November 13, 2009
Yefit: "What's the Constitution Got to Do with It? Regulating Marriage in Pakistan"
Karin Carmit Yefit has published What's the Constitution Got to Do with It? Regulating Marriage in Pakistan, 16 Duke Journal of Gender Law and Policy 347 (2009). Read the full article here. Here is an excerpt from the introduction:
Pakistan’s legal regime, particularly the status of its women, is the subject of considerable academic and media interest both domestically and internationally. The legal plight of Pakistani women is well documented, and virtually all accounts stress the brutality with which their rights are violated. They are portrayed as subject to a legal system that allows them to be veiled,secluded, silenced, harassed, mutilated, forced into prostitution, beaten, raped, murdered, and otherwise humiliated. This study, however, seeks to unravel for the first time a different and surprising picture of the marital rights of Pakistani women and the protection afforded them by the Constitution. While the legal literature is replete with discussions of both marriage law and constitutional law, the interplay between the two within the context of Islam seems to have largely escaped scholarly attention. This article seeks to fill this gap; it explores the actual and potential intersections of Pakistan’s Constitution with legal regulation of marital love, and reveals the uniqueness of this system and its striking sensitivity to women’s rights . . . Ultimately the article concludes, the exemplary Pakistani regime may potentially serve as an illuminating model for the productive and complementary utilization of Islam and constitutional jurisprudence in the regulation of a marriage law respectful of human rights.
November 12, 2009
A Divorce Fair?
Just what America needs?
The city of romance got a lesson in love's hard knocks Sunday, as thousands flocked to the French capital's first divorce fair. The "New Start" trade fair aimed to tap into [a] booming market by bringing together 60 stands offering up both services obviously related to separation — law firms and counselors — and also more obscure disciplines aimed at helping people get back on their feet, like tarot card readers, makeover specialists and self-esteem coaches.
Conferences held throughout the two-day-long fair included talks entitled "Plastic surgery's role in re-conquering your image" and "How to re-seduce your partner using the Gestalt method," as well as "Meeting on the Web" and "Separation: What does a lawyer do?"
"We have long had the Marriage Fair," a massive annual trade fair in Paris catering to brides-to-be, "and I thought, 'why not a fair for people going through separations?,'" said Gaumet, adding that some 4,000 people visited the event over the weekend. "That's a real success for a first-time exhibition."
At the fair, held at a conference hall in northwestern Paris, the stands offering legal advice attracted the biggest crowds.
Read the full story here.
November 10, 2009
Bundles of Joy and, Now, Bounty
Earlier, we noted here the financial incentives given to teenagers in North Carolina not to procreate. On the opposite end of the spectrum, the Japanese government is incentivizing women to get pregnant as the country continues experiencing low birth rates. From the Wall Street Journal:
Japan's new leaders propose offering new parents monthly payments totaling about $3,300 a year for every new child until the age of 15. Other initiatives include more state-supported day care, tuition waivers and other efforts designed to make parenthood more appealing.
Of course, as the article points out:
But experts warn money alone does not a baby make. Governments have a mixed record in pushing up birth rates, as economic inducements sometimes fail to overcome other complex societal forces that affect baby-making decisions.
In Japan, they include the traditional reliance on mothers to perform the bulk of duties in the home, including child-rearing. Demographers say Japan might have more success if they also encourage more Japanese men to come home and do the dishes.
Finally, as I argued in one of my own articles, tax laws indeed have influence on family-planning:
On the policy front, Japanese tax laws encourage single-income families with a tax deduction that keeps many mothers at home. That slows the development of family-friendly corporate policies and social acceptance of working mothers.
Bottom-line: there are many modern influences making it difficult for young people to begin families, and overcoming them requires a multi-faceted approach. It will be interesting to see which Japanese initiatives will most ease the burdens of parenthood to make it more attractive.
April 22, 2009
Undocumented Immigrants and the Battle for Custody
The New York Times reports today on the legal struggles faced by immigrants caught up in enforcement raids, who then face a loss of custody of their children. As the article characterizes the problem, "crackdowns against illegal immigrants thrust local courts into transnational custody battles and leave thousands of children in limbo." The article reports on several current cases before the courts including a case currently before the Nebraska Supreme Court in which a mother had her parental rights terminated to her child after she was detained pending deportation.
