Monday, January 19, 2015

Parness: "Parentage Prenups and Midnups"

Jeffrey A. Parness (Northern Illinois University - College of Law) has posted Parentage Prenups and Midnups, Georgia State University Law Review, Vol. 31 (forthcoming 2015) to SSRN.  Here is the abstract:

In July, 2012 the National Conference of Commissioners on Uniform State Laws recommended for enactment in all American states the Uniform Premarital and Marital Agreements Act . Unlike its predecessor, the Act treats “premarital agreements and marital agreements under the same set of principles and requirements.” Like its predecessor, it speaks largely to agreements on property, including money. Unlike its predecessor, it expressly recognizes there may be agreements on “custodial responsibility.”

Custodial agreements are not “binding” on the courts under the Act because parents and prospective parents do not have the power to waive the rights of third parties (their current or future children) or to remove the duty of the courts to protect the best interests of minor children. The Act’s Comment suggests that while such agreements are not always enforceable, they can provide “guidance” to courts. The paper argues that “guidance” on “custodial responsibility” should flow from prenups and midnups even if there is no statute on such agreements and even if any statute is silent as to “custodial responsibility.”

The Act implies there can be guidance within premarital and marital agreements on future child support for existing and future children. It also implies there can be guidance within such agreements to create, have created, or adopt children. States implementing the Act should expressly recognize that prenups and midnups can address child support and child creation as well as child custody.

When might child custody, child support or child creation promises within prenups and midnups be suitable for prospective and current spouses and others? And when might prenups and midnups provide “guidance” to judges? This paper suggests that future and actual stepparents could employ such agreements. Without such agreements, stepparent standing to seek childcare orders is usually less available because of the superior parental rights of existing parents. The paper also suggests that childcare pacts in prenups and midnups can guide other current and future family members (like grandparents, aunts and uncles) who later seek to childcare.

As to child support pacts, superior parental rights and public concerns about children’s interests pose fewer problems than childcare pacts. Childcare by a parent generally is not negatively impacted when additional child support is provided. Public policy does not allow money alone, however, to be the basis for childcare standing.

As to child creation agreements, both superior parental rights and other federal constitutional interests (like paternity opportunity interests), as well as public concerns, are significantly implicated. Statutes and common law rulings already respect certain child creation pacts involving assisted human reproduction outside of prenups and midnups. The paper suggests prenups or midnups on child creation should also guide judicial decisions, sometimes beyond these statutes and rulings.

MR

January 19, 2015 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 18, 2015

SCOTUS Takes on Gay Marriage Case

From the New York Times:

WASHINGTON — The Supreme Court on Friday agreed to decide whether all 50 states must allow gay and lesbian couples to marry, positioning it to resolve one of the great civil rights questions in a generation before its current term ends in June.

The decision came just months after the justices ducked the issue, refusing in October to hear appeals from rulings allowing same-sex marriage in five states. That decision, which was considered a major surprise, delivered a tacit victory for gay rights, immediately expanding the number of states with same-sex marriage to 24, along with the District of Columbia, up from 19.

Largely as a consequence of the Supreme Court’s decision not to act, the number of states allowing same-sex marriage has since grown to 36, and more than 70 percent of Americans live in places where gay couples can marry.

The cases the Supreme Court agreed to hear on Friday were brought by some 15 same-sex couples in four states. The plaintiffs said they have a fundamental right to marry and to be treated as opposite-sex couples are, adding that bans they challenged demeaned their dignity, imposed countless practical difficulties and inflicted particular harm on their children.

The pace of change on same-sex marriage, in both popular opinion and in the courts, has no parallel in the nation’s history.

Read more here.

MR

January 18, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, January 16, 2015

Smith & Pollvogt: "Children as Proto-Citizens: Equal Protection, Citizenship, and Lessons From the Child-Centered Cases"

Catherine E. Smith (University of Denver Sturm College of Law) and Susannah William Pollvogt (Washburn University School of Law) have posted Children as Proto-Citizens: Equal Protection, Citizenship, and Lessons From the Child-Centered Cases, UC Davis Law Review (forthcoming) on SSRN.  Here is the abstract:

The rights of children have recently taken a prominent role in the popular and judicial consciousness. This is largely due to litigation over marriage equality. In authoring the majority opinion in United States v. Windsor, 133 S. Ct. 2675 (2013), Justice Kennedy cited tangible and psychic harm to the children of same-sex couples as a basis for invalidating the federal Defense of Marriage Act. Post-Windsor, myriad state and federal courts similarly have recognized the manner in which state-level marriage bans inflict harm on the children of same-sex couples.

