Saturday, December 3, 2011
The B.C. government introduced sweeping legislation Monday that would overhaul provincial laws for divorce, separation and child custody.
The new Family Law Act is an effort to reduce costly legal battles by encouraging out-of-court settlements through mediation, arbitration or other means.
It makes a child's best interests the only consideration in parenting disputes and identifies children's safety as an overarching objective. It also includes a definition of family violence that will be used when determining what is in a child's best interests. The province's family law hasn't been updated since 1978 when it was first introduced, and the makeup of families, along with case law, has changed significantly since then, said Nancy Carter, executive director of the attorney general's civil policy and legislation office.
The changes would also "reduce judicial discretion" for judges to overrule agreements made by parents, said Carter.
Read more here.
Friday, December 2, 2011
Ratner: "Distribution of Marital Assets in Community Property Jurisdictions: Equitable Doesn't Equal Equal"
James Ratner (Univ. of Arizona) has posted "Distribution of Marital Assets in Community Property Jurisdictions: Equitable Doesn't Equal Equal" (72 La. L. Rev. 21 (2011)) on SSRN. [He also gave a great talk on it at a community property symposium LSU Law hosted in the spring - thanks, Jamie!] Here is the abstract:
The hallmark of an American community property system is that community property is owned in present undivided one-half ownership by each spouse. At divorce, however, most community property jurisdictions parrot common law jurisdictions and divide the community property "equitably" rather than "equally." While “equitable” could be interpreted to differ from “equal” only in that “equal” requires a 50/50 split of each community asset and “equitable” requires only equal division of the community worth, “equitable” has recently been interpreted in a far more open-ended manner. As a result, vague factors including need, contribution, duration of the marriage, the age of the divorcing parties, as well as the behavior of the parties during the marriage, are used to justify substantially unequal divisions of community property at divorce. Recent Arizona cases exemplify this approach. The question of an equitable rather than equal division comes down to whether the flexibility of an open-ended, standardless notion of equitable division of the community worth is necessary to permit something other than a 50/50 distribution in the occasional situation where "everybody knows a 50/50 split yields a bad result." The need to address unusual situations likely led to the open-ended concept of equitable division articulated in the Arizona cases, but that interpretation cannot be constrained to the highly stylized facts that led to the interpretation. Instead, the interpretation injects into every divorce the potential for a fight over the need to depart from a 50/50 split of the community worth. In addition, because the open-ended conception of “equitable” includes authorizing divorce courts to consider whether spouses contributed to the marriage relationship, the use of “equitable” as envisioned by those decisions injects a form of fault inquiry into the calculus concerning the proper share of the community worth. The costs of the flexibility to adjust in a small number of situations seem far outweighed by the harms of distortion to the vast majority of divorces. Equal, rather than equitable, offers a superior, although imperfect, compromise between the competing claims of contribution and need as well as the legitimate societal desire to enable judicial flexibility.
From the Telegraph:
There is no doubt that marriage is in crisis in China.
Once a dirty word, divorce is now so commonplace that in the first half of 2011 almost one million marriages ended, a jump of 17.2 per cent on last year according to the Ministry of Civil Affairs.
Amongst Mrs Yang's generation, the 18-30 age group, and in the major cities, around one-third of all marriages fail. But it is not just the young and the metropolitan middle classes who are walking away from wedded bliss. In the first quarter of 2011, the biggest rise in divorces was in the southwestern province of Sichuan and eastern Shandong Province.
Read more here.
Thursday, December 1, 2011
Michael Hor (National Univ. of Singapore) has posted "Relatively Criminal: Spouses and the Criminal Process" (Singapore J. L. Stud. (2011)) on SSRN. Here is the abstract:
This article explores the interface between family law and criminal law in the criminal process, in the contexts of the spouse as a witness and the spouse as a victim. It probes the question of whether the criminal law should retain or develop special rules or policies when the marital relationship is potentially affected by the operation of the criminal process, contrasting the decline of spousal ‘exceptionalism’ in the context of spousal witnesses with the apparent vigor exhibited in the official reluctance to enforce the criminal law in situations of minor spousal violence.
From the London Evening Standard:
A mother has told how she was made to pay £3 to take her newborn baby into Britain's biggest restaurant.
Natasha Young told staff at the Cosmo restaurant that her son Kaedon was just six weeks old and that she was breast-feeding him.
But they refused to take the charge off her bill, saying the pushchair was taking up space in the 800-seat, 22,000 sqft oriental buffet restaurant in the Valley Leisure Park, Croydon.
Ms Young said: "I was told the pushchair was taking up space. It was full but I had booked a table. When I got there they said I have to pay for the baby even though he does not eat. I was told he was taking up space. I offered to put the pushchair back in the car and they said we still had to pay for the space he was taking up."
Read more here.
