Monday, February 28, 2011

Same-Sex Inheritance in NY

From the New York Law Journal:

A state appeals court has cleared the way for a same-sex spouse to inherit the estate of his deceased partner.

The Appellate Division, First Department, held yesterday in Matter of the Estate of H. Kenneth Ranftle, 4214, that recognizing the marriage in Canada of H. Kenneth Ranftle and J. Craig Leiby, who was designated as Mr. Ranftle's "surviving spouse and sole distributee," did not violate public policy.

Read more here.

 MR

 

February 28, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, February 27, 2011

Slap on the Wrist for Warren Jeffs Follower

From ABC News:

A follower of Warren Jeffs who admitted during the
trial of the polygamist sect leader that he had sex with
his child bride cousin will get off with just 30 days in
jail as a result of a plea deal. Allen Steed, who was
originally charged with first degree felony rape,
pleaded guilty to a charge of solemnizing a
prohibited marriage, and a St. George, Utah, judge
Friday sentenced him to 30 days, followed by 36
months of probation. Fifth District Court Judge G.
Rand Beacham ordered Steed to report Monday to
Washington County's Purgatory Correctional Facility.
If he does not violate the probation, another charge
of unlawful sex with a minor will be dropped from a
felony to a misdemeanor, sparing him from having to
register as a sex offender, the judge said. Steed, who
was 19 in 2001 when Jeffs married him to his 14-
year-old cousin, Elissa Wall, could have faced five
years in prison for each of the two charges. Had he
been convicted of the original rape charge, he could
have been sent to prison for life. Jeffs, who was the
leader of the Fundamentalist Church of Jesus Christ of
Latter Day Saints, was convicted in September 2007 of
being an accessory to rape for marrying the couple
and then coercing Wall to fulfill her religious duties
by having sex with her husband. That verdict was
overturned on appeal, but while Utah prosecutors
decide whether to retry Jeffs, the former FLDS leader is
jailed in Texas, where he faces trial in July on charges
of sexual abuse of a child and bigamy. It was Wall's
story that sparked the case against Jeffs. At his trial,
she testified that Jeffs used his power as a religious
leader to force her into a marriage in which he knew
sex would be expected.

Read more here.

AC

February 27, 2011 | Permalink | Comments (0) | TrackBack (0)

Saturday, February 26, 2011

Fordham Urban Law Journal, Vol. 38, No. 1

The Fordham Urban Law Journal has published several family law essays in its recent book on immigration policy.  The entire issue is availabe here, and the family law pieces include:

 

Evelyn H. Cruz: Because You’re Mine, I Walk The Line: The Trials and Tribulations of The Family Visa Program, available here:
The current backlog of over 3.5 million immigration visas places strains on mixed immigration status families and exacerbates the undocumented population problem. Families who choose to wait for a visa to become available before reunifying may strain the family unit. Those who reunify in the United States without first obtaining legal status face deportation and inadmissibility because of their unlawful residence in the United States. Congress has made some attempts to alleviate these strains. Unfortunately, the broad intent of these statutory changes has run up against narrow administrative interpretation. Nonetheless, in the present political climate, administrative solutions that seek to solve inadequacies in the current system are more politically expedient than installing a completely new family visa program. Therefore, immigration reform efforts must focus on expansive statutory interpretation of these and other existing statutes. In this essay I outline the social costs of an inadequate family visa program and offer some suggestions for administrative improvements to the program that do not necessitate legislative action. However, the inadequacies of the current family petition system must eventually be addressed through a congressional overhaul of the process. Therefore, I visit the history of narrow administrative interpretation of immigration legislative action to highlight how important agency interpretation is in the drafting of immigration legislation. I conclude the essay by discussing the elements I believe should be included in family visa petition reform. 
David B. Thronson: Entering the Mainstream: Making Children Matter In Immigration Law, available here:
Myths that parents are afforded easy and unwarranted pathways to U.S. citizenship through their U.S. citizen children and that children receive privileged treatment in U.S. immigration law stubbornly persist in public discussion surrounding possible immigration reform. Testing these myths, this essay examines immigration law’s treatment of children in three contexts: (1) as lawfully immigrating dependents of adults; (2) as immigrants on their own or outside the structures of immigration law; and (3) as individuals empowered to generate immigration rights in others. In each of these contexts, analysis reveals that the failure of immigration law to advance, or in most instances even consider, the interests of children places it far from mainstream values and legal conceptions regarding children. In particular, immigration law fails to fully recognize children as individuals with independent rights and interests, attaches punishing and lasting legal consequences to children for choices of adults in their lives or for choices that children make prior to reaching the age of discretion, and effectively and pervasively precludes children from generating immigration rights in their parents or others. At the least, this deeper understanding of the nature of immigration law’s marginalization of children serves as a counterweight to calls for reform based on false characterizations of current law. Ironically, myths about the treatment of children in immigration law serve as an effective template for simple, yet fundamental reforms that would bring U.S. immigration law closer to mainstream values and approaches regarding children.  The essay suggests three simple, yet fundamental reforms that would not only bring the law closer to mainstream values, but also closer to the place where many seem to think it is already. Any reform agenda that fails to address the role of children in immigration law will not prevent accepted societal and demographic pressures from replicating the current situation in which millions find themselves unable to reconcile their family relationships and responsibilities with the dictates of immigration law. Children matter, and it is time they mattered in U.S. immigration law.
Bernard Trujillo: Mexican Families & United States Immigration Reform, avaiable here:
This essay argues that we should understand U.S. immigration policy as a series of bi-national relationships rather than as a single, user-indifferent interface. Applying this regulatory approach to Mexican labor migration (i) allows a more accurate definition of the migrating person in the context of the family he seeks to support; and (ii) highlights the United States’ duty to provide for Mexican families.
MR

