, ultimately protect children both online and offline. If legislation places adults at legal risk because of the presence of children in virtual worlds, adults will exit those worlds, and children will be isolated into separate spaces. This will not improve safety for children. Instead, this Article suggests that Congress enact measures that encourage filtering technology and parental tools that will both protect children in virtual worlds, and protect free speech online.

AC