Monday, January 31, 2011
At the end of a marriage, marital debt must be allocated. Under most marital property regimes, a divorce allocation does not preclude a creditor of the marital community from seeking satisfaction from either spouse, community creditors receive a potential windfall when a couple divorces. As a consequence, the divorce enables a community creditor to obtain satisfaction from assets that are separate property assets of a non-debt-incurring spouse, while these assets are unavailable to the creditor during marriage. The current California statutory regime explicitly offers the potential for this windfall whenever the non-debtor spouse is allocated all or a portion of a community debt at divorce, because debts allocated to a spouse at divorce can be satisfied with all of the assets controlled by that spouse, without the need for tracing. At the same time, under the current California statutory regime the creditor can be harmed by the divorce if the non-debtor spouse is not allocated any of a debt at divorce, because none of the assets taken by the non-debtor spouse are available to the creditor, even though the creditor would have had access to them during the marriage. Both currently-existing approaches are undesirable. Windfalls for creditors needlessly impose on non-debtor spouses at divorce, and windfalls for non-debtor spouses create incentives for couples to divorce to minimize the assets available to creditors, place huge pressure on allocation of debt between the spouses at divorce, and lead in the direction of turning every divorce in which there is unpaid community debt into a bankruptcy-style procedure in which the needs of the creditors influence the allocation of debts and assets.
A simple solution will eliminate these windfalls from divorces and avoid the incentives created by such windfalls. A post-marital debt structure that is the mirror image of typical premarital debt structures should either be read into current statutes, or enacted, to remove the windfalls. The result would entitle creditors to only those assets that would have been available had there been no divorce. While this will necessitate tracing each asset that a creditor seeks to obtain from a non-debtor spouse, and may raise some difficult untangling matters, such tracing is a familiar activity, already undertaken in creditor/debtor contexts in community debt/separate debt regimes whenever a creditor seeks contested assets against a married creditor. Requiring such tracing will not be overly cumbersome, and the approach avoids the far more encompassing problem of hurting non-debtor spouses at divorce or involving creditors in every divorce in which there is unpaid marital debt.
California's landmark family leave program didn't turn out to be the costly "job-killer" that businesses initially feared and has produced significant economic, social and health benefits for both male and female workers, economic and labor researchers found in a study released this week.
Researchers at UCLA, City University of New York and the Center for Economic and Policy Research examined the effects of the state's Paid Family Leave law, which passed in 2002 and took effect for most workers in 2004. The program allows eligible employees to take up to six weeks off at 55 percent of their usual salary (with a cap adjusted for inflation) to care for a new child or a seriously ill relative).
Researchers Eileen Appelbaum and Ruth Milkman noted that, despite business opposition to the law, most employers they surveyed reported that the program had either a "positive effect" or "no noticeable effect" on productivity, profitability and performance, turnover and morale.
Read more here.
Sunday, January 30, 2011
Seventh Annual Wells Conference on Adoption Law
Thursday, March 17, 2011
Maintaining a Family: Post Adoption Challenges for Families
Join us at this year’s Wells Conference, Thurs., March 17, to hear from nationally-recognized professors and practitioners on such timely issues as:
The Wells Conference strives to include both academic ideas and practical advice for attorneys. 6.0 CLE and CEU credit hours are pending approval.
Saturday, January 29, 2011
From Culture Clash Daily:
Friday, January 28, 2011
This Article provides the first comprehensive legal analysis of parents’ rights to name their own children. Currently, state laws restrict parental naming rights in a number of ways, from restrictions on particular surnames to restrictions on diacritical marks to prohibitions on obscenities, numerals, and pictograms. Yet state laws do not prohibit seemingly horrific names like “Adolf Hitler,” the name recently given to a New Jersey boy.
This Article argues that state laws restricting parental naming rights are subject to strict scrutiny under both the Due Process Clause of the Fourteenth Amendment and the Free Speech Clause of the First Amendment. This Article concludes that although many restrictions are constitutional, prohibitions on diacritical marks, such as that employed by the state of California, are unconstitutional. If parents wish to name their child Lucía or José, they have a constitutional right to do so. Similarly, current laws restricting parental choice of surnames fail strict scrutiny. This Article also considers the constitutionality and desirability of statutory reforms that would address certain harmful names not prohibited by current law.