Yet, while courts have recognized the significance of harm to children as a factual matter, they have yet to address its significance as a legal matter. Specifically, they have ignored compelling Supreme Court precedent that directly addresses the equal protection rights of children. This body of law — which we refer to as “the child-centered cases” — unequivocally stands for the proposition that states may not deprive children of benefits in an effort to regulate adult behavior. Marriage bans do exactly this. Such laws deprive the children of same-sex couples the benefit of a legal relationship to one of their parents in an effort to incentivize opposite-sex couples to enter into the institution of marriage. This directly contravenes the legal principle articulated in the child-centered cases.

Thus, at a minimum, the child-centered cases provide a clear legal principle for resolving the same-sex marriage issue. But we contend that these cases offer much more. In particular, in the child-centered cases we see the Court giving greater meaning to equal protection guarantees because it views children as proto-citizens. In this context, the Court recognizes certain substantive rights — namely, public education, family formation, and the right to transfer economic benefits from one generation to the next — as foundational to citizenship, and therefore worthy of special judicial solicitude. The Court recognizes that depriving children of these rights at the beginning of life sets a pattern of marginalization and deprivation that has lasting effects on their ability to develop into full-fledged citizens.

The citizenship theme running through the child-centered cases is significant for several reasons. First, it connects equal protection jurisprudence to the concept of citizenship. Second, it draws attention to the substantive rights associated with citizenship-formation. Third, while the special concerns articulated in these cases are inspired by the fact that the plaintiffs are children, recognizing the interference with the individual’s ability to develop as a citizen can and should be extended to adults as well. In this sense, we are all proto-citizens — citizens in progress — entitled to basic civil rights necessary to thrive in our democracy.

MR

January 16, 2015 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 15, 2015

Prenups

From USA Today:

Talking about money is never easy, especially with someone you love and especially when you're talking about keeping it for yourself.

While we commonly think of prenuptial agreements as contracts for the soon-to-wed wealthy, you don't always enter a marriage with riches, or guarantees that the bliss will last. And even if differences or difficulties don't arise, it might not be a bad idea to have such a plan in place.

Prenuptial agreements, or "prenups," are contracts entered into before marriage that outline the division of assets in case of divorce. They may touch on things like spousal support (alimony), ownership of businesses and properties, and even financial duties and responsibilities during the marriage.

"Since getting into the business and seeing what can happen to family relationships in a divorce, I'm not sure there is an instance where a prenup would be a bad thing," says financial adviser Jeffery Cortright, president of Phase 2 Investment Advisers in Jenison, Mich.

While prenuptial agreements are normally thought of as a matter of assets, there are many other concerns that can be addressed in the contract, such as: the costs of raising a child, caring for a parent or going back to school; shopping habits and matters like credit card debt; the costs and proceeds of business ownership; tax liabilities; spousal and child support from previous relationships; and even how death or disability could affect the finances of your family.

Read more here

MR

January 15, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 14, 2015

Conference Announcement

Engaging the Entire Class:
Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning

 

Register and pay online
(through UCLA website)

"Engaging the Entire Class: Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning" is a one-day conference being presented by the UCLA School of Law and the Institute for Law Teaching and Learning (ILTL) in Los Angeles, California on February 28, 2015.

Conference Structure

The conference will include an opening and closing led by ILTL Co-Directors and Consultants, and five workshop sessions. Each workshop session will be presented by a teacher featured in What the Best Law Teachers Do.

  
 

Workshop presenters include:

·         Patti Alleva, University of North Dakota

·         Steven Friedland, Elon University

·         Steven K. Homer, University of New Mexico

·         Nancy Levit, University of Missouri-Kansas City

·         Hiroshi Motomura, UCLA

By the end of the conference, participants will have concrete ideas for enhancing participation and inclusion in law school classrooms to take back to their students, colleagues, and institutions.

Who Should Attend

This conference is for all law faculty (full-time and adjunct) who want to learn about enhancing participation and inclusion in law school.

Conference Schedule

All Sessions will take place at the UCLA School of Law on Saturday, February 28, 2015.

