Family Law Prof Blog

Key Judgment Favours Women Married under Sexist Apartheid Law

From Daily Maverick/ MSN

The Legal Resources Centre (LRC), obtained judgment in the Durban High Court on 24 January 2020, on behalf of Ms Agnes Sithole and the Commission for Gender Equality, in a challenge to the application of sections 21(1) and 21(2) (a) of the Matrimonial Property Act 88 of 1984, which perpetuated the effect of the now-repealed section 22(6) provision of the Black Administration Act 38 of 1927.

Sithole, the first applicant, acted in her own and in the public interest on behalf of all affected South African women, whose right to property and financial security in marriage was in issue in this case. There are approximately 400,000 women affected by the provisions of section 22 (6) of the Black Administration Act 38 of 1927.

Sithole is 72 years old and entered into a civil marriage with her husband nearly 50 years ago. At the time, all African couples were married under section 22(6) of the Black Administration Act as were Mr and Ms Sithole. During the course of their marriage, Ms Sithole worked hard to support and elevate her family, and her four children are fiercely loving and protective of their mother. 

Read more here

Law Dean & Day Care

TaxProf blog has a post on a law school dean's take on gender dynamics in caregiving here, and what he's doing to help.

Virginia Democrats plan to remove many abortion restrictions Republicans have supported

From Daily Press

The General Assembly is slated to vote on two bills this week that would loosen restrictions on abortion, something Democrats including Gov. Ralph Northam have made a priority now that they control the legislature and the governor’s office for the first time in decades.

The bills, sponsored by Sen. Jennifer McClellan and Del. Charniele Herring, would eliminate the requirement that a women get an ultrasound before an abortion to determine the fetus’ gestational age and wait 24 hours after the ultrasound to get the abortion. It would also eliminate the requirement that the woman be offered an ultrasound image and the opportunity to hear the fetal heartbeat.

The bill also allows licensed physician assistants and nurse practitioners — not just physicians — to perform the abortion, and eliminates the requirement that women sit through mandated counseling that opponents called “biased.”

Last year, a federal judge in Richmond upheld the law that says only physicians could perform first-trimester abortions

Read more here 

Announcement of Conference and Call for Contribution

Taxation and Gender Equality Conference: Research Roundtable and Policy Program

As the Organizers and members of the Academic Advisory Committee we are pleased to issue this Announcement and Call for Contributions to an event that will be held on September 14 and 15, 2020, in Washington, DC, to explore the interaction between tax law and gender equality. The goal of the Conference, which is sponsored by the Tax Policy Center, the American Tax Policy Institute, the American Bar Foundation, and, subject to the final approval of their boards, the Tax Section of the American Bar Association and the American College of Tax Counsel, is to shine a spotlight on gender issues in taxation and to bring consideration of gender impacts into mainstream discussions surrounding the enactment and administration of tax laws. The intended scope of the Conference is broad, focusing not only on gender issues in U.S. tax law but also on gender issues in the tax laws of other countries; it will consider all taxes, whether income, consumption, transfer, wealth, or other national-level taxes, as well as subnational taxes.

The Conference will begin on Monday, September 14, 2020 at the Washington, DC, offices of Pillsbury Winthrop Shaw Pittman with a research roundtable featuring principally academic papers. The research roundtable will follow the format typical of academic conferences, providing ample time for conversation among participants. 

The second day of the Conference, Tuesday, September 15, 2020, will be held at the Urban-Brookings Tax Policy Center, also in Washington, DC. It will consist of a policy-oriented program of panel discussions bringing together academics, practicing attorneys, economists, policy makers, legislators and others to consider issues related to gender and taxation and to consider strategies for incorporation of gender-related concerns into everyday tax policy discourse. At least one panel will feature the recent work undertaken by the National Women’s Law Center exploring the relationship between taxation and gender (see https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2019/11/NWLC-Tax-Executive-Summary-Accessible.pdf).

We are now seeking participants interested in contributing either to the research roundtable or to the policy program (or to both). Participants can be legal academics, economists, legal practitioners, government officials, policy researchers, or others with an interest and expertise in tax law and its administration. Contributors from the United States as well as other countries are welcome.

