Family Law Prof Blog

Blue Moon, You Saw Me Standing Alone.....Happy Halloween, Full Moon, & Blue Moon to all Social Distancers

Loving v Virginia: Lawyer in Famed Interracial Marriage Case Dies

From BBC:

The lawyer who successfully petitioned the US Supreme Court to strike down anti-interracial marriage laws has died at 86, according to his family.

Bernard S Cohen represented the Loving couple in a lawsuit against the state of Virginia in 1967. Their name ensured it would be a landmark case, he told US media.

In a 1992 interview with the Associated Press, Cohen said that while discussing legal strategy with his clients, Mr. Loving simply told him: "Mr. Cohen, tell the court I love my wife and it is just unfair that I can't live with her in Virginia."

Read more here. 

In Japan, Divorce Can Mean Losing Access to Children. Many Parents Want That to Change.

From the Washington Post:

Japan is unusual among developed nations in not recognizing the concept of joint custody. Its custom of granting sole custody to one parent means that hundreds of thousands of mothers and fathers face potential barriers to seeing their children, and that children are being denied the right to see both of their parents as they grow up, lawyers say.

But now, a combination of international pressure and a legal effort in Japan could bring a reexamination of the country’s custody laws. Tomoshi Sakka, a lawyer who has handled rights cases, said there is growing public awareness that children have fundamental rights of their own to see both parents.

Japanese courts operate on what’s known as the “continuity principle,” almost always granting sole custody to whoever has physical control of the children when a case comes before them.

That reflects Japan’s now-abolished family system that saw children as “possessions” of households and the prevailing idea that courts shouldn’t disturb those households. It is also an idea Japan’s conservative establishment clings to.

 

Read more here.

Polish Woman's Quest For Abortion Exposes Conflicted Society

From Reuters:

In April, in the midst of a nationwide coronavirus lockdown in Poland, Katarzyna found out that the baby she was carrying had a severe genetic disorder and would probably die before birth or shortly after. She immediately decided to terminate the pregnancy. When she finally managed to, five weeks later and after meeting some 10 doctors, securing a fallback plan in Germany and researching home methods, she knew she would not try to get pregnant again.

Terminations like hers are at the heart of a fierce public debate about abortion rights in predominantly Catholic Poland, expected to culminate with a rare ruling by the Constitutional Tribunal as early as Thursday on whether they are permissible.

Many doctors in Poland, which has some of the strictest abortion rules in Europe, already exercise their legal right to refuse to terminate pregnancies on religious grounds. Some say they are pressured into doing so by their superiors.

Read more here.

In Shift for Church, Pope Francis Voices Support for Same-Sex Civil Unions

From The New York Times:

Pope Francis expressed support for same-sex civil unions in remarks revealed in a documentary film that premiered on Wednesday, a significant break from his predecessors that staked out new ground for the church in its recognition of gay people.

The Vatican and allies of Francis publicly cast doubt on the notion that the pope said the remarks to Mr. Afineevsky, asserting that the pontiff instead had made them to a Mexican journalist, Valentina Alazraki, in an interview in the Vatican in May 2019. Earlier on Wednesday, Ms. Alazraki had told The Times that she did not recall the pope making the comments to her.

“This is a major step forward in the church’s relationship with L.G.B.T.Q. people,” said the Rev. James Martin, a Jesuit priest who has written a book on how to make gay Catholics feel more welcome in the Church, and who has met with the pope and served as a consultor for the Vatican’s Secretariat for Communications.

Read more here. 

Call for Papers: SEALS Discussion Group: Family Law Scholarship (& Beyond)

We are seeking participants for a proposed discussion group for next year's Southeastern Association of Law School's conference, to be held at the Boca Raton Resort & Club in Boca Raton, Florida from July 26-August 1, 2021.  

Scholarship in family law is dynamic and often overlaps with other areas of the law, including civil rights, civil liberties, health law, feminist jurisprudence, queer theory, employment discrimination, and trusts and estates, among others. This discussion group will provide an opportunity for participants to discuss drafts of their papers that draw upon family law, including those that overlap with other areas of the law. Participants will have an opportunity to explore symmetries and differences between their various scholarly projects, as well as invite audience participation and discussion. 

