Family Law Prof Blog

Tennessee's Battle over Online Ordination of Wedding Officiants

From Deseret News:

SALT LAKE CITY — In May, Tennessee became the first state in the nation to explicitly outlaw online ordination for wedding officiants.

This month, it became the first state to have such a law put on hold by a judge.

Despite these firsts, the battle is familiar. For centuries, couples, families and community leaders have argued about the right way to get married.

Read more here.

New Jersey Judge Resigns Amid Lenient Handling of Rape Case Allegations

From New York Post:

The New Jersey judge who refused to try a 16-year-old boy who was accused of rape as an adult — because he comes from a “good family” — has decided to step down, according to officials.

The state Supreme Court granted Judge James Troiano’s request to resign on Wednesday and terminated his services effective immediately.

The longtime family court judge reportedly retired in 2012, but was still hearing cases on a part-time basis in Monmouth County Superior Court.

Read more here.

Netherland’s Tax System Punishment of Families

From Mercatornet:

The Netherlands often prides itself on equality and tolerance, yet, written into the Dutch tax code are profound inequalities that place significantly heavier tax burdens on families with a stay-at-home parent.

In the Netherlands, a traditional family with a sole breadwinner and a stay-at-home mom may be required to pay as much as 557 percent more in taxes than a household with the same income where both spouses work—simply because one of the two parents does not earn wages.

Read more here.

Hasday: Intimate Lies and the Law

Jill Hasday’s new book, Intimate Lies and the Law, is out from Oxford University Press on July 24.  She says that deception within intimate relationships is a fascinating topic—especially when it happens to someone else.

 

For more information, you can check out Jill’s website: https://jillhasday.com/. 

 

Here’s a description of the book:

 

Intimacy and deception are often entangled.  People deceive to lure someone into a relationship or to keep her there, to drain an intimate’s bank account or to use her to acquire government benefits, to control an intimate or to resist domination, or to capture myriad other advantages.  No subject is immune from deception in dating, sex, marriage, and family life.  Intimates can lie or otherwise intentionally mislead each other about anything and everything.

 

Suppose you discover that an intimate has deceived you and inflicted severe—even life-altering—financial, physical, or emotional harm.  After the initial shock and sadness, you might wonder whether the law will help you secure redress.  But the legal system refuses to help most people deceived within an intimate relationship.  Courts and legislatures have shielded this persistent and pervasive source of injury, routinely denying deceived intimates access to the remedies that are available for deceit in other contexts.

 

Jill Elaine Hasday’s Intimate Lies and the Law is the first book that systematically examines deception in intimate relationships and uncovers the hidden body of law governing this duplicity.  Hasday argues that the law has placed too much emphasis on protecting intimate deceivers and too little importance on helping the people they deceive.  The law can and should do more to recognize, prevent, and redress the injuries that intimate deception can inflict.

 

Entering an intimate relationship should not mean losing the law’s protection from deceit.

Forced Marriages of Gay People in the UK

From The Independent:

Gay people are being subjected to forced marriages to spouses of the opposite sex by families in the UK, police have warned amid a national crackdown.

Officers are being stationed at major airports across Britain this week in a bid to prevent victims being taken out of the country and raise awareness of how to seek help.

Read more here.

Weiner: "When a Parent Is Not Apparent"

Merle Hope Weiner (Oregon) has posted to SSRN her paper When a Parent Is Not Apparent, 80 University of Pittsburgh Law Review 1 (2019). Here is the abstract:

Scholars have debated for a long time the rules by which the law should confer parental status for purposes of establishing parent-child relationships. Recently, the discussion has expanded to consider the appropriate definition of parenthood for purposes of triggering inter se obligations between a child’s parents. Such obligations would be imposed as part of a new co-parent, or “parent-partner,” status.

