January 7, 2012
Child Custody Case in FL
From ABC News:
Tina's biological daughter turned 8 this week, but she has not seen the girl since Dec. 22, 2008, because of a custody fight with her former lesbian partner. The partner is unrelated to the child, but gave birth to her.
"I thought I'd have her back on her birthday," said Tina, a law enforcement officer, whose name was never on the birth certificate and who has been denied parenting rights under Florida state law.
...[T]he Florida courts had to decide, who is the legal parent, the biological mother or the birth mother who carried the unrelated child for nine months in her womb?
A trial court summarily sided with Tina's ex-partner, citing Florida statute. "The judge said, 'It breaks my heart, but this is the law,'" according to the birth mother's lawyer, Robert J. Wheelock of Orlando.
But on Dec. 23, a state appeals court rejected the law as antiquated and recognized both women as legal parents.
Citing the case as "unique," the 5th District Court of Appeal ruled that both the U.S. and Florida constitutions trump Florida's law, according to the Orlando Sentinel, which first reported the story.
Read more here.
January 6, 2012
Heen: "From Coverture to Contract: Engendering Insurance on Lives"
In the 1840s, state legislatures began modifying the law of marital status to ease the economic distress of widows and children at the family breadwinner’s death. Insurance-related exceptions to the common law doctrine of “marital unity” under coverture permitted married women to enter into insurance contracts and protected life insurance proceeds from their husbands’ creditors.
These early insurance-related statutory exceptions to coverture introduced an important theoretical question that persisted for the rest of the nineteenth century — and into the next — as broader legal and social reforms took hold. How could equality of contract for married women be reconciled with the traditional dependencies of the home? Equality of contract also introduced the practical economic problem of how the lives of women could be valued apart from their husbands when the law otherwise enforced their economic dependency.
The theoretical and practical issues were resolved for life insurance and annuity contracts, the Article argues, by an increased emphasis on “natural” differences between men and women when those differences comported with traditional gender status hierarchies and dependencies. Gender-distinct mortality tables and higher rates for coverage of women first appeared in annuity contracts used to fund lifetime financial support independent of or as a substitute for marital rights. Gender-merged tables and unisex rates generally prevailed, however, in life insurance contracts used to protect wives and children from the family breadwinner’s death, a more traditional pattern of household dependency. Gender-distinct rates thus tempered, in both symbolic and practical/economic terms, the equality of contract recognized by the statutory exceptions to coverture. The selective adoption of gender-distinct insurance rates during the first wave of woman’s rights activism illustrates the role played by marketplace contracts in reinforcing the traditional status relationships and dependencies of the home.
From the Atlantic:
Must parenthood make your marriage miserable? Contemporary depictions in the press and popular culture might make you think so. Jennifer Senior's much discussed New York magazine piece, "Why Parents Hate Parenting," last year documented the apparent legions of affluent urban parents who find themselves with everything they dreamed of -- an educated, attractive spouse; fulfilling careers for wife and husband; and one or two healthy children -- who nevertheless experience parenting as a burdensome chore and a profound obstacle to a happy marriage. "Why Parents Hate Parenting" was replete with art photos of a beautiful young wife and handsome, shirtless husband in a retro-chic home with their healthy infant twin boys ... and everyone looking miserable in every shot. Similar depictions can be found of the challenges of combining marriage and parenthood can be found on television shows like Up All Night and movies like Flirting With Disaster.
Read more here.
January 5, 2012
Fertility Laws Unclear in Canada
From CBC News:
A lack of government regulation overseeing reproductive technology is failing to protect prospective parents and their would-be kids, lawyers and infertility support groups claim — one year after a landmark Federal Court ruling on the private industry.
Uncertainty about rules on matters such as the collection of donor information, the number of embryos that can be implanted, and compensation for donors and surrogates were expected to be settled following the December 2010 Supreme Court of Canada decision.
But little about the fertility laws has been made clear since then, said Diane Allen, who used assisted reproductive technology 27 years ago to conceive her son, Chris.
Read more here.