·         8:00-8:40 a.m.: Registration and Continental Breakfast

·         8:40-9:00 a.m.: Welcome and Opening

·         9:00-10:00 a.m.: Workshop 1

·         10:00-10:20 a.m.: Break

·         10:20-11:20 a.m.: Workshop 2

·         11:20-11:40 a.m.: Break

·         11:40 a.m.-12:40 p.m.: Workshop 3

·         12:40-1:30 p.m.: Lunch

·         1:30-2:30 p.m.: Workshop 4

·         2:30-2:50 p.m.: Break

·         2:50-3:50 p.m.: Workshop 5

·         3:50-4:10 p.m.: Break

·         4:10-4:30 p.m.: Closing

·         4:30 p.m.: Adjourn

Registration Fee

Through February 12, 2015

·         $250 - General Attendance

·         $100 - Gonzaga University, University of Arkansas Little Rock, or Washburn University full/part-time faculty

·         $0 - UCLA Law full/part-time faculty (registration required)

After February 12, 2015

·         Registration is on-site only

·         $300 - General Attendance

·         $300 - Gonzaga University, University of Arkansas Little Rock, or Washburn University full/part-time faculty

·         $0 - UCLA Law full/part-time faculty (registration required)

Registration fee includes:

·         all materials, and

·         breakfast, lunch, and snacks.

Location

Conference activities will be held at UCLA School of Law, 385 Charles E. Young Drive East, 1242 Law Building, Los Angeles, California 90095 (Directions and Maps).

Transportation

Participants are responsible for their own travel arrangements to the conference.

Lodging

A block of rooms has been reserved until January 25, 2015 for the nights of February 27 and February 28 at:

·         UCLA Guest House
330 Charles E. Young Dr. East
Los Angeles, CA 90095
$177.00: queen bed
$182.00: queen bed with kitchenette
$182.00: queen bed with twin bed

Make reservations by calling the hotel directly at (310) 825-2923 and mentioning that you are participating in the UCLA School of Law's "Institute for Law Teaching and Learning Conference at UCLA".

Please note: UCLA Guest House offers complimentary continental breakfast each morning but is not a full-food service hotel - meaning that they do not provide the service of ordering food via room service, and there is not a lobby restaurant. There are, however, many restaurants in Westwood Village, which is less than a 15 minute walk from the hotel. Also: On-site parking at the Guest House is free, but limited, on a first-come, first-served basis. If the hotel parking lot is full, the Guest House sells parking passes for the closest UCLA parking structure number 3.

Register and pay online
(through UCLA website)

January 14, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 13, 2015

Stay-At-Home Dads

From the Atlantic:

This past summer, on the last day of my clerkship with Justice Ruth Bader Ginsburg, she rose from her cavernous desk and, following a hearty goodbye hug, asked me what was next. I told her that the next morning marked the start of my new job as a stay-at-home dad. She smiled warmly and wished me luck.

...

The Boss (as clerks tend to refer to their justices at the Court) was legendary in her ability to navigate these obstacles with deftness and grace. At Harvard Law School in the 1950s, she was one of a handful of women in her class. Then-Dean Erwin Griswold, who later served as solicitor general under Presidents Johnson and Nixon, famously challenged the Boss, at a (small) dinner he held for the women students, to justify her presence at the school when the spot could have gone to a man. (Fifty-one years later, when I attended my own welcome dinner for incoming Harvard Law students, my dean was future Justice Elena Kagan, the first woman to hold that position at the law school. She chatted with us about the Red Sox pennant race and a tricky issue of federal civil procedure.)

Read more here.

MR

Hat Tip: Gregg Strauss

January 13, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, January 12, 2015

Marriage Rates

From Today:

The New York Times looked closely at those numbers and reported: “Those who married in the 2000s are so far divorcing at even lower rates. If current trends continue, nearly two-thirds of marriages will never involve a divorce, according to data from Justin Wolfers, a University of Michigan economist (who also contributes to The Upshot).”

This means we need to update how we think of marriage. It’s no longer accurate to casually proclaim that 50 percent of marriages end in divorce. 

Whelan says there are many factors contributing to lower divorce rates. People are getting married later in life, which often means they are more financially stable. Birth control reduces the chance of surprise babies. But there is also a diverging trend in marriage, she says.

“It turns into the marriage ‘haves’ and ‘have nots’,” she says. “On the one hand we have educated people who are marrying at [high rates].”

But, on the other hand: “If you are less educated and affluent you are more likely to cohabitate," says Whelan. Not that this means an end to marriage.

