Family Law Prof Blog

Chambers Armstrong: "Just a Place or a Just Place: Domestic Violence, Urban-Rural Differences, and Access to Justice"

Cassie Chambers Armstrong (University of Louisville) has recently posted to SSRN her paper Just a Place or a Just Place: Domestic Violence, Urban-Rural Differences, and Access to Justice, forthcoming Kentucky Law Journal.  Here is the abstract:

This Article examines rural court systems to understand how they are serving survivors of domestic violence. It does so by gathering quantitative data about civil protective order proceedings from over one hundred courtrooms across more than seventy-five counties. Specifically, it examines the rate of legal representation, provision of non-court resources and information, the structures of a given court system (open or closed docket, virtual or in-person attendance, dedicated family court or not), and patterns of judicial discretion. For each variable, this Study asks: Are outcomes different in a rural community?

The answer is, resoundingly, yes. Domestic violence survivors navigating rural court systems are less likely to be represented by counsel, and courts are less likely to provide them with information about supportive resources. They are less likely to have access to a dedicated family court judge and unlikely to have a judge enter ancillary orders to address issues of child custody or child support. They are less likely to have meaningful access to virtual court options and more likely to have a court hear their petition in open court instead of a closed proceeding.

These findings, and others, suggest rural survivors face unique challenges in obtaining civil protective orders compared to their urban counterparts. Additionally, these data show that all survivors—whether in urban or rural areas—face barriers navigating court systems. Collectively, these results call for place-based study and policy interventions to ensure that all survivors can seek meaningful justice in the courts.

Marriage Increasingly Protects Against Deaths Of Despair

From Institute for Family Studies:

Vice President-elect J.D. Vance’s memoir, Hillbilly Elegy, documents the toll of economic stagnation on working-class communities across America. Especially among workers with only a high school education, the growth in real median earnings has been slow. Economic stagnation, coupled with the increased availability of prescription opioids for pain, has contributed to an increase in 'deaths of despair'—deaths from drug or alcohol overdose, suicide, or alcoholic liver disease caused by heavy drinking—particularly among less-educated white men. Between 2005 and 2019, an average of 70,000 Americans each year lost their lives this way. New research from Hangqing Ruan, Melody Ge Gao, Yajie Xiong, and Philip N. Cohen shows that between 2000 and 2021, age-adjusted mortality rates increased 1.1% per year for suicide, 2.2% per year for alcohol, and 9% for drug overdose.

Read more here.

USCIS Updates Guidance on Determining Custody for Children Acquiring U.S. Citizenship

From the USCIS:

U.S. Citizenship and Immigration and Services is issuing guidance regarding the legal and physical custody requirements for purposes of acquisition of U.S. citizenship under section 320 and naturalization under section 322 of the Immigration and Nationality Act (INA). We are also expanding guidance on derivation of citizenship before the Child Citizenship Act of 2000, under former INA section 321.

The update clarifies and expands the current guidance on determining legal and physical custody of children of U.S. citizens for acquisition of citizenship purposes. Specifically, the updated guidance:

• Expands guidance on when USCIS considers a child to be in the legal custody of the U.S. citizen parent, clarifies the effect of a nunc pro tunc (retroactive) correction of a custody order, and clarifies when USCIS may recognize private custody agreements;
• Clarifies that USCIS considers a U.S. citizen parent who has actual uncontested custody of a child to have legal custody for purposes of acquisition of citizenship when there is no judicial determination on legal custody and the relevant jurisdiction’s law does not determine which parent has legal custody of the child;
• Provides that a U.S. citizen parent has physical custody of a child when the child resides or physically lives with the parent;
• Expands guidance on adjudicating derivation of U.S. citizenship claims before the Child Citizenship Act of 2000, by providing detailed clarification on each of the requirements of former INA section 321, including the legal custody requirements; and
• Clarifies that USCIS cannot issue a Certificate of Citizenship to any applicant who does not take the Oath of Allegiance and is not eligible for a waiver of the oath.

This guidance is effective immediately and applies to applications pending on or after Nov. 19, 2024.

Read more here.

