Saturday, April 30, 2011
Friday, April 29, 2011
Atwood: "Representing Children Who Can't or Won't Direct Counsel: Best Interests Lawyering or No Lawyer at All?"
Barbara Ann Atwood (Univ. of Arizona College of Law) has posted "Representing Children Who Can’t or Won’t Direct Counsel: Best Interests Lawyering or No Lawyer at All?" (53 Ariz. L. Rev. (2011)) on SSRN. Here is the abstract:
Child advocacy groups argue with increasing force that children’s lawyers should function as traditional, client-directed attorneys and that lawyers overstep their professional role when they represent children’s interests rather than children’s wishes. Consistent with this trend, the American Academy of Matrimonial Lawyers recently revised its standards for representation of children to flatly oppose the appointment of lawyers for children who lack capacity to direct counsel. This Article questions the Academy’s stance and contends that the professional role of an attorney is sufficiently flexible to encompass the representation of children who are unable or unwilling to provide coherent direction for counsel. Acting as fiduciary, counselor, and advocate, a lawyer for the non-directive child can maintain professional boundaries and still ensure that the decision-maker acts with knowledge of the child’s perspective. Even for the pre-verbal child, a lawyer can take legal actions to protect the child in the litigation process and convey the child’s world to the court through traditional avenues, including witness testimony and documentary evidence. Because Arizona court rules have authorized the appointment of best interests attorneys in family court since 2006, the Arizona experience is instructive. This article reports on a series of interviews in which Arizona family and juvenile court judges share their perspectives on children’s representatives in general and best interests attorneys in particular.
Historically, child support policy has targeted absent parents with aggressive enforcement measures. Such an approach is based on an economic resource model that is increasingly irrelevant, even counterproductive, for many low-income families. Specifically, modern day mass incarceration has radically skewed the paradigm on which the child support system is based, removing millions of parents from the formal economy entirely, diminishing their income opportunities after release, and rendering them ineffective economic actors. Such a flawed policy approach creates unintended consequences for the children of these parents by compromising a core non-monetary goal of child support system – parent-child engagement – as enforcement measures serve to alienate parents from the formal economy after reentry and drive them underground and away from their families.
In this article I propose that lawmakers harmonize child well-being rhetoric with policy by mitigating the counterproductive effects of federal and state law on incarcerated parents, an issue that is undoubtedly of national concern. I also invite readers to reimagine the normative contours of child supportive practices by recognizing that child support alone will never be an effective substitute for broader antipoverty measures.
From L.A. Now:
Mexico has decided against sending Dr. Ricardo Asch, the fugitive physician at the center of UC Irvine's fertility scandal, back to the United States for prosecution, a top Mexican official told The Times on Thursday.
Asch headed the internationally renowned Center for Reproductive Health and many accused him of taking eggs and embryos from some patients without their consent and giving them to other women. The unprecedented fertility fraud led to the live births of at least 15 children and lawsuits by scores of couples devastated by the revelations. The University of California, which was accused of trying to cover up the wrongdoing by Asch and two partners, has paid some $25 million to settle 140 lawsuits.
Read more here.
Thursday, April 28, 2011
Wednesday, April 27, 2011
Lamont: "Mainstreaming Gender into European Family Law? The Case of International Child Abduction and Brussels II Revised"
Ruth Lamont (Liverpool Law School) has posted "Mainstreaming Gender into European Family Law? The Case of International Child Abduction and Brussels II Revised" (17 European L. J. 366 (2011)) on SSRN. Here is the abstract:
Gender mainstreaming is an EU policy tool encouraging equality between men and women by incorporating gender concerns into the formation of EU law. The EU has intervened in private international family law, an area where concerns over gender equality may be present. Child abduction, which is regulated by the Brussels II Revised Regulation, is an aspect of international family law where issues of gender have been highlighted. Women are predominantly the abductors of their children and may abduct a child to escape a violent relationship. These factors were in evidence in the 1980 Hague Abduction Convention and an effective gender mainstreaming strategy should promote discussion to address these concerns. By examining the proposals for Brussels II Revised, this article will demonstrate that the gendered nature of child abduction was not clearly addressed in the development of the legislation and questions how mainstreaming can be effective as an aspect of the legislative process.
From WPLN News:
It was a year ago this week that a small town nurse in Shelbyville put the international adoption world into an uproar. Fearful of her newly adopted son, she sent the 7-year-old back to Moscow on a one-way trip.
Russian adoptions had already been on a steady decline. Russian officials threatened to suspend placements with U.S. families altogether. But the adoption pipeline was never completely shutoff.
The glory days were in 2004 when nearly 6,000 children were adopted from Russia. Because of the Hansen incident and others, that figure was down to roughly a thousand placements in 2010.
Read more here.
