Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Saturday, February 13, 2010

Catania: "Accounting to Ourselves for Ourselves: An Analysis of Adjudication in the Resolution of Child Custody Disputes"

Francis Catania Jr. (Widener University School of Law) has posted "Accounting to Ourselves for Ourselves:  An Analysis of Adjudication in the Resolution of Child Custody Disputes," 71 Neb. L. Rev. 1228 (1992) on SSRN.  Here is the abstract:

The adjudicatory process for resolving child custody disputes is out of synch with the way most functioning families operate. It is inherent in the adjudicatory process that judgment is passed upon the parties by a superordinate stranger-adjudicator. Each party to child custody adjudication approaches the ostensibly problem-solving court as a supplicant and an inferior, having to tacitly admit that (s)he cannot handle her/his own affairs. In the small percentage of child custody cases reaching impasse and adjudication, the legal process entails the creation and operation of a body of legal norms that has grown through legal opinions resolving individual disputes. Because only a small percentage of family law cases reach the appellate reporters, the law is slow in reacting to developing social norms. American family law responds to social developments sporadically, inconsistently, and often only when its failure to respond creates discrepancies between social norms and legal norms that are plainly unconscionable.

Adjudicatory systems are inherently unable to accommodate conflicts and collisions among legal norms. The law has become silent with respect to social or moral values of any kind other than those protecting and encouraging the independence and autonomy of individuals, the law fails to reflect the realities of most families, particularly of mothers with young children. In reaching and rationalizing outcomes, child custody courts focus - upon finding any given proposition of fact as either true or false; - choosing among competing or conflicting norms in a binary fashion (as if only the dominant norm were applicable; as if each disputant is generally either “right’ or “wrong’); - upon an act-oriented approach to determining what has happened, rather than a person- or relationship-oriented approach to what will happen in the reordered family; and - upon strict neutrality and objectivity.

In short, the child custody determination - a central process in the reordering of family relationships - is not typically characterized by norms that recognize the dissolving and reforming relationships in a family going through the upheaval of a child custody dispute. Nor does the process facilitate continued interdependence and accommodation in these relationships. To usurp from the reordering family the power to accommodate varying norms is to devalue the family because it is reordering.

This article proposes tempering or replacing the adjudicatory process in child custody disputes with a more graduated and accommodative negotiatory process - a process more adept at addressing the complexity of family relationships and at preserving, as much as possible, the prerogatives and autonomies of family life in the reordering family. Specifically, the Article proposes a process utilizing the primary caretaker presumption and an impasse procedure known as Final Offer Selection.


February 13, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Friday, February 12, 2010

Male Fertility Problems Inherited?

A new study suggests that they may be, as male children born through at least one type of IVF carried more traits correlated to infertility than did their counterparts born naturally.

Doctors have uncovered the first evidence that fathers of test-tube babies may be passing on their infertility to their sons.

A new study has found that boys conceived through IVF treatment involving a single sperm being directly injected into a female egg often inherit shorter fingers, a trait known to be associated with infertility.
Almost one in 50 British babies is conceived artificially and nearly half the couples having treatment go through a procedure known as ICSI (intracytoplasmic sperm injection).

The technique bypasses the normal competition where only the healthiest sperm cell is able to reach the female egg and fertilise it.

Alastair Sutcliffe, a pediatrician at the Institute of Child Health in London, led the Anglo-German study which compared 211 six-year-olds conceived through ICSI with 195 naturally conceived children of the same age.

The ICSI group were similar heights to the naturally conceived group, but the boys had significantly shorter fingers.

It is known that men with low sperm counts often have ring fingers the same length as their index finger, whereas fertile men are more likely to have a ring finger which is relatively longer than their index finger.

The effect is reversed in women, where the most fertile are likely to have index fingers significantly longer than their ring fingers.

Sutcliffe’s findings appeared recently in the journal Reproductive Biomedicine Online.

“This is the first study of this kind on these children,” Sutcliffe said.

“We don’t yet know the implication of the findings because the children are very young, but we need to inform people [about the possible risks of the ICSI procedure].”

Read the full story here.


February 12, 2010 | Permalink | Comments (0) | TrackBack (0)

Find Your Match for Only $2,000 and a Few Cheek Cells

With Valentine's Day coming up, this dating service might become a hit.