“Fewer lower-income folks, I believe, are getting married now than in the past,” she says. Marriage used to be something everyone did regardless of class. Now that living together seems less shocking, some people have less incentive to tie the knot. And some women don’t see the economic advantage to marrying and simply don’t.   

When cohabitating couples break up, which can be just as disruptive as divorce, these numbers don’t make it into the divorce rates.

Read more here.

MR

January 12, 2015 | Permalink | Comments (0) | TrackBack (0)

Saturday, January 10, 2015

Privacy in Divorce

From Forbes:

By any measure, divorce exacts a heavy toll. Financial, emotional and logistical matters are invariably complicated by shifting family dynamics and factual disputes. In many cases, the only thing most separating parties can immediately agree on is the need to shield children from the ugliness of the process. For celebrities and other ultra-wealthy clients, this often means preserving the family’s good name and legacy for future generations.

“Celebrity clients nearly always arrive at a settlement rather than going to trial. After legal costs, privacy concerns are probably the biggest reason why,” according to Judith L. Poller, partner and co-chair of the Family Law Group at Pryor Cashman LLP. “While in New York, there is an expectation of privacy in court filings, unfortunately it has become apparent that this expectation is no longer a forgone conclusion, even when both parties agree that confidentiality is in the best interests of children”.

Read more here.

MR

January 10, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, January 9, 2015

Child Support Enforcement in Indiana

From RTV6:

Some county prosecutors in Indiana have begun hiring their own child support investigators with law enforcement powers as a more aggressive way to find child support fugitives.

Counties employing this approach said it is getting results to address a multibillion-dollar problem in Indiana, Call 6 Investigator Kara Kenney reported.

Read more here.

MR

January 9, 2015 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 8, 2015

Child Support Payor Victim of Statutory Rape

From USA Today:

Nick Olivas became a father at 14, a fact he wouldn't learn for eight years.

While in high school, Olivas had sex with a 20-year-old woman. As he sees it now, she took advantage of a lonely kid going through a rough patch at home.

State law says a child younger than 15 cannot consent with an adult under any circumstance, making Olivas a rape victim. Olivas didn't press charges and says he didn't realize at the time that it was even something to consider.

The two went their separate ways. Olivas, now 24 and living in Phoenix, graduated from high school, went to college and became a medical assistant.

Then two years ago, the state served him with papers demanding child support. That's how he found out he had a then-6-year-old daughter.

Read more here.

MR

January 8, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 7, 2015

Gender & Child Support

From Time:

The latest celebrity tussle over child support has an unusual twist. The parent seeking a reduction in child-support payments is the mother, Oscar-winning actress Halle Berry. The parent collecting the checks is her ex-boyfriend, French-Canadian fashion model Gabriel Aubry, who shares custody of their 6-year-old daughter Nahla. The gossip website TMZ reports that Berry has petitioned the judge overseeing the couple’s custody arrangement to reduce the monthly child-support payment of $16,000 to just $3,000, alleging that Aubry is refusing to get a job. Is this what equality looks like? Sometimes, it is—though the reactions to this skirmish show that a double standard definitely persists when it comes to men “living off” women.

...

Would a woman collecting a lot of child support from her wealthy ex be derided as a lazy bum? Certainly not. (She might be attacked as a greedy vixen, but such attacks would likely be seen as misogynist.) For all the feminism-inspired changes in cultural beliefs about what it means to be a woman or a man, the idea that providing for one’s family is an essential part of masculinity has endured. While 40% of mothers in the U.S. are now their family’s primary breadwinner—including nearly a quarter of married moms—nearly a third of Americans still agree it’s best for everyone when the man provides for his family. One person’s Mr. Mom is another’s Mr. Bum.

Read more here.

MR

January 7, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

Child Support Enforcement in Virginia

From Washington Post:

A slow-moving but seismic shift is taking hold in Virginia’s child support enforcement community of judges and lawyers and case managers. That shift, still underway, has seen the rise of new partnerships between child support enforcement, the courts, social service agencies and fatherhood programs seeking to figure out what’s keeping parents from paying the child support they owe. And then — this is the seismic part — helping those parents  address their issues instead of locking them up. The state’s Intensive Case Monitoring Program joins a national movement nearly a decade in the making in which problem-solving measures in child support enforcement have been replacing punitive ones.

As they say in child support, there is a difference between deadbeat and dead-broke, and discerning it is key. Civil contempt is meant to coerce a parent to pay and get out of jail, says Craig Burshem, the director of Virginia’s Department of Social Services Division of Child Support Enforcement. “It’s not meant to be a debtor’s prison.”