Tuesday, April 26, 2011
Yehezkel Margalit (Bar Ilan Univ.) has posted "Redefining Parenthood - From Genetic Essentialism to Intentional Parenthood" on SSRN. Here is the abstract:
The last few decades have seen dramatic changes affecting the institutions of family and parenthood. Today, the bionormative marriage has lost much of its strength with greater emphasis being placed on the individual’s autonomy and wishes that separate marital relations from sexuality and fertility. In this article I examine how the emerging fertility treatments biotechnologies elicit the ethical question of how we should define parenthood in the modern era. I suggest abandoning the sacred genetic foundation as the sole factor in establishing legal parentage. Instead of sticking to genetic essentialism we should redefine legal parenthood. I suggest establishing it by mutual agreement while we have to assimilate that in the modern era the legal parentage should be reconceptualizated as intentional one.
I try to implement my general theme in one test case - disputes over frozen embryos. The article tries 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. It offers reconceptualization of parenthood and claims 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. The findings of the article provide tools for a better solution to the bitter quarrels in offering an additional legal option which may be a possible compromise in the case of the frozen embryos - granting non-parenthood status to the spouse who objects to the continued fertility treatments and to becoming a parent against his will.
The Genomic Revolution, gene patent law, and genetic alternation will have profound effects on the family and family law. Increasingly, the possibility exists of precisely genotyping offspring (or even gametes). The effects of this may be benign or they may be destructively negative. Either way, this technology has already begun to arrive, thereby stirring controversy. The availability or unavailability of human gene patents (and related patents, such as those claiming methods of medical diagnosis or treatment) could help determine whether the rate of genetic discovery and development increases or decreases. Finally, the potential to “repair,” or even enhance, the genetic complement of human beings at early stages of their lives could lead to parents hoping to cure their children or to a runaway genomic arms races wherein parents attempt to provide their children with affirmative advantages over their peers. Rapid advances in genetic technologies, such as the $1000 genome, gene diagnostic tests, personalized genomics, and gene therapy, coupled with the flux in the law of gene patents (and patents on related inventions), will ensure the substantial transformation of the legal milieu in which parents make reproductive choices. Family law will be transformed.
From the Chicago Tribune:
The director of Michigan's child welfare agency said Tuesday the state has interviewed more than 2,000 applicants for roughly 700 jobs, part of an effort to comply with an agreement to improve foster care and other services.
Department of Human Services Director Maura Corrigan said that about 400 more foster care, adoption and child protective services workers are expected to be hired by late May. They'll join others already hired to fill vacancies with the department, including more than 200 sworn in late last month
It appears nearly all of the new hires would simply replace the roughly 700 child services workers who recently retired from the department. Overall, the Department of Human Services lost about 1,300 workers through retirement.
Read more here.
Monday, April 25, 2011
From The Seattle Times:
While most adoptions present challenges, there's a distinctive set of them facing parents who decide to adopt children living with HIV. A twice-daily medication regimen, lingering prejudice and fear, uncertainty about the child's longevity and marriage prospects.
Yet the number of U.S. parents undertaking HIV adoptions, or seriously considering them, is surging - from a trickle five years ago to at least several hundred. Most involve orphans from foreign countries where they faced stigma, neglect and the risk of early death.
Read more here.
Sunday, April 24, 2011
Carey: "Correcting Myopia in Domestic Violence Advocacy: Moving Forward in Lawyering and Law School Clinics"
Camille Carey (Univ. of New Mexico School of Law) has posted "Correcting Myopia in Domestic Violence Advocacy: Moving Forward in Lawyering and Law School Clinics" (forthcoming Colum. J. of Gender & Law) on SSRN. Here is the abstract:
Lawyers and law school clinics have become myopic in their approach to civil domestic violence lawyering. This article argues that domestic violence lawyering should expand beyond its current focus on family law to move domestic violence law and practice forward. Drawing on theoretical frameworks from criminal law and feminist legal theory, this article proposes a lawyering model that expands individual representation across a wide spectrum of case types while also challenging systems that enable battering or do not support victims in their efforts to secure safety.
Holistic representation in family law, public benefits, immigration, housing, mortgage foreclosure, tort, and financial matters, among other substantive areas, better serves domestic violence victims and reveals systemic problems facing victims. By taking a dual approach – broad holistic representation of individual victims combined with law reform efforts directed at systemic issues revealed through broad direct representation – lawyers and law school clinics can move domestic violence advocacy forward.
Saturday, April 23, 2011
From the Chicago Tribune:
The "Baby Tamia" case shined a light on the unregulated corners of for-profit adoption and sparked a new law, ensuring that adoption was about building families, not making money.
Some six years later, the Adoption Reform Act has gone a long way in shutting down shady operators, but the Internet has opened up troubling new loopholes, say child welfare advocates.
"The Internet and adoption is like the Wild West," said Adam Pertman, director of the Donaldson Adoption Institute, a research and advocacy organization. "Stuff is happening out there that no one is moderating, regulating or paying attention to."
Read more here.