Questions about the discussion group may be directed to the co-organizers, Meghan Boone and Naomi Cahn.  Interested participants should send a one-page abstract or proposal to Meghan Boone at boonem@wfu.edu and Naomi Cahn at ncahn@law.virginia.edu by October 29, 2020.  Consistent with the values of SEALS, the organizers will endeavor to make the group a diverse one and to welcome new and junior scholars. More information about the SEALS conference can be found at: https://sealslawschools.org/.

Domestic Violence in Indiana Has Spiked During the Pandemic and Deaths From Those Cases Are Up 86%

From WRTV:

The Indiana Coalition Against Domestic Violence has reported the number of deaths related to domestic violence has increased in our state by 86% compared to this time last year.

Non-profits like Silent No More and emergency shelters are working double-time to find people safe housing. But doing so with limited resources, as shelters operate at limited capacity because of COVID.

As the need only increases and situations become direr, Smith says, “To those victims, try to keep them encouraged as much as possible. Know that there are survivors out here they’re willing to work with you and working through that experience with you so that you know you’re not alone.”

Read more here.

Dutton & Ryznar: "Law School Pedagogy Post-Pandemic: Harnessing the Benefits of Online Teaching"

Yvonne Dutton & Margaret Ryznar have recently posted to SSRN their article Law School Pedagogy Post-Pandemic: Harnessing the Benefits of Online Teaching, Journal of Legal Education (forthcoming 2021).  Here is the abstract:

Since COVID-19 required a significant shift to increased online teaching and learning in institutions of higher learning in spring 2020, one narrative has been that students do not like online classes, and online classes are inferior to those delivered live and in person. This Article takes issue with this broad and overarching criticism of online course delivery. No doubt, some types of students may not learn as well online as they do in the classroom, and some online classes may not be designed to deliver a quality learning experience. Our experience teaching asynchronous online classes in law school, however, demonstrates that there are many benefits to a well-designed online course that can enhance student learning—benefits that can be incorporated into law school pedagogy even after the pandemic is no longer a threat to health and safety of students and faculty. Specifically, in a well-designed asynchronous class, students have opportunities for regular formative assessments; they receive regular teacher and student feedback on their work; and they are required to “speak up” in class through written and oral discussions.

Lawyers Say They Can't Find The Parents of 545 Migrant Children Separated By Trump Administration

From ABC News:

Lawyers appointed by a federal judge to identify migrant families who were separated by the Trump administration say that they have yet to track down the parents of 545 children and that about two-thirds of those parents were deported to Central America without their children, according to a filing Tuesday from the American Civil Liberties Union.

The Trump administration instituted a "zero tolerance" policy in 2018 that separated migrant children and parents at the southern U.S. border. The administration later confirmed that it had actually begun separating families in 2017 along some parts of the border under a pilot program. 

The group Justice in Motion is physically searching for the separated parents in Mexico and Central America. "While we have already located many deported parents, there are hundreds more who we are still trying to reach," the group said in a statement.

Read more here.

Prenup Makes Divorce More Peaceful

From Huffpost:

A prenuptial agreement, or prenup, is a pre-marriage contract outlining how assets would be handled in the event of divorce. Although couples tend to feel discomfort in prenup discussions, it does not necessarily bring negative effect.

Prenups are not solely considered by wealthy couples. Prenups can actually make relationships stronger because they force couples to set goals and expectations for their marriage.

When couples are getting into marriage, they tend to forget to think about the possibility of later unhappy divorce. In addition to saving time and money on lengthy divorce proceedings, prenuptial agreements can also prevent further trauma.

Contrary to popular belief, signing a prenup doesn’t necessarily mean the spouse with fewer assets gets little or nothing in the divorce.

Read more here.

A NY Adoption Agency "Can" Refuse to Serve LGBTQ Families Under A Recent Court Ruling

From LGBTQ Nation:

The non-profit New Hope Family Services of Syracuse, New York, was instructed to stop its policy of sending same-sex or married couples away – or face being shut down – in 2018. Rather than comply, New Hope took the state’s Office of Children and Family Services (OCFS) to court, claiming religious discrimination and violation of their 1st & 14th Amendment rights.

