Family Law Prof Blog

TX Attorney General Ready to Defend Invalidated Laws

From Chron:

Texas Attorney General Ken Paxton last week seemingly expressed support for the Supreme Court potentially overturning past rulings on cases involving the LGBTQ community following the downfall of Roe v. Wade on Friday.

In a separate concurring opinion Friday, Supreme Court Justice Clarence Thomas questioned a number of the high court's past rulings, including Obergefell v. Hodges, which established the right of same-sex couples to marry, and Lawrence vs. Texas—a 2003 decision in which the court ruled against the state of Texas regarding a 1973 law criminalizing the act of sodomy.

Thomas also mentioned Griswold v. Connecticut, which established the right of married couples to use contraception without government interference. "In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is 'demonstrably erroneous,'" Thomas wrote. "We have a duty to 'correct the error' regarding these established in those precedents." 

During a Friday appearance on News Nation's "On Balance with Leland Vittert," Paxton said he would support the Supreme Court revisiting the cases mentioned by Thomas and defend Texas' long-unenforced law against sodomy.

"I'm sure you read Justice Thomas's concurrence where he said there were a number of other of these issues, Griswold, Lawrence and Obergefell he felt needs to be looked at again," Vittert told Paxton. "Obviously the Lawrence case came from Texas... would you as attorney general be comfortable defending a law that once again outlawed sodomy? That questioned Lawrence again or Griswold or gay marriage? That came from the state legislature to put to the test what Justice Thomas said?"

Read more here.

 

FL ‘Markel Act’ for Grandparent Visitation

From Florida Politics:

[Last week,] Florida Gov. Ron DeSantis signed HB 1119, known by advocates as the ‘Markel Act,’ to protect grandparents and children against alienation from each other in narrow, tragic situations.

Specifically, the bill says that grandparents can petition courts for visitation with their grandchildren where the living parent was found culpable by a criminal or civil court for the other parent’s death.

Inspiration for the bill, sponsored by Rep. Jackie Toledo and Sen. Keith Perry, was the 2014 murder-for-hire of FSU law professor Dan Markel, gunned down in his garage by hitmen, leaving two young sons without a father.

Read more here.

Call for Abstracts: Looking Beyond Roe v. Wade: Seeking Reproductive Justice in the Next 50 Years

Please consider submitting an abstract for this symposium:

Deadline – Friday, July 1, 2022: Call for Abstracts: Looking Beyond Roe v. Wade: Seeking Reproductive Justice in the Next 50 Years, Journal of Law, Medicine & Ethics, Symposium Issue – Fall 2023

Guest Editors: Professors Nicole Huberfeld, Linda C. McClain, and Aziza Ahmed, Boston University School of Law and School of Public Health

Read the details here: https://aslme.org/publications/call-for-abstracts/

Access to Abortion & Religious Liberty

From NBC News:

The Supreme Court decision reversing Roe v. Wade answered the prayers of conservative Christians across the U.S. who rallied against the landmark 1973 ruling for nearly half a century. But many American Jews are dismayed, and some Jewish leaders view restrictions on reproductive rights as an attack on religious liberty.

In statements following the release of Dobbs v. Jackson Women's Health Organization, the ruling that overruled Roe, organizations such as the American Jewish Committee, the Anti-Defamation League, Hillel International and the Women's Rabbinic Network expressed deep anguish.

"In this moment, our feelings are best embodied by Numbers 11:10: 'God became exceedingly angry; and Moses despaired.' ... We stand with generations of Jewish scholars who state clearly and unequivocally that abortion access is a Jewish value," the Women’s Rabbinic Network said.

The decision to sweep away Roe and about 50 years of legal precedent, the group went on to say, "must be understood as a violation of the United States Constitution which guarantees our freedom to practice our religion and also our freedom from the dictates of other religions."

In the eyes of many Jewish leaders, anti-abortion laws are particularly distressing because they contradict Jewish halakha — the laws drawn from the Torah, the Mishnah and the Talmud, the most sacred and authoritative texts in the tradition — according to Rabbi Ed Feinstein of Valley Beth Shalom synagogue in Los Angeles.