Along the way, readers will encounter heavy metal bands with unusual umlauts, boys named Sue, the history of birth certificates, false implications of paternity, and dozens of truly awful, but very real, names given by parents to their children.
Leading UK family lawyers have called for greater clarity as the Law Commission carries out a review likely to usher in legally binding pre-nuptial agreements.
Partners are broadly in favour of the review, which could lead to the introduction of legally binding pre-nuptial agreements that would be enforceable in English courts.
However, many want to ensure safeguards exist to protect vulnerable spouses and children, with some arguing the courts should be given the final say.
The Commission launched its consultation this week (11 January) looking at pre-nuptial, post-nuptial and separation agreements.
In addition to looking at whether couples should be able to enter into binding agreements not to seek ancilliary relief in the event of divorce and what such agreements should encompass, the consultation also looks at the formalities needed for an agreement to qualify - such as the need for full financial disclosure between the couple and signed documentation based on legal advice.
Read more here.
Thursday, January 27, 2011
From WFPL News:
The Kentucky Supreme Court has adopted uniform rules for all family courts in the Commonwealth. The new rules, which went into effect January 1, apply to all family law cases, including divorce, domestic violence, child support, custody, adoption and neglect or abuse. Franklin County Family Court Judge Will Williams applauds the effort, which he says will ease the transfer of cases.
“I mean when I get a case in from another county, it’s nice to know that that county practices in the same way that I do. And really, that hadn’t been the case – particularly for some of the counties down in the rural parts of the state and some of the counties that don’t have family courts,” he said.
Family courts were approved by Kentucky voters in November 2002, with passage of a state constitutional amendment. Currently, more than three million Kentuckians are being served by family courts in 71 counties. Family legal matters in other counties are still handled by district and circuit courts, but the new rules apply to them, too. State judicial leaders say the ultimate goal is to have family courts in all 120 counties, but funding remains a major hurdle.
Read it here.
Wednesday, January 26, 2011
Matthew Fraidin (Georgetown University School of Law) has posted "Stories Told and Untold: Confidentiality Laws and the Master Narrative of Child Welfare" (63 Maine L. Rev. 1 (2010)) on SSRN. Here is the abstract:
In most states, child welfare hearings and records are sealed or confidential. This means that by law, court hearings and records may not be observed. The same laws and court rules also preclude those who are authorized to enter and watch from discussing anything learned or observed in a closed courtroom or from a sealed court record with anyone not involved in the case. It is the restriction on speech - on telling stories about child welfare - with which this Article is concerned.
The master narrative of child welfare depicts foster care as a haven for child-victims savagely brutalized by “deviant,” “monstrous” parents. Notwithstanding this shared public understanding, however, most children in foster care have experienced, or are alleged to have experienced, neglect - deprivation of food, clothing, shelter, education, or another necessity of life - not physical abuse. There is also a growing understanding that some children in foster care ought not to be there at all. In addition, research and experience indicate that many maltreated children would be better off if simply left at home - with those responsible for the maltreatment - rather than placed in foster care.
This Article argues that confidentiality laws perpetuate the inaccurate master narrative, and preclude other stories from informing or influencing that narrative. Stated simply, laws prohibiting the discussion of child welfare cases silence a vast number of stories. By their terms, these laws define the stories that may not be told, and the putative storytellers who may not speak, while designating as acceptable other stories and other voices. The unchallenged dominance of the inaccurate, law-sanctioned narrative affects even those involved in child welfare as a profession, and by affecting their worldview, diminishes the quality of care provided to children. The laws that require silence outside the courtroom permit the acceptance of pervasive dysfunction in child welfare, and affect the administration of justice inside the courtroom.
Benjamin Shmueli (Bar-Ilan University Faculty of Law) & Ayelet Blecher (Sha'arey Mishpat Law College) have posted "Privacy for Children" (42 Columbia Human Rights L. Rev. (2011)) on SSRN. Here is the abstract:
There is growing concern over childrens privacy in today's technological world. However, most of the research on children's privacy focuses on third party threats, such as commercial websites. Little work has been done on children's privacy in their relationship with their parents, and specifically, privacy from their parents. This article attempts to instigate a discussion on this timely issue.