From the Washington Post:

ScientificMatch subscribers are asked to send in a DNA sample --"just a cotton swab you rub on the inside of your mouth for a few seconds," Holzle explains -- which is then analyzed and entered into a database. Users are still asked to create profiles that include photos and information about their interests and personalities. Genetic information isn't shared with any of the users, but only profiles of people with compatible -- meaning very different -- immune system genes will pop up as matches.

The idea is that it is best for couples to have complementary immune response potentials for various pathogens so that the resulting children have a stronger, more responsive immune system.  Those with complementing immune response systems are therefore attracted to each other.  

A scientist friend of mine lends assurances that this dating service will not lead to genetic matching with cousins twice removed.

Read more here.


February 12, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, February 11, 2010

A Better Way to Divide Community Property?

Who needs expensive lawyers and hours upon hours of judicial time to divide community property between wealthy spouses?  Kate Walsh, star of the television show Private Practice (and formerly Grey's Anatomy), and her ex-husband have adopted a new approach to dividing the property acquired during their 14-month marriage.

"One-half of the community property furniture and artwork to be divided by alternating picks after the flip of a coin to determine who will pick first," their settlement agreement reads.

Read the settlement agreement here or more news coverage here.


February 11, 2010 | Permalink | Comments (1) | TrackBack (0)

IL Rules of Evidence Inapplicable to Best Interests Hearing Under Adoption Act

An Illinois appellate court recently held that the formal rules of evidence do not apply to the second step of the dispositional hearing under the Juvenile Court Act and the best interest hearing under the Adoption Act, which are functional equivalents.  Therefore, all helpful evidence may be admitted and relied upon to the extent of its probative value.  The case is In re Jay H., Jas. H., and T.W., Minors, Nos. 4-09-0439, & 4-09-0460 (4th Dist. Nov. 9, 2009).  Read the opinion PDF here.   


February 11, 2010 in Adoption | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 10, 2010

Wright: "Guardianship for Your Own Good: Improving the Well-Being of Respondents and Wards"

Jennifer Wright (University of St. Thomas School of Law) has posted "Guardianship for Your Own Good:  Improving the Well-Being of Respondents and Wards" on SSRN.  Here is the abstract:

Adult guardianship is a coercive exercise of the state’s power over an innocent individual, justified only by: 1) the ward’s incapacity; and 2) the need to protect the ward’s well being. The raison d’être of guardianship is thus to improve the well being of the incapacitated ward. Studies of actual guardianship proceedings have long indicated serious ongoing concerns with the process. Repeated revisions of statutes have attempted to improve guardianship procedures, with some success. However, relatively little attention has been paid to the actual effect of guardianship on the well being of respondents and wards, when the system functions as intended. The presumption that guardianship, when not abused, is in the best interests of an incapacitated adult is called into serious question by empirical research into the role of internal locus of control and autonomy on human well being. Indeed, a wide range of data indicates that guardianship itself can have significant negative effects on the physical and mental well being of respondents and wards. The guardianship system must be reformed to maximize the therapeutic effects of guardianship and to minimize the unnecessarily anti-therapeutic effects. I examine the effects of guardianship from a therapeutic jurisprudence perspective and propose and analyze modifications that could enhance the therapeutic effects of guardianship.


February 10, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Saints: 31, Colts: 17, Relationships: -14

The blogosphere has recently been abuzz regarding the negative portrayal of romantic relationships and family in the 2010 Super Bowl commercials.  Critics point to the Dodge commercial featuring a beaten down husband with only a car saving him, as well as the FloTV commercial featuring a boyfriend with his spine removed by his girlfriend.  See one of the commercials here, and commentary here.  Super Bowl commercials have generally been thought to reflect cultural attitudes and the brightest of advertising talent.


February 10, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 9, 2010

Sexless Year as Grounds for Divorce?

A Maryland lawmaker is backing legislation that would allow couples who have lived together but have not had sex for a year to skirt the state's one-year waiting period for no-fault divorce.  Yes, you read that correctly.  I thought it was a joke too until I read the bill.

Simmons said it would ease the initial financial burden for couples -- especially those with children -- because they could remain in the same house during the year-long waiting period.

Read the bill here, more news coverage here, or humorous blog commentary on this "hump or dump" legislation here.


February 9, 2010 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

7-Year-Old Brazilian Girl Lands Coveted Carnival Role of Sexy Muse

In child welfare matters, every family law system must carefully balance between excessively intervening given parental rights, and not intervening enough to protect children’s interests.  This dilemma has most recently arisen in the Brazil, where a 7-year-old girl has been given the sexy role of being the drum corps queen during the Carnival—that of a sexy muse. 

