Family Law Prof Blog

Covid Pushed Relationships to Breaking Point

From CNBC:

Couples fight over the decision of child vaccination since the outbreak of COVID-19. Recently, lawyers and psychologists have found that the very existence of COVID and the new variants have impacted adversely on relationships. The emotional impact from the new COVID lifestyle is the catalyst for relationship breakdown.

While many families have enjoyed spending more time together during the pandemic, there are some relationships that have failed to thrive during a period of unprecedented upheavals and uncertainties.

COVID has caused wrangling over children. For example, child vaccination; whether child should attend homeschool or public school; and couples' differing opinions over other issues. The very existence of COVID is another source of conflict among the couples. COVID denial is one big source. For instance, one person is fully aware of COVID's existence while the other is not. Consequently, couples must face the challenge of living together but constantly arguing over which lifestyle should they lead.

Read more here.

Abortion or Adoption?

From Angelus News:

Justice Barrett, during oral arguments for Dobbs v. Jackson Women's Health, raised a question of whether abortion is needed in a world where adoption is available, especially when "Safe Haven" laws anonymously allow for dropping off a newborn at a hospital or other emergency response locations.

There are many reasons to why women choose abortion over adoption. But neither option is easy. Based on the status, there are more than 400,000 children in foster care in the United States. Many children in foster care would have to overcome hardships from abusive or drug-addicited homes, especially during the time of pandemic.

Rrecent cases addressing abortion issues brought back the long-term debate by the proponents and opponents on how abortion should be treated. The level of attention of the debate remained a constant.

Read more here.

Will Marital Rape Remain Constitutional in India?

From India Today:

In the process of hearing final arguments in a series of public interest litigations (PILs) challenging the "marital rape exception" clause in Section 375 of the Indian Penal Code (IPC). The Delhi High Court is facing a big challenge on the issue of whether marital rape should be constitutional.

The exception provides that any sexual act performed by a man on his own wife is not rape as long as the wife is not a minor. The ongoing debate focuses on man's rights in a marraige. The issue is more complex when minor marriage is not prohibited in India.

Martial rape has legal and societal concerns. For example, the issue of social disharmony, damage to marriage and family systems, the definition of consent and whether implied consented is included, and the expectation of conjugal relationship and the social construct of marriage based on implied sexual and emotional companionship.

Read more here.

England and Wales: A Rise in Divorce is Expected From New Legislation

From Financial Times:

The Divorce, Dissolution and Separation bill will come into effect in April and has been hailed as the biggest shake-up in divorce law for 50 years. Attributing fault is going to be no longer needed. Instead, it is sufficient to show irretrievable breakdown of a marriage as the sole ground.

Under current law, couples seeking divorce must either live separately for a period of time or are capable of showing some kind of fault. Most importantly, the duration of living separately is long. If one party does not give consent, the couple must live separately for five years before a divorce can proceed.

            Under the new law, lawyers are expecting a rise in divorce.

Read more here.

Family Law Position

Position Summary

Drake University Law School seeks to hire one or more Visiting Professors (Assistant, Associate, or Full Professor level) for one or two semesters during Academic Year 2022-2023. We seek candidates with J.D. degrees (or their equivalent), relevant professional experience, and a commitment to outstanding and inclusive pedagogy. We are especially interested in candidates with demonstrated interest or experience in Civil Procedure, Tax, Commercial Law/Bankruptcy, Professional Responsibility, Contracts, and Family Law.
Required Qualifications

* JD or equivalent degree.
Preferred Qualifications

* Experience in law school teaching.

About the Law School
Located in the vibrant city of Des Moines, Iowa’s capital, the Law School features innovative and nationally recognized programs in agricultural law, constitutional law, legal research and writing, and practical training. Drake University is an equal opportunity employer and actively seeks applicants who reflect the nation's diversity. No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity, sexual orientation, genetic information or veteran status. Diversity is one of Drake's core values and applicants need to demonstrate an ability to work with individuals and groups of diverse socioeconomic, cultural, sexual orientation, disability, and/or ethnic backgrounds.

Application Deadline
You are encouraged to submit an application as soon as possible. Applications will be reviewed as they are received and will continue to be reviewed until positions are filled.

Andrea Charlow
Professor of Law
Drake University Law School

South Dakota: Proposal to Ban Almost All Abortions

From CBS News:

South Dakota Governor Kristi Noem on Friday unveiled a proposal to ban nearly all abortions, mimicking a Texas law that leaves enforcement up to private citizens through lawsuits instead of through prosecutors and criminal charges.

