Family Law Prof Blog

Happy Spring Break!

The Family Law Prof Blog will be taking off for Spring Break from March 22-March 30. Hope everyone enjoys a well-earned break! 

Horton, Weisbord, & Ryan: "The Trust Transfer Problem"

David Horton (University of California, Davis - School of Law), Reid K. Weisbord (Rutgers Law School), and CJ Ryan (Indiana University Maurer School of Law) recently posted to SSRN their paper, The Trust Transfer Problem.  Here is the abstract:

For decades, a single tactic has dominated American estate planning. By transferring assets to a revocable living trust ("rev trust"), individuals can bypass the notoriously slow, expensive, and public probate system. But because rev trusts operate privately, there is no data on how well they function. This Article conducts the first empirical study of trial-level matters involving rev trusts-a review of 1,568 cases filed between 2014 and 2020 in San Francisco-and finds that a surprising number of rev trusts do not achieve their objectives. The culprit is what we call the "trust transfer problem": during their lives, settlors often fail to satisfy the finicky rules that govern the conveyance of property into their rev trusts. This little-noticed breakdown in the inheritance process is so pervasive that it accounts for a quarter of the trust department's workload. The Article then reveals that the trust transfer problem causes three kinds of harm. First, at bare minimum, survivors must obtain an order from the trust department that the settlor intended property to belong to the trust. Having to take this step undercuts the benefits of probate avoidance by causing delays, generating costs, and exposing intimate details about the settlor or their loved ones. Second, the trust department sometimes denies requests to retitle assets in the name of the trust, sending the property into probate-the very regime that rev trusts are designed to avoid. Using another hand collected dataset of San Francisco probate administrations from the same timeframe, we follow these cases through this extra level of judicial review and find that they invariably drag on for years and incur thousands of dollars in fees. Third, in extreme situations, even this double dose of court intervention can be insufficient to convey possessions into the trust. This outcome thwarts the settlor's dispositive choices by effectively disinheriting the trust's beneficiaries. Finally, the Article proposes a straightforward solution to the trust transfer problem. It argues that this issue is endemic because the law assumes that non-transferred property does not belong to a rev trust and requires interested parties to prove otherwise. But this is backwards. Almost every settlor intends their rev trust to contain everything they own. Thus, states should pass laws declaring that the mere act of executing a rev trust showcases the settlor's intent to funnel all of their assets into it when they die. This forgiving approach would better serve decedents' wishes, reduce burdens on estates and the judicial system, and bring this area into alignment with the functionalism of modern inheritance doctrine.

Lyon, Wylie, Szojka: "Understanding Child Sexual Abuse Disclosures, Delays, and Denials"

Thomas D. Lyon (University of Southern California Gould School of Law), Breanne Wylie (Brock University), and Zsofia Szojka (University of London) recently posted to SSRN their paper, Understanding Child Sexual Abuse Disclosures, Delays, and Denials.  Here is the abstract:

We discuss factors that influence the likelihood of delayed disclosure and denial in abused children, examining population surveys, studies of children questioned about abuse, and studies questioning offenders about grooming behaviors. The child’s closeness to the suspect and the supportiveness of the child’s family are important factors. With respect to interview characteristics that influence disclosure, we stress the importance of prior disclosures, whether the child is being asked about abuse for the first time, and characteristics of the interview, including supportiveness and the questions asked. In the final section, we criticize the approach taken by the New Jersey Supreme Court in J.L.G. (2018), in which the court severely rejected expert testimony explaining to juries why abused children might delay disclosure and at some point deny abuse. We discuss how the court focused on overall percentages of children who delay and deny, rather than the factors that influence abused children’s reluctance, and how the court overlooked selection biases that lead to underestimation of the likelihood that abused children will deny abuse.