The case eventually is presented in front of U.S. District Court Judge Mae D’Agostino. New Hope used a "recusal-and-referral" policy to argue that it can turn away same-sex couples or other LGBTQ people seeking to start a family. OCFS argued that such policy violated New York Domestic Relations Law for anti-discrimination purpose. 

In her decision, D’Agostino wrote that OCFS appears to “demonstrates some animosity towards particular religious beliefs” in their interpretation of anti-discrimination law.

Read more here.

Indiana: Admission Of Drug Test Results In Parental Rights Termination Hearing

From The Indiana Lawyer:

Mother, A.B., and Father, J.R., challenged the termination of their parental rights to their four children. The Indiana Department of Child Services had filed the termination petition because the parents failed to complete court-ordered services, failed to provide stable housing for the children and struggled with domestic violence and drug addiction.

Before the Indiana justices, the parents argued drug tests cannot properly fall under the records of a regularly conducted activity exception to the hearsay rule pursuant to Indiana Rule of Evidence 803(6).

The Indiana Supreme Court affirmed the Indiana Court of Appeals, found the tests Forensic Fluids Laboratory were property admitted.

Read more here.

Ballot Question 2: Removing Nevada's Definition of Marriage

From Las Vegas Review-Journal:

Although a 2015 U.S. Supreme Court requires each state to treat all marriages equally under law, the Nevada Constitution still contains language added in 2002 that only recognizes marriages between a male and a female.

Nevada will be first state to vote whether to remove such definition.

Question 2 would also grant religious organizations the right to refuse to perform same-sex marriages on moral or religious grounds, without retribution. There are different voice coming from different sides.

Read more here.

 

CA Expands Family Care And Medical Leave: More Care To Family Members

From JD Supra:

Effective Jan. 1, 2021, most California employees — even those who work for very small businesses — will be entitled to 12 weeks of job-protected time off work under the CFRA for qualifying reasons.

Qualifying reasons for leave are broadly defined to include caring for a family member — including grandparents, grandchildren, adult children and siblings — with a serious health condition.

California employers covered by both the CFRA and the FMLA may need to provide up to 24 weeks of job-protected leave in certain circumstances.

Read more here.

Canada's Consideration Of In Interim Mobility Motion: Child’s Best Interests On Temporary Basis

From Canadian Lawyer:

Parents, originally from Nigeria, moved to Canada as refugee claimants. They subsequently separated, with the parties’ two minor children residing with their mother. The mother sought orders for child support and custody, permission to relocate with the children to St. John’s, Newfoundland for an employment opportunity that would permit her and her children to achieve permanent resident status in Canada. Mother relocated to preserve the employment opportunity during pending application.

The Ontario Superior Court of Justice found that, on an interim mobility motion such as this, the court should consider the request within the framework of what would be in the best interests of the child, as provided under s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, on a temporary basis.

The court acknowledged the difficulty of child custody issues under this unusual circumstance: ongoing pandemic with immigration status when considering what is in the best interest of children based on the findings,  such as father never argued that children should stay with him and mother has been the primary caretaker since separation.

Eventually, the court that it was in the children’s best interests to allow the mother to relocate to St. John’s with the children, where they would primarily reside with her.

Read more here.

Calarco, et al: "'My Husband Thinks I’m Crazy': COVID-19-Related Conflict in Couples with Young Children"

Jessica Calarco, Emily Meanwell, Elizabeth Anderson, & Amelia Knopf have a new paper “My Husband Thinks I’m Crazy”: COVID-19-Related Conflict in Couples with Young Children.  Here is the abstract:

Objective: We examine how disruptions related to the COVID-19 pandemic are creating conflicts for couples with young children.

Background: National polls suggest that COVID-19 has led to increased conflict for couples in the U.S. Although scholars have not examined the source of these new conflicts, pre-pandemic research suggests that pandemic-related disruptions may create conflicts around paid work and parenting, economic security, politics, and health decision-making.

Method: This study uses the Pandemic Parenting Study, a mixed-methods study of Southern Indiana mothers, conducted April-May 2020, and involving surveys (N=139), diary entries (N=104), and in-depth interviews (N=65). We examine mothers’ reports of pandemic-related changes in their frustrations with their partners and how those changes vary with the disruptions couples have experienced during the pandemic. We then use qualitative data to understand how pandemic-related disruptions are generating conflicts for couples and what consequences those conflicts have.