To learn more about the issue, see "Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families", 43 Wake Forest L. Rev. 391 (2008) by Professor David B. Thronson of UNLV Law. The article is available at SSRN. (bgf)
September 26, 2008
South Africa: Virginity Testing and the Constitution
From The Washington Post:
The debate over virginity testing is an example of the clash common throughout Africa as governments try to regulate traditional practices that have long held sway, particularly in rural areas. Legal experts say the topic is particularly complex in post-apartheid South Africa, where patriarchal tribal cultures have dusted off long-stifled traditions under one of the world's most progressive constitutions, which lauds diversity but requires cultural customs to bend to individual rights.
Read the rest of the article here. (RR last visited September 26, 2008).
August 30, 2008
Case Law Development: Phillipines Supreme Court finds husband's homosexuality insufficient to declare marriage void
The Phillipines Supreme Court's 3rd Division, in a twenty page decision, reversed a lower court's ruling declaring an eleven year opposite-sex marriage void because of the husband's homosexuality. The Supreme Court found the trial court erred by only considering the husband's alleged homosexuality rather than requiring proof that the husband concealed his sexual identity from the wife at the time of the marriage.
A report of the case in a Phillipines newspaper is available here (RR last visited August 30, 2008)
August 16, 2008
Case Law Development: K visa applicants may adjust immigration status even if they divorce
A recent ninth circuit court of appeals opinion describes nicely the process by which immigrants can become eligible for lawful permanent residence based on marriage. Faculty may find it a useful outline to give to students interested in this aspect of family law.
The case involved a Board of Immigration Appeals (“BIA”) decision that denied a Russian immigrant her application for adjustment of status to conditional permanent alien and ordered her deported. The applicant had come to the US in 1998 on a K visa as the fiancée of U.S. citizen. The couple were married in February 1999 and soon thereafter the applicant filed an application to adjust her status to that of a lawful permanent resident. Two years later, she and her husband divorced, while she was still waiting to have an interview with the Immigration and Naturalization Service on her application. The INS subsequently denied her application because of her divorce and the BIA affirmed this decision, finding that the language “as a result of the marriage of the nonimmigrant” in the Immigration and Naturalization Act § 245(d) required that the applicant remain married during the entire period of her application. The court of appeals reversed, finding the phrase meant only that the adjustment of status could be based only on the marriage to the the original spouse-sponsor, not on any other basis; Thus the court held that "The purpose and context of § 245(d) also do not support the government’s reading of the statute that requires the automatic removal of immigrants whose marriages end in divorce while their application for adjustment of status languishes in the agency’s file cabinet."
Choin v. Mukasey, (U.S. 9th Cir. Ct. App., August 12, 2008)
Read the opinion online (Last visited August 15, 2008 bgf)
January 25, 2007
Call for Unified EU Family Law
The EU must streamline family law across member states' borders, United Kingdom constitutional affairs minister Harriet Harman has said. Speaking in Brussels, Ms Harman said closer co-operation between the EU's legal systems is vital. Almost one in five divorces in Europe now involves couples who come from different countries. Ms Harman urged the EU Commission to propose rules which could work despite differences in countries' legal codes. She said it was important "not just for couples living in separate countries, but above all for their children".
Ms Harman wants see the system streamlined to ease the trauma of divorce for all those involved.
Read the BBC's Report on her recommendations. (last visited January 24, 2007 bgf)
November 15, 2006
Regulations to Implement Hague Convention on Intercountry Adoptions Considered
The United States is in the final stages of implementing new, federal-level standards in light of the anticipated U.S. ratification of the Hague Convention on Intercountry Adoptions. The Convention was discussed at a November 14 hearing before the House International Relations Subcommittee on Africa, Global Human Rights and International Operations. The Hague Convention on Intercountry Adoption is a formal international agreement designed to ensure transparency in adoptions to prevent trafficking, kidnapping, smuggling and baby-selling. The United States has signed the convention and is moving toward formal ratification in 2007. The Intercountry Adoption Act of 2000 (IAA) is the implementing mechanism established to carry out the functions required under the convention. The IAA was enacted into law on October 6, 2000. A regulatory framework currently is being put in place to comply with the provisions of both the convention and the IAA to move the United States toward formal ratification.
Read the Department of State press release on the testimony before the committee or check out the State Department's website on the Hague Convention on Intercountry Adoptions (last visited November 15, 2006 bgf)
November 03, 2006
Case Law Development: UCCJEA Prohibits Court From Altering Custody of Foreign Decrees, Even in Relocation Cases
A second move-away case from the California Court of Appeals this past week involved the application fo the UCCJEA to enforcement of a French custody decree. The French decree gave custody of the child to mother, visitation rights to father, and enjoined mother from moving away with the child. However, mother did move with the couple's 14-year-old child from Fance to California, resulting in this action by father, requesting return of the child. The trial court ordered that the child be returned to France or else the father would obtain sole legal and physical custody. The court of appeals reversed, holding that as it violated the Uniform Child Custody Jurisdiction and Enforcement Act by changing custody, and by ordering that the mother not move away with the child.
