Family Law Prof Blog

Biology and Relationships

In The Biological Basis of Commitment: Does One Size Fit All? June Carbone and Naomi Cahn explore biology and family ties. "In this paper, we propose to take the growing insights that arise from the study of the biology of attachment to frame the emerging policy choices underlying the governance of adult relationships. We have chosen to focus, in particular, on the idea of commitment because we see two developments operating in tandem: the biological understanding of attachment has been expanding exponentially at a time of reexamination of the importance of long-term family stability. We believe that putting the two together - integrating biological understandings with sociology - will lead to the conclusions that the tendency to form pair-bonds is a deeply ingrained part of the species, lifelong fidelity cannot be expected on a widespread basis absent substantial coercion, and long term partnership, in Sarah Hrdy's words, is a "compromise that children win." These conclusions, however, will always leave some questions unanswered so that they can do no more than frame the unfolding policy debates. The question of what policy choices work - and at what price - can never be answered by biology alone. A better understanding of the new scientific insights can, however, underscore that the determination of what is "natural" produces complex and varied answers, and the most natural of human tendencies is the desire to reorder rather than accept the workings of human society. Accordingly, in light of the developing understandings of human pair-bonds from both the biological and sociological perspectives, we suggest various strategies that support long-term commitment between adults." June Carbone & Naomi Cahn, The Biological Basis of Commitment: Does One Size Fit All?, 25 Women's Rights Law Reporter 223 (2004). Link to Article (last visited 10-30-05 NVS)

In Which Ties Bind? Redefining the Parent-Child Relationship in an Age of Genetic Certainty, the same authors explore the importance of genetic ties. "To prosper, children need, at a minimum, the ability to draw on adult material resources - food, clothing, shelter, love, care, education, and guidance. Children must develop, in addition, a social identity, a sense of self that connects them to the society around them. With the changing conceptions of the family, we must face the issue of how society ensures children's well-being, and whether we should continue to police family structure or become more willing to focus attention on children's individual needs. In addressing these topics in this paper, we therefore start with two overriding questions: (1) Are children's rights best protected by the assertion of individual claims or by the design of a regime that can be expected to advance their interests?; and (2) to what degree should children's claims on adults responsible for their care depend on genetic ties?" June Carbone & Naomi Cahn, Which Ties Bind? Redefining the Parent-Child Relationship in an Age of Genetic Certainty, 11 Wm. & Mary Bill of Rights J. 1011 (2003). Link to Article (last visited 10-30-05 NVS)

Study Looks at Healthcare Costs Associated With Domestic Violence on Men and Women

Healthcare costs associated with each of incident of domestic violence are $948 in cases where women are the victims and $387 in cases where men are the victims, including productivity losses of $257 for women and $224 for men, according to a report from researchers at the Centers for Disease Control and Prevention. The agency says it is the first study that identifies the healthcare costs and impact of domestic violence incidents, where men as well as women are victims. The study, co-authored by Ileana Arias, director of CDC's National Center for Injury Prevention and Control, and published in the journal Violence and Victims, also found that domestic violence against women results in more emergency room visits and inpatient hospitalizations, including greater use of physician services than domestic violence where men are the victims.  Source. HR.BLR.com. For more information regarding the study, please click here (last visited October 30, 2005, reo).

Former Virginia All-American and Top NBA Draft Choice Agrees to Pay $307,036 in Back Child Support

Former basketball star Ralph Sampson could escape jail time after agreeing Friday to a plea bargain on a charge he failed to pay more than $300,000 in child support. The agreement will spare Sampson, 45, up to 30 months in prison and fines of up to $300,000, provided a judge accepts the negotiated plea Feb. 1. Source. The Charlotte Observer, Observer.com. For additional information, please click here (last visited October 30, 2005, reo).

University of Iowa Basketball Star Gets Two Years In Prison for Domestic Assault

Former Iowa basketball star Pierre Pierce, 22, was sentenced to two years in prison in Adel, Iowa, for assaulting a former girlfriend at her apartment in January. Pierce could be released after 11 months. Source. The Charlotte Observer, Observer.com. For additional information, please click here (last visited October 30, 2005, reo).

Mothers Shot Over Child Support – 1 Dead, 1 Critical

A Staten Island ex-con enraged over paying child support hunted down and shot two of his ex-girlfriends in front of their kids before killing himself. Rashawn Mack, 25, fired a single bullet into the heads of both women Thursday - killing one and leaving the other clinging to life. Only a day earlier, he had threatened to kill one of the women over the court-ordered child support. "If you expect me to pay that, get yourself measured for a body bag," Mack warned Rachel Rivas, 24, on Wednesday after she was awarded custody of their 2-year-old son, a law enforcement source said. Mack had been ordered to pay Rivas $25 a week on top of the $50 a month he already was paying Chantel Curtis, the 24-year-old mother of his other young child, sources said. Source. New York Daily News, nydailynews.com. For additional information, please click here (last visited October 30, 2005, reo).