Friday, April 22, 2011
This article argues that civil marriage and democracy are inherently incompatible, whether they are assessed from a trans-cultural perspective that reduces them to their most universal aspects, or from a culturally situated perspective that accounts for their uniquely American elaborations. Across virtually all cultures, civil marriage privileges sexual partners by offering them exclusive access to highly desirable government benefits, while democracy presupposes liberty and equality. When governments privilege sexual partners, they effectively deprive their citizens of liberty by encouraging them to enter sexual partnerships rather than self-determining based on their own preferences; they effectively deprive their citizens of equality by establishing an insidious status hierarchy. While some deprivations of liberty and equality are justified – for example, those that promote social welfare – this article argues that those resulting from civil marriage are emphatically unjustified. The incompatibility that exists on a trans-cultural level is magnified when one considers civil marriage and democracy in their American elaborations. American civil marriage privileges not only sexual partners but also religious, patriarchal, and heterosexist ideologies, while American democracy presupposes respect for the Due Process, Equal Protection, Establishment, and Free Speech Clauses.
Even if American civil marriage could be stripped of its religious, patriarchal, and heterosexist aspects, it would remain an essentially undemocratic institution due to its inherent privileging of sexual partners. Inasmuch as American civil marriage cannot be democratized, this article argues that it should be abolished. It does not, however, propose (as some have) that American civil marriage be replaced by a relatively analogous “civil union” regime. It instead proposes that states remove themselves entirely from the business of affirming sexual partnerships. It explains that abolishing civil marriage would not only enhance American democracy, but also enable states to reallocate their resources away from sexual partners and toward individual providers. While sexual partners do not necessarily deserve government benefits, individuals who provide for dependents do – yet they are often denied such benefits under our current system. It should be emphasized that this article applies only to civil marriage, and does not propose to limit the ability of sexual partners to celebrate their commitments through private ceremonies or to dissolve their relationships according to the terms of private contracts.
Thursday, April 21, 2011
The New York Times ran a story last weekend about a great filiation case - worth $50 million - working its way through that New York Court system that challenges the old presumption that the husband of the mother is the father of a child born during the marriage. A good read during exam season! Read the piece here.
From Gozo News.com:
Under a new Convention signed by the EU, the American authorities would cooperate with those in Europe to make sure the father fulfils his obligations and the child still gets support.
The Hague Maintenance Convention sets up a worldwide system for recovering child support and other family maintenance payments. It creates a common legal framework between the EU and non-EU countries, so that authorities cooperate in enforcing maintenance claims and debtors can no longer escape by leaving the EU. It also provides for free legal assistance in international child support cases. The Convention complements the EU’s own rules on recognising and enforcing maintenance decisions, which will apply from 18 June 2011.
Read more here.
Wednesday, April 20, 2011
Lisa Pruitt (UC Davis School of Law) & Janet Wallace have posted "Judging Parents, Judging Place: Termination of Parental Rights in Rural America" (77 Missouri L. Rev. (2011)) on SSRN. Here is the abstract:
Parents are constantly judged, by fellow parents and by wider society. But the consequences of judging parents sometimes extend beyond community reputation and social status. When law and legal institutions get involved, such judgments may result in the termination of parental rights. In these legal contexts, parents’ merits as parents are typically assessed in relation to a wide array of their decisions and actions, including where they live.
Among those judged harshly in relation to geography are impoverished parents who live in rural places. Yet judgments of these parents are particularly unfair in that poor rural parents often do not have ready access to State support in the form of programs that would permit them to be better parents. That is, spatial obstacles may prevent them from meeting their children’s first order needs by gaining access to public benefits such as Temporary Assistance for Needy Families (TANF), housing assistance, and nutrition programs. These parents are often similarly without reasonable access to the types of services and programs that would enhance their parenting skills, either because such programs are not offered in rural places or because the transportation obstacles to reach the programs are too great.
This Essay looks at termination of parental rights in relation to the impractical expectations - indeed, at times impossible ones - that courts sometimes impose on rural parents as a condition for keeping their children. It surveys cases that have used rural residence as a strike against a parent in termination proceedings. While poverty is an impermissible basis for terminating parental rights, cases reveal that place may become a proxy for poverty and be cited as a reason for removal of a child. This Essay disputes the appropriateness of such judgments, particularly in light of the immobility of the poor and the challenges that rural spatiality creates for service delivery and access. In doing so, it highlights the hypocrisy of the State’s judgment of rural parents, including for their failure to avail themselves of public services, even as the State fails to make meaningfully available the very assistance and services that would enable them to be better parents.
From Bloomberg Businessweek:
Divorce can be expensive, but in Romania you'd better hope you're not living in the town of Sangeorgiu de Mures when you decide to untie the knot.
Several months ago, a new law went into effect in Romania allowing some couples to be divorced by town hall officials. Each municipality can set the fee, and huge discrepancies have emerged.
Read more here.
Tuesday, April 19, 2011
From the Guardian:
Last week the government's independent Justice Review Panel published its interim report on the family justice system in England and Wales.
It is a welcome and broad review of a system that is, as noted by the panel's chair, David Norgrove, under serious strain. Too many cases involving separating families take too long to resolve, with children sometimes waiting more than a year for their futures to be determined. The panel has rightly pointed out that lengthy, complicated legal processes are emotionally and financially draining for parents and distressing for children.
Its recommendations, now out for consultation, are thoughtful and intelligent. They include a positive emphasis on encouraging separating couples to consider non-court dispute resolution services, and on assessing whether they need parenting information.
Read more here.