This Article contends that current parentage law works well for purposes of a new parent-partner status. For most children, parenthood is undisputed. For these families, the key question is not who the parents are, but what obligations should be triggered between them because they are parents of the same child. In fact, for most families, the existing law of parentage advances well the objectives of the parent-partner status.

Nonetheless, parentage law is sometimes underinclusive for purposes of a parent-partner status. To address the gaps, particularly for LGBTQ families, this Article recommends the adoption of the Uniform Parentage Act 2017 (“UPA 2017”) instead of some alternatives. This Article also recommends shortening the two-year cohabitation requirement in the UPA 2017’s “holding out” presumption so that some unmarried couples, who lack legal parenthood for both parties but want their parent-partnership to work, can benefit from the parent-partner status.

Finally, this Article considers and rejects the idea that current parentage law is overinclusive for purposes of a parent-partner status. Nonetheless, if such a problem exists, it suggests that the best solution would not be to redefine parenthood. Rather, reformers should adjust the parent-partner obligations themselves or allow parent-partners to opt out of the status by mutual agreement. These alternatives should address the critics’ concerns without detracting from the advantages of a broadly applicable parent-partner status.

IVF Tragedy: Three Women and Two Babies

From BioEdge:

Now this is really complicated, so buckle up. It is an example of the emotional and legal turmoil that can happen when couples put themselves in the hands of IVF clinics.

Let’s start with the CHA Fertility Center. This is an international business with two clinics in Los Angeles and four in South Korea. Its services include egg freezing, LGBTQ fertility treatment, sex selection and surrogacy. California has become a magnet for international fertility treatment because its loose regulation permits sex selection and surrogacy. 

Read more here.

Higdon: "Parens Patriae and the Disinherited Child"

Michael J. Higdon (Tennessee) has posted to SSRN his recent paper Parens Patriae and the Disinherited Child (2019). Here is the abstract:

Most countries have safeguards in place to protect children from disinheritance. The United States is not one of them. Since its founding, America has clung tightly to the ideal of testamentary freedom, refusing to erect any barriers to a testator’s ability to disinherit his or her children—regardless of the child’s age or financial needs. Over the years, however, disinheritance has become more common given the evolving American family, specifically the increased incidences of divorce, remarriage, and cohabitation. Critics of the American approach have offered up solutions largely based on the two models currently employed by other countries: 1) the forced heirship approach, in which all children are entitled to a set percentage of their parent’s estate; and 2) family maintenance statutes, which provide judges with the discretionary authority to override a testator’s wishes and instead award some portion of the estate to the testator’s surviving family members. This Article takes a different approach and looks at the issue of disinheritance through a new lens: the doctrine of parens patriae. Just as this doctrine limits the decision-making autonomy of living parents vis-à-vis their children, this Article argues that it should likewise limit the dead hand control of deceased parents. Focusing on minor children, adult children who remain dependent as a result of disability, and adult children who are survivors of parental abuse, it is the contention of this Article that testamentary freedom must sometimes yield to the state’s inherent parens patriae authority to protect children from harm. Specifically, this Article proposes that courts should refuse to enforce testamentary schemes that disinherit those children if that disinheritance would constitute abuse or neglect. Such an approach is not only mandated by the doctrine of parens patriae but, in contrast to the approaches other countries have adopted, is more deferential to testamentary freedom. The limitations it does impose represent a relatively modest curtailment of the rights testators currently possess and, at the same time, are consistent with existing exceptions to testamentary freedom, most notably those in place to protect spouses and creditors as well as those that prohibit the enforcement of testamentary provisions that violate public policy.

Brito: "The Child Support Debt Bubble"

Tonya L. Brito (Wisconsin) has posted to SSRN her article The Child Support Debt Bubble, 9 UC Irvine L. Rev. 953 (2019). Here is the abstract:

This Article examines the widespread phenomenon of exorbitant child support debt owed by noncustodial fathers in no- and low-income and predominately Black families. Drawing from qualitative data—including a court-based ethnography and in-depth interviews with lawyers, litigants, and judges—this Article explores the inflated and arbitrary nature of the debt, detailing how states utilize family law rules, child support system practices, and court processes to construct burdensome child support arrears that many poor noncustodial fathers will never have the means to pay off. It concludes by arguing that inflated child support arrears should be questioned and challenged.