Noem's law would punish people who aid someone in getting an abortion with a minimum $10,000 penalty, in addition to legal fees and other potential compensation. It makes no exception for rape or incest, except stipulating that a man who commits the rape or incest cannot sue.

Noem said in a statement that she was hoping the Supreme Court would strike down Roe v. Wade - the 1973 landmark decision that established a nationwide right to an abortion. South Dakota has a law that would outlaw abortions if that happened.

Read more here.

Lawsuits Pressuring Sperm Donation

From Naomi Cahn (UVA) & Sonia Suter (GWU), writing for the Conversation:

When Wendy and Janet Norman decided to have a baby, they went sperm shopping through Xytex Corp., a sperm bank.

The couple chose Donor #9623. Xytex, the Normans later claimed, told them the man spoke multiple languages and was pursuing a doctorate.

Xytex had also assured them that it carefully screened all donors by reviewing their family health history and criminal records and that it subjected donors to intensive physical exams and interviews to verify the information.

But after Wendy Norman gave birth to a son in 2002, the couple learned their child had inherited a genetic blood disorder for which Wendy was not a carrier. He would, much later, require extended hospitalizations because of suicidal and homicidal thoughts.

Even later, they learned that the donor, James Christopher Aggeles, had lied to the sperm bank about his background and that the sperm bank had not verified the information he provided. Nor did it make him supply his medical records or sign a release that would have made it possible to obtain them.

As law professors who study reproductive technology, we see this case and others like it as showing why the government should tighten regulations over sperm and egg donation so that prospective parents and donor-conceived adults receive accurate and complete details about their donors’ medical, academic and criminal history.

Read more here.

Iowa Supreme Court Ruling : Parents Have Preference in Child Custody Cases

From The Gazette:

Iowa Supreme Court ruled that parents must be given preference in regaining custody of their children in cases where other people have been caring for their children through a guardianship.

When parents are seeking the return of their children and dissolving of a guardianship, there is a rebuttable presumption that it is in the child's best interests for the minor child to be reunited with parents. The underlying reason, according to the court, is that parents have a fundamental right to the care, custody and control of their children.

In this case, a girl was born to a 16-year-old woman. The marriage failed and the child went back to live with her grandparents, with visits from her mother on weekends. Accordingly, mother and grandparents agreed to a temporary guardianship. When the mother seeks to regain custody of her daughter, she has demonstrated the ability to provide a place for her daughter as well as the ability to support and care. 

The juvenile court terminated the guardianship. The grandparents appealed and Iowa Court of Appeals reserved it after weighing on what is in the best interest of the daughter. The Supreme Court overturned the appeals court.

Read more here.

Montana: An Increase in Domestic Violence

From KRTV Great Falls News:

Victim-Witness Assistance Services (VWAS), a non-profit organization that specializes in helping victims of domestic violence in Great Falls, is seeing an increase in calls. The numbers show that just the last quarter from October to December, 133 domestic violence packets have been distributed.

While laws and regulations regarding domestic violence continue to be developed every year, certain acts of crime remain to be an issue around the community, most notably, the anti-strangulation law, which took effect May 19th, 2017.

Last year, the Montana Legislature approved House Bill number 449, requiring judges to order electric monitoring as a condition of release for certain crimes, including strangulation. 

Read more here.

 

Oregon: Trained, Licensed Paralegals May Provide Limited Legal Services in Family Law

From OPB News:

The Oregon Supreme Court is considering a proposal that would allow trained, licensed paralegals to provide limited legal services in family law and landlord/tenant cases. The proposal has been compared to the distinction between nurse practitioners and doctors.

The following is the summery of conversation between the chair of the Paraprofessional Licensing Implementation Committee for the Oregon State Bar and senior circuit judge in Oregon. The reason behind the proposal is that less people are able to get legal assistance in civil matters in the states courts in Oregon. This issue is more significant in family law and landlord tenant law. For example, the issue of custody or child support. As a result, more litigants proceed through court proceedings without ever having access to a lawyer.

Another concern is that while indigent party will be represented by an attorney appointed by the court, there is no such arrangement in civil proceedings. There are not enough attorneys in many places in the state.

Read more here.

South Dakota: A Reduction of Child Support Payments for Parents at Lower Income Levels?