From the Washington Post:   

RIO DE JANEIRO -- She is the Shirley Temple of samba, a 7-year-old named to a coveted Carnival role normally reserved for barely clad models who have undergone more plastic surgeries than little Julia Lira has seen birthdays. Naming the girl drum corps queen for the Viradouro samba group is raising eyebrows even in a city that has seen everything during the annual mega-party that begins next week.

A judge is considering blocking Julia's participation. A state agency that defends children's rights says she's too young to take on a traditionally sexy role. But the girl's father, who happens to be the president of the Viradouro group, says Julia is a natural who can easily samba through the 80-minute parade route in Rio's sweltering summer heat.

Read the rest here.


February 9, 2010 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Monday, February 8, 2010

Prop 8 Trial Judge Reportedly Gay

The San Francisco Chronicle reported yesterday that the federal judge who will issue the much-anticipated decision in California's Prop 8 trial (which we have blogged about here, here, and here) is gay.

Walker has declined to talk about anything involving the Prop. 8 case outside court, and he wouldn't comment to us when we asked about his orientation and whether it was relevant to the lawsuit.

Shortly after our conversation, we heard from a federal judge who counts himself as a friend and confidant of Walker's. He said he had spoken with Walker and was concerned that "people will come to the conclusion that (Walker) wants to conceal his sexuality."

"He has a private life and he doesn't conceal it, but doesn't think it is relevant to his decisions in any case, and he doesn't bring it to bear in any decisions," said the judge, who asked not to be identified because of the sensitive nature of the Prop. 8 trial.

"Is it newsworthy?" he said of Walker's orientation, and laughed. "Yes."

He said it was hard to ignore the irony that "in the beginning, when (Walker) sought to be a judge, a major obstacle he had to overcome was the perception that he was anti-gay."

In short, the friend said, Walker's background is relevant in the same way people would want to know that a judge hearing a discrimination case involving Latinos was Latino or a Jewish judge was ruling in a case involving the Anti-Defamation League.

Walker, by the way, didn't seek out the Prop. 8 case - it was assigned to him at random.

If the judge decides that Prop. 8 is unconstitutional, supporters of the measure are sure to take it to the federal appeals court and the U.S. Supreme Court, if necessary. Kendell expects that if that happens, the measure's proponents will make an issue of the judge's sexual orientation - at least in the public arena.

Read more here.


February 8, 2010 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

University Hired Housekeepers?

An article published last month in Nature asserts that married female scientists do more than twice the amount of housework than male scientists.  This is to be expected given some of the showings in the family law literature.  Unique, however, is the authors’ proposed solution that universities provide household help to their faculty.  For the record, I will pack my bags for the first employer—all other things being equal—offering to hire me a housekeeper.  Human Resources and Recruiting Departments across the country take note:

From Nature:

Female US scientists do nearly twice as much housework as their male counterparts, according to a study in Academe, the online publication of the American Association of University Professors.  Science historian Londa Schiebinger of Stanford University in Palo Alto, California, and analyst Shannon K. Gilmartin found that partnered women scientists at 13 top US institutions do some 54% of household tasks, requiring more than 10 hours a week on top of the 60 hours they work.  Partnered male scientists, however, do just 28%.  The remainder is done by hired help.  The authors propose that university benefits could be made more flexible to include support for housework help.

Obtain the full Nature article here.


Hat Tip: S.H.

P.S. Consistent with the theme of this post, this article is an entertaining one, about a working married woman keeping track of her minutes and hours (but not in the billable sense) in order to find the 30 leisure hours that a sociologist suggests married working women have per week.

February 8, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Sunday, February 7, 2010

If You Like Pina Coladas and Getting Caught in the Rain…

…oh, never mind, because any woman’s chances for love in China are nearly surefire, where the one-child policy will yield a 24M bride shortage by 2020.

From CNN:

Sex-specific abortions have led to a large male population born since the 1980s, the China Daily newspaper said, citing a study conducted by the Chinese Academy of Social Sciences.

The gender imbalance means that the next decade will see many intergenerational marriages: young men married to women much older than them, the study said.

China's Communist Party implemented the one-child rule three decades ago, amid fears that the country would not be able to feed a skyrocketing population.  The policy has prevented about 400 million births, China Daily said.

Read the rest here.


February 7, 2010 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)