A Psychologist Reveals The 4 Types Of People Considering A Divorce

From Forbes:

Divorce is a deeply personal, complex and overwhelming decision. For some, it stems from intense conflict; for others, it’s a slow drift apart. A 2021 study published in the Journal of Marital and Family Therapy sheds light on this decision-making process, revealing four distinct types of individuals contemplating divorce, each with unique approaches to addressing their marital struggles.

Here are the four types of people who think about getting a divorce, and how they go about trying to save their marriage, according to the study.

Read more here.

Quebec halts most international adoptions amid human trafficking concerns

From CBC News:

The Quebec government has suspended most new international adoption applications, echoing moves by other jurisdictions that are rethinking the once-common practice because of human rights and trafficking concerns.

Quebec's decision is part of a global "culture change" in recent years as countries have become aware of serious shortcomings in the way many adoptions are carried out, Anne-Marie Piché, a professor in the social work department at the Université du Québec à Montréal who studies adoption, said in an interview Monday.

Despite international agreements that theoretically impose strict rules, "there are countries that have gaps in their adoption procedures," she said. In some cases, she added, "the children don't have their truthful information collected, for example on their parents, on the real reasons for placement, on their circumstances of birth."

As well, she said, mothers are sometimes coerced into signing a document to give up their child, children are falsely reported as abandoned or adoptions are quickly approved for financial gain.

Quebec's system, the province said in a Nov. 27 news release, needs to be reinforced to ensure that adoptions are free of illegal practices, including abductions, sales and trafficking of children.

Read more here.

Protecting Primary Parental Authority from Institutional Challenges

From The Heritage Foundation:

Parental rights—once understood to be preeminent in civic life—have become a flashpoint2

So contentious is the notion of “parental rights,” that in October 2021, U.S. Attorney General Merrick Garland released a memorandum calling on federal agencies to work with states on “strategies for addressing threats against school administrators, board members, teachers, and staff” in response to the increasing number of parents protesting the inclusion of, among other things, sexually graphic material in public schools. See Memorandum for Director, Federal Bureau of Investigations, Dir. of the Exec. Office for U.S. Att’ys, Assistant Att’y Gen. of the Crim. Div., and U.S. Att’ys (Oct. 4, 2021), https://www.justice.gov/ag/file/1170061-0/dl?inline=. That year, a group of parents based in Michigan and Virginia filed a lawsuit against the Department of Justice over the memo, arguing that the intention of the guidance was to censor parents—especially those espousing conservative views. The appeal reached the U.S. Supreme Court, but the Court declined to hear the case on October 7, 2024. See also John Fritze, Supreme Court Won’t Hear Case from Parents Fighting Justice Department Memo on School Board Threats, CNN (Oct. 7, 2024), https://www.msn.com/en-us/news/other/supreme-court-won-t-hear-case-from-parents-fighting-justice-department-memo-on-school-board-threats/ar-AA1rPQnF?ocid=BingNewsSerp.

 in American politics and public discourse. In increasing measure, educational, medical, and child welfare institutions have begun to see parents as a hostile threat to their mission and the purported autonomy of minor children, rather than the best source of information on and care of those minor children.

Evolving cultural norms now see children as “community property,” a perspective advanced publicly in 2013 during a controversial MSNBC interview with political scientist Melissa Harris-Perry, who noted: “[W]e have to break through our kind of private idea that kids belong to their parents or kids belong to their families and recognize that kids belong to whole communities.”3

MSNBC Ad: Kids Don’t Belong to Their Parents, Kids Belong to Communities, RealClear Politics (Apr. 8, 2013), https://www.realclearpolitics.com/video/2013/04/08/msnbc_ad_kids_dont_belong_to_their_parents_its_collective_responsibility.html.

 As recently as 2022, President Joe Biden echoed this sentiment, remarking at a “Teacher of the Year” ceremony that minor students are “all our children.”4

Alec Schemmel, “They’re All Our Children”: Biden Emboldens Teachers Amid Debate About Parental Rights, Nat’l Desk (updated Apr. 28, 2022, 3:27 PM), https://thenationaldesk.com/news/americas-news-now/theyre-all-our-children-biden-emboldens-teachers-amid-debate-about-parental-rights.

