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:
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.
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.
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.
Controversial Child Abuse Registries
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.
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.
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.
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.
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.
February 21, 2011
Fight Styles Most Likely Leading to Divorce
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.
February 20, 2011
The Best Time to Serve Custody Documents?
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.