 

February 26, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Friday, February 25, 2011

Annitto: "Consent, Coercion, and Compassion: Crafting a Commonsense Approach to Commercial Sexual Exploitation of Minors"

Megan Annitto (West Virginia Univ. College of Law) has posted "Consent, Coercion, and Compassion: Crafting a Commonsense Approach to Commercial Sexual Exploitation of Minors" (forthcoming Yale Law & Policy Review) on SSRN.  Here is the abstract:


Within 48 hours of running away or being thrown out, a child on the streets will typically be approached for sex in exchange for money or lured into a situation leading to exploitation. There are competing theories about the prosecution of youth for prostitution who are subject to commercial sexual exploitation, or domestic minor sex trafficking, in the United States. Recent developments in juvenile courts and legislatures endeavor to create appropriate responses to eliminate contradiction in the laws. Some states recognize that statutory rape and federal trafficking laws conflict with the prosecution of children for their own exploitation, but most do not. This leaves large numbers of minors charged as criminals and with little access to appropriate medical and psychological care. Related gender and adolescent capacity issues are implicated in this lack of coherence in the law and underlie the current failures. The issue is best understood in light of recent changes in judicial and legislative discourse. There is a split in the two states whose highest courts have ruled on this issue, resulting in a landmark decision by the Texas Supreme Court. In addition, emerging state legislation has taken a new direction to harmonize laws dictating the legal status of these children as survivors in need of treatment instead of as offenders. The Illinois model–the first one of its kind–recently decriminalized children under age 18 who are prostituted, ensuring that they are not treated as criminals under any circumstances. While other state statutory frameworks exist, without clear language, statutes intended to assist children risk being undermined. Legislation that addresses prostitution of youth must be carefully constructed and contain funding provisions in order to have the necessary intended effects. It should focus on comprehensive services with a critical eye on the important distinctions between diversion measures that allow for continued prosecution versus decriminalization. These new judicial and legislative developments provide a model and framework by which states can create effective and consistent responses to the commercial sexual exploitation of minors instead of criminalizing them.

AC

February 25, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

An Envious Engagement?

Those eating their hearts out over Prince William's engagement can take some comfort:

From BBC News:

An artist has made a dream come true for many woman who want to feel like they are engaged to their Prince Charming.

US artist Jennifer Rubbell has created a wax work of Prince William which allows women to step into the shoes - and engagement ring - of Kate Middleton on the day they announced they were to marry.

The statue includes a replica of the sapphire engagement ring which is sewn into William's sleeve - enabling would-be Kates to pose like his bride-to-be.

The statue is will go on show in London on Wednesday.

Read more and see a related video here.

MR

 

February 25, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, February 24, 2011

Montana Counseling Measure Fails

A Republican lawmaker wants to require couples with children under the age of 18 to undergo marriage counseling before getting a divorce.

Representative Tom McGillvray's bill would require couples to attend seven meetings with a counselor. He says divorce is ruining young children's lives and he wants parents to think twice before getting a divorce.