 But a collectivist notion of who bears primary authority for the upbringing of children defies the fact that parental rights are both primary and pre-political.5

See Melissa Moschella, Parental Rights: A Foundational Account, Heritage Found. Backgrounder No. 3568 at 4 (Dec. 2020), https://www.heritage.org/education/report/parental-rights-foundational-account.

The notion that parents are the primary authority for their children’s education and welfare is one rooted in biology, the nature of the parent–child relationship, and the centuries-old recognition of the family as the very foundation of a flourishing society.6

Id.

 In increasing measure, however, parental rights are threatened to an unprecedented degree.7

For example, a recent law review article argues that the “new parents rights” movement has resulted in unrestricted parental authority over a child’s education and that these rights allow parents to “indoctrinate” their children with anti-egalitarian views that harm democracy. The author further suggests that parental rights advocates should recognize the collective role of the parent, educator, and state in a child’s education and embrace their shared decision-making authority to promote and defend the public good. See Kristine L. Bowman, The New Parents’ Rights Movement, Education, and Equality, 91 U. Chi. L. Rev. 399 (2024) (emphasis added). The author continues that “although prioritizing parents as decision-makers fosters viewpoint diversity in the short term by enabling families to more easily pass along their worldviews to their children, it also feeds polarization because the state’s interests in creating a shared civic identity, incorporating a range of worldviews, and creating citizens that perpetuate democracy, are not part of decisions about children’s education (or if they are, it is coincidental that parents share these interests).” Id. at 400 (emphasis added). She concludes that she is “concerned…when parents’ rights supplant the rights of the state, professional educators, and arguably students.” Id. at 433. These are positions both ahistorical and wholly ignorant of the Supreme Court and federal courts’ edicts on the primacy of the parental right.

Read more here.

Gordon & Eubanks: "Effective Instructional Design for Co-Parenting Programs"

Dr. Don Gordon and Mike Eubanks, M.Ed. recently presented their research findings regarding how effective instructional design plays a critical role in ensuring parents retain key co-parenting skills, at the 2024 AFCC Conference. 

Their Abstract is as follows:

Since the pandemic, online instruction has proliferated. Quickly getting instructional material out with online programs, including Zoom classes, often meant principles of instructional design were not considered. In the field of co-parenting education, online programs appeared to be developed without knowledge of effective instructional design. The consequences have been that parents were not able to retain the information soon after the classes ended. Since teaching skills have been identified as more important and effective than providing information, the methods used to teach skills are varied and most do not follow best instructional design practice.

Read the full study here. 

Willis: "A Game Theory View of Family Law: Divorce Planning for a 500% 'Family-Tax'"

Steven J. Willis (University of Florida) has recently posted to SSRN his paper A Game Theory View of Family Law: Divorce Planning for a 500% "Family-Tax", 18 FIU L. Rev. 151 (2023).  Here is the abstract:

Divorces involve money, which can prompt fierce legal battles. These include family obligations for child support, alimony, and property division. Small income changes can have huge consequences. For example, a $1,000 income increase can result in $5,000 of increased family obligations. A $10,000 increase can produce $50,000 of obligations. Or a $10,000 decrease can result in $50,000 of reduced obligations.

Seymore: "Obituary For the Birth Certificate"

Malinda L. Seymore (Texas A&M University School of Law) has recently posted to SSRN her paper, Obituary For the Birth Certificate.  Here is the abstract:

Have birth certificates outlived their usefulness? Birth certificates establish an individual’s name, identity, age, race, sex and gender, parental authority, and citizenship. In addition, the information collected at the time of birth and reflected on a long-form birth certificate provides data for public health policy, population statistics, internal migration, government planning and resource allocation. Birth certificates are also the all-access pass to American life, necessary for many functions of modern life: registering a child in school, signing a child up for soccer, getting a driver’s license and passport, enlisting in the military, and applying for government benefits. All of this, for a simple and ubiquitous government document, is a lot. And some of these functions are contradictory, producing confusion and uncertainty about family connections, citizenship and identity.

