Saturday, September 4, 2010
Friday, September 3, 2010
From the WSJ blog:
A New York state appellate court ... became the first in the state to rule that a same-sex partner may be liable for child support.
The case of H.M. v. E.T involved a one-time lesbian couple who allegedly agreed to conceive a child through artificial insemination.
But after the baby was born, E.T. — the non-biological parent — ended the relationship. H.M. argued that she relied on her former partner’s promise of support when she decided to give birth to the child.
H.M. has stated a viable cause action for child support, a New York appellate court ruled. In prior ruling in the state, the court noted, fathers who have denied paternity have still been required to pay child support if they had developed a relationship with a child and had promised to support the child.
“By parity of reasoning, we hold that where the same-sex partner of a child’s biological mother consciously chooses, together with the biological mother, to bring that child into the world through [artificial insemination,] and where the child is conceived in reliance upon the partner’s implied promise to support the child, a cause of action for child support . . .has been sufficiently alleged,” the court ruled.
Carol Rogerson (University of Toronto - Faculty of Law) and Rollie Thompson (Dalhousie Law School) have posted Complex Issues Bring Us Back to Basics: The SSAG Year in Review, 28 Canadian Family Law Quarterly 263 (2009) on SSRN. Here is the abstract:
In July 2008, the Final Version of the Spousal Support Advisory Guidelines (SSAG) was released by the federal Department of Justice, after three years of intensive feedback from spouses, lawyers, mediators and judges across the country. The B.C. SSAG cases in the year since the release of the Final Version show the courts struggling with many complex issues of spousal support law: the use of the SSAG on variation and review, the impact of high property awards upon spousal support, competing theories of entitlement, spousal support in shared custody cases, cases involving payor incomes over $350,000, post-separation income increases for payors, the effect of remarriage or repartnering by the recipient, self-sufficiency, time limits. These issues require a sophisticated support analysis and are the focus of this paper.
The first part of the paper reviews
"the basics" of the Advisory Guidelines, to ensure that mistakes are
not made in typical cases and flags some common errors. We then review the
major spousal support decisions of the B.C. Court of Appeal in the past two years,
focusing primarily on four of the 17 decisions: Beninger, Chutter, Mann, and
Shellito v. Bensimhon. In the next two sections, we analyze in detail the trial
decision from the past year, first those under the without child support
formula and then those under the with child support formula. In the concluding
section, we offer some gratuitous advice, our own "top ten" list, of
what to do, and what not to do, in using the Advisory Guidelines in
Thursday, September 2, 2010
Waggoner: "The Uniform Probate Code's Elective Share: Time for a Reassessment (With an Addendum Reporting on Post-Publication Amendments)"
Lawrence Waggoner (University of Michigan Law School) has posted "The Uniform Probate Code’s Elective Share: Time for a Reassessment (With an Addendum Reporting on Post-Publication Amendments)" on SSRN. Here is the abstract:
This Article reproduces in a slightly revised format an Article under the same title (37 U. Mich. J. L. Reform 1 (2003)), and adds an Addendum that accounts for subsequent amendments to the UPC’s elective share. As reported in the Addendum, the Uniform Law Commission adopted many of the changes recommended in the original Article.
The elective share is a statutory provision common to most probate codes in non-community-property states. The elective share protects a decedent’s surviving spouse against disinheritance. Traditional elective share law typically grants a surviving spouse a right to elect one-third of the deceased spouse’s estate, increased in some states to one-half, but the theory behind the traditional elective share amount has not until recently been carefully scrutinized. A one-third fraction can only be explained as a carryover from common law dower, but whatever the cause in early English law for choosing that fraction, there is no justification for continuing to use that fraction today.
There are two plausible theories for elective share law today. One is the marital sharing theory. Under that theory, marriage is viewed as an economic partnership, a view that implies a goal of equalizing the marital assets. The other plausible theory is the support theory, that the elective share is a means of continuing the decedent’s duty of support beyond the grave. The traditional elective share statute implements neither theory. A fixed fraction of the decedent’s estate, whether it be one-third or one-half, is not coordinated with the partnership or support theories. Regarding the partnership theory, one-third or one-half of the decedent’s estate might be significantly less than the amount necessary to equalize the marital assets when those assets are disproportionately titled in the decedent’s name and considerably in excess of the amount necessary to do so when those assets are already titled equally or are disproportionately titled in the survivor’s name. Regarding the support theory, one-third or one-half might be significantly less than the amount necessary to satisfy the survivor’s support needs in a smaller estate and considerably in excess of those needs in a larger estate.