Scholars, analysts and policymakers of all levels of seniority and from all disciplines are invited to submit proposals for consideration for inclusion in panel discussions.  We expect that for each day of the program, there will be approximately 5-10 speaking slots available. Contributions to be presented at the research roundtable should be works in progress, not published (or committed to publication) prior to the conference.  Contributions to be presented as part of the policy program may be works in progress or may be work published (or committed to publication) prior to the conference. A brief description of possible panel topics to be addressed in the policy program is provided below; please understand that this listing is intended to provide directional guidance on possible panel and research paper topics and should not be viewed as limiting the potential issues to be addressed.

Those interested in presenting at either the research roundtable or the policy program portion of the Conference should send an abstract of no more than 500 words describing their proposed presentation, an indication of whether the proposal is for the research roundtable or the policy program, and a copy of their CV to Alice Abreu at taxandgender@temple.edu. If the proposed panel presentation is based on a published or soon-to-be-published work, please also attach a copy or draft of the work. Expressions of interest are due by March 15, 2020. The Academic Advisory Committee expects to notify accepted participants by May 1, 2020. Accepted participants should submit circulation drafts of the work to be presented no later than August 14, 2020.  Selected participants may be invited to publish their completed papers in The Tax Lawyer or may choose to publish elsewhere. (The Tax Lawyer is the flagship scholarly journal published by the Tax Section of the American Bar Association and is published in cooperation with the Graduate Tax Program of the Northwestern University Pritzker School of Law; it has a robust circulation both in print and through electronic access).

Limited funding may be available for reasonable travel expenses of those selected to present their work; in your expression of interest please indicate whether you will need financial assistance to participate in this event.  There is no fee for attending the conference. The conference will be webcast and is open to members of the public.

We look forward to hearing from many interested potential contributors.

Organizers: Julie Divola (Pillsbury Winthrop Shaw Pittman and American Tax Policy Institute), Elaine Maag (Tax Policy Center), and Alice Abreu (Temple Center for Tax Law and Public Policy and American Tax Policy Institute)

Academic Advisory Committee:  Alice Abreu (Temple), Bridget Crawford, (Pace) Anthony Infanti (Pittsburgh), Ariel Jurow Kleiman (San Diego), and Stephen Shay (Harvard)

POSSIBLE DISCUSSION TOPICS

The following is a representative list of panel topics for the policy program.  Final panel topics will be determined based upon the abstracts received in response to this Call for Contributions.

1. In general:  A review of the positive and negative (intentional and unintentional) impacts of tax laws on gender equality, including a broad discussion of the form such tax laws can take (e.g., the marriage penalty, deductions or exemptions for entrepreneurial efforts,  consumption vs. income taxes, wage withholding taxes, pink taxes, corporate tax expenditures). 

1. Impacts of U.S. tax laws on gender equality.  Possible topics for separate panels include:

1. Specific issues under the TCJA.
2. A comparisons of gender equality issues as reflected in the tax reform proposals advanced by the current presidential candidates.

1. One or more topics covered in three interrelated reports prepared by the National Women’s Law Center (NWLC) that examine the federal tax code with a focus on gender and racial equity and explore policies to make the tax code work for everyone.  (See (i) The Faulty Foundations of the Tax Code:  Gender and Racial Bias in Our Tax Laws, (ii) Reckoning with the Hidden Rules of Gender in the Tax Code: How Low Taxes on Corporations and the Wealthy Impact Women’s Economic Opportunity and Security and (iii) The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws at https://nwlc.org/resources/gender-and-the-tax-code/.)  The papers were prepared by NWLC in collaboration with Groundwork Collaborative, the Roosevelt Institute, and the Georgetown Center on Poverty and Inequality. 

1. Impact of U.S. tax administration (including collection and other enforcement efforts) on gender equality (e.g., innocent spouse relief).

1. Discussion of the economic impact of tax laws that influence gender equality (e.g., distributional effect on how income is distributed between the sexes and allocative effect on how paid and unpaid labor is allocated between the sexes).  General discussion of the connection between gender equality and economic growth.

1. Examination of tax systems in countries that have historically been more thoughtful than the United States on the question of taxation and gender equality, including measures such countries have taken to advance the issue.  For example, the German Technical Cooperative has a program to support OECD partner countries in their efforts to reform tax policy and tax administration to avoid or eliminate gender bias.

1. Examination of the impact of tax laws on gender equality in developing countries.  For example, the International Centre for Tax and Development with support from the Bill and Melinda Gates Foundation has done research in this area.

1. Use of gender-neutral language in the tax law and government publications and encouraging equivalent use of names that suggest male, female, and indeterminate genders and the accompanying pronouns.