How Couples Meet

Potential Changes in Northern Ireland

From CNN:

The UK parliament has voted to legalize same-sex marriages and to extend access to abortion services in Northern Ireland, in two historic measures that could bring the region's current laws into line with the rest of the UK.

Lawmakers in London overwhelmingly voted by 383 votes to 73 in favor of legalizing same-sex marriage, and 332 to 99 in favor of abortion reform.

Northern Ireland currently has one of the most restrictive abortion laws in the world, with the procedure carrying maximum sentences of life imprisonment, even in cases of rape, incest and fatal fetal abnormality.

While the 1967 Abortion Act broadly legalized the procedure throughout the rest of the UK (England, Scotland and Wales), it has never been extended to Northern Ireland, where an 1861 law still holds.

 

Decisions on abortion law have historically been the responsibility of the Northern Ireland Assembly, which has a special devolved status from the rest of the UK government.

 

That power-sharing arrangement means nationalists and unionists in the region must work together, with the First Minister and Deputy First Minister leading the executive.

 

In 2017, the NI Assembly collapsed after its governing coalition, the nationalist Sinn Féin party and unionist Democratic Unionist Party (DUP), collapsed.

 

If that regional government fails to regroup before October 21, Tuesday's votes are expected to be implemented into law in Northern Ireland.

 

However, if the NI Assembly does reach a power-sharing agreement before that date, it would be able to approve or repeal the measures.

 

Read more here.

 

 

Ireland: Young People Pushed Out of Family Law System

From The Irish Times

Irish children are being ‘pushed out of a family law system that is crying out for reform’ and where young people’s voices are not heard, according to the head of the Children’s Rights Alliance (CRA).

The majority of calls to the CRA’s helpline, which launched last year, came from children and their parents who feel the opinions of young people are not being taken into account in family law proceedings, chief executive Tanya Ward said.

The first annual report into the helpline and legal advice clinics has called for clearer information to be provided to children who do not understand judgements made in family law cases.

Read more here.

Oregon Passes Most Inclusive Paid Family Leave Law in U.S.

From KOIN 6

A new law that recently passed will give people more freedom with paid family medical leave — a move public health advocates are calling historic.

The social insurance program is a big deal for families because Oregon will soon have the most inclusive law in the country. It will include 100% wage replacement for low-wage workers — and it has an inclusive definition of family, so no matter who you need to care for, you’ll be able to take the time off.

Currently, under Oregon law, people can’t take time off for siblings. With the new law, people will be able to take time off for extended family, non-blood related family and LGBTQ+ chosen family.

“That is truly revolutionary,” Lili Hoag, the political director at Family Forward Oregon and campaign lead for Time to Care coalition, told KOIN 6 News.

Read more here

Paid Family/Medical Leave Signed to Law in Connecticut

From The Houston Chronicle

Connecticut has joined the small and slow-growing group of states that give employees paid leave to care for sick relatives or deal with their own medical conditions.

Seven states and Washington, D.C., now have paid family and medical leave laws that provide for employee and/or employer-funded insurance pools to partially replace workers' wages. Connecticut Gov. Ned Lamont signed legislation on June 25 that calls for a paid leave system to be in place as of January 2022.

Paid family and medical leave laws are separate from laws in 10 states and many large cities that require employers to allow workers to accrue paid sick time. Besides Connecticut and the nation's capital, family and medical leave laws are on the books in California, New Jersey, Rhode Island, New York, the state of Washington and Massachusetts.

Read more here. 