Seventh Roundtable on Nonmarriage and the Law: September 25-26, 2025

Seventh Roundtable on Nonmarriage and the Law 

Hosted by Cardozo School of Law With Support from Brooklyn Law School 

September 25-26, 2025

Call for Papers

Abstract Submission Deadline: June 6, 2025

Cardozo School of Law will host the Seventh Roundtable on Nonmarriage and the Law, a conference exploring interdisciplinary issues surrounding relationships and statuses outside of monogamous marriage, on September 25-26, 2025.

Over 19 million adults in the US are nonmarital cohabitants. Other adults are “living apart together”—in committed relationships but living under separate roofs—or are in nonmarital relationships marked by some measure of intimacy or dependency. An increasing number of people are forming their own “families by choice” or are single by choice. Legal and law reform responses to these situations vary, and scholars from multiple disciplines and multiple countries are studying different approaches to these developments.

This Roundtable will bring together scholars in law; sociology; economics; social work; women, gender & sexuality studies; critical race theory; and related fields. Papers might address topics including the following:

• Economic rights of nonmarital partners and single individuals

• Implications of legal regulation across different demographic categories, including race, gender, class, and sexual orientation

• The design of regulatory responses to families-of-choice and single people

• The relationship between marriage and nonmarital statuses

• Constitutional issues relating to nonmarriage

• The relationship between nonmarriage, poverty law, and the family policing and criminal legal systems

• Nonmarriage, parenthood, and childrearing

• The demography and sociology of nonmarital relationships and singlehood

• The international and comparative law of nonmarriage and singlehood

• The pedagogy of teaching about nonmarriage and singles’ studies.

The Roundtable will consist of approximately 4-5 panels over the course of one day, with dinner on the evening of Thursday, September 25, and the Roundtable to take place on Friday, September 26. Participants will attend the full day and will be asked to read approximately 8-10 papers. The event will conclude with a dinner on September 26.

To apply, please submit an abstract of no more than 500 words, as well as a CV, using this form.

Submissions will be vetted by the organizing committee. Selection will be based on the originality of the abstract as well as its capacity to engage with the other papers in a collaborative dialogue. We have two publication opportunities for conference participants. If you are interested in publishing a paper (5,000-15,000 words) in the Family Court Review, as part of this process, please indicate your interest when you submit your abstract. The Cardozo Law Review will also publish longer papers (10,000 - 25,000 words) from the Roundtable; please indicate your interest in being considered for publication there.

Participants will be notified by the beginning of July 2025. Drafts for distribution at the Roundtable of no more than 7500 words will be due on September 5, 2025.

Cardozo may be able to allocate limited funds to help cover reasonable travel costs and accommodation for selected participants. If you need financial assistance to attend, please specify in the form your city of departure and estimated travel costs. We will be sending out information about special rates at hotels to participants closer to the conference date.

We look forward to your submissions and participation. Questions can be directed to the [email protected] address.

Thank you!

The 2025 organizing committee

Albertina Antognini
James E. Rogers Professor of Law
University of Arizona
[email protected]

Anibal Rosario Lebron
Assistant Professor of Law
Rutgers Law School - Newark
[email protected]

Clare Huntington
Barbara Aronstein Black Professor of Law
Columbia Law School
[email protected]

Cynthia Godsoe
Professor of Law
Brooklyn Law School
[email protected]

Edward Stein
Professor of Law
Director, Gertrude Mainzer Program in Family Law, Policy and Bioethics
Cardozo School of Law
New York, NY
[email protected]

Kaiponanea Matsumura
Professor of Law and William M. Rains Fellow
Loyola Law School, Los Angeles
[email protected]

Naomi Cahn
Justice Anthony M. Kennedy Distinguished Professor of Law
Armistead M. Dobie Professor of Law
Co-Director, Family Law Center
University of Virginia School of Law
[email protected]

Williams Brewer: "The Not-So-Obvious And Inconvenient Truth: Reexamining A Right To Counsel For Parents And Children In Abuse And Neglect Administrative Proceedings"