Results: A substantial minority of mothers (39%) report pandemic-related increases in their frustrations with their partners. These frustrations are particularly common among mothers whose partners are (reportedly) providing insufficient support with pandemic parenting or dismissing mothers’ concerns about COVID-19. Mothers blame themselves for these conflicts and feel responsible for reducing them, including by leaving the workforce, beginning use of antidepressants, or ignoring their own concerns about COVID-19.

Conclusion: The pandemic has exacerbated longstanding sources of conflict (related to partners’ insufficient support with parenting) and created new sources of conflict (related to partners’ dismissals of mothers’ concerns about COVID-19), with serious implications for mothers, families, and public health.

Read the paper here.

Sutherland: "Skelping away"

From the Journal of the Law Society of Scotland:

From 7 November, when the Children (Equal Protection from Assault) (Scotland) Act 2019 comes fully into force, parents in Scotland will no longer be able to hit their children: that is, they will no longer be able to rely on the defence of “reasonable chastisement” when facing prosecution for assault. Finally, the law has recognised that children are entitled to protection from physical violence to the same extent as adults, and the state has removed its imprimatur from physical punishment as an acceptable parenting strategy. In Skelping away, Elaine E. Sutherland explores the Act, its background, the efforts made to support its effective implementation and why any legal challenge to it is unlikely to succeed. [Note: in the Scots language, to “skelp” means to strike or slap].

Read more here.

Daycares Disappearing

From the Wall Street Journal:

The coronavirus pandemic has plunged U.S. day cares into a financial crisis.

Child-care centers across the country—big chains, tiny in-home operations, nonprofits—are teetering. Enrollment slumped in the spring and never fully recovered. Extra expenses, like protective gear and deep cleaning, are piling up. By some estimates, some 40% of U.S. day cares are closed. Many of those that are open have half the number of children they did in February, or less.

Lawmakers and economists are warning that many child-care providers will fail without government help. If that happens, parents who struggled to find a day-care slot before the pandemic would have to compete for even fewer spaces when it is over. Already, the pandemic is forcing many mothers out of the workforce, a decision likely to hurt their career prospects for years. And if parents can’t work, the economy can’t flourish.

“If the virus magically disappeared, could we go back to where we were in January? We couldn’t if there’s no child care,” said Elizabeth Davis, an economist at the University of Minnesota.

Read more here.

October-Domestic Violence Awareness Month

From LMH Health:

Domestic Violence Awareness Month, observed each October, allows communities to engage in conversations around domestic violence and look deeply into what those two words mean, especially during a pandemic.

Will Averill, Director of Communications at the Willow Domestic Violence Center, said "domestic violence affects extended family, social circles, communities, cities and has profound effects nationally in terms of the expenses and the impact it has on emergency response." Law enforcement, ambulance services, legal services and hospitals as services are called into play. 

Cori Green, Sexual Assault Nurse Examiners (SANE) coordinator at LMH Health, said when the shutdown happened, SANE staff saw hardly any patients. Green said. “It’s possible we aren’t seeing these patients because they can’t leave their situations.”

It's vital in October to make people aware and help raise awareness about domestic violence and make it clear it's a public matter.

Read more here.

Supreme Court Punts On Abortion Pills, Allowing Them To Be Mailed — For Now

From NPR:

The U.S. Supreme Court has refused, for now, to reimpose FDA regulations that require women seeking medication abortion to pick up the prescribed pills in person at a clinic instead of by mail.

The high court said it would hold the Trump administration's request "in abeyance" to permit the district court judge to promptly consider other efforts by the administration to "dissolve, modify, or stay" its previous order if "relevant circumstances have changed." And the justices said that their decision did not indicate their views on the merits of the case should it come to them again.

Dissenting from Thursday night's decision were Justices Samuel Alito and Clarence Thomas. Writing for the two, Alito said that "for all practical purposes there is little difference between what the court has done and an express denial" of the Trump administration's emergency motion to block the lower court order.

Read more here.