7th Circuit Decides Same-Sex Parents Case

From Slate:

Indiana must list same-sex parents on their child’s birth certificate, the 7^th U.S. Circuit Court of Appeals ruled on Friday in a 10-page opinion that took 32 months to issue.

The case, Henderson v. Box, is easy to resolve under Supreme Court precedent. In his decision for a unanimous panel, Judge Frank Easterbrook explained that Indiana’s parentage scheme unconstitutionally discriminates against same-sex couples. When an opposite-sex couple has a child, the law grants a “presumption of parenthood” to the father and lists him on the birth certificate. But when a same-sex couple has a child, the law denies that presumption and forces the second parent to undergo the arduous, expensive process of adopting their own child. Thus, when a woman married to a man uses a sperm donor, her husband is deemed the child’s father. When a woman married to a woman uses a sperm donor, by contrast, her wife is denied legal parenthood. Moreover, a child born to married opposite-sex couples are deemed to be born “in wedlock,” while children born to same-sex couples are considered to be born “out of wedlock.”

Read more here.

Telework

From Naomi Cahn (GW), writing for Forbes:

In the private sector, telework is rising. As many as 43% of all employees spend at least some time working remotely, at a location that differs from their coworkers.  

Yet, the Washington Post reported earlier this month that the federal government is seeking to limit telework at a number of agencies because of worries that employees are “slacking off.”  

There are lots of semi-truths about telework —and work/life balance — and there are lots of ways that workers can respond to the challenges of telecommuting. 

Read more here.

Legislature Passes Family Leave Bill Opposed by GOP Governor

From U.S. News 

The Vermont Legislature has given final approval to a bill that would guarantee workers as many as 12 weeks of paid family leave, but its future is uncertain.

The Vermont House gave final approval to the billion Thursday after lawmakers in the chamber agreed to a version given final approval by the Senate this month.

Read more here 

US imposes visa rules for pregnant women on ‘birth tourism’

From AP News

The Trump administration is imposing new visa rules aimed at restricting “birth tourism,” in which women travel to the United States to give birth so their children can have U.S. citizenship. The regulations, which take effect Friday, address one of President Donald Trump’s main political priorities.

The regulations seek to chip away at the number of foreigners who take advantage of the constitutional provision granting“birthright citizenship” to anyone born in the United States, a particular peeve of Trump’s. Under the new rules, pregnant applicants will be denied a tourist visa unless they can prove they must come to the U.S. to give birth for medical reasons and they have money to pay for it or have another compelling reason — not just because they want their child to have an American passport.

Read more here

Israel Signs Pact to Bar Gay Couples From Adopting Russian Babies

From Haaretz 

Israel signed an agreement with Russia on Wednesday that precludes LGBTQ parents from adopting Russian children. While the agreement does not spell this out, it notes that adoptions will be done in line with the laws of both countries. Since in Russia LGBT parents are barred from adopting children, this will now apply to Israelis seeking to adopt in Russia.

Before the signing of this agreement, Russia was the only country allowing Israelis to adopt children, with the procedure being managed by the Ministry of Social Affairs.

Read more here 

Court Takes Another Look at Native American Adoption Law

From Journal Review 

Federal appellate judges closely questioned attorneys for the government and Native American tribes Wednesday over whether a law meant to preserve Native American families and culture unconstitutionally intrudes into state adoption issues.

It was the second time in a year that the 5th U.S. Circuit Court of Appeals was considering the future of the 1978 Indian Child Welfare Act. A three-judge panel of the appellate court upheld the act in August .

Opponents of the law — including non-native families who have tried to adopt American Indian children — sought and got a full court re-hearing. Sixteen judges heard the latest arguments.

Aside from strictly legal issues, the case sparks strong emotions. Matthew McGill, representing families challenging the law, told the court that one set of would-be adoptive parents had a child “pried out of their arms because she was not an Indian.”

Outside the courthouse, Rosa Soto Alvarez, of Tuscon, Arizona, held onto the flag of the Pascua Yaqui tribe. She said the ICWA helped her and her three siblings get adopted by a Native American family after her mother's suicide when she was 11.

“Because I grew up in a Yaqui home, and knowing our culture and tradition, I was elected to be in tribal leadership,” said Alvarez, a member of the tribal council.

Read more here 

Proposed bill would let younger children speak in child custody cases

From WHSV3

A bill is set to be passed in the West Virginia House of Delegates to change when a child can talk and give a preferred outcome in a custody case.