Feinstein cited several passages from Jewish scripture that have grounded the religion's position on reproductive rights in the modern era, such as a line from the Judaic oral tradition stating that the life of a "woman who is having difficulty in giving birth" must "take precedence."

He said the reasoning undergirding anti-abortion legislation in some conservative-skewing states typically comes out of conservative Christian theology — ignoring the Jewish principle that a fetus in the womb has "potential" but not the status of full personhood.

"The idea that life begins at conception is a philosophical idea, and the source of that idea is a religious source: Catholic and evangelical interpretation of scripture," Feinstein said. "But our tradition has a different idea, that full life begins at birth, and there is a different moral standard.

"It's another example of where a particular religion's perception of the world has taken hold of American culture," Feinstein added.

The question of religious liberty, a term usually associated with the Christian right, looms over anti-abortion legislation slated to become law in Florida under Gov. Ron DeSantis, a Republican who is widely expected to run for the GOP presidential nomination in 2024.

Read more here.

State-by-State Account of Abortion Laws

From ABC News:

The U.S. Supreme Court voted Friday to strike down Roe v. Wade, the landmark 1973 decision that guaranteed the right to an abortion.

In the 5-4 decision, the court ruled that "the Constitution does not confer a right to abortion."

Abortion laws and restrictions vary by state and, now the federal protection has been overturned, abortion will not be accessible everywhere in the U.S.

Some states have trigger laws in place that immediately ban abortion once Roe was overturned. Others guarantee the right to an abortion via laws or constitutional amendments.

Here is where abortion laws stand in each state, according to the Guttmacher Institute, a research group that focuses on sexual and reproductive health, and further reporting.

Read more here.

Texas Abortion Providers Challenge Pre-Roe Abortion Law

From Texas Public Radio:

A coalition of abortion providers in Texas filed a lawsuit Monday against the state over a decades-old ban on the procedure.

The lawsuit seeks to block state officials from enforcing the complete abortion prohibition that predates the landmark U.S. Supreme Court ruling in Roe v. Wade.

“Abortion services stopped immediately in Texas last week after the Supreme Court’s crushing decision, but we will fight to maintain access for as long as we can,” said Nancy Northup, president and CEO of the New York-based Center for Reproductive Rights, one of the organizations suing.

Last week, the U.S. Supreme Court overturned abortion rights.

Currently, Texas bans the procedure after six weeks of gestation. But a so-called trigger law passed last year is poised to eliminate nearly all abortions. This latest law will go into effect 30 days after the court issues its judgment, which Texas Attorney General Ken Paxton said could happen in about a month.

But in a memo Paxton issued after the ruling, he said “some prosecutors may choose to immediately pursue criminal prosecutions based on violations of Texas abortion prohibitions predating Roe that were never repealed by the Texas Legislature.”

Paxton made reference to a state law that, until the 1973 U.S. Supreme Court decision on Roe v. Wade, made performing an abortion punishable with up to five years in prison.

“Although these statutes were unenforceable while Roe was on the books, they are still Texas law,” Paxton said. “Under these pre-Roe statutes, abortion providers could be criminally liable for providing abortions starting today."

Read more here.

Safe Haven Law

From The Texas Tribune:

The Supreme Court cited safe haven laws as an abortion alternative when it overturned Roe v. Wade. But Texas’ policy lacks funding and just 172 infants have been relinquished since 2009.

The idea behind Texas’ safe haven law is simple. Any parent can bring their baby who is less than 60 days old to a fire station, hospital or EMS station and hand it over, no questions asked. If the baby is unharmed, parents face no criminal charges and the Department of Family and Protective Services takes custody.