Tiffany Williams Brewer (Howard University School of Law) has recently posted to SSRN their paper, The Not-So-Obvious And Inconvenient Truth: Reexamining A Right To Counsel For Parents And Children In Abuse And Neglect Administrative Proceedings.  Here is the abstract:

The right to counsel for parents in administrative abuse and neglect cases, as well as for the children that are the subject of these matters, is a necessity that may not be obvious. This Article seeks to elucidate the fundamental interests that are at stake and justify why the sacrosanct protections of the landmark Gideon v. Wainwright right to counsel case should be extended to an administrative proceeding involving parents who are facing inclusion on a state child abuse and neglect registry. The Article also reveals an inconvenient truth–that communities of color are disproportionately impacted by the consequence of adverse child welfare actions. Part I expounds on the dilemma, including the current state of administrative proceedings and explaining the inequities resulting from current administrative practices. Part II will detail several narrative case studies to further elucidate the problematic outcomes under the status quo model. Parts III and IV will present a comparative analysis with other areas of the law where a right to counsel has strengthened outcomes for litigants, including the criminal and civil contexts, and draw parallels to justify the extension of the right to counsel to administrative abuse and neglect proceedings. Part V will examine a contemporary state precedent where the right to counsel has been extended to parents in the administrative context in abuse and neglect cases. The Article will conclude with a call to action for states and the federal government to implement a right to counsel and avert an injustice, thus strengthening the rule of law.

Happy St. Patrick's Day!

Miles: "Disgusted Judges and Domestic Violence"

Jessica Miles (Pace University - Elisabeth Haub School of Law) has recently posted to SSRN their paper, Disgusted Judges and Domestic Violence.  Here is the abstract:

Domestic violence is disgusting. Seeing a person with a bruised face or black eye can make us cringe. Reading a graphic description of a physical or sexual assault by an intimate partner can lead to revulsion. Like the rest of us, judges experience disgust-both consciously and subconsciously-when confronted with evidence of abuse in intimate relationships. These feelings of disgust shape the judicial system's responses to domestic violence in non-obvious ways. 

In the minority of cases which seem to be "clear cut" (e.g., involving recent and corroborated physical or sexual violence), judicial disgust with defendants found to have perpetrated domestic violence may promote entry of civil protection orders (CPOs). But social science research and court-based studies strongly suggest that judicial disgust with domestic violence operates to the detriment of survivors in the majority of CPO cases which present as more "ambiguous" (e.g., "he said/she said" cases). 

This Article argues that judicial disgust leads to the denial of relief to many domestic violence survivors in CPO cases because disgust promotes subconscious victim blaming and avoidance responses, which, in turn, undermine accuracy in adjudication and undercut legislative intent to protect survivors. Ultimately, disgusted judges are more likely to dismiss meritorious petitions for protection from domestic violence and to disregard procedural justice concerns. 

State courts and legislatures should implement legal reforms to address the problem of judicial disgust with domestic violence. In addition, legal education providers at all levels (i.e., for law students, lawyers, and judges) should offer courses on emotional regulation skills to reduce the potential negative effects of disgust and other emotions on legal practice and adjudication. Finally, this Article implores social scientists to further explore the impact of disgust on people’s responses to domestic violence, with a new and specific focus on the context of adjudication, in order to aid efforts to promote access to legal relief for survivors.