For most adults, the place where our privacy is most protected is the home. For children, however, having privacy in their home is far from a certainty, and it is becoming ever less so. While it is true that parents have always been able to invade their children’s privacy by going through their schoolbags, reading their personal diaries and the like, nowadays children and youth are seen as at risk from online predators, pedophiles, cyberbullies and other online dangers. Whereas "good parents" may have traditionally been encouraged to trust their children, today they are encouraged to safeguard their children, including by invading their privacy. Monitoring has become associated with good parenting, and the surveillance of children has been framed in a language of safety, protection, and care. Today's children are the most watched over generation in memory. Children express concern about their parents' snooping and see it as an invasion of their intimate and social lives. Nonetheless, children's privacy is overlooked and given scant consideration, if any.
In this article we identify and address the difficulties in recognizing children’s privacy within the family unit. The first difficulty is that the privacy discourse has so far been developed almost exclusively in reference to adults and is applied only awkwardly to the rights of children. Where children are concerned, privacy is considered to be dangerous and inherently associated with risk. We demonstrate that theories of privacy can be adapted to include children and point to the value and significance of privacy for children. The other difficulty in recognizing a "privacy problem" for children in their homes and family relationships concerns the nature of the parent-child relationship, as well as the general tension between the privacy of the family as a relational entity and the privacy of its individual members.
Looking critically at the prevailing legal situation in both American jurisprudence and in international documents in which privacy is dominant for adults but less so for children, and even less so for children vis-à-vis their parents, this Article suggests a balanced individual children's right for privacy from their parents, which offers solutions to parent-child privacy conflicts both in the traditional "offline" world and the digital online world. We call for a clear recognition of children's individual right to privacy that is separate from, and may even operate against their parents. At the same time, however, we acknowledge that this right should be qualified to some extent according to the child's age and evolving capacities.
From the Huffington Post:
For first marriages, people who cohabitate prior to marriage results in less positive interactions and more conflict when compared to people who do not cohabitate. However, people who cohabitate after becoming engaged look more similar to those who never cohabitate. In short, both those who never cohabitate and those who cohabitate only after becoming engaged have more positive marital relationships and are less divorce prone than those who cohabitate prior to becoming engaged. Stanley suggests that cohabitators who are not engaged drift into marriage without the same level of commitment as the other types of couples.
The researchers also found that in addition to having lower quality marital relationships, couples who cohabitated prior to engagement were also more likely to divorce when compared with the other two groups.
Read more here.
Tuesday, January 25, 2011
From the BBC:
A team from the University of North Carolina studied the effects of hugging on both partners in 38 couples.
The study showed hugs increased levels of oxytocin, a "bonding" hormone, and reduced blood pressure - which cuts the risk of heart disease.
But, writing in the Psychosomatic Medicine, the researchers said women recorded greater reductions in blood pressure than men after their hugs.
Read more here.
Monday, January 24, 2011
Yehezkel Margalit (Bar Ilan University) has posted "To Be or Not to Be (a Parent)? – Not Precisely the Question; The Frozen Embryo Dispute" on SSRN. Here is the abtract:
Modern medicine offers us a variety of fertility treatments. One of the results is that in the United States alone there are a more than 400,000 frozen embryos and another 10,000 frozen embryos are frozen each year. Since the rate of divorce in the United States increases exponentially, one can easily imagine how many frozen embryos may become the subject of litigation. Indeed a lot of attention is devoted to this sort of dispute by the media, the law and by people considering the ethical aspects. This is because this kind of dispute forces us to reassess many complex matters starting with the appropriate balance between the legal right to become a parent and the legal right not to be forced to become a parent. In this research we will try to present for reassessment the legal dispute as dichotomy and binary as if we have to choose between two options, either full legal parentage or no legal parentage. We will prove that the establishment of legal parentage is primarily by agreement due to the intention, wish and agreement which led to the birth of a child. In our opinion, the extent of parental status to be given to the legal parent depends upon the extent of the responsibility, which he is willing to undertake. If he accepts all the parental duties, his status will be that of a full parenthood, but if he does not want to undertake all the parental duties, he will not receive any parental right, but simply the status of non-parenthood. This approach used in the case of adoption was also applied in legal practice in many states of the United States and in the world, whereby the donor of gamete, semen and ova, or even frozen embryo receives the status of non-parenthood. In this research we will endeavor to examine the value and efficiency of offering an additional legal option which may be a possible compromise in the case of the bitter quarrels with regard to frozen embryos - granting the non-parenthood status to the spouse who objects to the continued fertility treatments and to becoming a parent against his will.