Wednesday, November 30, 2011
Baxter-Kauf: "Breastfeeding in Custody Proceedings: A Modern-Day Manifestation of Liberal and Republican Family Traditions"
Kate Baxter-Kauf has posted "Breastfeeding in Custody Proceedings: A Modern-Day Manifestation of Liberal and Republican Family Traditions" (forthcoming Richmond J. L. & Pub. Int.) on SSRN. Here is the abstract:
This article explores the relationship between breastfeeding in custody proceedings and the supposedly discredited common law coverture and tender years doctrines. It argues that the case of custody disputes highlights the contradictory nature of family law through the relationship between parental autonomy, the privatization of dependency, and the judicially determined appropriateness of maternal relationships.
From the British Guardian:
Fathers who have gone through divorce or separation will not be granted a legal right to guarantee that their child has "a meaningful relationship with both parents", according to a long-awaited report on family law.
The Family Justice Review draws back from one of its key interim recommendations that had raised the hopes of groups such as Fathers 4 Justice, which campaigns for improved paternal access rights.
The review also condemns the lengthy court delays involved in care cases and calls for a statutory, six-month limit to be imposed on reaching decisions in child protection cases "save in exceptional circumstances".
Read more here.
Tuesday, November 29, 2011
Preeti Charturvedi (National Law Univ., Orissa at Cuttack) and Churchi Mandakini have posted "'You Can Use My Uterus' - New Horizons of Law Relating to Surrogacy" on SSRN. Here is the abstract:
Mothers have been considered symbolic of god and the misfortune of childlessness cannot be elucidated. The problems in conceiving forced women to think of an alternative and started the whole business of surrogate mothers. Surrogacy has been the centre of burning debates and has received arguments for and against its legalisation. With the advancement of technologies, gestational surrogacy has been possible where the partner’s sperm is implanted into surrogate’s uterus. Surrogacy is presumably considered legitimate because no Indian law prohibits surrogacy. But this silence of law can obviously not be interpreted as a green signal for any future surrogacy arrangement. However, the changing face of law is now going to usher in a new rent-a-womb law as India is set to be the only country in the world to legalise commercial surrogacy by virtue of Assisted Reproductive Technology Bill, 2010. This paper is a humble attempt to discuss the pros and cons of the bill and it also puts forward few contentions of recognising/legalising surrogacy contracts in the country.
Jeremy Bentham looked upon ‘law’ as an instrument for securing the “greatest good of the greatest number”. Surrogacy is becoming a practice to earn. The paper also sheds light on how the intended parents are established as the legal parents of the child. Surrogacy is a boon or a bane? This controversial question is the spotlight of the 228th Law commission Report on which this paper focuses upon.
This paper will address the need for legalization of surrogacy from the perspective of fundamental right. Surrogacy has inscrutable impact on the primary unit of the society i.e. family, and therefore, connivance of Law about this knotty issue may prove to be a regrettable step in the future. The paper also submits that if the society allows organ donation, blood donation, wet nursing and other such analogies then why not surrogacy? In my opinion this issue of use of new reproductive technology must be dealt with meticulously by the legislature of our time and reluctance about legalising surrogacy must be relinquished.
Manian: "Functional Parenting and Dysfunctional Abortion Policy: Reforming Parental Involvment Legislation"
Maya Manian (Univ. of San Francisco) has posted "Functional Parenting and Dysfunctional Abortion Policy: Reforming Parental Involvment Legislation" (forthcoming Family Court Review) on SSRN. Here is the abstract:
Abortion-related parental involvement mandates raise important family law issues about the scope of parents’ power over their children’s intimate decisions. While there has been extensive scholarly attention paid to the problems with parental involvement laws, relatively little has been said about strategies for reforming these laws. This article suggests using insights from family law relating to functional parenthood and third party caregiving as a basis for crafting more capacious methods of ensuring adult guidance for teenage girls facing an unplanned pregnancy. Recent developments in family law bolster the case for reforming parental involvement legislation to allow teenagers to consult with designated adults other than their parents. Enlisting other trusted members of the community to assist pregnant teenagers should assuage those who want to guarantee that adolescents consult with an adult in a time of crisis, while also giving leeway to the well-documented concern that some teenagers reasonably fear discussing pregnancy with their parents.
From the New York Times:
Of all the many things that make up a wedding, few are more important than the photographs.
Long after the last of the cake has grown stale and the tossed bouquet has wilted, the photos endure, stirring memories and providing vivid proof that the day of one’s dreams took place.
So it is not particularly surprising that one groom, disappointed with his wedding photos, decided to sue. The photographers had missed the last dance and the bouquet toss, the groom, Todd J. Remis of Manhattan, said.
But what is striking, said the studio that took the pictures, is that Mr. Remis’s wedding took place in 2003 and he waited six years to sue. And not only has Mr. Remis demanded to be repaid the $4,100 cost of the photography, he also wants $48,000 to recreate the entire wedding and fly the principals to New York so the celebration can be re-shot by another photographer.
Re-enacting the wedding may pose a particular challenge, the studio pointed out, because the couple divorced and the bride is believed to have moved back to her native Latvia.
Read more here.