Read more here.

MR

January 6, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, January 5, 2015

Parental Autonomy or Neglect?

From USA Today:

The parents of three young children are petitioning child protective services, saying the state of Washington unlawfully removed the children from their home after the mother gave birth to the two youngest in an unassisted home delivery.

However, child protective services countered that a home delivery alone would not trigger intervention.  Read more here.

MR

January 5, 2015 | Permalink | Comments (0) | TrackBack (0)

Saturday, January 3, 2015

New HBO Show

From CBS News:

Sarah Jessica Parker is reportedly posed for a return to HBO, a decade after finishing her run on the network as Carrie Bradshaw in "Sex and the City."  Play Video Sarah Jessica Parker on shoe line: "I wanted a shoe that I would be proud offering"  HBO is nearing a deal for a new comedy called "Divorce" that would likely star and be produced by Parker, according to The Hollywood Reporter.

Read more here.

MR

January 3, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, January 2, 2015

Divorce City

From the Washington Post:

He’s a fabulously wealthy fashion tycoon. She’s a former Miss Malaysia with an Imelda Marcos-scale shoe fetish.

They have homes in five countries and, after 43 years of marriage, share one big problem: They can’t agree on where to get divorced.

So for the past two years, Tan Sri Khoo Kay Peng and Pauline Chai have been slugging it out in the courts, spending millions of dollars in legal fees to decide where they’ll ultimately divide the hundreds of millions left in the bank: Malaysia or England.

Read more here.

MR

January 2, 2015 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 1, 2015

Happy New Year!

wreath10

January 1, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 31, 2014

Pet Custody

From the Las Vegas Review-Journal:

Family law attorney Mandy McKellar valued her cats so much that she included them in a prenuptial agreement with her husband — “just in case.”

By the time they divorced this summer, the couple also had acquired two dogs. Now all five pets live with McKellar in her Las Vegas home, although she has offered to let her ex-husband take the cat they adopted.

“He can come back and get her at any time,” McKellar said of the cat. “She hates the dogs.”

Although McKellar and her husband went through an uncontested divorce, lawyers and judges who handle Family Court cases know that breakups often turn bitter. Couples fight over their children, their houses, and yes, even their pets.

The American Academy of Matrimonial Lawyers announced in February that 27 percent of the respondents in a recent survey had noticed an increase in the number of couples who fought over custody of a pet during the previous five years. Most of the time, those disputes involved a dog.

Read more here.

MR

December 31, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 30, 2014

Burma's Proposed Family Law

From Human Rights Watch:

Burmese President U Thein Sein and National Assembly Speaker U Thura Shwe Mann should reject proposals for discriminatory marriage legislation that would strip Buddhist women of the right to freely choose whom they marry, Human Rights Watch said today.

...

The proposed law, seen by Human Rights Watch, restricts Buddhist women to marrying only Buddhists. It requires individuals holding other religious beliefs to convert to Buddhism before marrying a Buddhist, and seek written parental consent of the bride. The proposed law also sets out a 10-year prison sentence and confiscation of properties of any non-Buddhist who seeks to marry a Buddhist in violation of the law.  

Read more here.

MR

 

December 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, December 29, 2014

Census Data Changing?

From Pew:

The Census Bureau has proposed dropping a series of questions about marriage and divorce from its largest household survey of Americans, touching off a debate about the usefulness of such data.

Since 2008, the bureau’s American Community Survey has asked a subset of the U.S. population about their relationship status, including whether they have been married, widowed or divorced within the past year. The survey also asks how many times a person has been married and when he or she last got married, which can be used to look at marital stability.

The bureau proposed eliminating these questions, and two others, in part because it is under pressure from Congress to justify every question on the survey, which some political conservatives would like to eliminate because they say that it invades people’s privacy. But two vocal groups — academic researchers and some conservative advocates for heterosexual marriage — say it is important to have the data in an era when marriage is declining.

The proposal is open for public comment through Dec. 30. The agency will then review the feedback and send a recommendation to the Office of Management and Budget, which makes the final decision. Any changes would take effect in 2016.

Read more here.

MR

December 29, 2014 | Permalink | Comments (0) | TrackBack (0)

PA's Child Custody Standards

Read a review of Pennsylvania's child custody standards, changed back in 2010, here.

MR

December 29, 2014 | Permalink | Comments (0) | TrackBack (0)