The court of appeals reversed, holding:
We agree that the trial court violated the UCCJEA by changing custody. We also
agree that the UCCJEA required limited enforcement of the visitation schedule but
prohibited the trial court from enforcing the other aspects of the visitation award,
including the order that [Mother] not move away with [Child]. This not only follows from
the language of the UCCJEA, but also avoids any conflict between enforcing custody and
enforcing visitation. Thus, we accord comity to the French decree to the extent -- but
only to the extent -- that the UCCJEA requires.... The trial court ... had no jurisdiction to enforce any visitation provisions other than the visitation schedule. If [Father] came to California, the trial court could have required [Child] to visit him according
to the schedule. It erred, however, by requiring that [Child] be returned to France.
Marriage of Paillier, (October 31, 2006)
Opinion on the web (last visited November 3, 2006 bgf)
October 30, 2006
Case Law Development: Reckless Domestic Violence Assault not a Categorical Crime of Violence for Purposes of Immigration Law
The United States Court of Appeals for the Ninth Circuit had to decide whether a misdemeanor domestic violence conviction under Arizona statutes constituted a "crime of domestic violence" under federal law subjecting a legally admitted resident alien to removal under 8 U.S.C.S. § 1227(a)(2)(E)(i). The court noted a recent inconsistency in its precedents regarding whether crimes of recklessness constituted categorical crimes of violence under immigration law. The court reviewed its own decisions and determined that it should join the other circuits that have restricted the category of crimes for which removal applies to crimes of violence involving specific intent. In this case, since the Arizona statute allowed conviction upon proof of reckless assault, the conviction was not a categorical crime of violence.
When a state statute of conviction does not define a categorical crime of violence, the court goes on ot apply a "modified categorical approach" in which it considers "whether any of a limited, specified set of documents--including "the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment" (sometimes termed "documents of conviction")--show the petitioner's conviction entailed an admission to, or proof of, the necessary elements of a crime of violence." In this case,
none of the documents ... demonstrated that [the alien's] conviction was based upon an admission, or any other proof, that he used force "intentionally" or "knowingly," as opposed to "recklessly." Accordingly, on the record now before us, we cannot conclude under the modified categorical approach that Fernandez-Ruiz committed a crime of violence or, by extension, a crime of domestic violence as defined by federal law.
The dissent took issue strongly with the rejection of recklessness as falling within the standards of categorical crimes of violence, arguing that:
Men do not beat their wives by accident. Blind to this truth, the majority ignores the realities of domestic violence and disregards congressional intent to hold that an Arizona domestic violence conviction is not a "crime of domestic violence" for purposes of a federal immigration law. The majority's hypertechnical analysis stretches the Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990), categorical approach to absurdity and misreads Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377, 160 L. Ed. 2d 271 (2004), as barring all crimes involving the reckless use of force from qualifying as "crimes of violence" under 18 U.S.C. § 16.
Fernandez-Ruiz v. Gonzales, 2006 U.S. App. LEXIS 26668 (9th Cir. October 26, 2006)
Opinion on web (last visited October 30, 2006 bgf)
October 27, 2006
Case Law Development: Meaning of "Legal Separation" under Immigration Law
The Fourth Circuit Court of Appeals was called upon to determine what constitutes a "legal separation" in a case involving deportation of a resident alien. The petitioner was subject to removal because he had been convicted of aggravated felonies. He sought to evade deportation by claiming that he automatically became a citizen as a consequence of his mother's naturalization when he was a minor. He had come to the United States from Ethiopia with his parents when he was 10 years old. His father had returned to Ethiopia later that same year, but his mother had remained in the United States and was naturalized in 1994 when the petitioner turned 17.
At the time of mother's naturalization, federal law provided that a child also becomes a citizen as a consequence of the naturalization of the parent having legal custody of the child when there has been a legal separation of the parents. 8 U.S.C. § 1432(a) (1999) (repealed 2000) The act did not define "legal separation." Here, the parents had apparently negotiated and signed a separation agreement at the time Husband returned to Ethiopia, though there were no witnesses to the agreement and it was not incorporated into a judicial decree until the couple's 2003 divorce.