From KELOLAND.com:

South Dakota's Child Support Commission has made a big change recently to its recommendations. The commission previously recommended reductions for payments at lower income levels based on the concern that many non-custodial parents in South Dakota have difficulty making full payments to the custodial parents, especially when the two parents have lower amounts of combined net income. It is a difficult question as the commission also does not want to see any custodial parents who currently receives a full payment to receive a smaller amount.

The commission was scheduled to submit its report to the governor and the Legislature and end its work no later than December 31, 2021. Governor Kristi Noem however issued an executive order on December 30 extending the commission through March 31, 2022.

The reductions that the commission originally recommended on November 18 would have affected parents differently, depending on the amounts of their monthly combined income. Later, the commission recommended a different schedule, known as Option A. This proposal increases amounts and would eliminate all previous recommended reductions. The board convened to further analyze any decrease in child support.

Read more here.

China: Cooling-Off Rule Slows Down Divorce Rate

From South China Morning Post:

Chinese provinces have reported a significantly lower rate of divorce and claim it is due to a cooling-off period under new rules. China adopted a rule requiring a 30-day cooling-off period for divorce seekers in anticipation of filing a dissolution of marriage. In January 2021, China introduced this rule as a move the government said was aimed at improving social stability, however many people regarded the rule as an interference with the freedom of marriage.

About a year after the rule has been enacted, a decline of divorce rate seems to suggest the efficiency of this enacted rule. The civil affairs bureau in western China’s Chongqing municipality said earlier this month that over 50,000 estranged couples decided against divorcing each other during the one-month waiting period last year, contributing to a 44 per cent fall in divorce numbers since 2020. Eastern China’s Qingdao city, Shandong province, witnessed the lowest divorce number in a decade with just 16,000 break-ups in 2021, down 33 per cent from the previous year, the government said.

While many local governments claimed the cooling-off measure is “working very well”, Shanghai-based psychologist Huang Jing said judging from the perspective of individual happiness that getting a divorce is only a knee jerk reaction to an ailing marriage, it does nothing to heal it.

Read more here.

Nigeria: Child Marriage Is Still Prevalent

From Human Rights Watch:

The federal and state governments have not adequately enforced laws to prevent child marriages in Nigeria. However, child marriages violate girls' rights.

Nigeria’s rates of child marriage are some of the highest on the African continent. In August and September 2021, Human Rights Watch remotely interviewed 16 married girls between the ages of 14 and 19, and representatives at eight civil society organizations working to end child marriage and gender-based violence in Imo and Kano states. The interviews revealed that married girls in Imo and Kano states are denied their fundamental rights to education, a safe dwelling, and freedom from violence, and often do not have access to adequate health care. Without strong regulatory protections for girls, families force them into early marriage for several reasons, including religious and traditional practices and to avoid the social stigma over teen pregnancy.

There is an urgent need for Nigeria to harmonize its laws to conform to international legal standards to protect children from marriage. The Child Rights Act should be adopted and put into practice by all states. 

Read more here.

Agency's Data Under Scrutiny: FDA Data on Chemical Abortions

From Fox News:

Last month, the Food and Drug Administration cited its adverse event (AE) reporting data in justifying its decision to remove the drug's in-person requirement. "FDA determined that the data support modification … to reduce burden on patient access and the health care delivery system and to ensure the benefits of the product outweigh the risks," the agency said.

But a group of anti-abortion physicians is claiming that available data shows a "significant discrepancy" between FDA data and reporting from sources that inform those numbers. Determining the FDA's accuracy is relatively difficult as it requires comparing the agency's own data with those of private entities like Planned Parenthood. The FDA relies on AE reporting from Danco Laboratories, which manufactures the abortion pill and uses AE's reported by Planned Parenthood. Danco did not respond to Fox News Digital's request for comment. 

This isn't the first time the agency's data has come under scrutiny. Critics of chemical or medicinal abortion contend that both U.S. data and the FDA's knowledge of so-called "adverse incidents" is woefully inadequate.

Read more here.

Prenuptial Agreement Serves as a Protection of Family Business

From Lexology:

Family business owners and their children who might own or participate in the business are frequently advised to prepare a prenuptial agreement as part of the marital process. 

The reason is that the appreciation in value of a business can be deemed a marital asset if the appreciation takes place during the marriage. There are precedent cases addressing the complicated issue of dividing appreciation in value incurred during the marriage at divorce proceedings. While most couples acknowledge the importance of preparing prenuptial agreement structuring a plan to preserve real or personal properties, fewer notice the potential issue on business appreciation.