"I don't want you telling me what I can and can't do in my married life. I'm sure not going to tell anyone what they can and can't do in their married life. Last time I heard, we lived in a free country, people can make their own decisions," countered Rep. Edie McClafferty (D-Butte)

The bill died on the House floor in a 60-40 vote.

Read more here.

AC

February 24, 2011 in Divorce (grounds) | Permalink | Comments (1) | TrackBack (0)

Controversial Child Abuse Registries

From DesMoinesRegister.com:

Iowa's 51,960-name child abuse registry could get an overhaul in the wake of complaints that the list damages reputations and job prospects for the accused before they've had a fair hearing.
...

Appeals took an average of 273 days in 2008, the most recent year available. About one-fourth of the appeals that reached a hearing were reversed.

It takes no conviction in court to end up on the registry - only a finding by Iowa Department of Human Services staff that it was "more likely than not" that the person neglected a child or, in a much smaller number of cases, abused a child.

Read more here.

MR

 

February 24, 2011 in Child Abuse | Permalink | Comments (2) | TrackBack (0)

Wednesday, February 23, 2011

Maryland Same Sex Marriage Debate

From the Baltimore Sun:

The state senate has just one bill on its agenda Wednesday: The Religious Freedom and Civil Marriage Act.

"We've cleared the desk," Senate President Thomas V. Mike Miller told senators Tuesday morning. "We have nothing else to do tomorrow aside from that bill."

Debate on the contentious measure to allow same-sex couples to marry is expected to run into Wednesday evening and carry over to the following day. Miller has told senators to clear their weekend schedules in case an expected filibuster extends into Saturday.

The bill, which would repeal Maryland's definition of marriage as the union of a man and a woman, is widely expected to clear the senate — but there are no guarantees. Twenty-four senators have declared their support for the measure, the minimum needed for final passage.

Advocates in the House of Delegates say they are close to having the votes for final passage in that chamber, and Gov. Martin O'Malley has said he will sign the bill if it passes.

Opponents had seven amendments prepared as of Tuesday morning, and were considering others.

Discussion about them could take hours, but might not be as lengthy as many have predicted. Typically, opponents gearing up for a major floor fight will prepare hundreds of amendments.

Read more here.

AC

February 23, 2011 in Marriage (impediments) | Permalink | Comments (3) | TrackBack (0)

Breastfeeding Not Indecent Exposure

From the Washington Post:

Breastfeeding mothers no longer will feel shamed to feed their child in public places in Alexandria.

The Alexandria City Council unanimously amended their indecent-exposure ordinance Saturday to exclude breastfeeding. The council plans to pass a special proclamation later this month.

Read more here.

MR

 

February 23, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 22, 2011

Shulman: "Introduction to 'Who Owns the Soul of the Child?: Religious Parenting Rights and the Enfranchisement of the Child"

Jeffrey Shulman (Georgetown Univ. Law Center) has posted "Introduction to 'Who Owns the Soul of the Child?: Religious Parenting Rights and the Enfranchisement of the Child" on SSRN.  Here is the abstract:

At common law, and (for most of the nation's history) under state statutory regimes, the authority of the parent to direct the child's upbringing was a matter of duty, not right, and chief among parental obligations was the duty to provide the child with a suitable education. It has long been a legal commonplace that at common law the parent had a "sacred right" to the custody of his or her child, that the parent's right to control the upbringing of the child was almost absolute. But this reading of the law is sorely anachronistic, less history than advocacy on behalf of parental rights. What is deeply rooted in our nation's history - and the custody case law of the nineteenth century and early twentieth century makes this abundantly clear - is the notion that the state only entrusts the parent with educational custody of the child, and does so only as long as the parent meets his or her duty to serve the best interests of the child. Indeed, it was the child who had an absolute right: the right to proper parental care, including the right to an education that would prepare the child for eventual enfranchisement from what Blackstone called the "empire of the father." If by "fundamental" we designate rights with a deep historical pedigree, the right to parent free of state interference cannot be numbered among them. This is the subject of Chapter 1.