The U.S. Supreme Court cited safe haven laws when it overturned Roe v. Wade. In his majority opinion finding that there’s no constitutional right to an abortion, Justice Samuel Alito mentioned that all states have safe haven laws, “which generally allow women to drop off babies anonymously.” During the Supreme Court’s oral arguments for the case last year, Justice Amy Coney Barrett questioned why safe haven laws don’t take care of “the burdens of parenting.” But in Texas the law is rarely utilized.

Read more here.

States Enforce Abortion Ban

From NPR:

Before Dobbs, state laws banning or severely restricting abortion access fell into three broad categories: 1) "trigger bans," which ban abortion under most circumstances and go into effect with the fall of Roe; 2) pre-Roe bans, which are old laws still on the books that could now be enforced; and 3) more recently passed laws that limit abortion to an early gestational age or ban it nearly totally. Some states had passed laws in more than one of these categories.

Thirteen states had trigger bans, laws that were written to take effect either immediately, by state official certification or after a 30-day waiting period, if Roe is overturned. Once they go into effect, these laws supersede other laws the state may have on the books, such as bans after a set number of weeks of pregnancy, said Elizabeth Nash, a state policy analyst with the Guttmacher Institute.

Sixteen states and the District of Columbia currently have laws that protect the right to abortion, mostly before the point of fetal viability, according to the nonpartisan Kaiser Family Foundation.

Read more here.

Supreme Court Overturns Roe v. Wade

From NPR:

In a historic and far raching decision, the U.S. Supreme Court officially reversed Roe v. Wade on Friday, declaring that the constitutional right to abortion upheld for nearly a half century, no longer exists.

The decision, most of which was leaked in early May, means that abortion rights will be rolled back in nearly half of the states immediately, with more restrictions likely to follow. For all practical purposes, abortion will not be available in large swaths of the country. The decision may well mean too that the court itself, as well as the abortion question, will become a focal point in the upcoming fall elections and in the fall and thereafter.

Another path to banning abortion involves "trigger bans," newer laws pushed through by anti-abortion rights legislators in many states in anticipation of the Supreme Court's action. Some 15 states – in the South, West and Midwest – have such laws in place, according to CRR and Guttmacher, but they fall into different categories.

Read more here.

 

Child-Support Program's Administration May Be Disadvantageous to Some

From PHYS.ORG:

Child-support policies that are color-blind or race-neutral put low-income men of color and their families at a disadvantage and lead to continued racial inequities, according to Rutgers research. Since the creation of the federal child-support program in 1975, outstanding child-support arrears have grown to about $113.5 billion and 77 percent of cases in the child-support enforcement system are in arrears, according to the U.S. Office of Child Support Enforcement.

"Child-support policies were created to make sure a child who has a parent that doesn't live with the family got support," said Lenna Nepomnyaschy, associate professor at the Rutgers School of Social Work and co-author of the study published in the Journal of Marriage and Family. "But in recent decades, economic changes such as the loss of manufacturing jobs and declining union power, increases in nonmarital births, and mass incarceration have made it much more difficult for lower-educated men of color to support their families. Child support policies, while not written with race in mind, today disproportionately harm lower-income and non-white families as they are over-represented in the system."

The child-support system has consistently turned to more punitive and harsh enforcement efforts—such as suspending fathers' driver's licenses, public shaming and incarceration. 

Read more here.

Stepparents Pursue Child Custody

From coloradopolitics.com:

The Colorado Supreme Court decided an Arapahoe County judge incorrectly dismissed a man's attempt to seek custody of his stepdaughter, clarifying that stepparents do not need to have exclusive physical care of a child nor the biological parents' consent in order to pursue custody.

The basic facts of the case were undisputed. E.K.'s biological parents, Holly Mercer Cook and Martin Andre Kristiseter, divorced in late 2009, when E.K. was four years old. Afterward, Holly Cook began dating Steven Cook and the two married in June 2013. They had two children of their own and lived as a blended family with E.K. During that time, Steven Cook assumed responsibilities of a typical parent, including picking E.K. up from school. On July 8, 2021, Steven Cook filed for a divorce and E.K.'s biological parents removed her from Cook's home. Soon afterward, Cook filed a petition seeking parental rights, or custody, over E.K. Maintaining custody over E.K. would be in the now-teenage girl's best interests, he argued, because Holly Cook's mental issues and alleged drug addiction meant none of the children was safe in her care.

