Family Law Prof Blog

Oregon Child Advocacy Project Conference

Registration is now open for the 2010 Oregon Child Advocacy Project Conference:

Protecting Children’s Interests, Hearing Children’s Voices:  The Dilemmas of Advocacy

When are children entitled to an attorney? When is a child's waiver of counsel valid? Should a lawyer representing a child advocate for best interests or the child's expressed wishes? How can a child's lawyer resist pressures to go along rather than rocking the boat? Legal scholars from around the country discuss these and other ethical and practical problems that children's lawyers face every day.

 

April 2 - 3, 2010

Room 175, Knight Law Center, University of Oregon School of Law

Registration Deadline:  March 29, 2010

Register online at http://www.uoregonlaw.com/ocap2010

AC

 

Mother Seeks Surrogate to Give Birth to Child Created From Dead Son's Sperm

A Texas mother is seeking an egg donor and/or surrogate to give birth to a baby using the sperm of her son, whose sperm was extracted after he died from a gunshot wound last year.

But now his mother is hoping for a legacy -- a grandchild culled from her son's sperm after his death on April 5, 2009. She has heard from hundreds of women who have offered to be egg donors or surrogate mothers for her future grandchild.
Advances in the fertility industry have allowed wives, fiances, girlfriends and even parents to seek post-mortem sperm retrieval when a man dies unexpectedly.

The first report of post-mortem sperm retrieval was in 1980 involving the case of a 30-year-old man who became brain dead after a car accident, according the journal "Human Reproduction."

A birth was first reported in 1999, but since then more than 1,000 such requests are made each year. Most do not result in pregnancy attempts.

"Often parents change their minds," said Dr. Daniel Williams, assistant professor of urology at University of Wisconsin-Madison.

In post-mortem sperm retrieval, sperm is surgically removed from the testes, epididymus and vas deferens then preserved in nitrogen vapor.

Frozen, it can be kept indefinitely, with "no obvious risk to offspring," according to Williams.

The science is easy, say medical experts, but the ethics are not so clear.

"It's an area that is steeped in ethical issues, emotional issues and financial issues," he told ABCNews.com. "These issues can become very challenging because there are no guidelines or laws or rules on how to handle the requests. Often they are handled on a case-by-case basis."

Many doctors suggest that parents like Evans, who are still grieving for a lost child, should have a "quarantine period" as they heal to consider all the ramifications of having a baby from sperm retrieval, including the welfare of the unborn child.

Read more here.

AC

Easteal: “Marriage-Like Relationships: Can Battered Woman Syndrome or Reality Be Pleaded in Social Security Law?”

Patricia L. Easteal (University of Canberra) recently published Marriage-Like Relationships: Can Battered Woman Syndrome or Reality Be Pleaded in Social Security Law?, 34 Alternative Law Journal 174 (2009).  Here is the abstract:

The effects of living in domestic violence upon its victims’ ability to make choices have been documented in various legal areas. For instance ‘learned helplessness’ and the other disempowering effects of domestic violence are now well recognized in the criminal law relating to murder and provocation. Evidence showing how victims’ choice-making may become constrained thus affecting their capacity to leave the violent relationship has been deemed as relevant in a number of cases. But battered woman’s syndrome, or what is perhaps better described as ‘battered woman’s reality,’ has had only patchy acceptance in case law outside of homicide. A recent Administrative Appeals Tribunal decision suggests though that it may now be achieving acceptance in social security law.

MR

Oklahoma Bill to Ban Common Law Marriage Moves Forward

A bill pending in the Oklahoma legislature that would ban recognition of common law marriage and require couples to complete two hours premarital counseling has passed House committee and is now pending before the full house.

Read more here.

AC

Divorce Attorney Tells All

A Massachusetts divorce attorney has co-authored a new book with a journalist, entitled Sex, Love, and Money: Revenge and Ruin in the World of High-Stakes Divorce. The book description is as follows:

In this riveting memoir, one of the nation's best divorce lawyers opens decades of case files, exposing salacious stories that make fiction jealous.

We all know the stereotypes of divorce: the cheating husband, the financially and emotionally broke wife. But after handling fighting spouses for nearly forty years, attorney Gerald Nissenbaum knows that the truth is even more outrageous and extraordinary than the characters on soap operas or courtroom reality TV.

From a money-hungry wife who emptied the entire house-from furniture to the light fixtures-before leaving her husband penniless; to a revenge-obsessed husband who delivered truckloads of documents to his wife trying to deceive her, Nissenbaum shares the best tales from his extensive, successful career. Commanding upwards of $700 per hour, he knows everything about his well-to-do clients: how much is in his bank account; what kind of sex she likes and how often; if they marred for money or power; how he cheated and with whom.

Based on the three elements that hold a marriage together and ultimately tear many apart, Sex, Love and Money examines the darkly humorous, ironic, cathartic, vindictive, sad and simply astonishing situations people go through to break asunder what a wedding put together.

In this compelling memoir, Gerald Nissenbaum and John Sedgwick shed a blinding light on the behind-the-scenes work of divorce lawyers with a comedic bang. Showing all sides of human nature, from the very best to the absolute worst, this compulsively readable tale is a true guilty pleasure.

For commentary on the book, see here and here.  Check out the book on Amazon here.