Chapter 2 reconsiders the Supreme Court's seminal cases establishing a parent's right to educate. Meyer and Pierce have been made to state broad claims about the fundamental nature of parental rights, but, in fact, they stand for a much more modest proposition: that the state does not have exclusive authority over the child's education; and, more particularly, that the state cannot prohibit parents from teaching their children subject matter outside the scope of the state-mandated curriculum. Rhetoric aside, Meyer and Pierce are hardly a charter of fundamental parental rights. But that is what the Supreme Court made of these cases in Wisconsin v. Yoder. In this chapter, I also examine how the idiosyncratic facts of Yoder encouraged the Supreme Court to abandon well established law governing the right of religious parenting and to formulate a harm standard ill-adapted to the existential intricacies of family disputes.

Chapter 3 suggests that courts should look with skepticism at any authority that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience. While a full treatment of these cases lies outside the scope of the article, this part suggests that courts should look with skepticism at any educational program - whether the program is imposed by the parent or by the state - that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience. If the courts were to apply the principle that children may not be denied exposure to the full measure of intellectual incitement that should be the heart (and soul) of every young person's education, they would more consistently, and correctly, sort out the competing claims of parents and public school officials to make educational choices on behalf of the child. The work of preparing the child to make free and independent choices is entrusted to the parent, and it is a challenging and somber task, for it means allowing children (in fact, it means helping children) to leave their homes and leave behind the ways of their parents. Or, at least, it means giving children the choice to do so. It is little wonder, then, that we would want to transform this sacred trust into a sacred right, a right that effectively allows parents to shield their children from choice and its attendant responsibilities. But the law of parent-child relations protects children from this sort of "protection," ensuring that children receive a truly public education.

Physically and intellectually transporting the child across the boundaries of home and community, a public education can bring its students a much needed respite from the ideological solipsism of the enclosed family. Of course, public education comes at a cost. It disrupts the intramural transmission of values from parent to child. It threatens to dismantle a familiar world by introducing the child to multiple sources of authority - and to the possibility that a choice must be made among them. Indeed, the open world of the public school should challenge the transmission of any closed set of values. Unless children are to live under "a perpetual childhood of prescription," they must be exposed to the dust and heat of the race - intellectually, morally, spiritually. A public education is the engine by which children are exposed to "the great sphere" that is their world and legacy. It is their means of escape from, or free commitment to, the social group in which they were born. It is their best guarantee of an open future.

In Chapter IV, I argue that the Yoder standard fails to protect the child from harms routinely addressed in cases involving only secular matters. More specifically, I am concerned with the issue of parental alienation, the (sometimes subtle, often not) ways in which one parent may seek to turn a child against the other parent. Sensitive to the need to nurture a child's relationship with both parents, and averse to any behavior that causes alienation, custody courts commonly prohibit each parent from making disparaging remarks about the other, and they do so without subjecting such measures to the heightened scrutiny demanded by a showing of harm. Penalties for subverting this judicially mandated obligation of tolerance can be severe, including modification of custody arrangements. But toleration gives way to individual rights where disparagement is religiously motivated. The harms to the child do not change. Indeed, the kind of disparagement that bears the imprimatur of religious doctrine may be far more terrifying than a parent's personal verbal rampages. What changes is the deference courts show to the parent's claim of constitutional rights. Under the harm standard, most courts treat religious disparagement as though it were mere abstract advocacy, ignoring the coercive nature of religious beliefs (children are caught between competing moral commands) and the coercive familial context in which such speech occurs (children are caught between competing parental commands).

Judicial non-intervention amounts to little more than a way of not dealing with such cases - or, at least, of not dealing with such cases until it is too late for the child. To honor its fiduciary obligation to the child, the court must be able to consider any practice that could affect the general welfare of the child and to insist upon an appropriate form of civil discourse when religious views diverge. Where exposure to intolerance is not in the best interests of the child, the welfare of the child requires that those responsible for their upbringing observe, or be made to observe, the boundaries of socially appropriate behavior. The duty to respect those with whom one disagrees is a civic obligation for which parents must prepare their children. It is the necessary concomitant of the parenting right. Religious belief should not absolve parents of this obligation, and disparagement born of religious conviction should not get a constitutional pass from judicial scrutiny.

Finally, Chapter 5 looks at how courts respond to claims of psychologically injurious religious indoctrination.

AC

February 22, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Breast Pump Now Tax Deductible

From Yahoo! News:

WASHINGTON – The cost of breast pumps will now be considered tax-deductible medical expenses under a ruling issued by the Internal Revenue Service Thursday.