The court of appeals affirmed the BIA interpretation that only judicially recognized marital separations are considered "legal" for the purposes of section 1432(a). Petitioner argued that because Maryland courts will enforce voluntary separation agreements as a species of contract, the BIA was required to recognize his parents as "legally separated" as of the purported date of their agreement. The court of appeals, over one dissent, held that federal law controlled the issue however. After reviewing federal law on the question, the court held that the BIA interpretation was not unreasonable and affirmed.
Afeta v. Gonzales, 2006 U.S. App. LEXIS (October 26, 2006)
Opinion on web (last visited October 28, 2006 bgf)
October 18, 2006
Law Regulating Overseas Brides Slowing Process of International Marriages
The New York Times reports on the International Marriage Broker Regulation Act. Imbra is intended to give foreign women and the American government more information about the men who seek so-called mail-order brides. According to the Times, "Reports of violence in international marriages, some of them Internet matches, have increased in recent years. In 1998, fewer than 2,500 foreign women applied to become permanent residents under the Violence Against Women Act, which allows abused wives to apply for residence without the support of their husbands. In the fiscal year that ended in September, 9,500 applied. The new law has angered many men, who argue that there is no definitive evidence that violence is more likely to take place in an international marriage arranged over the Internet than in a domestic one. Unwilling or unable to find a spouse in the United States, some worry that the law could make it more difficult to find a wife abroad."
Read the entire article (last visited October 18, 2006 bgf)
September 27, 2006
Case Law Development: Costs for Recovering Abducted Child from Another Country as Child Support or Attorneys Fees
The Maryland Court of Special Appeals addressed a case that I'm inclined to assign to students at the end of the semester with the instructions, "Here, read this case about all the topics we barely touched upon in the course and don't ever let me hear you say -- 'if I can't find a job, I can always do some family law!'"
The case involves a factually and legally complicated story of Mother and Father who had a son (while Mother was married to another man). When the son was 2 1/2 years old, and while a custody action between the parents was pending in Maryland, Father abducted him and took him to Turkey. The court chronicles Mother's efforts to recover her son, which required 2 1/2 years, 11 trips to Turkey, multiple court hearings in both Maryland and Turkey, and over $350,000 in legal and private investigation fees and expenses. Simply reading the story of what happened in this case to the point of the child's return is like a short course in international child custody litigation.
However, the case before the Maryland court required even more, as Mother was awarded some of her expenses in securing her son's return to the United States, which Father challenged in this appeal and sought to avoid through a separate bankruptcy proceeding. The trial court had granted Mother $200,000 in costs in one proceeding and then $252,930 in a second hearing, which it treated as an award of counsel fees and costs. Mother sought to have the first award characterized as a contempt sanction and argued that the trial court had erred in overruling her motion to have the second award made as child support.
The court commented on the parties' motivation for this characterization dispute: "The only reason the parties are arguing over whether the court could sua sponte treat Mother's motion as one for counsel fees and costs, and whether the $ 252,930 judgment is for child support, is that they believe the answers to those questions will determine ... whether that judgment was entered in violation of the automatic stay in bankruptcy.... [T]hat issue is to be decided under federal law, not Maryland law; and federal law about what obligations are child support, or "in the nature of child support," differs from Maryland law on that subject. Therefore, our answers to these two questions do not have the significance the parties believe they do." Indeed, the court went on to explain that, while under state law "counsel fees and costs incurred by a parent in a custody case are not child support, even when they are for the benefit of the child", under federal law, these same expenses are "in the nature of child support" and thus non-dischargeable.
Regarding the characterization of the first award, the court found that the trial court had erred in characterizing that award as one for contempt, as there were no purge conditions in the first award. Rather, the court found that the trial court had retroactively re-characterized the first award in the hearing on the second award. That error required reversal and remand.
While Father prevailed in this round of the litigation, the court was not without commentary on his approach to the litigation. The court addressed Father's argument that he should not be required to pay Mother for the expenses incurred in recoverying the child because Mother's husband -- not Mother -- had actually paid those expenses. In rejecting this argument, the court noted "If nothing else, this argument is notable as a fine example of chutzpah" with a footnote that explored the definition of the term and its use by the courts.
So, read and enjoy, and save the opinion in case you have trouble convincing your curriculum committee that there is sufficient content to justify offering an advanced child custody class.
Corapcioglu v. Roosevelt, 2006 Md. App. LEXIS 219 (September 20, 2006)
Opinion on web (last visited September 22, 2006 bgf)
May 23, 2006
Resource for Updates on UK Family Law
Our readers may find Family Law Week a particularly valuable resource for keeping in touch with developments in family law in the UK in particular and EU in general. All content is provided free of charge and one can subscribe to an email update service without charge as well.