Fox: "Birth Rights and Wrongs"

Dov Fox (San Diego) just published his book Birth Rights and Wrongs, which presses for new ways to vindicate reproductive freedom when people are left with: (1) no baby, after they'd enlisted help to have one; (2) any baby, despite undertaking reliable efforts to avoid parenthood; or (3) a particular baby who's born with different traits than the ones they chose. The book is now available on Amazon and Oxford University Press.

Family Law "Chaos" Puts Pressure on Families

From Visalia Times Delta 

"Chaos" is a common word used to describe the current state of family law in Tulare County's judicial system.
The supervising judge resigned her post earlier this year. She was said to have "revolutionized" the way family drama was resolved.
The team of four is now down to two judges in Visalia.
Caseloads have spiked.

Any matter that's expected to go more than the length of a Disney animated movie is automatically booted to a civil judge — who likely has never heard from either side before. Now, family law attorneys are in revolt, penning a letter that points the finger at one judge — Presiding Judge Brett Alldredge.
Alldredge took over his leading role in January after serving as Judge Bret Hillman's assistant presiding judge.
Attorneys say the changes are dangerous to families who are looking for help.

Read more here 

Family Law "Chaos" Puts Pressure on Families

From Visalia Times Delta 

"Chaos" is a common word used to describe the current state of family law in Tulare County's judicial system.
The supervising judge resigned her post earlier this year. She was said to have "revolutionized" the way family drama was resolved.
The team of four is now down to two judges in Visalia.
Caseloads have spiked.

Any matter that's expected to go more than the length of a Disney animated movie is automatically booted to a civil judge — who likely has never heard from either side before. Now, family law attorneys are in revolt, penning a letter that points the finger at one judge — Presiding Judge Brett Alldredge.
Alldredge took over his leading role in January after serving as Judge Bret Hillman's assistant presiding judge.
Attorneys say the changes are dangerous to families who are looking for help.

Read more here 

States Unsure How To Handle Online Sales Of Abortion Pills

From Reuters:

American women faced with new restrictions on abortions passed by a dozen U.S. states this year are turning to abortion pills from foreign online suppliers, and the states say there is little they can do to stop it.

In the year before many of these new restrictions passed Republican-controlled state legislatures, over 20,000 U.S. women sought the pills online from providers willing to defy U.S. federal rules over sale of the drugs that induce miscarriage.

One of them was Kayla, a 24-year-old Mississippi mother of two who terminated a pregnancy in January. She and her husband decided they could neither afford to raise another child nor get an abortion at the nearest clinic in Memphis, Tennessee.

Read more here. 

Georgia Abortion Provides Bring Suit Against State's "Fetal Heartbeat" Law

From NPR:

Abortion providers have filed a lawsuit seeking to block Georgia's controversial new law that bans abortions when heartbeat activity is detectable, typically about six weeks into a pregnancy — before many women know they're pregnant.

"This is a constitutional challenge" to the law, the plaintiffs say in the lawsuit, which was filed in a U.S. district court in northern Georgia Friday. The suit was backed by the local chapter of the American Civil Liberties Union and Planned Parenthood Southeast.

"This law is an affront to the dignity and health of Georgians," reads the suit, which calls the abortion restriction an attack that is particularly aimed at low-income residents, people of color and those who live in rural areas. Those groups, it states, "are least able to access medical care and least able to overcome the cruelties of this law."

Read more here. 

President's New Policy Might Deprive Unaccompanied Migrant Children Of Protected Status

From Los Angeles Times:

Under a policy set to take effect Sunday, the U.S. government could strip young immigrants of their status as unaccompanied minors, causing them to lose special protections when they apply for asylum and making them more likely to be deported.

The plan is laid out in an internal memorandum sent May 31 by John Lafferty, chief of the asylum division at U.S. Citizenship and Immigration Services, and detailed in subsequent guidance, both obtained by The Times. The shift in policy involves when federal officials determine whether a young migrant is an unaccompanied minor.

Read more here.