Leib: "Fiduciary Parenting of Transgender Youth"

Ethan J. Leib (Fordham University School of Law) has recently posted to SSRN their paper, Fiduciary Parenting of Transgender Youth.  Here is the abstract:

This Article aims to evaluate whether parents of minors who identify as transgender have moral duties to help their children achieve social or medical transition and whether they have moral permissions to take a more oppositional posture--and, if so, under what conditions. Very child-centered theories of parenting might recommend that children should get to make their own decisions without parental gate-keeping; and very parent-centered theories of parenting might recommend that parental interests or values are appropriate to guide decision-making, instead. A particular account of fiduciary parenting, the view developed and defended here, does not require that parents always accede to their children's demands for gender transitions. However, parents have obligations stemming from their fiduciary role to evaluate their children's demands with careful deliberation, conscientiousness, and sensitivity to dynamic change. In particular, children can require from their parents a decision procedure that properly orients parents towards children's welfare rather than parents' own and a decision procedure that also doesn't center "irreversibility" as a core anchoring mechanism, an entailment of careful and conscientious deliberation. It is an essential moment--as the Supreme Court is about to take up state bans on gender-affirming care for minors--to gain more clarity about how "first-responder" parents should be managing demands from their children about their gender expressions.

Hasday: "We the Men"

Jill Elaine Hasday recently published "We the Men: How Forgetting Women's Struggles for Equality Perpetuates Inequality." Below is a brief description: 

In a nation whose Constitution purports to speak for “We the People,” too many of the stories that powerful Americans tell about law and society include only We the Men. A long line of judges, politicians, and other influential voices have ignored women’s struggles for equality or distorted them beyond recognition by wildly exaggerating American progress. Even as sexism continues to warp constitutional law, political decisionmaking, and everyday life, prominent Americans have spent more than a century proclaiming that the United States has already left sex discrimination behind.

Jill Elaine Hasday’s We the Men is the first book to explore how forgetting women’s struggles for equality—and forgetting the work America still has to do—perpetuates injustice, promotes complacency, and denies how generations of women have had to come together to fight for reform and against regression. Hasday argues that remembering women’s stories more often and more accurately can help the nation advance toward sex equality. These stories highlight the persistence of women’s inequality and make clear that real progress has always required women to disrupt the status quo, demand change, and duel with determined opponents.

America needs more conflict over women’s status rather than less. Conflict has the power to generate forward momentum. Patiently awaiting men’s spontaneous enlightenment does not. Transforming America’s dominant stories about itself can reorient our understanding of how women’s progress takes place, focus our attention on the battles that are still unwon, and fortify our determination to push for a more equal future.

More information is available here.

HHS grants DOGE access to child support database, overriding objections

From Washington Post:

The Department of Health and Human Services has granted associates of the U.S. DOGE Service access to a sensitive child support database with troves of income data, overriding the objections of career employees, according to four people familiar with the matter.

The government database — created to help enforce child support payments and overseen by the Administration for Children and Families, or ACF — contains substantial amounts of personal income data linked to nearly all U.S. workers. The people spoke on the condition of anonymity because they were not authorized to talk to the media.

An HHS official confirmed that DOGE received access to the system, saying that DOGE’s agents sought “read-only access” to the system and were required “to take all necessary trainings” before being granted permission to use it.

Read more here.

Japan’s refusal to recognize same-sex marriage in law is unconstitutional, a court finds

From AP News:

A Japanese high court on Friday ruled that Japan’s refusal to legally recognize same-sex marriage is unconstitutional, the latest victory for same-sex couples and their supporters seeking equal rights.

Friday’s decision by the Nagoya High Court, in central Japan, marks the ninth victory out of 10 rulings since the first group of plaintiffs filed lawsuits in 2019.

The decision was also the fourth high court ruling in a row to find the current government policy unconstitutional, after similar decisions in Tokyo, Fukuoka and Sapporo.

After a fifth court ruling expected later this month in Osaka, the Supreme Court is expected to handle all five appeals and make a decision.

The Nagoya court said Friday that not allowing same-sex couples the legal right to marry violates a constitutional guarantee of equality. The court also upheld the right to individual dignity and the essential equality of both sexes.

Read more here.

 

Chinese Company to Single Workers: Get Married or Get Out

From NY Times:

The ideal worker at the Chinese chemical manufacturer, according to the internal memo, is hardworking, virtuous and loyal. And — perhaps most important —willing to have children for the good of the country.