While preparing prenuptial agreement, it is important to consider the jurisdiction of the parties and the marital property regime since some states are community property states while others are separate property states. The property division in divorce under those two models are based on different calculations and considered on different factors.

Read more here.

Kerala, India: Family Courts Now Have Jurisdiction Over Child Adoption Issues

From Live Law:

The Kerala High Court has recently laid down that the Family Court with the respective territorial jurisdiction is empowered to give a child in adoption. 

A couple seeking to adopt the child filed a plea before the District Judge in order to legalize the proceedings. However, the complaint was dismissed on the ground that the court had no jurisdiction to adjudicate upon the issue of adoption and the Child Welfare Committee is the appropriate destination for this matter. Challenging the same, the parties moved to the High Court.

Justice M.R. Anitha, under the Adoption Regulations 2017, observed that "the finding of the learned District Judge that the court is not a proper forum and they have to approach the Child Welfare Committee is illegal and perverse." The Court noted that as per law, he appellants were eligible to adopt the child and the Family Courts are designed as Adoption Court.

Read more here.

United Arab Emirates is Relaxing Laws on Sex, Marriage, and More

From NPR:

The United Arab Emirates (UAE) is known for its conservative Muslim laws. Under the laws, foreigners can be placed in jails for a kiss in public. Now, the UAE is overhauling laws that affect how it regulates a wide array of business, cultural and social norms. However, the reality remains much more complex.

The country now allows for civil marriage — not just marriage under Islamic law — a practice that remains unavailable in many other countries in the Middle East. And foreigners can follow their home countries' laws on some matters, such as inheritance and divorce.

Another more publicized legal changes is the decriminalization of births outside of marriage. However, more interpretation as to the legal terms is required and a evenly implementation is desired.

Read more here.

Same-Sex Marriage Equality Remains Vulnerable at State Level

From NBC News:

As a majority of the Supreme Court's conservative justices appeared open to overturning Roe v. Wade last month, new fears that the court could also make an about-face on the Obergefell v. Hodges ruling have promoted some lawmakers to enshrine same-sex marriage into state law. New Jersey enacted a law Monday to protect same-sex marriage right throughout the State.

LGBTQ advocates that the justices might also walk back precedent on other cases, including Obergefell. Although many states and U.S. territories had already legalized marriage equality before Obergefell's decision legalizing same-sex marriage nationwide, only 19 states had legalized the nuptials through state legislation. Accordingly, if the Supreme Court were to overturn Obergefell, same-sex marriage would be prohibited in the majority of the country.

Over the decades, the court has struck down state laws that tried to prevent people from marrying on the basis of their race, criminal history and their ability to pay child support payments. 

Read more here.

Lack of Legal Protections for Same-Sex Partnerships in South Korea

From Human Rights Watch:

The registration of same-sex marriage does not guarantee an enjoyment of legal rights and protections among same-sex partnerships in South Korea. A couple sued to have the health insurance benefits restored after the National Health Insurance Service (NHIS) took away one of the couple's entitlement to access the plan after the story of their same-sex partnership registration went public.

The court in South Korea, in its ruling last week, declined to recognize the couple as common law spouses, citing the lack of legislative recognition of same-sex partnerships in South Korea.

This ruling shows that LGBT South Koreans are being denied many of the same opportunities as others. A potential abuse from the ruling may thus harm the South Korea LGBTQ+ community severely with such unequal and discriminative treatment.

Read more here.

 

More Restrictions on Seeking Medication Abortions in South Dakota

From CNN:

Seeking a medication abortion becomes harder in South Dakota under the new rule. The new rule requires woman who seeks a medication abortion by taking mifepristone and misoprostol a in-person visit at a licensed abortion facility to obtain those. Under this new rule, South Dakota will be the first state demanding a in-person visit to get the medication abortion drugs.

Typically, women are given both drugs in the same visit to their doctor or a clinic. They take the mifepristone pill at the clinic and are instructed to take the misoprostol pill at home a day or two later. Under the new regulation, women in South Dakota will now effectively be required to make four visits to a licensed abortion facility for a medication abortion. The rule comes after the Biden administration temporarily relaxed federal regulations on medication abortion in April, removing the requirement that mifepristone be dispensed in person during the Covid-19 pandemic.

Proponents of the rule, including several South Dakota physicians, testified that removing in-person visits could lead to life-threatening health complications for pregnant women. Opponents of the rule raised the potential violation of constitutional rights and concerned that new rules would not make the care safer.

Read more here.