MR

Mom Pleads for Public Help in Locating Child at Center of Custody Battle

The battle between former lesbian partners Lisa Miller and Janet Jenkins for custody of a child born to Miller through IVF while the two were involved in an intimate relationship still rages, with Jenkins now publicly pleading for help in locating her former partner and their child:

A woman who is locked in a child custody battle with her former lesbian partner and has renounced homosexuality is facing arrest if she doesn't appear in a Vermont court with the child.

Family Court Judge William Cohen is holding a hearing on Tuesday in the custody battle between Lisa Miller of Forest, Va., and Janet Jenkins, of Fair Haven, Vt.

Miller was ordered to surrender custody of the 7-year-old girl on Jan. 1, but she failed to do so and has since disappeared. Their daughter is now considered a missing person.

Miller and Jenkins got a civil union in Vermont in 2000, had the baby two years later and broke up in 2003, with Miller moving to Virginia, where she renounced homosexuality and became an evangelical Christian.

Read more news coverage here and here or our previous post about the case here.

AC

Recent Case on Parental Rights in IL

An Illinois trial court recently found a Respondent father unfit, detemining that the child’s best interests required the termination of Respondent’s parental rights.  The appellate court affirmed, determining, first, that the trial court was not prohibited from finding the Respondent an unfit father because of his minority at age 15.  Second, Respondent was not denied due process rights because Section 1 of the Adoption Act did not list protected parental rights, but grounds for parental unfitness.  Finally, the trial court’s best interest finding was not against the manifest weight of the evidence, which showed the infant already bonded with foster parents and was maltreated by the father.  The case is In re I.B., No. 3-09-0547 (Ill. Ct. App., 3d Dist. Dec. 30, 2009).  Read the full opinion here.

MR

Ruling in White Supremacist Custody Case in Canada

A Canadian judge has ruled that two children of a father with white supremacist beliefes will remain permanent words of Child and Family Services.

The children were first apprehended by CFS after white supremacist markings were found drawn on the girl's body when she went to school in March 2008.

In the judge's decision, she says that drawing slogans on the daughter does not justify a permanent removal. But during the trial a social worker testified the daughter said black people need to die. The judge said the children have a right to be protected from the wilful promotion of hatred against specific groups.

Read the full story here.

AC

Chichilnisky: “Gender Pay Gap”

Graciela Chichilnisky (Columbia University) has posted Gender Pay Gap, International Journal of Green Economics (2009) on SSRN.  Here is the abstract:

We discuss the special role of women in Green Economics. The article explains the origins of the gender pay gap as a Nash equilibrium of a game with incomplete information about women's work at home and in the marketplace. Expectations about women's lower market wages leads to the overutilization of women in the household, and this, in turn, leads to lower productivity and lower wages for women in the marketplace. The situation is rational but (as the prisoner's dilemma) it is generally Pareto inferior. Inequity at home breads inequity in the marketplace and reciprocally, leading to a persistent gender gap. With learning by doing, at high levels of skill there is a Pareto superior equilibrium where men and women share efforts equally at home and receive the same pay in the marketplace, firms enhance their profits, and there is additionally more welfare at home. Updated Family Law and appropriate contracts can help resolve this Pareto inferior situation as well as increase productivity and economic growth in the economy as a whole (Pyle, 1990).

MR

Secret Divorce

Read the story here of an indicted city council member from New York who obtained a judgment of divorce and kept it a secret from his wife for 7 years!

AC

Previous Nebraska Safe Haven Law Blunder

State safe haven laws allow parents to anonymously, and without penalty, abandon very young children at designated public locations for the purpose of adoption.  There are often certain limitations on this legalized form of parental abandonment: 1) the child must be below a certain age—e.g., Mont. Code Ann. § 40-6-417 (2007) (child must be under 30 days old when abandoned); Ind. Code § 31-9-2-0.5 (2007) (child must be under 12 months old)—and 2) the child must be left in a permissible public location—e.g., Ark. Code Ann. § 9-34-202 (2007) (child must be left at a medical provider or law enforcement agency); Minn. Stat. § 145.902(a) (2007) (child must be left at a licensed hospital).  Most states have enacted these safe haven laws to curb out-of-state transport and abandonment of children such that no one state is left with the region’s relinquished children. 

However, at one point, the Nebraska safe haven law had no age limitation on the abandoned child, so many parents drove their older and teenage children there for abandonment, causing a public uproar to change the law.  See here.  

Recently, Aaron Bruhl from PrawfsBlog offered an interesting legislative background on the Nebraska legal blunder—read it here.

MR  

Approval of Altruistic Surrogacy throughout Australia

Queensland Parliament [on February 11, 2010] decriminalised altruistic surrogacy - whereby another woman has a baby for no payment - bringing the state into line with the rest of Australia.

The law extends to same-sex couples after Opposition attempts to have them excluded failed.

Under the reforms, legal parentage of a child born in an altruistic surrogacy arrangement will transfer from the birth mother to the parent or parents who commissioned the birth.

Queensland Law Society says although commercial payment for such an arrangement is illegal it would be difficult to prevent under-the-table payments or gifts to the surrogate mother.

"Clearly that sort of thing would be difficult to monitor," Queensland Law Society president Peter Eardley said.

Read more here.

AC