The ruling, long sought by advocates, means that women will be able to use money set aside in pretax spending accounts to buy the pumps and related equipment, which can cost several hundred dollars. For women without flexible spending accounts, the cost of pumps will be tax deductible if their total medical costs exceed 7.5 percent of adjusted gross income.

Previously, the IRS considered breast pumps to be feeding equipment, not medical devices. However, the American Academy of Pediatrics argued that breastfeeding has many medical benefits for both mother and baby. Advocates hope that making breast pumps more affordable will enable more women to breastfeed longer.

The American Academy of Pediatrics recommends that women breastfeed their babies for at least a year.

"Unfortunately, due to financial restraints and work demands, not all women are afforded the opportunity to nurse their children, despite the proven health benefits," the academy said in a 2009 letter to IRS Commissioner Doug Shulman that was also signed by nine other medical groups. "In order to continue to breastfeed successfully, millions of mothers working outside the house require a breast pump."

Read more here.

MR

 

February 22, 2011 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Monday, February 21, 2011

Fight Styles Most Likely Leading to Divorce

From GoErie.com:

It's reasonable to assume that couples who scream and throw things at each other are the most likely to eventually divorce.

However, a study recently published by the University of Michigan reports that this is not necessarily the case. They studied 373 couples over a span of 16 years, beginning with the first year of marriage to see if they could determine risks of divorce based on fighting styles.

Toxic fighting styles

Contrary to popular belief, explosive fighting styles were not determined to be the most toxic style, according to this study. The most dangerous pattern is when one partner tries to calmly and objectively analyze a situation and the other partner withdraws.

When one partner tries to relate and sympathize with the other's point of view and that other partner withdraws, it is seen as a lack of interest in the relationship, which is very damaging. This pattern significantly lessens the longevity of a marriage.

This is not to say that yelling or throwing objects is a better method than withdrawing. The study found that lower divorce rates were found in couples who both employed constructive strategies to deal with conflict.

Read more here.

MR

 

February 21, 2011 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

Sunday, February 20, 2011

The Best Time to Serve Custody Documents?

From the Los Angeles Times:Click here to find out more!

Arenas_300 Magic guard Gilbert Arenas, a former star at Van Nuys Grant High and Arizona, got a surprise as he left the court at halftime on Thursday night in a game against the Miami Heat at Amway Center in Orlando: He was served with court papers in a child-support and custody case.

Arenas, acquired this season by Orlando from the Washington Wizards in a three-team trade, was walking to the locker room when a process server handed him the court documents, copies of which were attained by the Associated Press, on behalf of California resident Laura Mendoza Govan, who identifies herself as his former girlfriend and mother of three children he fathered.

Read more here.

AC

February 20, 2011 in Custody (parenting plans) | Permalink | Comments (3) | TrackBack (0)

Saturday, February 19, 2011

Home-wrecking Oscar?

From ABC:

It's easy to name stars who won the Oscar for Best Actress and went on to see their relationships go belly up.

Joan Crawford, Bette Davis, Halle Berry, Hilary Swank, Reese Witherspoon, Kate Winslet and, of course last year's winner, Sandra Bullock, make it seem like some sort of Oscar Curse is going on

Scientists from the University of Toronto wanted to see if was scientifically legit or just paranoia. After crunching the numbers, they found that of the 265 married women who have been nominated for Best Actress from the beginning of the modern Oscars in 1936 to the present, 159 of them got divorced. That's a whopping 60 percent.

They compared the divorce rate of women who were nominated for Best Actress but didn't win against those who did take home the gold, and found that the winners were 1.68 times more likely to head to divorce court and have a 63 percent chance of having a shorter marriage than their fellow nominees.

And while they didn't have the data to compare, it's anecdotely much, much higher than the divorce rate at large.

Also interesting, the scientists compared the divorce rate for Best Actor winners and Best Actor nominees and they found there was virtually no difference there. In other words, the same effect isn't happening for men.

Watch a related clip and read more here.

MR

 

February 19, 2011 in Divorce (grounds) | Permalink | Comments (1) | TrackBack (0)

Friday, February 18, 2011

MS Bill on Abuse as Divorce Ground Fails

From the AP:

The Mississippi House has defeated a bill that would have given a spouse grounds for divorce if they have been away from an abusive situation for five years or longer.

The Commercial Appeal reports that the bill was defeated Thursday on a vote of 81-39. The bill had earlier passed the Senate.

Backers say the bill would have made it easier for spouses, usually wives, to file for divorce when that spouse leaves home to avoid abuse and the other spouse will not agree to filing for divorce.