Using birth certificates in adoption as a case study, this article examines the contradictions inherent in relying on birth certificates to do too much. By examining the history and myriad functions of birth certificates, particularly in the context of adoption, this article illustrates the ways our current regime of birth certificates creates inefficiencies, confusion and outright deception. It proposes the disaggregation of the functions of birth certificates to reflect more accurately the valuable truths needed from this most-important government document. In particular, this article suggests an alternative to birth certificates – a series of narrowly tailored government documents, including a certificate of parental authority – to reflect more accurately the reality of today’s more complex lives and families.

2 ‘Marriage Realities’ That You Need To Accept—By A Psychologist

From Forbes:

Modern society has idealized the concept of marriage to the point where many people enter it with rose-colored glasses. The reality, however, is that it isn’t always a seamless, harmonious passage.

Marriage is beautiful, yes, but it’s also rife with complications. For those who aren’t therapists or counselors, the classic conflicts that arise—often sooner than later—can feel like an unwelcome surprise. And, if you’re unprepared, these challenges can be just as jarring years down the line.

To truly thrive in your relationship, you need to accept two key marriage realities first. Once you embrace them, you’ll find yourself better equipped to handle the inevitable ebbs and flows—and to take them in stride.

Read more here.

Moscow bans adoption of Russian children to countries that allow gender transition

From AP News:

Russian President Vladimir Putin on Saturday signed into law a bill banning adoptionof Russian children by citizens of countries where gender transitioning is legal.

The Kremlin leader also approved legislation that outlaws the spread of material that encourages people not to have children.

The bills, which were previously approved by both houses of Russia’s parliament, follow a series of laws that have suppressed sexual minorities and bolstered longstanding conventional values.

Russian lower house Speaker Vyacheslav Volodin, who was among the new bill’s authors, said in a Telegram post in July that “it is extremely important to eliminate possible dangers in the form of gender reassignment that adopted children may face in these countries.”

The adoption ban would apply to at least 15 countries, most of them in Europe, and Australia, Argentina and Canada. Adoption of Russian children by U.S. citizens was banned in 2012.

Read more here.

Happy Thanksgiving!

Happy Thanksgiving!

Cheating on your spouse is no longer a crime in New York, with the repeal of a little-known 1907 law

From AP News:

New York on Friday repealed a seldom-used, more than century-old law that made it a crime to cheat on your spouse — a misdemeanor that once could have landed adulterers in jail for three months.

Gov. Kathy Hochul signed a bill repealing the statute, which dates back to 1907 and has long been considered antiquated as well as difficult to enforce.

“While I’ve been fortunate to share a loving married life with my husband for 40 years — making it somewhat ironic for me to sign a bill decriminalizing adultery — I know that people often have complex relationships,” she said. “These matters should clearly be handled by these individuals and not our criminal justice system. Let’s take this silly, outdated statute off the books, once and for all.”

Adultery bans are actually law in several states and were enacted to make it harder to get a divorce at a time when proving a spouse cheated was the only way to get a legal separation. Charges have been rare and convictions even rarer. Some states have also moved to repeal their adultery laws in recent years.

Read more here.

Baylor Law Launches Family Law Clinic

I'm excited to announce the launch of the Family Law Clinic at Baylor Law! Over the past year, I've worked to prepare and get the clinic ready for its first session and it officially launched at the beginning of October. The clinic provides legal advice and drafting assistance to self-represented litigants in uncontested divorce and custody (SAPCR) cases, enforcement proceedings, name change proceedings, and temporary restraining orders (for family law) to be filed or currently pending in McLennan County. 

I am honored to serve as the Director for the clinic and grateful to the Texas Bar Foundation for providing the grant funding to ensure the clinic's success. 

More information about the clinic is available here. 

 

Women fear Republicans will move to overturn no-fault divorce laws

From the Washington Post:

Susan Guthrie first noticed attacks on no-fault divorce gaining traction among conservative commentators in spring of 2023, recalling when right-wing YouTuber Steven Crowder "went into a rage" over the Texas no-fault divorce law that allowed his wife to leave him against his wishes.

Since then, Guthrie, a family law and mediation attorney who hosts the popular "Divorce and Beyond" podcast, has heard growing attacks on no-fault divorce from conservatives. She focused on the issue in her Monday episode - just before the simmering fears among some women exploded into view on Election Day.