Sunday, January 23, 2011
From the Seattle Times on how to improve marriage to a neurotic partner:
Frequent sex could ease tensions in relationships where at least one partner is neurotic, a new study suggests.
Surveys of 72 newlywed couples in Ohio over the first four years of marriage showed that those who experience neuroticism or whose spouse is neurotic reported higher marital satisfaction when they had sex more often.
Neuroticism, according to the study published online in the journal Social Psychological and Personality Science in October, is a personality trait that includes frequent negative feelings.
Those negative feelings often put strain on a relationship, said Michelle Russell, a co-author of the study, which was done by the University of Tennessee department of psychology.
The report, part of a larger multi-university study examining a variety of questions about newlyweds, also looked at other variables, such as problem-solving skills and stress levels of neurotic couples.
Researchers were unable, however, to find correlations between satisfaction and those other variables, said Russell, a psychology doctoral student at the university.
One theory for why the correlation between sex and marital satisfaction between these couples was so strong is that sex is improving their moods, she said.
Because many people seek comfort and relaxation in sex, the findings of the study are not surprising, said David Yarian, a licensed clinical psychiatrist and certified sex therapist in Nashville, Tenn.
Still, he warned, it's important not to oversimplify the role of sex in the marital satisfaction of these couples.
Read the full article here.
Saturday, January 22, 2011
From the Chicago Tribune:
Michelle Lee was catching up with friends at a nightspot near her parents' home when a bouncer pulled her aside.
"Can I ask you a personal question?" Lee recalled him asking. "Are you pregnant?"
She responded yes because, at eight months along, it would have been difficult to argue otherwise, she said later.
Lee, 29, said the bouncer who was staffing the Coach House bar near Roselle didn't care that she was only drinking water.
She said he asked her to leave shortly after midnight Thursday, telling her the bar would be liable if anything happened to her. She complied, but grew angrier over the weekend, questioning whether she had been discriminated against as a pregnant woman.
Lee is considering suing. Read more here.
Friday, January 21, 2011
From ABC News:
Ryleigh Shepherd was conceived in 1998, the same year as her 11-year-old twin sisters, but she wasn't born until 2010.
The three girls from Walsall, in Great Britain, who were born more than a decade apart in two different centuries, are actually fraternal triplets born through in vitro fertilization (IVF).
Ryleigh came from the same batch of embryos that had allowed her parents -- Lisa and Adrian Shepherd -- to give birth to twins Megan and Bethany.
British experts say they know of no other case in their country in which three siblings from the same round of fertility treatment have been born with such an age gap.
The longest interval between freezing and conception was in the case of a woman from New York City whose embryo had been stored for 20 years, according to a report in the journal Fertility and Sterility.
"It seemed strange to think that we were using embryos that we had stored all those years ago, that were conceived at the same time as the girls," Lisa Shepherd, 37, told Britain's Daily Mail newspaper.
"We knew that if we had another baby it would in effect be the girls' triplet as they were all conceived at the same time," she said. The girls look exactly alike, according to their mother. "It was uncanny."
How long embryos can be frozen and still viable is still not known, but American fertility experts say they have great confidence in the success of new reproductive techniques.
"It's incredibly common for people to go back and second and third time," said Barbara Collura, executive director of RESOLVE, the National Infertility Association. "There have been recorded cases of kids born far longer apart. This doesn't tip the scales."
Fertility experts estimate that about 400,000 embryos are currently in frozen storage in the U.S., and a more comprehensive survey will be underway in the spring.
Read the full article here.