New Research Says Abortion Does Not Raise Depression Risk

New research challenges the idea that having an abortion raises a woman’s long-term risk of depression. The research involved data from an ongoing study of 1,247 women who aborted or delivered an unwanted first pregnancy between 1970 and 1992 and were between the ages of 14 and 21 at recruitment in 1979. The researchers conclude that, “under the present conditions of legal access to abortion, there is no credible evidence that choosing to terminate an unwanted first pregnancy puts women at higher risk of subsequent depression than does choosing to deliver an unwanted first pregnancy.” The one exception was women who gave birth prior to 1980, when they were still teenagers. Source. Salynn Boyles, FoxNews.com.  For additional details, please click here (last visited October 29, 2005, reo).

Same-sex Partners Win Right to Benefits in Alaska – Governor Outraged

The Alaska Supreme Court on Friday ruled it is unconstitutional to bar benefits to the same-sex partners of public employees, a victory for gay-rights advocates in one of the first states to pass a constitutional ban on gay marriage. Overturning a lower-court ruling, the state high court said barring benefits for state and city employees' same-sex partners violates the Alaska Constitution's equal-protection clause. Governor Frank Murkowski was "outraged" by the ruling and directed the attorney general's office to find a way to overturn it, said his spokeswoman, Becky Hultberg. Source. Seattle Times, seattletime.nwsource.com. For the complete story, please click here (last visited October 29, 2005, reo).

New York Appeals Court Bars Mayor From Performing Same-Sex Marriages

A New York appeals court has upheld a decision Friday that bars a village mayor from performing same-sex marriages. The court said that New Paltz, New York mayor Jason West acted beyond his authority when he presided over two dozen same-sex marriages last year. The five judges unanimously agreed to uphold the lower-court ruling.  The mayor's lawyer is promising an appeal. West has maintained he was upholding the gay couples' constitutional rights to equal protection, and thus his oath of office, by allowing them to wed. Source. Cbsnews.com. For the complete story, please click here (last visited October 29, 2005, reo).

Colorado Springs Cracks Down on Domestic Violence Offenders

This week, dozens of police officers are fanning out across Colorado Springs and El Pasco County, Colorado to track down errant domestic violence offenders. This is an annual October event conducted in conjunction with Domestic Violence Month. Colorado has some of the toughest domestic-violence laws in the nation, but police do not always have the resources to round up suspects.  In El Paso County, 250 people have arrest warrants for domestic violence that were never served and an additional 500 have warrants for failing to appear in court or complete domestic violence classes. “Having that offender held accountable is good. Even if it’s late, at least they know this incident did not go unnoticed,” said El Paso County Sheriff’s Office Detective Jim Vidmar, part of the Domestic Violence Enhanced Response Team, a joint venture with Colorado Springs police. By Friday afternoon, police had arrested 22 people. Today is the final day of the warrant sweep. Source. R. Scott Rappold, Colorado Springs Gazette, Gazette.com. For the complete story, please click here (last visited October 29, 2005, reo).

Case Law Development: Collateral Estoppel Bars Consideration of Questionable Paternity in Setting Amount of Child Support

Mother gave birth to child four months after separating from Father. The couple remained separated but did not divorce. When child was eight years old, Father agreed to an order of child support, which also adjudicated him the biological father. Five years later, in response to a motion to increase child support, Father obtained a private genetic test which showed that he was likely not the biological father. On this basis, Father asked the trial court to disestablish his paternity. While the trial court declined to do so, it did set the amount of future child support at zero on the basis that Father was "probably not the biological "may not be the biological father of the minor child."

The Texas Court of Appeals (Houston) reversed, holding that the doctrine of collateral estoppel barred Father's relitigation of paternity and the consideration of this issue was error by the trial court. The court noted that Father could have raised the issue of his paternity in the first action for child support but chose not to.  The court commented that allowing relitigation of paternity would "burden the courts and traumatize the child."

Judge Hudson dissented.  Judge Hudson would have deferred to the discretion of the trial court in setting child support at zero and suggested, even more broadly, that "the welfare of children should not fall upon one who is merely a victim of fraud.... reliance upon the doctrines of collateral estoppel and res judicata seem inappropriate in the context of a parent-child relationship."

In the Interest of R.J.P., 2005 Tex. App. LEXIS 8792 (October 25, 2005)
Opinion on the web at http://www.14thcoa.courts.state.tx.us/opinions/case.asp?FilingID=85979 (last visited October 28, 2005 bgf)

Case Law Development: Alternating Year Custody Arrangement Not in Best Interest of 8-year-old Child

Upon parent's divorce, Mother was named domiciliary parent of their five-month-old child, with Father having specified visitation. Both parents re-married. Mother moved from the state to follow her new husband's job change. Upon Mother's second move, Father asked the court to modify custody to declare him the domiciliary parent.

