Family Law Prof Blog

China's One Child Policy Challenged by Professor

From Culture Clash Daily:

December, 21st 2009 should have been one of the happiest days of Assistant Professor Yang Zhizhu life as his second child, Yang Ruonan, was born.  Instead it set off a chain of events where he would be sacked from his job, fined an exorbitant amount and then head a court challenge in which he may overturn China's Family Law policies.

 

Since 1979 China has strictly enforced the policy in which families are only entitled to have one child as a means of controlling an expected population explosion. 

 

In recent years there have been a number of challenges to the legislation. 

 

Over the past months its emerged that the latest challenge will come from Law Professor Yang Zhizhu who will stand and argue that the legislation does not specifically state that having a second child is illegal and there are only references to families being encouraged to limit their children to one.

 

Yet it's been a rocky road since 2009.  Four months after his little girl was born authorities discovered her birth and he was immediately suspected from his teaching position at the China Youth University For Political Sciences. 

 

While there are implications for parents who break the one child policy it is potentially more damaging for the child. Born in China a second child risks not being able to receive a hukou or household registration.  Without these papers the child can not be enrolled in school, married or employed.

 

In 2010 now unemployed, the 44 year old father was to then receive a letter fining his family over $36,000, a figure calculated as 9 times the average urban income.

Read more here.

MR

 

E-Divorce?

Apparently it is the new rage in Australia:

Australian couples seeking divorce are now increasingly doing it through the Internet, with more than 250 people using an online service in almost 18 months.
The Federal Magistrates Court introduced its "e-filing" separation option in September 2009, allowing spouses to take the first step towards official separation over the Internet.

In South Australia, there were 3663 divorces last year, up from 3466 in 2008, and in the past 15 months, 268 have applied to end their marriage online.

Another service that has been flagged by the Federal Magistrates Court is an alert being sent via text message to men and women after their divorce has been granted.

Read more here.

AC

Larson: "Naming Baby: Constitutional Dimensions of Parental Naming Rights"

Carlton Larson (UC Davis School of Law) has posted "Naming Baby: The Constitutional Dimensions of Parental Naming Rights" on SSRN.  Here is the abstract:

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.

AC

UK Progress on Premarital Agreements

From LegalWeek.com:

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.

MR

 

Uniform Family Laws in KY

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.

MR

 

Fraidin: "Stories Told and Untold: Confidentiality Laws and the Master Narrative of Child Welfare"

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.

AC

Shmueli & Blecher: "Privacy for Children"

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.

AC

To Live Together, or Not To Live Together

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.

MR

 

xoxoxo

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.

MR

Margalit: "To Be or Not to Be (a Parent)? - Not Precisely the Question; the Frozen Embryo Dispute"

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.

AC

1 High School, 90 Pregnancies

One high school in Memphis is dealing with 90 of its students' pregnancies.  Read about it here.

MR

Sex and Neuroses

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.

AC