The proposal by Delegate Geoff Foster would allow a child of any age to speak in a hearing if the judge believes they are mature enough. Currently, the child must be at least 14 years old to even be considered fit.

"We've got an arbitrary number in our family court system that says basically a child's opinion doesn't matter whether the judge thinks they are of sufficient mindset of maturity to make a relevant decision," Foster said.

The bill would allow a child more options in a tough situation, Foster said. Most often, a child wants to spend as much time with both parents as possible.

"Children do best when they have contact with both parents," psychologist Dr. Timothy Saar said. "Very young children need to have very frequent contact going back and forth. Older children can do a little bit better with longer times between visitation. But it is important that there is communication between the children and both sets of parents."

Read more here

 

Judge censured after representing daughter in family law court

From ABA Journal 

Judges aren’t supposed to represent clients, but that didn’t seem to stop William Edwards, who sits in Westchester County, New York.
According to a State of New York Commission on Judicial Conduct determination released Jan. 10, Edwards on three separate occasions appeared as an attorney for his daughter in Albany County Family Court. The appearances took place between November 2015 and April 2016, with two of the three matters involving petitions for protection orders.
The commission found that Edwards’ conduct was close to warranting removal, but because he had admitted that his behavior warranted public discipline, and the body was confident that he’d follow judicial conduct rules going forward, censure was appropriate.

Read more here 

Adoptees Can Access Birth Certificates Under New NY Law

From The Associated Press

New York has become the 10th state to allow adopted adults unrestricted access to their original birth certificates, a step that will help some people investigate their family histories.

A new law effective Wednesday does away with restrictions dating back to the 1930s that required an adoptee to seek a hard-to-get court order to access original birth records.

Those rules had originally been intended to protect the privacy of parents who relinquished their children. But attitudes about the rights of adopted individuals have shifted, while social media and DNA technology have made it easier for long-separated relatives to connect.

Read more here 

Three Texas towns vote in favor of "sanctuary cities for the unborn," hoping to ban abortion

From The Texas Tribune 

Three Texas towns recently voted in favor of anti-abortion ordinances, extending the reach of a campaign to create “sanctuary cities for the unborn” across the state.

The city councils of Big Spring and Colorado City — with populations around 28,000 and 4,000, respectively — voted Tuesday for a version of the controversial ordinance, which started popping up in small towns in East Texas last year. The ordinance aims to outlaw abortion if the U.S. Supreme Court makes it possible to do so. It also grants family members of women who have abortions the ability to sue the provider for emotional distress.

Read more here 

Trial by Combat

From the Des Moines Register:

A Kansas man has asked an Iowa court to grant his motion for trial by combat so he can meet his ex-wife and her attorney "on the field of battle where (he) will rend their souls from their corporal bodies."

...

He asked the Iowa District Court in Shelby County to give him 12 weeks "lead time" in order to source or forge katana and wakizashi swords, as first reported by the Carroll Times Herald. 

"To this day, trial by combat has never been explicitly banned or restricted as a right in these United States," Ostrom argues in court records, adding that it was used "as recently as 1818 in British Court."

Read more here.

Massachusetts Bill Would Allow Abortion until Birth

From National Review 

The bill, called the “Roe Act,” defines “mental health” in the exact same expansive language that the Supreme Court used in the Roe v. Wade companion case Doe v. Bolton: “all factors—physical, emotional, psychological, familial, and the person’s age—relevant to the well-being of the patient.” This lenient definition essentially allows for abortion on demand up until the moment of birth.

The Roe Act also would permit abortion after viability if a doctor deems the unborn child  “incompatible with sustained life outside the uterus.” Though the right to abortion is already protected by the Massachusetts state constitution, this legislation would enshrine that right in law as well.

The Guttmacher Institute, a pro-choice research group, frequently ranks Massachusetts as only a “middle-ground” state for abortion rights, chiefly because the state still requires minors to obtain parental consent before seeking an abortion. The new legislation would change that, allowing any woman — or, as the bill puts it, “pregnant person” — to obtain an abortion as long as she has given informed consent. Twenty-one states currently require parental consent for minors, eleven require only parental notification, and five require both parental notification and consent.

Read more here 

 

Same-Sex Marriage in China

From NBC News:

China has taken a step forward to allow same-sex marriage, a move that could undo years of discrimination, delight rights activists and give new rights to the LGBTQ community "after years of hiding and struggling."

