Family Law Prof Blog

Ireland Divorce Referendum Reflective of Cultural Shift

From BBC News:

In 1995, this once very Catholic country voted to allow divorce by a tiny margin, with a backing of 50.3%.

The constitutional position is that if someone has been separated for four of the previous five years they can apply to get a divorce and to remarry.

And in the Republic there has to be a referendum to amend the constitution.

The government is proposing - in a vote on May 24 - to remove divorce timeframes from the constitution and to allow the Oireachtas (Irish parliament) to decide how long a couple should be separated before divorce is allowed.

Read more here.

Implications of Abortion Law

From Prof. Carliss Chatman (Washington & Lee Law), writing for the Washington Post:

Alabama has joined the growing number of states determined to overturn Roe v. Wade by banning abortion from conception forward. The Alabama Human Life Protection Act, as the new statute is called, subjects a doctor who performs an abortion to as many as 99 years in prison. The law, enacted Wednesday, has no exceptions for rape or incest. It redefines an “unborn child, child or person” as “a human being, specifically including an unborn child in utero at any stage of development, regardless of viability.”

We ought to take our laws seriously. Under the laws, people have all sorts of rights and protections. When a state grants full personhood to a fetus, should they not apply equally?

For example, should child support start at conception? Every state permits the custodial parent — who has primary physical custody of the child and is primarily responsible for his or her day-to-day care — to receive child support from the noncustodial parent. Since a fetus resides in its mother, and receives all nutrition and care from its mother’s body, the mother should be eligible for child support as soon as the fetus is declared a person — at conception in Alabama, at six weeks in states that declare personhood at a fetal heartbeat, at eight weeks in Missouri, which was on the way to passing its law on Friday, but at birth in states that have not banned abortion.

Read more here.

Hat Tip: SH

Proposed Bill to End Tax Deduction for Abortions in Arizona

From The Daily Signal:

An Arizona congressman plans to introduce a bill Wednesday that would end a tax deduction for abortions.

“For years, the pro-abortion movement has marketed abortion as a form of reproductive health care,” Rep. Andy Biggs, R-Ariz., said in a statement provided to The Daily Signal.

“But it’s time for us to be honest with ourselves – health care is primarily a restorative function, one that helps our bodies heal from a disease or ailment. Under no circumstances should health care include the intentional taking of a life. The ‘Abortion Is Not Health Care Act’ is a small step towards ending the federal government’s treatment of abortion as a ‘healing medical practice,’” he added.

Read more here.

New Fertility Rate

From Philip N. Cohen's blog Family Inequality:

The National Center for Health Statistics released the 2018 fertility numbers yesterday, showing another drop in birth rates, and the lowest fertility since the Baby Boom. We are continuing a historical process of moving births from younger to older ages, which shows up as fewer births in the transition years. 

Read more here.

Taiwan Becomes First Asian Country to Legalize Same Sex Marriage

From BBC News:

Taiwan's parliament has become the first in Asia to legalise same-sex marriage following a vote on Friday.

In 2017, the island's constitutional court ruled that same-sex couples had the right to legally marry.

Parliament was given a two-year deadline and was required to pass the changes by 24 May.

Lawmakers debated three different bills to legalise same-sex unions and the government's bill, the most progressive of the three, was passed.

Read more here.

Belgium Ex-King may be Fined for DNA Test Refusal

From BBC News:

A Belgian appeals court has ruled that former King Albert II is to be fined €5,000 (£4,370) a day if he refuses to undergo a DNA test.

In February, he refused to undergo such a test in a case aimed at proving he fathered a love child in the 1960s.

A court in Brussels ordered the 84-year-old ex-monarch to provide a saliva sample in three months or risk being presumed to be the father of Delphine Boël, 50.

The ex-king denies the paternity claim.

Read more here.

Women Protest US Strictest Anti- Abortion Law

From Huffpost:

People across the country are devastated after the Alabama state Senate passed the country’s strictest abortion bill.