The Supreme Court sided with Steven Cook, finding he had, indeed, provided physical care for E.K. for at least 182 days, considering the several years he spent living with her and the rest of their family. The law did not require that Cook be the exclusive care provider for E.K., nor did the biological parents need to consent to Cook assuming responsibility over E.K., the court said.

Read more here.

 

The Legal Medical Marijuana Use Among Family Legal Issues

From The Kansas City Beacon:

Missouri is one of a handful of states that passed a relatively sweeping approval of medical marijuana in recent years, but that does not include family court protections for parents. 

Missouri voters passed a constitutional amendment to allow for medical marijuana use, but lawyers say that parents involved in custody disputes and other legal issues can face judgment and criticism over their use of cannabis for medical purposes. A proposal known as LegalMO 2022 would open Missouri’s medical marijuana market to adults for recreational use, but would also address a number of social reforms related to the state’s cannabis law. 

LegalMO 2022 would prohibit courts from ordering parents to stop using medical marijuana  in order to complete a family court program. It would also prohibit a parent’s status as a medical patient from being used to restrict custodial or parental rights. Adoption, custody or visitation rights would also be protected for medical patients. 

Read more here.

Property Distribution in South Africa

From BusinessTech:

On 11 May 2022, the North Gauteng High Court declared Section 7(3)(a) of the Divorce Act inconsistent with the Constitution, with the ruling set to have major implications for marriages and divorces in South Africa. This difference, the court said, amounts to unfair discrimination – particularly for economically disadvantaged people – and limits the operation of Section 7(3).

Notably, individuals who are married out of community of property without accrual, regardless of the content of a signed antenuptial contract, will now be able to ask the court for a redistribution of assets, said Kavita Kooverjee, attorney at Schoeman Law.

However, such an application is not an outright right, she said. “The onus will be on the individual spouse to prove that they directly or indirectly contributed to the other spouse’s estate when instituting Section 7(3). For example, they looked after the kids and the home while the other spouse’s estate grew, being the only breadwinner.”

Read more here.

Japan Court Ruled on Same-Sex Marriage Ban

From Reuters:

A Japanese court ruled on Monday that a ban on same-sex marriage was not unconstitutional, dealing a setback to LGBTQ rights activists in the only Group of Seven nation that does not allow people of the same gender to marry.

Japan's constitution defines marriage as being based on "the mutual consent of both sexes". But the introduction of partnership rights for same-sex couples in Tokyo last week, along with rising support in opinion polls, had raised the hopes of activists and lawyers for the Osaka case.

The Osaka court said that marriage was defined as being only between opposite genders and not enough debate on same-sex marriage had taken place in Japanese society.

Read more here.

Testimony and Evidence in Family Court

From JD Supra:

Trials in divorce and family law matters can take place in some cases. Many divorce and family law cases settle outside of court. However, for the cases that do not, trial testimony and evidence can have a big impact on the result of the case. During testimony and presentation of evidence, lawyers can object to testimony or the attempted admission of evidence. Sometimes, courts rule on these objections are rule in pre-trial motions. In other cases, the court has to make a ruling during trial on the presentation of testimony or evidence.

If a lawyer does not object at trial, the reality is that they are likely waiving any objections they may have had on behalf of their client. Thus, it is vital for a lawyer to get out of their seat, stand up and object when necessary. Some lawyers keep a list of all objections at the counsel table in case to make sure they are not forgetting an appropriate objection because the time to object can come and pass quickly.

Lawyers may also file pre-trial motions to keep evidence out at trial. A common pre-trial motion to keep evidence out is called a motion in limine. Evidentiary pre-trial motions are usually filed weeks or at least days before trial to allow for planning accordingly. Pre-trial memorandum and conferences are also an excellent way for lawyers to preclude evidence before trial.