Other relevant areas of the law of marriage are based on and coordinated with both the partnership and support theories. In the community property states, property law implements the partnership theory during the marriage. Family law implements both the partnership and support theories – the partnership theory upon divorce through the equitable distribution regimes and the support theory through the duty of support during the marriage and the right to alimony upon divorce. Traditional elective share law is the odd one out.
The 1990 UPC represented the first effort to bring elective share law broadly into line with the partnership theory of marriage. That theory suggests that, if the surviving spouse so elects, the survivor is entitled to force a transfer of the decedent’s assets sufficient to equalize the marital assets. In determining which portion of a decedent’s estate is marital, the 1990 UPC uses an approximation system. The 1990 UPC, however, suffered from problems of presentation. It presented the approximation system in a rather indirect and opaque form.
The original Article recommended changes that would cure that defect in presentation. The primary benefit of the recommended changes was to make the statute, as revised, present the approximation system in a clear and transparent form. As reported in the Addendum, the Uniform Law Commission revised the UPC elective share in 2008 so that it now presents the elective share in a more direct and hence more understandable form than it was in its earlier formulation.
Wednesday, September 1, 2010
The Dallas Court of Appeals ruled yesterday that a gay couple legally married in MA had no right to a TX divorce. From CBS News:
"A person does not and cannot seek a divorce without simultaneously asserting the existence and validity of a lawful marriage," Justice Kerry P. Fitzgerald wrote on behalf of three Republican appeals court justices. "Texas law, as embodied in our constitution and statutes, requires that a valid marriage must be a union of one man and one woman, and only when a union comprises one man and one woman can there be a divorce under Texas law."
The court applied rational relationship review, finding that sexual orientation did not create a suspect class and that there is no fundamental right to same sex marriage.
Tuesday, August 31, 2010
As a result of reproductive technology, procreation is no longer left to the living. The discovery of effective methods to extract and freeze sperm has led to posthumous reproduction. Consequently, a man’s child may be conceived long after the man is dead. Traditionally, a family consisted of a husband, a wife and their adopted or biological children. High divorce rates led to single parent families and blended families consisting of step children. As a result of the sexual revolution, some families were made up of a man, his “old lady”, and their non-marital children. Currently, assisted reproduction enables infertile couples, single persons, and same-sex couples to create families with children. Some men and women want to create families with the loves of their lives. These persons refuse to let a little thing like death prevent them from conceiving their love children Since children can now be conceived using the genetic material of dead people, those love children can be conceived. In addition, posthumous reproduction permits families to create living memorials to their dead love ones.
A dead man’s sperm can be used to impregnate a woman years after his death. A surrogate can use the eggs of a dead woman to conceive a child. These are just a few of the miracles that are possible because of the advancements in reproductive technology. Physicians and other health care providers hail the beneficial uses of reproductive technology. Scientists marvel over the miracles performed. However, lawyers and others in the legal community are forced to deal with the mistakes that have been made. Even when everything goes according to plan, families are forced to deal with the legal consequences that arise from the use of reproductive technology.
As a consequence of the availability and use of reproductive technology that make posthumous reproduction possible, courts are forced to designate legal parents for the children conceived. Several persons may be vying for the roles of mom and dad. Further, courts have to decide whether or not dead people have reproductive rights and determine the steps that are necessary to protect those rights. Doctors need guidance when deciding if they should extract sperm from dead men and turn it over to the requesting party. Once posthumously conceived children are born, legislatures and courts must ensure that they are financially supported. That financial support may take the form of life-time support, inheritance or government survival benefits. The amount of financial support the posthumously conceived child receives depends upon the manner in which the law classifies the child. Due to the lack of legal regulations with regards to posthumous reproduction, the law will continue to play catch up when it comes to issues of parentage, procreation, and probate.
Susan B. Boyd (University of British Columbia Faculty of Law) has posted Autonomy for Mothers? Relational Theory and Parenting Apart, 18 Feminist Legal Studies 137 (2010) on SSRN. Here is the abstract:
This article explores the tensions between autonomy and expectations of mother-caregivers, in the context of normative trends in post-separation parenting law. Going back to first principles of feminism, the article asks what scope for autonomy there is for modern mothers in the face of socio-legal norms that prioritize shared parenting. The very relationship between mother-caregivers and children illustrates the important connection between relationships and autonomy: the caregiving that mothers provide enables children to become autonomous persons yet, at the same time, this caregiving relationship constrains maternal autonomy. In the current context that encourages shared parenting, the potential for maternal autonomy may be even more compromised – a deep irony in a supposedly post-feminist era. A responsible mother is now expected to nurture a child’s relationship with the father, unless he is proven to be harmful. The ability of women to be at all autonomous from the fathers of their children in the face of this normative expectation is dubious, even when the adults live separately. Moreover, the dominance of the heterosexual and patriarchal family – always a challenge for women’s autonomy – is reproduced in this imposition of equal parenting in the name of children’s rights. This article uses a contextual approach to relational autonomy to point to an approach that might challenge the normative climate of shared parenting.