State law already allows a spouse who is abandoned to file for divorce, but existing law does not address when one party leaves home and the other will not give them a divorce.

Read more here.

AC

February 18, 2011 in Divorce (grounds) | Permalink | Comments (1) | TrackBack (0)

Affordable Divorces?

From The Los Angeles Times:

It may seem unromantic, but just about the only people who are busier than florists this time of year are divorce attorneys.

Whether it's because Valentine's Day forces couples to face romantic disappointments or because many people put off cutting marital ties until after the holidays, February tends to kick off high season for divorce.

And nothing could be worse for your finances than a contentious marital split, said Mark Baer, a family law attorney in Pasadena. Baer has compiled data to prove it. Married couples have significantly more assets than similarly situated singles until they divorce, he says. Then the economic advantage is more than wiped out. Call it the cost of acrimony.

"Couples let their emotions take control and they spend it all on attorneys," Baer said. "They're now worse off financially than if they'd never been married — just because they refused to act like mature adults."

To be sure, the cards are stacked against you if you hope to make divorce affordable.

Read more here.

MR

 

February 18, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, February 17, 2011

Varona: "Taking Initatives: Reconciling Race, Religion, Media and Democracy in the Quest for Marriage Equality"

Anthona Varona (American University Washington College of Law) has posted "Taking Initiatives: Reconciling Race, Religion, Media and Democracy in the Quest for Marriage Equality" (19 Columb. J. Gender & Law 805 (2010)) on SSRN.  Here is the abstract:

Election Days 2008 and 2009 were disappointing ones for advocates of equal rights for lesbian, gay, bisexual and transgender (LGBT) Americans, especially supporters of marriage equality. In this comprehensive article, I identity and examine five interrelated tactical lessons the LGBT movement can glean from these recent defeats. Following is the roadmap I provide at the end of the Introduction to the article, describing the five subsections devoted to these individual lessons:

Section I, following the Introduction, provides an overview of what occurred in the various statewide ballot initiative battles in 2008 and 2009 and then describes the preliminary analyses of the reasons for the gay community’s defeats. Section II presents five interrelated lessons that the movement should glean from these ballot initiative losses, which, if used to inform pro-gay campaign strategies going forward, should result in better outcomes at the polls. First, I discuss how and why the LGBT rights movement must remedy its failures by incorporating diversity – especially racial, ethnic and class diversity – in its institutional leadership. Second, I propose that the LGBT rights movement engage religious arguments and communities much more substantively and authentically, instead of ceding religious arguments and circumventing faith communities in favor of what may appear to be a more hospitable, putatively secular ground. Third, I examine the need for more LGBT people of color (POC) to share our identities and family lives with other members of our respective POC communities. Fourth, I discuss the need for better and more proactive movement strategies to contend with the new atomized digital media environment, which poses difficult challenges in countering political misinformation, responding to anti-gay defamation and promoting public education. In the fifth part of this Section, I attempt to show that although the gay community’s travails in the recent ballot initiative battles illustrate both the dangers of and constitutional infirmity inherent in direct democracy, more strategic and proactive engagement by the LGBT rights movement in direct democratic lawmaking may actually accelerate progress towards marriage equality, both by building favorable support for plebiscitary campaigns and by catalyzing support for legislative and judicial advances. Finally, Section III concludes by discussing the importance of patience and perspective in the movement for LGBT equality.

AC

February 17, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Millionaire Divorces Skew UK Law

From Bloomberg Businessweek:

Jan. 28 (Bloomberg) -- A British millionaire was ordered to increase his ex-wife’s payout to 8 million pounds ($12.7 million) from 5 million pounds in a case where a judge said divorces involving rich couples are having an “unfortunate” effect on U.K. family law.

Gareth Jones, 58, was told to pay the money to his former wife Victoria Jones, 44, by the Court of Appeal in London today. The three-judge panel ruled that a lower-court judge had miscalculated the value of the assets accrued during the couple’s 10-year marriage.

Family law is becoming “dictated by cases which bear no resemblance to the ordinary lives of most divorcing couples,” said Nicholas Wall, one of the judges.

Read more here.