Read more here.

The Language Around Pregnancy and Abortion Should Be More Inclusive

From CNET (Kim Wong-Shing):

The end of Roe would have a ripple effect on health care at large, even beyond abortion access. Pregnancy doesn't solely concern women -- it affects anyone whose body is capable of getting pregnant, which may include trans men, intersex people, nonbinary or gender expansive people. All of these individuals are affected by abortion policy, but for trans and intersex people, it may be even more difficult to access competent care.

Much of the language around pregnancy and abortion is targeted toward cis women -- right down to popular terms such as "women's center" and "mommy brain." And while the majority of pregnant people are indeed cis women, the heavy focus on gender can be alienating for many people.

That's why it's important to use inclusive language when talking about pregnancy, abortion, parenting and reproductive health in general. 

Read more here.

SCOTUS Decision in Golan v. Saada

From SCOTUSblog:

The Supreme Court on Wednesday gave federal trial courts more discretion over whether children in some international custody disputes must be returned to their home countries. The unanimous decision in Golan v. Saada was the latest in a series of cases interpreting the Hague Convention on the Civil Aspects of International Child Abduction, an international agreement adopted in 1980 to deal with international child abduction during domestic disputes.

Under the Hague Convention, children who are wrongfully taken from the country where they live must be returned to that country so that custody disputes can be resolved there. The convention carves out an exception to this general return requirement, however, for cases in which there is a “grave risk” that returning the child would expose her to physical or psychological harm. In a decision written by Justice Sonia Sotomayor, the justices ruled that when a court finds that there is such a grave risk, it can – but is not obligated to — consider whether there are any ways to reduce that risk, so that the child can still return home.

The question came to the court in a dispute between Narkis Golan, a U.S. citizen, and Isacco Saada, an Italian citizen. Golan and Saada were married in 2015, and Golan gave birth to the couple’s son, known only as B.A.S. in court proceedings, in Italy the following year. Saada was physically abusive to Golan throughout the couple’s marriage, eventually prompting her to take B.A.S. to the United States for a wedding. When she did not return, Saada went to federal court, seeking to compel B.A.S.’s return to Italy under the convention.

Read more here.

Executive Actions Targeting Anti-LGBTQ Laws

From CBS News:

President Biden announced several executive actions Wednesday afternoon to address discriminatory laws and practices against LGBTQ children and adults, as a number of states enact anti-LGBTQ measures.

"The message is simple: Pride is back at the White House," Mr. Biden said at a White House Pride event where the executive actions were unveiled.

A senior administration official who described the measures didn't point to any specific use of federal funds for conversion therapy, but said the executive action will help HHS lawyers enforce any future attempts.

Read more here.

 

 

Louisiana Proposes to Let Adoptees Access Birth Certificates

From Louisiana Illuminator:

The Louisiana Legislature passed a bill Sunday that would allow adopted people to obtain copies of their original birth certificates when they reach age 24.

The bill proposes that someone adopted as a child would no longer have to petition a court to unseal their original birth certificate. Instead, they could obtain an uncertified copy upon request from the state vital records registrar once they reach age 24.

The proposal overcame opposition from anti-abortion groups and others with financial interests in the adoption industry, both arguing the proposal might discourage women from giving their babies up for adoption.

Read more here.

The Case of Former Director of Child Protection

From CBC.ca:

Prince Edward Island's former director of child protection comes under "substantial criticism" in a landmark Supreme Court of Canada child custody ruling involving a boy now living in southern Alberta, says a law professor familiar with the case. 

"In this case, the director removed the child from the maternal grandmother and sent the child to the natural father who had not much — well, no relationship with the child at first — and they plainly put their thumb on the scales in favour of the natural father and against the maternal grandmother."

The Supreme Court of Canada justices were highly critical of that action, among others. 

The ruling says the boy "left his grandmother's home for camp like normal, but he was apprehended by the director who has never allowed him to return. The director instead chose to place [the child] with foster parents, who were strangers to him." 

Read more here.