That was the message that the company, Shandong Shuntian Chemical Group, sent to unmarried employees recently, in a notice that spread widely on social media. It instructed them to start families by Sept. 30, or else.

“If you cannot get married and start a family within three quarters, the company will terminate your labor contract,” the memo said.

Shandong Shuntian was not the first company to try to dictate its employees’ personal lives amid rising concern about China’s plummeting marriage and birthrates. Weeks earlier, a popular supermarket chain had told its staff not to ask for betrothal gifts, to lower the cost of weddings.

Both orders were widely criticized, for many of the same reasons that people are refusing to start families in the first place. Besides the economic cost of having children, many young Chinese cite a desire for personal autonomy. They reject the traditional idea that their families should direct their lives, and they certainly aren’t inclined to let their employers have a say.

Read more here.

Virginia’s Custody Crisis: Why are parents giving up their kids and solutions to help families

From NBC News:

Parents, voluntarily giving up their kids. It’s a huge problem in Virginia.

It’s called “relief of custody.” Hundreds of these cases have been filed in just the past five years.

But people don’t realize how big of a problem this is. Relief of custody petitions are growing at an increasing rate in some regions of Virginia.

“In the western part of the state, we have about 20% of the population, but we have probably close to 50% of the relief of custody petitions filed,” said Renee Brown, the CEO & President of DePaul Community Resources, who was part of an advisory group for the Virginia Commission on Youth to try and solve the issue.

Read more here.

Lawmakers in 9 states propose measures to undermine same-sex marriage rights

From NBC News:

Lawmakers in at least nine states have introduced measures to try to chip away at same-sex couples’ right to marry. 

Five of the measures, including one introduced Tuesday in Michigan, urge the Supreme Court to overturn its 2015 landmark ruling in Obergefell v. Hodges, which granted same-sex couples nationwide the right to marry.

State Rep. Josh Schriver, a Republican elected in November 2022, introduced the marriage resolution in Michigan, saying in a statement on social media that the Obergefell ruling “is at odds with the sanctity of marriage, the Michigan Constitution and principles upon which the country was established.”

“Increased instances of religious persecution have been a consequence of the Court’s ruling 10 years ago,” Schriver said in the statement. He cited as examples the state attorney general’s 2019 announcement that state-funded adoption agencies could no longer legally turn away LGBTQ couples because of their religious beliefs and a Grand Rapids wedding venue that faced fines and harassment in 2022 after it wouldn’t host weddings for same-sex couples.

Read more here.

Peltzman Finds “Marriage Premium” in Happiness Data

From Promarket:

A new paper by University of Chicago Booth School of Business professor emeritus Sam Peltzman examines the relationship between marriage and self-reported happiness, finding a persistent and substantial phenomenon that married people report being significantly happier than unmarried people across virtually all demographic groups.

The paper, “The Anatomy of Marital Happiness,” builds on Peltzman’s 2023 research on the socio-political factors affecting happiness. Using data from the General Social Survey (GSS) spanning 1972-2018, Peltzman quantifies what he calls the “marital premium”—the difference in happiness between married and unmarried individuals.

To measure happiness, the study uses responses to a consistent GSS question asking whether respondents are “very happy,” “pretty happy,” or “not too happy.” Peltzman creates a happiness score by subtracting the percentage of respondents answering “not too happy” from those answering “very happy,” treating “pretty happy” as neutral.

The key finding is that married individuals score about 31 points higher on this happiness scale than unmarried individuals—a gap that has remained remarkably stable across different demographic groups and time periods. The average happiness score for married respondents is around 33, while unmarried respondents average 1.8.

Read more here.