The trial court, finding both parents to be competent, caring and effective, decided to order an "experimental" custody arrangement as an "equitable solution." The child's domicile was to change each July 1st, alternating between Mother and Father.

The Louisiana Court of Appeals held that Mother's move was not a material change in circumstances warranting the change in custody since the move did not locate her a substantially greater distance from Father than she had been before and there was no evidence that the child had been harmed by the move. Even were it a change of circumstances, the court held that the alternating year custody arrangement was not in the best interests of the child, given "the potential disruptive effect upon the child, the lack of stability, and the potential educational calamity of changing schools."

Colvin v. Colvin, 2005 La. App. LEXIS 2260 (October 26, 2005)

Case Law Development: Necessity of Detailed Findings of Fact in Custody Cases Where Abuse is Present

With trial courts hearing thousands of family law cases each year, the desire for efficiency in decision-making is understandable.  However, the Missouri Court of Appeals has emphasized that, when those cases involve custody decisions, courts must explain their judgments adequetely. 

In this case, the judge's failure to make specific findings of fact and conclusion of law required reversal of its decision to grant parents joint physical and legal custody of their child.  The court found that, when parents do not agree on a parenting plan, a trial judge may not justify its custody decision with a statement that "each of the applicable and relevant factors in [the custody statute] were duly considered in accordance with the best interest of the child." Rather, the court must make findings of fact and conclusions of law regarding all the relevant statutory factors. 

The trial judge's failure to do so in this case was even more so in error because Mother had presented substantial evidence of domestic violence include a police report and a protective order.  Missouri statutes require judges to make specific findings whenever there is evidence of domestic violence presented in a custody action.  If the court finds that abuse has occurred, even if only one incident and regardless of the custody arrangement ordered, the court must make specific findings showing that the custody arrangement protects the safety of the children and the victim of that abuse.   If the court finds that a pattern of abuse has occurred, and it awards custody to the abuser, it must enter written findings of fact and conclusions of law justifying that decision.

The Missouri Court of Appeals remanded for the trial court to make the necessary findings in this case.  (Mother had also raised an issue regarding judge's ex parte communication with Father, which the Court of Appeals directed that the trial court to either explain on the record why that communication did not reflect bias or to recuse itself).

Sewell-Davis v. Franklin, 2005 Mo. App. LEXIS 1556 (October 25, 2005)
Opinion on the web at http://www.courts.mo.gov/courts/pubopinions.nsf/ccd96539c3fb13ce8625661f004bc7da/a57a7042195450b4862570a4005ba0a8?OpenDocument (Last visited October 28, 2005 bgf)

Case Law Development: For Service by Publication to Give In Rem Jurisdiction to Divorce Court, Property Must Be Specifically Described

Teaching the somewhat dry and technical requirements of jurisdiction in the family law class can often be challenging against the backdrop of the more colorful cases the course provides.  Often a good horror story can wake up the students to the importance of getting jurisdiction right.  Here's a Missouri short story on in rem jurisdiction in divorce actions that, at least an attorney who gets it wrong, would be a tale of terror:

Husband and Wife separate, and after three years, Husband files for divorce.  He serves Wife by publication.  Court grants a default judgment of divorce and awards Husband title to property the couple had owned as tenants by the entirety. 

Time passes.  Husband dies, leaving his daughter (who is not Wife's daughter) as his heir. Wife reappears, discovers the default judgment and brings suit to quiet title to the land, asserting that Husband's failure to specifically describe the property in his service by publication rendered the divorce court without jurisdiction to adjudicate title to the property.  Trial court agrees and grants Wife fee simple title to the property.  The Court of Appeals affirms. 

Assuming Husband was represented by counsel in the divorce action, one might presume attorney is checking with his insurance carrier.

Miller v. Jonesburg State Bank, 2005 Mo. App. LEXIS 1555 (October 25, 2005)
Opinion on the web at http://www.courts.mo.gov/courts/pubopinions.nsf/ccd96539c3fb13ce8625661f004bc7da/322cc63d5b8d1be2862570a4005308a5?OpenDocument (Last visited October 28, 2005 bgf)

Case Law Development: Change of Newborn's Name Requires Proof of Best Interests of Child

This case involved a paternity action filed two days after the child was born. Father asked that the child's last name be changed to his own. The evidence consisted of father's testimony regarding his desire that his son carry on his family name and the fact that son's middle name was that of his maternal grandfather. The Missouri Court of Appeals held that this sparse evidence was insufficient for Father to meet his burden of proving that a name change was in the best interests of the child.