The state Senate on Tuesday night passed the Human Life Protection Act, an extreme anti-abortion measure that bans the procedure in all cases, including rape and incest. The only exception to the legislation is if the life of a pregnant woman is at risk.

The bill passed 25 to 6. All the yes votes were made by white male senators.

Read more here.

 

Proposed Law to Allow Contact between Parents and Children After Termination of Parental Rights

From New York Law Journal:

State law in New York prevents family court judges from allowing any kind of contact between a parent and their child after parental rights have been terminated, but lawmakers are renewing a push to change that in the final weeks of this year’s legislative session.

Sponsors of a bill that would allow family court judges to grant contact between children and their parents after termination are pushing their colleagues to support the legislation before they’re scheduled to leave Albany for the year in June.

Read more here.

Cahn: "The ART of Parentage"

Naomi Cahn has recently published The ART of Parentage in The Oxford Handbook of Children and the Law, edited by James G. Dwyer.  Here is the abstract:

The world of reproductive technology, including donor gametes and surrogacy, brings new challenges to identifying parents and respecting children’s rights. An intending parent—married or unmarried—is not necessarily the genetic contributor to the resulting child. And children have interests in knowing the identity of their genetic progenitors. This chapter focuses on whom the law recognizes as parents when a child has been created through assisted reproductive technology. While the chapter traces how intent has emerged as the critical factor in determining parentage, it also shows how intentional parenthood might sometimes be in tension with functional parenthood. The chapter provides a brief history of the technologies and their implications for parentage law and children’s rights to know their genetic origins. It also considers how the law might better adjust to changing technologies and family structures to produce outcomes that respect the child, rather than abstract concepts of equality—or even the parents’ interests.

Scherpe, Fenton-Glynn, Kaan: "Eastern and Western Perspectives on Surrogacy"

A new book has been published by editors Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan, titled Eastern and Western Perspectives on Surrogacy.  This book examines the phenomenon of surrogacy from a comparative perspective. Bringing together experts from 21 countries across the world, it provides a comprehensive discussion of the ways in which surrogacy is regulated in both Eastern and Western jurisdictions, and seeks to establish a common ground to move forward in this morally and legally difficult subject area.  See more here.

Happy Mother's Day

Fertility Doctor Secretly Fathering Child

From ABC News:

Eve Wiley’s story wasn’t always so complicated. She was born in 1987 and grew up in Center, Texas, a small town just a few miles from the Louisiana border. Her father, Doug, a teacher at the local high school, died when she was seven, so her mother, Margo, the school nurse, had to struggle to support her three children. But as Margo said, “If you could be born with a happy gene, [Eve] was born with it.”

When Eve was 16, she logged on to her mother’s computer and started scrolling through her emails. Being the school’s nurse, her mother was privy to its juiciest gossip, and like most teenagers, Eve trafficked in information. But after a few minutes, she stumbled upon a revelation even she wasn’t prepared to handle.

"I was on there and I saw all of these e-mails about artificial insemination,” Eve told ABC News. “And after about the tenth or eleventh one, I clicked on it. And when I clicked on that one, I scrolled down to the bottom and it said: ‘I'm just gathering information for my daughter. She was born July 28th of 1987.’ And that's my birthday."

Read more here.

Age of Criminal Responsibility Bill

From Holyrood:

MSPS have voted unanimously to raise the age of criminal responsibility in Scotland to 12.

When the Age of Criminal Responsibility Bill comes in to force, which the Scottish Government has pledged to do by the autumn, primary school-aged children will no longer be able to be arrested or charged with a crime.

Instead children who engage in criminal behaviour will be given support to address the issues behind their actions without being treated as a criminal.

However, the Scottish Government has promised that “serious harmful behaviour” by under-12s will continue to be investigated and victims will be recognised and supported.

Commenting on the passing of the bill, children’s minister Maree Todd said: “Today is an historic day.

“This ground-breaking law delivers a bold, progressive, child-centred approach that will make a real difference to children’s lives.