January 4, 2012
Guest Post by Liz Cowell: Family Law and the Jurisdiction of the English and Welsh Courts
It is important to be aware that the jurisdiction of the court in England and Wales does not include Scotland or Northern Ireland for divorce proceedings. Indeed Scotland is a completely separate jurisdiction based on Roman law rather than English common law.
In England and Wales the courts will accept jurisdiction for a divorce or an application for financial settlement where a foreign divorce has been declared in what may be surprising circumstances to some US attorneys. It is possible to issue a petition for divorce:
(a) if one of the spouses is domiciled in the United Kingdom even if both parties are living in the United States; or
(b) if both spouses or one spouse has been living in England or Wales for the past 12 months or more. In the case of an application for financial settlement where the divorce has been declared abroad the leave of the court is required.
Once jurisdiction is established in England and Wales it is the overriding objective of the court to ensure the case is dealt with expeditiously and fairly.
There is one ground for divorce which is irretrievable breakdown. This is proved by establishing one of five facts which are that the other spouse has committed adultery or behaved unreasonably or deserted the petitioning spouse for two years or more or alternatively that the spouses consent to a divorce after two years separation or that they have been separated for five years. Provided that the responding spouse does not wish to defend proceedings the procedure is dealt with on paper, the petitioning spouse filing a sworn statement in place of giving evidence.
A petition for divorce in England and Wales cannot be presented within the first year of marriage. There is no summary divorce procedure.
Despite there being fault attached to the first of the three facts referred to above, beyond obtaining an order for the costs of the divorce ( but not any applications ancillary thereto) it is very rare indeed that the conduct, even bad conduct, of one or both of the spouses will affect the financial settlement. For example if one spouse is committing adultery his or her financial settlement will not be decreased. In England and Wales there is no concept of breach of fiduciary duty although the courts would consider conduct that affects the spouses’ finances in determining a financial settlement. For example, in one case the husband broke his wife’s arm. She was a nurse and this injury prevented her from continuing in her career. This was conduct that was taken into account and enhanced her financial settlement. In another case the husband had gambled away the parties’ savings without his wife’s permission. Again this affected the settlement.
Whilst same sex couples cannot be married in England and Wales they can enter into a civil partnership. Such a partnership is determined using the same proceedings as those set out above for married couples and the points discussed below apply to divorces and the ending of civil partnerships.
In England and Wales the court has discretionary powers when determining financial settlement. Its jurisdiction cannot be ousted even by agreement by the parties. Any financial settlement reached must be approved by the court. Accordingly, a court can reject post divorce settlements if it is not satisfied that they are fair.
Prenuptial settlements are not legal under the law of England and Wales. Until relatively recently they could not be relied upon. It is however the case that the courts will now consider prenuptial settlement when determining financial settlement as evidence as to the parties’ intent and it will influence the financial outcome for the parties. It is however the case that in England and Wales prenuptial contracts are not binding upon the court, although they are increasing in number and the courts are influenced by them.
This was a guest post by Liz Cowell, divorce specialist and Partner at Pannone LLP. For more information on Pannone visit their website http://www.pannone.com/.
January 3, 2012
Adoption in England
From the BBC:
A Liberal Democrat MP is claiming up to 1,000 children a year in England are being adopted for the "wrong" reasons and should stay with their families.
John Hemming says the threshold for taking children into care is also often too low.
He is calling for a parliamentary inquiry into the secret court decisions that lead to many adoptions.
But his claims have been strongly disputed by the government's adoption adviser Martin Narey.
Both men have been giving evidence to the Commons Education Committee inquiry into child protection.
Read more here.
January 2, 2012
Private Adoption Agencies in India Shutting Down
From the Times of India:
BANGALORE: Too many regulations and red tape is forcing closure of many private adoption agencies in the city.
Ashraya, a Bangalore-based adoption agency which found home for nearly 3,000 children, is shutting shop on December 31. Many may follow suit.
Sources say that what used to be a one-to-three-month exercise to facilitate adoption has gone up to two years even, thanks to the lengthy procedure.
Read more here.
January 1, 2012