"Though many people don't realize it, the effort to end no-fault divorce has a disproportionate effect on women," Guthrie said. "I think we need to pay attention to it, because a lot of things we didn't think would happen- like Roe being overturned - did happen. The voices are going to get louder with the results of this election."

Marcia A. Zug, who teaches family law at the Rice School of Law at the University of South Carolina, said the shifting political winds indicate efforts to end no-fault divorce "are absolutely on the table."

"This is easier to get rid of than abortion rights," Zug said. "Obviously the biggest indication is if state legislatures start proposing it. Five years ago, no one was."

Read more here.

State Spotlight: Maine Did Not Comply With Screening, Assessment, and Investigation Requirements for Responding to Reports of Child Abuse and Neglect

From The Department of Health and Human Services OIG:

Why OIG Did This Audit

• • Abuse and neglect against a child by a parent, caregiver, or another person can have a long-term impact on the child’s health, opportunity, and well-being. Abuse can be physical, sexual, or emotional in nature. Neglect is a failure to meet the child’s basic needs, such as housing, food, clothing, education, and access to medical care.
  • This audit is part of a series that examines States’ compliance with the requirements of the Child Abuse Prevention and Treatment Act for the immediate screening, risk and safety assessment, and investigation of reports of child abuse and neglect. Based on our risk assessment and a report by Maine’s Child Welfare Ombudsman that identified substantial issues where there was a deviation from best practices or adherence to policy or both that had a material effect on the safety and best interests of the children, or rights of the parents, we selected Maine for our first audit.

What OIG Found

On the basis of our sample results, we estimated that 94 percent of child abuse and neglect reports reviewed were not in compliance with 1 or more requirements related to immediate screening, risk and safety assessment, and investigation.

Read more here.

Unregulated experts can cause harm to children in family courts

From University College London:

The study, published in the Journal of Social Welfare and Family Law, describes three devastating cases where older children (aged nine to 17) were removed from their mothers against their will, and were forced to live with their fathers despite allegations and sometimes court findings of abuse.

These family court orders were made on the advice and guidance of unregulated experts who proposed to have identified so-called “alienation” – or that the mother was manipulating the children and had unjustly turned them against their father.*

In one of the cases analysed, two children were removed from their mother to live with their father and undergo a “therapeutic residential reunification plan”. The children, who had described coercive and controlling behaviour from the father, escaped in the middle of the night by smashing and jumping through a first-floor window.

In another court case, two children were forced to live with their father and saw contact restricted with their mother despite a previous court having determined that their father had been “coercive and controlling”.

The author Dr Sonja Ayeb-Karlsson (UCL Risk & Disaster Reduction, UCL Everyday Disasters and Violences Research Group) said: “In these shocking cases, the children expressed clear wishes to stay with their mother but were ignored. Once they had been labelled as ‘alienated’, they ended up legally entrapped with their voices silenced and thereby unable to influence proceedings determining their lives.

Read more here.

State Spotlight: North Dakota: Studies find high participant satisfaction, declining settlement rate with mediation program

From the State of North Dakota Courts: 

A recently completed survey of participants in the Family Law Mediation Program found satisfaction with mediators and the program remain high, although the average settlement rate has declined in recent years.

The Family Law Mediation Program was launched in 2008 and provides up to 6 hours of mediation to parties to resolve issues of parenting rights and responsibilities, as well as grandparent visitation matters.  The historical average settlement rate for the program is 74%.  The most recent review of settlement rates was conducted in 2022 found that the rate of settlement had dropped to 71%. 

The percentage of cases that re-open within 3 years from a settlement is an indication of how successful the agreement has been.  The average statewide re-opened rate for cases prior to 2008 was 27%.  A follow-up study of the program in 2013 found that the statewide average for re-opened rates had dropped to 18%. The 2022 review found that the re-open rate remains steady at 17%.

The participant survey, which concluded at the end of October, found an overall satisfaction rate of 93%, compared to the historical average satisfaction rate of 87%.  

The Family Law Mediation Program is mandatory for all newly filed cases where parenting time or parenting responsibility are contested.  There is no cost to the parties.  If a case is re-opened to consider parenting time or parenting responsibility issues, a judge may refer the case to the mediation program for up to 6 hours of service, at no cost to the parties. A 2015 study of district court post-judgment motions handled through mediation found a 79% settlement rate.