“We can be proud that Scotland is leading the way in the UK.”

Read more here.

Hat Tip: ES

Ryan: "The Law of Emerging Adults"

Clare Ryan has posted to SSRN her paper The Law of Emerging Adults, Washington University Law Review (forthcoming).  Here is the abstract:

Law tends to divide people into two groups based on age: children and adults. The age of majority provides a bright line between two quite different legal regimes. Minority is characterized by dependency, parental control, incapacity, and diminished responsibility. Adulthood is characterized by autonomy, capacity, and financial and legal responsibility. Over the course of the 20th century, evolving understandings of adolescence in law and culture led to the replacement of uniform legal treatment for minors with a staged process of increasing liberty up to the age of majority. After eighteen, however, the presumption of adulthood remains strong. 

Today, a combination of psychological and social factors has extended the process of becoming an adult well into legal adulthood. Psychologists call this life phase “emerging adulthood” and have identified it as a crucial transition period between adolescence and adult life. Emerging adults differ both from children and adults with regard to their roles in three keys relationships: the parent-child; the individual and the market; and the individual and the state. 

This article argues that emerging adulthood should be treated as a distinct legal category and offers a framework for how to do that. Emerging adults face unique developmental and economic challenges that make a sharp binary between childhood and adulthood inapt. A broader array of legal tools could afford greater autonomy than exists during minority, but greater protection than adulthood typically provides. Such tools include staging responsibilities and entitlements over time, requiring licensing or consultation, or extending state and parental obligations toward emerging adults.

Godsoe: "Parental Love and Purposeful Violence"

Cynthia Godsoe has posted to SSRN her paper Parental Love and Purposeful Violence.  Here is the abstract:

The parental discipline privilege is a robust exception to the modern rule that punishes all violence, including intrafamilial violence. Every state allows parents to physically punish their children, often going well beyond ‘spanking’ to include hair-pulling, beatings with belts or sticks, even choking. The privilege is the only remaining status exception to criminal assault and battery; other once-permissible violence, such as abuse of wives and apprentices, has long been criminalized. Yet despite its anachronistic nature, parental corporal punishment remains surprisingly understudied. Accordingly, it is an important topic for inclusion in this volume on the Politicization of Safety. 

Experts unanimously agree that even mild corporal punishment carries significant developmental consequences. It can evolve into serious child abuse, and renders its victims more likely to hit their partners and children as adults, perpetuating the cycle of abuse. Particularly troubling is that corporal punishment plays out in highly gendered, racialized, and heteronormative ways. I argue that the underlying mens rea of the parental discipline privilege exception to assault both perpetuates this violence and warps the criminal law’s standard approach to punishment, which ordinarily matches culpability with control. In contrast, the parental privilege forgives purposeful beatings “intended to benefit a child.” After analyzing the implications of this paradox, this Chapter concludes by advocating the privilege’s abolition, while cautioning that the primary method to address intrafamilial violence should be services and public education outside of the criminal legal system.

 

Fontana & Schoenbaum: "Unsexing Pregnancy"

David Fontana & Naomi Schoenbaum have recently posted to SSRN their article Unsexing Pregnancy, 119 Columbia Law Review__ (forthcoming 2019).  Here is the abstract:

Because sex does not dictate the capacity to provide care in the home or work in the market, sex-equality lawcombats harmful sex stereotypes by eliminating statutes and regulations that assign these roles on the basis of sex. When it comes to pregnancy, though, courts and commentators alike chart a very different course. They assume that pregnancy is a biological event that is almost exclusively for women. Thus, equal protection jurisprudence accepts the legal assignment of carework during pregnancy to women, and a range of laws regulating pregnancy carework — from prenatal leave under the Family and Medical Leave Act to health benefits under the Affordable Care Act to employment protections under the Pregnancy Discrimination Act — apply only or mostly to women. Even though the sexed law of pregnancy stands in stark contrast to the unsexed law of parenting, the sexed pregnancy has avoided challenge and largely escaped notice.