The most recent article presents a summary and analysis of the effect of recent key public law children cases, especially those relating to emergency protection order applications. Read Alex Verdan's article. In another recent article, Lord Justice Thorpe reviews his first 15 months as the UK's Head of International Family Law in the UK publication Family Law Week. He reviews the developments in family law that lead to the creation of his post and describes some of the issues he has addressed in the past year. Read Justice Thorpe's article.
(last visited May 22, 2006 bgf)
May 03, 2006
China Won’t Relax One-Child Policy
China has indicated that there are no plans to relax its coercive population control policies. Its “one child" policy was introduced in the 1970s with the government pressuring couples to have only one child. Exceptions are made in some cases: of ethnic minorities or rural inhabitants, who may have a second child if their firstborn is a girl. The policy provides financial incentives and punitive fines for those who follow, or fail to follow it. The United States government claims that the policy also has been enforced by forced abortion and sterilization. Source. CNSNews.com. To read the complete story, please click here (last visited May 3, 2006, reo).
April 08, 2006
Swiss Court Says HIV-Positive Woman Must Give Authorities Names of Any Future Sex Partners – Receives Suspended Jail Sentence
A Swiss court imposed a three year jail sentence and then suspended it for one year on an HIV-positive woman. The woman was found to have had consensual unprotected sex, although none of her partners apparently became infected with HIV, and she informed the men of her HIV infection before having sex. The court also ordered her to notify the authorities of the names of her future sexual partners – even if she uses condoms with them. Source. Michael Carter, aidsmap.com. For the complete story, please click here (last visited April 8, 2006, reo).
March 28, 2006
Case Law Development: Visitation Disputes under the International Child Abduction Remedies Act
The United States Court of Appeals for the Fourth Circuit affirmed a trial court's dismissal of visitation claims in a suit under the International Child Abduction Remedies Act. The court held that the Act provides remedies only for violations of the Hague Convention on the Civil Aspects of International Child Abduction. Since the treaty does not address visitation or access issues outside the context of wrongful removal or retention of a child, the federal courts have no jurisdiction under the act. Rather, parties seeking to enforce visitation right should file suit in state courts.
A dissenting judge would have interpreted the act to cover these issues.
Cantor v. Cohen, 2006 U.S. App. LEXIS 6915 (4th Cir. March 21, 2006)
Opinion on the web (last visited March 26, 2006 bgf)
February 24, 2006
Case Law Development: Recognition of Custody Orders of Foreign Countries Required
The Massachusetts Supreme Court holds that a trial court must respect the custody determination of a foreign state so long as that judgment is procedurally comparable to a domestic judgment. The child in this action was born in Trinidad, West Indies and was residing in Boston with Mother. Father, who lives in Trinidad, filed a petition in the Massachusetts court to enforce a Trinidad consent decree that awarded the mother physical custody of the son, but prohibited either parent from taking the son out of Trinidad, except by agreement of the other parent or by court order. The Massachusetts Supreme Court affirmed the trial judge's order for enforcement of the Trinidad consent decree.
The court concluded that both under Massachusetts statutes regarding enforcement of foreign custody orders and under principles of comity, the court was required to respect the foreign order because it was in "substantial conformity" with Massachusetts law. The "substantial conformity" test, requires proof that the foreign court had jurisdiction over the parties and over the subject matter; applied procedural and substantive law reasonably comparable to Massachusetts law; and was based on a determination of the best interests of the child. Finding that the Trinidad court met these requirements, the court could not look further to examine the substance of the underlying order.
Khan v. Saminni, 2006 Mass. LEXIS 33 (February 15, 2006)
Opinion on the web (last visited February 23, 2006 bgf)
January 17, 2006
Case Law Development: Standard of Proof in International Child Abduction Cases
The United States Court of Appeals for the Fourth Circuit reversed a trial court's dismissal of a petition under the International Child Abduction Remedies Act because the trial court had applied the wrong standard of proof. Father had sued Mother under the act, seeking the return of his children to the United Kingdom. He alleged that Mother had violated the Hague Convention on Civil Aspects of Child Abduction by taking the couple’s children to live in the United States. The district court concluded that Father had failed to prove "beyond a reasonable doubt" that the children were "habitually resident" in the United Kingdom at the time of their removal. The court of appeals reversed and remanded for additional proceedings, holding that the court need only establish the children’s habitual residence by a preponderance of the evidence.
Humphrey v. Humphrey, 2006 U.S. App. LEXIS 522 (January 10, 2006)
Opinion available on the web at http://pacer.ca4.uscourts.gov/opinion.pdf/041036.P.pdf (last visited January 13, 2006 bgf)