Since its inception, the program has received 16,991 referrals and accepted 10,071 cases.

In 2020, the court launched an expedited mediation program. This program differs from the Family Law Mediation Program in that a party can request expedited mediation without having to file a motion with the court. To qualify, there must be a North Dakota parenting time order, parenting plan, or court-ordered visitation schedule in place.  Mediation is expected to be completed within 7 days of the referral.  The service is voluntary and free to the parties.  Since its inception 308 cases have been referred to the program. Of those, 152 cases were accepted into the program. The number one reason a case is not accepted into the program is that the other party declined to participate. The average settlement rate for the program is 63%. 

Rule 5 of the Rules of Appellate Procedure provides for post-judgment mediation services for cases on appeal that include parenting time or parenting responsibility issues. The service is voluntary and provides for up to 6 hours of mediation at no cost to the parties.

Read more here.

Boyle, Regoeczi, Meyer: "State Divorce Laws, Reproductive Care Policies, and Pregnancy-Associated Homicide Rates, 2018-2021"

From JAMA:

Importance  Barriers to divorce and reproductive health care can threaten the health and safety of pregnant and recently pregnant females.

Objective  To examine state laws about divorce, reproductive health care (access to contraception, family planning services, and abortion), and pregnancy-associated homicide rates in US states over a 4-year period (2018-2021).

Design, Setting, and Participants  In this cross-sectional study, bivariate tests and regressions were used to analyze crude rates of pregnancy-associated homicide from the National Violent Death Reporting System in 181 state-years for calendar years 2018 to 2021, with analyses conducted on September 8, 2024.

Exposures  Access to divorce while pregnant and reproductive health care over a 4-year period in the US.

Main Outcomes and Measures  Primary outcomes (pregnancy-associated homicide by intimate partners vs non–intimate partners and rates among younger Black, Hispanic, and White females) were assessed using the National Violent Death Reporting System. Negative binomial regression was used to test 2 hypotheses: access to divorce while pregnant and reproductive health care are associated with pregnancy-associated homicide rates.

Results  Individual level data, including exact sample size, were not available in this study of state-level homicide rates. Negative binomial regression analysis showed that, where finalizing divorce during pregnancy is prohibited, intimate partner homicide rates (incidence rate ratio [IRR], 2.11; 95% CI, 1.09-4.08; P = .03) and rates among younger (age 10-24 years) White females (IRR, 2.39; 95% CI, 1.12-5.09; P = .02) were significantly higher. In state-years with greater access to reproductive health care, rates were significantly lower for non–intimate partner homicide (IRR, 0.92; 95% CI, 0.87-0.98; P = .01) and for younger Black females (IRR, 0.91; 95% CI, 0.87-0.96; P < .001) and younger Hispanic females (IRR, 0.87; 95% CI, 0.79-0.96; P = .007).

Conclusions and Relevance  In this cross-sectional study of pregnancy-associated homicide rates, barriers to divorce were associated with higher homicide rates and access to reproductive health care was associated with lower homicide rates. This study highlights the association between state legislation and pregnancy-associated homicide in the US, which is important information for policymakers.

Read more here.

Revising the rules of engagement, court says jilted bride must give back $70,000 ring

From AP News:

Who gets to keep an engagement ring if a romance turns sour and the wedding is called off?

That’s what the highest court in Massachusetts was asked to decide with a $70,000 ring at the center of the dispute.

The court ultimately ruled Friday that an engagement ring must be returned to the person who purchased it, ending a six-decade state rule that required judges to try to identify who was to blame for the end of the relationship.

The case involved Bruce Johnson and Caroline Settino, who started dating in the summer of 2016, according to court filings. Over the next year, they traveled together, visiting New York, Bar Harbor, Maine, the Virgin Islands and Italy. Johnson paid for the vacations and also gave Settino jewelry, clothing, shoes and handbags.

Eventually, Johnson bought a $70,000 diamond engagement ring and in August 2017 asked Settino’s father for permission to marry her. Two months later, he also bought two wedding bands for about $3,700.

Read more here.