C.R.F. v. B.M.F., 2005 Mo. App. LEXIS 1540 (October 25, 2005)
Opinion on the web at http://www.courts.mo.gov/courts/pubopinions.nsf/ccd96539c3fb13ce8625661f004bc7da/279a67cc2abac68f862570a4004a31cb?OpenDocument (last visited October 28, 2005 bgf)

Family Law Education Reform Project

"Family law and family law practice are constantly evolving in response to changes in families and the society and culture in which we live. This requires regular revisions in teaching, but changes in teaching tend to lag behind those in practice. The family law system has developed in dramatic fashion over the past two decades, while family law teaching has not. The family law system now incorporates a wide variety of dispute resolution procedures and is populated by professionals from multiple disciplines. Indeed, today's family practitioner works in a world where understanding the work of dispute resolution and mental health professionals may be as essential as knowledge of governing statutes and constitutional doctrine. The Family Law Education Reform Project is co-sponsored by the Association of Family and Conciliation Courts (AFCC) and Hofstra Law School.  The goal of the project is to provide family law teachers the ideas, tools and materials they need to bring family  law teaching in line with family law practice, and to help students become effective and reflective family law practitioners." From the Family Law Education Reform Project, Project Description Link to Project Description (last visited 10-26-05 NVS)

The draft report of the Family Law Education Reform Project has been posted for comment. Comments are being solicited until January  15, 2006. Review Draft Report (last visited 10-26-05 NVS)

Michigan Governor Granholm asks States to Return Child Support Violators for Prosecution

Michigan Governor Jennifer Granholm is asking authorities outside Michigan to return more than 100 people to that state to face charges of failing to pay child support. One of the latest is a man  now in custody in Virginia who owes more than $26,700 in child support dating back to 1983. If he is returned to Michigan and is convicted as charged, he faces up to four years in prison and will have to make good on the unpaid support. The power to demand extradition of a fugitive who has fled from Michigan and taken refuge in another state is vested in the governor, according to the Uniform Criminal Extradition Act. Officials outside Michigan can issue a warrant delivering the fugitive to the custody of authorities in Michigan. Source. WDIV TV, Detroit, clickondetroit.com. For more information, please click here (last visited October 25, 2005, reo).

Irish Sex Abuse Report Criticizes Church and State Handling of Complaints – Government Concerned Over How Report is Released

The Irish Government has expressed concern over how a report on sex abuse in that country will be released.  The report contains the details of  the handling by Church and State authorities of allegations from more than 100 complainants against between 25 and 27 priests of the Ferns diocese dating back to the mid-1960s. Proportionally, the number of priests accused of sex abuse in Ferns is believed to be among the highest uncovered in any Catholic diocese world-wide. At least six priests are expected to be named in the report, with the remainder given coded names as allegations against them have not been proven in the courts. As of Tuesday, there were no plans to "black out" the names of those identified. The Oireachtas Committee on Health and Children is expected to be asked by the Government to examine the report and its recommendations. The report is expected to severely criticise Church authorities in Ferns over its handling of the complaints and is also expected to raise concerns about the response of church authorities outside Ferns.  Source. The Irish Times, Ireland.com. For more information, please click here (last visited October 25, 2005, reo).

New Hampshire Panel Rejects Gay Marriage

A New Hampshire commission on same-sex unions dealt a series of defeats Monday to proponents of gay marriage. The panel voted to urge state lawmakers not to allow gays to marry, not to recognize out-of-state same-sex unions, and not to set up a domestic partner registry for couples who cannot legally marry. Source. Beverley Wang, Associated Press, abcnews.com. For more information, please click here (last visited October 25, 2005, reo).

Minnesota Viking Kevin Williams Gets Fine and 1 Year Probation in Domestic Dispute

Minnesota Viking defensive tackle Kevin Williams was placed on a year's probation and fined $1,000 after pleading guilty to disorderly conduct in a domestic dispute. Williams was also ordered to undergo counseling. Source. Minneapolis Star-Tribune, Associated Press. For more information, please click here (last visited October 25, 2005, reo).

Ontario to Vote on Adoption Records Bill

TORONTO -- A controversial bill to open up adoption records in Ontario could go to a final vote as early as today (Wednesday), but it won't be enacted for at least another 18 months if it passes. The law would open up adoption records, making it easier for adoptees and birth parents to find one another. Adoption records have been sealed in Ontario since 1927. Adult adoptees would be able to access their original birth certificate, which could include the names of their birth parents. Birth parents, meanwhile, would be able to see the birth certificate and current name of the child they gave up for adoption.  Source.  Canadian Press, Canada.com. For more information, please click here (last visited October 25, 2005, reo).