Monday, August 30, 2010
The Washington Times is reporting new international adoption figures and they are startling. Last year, the number of Americans completing international adoptions declined by nearly 40% from the previous four-year period.
Read about the reasons for the decline here.
Amos N. Guiora has posted Protecting the Unprotected: Religious Extremism and Child Endangerment, 12 Journal of Law & Family Studies 391 (2010) on SSRN. Here is the abstract:
This Article’s primary thesis is that male and female children alike are victims of child abuse and neglect in the name of FLDS religious doctrine. While others have addressed "terror in the name of God" (attacking internal and external targets alike) child endangerment in the religion paradigm is, I suggest, fundamentally different. Simply put, it is the deliberate injury to one's own child predicated on religious faith, in particular religious extremism. To that end, this Article will focus on the danger to members of an internal community (members of a particular faith) rather than to an external community (members of other faiths).
Sunday, August 29, 2010
The advances in reproductive technology have given women more reproductive choices. Women are able to rewind their biological clocks and become mothers later in life. If a woman is unable to carry a child, she may be able to utilize the services of a surrogate to become a mother. The amount of assistance the woman receives from the surrogate depends upon the state of her reproductive health. A woman who is no longer capable of producing eggs can arrange for a traditional surrogate to supply the eggs and to carry the child to term. Gestational surrogacy is an option for the woman who cannot carry the embryo made from her genetic material. Surrogacy is a great way to create a family.
If medicine is the hare, the law is the tortoise. As long as the surrogate honors the contract and surrenders custody of the child to the contracting woman, every thing goes smoothly. However, when face with custody disputes involving surrogates and contracting women, courts are not sure how to react. For courts, the resolution of traditional custody disputes is not difficult because the law is well settled. In surrogacy dispute cases, since two women are seeking to be declared the legal mother of the child, instead of deciding custody, courts have to adjudicate maternity. As a consequence of the lack of clear legislative guidance and bright line rules, courts have relied upon several different theories to decide whether the surrogate or the contracting woman should be declared the legal mother of the child. The underlying premise of three of those theories is the lie that the standard for determining maternity should be based on the actions of the women. The final theory is based upon the truth that the test for adjudicating maternity should focus upon the needs of the child.
In situations involving children born as the result of sexual intercourse, the common law rule is that the woman who gives birth to the child is the child’s legal mother. Since the woman who gives birth is also the woman who supplies the genetic material to conceive the child, the rule is relatively easy to implement. Things become more complicated when one woman gives birth to a child conceived using the genetic material of another woman. In those cases, some states follow the common law fallacy and conclude that, since she gives birth to the child, the surrogate should be recognized as the child’s legal mother. This approach is referred to as the gestational theory of maternity. Other courts believe the lie that the sole indicator of maternity should be genetics. Thus, the woman who supplies the genetic material used to creative the child should be designated as the child’s legal mother. California and other jurisdictions have embraced the untruth that maternity should be determined by relying on the intent of the parties. Therefore, the woman who signed the contract intending to parent the child should be deemed to be the child’s legal mother.
The Court that decided the Baby M case used the “best interests of the child” standard to award custody of the child. At least one judge has realized the truth. He argued that this same standard should be use to determine whether the surrogate or the contracting woman should be recognized as the child’s legal mother. For decades, courts have relied upon the “best interests of the child standard” to make decisions that impact children. Nonetheless, the standard has not been use to make initial parentage determinations. Although the standard has been around for a long time, it is still not well-developed. Neither the legislatures nor the courts have put forth a clear definition of what the “best interests of the child” means. Courts evaluate various factors to decide which outcome will promote the child’s best interests
The correct standard for adjudicating maternity is a modified version of the “best interests of the child” standard. Courts should not apply the standard to maternity adjudications cases in the same manner that they apply it in custody cases. In order to choose the maternal arrangement that will promote the child’s best interests, courts should consider the parental potential of each woman, the stability of each woman, and the investment that each woman made to ensure the child’s conception and birth. In the interest of fairness, courts should seek guidance from an independent board of experts.