MR

 

February 17, 2011 in Divorce (grounds) | Permalink | Comments (2) | TrackBack (0)

Wednesday, February 16, 2011

South Dakota Surrogacy Legislation Fails

From the Associated Press:

A measure that would have outlawed surrogacy birth arrangements in South Dakota was defeated Monday by a state House panel.  The Judiciary Committee voted 9-3 to reject the measure after even its main sponsor said the issue needs more study before state law is changed.

Hunt said Monday's hearing demonstrated that South Dakota must eventually adopt laws to regulate surrogacy, particularly cases involving commercial arrangements that pay a lot of money to women who carry other people's babies.

"It's coming. This is going to be a big business. We're going to have to deal with the situation where it's for money," Hunt said.

The bill would have made any surrogacy arrangement or contract unenforceable. It would have kept parental rights with the woman who gives birth to a child, even if she was not the genetic mother.

People involved in such surrogacy agreements could have faced civil penalties and criminal charges.

However, Tom Barnett, director of the South Dakota State Bar, said the measure would likely have prevented all surrogacy births. He said the State Bar, doctors and others could work on a model law that would regulate surrogacy arrangements but not prevent them.

"Surrogacy arrangements are a legitimate method for a loving couple to have their own child. What can be wrong with that?" Barnett said.

Harold Cassid,y of Shrewsbury, N.J., a lawyer who has worked on surrogacy disputes, said surrogate mothers often develop deep ties with a fetus. Surrogacy contracts determine child custody without any consideration of a child's best interests, he said.

Brokers are now inducing women to be surrogate mothers in exchange for money, Cassidy said.

"It calls for a breeding class of women who are to be discarded," Cassidy said.

Read more here.

AC

February 16, 2011 in Alternative Reproduction | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 15, 2011

Higdon: "Fatherhood by Conscription: Nonconsensual Insemination and the Duty of Child Support:

Michael Higdon (Univ. of Tennessee College of Law) has posted "Fatherhood by Conscription: Nonconsensual Insemination and the Duty of Child Support" on SSRN.  Here is the abstract:


Nathaniel, was a California teenager who became a father in 1995. The mother of Nathaniel’s child was named Ricci, and at the time of conception, she was thirty-four years old. Nathaniel, however, was merely fifteen. Although Nathaniel admitted to having sex with Ricci voluntarily about five times, the fact that he was under sixteen years of age at the time made it legally impossible for him to consent to sexual intercourse. In other words, under California law, Nathaniel was not only a new father, but was also a victim of statutory rape. Nonetheless, in a subsequent action for child support, the court held that Nathaniel was liable for the support of the child who was born as a result of his rape. According to the court, "Victims have rights. Here, the victim also has responsibilities."

Much of the law relating to child support is based on the fact that it is typically in a child’s best interest to receive financial support from mothers as well as fathers. So strong is this precept that courts will hold a father liable for child support even in the face of wrongful conduct by the mother. Thus, child support is essentially a form of strict liability with the justification being that the child is an innocent party, and, therefore, it is the child’s interests and welfare that the court must look to in adjudicating support. At first glance, such a standard seems eminently reasonable. Few would argue with the proposition that, if a man voluntarily has sex with a woman and a child results, then he should be liable for child support. The problem with the court’s current approach, however, is that the standard is so strict that even those men who never consented to the sexual act that caused the pregnancy are nonetheless liable for the support of the resulting child. These men include males who became fathers as a result of statutory rape and also adult males who became fathers either as a result of sexual assault or having their sperm stolen and used by a woman for purposes of self-insemination. In all such cases, these "fathers" have been held liable for child support.

The purpose then of this article is, first, to underscore the criticisms that other commentators have raised on how the strict liability approach poses a grave injustice not only to the men who are pressed into the obligations of fatherhood but also to society, which has an interest in protecting all citizens from sexual assault. More importantly, however, I also offer a new objection and, on that basis, a proposed solution. Specifically, the courts' justification that all children are entitled to support from both biological parents has been seriously undermined by the laws regulating artificial insemination. In that context, a man (regardless of whether he is the sperm donor or the non-donor husband of the inseminated female) only becomes the legal father of an artificially inseminated child if he affirmatively consents. I argue that it is incongruous to allow exceptions for formal sperm donors yet wholesale deny similar protections for those who, although not in the setting of a sperm bank, never consented to the use of their sperm. Accordingly, I propose a solution whereby courts adopt an approach similar (albeit narrower) to that used in artificial insemination cases to adjudicate child support claims against those men who were forced into fatherhood as a result of nonconsensual insemination.

AC

February 15, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)