This Article makes visible the law of the sexed pregnancy, identifies and evaluates the core tension it generates in the law of sex equality, and considers how to unravel this tension. Of course, typically only women can physically carry a child, and therefore some pregnancy regulations are appropriately sex specific. But the nine months of pregnancy encompass a range of carework, much of which has little or nothing to do with the physical fact of pregnancy. Expectant fathers can, for example, buy a carseat, quit smoking, take a childcare class, and choose a pediatrician or daycare center for the child. Given the ability to disaggregate sex from much of the carework of pregnancy, the law’s failure to do so marks women for caregiving and men for breadwinning in the same problematic way that sex-equality law has tried to combat after a child is born. And while pregnancy implicates real concerns about a woman’s constitutional right to bodily autonomy, this concern alone cannot justify the failure to scrutinize all sex-based pregnancy regulations, because much prebirth carework does not involve the woman’s body at all. After surfacing the law’s anomalous sexed treatment of pregnancy, this Article considers how to harmonize the law of sex equality. This effort can advance not only the goal of equality between the sexes, but also equality for lesbian, gay, and transgender parents, while at the same time enhancing women’s autonomy.

Royal Love on the Courts

From CNN:

In the late 1950s, royal wedding fever swept Japan. Then-Crown Prince Akihito had fallen for literature graduate Michiko Shoda, whom he met on a tennis court in 1957 in a fateful encounter that came to be known as the "love match."

 

National fascination with the prince's wedding was due, in part, to Michiko's status as a commoner -- a move that broke with over 2,000 years of tradition. But the growth of mass media and the emergence of live television also helped to cement the pair's enormous popularity, forever changing the way that the royal family shaped its public image.

 

The nation was enthralled by the future princess, and photos of her appeared everywhere. Media outlets, like the women's weekly magazine Josei Jishin, pored over Michiko in glossy, picture-led features that dissected her style choices, among much else.

 

Read more here.

Dutton, Ryznar, & Long: "Assessing Online Learning in Law Schools: Students Say Online Classes Deliver"

Yvonne Dutton, Margaret Ryznar, & Kayleigh Long recently posted to SSRN their paper Assessing Online Learning in Law Schools: Students Say Online Classes Deliver, 96 Denver University Law Review 493 (2019).  Here is the abstract:

This Article provides empirical data on the effectiveness of distance education in law schools following the American Bar Association's decision to increase the number of permitted online course from fifteen to thirty. Our data, composed of law student surveys and focus groups, reveals not only the success of distance education in legal education, but also the online teaching methods that are most effective for students.

Corporal Punishment

From CNN:

Years of research have shown that spanking children is ineffective and potentially harmful. These facts have led the American Academy of Pediatrics to recommend, in a new policy statement published Monday in the journal Pediatrics, that parents not spank, hit or slap their children. This statement from America's leading group of pediatricians, with 67,000 members, is an update to guidance they issued in 1988 that recommended parents "be encouraged and assisted in developing methods other than spanking" to discipline kids.

Read more here.

Margalit: "Determining Legal Parentage: Between Family Law and Contract Law"

Yehezkel (Hezi) Margalit has just published the book Determining Legal Parentage: Between Family Law and Contract Law.  Here is the abstract:

The last few decades have witnessed dramatic changes affecting the institutions of family and parenthood. If, in the past, the classic family was defined sociologically as a pair of heterosexual parents living together under one roof along with their children, different sociological changes have led to a rapid and extreme transformation in the definitions of family, marital relations, parenthood, and the relationship between parents and children. Dr. Yehezkel Margalit explores whether and to what extent there is room, legally and ethically, for the use of modern contractual devices and doctrines to privately regulate the establishment of legal parentage. This book offers intentional parenthood as the most appropriate and flexible normative doctrine for resolving the dilemmas which have surfaced in the field of determining legal parentage. By using the certainty of contract law, determining the legal status of parenthood will be seen as the best method to sort out ambiguities and assure both parental and children rights.

The book's website is available here.