Thursday, January 20, 2011
Mandelbaum: "Delicate Balances: Assessing the Needs and Rights of Siblings in Foster Care to Maintain Their Relationships Post-Adoption"
Randi Mandelbaum (Rutgers School of Law - Newark) has posted "Delicate Balances: Assessing the Needs and Rights of Siblings in Foster Care to Maintain Their Relationships Post-Adoption" (41 New Mexico L. Rev. 1) on SSRN. Here is the abstract:
Over the last two decades, social science research has demonstrated the critical nature of sibling relationships, and, most recently, the importance of sibling relationships for foster children. Unfortunately, although our legal system has begun to respond to our growing awareness of these essential connections, e.g., many states, as well as Congress, have enacted statutes that protect sibling relationships to some degree, few have established laws to protect the relationship in the post-adoption context, leaving approximately 60% of children adopted from foster care every year, who are separated from their siblings, without the right to maintain their relationships with one another.
Research also shows that permanency for foster children, enshrined in the law and accomplished through adoption, is critical. Yet, closed adoption statutes, enacted at a time when the majority of adoptions were private and of infants, as well as the rights of parents to make decisions concerning the upbringing of their children, result in a situation where to achieve permanency, many children must lose their right to maintain their sibling connections, as courts are not permitted to order contact between siblings post-adoption. In addition, policymakers are reluctant to impose post-adoption obligations for fear that doing so will discourage persons families from seeking to become foster and adoptive families.
After reviewing statutes and case law from all fifty states, examining the social science research, and discussing open adoptions, this article proposes a template of reforms to our child welfare and adoption laws, and addresses some of the concerns, which may be raised by these contemplated changes. The proposed statutory provisions presume that the relationship between siblings in the foster care system will be maintained and permits courts to order post-adoption sibling contact, where it can be shown that there are existing connections between the children and it is in all of the children’s best interest.
I argue that the rights of the adoptive parents may be overcome here because there is something different about the parent-child relationship when the child is adopted out of a state-run foster care system, as compared to a private adoption, typically of a baby. Given this uniqueness, there is reason to question whether a strict reliance on parental rights is appropriate. In short, when a child is adopted from foster care, the State has been actively involved in the creation of the adopting parent–adopted child relationship, and, thus, has a parens patriae obligation to ensure that it is in line with the child’s best interest. This presence of the state, along with the children’s strong interest in maintaining their relationships with one another, diminishes the adopting parents’ expectations as to complete autonomy and alters the balancing, which always occurs between the rights of parents and the interests of the children and the state. We would never permit the State to sanction an adoptive relationship that did not agree to meet a child’s medical or developmental needs. Why then would we accept a situation where an adoptive parent was refusing to maintain a sibling connection, when such a relationship has been documented as being emotionally, and even psychologically, important to the child’s well-being?
By proposing statutory reforms to our adoption laws, this article attempts to further the dialogue concerning the rights of siblings in foster care to maintain their relationship when one or more of the children are adopted. While recently there has been some scholarly attention paid to the needs and rights of siblings in foster care and the sibling relationship more generally, little of it has been in the legal arena, and none of it has exclusively focused on the interests of siblings in the foster care system post-adoption. Moreover, no one has addressed the Fostering Connections to Success and Increasing Adoptions Act of 2008, and explored what these federal mandates might mean for the rights of siblings, both prior to and after the point of adoption.
Pedro Gete (Georgetown Univ.; IE Business School) and Paola Porchia (IE Business School) have posted "Fertility and Consumption When Having a Child is a Risky Investment" on SSRN. Here is the abstract:
In this paper we study a new factor that matters for fertility and consumption decisions: the risks associated with having and raising a child. We analyze a real options model with incomplete markets to explicitly model both children as a risky investment and the parental option to time fertility. We focus on CRRA preferences and uninsurable shocks to future parental income and to the costs of raising a child. We obtain several results that are new relative to the standard Beckerian fertility framework where children are deterministic goods: i) Independently of wealth, higher child cost volatility diminishes fertility. ii) Consumption is decreasing in higher cost volatility but the slope flattens as wealth increases. iii) Wealth alters the way in which the agent's risk tolerance impacts the fertility and consumption decisions. For low wealth levels, risk aversion speeds up fertility and lowers consumption with children serving as an utility insurance mechanism. iv) Fertility is increasing in the correlation between income and child cost shocks. v) The sign of this correlation determines if higher income volatility speeds up or delays fertility. vi) Fertility is U-shaped in the income over wealth ratio.
Finally, we use regression analysis to provide empirical support for the theoretical results.