A body of the National People's Congress, the country's highest law-making institution, has publicly acknowledged petitions to legalize same-sex marriage, a rare development that has triggered a nationwide discussion of a topic that was once taboo.

Expectations are raised that the nation, which is led by the Communist Party, might eventually join the growing number of countries that have passed legislation protecting the rights of lesbian, gay, bisexual, transgender and queer people.

Read more here.

Modern Marriage

From the Atlantic:

Stephanie Coontz, a historian and the author of Marriage, a History: How Love Conquered Marriage, told me in an email that for thousands of years, marriage was a way for families to solidify alliances, make economic connections, and maintain reputations. Marrying for love became the norm among the middle classes in the 20th century, but the aristocracy—and especially the monarchy—have held on a little more firmly to the old model of marriage. For example, as viewers of the latest season of The Crown know, Camilla Parker Bowles, the first love and now wife of Prince Charles, was initially rejected by the royal family in the ’70s as a fiancée for Charles because of her “unsuitable” status as a commoner. Charles later married Diana Spencer, a 20-year-old who had worked as a nanny and preschool teacher but was technically British nobility.

Both Prince William and Prince Harry made more contemporary choices of partners than their father did; both married women without noble titles and married for love. “But Harry and Meghan have taken it a step further,” Coontz wrote, in that they seem to have embraced the most modern form of the love marriage: the purposefully egalitarian marriage. In these marriages, both partners prioritize the other’s happiness (as opposed to the old-fashioned notion of the subservient wife, who puts her husband’s needs and wants above her own) and take on responsibilities that play to their strengths rather than to preconceived gender-specific roles.

“It’s not just that [Meghan] expects him to take account of her feelings and work to make her happy ... To make room for her to pursue a life that is not based upon her playing the ornamental wifely role, Harry seems willing (perhaps even relieved) to back out of his traditional class role,” Coontz wrote. “They certainly have moved a long way toward acceptance of the modern ideal of a marriage where each partner has to take account of the other’s desires, interests, and aspirations outside the family as well as inside it.”

Eli Finkel, a psychology professor at Northwestern University and the author of The All-or-Nothing Marriage, meanwhile, has a theory that over generations, couples have come to expect more and more from the institution of marriage. Early on, as Coontz noted, people married for economic security; later, people began to marry for love and companionship, but many also expected marriage to deliver economic security. Most recently, married people have added personal growth to the mix, expecting that, as Finkel told my colleague Olga Khazan in 2017, “our spouse will help us grow, help us become a better version of ourselves, a more authentic version of ourselves.”

In some senses, Finkel said, the Duke and Duchess of Sussex are a perfect example of an ideal modern marriage, in that one partner has sacrificed a great deal to prioritize the other’s ability to live the way she wants. “We used to have these norms of responsibility to broader social units, these ideas that you were supposed to do what your community thought was appropriate. And if that meant that you were gay and had to hide your sexuality, well, then, that was the right thing to do,” Finkel told me in an interview. “Increasingly, the idea that we should have to live an inauthentic life is abhorrent. I think more and more of us view it as something close to immoral—like we shouldn’t force people to live a life where they have to suppress who they really are.”

Read more here.

Spousal Privileges

From Naomi Cahn (GW), writing for Forbes:

In 2016, Carole and Carlos Ghosn celebrated their marriage – and her 50^th birthday – at the palace of Versailles. 

 Apparently, the film, Marie Antoinette, was the inspiration for the party, and the event included actors in period costumes. 

 Ironically, just like Marie Antoinette, Carole Ghosn’s fate is closely tied to that of her husband. Japan has issued  an arrest warrant for Carole Ghosn, based on claims that she provided false testimony in her husband's case.

Read more here.

Ikea Reaches $46 Million Settlement Over Death Of Toddler Killed By Dresser Tip-Over

From NPR 

Ikea has agreed to pay $46 million to a California family whose 2-year-old son, Jozef Dudek, was killed when an unsecured Ikea dresser fell on top of him. The family's lawyers say the dresser model was "inherently unstable."

At least eight children are believed to have been killed by dressers that the Swedish furniture giant has recalled, according to the U.S. Consumer Product Safety Commission. Daniel Mann, a lawyer for the Dudek family, said that millions of the recalled dressers may still be in use.

The recalled dressers pose a risk of tipping over if they are not secured to the wall. Ikea has previously said that the products were not designed to be free-standing.

Joleen and Craig Dudek, Jozef's parents, say that they are "telling our story because we do not want this to happen to another family."

Read more here