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.
Richard Carlson (South Texas College of Law) has posted "Seeking the Better Interests of Children with a New International Law of Adoption" (55 N.Y.L. S. L. Rev. 1 (2011)) on SSRN. Here is the abstract:
Intercountry adoption matches children in need with parental aspirations across national borders. Recently, however, intercountry adoption has been the object of intense criticism, some of it constructive, some of it destructive. This article summarizes the spectrum of views from hostile to sanguine, rebuts the most cynical arguments, and builds on the contributions of those who seek to preserve, advance and strengthen intercountry adoption for the sake of the thousands of families it continues to serve around the world.
Monday, April 18, 2011
The biggest challenge for sex equality in the 21st Century is to dismantle inequality between women and men’s family care responsibilities. American law has largely accomplished formal equality in parenting by doing away with explicit gender classifications, along with many of the assumptions that fostered them. In a dramatic change from the mid-20th Century, law relating to family, work, civic participation and their various intersections is now virtually all sex-neutral. As the Supreme Court’s 2003 decision in Nevada Department of Social Services v. Hibbs demonstrates, both Congress and the Court have accepted the feminist critique of sex roles and stereotyping as engines of discrimination and inequality. But the resultant legal reforms address only formal inequality; the challenge of lived inequality remains. Changes in legal norms must be embraced throughout the culture before their promise will be made real. The most influential and resistant obstacle to actualizing gender equality is the continuing cultural practice of romanticizing the mother as the best possible caretaker. As the Court has recognized, we cannot simply accept existing gendered family patterns as results of freely made individual choices. Persistently gendered family care becomes self-fulfilling, and solidifies the very inequalities - economic, political and social - that the law strives to dislodge. Given that mothers’ unequal burden in the home is a fulcrum of broader sex discrimination, it is particularly disturbing that one of the most persistent strains in contemporary culture is a celebration of mothers’ domesticity and their role as the default parent, and that women’s rights organizations are buying in. The “new maternalism,” as we call it, is evident along the political spectrum and across popular culture, from Sarah Palin’s Mama Grizzlies to the internet advocacy group Moms Rising, and from movies, television and advertising to countless “mommy blogs.” This phenomenon amounts to a distinctive, post-feminist understanding of motherhood that studiously avoids engaging with the gendered division of parenting and refuses to make any demands on men. By appealing to mothers, and not fathers, new maternalism risks reinforcing mothers’ second shift and the countless inequalities that flow from it. The sophisticated policy advocates who participate in the promotion of new maternalism have made a strategic choice to tap a culturally potent, contemporary form of gender identity politics. But they jeopardize their own advocacy goals when parenting and care work are cast in exclusively female terms, as a new - but fundamentally retro and feminine - maternalism. Our analysis of the culture of new maternalism and its legal consequences comes from a deep appreciation of the enormous value and satisfactions of parenting; new maternalism has such appeal precisely because it correctly embraces what is meaningful about family care. Its error, we contend, lies in the tacit exclusion of men, whether willing or reluctant, from engaged parenting’s benefits and responsibilities. We conclude that equality outside the home requires equality inside it, which is why we come out against the new maternalism.
Sunday, April 17, 2011
Scholars reviewing family law over the last twenty years have described the field as having undergone a revolution. While true, both scholars and family law on the ground have failed to invent a satisfying end to the revolution. This Article takes up that challenge and offers a novel way forward. It identifies two translation challenges that have prevented the revolution from reaching its end. The first challenge is translating reform so that its benefits accrue equally across all kinds of participants – rich and poor, those with lawyers and those without. The second challenge is translating theory into on-the-ground practices useful to family courts. The Article uses the collaborative law movement as an example of the translation problem of unequal access and distribution, and scholarship on family law and emotions as an example of the translation problem of crafting useful on-the-ground practices. To solve both translation challenges, the Article proposes that courts and court-annexed programs build out practices of equipoise. The Article defines equipoise as a mode of processing information and emotions that disrupts habituated and unhelpful interactions between persons, and instead encourages thoughtful engagement with emotions, resulting in reduced adversarialness and constructive problem solving. It considers examples of equipoise practices, some commonplace (role-playing) and some more esoteric (meditation), and demonstrates how such practices can efficiently and productively be translated into court processes that are available to all family law participants. As a result, the Article demonstrates how to invent a satisfying end to the family law revolution.