Notre Dame Law School announces the Kopko Family Law Fellowship for J.D. candidates pursuing public service and social justice

From UND Law: 

Notre Dame Law School is honored to announce the establishment of the Kopko Family Law Fellowship, made possible by a $1 million gift committed by Frederick H. Kopko, Jr. ’80 J.D. This fellowship, created in memory of his wife Mary Elizabeth Kopko (née Bonte), will support first-year J.D. students committed to careers in public service and social justice law. Beginning in the fall of 2025, the fellowship will cover full tuition for all three years of law school and serve as a lasting tribute to Mary Beth's unwavering commitment to public service and to the Kopko family’s deep connection to Notre Dame.

“The Law School is deeply grateful to the Kopko family for their generosity, which will empower future generations to carry forward Mary Beth’s legacy of advocacy, scholarship, and social justice. The Kopko Family Law Fellowship will offer aspiring Notre Dame lawyers meaningful opportunities to serve their communities through public interest law, without the financial burden of student loans,” said G. Marcus Cole, the Joseph A. Matson Dean and Professor of Law.

Read more here.

California was first state with no-fault divorce laws. Now, other states may roll back law

From the Californian:

The concept of legally binding covenant marriages is spreading across the nation, but as of 2024, Arizona, Arkansas, and Louisiana are the only states to recognize covenant marriage.

Several other states, though, are considering adopting the practice that limits the ability to file for divorce. If a couple in a covenant marriage wishes to obtain a divorce, then they will have to enter into a fault-based divorce.

All 50 states currently have some form of no-fault divorce, a legal concept that started over 50 years ago in California and spread nationwide. However, as of 2025, some Republican lawmakers are pushing to eliminate it.

Read more here.

 

Court rejects parents' challenge to Massachusetts school's gender identity policy

From Reuters:

 

A Massachusetts school district's policy against notifying parents without a student's consent if the child asks to use a different name and gender pronouns at school does not violate parents' constitutional right to direct the upbringing of their children, a U.S. appeals court ruled.

 

In a case that could reach the U.S. Supreme Court, the Boston-based 1st U.S. Circuit Court of Appeals on Tuesday upheld the dismissal of a lawsuit by the parents of a student who had self-identified as genderqueer without their knowledge while attending a middle school in Ludlow, Massachusetts.

 

The case is one of several lawsuits nationally by conservative litigants and parents groups challenging school policies that seek to respect requests by LGBTQ students, including transgender ones, to not "out" them to their parents without their consent.

 

The Massachusetts parents, Stephen Foote and Marissa Silvestri, argued that staff at Baird Middle School wrongly concealed from them that their 11-year-old, who was born female, had asked to be identified by a different name and pronouns while at school.

 

Read more here.

Georgia Supreme Court casts doubt on child custody law

From AJC:

The Georgia Supreme Court on Tuesday raised major questions about a nearly 6-year-old state law that lets people seek custody of children they are not the legal guardians of or otherwise related to by blood.

The court unanimously ruled that a woman was not entitled to custody of a young girl she had helped raise since birth with her ex-partner. While the court did not strike down the law, it said the case raises serious questions about “the fundamental right of parents to the care, custody, and control of their children.”

Read more here.

France prepares for largest child abuse trial in its history

From NBC News:

Amélie Lévêque remembers the moment when she finally understood the unexplained bouts of depression and other disorders that had tormented her for more than two decades.

Now 42, she connected the dots in 2019 when she saw a report about a surgeon under investigation on suspicion of sexually assaulting patients over three decades and meticulously cataloging the abuse in digital diaries.

Lévêque was 9 years old when her appendix was removed by the surgeon.

“Immediately I knew, voilà, that’s what happened to me,” Lévêque told AFP. “This explained so many strange things in my life, like my phobia of hospitals, my eating disorders … a life suspended since my operation.”

Lévêque is set to testify at France’s largest-ever child sex abuse trial, which opens Monday in Vannes, a picturesque town in coastal Brittany. Former surgeon Joël Le Scouarnec, 74, is charged with raping or sexually assaulting 299 victims over three decades, most of them girls and boys under 15 whose average age was 11.

Read more here.