Family Law Prof Blog

Law Review Article: Supervised Visitation

In Defending Neutrality in Supervised Visitation to Preserve a Crucial Family Court Service, Nat Stern and Karen Oehme discuss the role of neutrality in the operation of supervised visitation centers. They favor neutral enforcement of rules even though enforcement might entail taking action in response to inappropriate parent behavior. Nat Stern and Karen Oehme, Defending Neutrality in Supervised Visitation to Preserve a Crucial Family Court Service, 35 Sw. U. L. Rev. 37 (2005). Link to Article on Westlaw (last visited 8-23-06 NVS)

Visitation Centers Lack Funding

"Many times when a marriage dissolves into shouting matches between parents, the children are caught in the crossfire. For the past three years warring parents have been ordered by judges to exchange their children at three safe sites around Pinellas County: St. Petersburg, Pinellas Park and Clearwater. The parents never see each other to avoid confrontations. But now the nonprofit agency that operates these "visitation centers" says it may have to close the St. Petersburg and Clearwater locations because it did not receive a two-year, $350,000 federal grant. The Justice Department received 95 proposals for $36-million but doled out only $13-million. Community Action Stops Abuse, or CASA, was notified last month it would not receive the grant, which it first won three years ago.

Unless the 29-year-old domestic violence agency can get additional funding, the two sites may have to close at the end of September, said Kris Nowland, CASA's director of youth education and support services. The result: Dozens of children will have to wait longer between parent visits. "We are sending out a plea to all of our supporters," Nowland said. "Parents were waiting up to six months prior to this grant. We're very fearful we'll have to go back to that."" By Melanie Ave, St. Petersburg Times Staff Writer Link to Article (last visted 8-23-06 NVS)

August Edition of AFCC e-Newsletter Available

Check out the August edition of the Association of Family and Conciliation Courts e-Newsletter featuring announcements, important developments, and new research. Link to online AFCC newsletter (last visited 8-24-06 NVS)

Teens Rally Supporting Polygamous Families

Calling their lives blessed, more than a dozen children and young adults from polygamist families in Utah spoke at a rally Saturday, calling for a change in state laws and the right to live the life and religion they choose.

Read the story in the New York Times (last visited Aug 21, 2006 bgf)

Anniversary of Welfare Reform Finds Many Mothers Left Behind

Eric Eckholm of the New York Times reports on the 10th anniversary of welfare reform laws and finds that

social workers and researchers are raising concerns about families that have not made the transition and often lead extraordinarily precarious lives. These include mothers who, so beleaguered by personal problems and parenting that they have not been able to keep jobs, continue to need counseling and cash. They also include another large group of poor mothers — one million by some estimates — who are neither working nor receiving benefits.

Read the story

Need for New Courtroom Generates Proposal to Dismantle Family Court

Bill Murphy of the Houston Chronicle reports that a proposal to build a new $90 million Family Law Center has generated an alternative proposal by Commissioner Steve Radack: eliminate the family court and disperse the docket among the civil courts. 

"While the caseloads in family courts are rising, caseloads in the local civil courts have declined enough for them to begin hearing divorce, custody and child support cases, Radack said. "The courts could serve the public better, faster," he said. "It can save millions of dollars a year."  Also pushing the idea are critics who view the family courts as clubby fraternities where a lawyer's ties to a judge are more important than rules of procedure and evidence....On the other side are judges and lawyers who support the specialized courts because family judges have expertise in the nuances of family law, domestic violence and child support.

Read the story in the Houston Chronicle (last visited August 21, 2006 bgf)

Law Review Article: Same-Sex and Polygamous Marriage

"The political expediency of not associating same-sex marriage with polygamous marriage explains the silence of those at the front of the political fray. It does not fully explain why academic philosophers and legal theorists have maintained a similar silence about the "other" marriage bar. The principle reason appears to be a conviction that same-sex marriages and polygamous marriages are substantially disanalogous. While same-sex marriages challenge the traditional gender structure of marriage, polygamy is more likely to exaggerate the gender hierarchy within marriage and is thus incompatible with a liberal democracy that values women's equality. Same-sex marriage advocates thus routinely dismiss the issue of polygamous marriage as irrelevant to the question of whether the bar to same-sex marriage should be lifted. In particular, they insist that polygamous marriages are sufficiently socially dangerous that extending marriage rights to same-sex couples will not put us on a slippery slope toward recognizing polygamous marriages.

Despite all this, the refusal to regard the marriage bar to polygamy as a significant political issue bears closer scrutiny. In what follows, this Article will be arguing that more careful attention to the historical practice of polygamy strengthens the case for same-sex marriage; and attention to the similarities between the social issues at stake in the antipolygamy campaign and the same-sex marriage campaign can productively complicate our sense of what the fundamental issues are in the same-sex marriage debate. Finally, this Article will suggest that it is not altogether clear that legal recognition of polygamous marriage is incompatible with a liberal, democratic, and egalitarian society. The proper response to same-sex marriage opponents' reductio argument may instead be, "And indeed, why not also polygamy?" Cheshire Calhoun, Who's Afraid of Polygamous Marriage? Lessons For Same-Sex Marriage Advocacy from the History of Polygamy, 42 San Diego L. Rev. 1023 (2005).Link to Article on Westlaw (last visited 8-21-06 NVS)

Law Review Article: Child Brides and Polygamist Marriages in Texas

"The legislature voided certain underage marriages in Texas because of reports "that a polygamist cult in Texas had some parents regularly consenting to marriage of their [fourteen-] and [fifteen-]year-old children." In response, the stated purpose of H.B. 3006 was "to help protect Texas communities and Texas women and children" by regulation of "those activities associated with the practice of bigamy and polygamy." To prevent cult members from perverting Texas marriage laws, the legislature, among other changes, raised the minimum marriage age to sixteen, meaning parents may no longer consent to the marriage of children fifteen years old or younger. The question raised by these legislative changes, which were enacted to prevent an abrogation of the marriage relationship, is whether they are compatible with the public policy favoring marriage in Texas and the constitutionally-protected rights of young Texans and their parents." Rosanne Piatt, Overcorrecting the Purported Problem of Taking Child Brides in Polygamist Marriages: The Texas Legislature Unconstitutionally Voids All Marriages by Texans Younder Than Sixteen and Criminalizes Parental Consent, 37 St. Mary's L. J. 753 (2006).
Link to Article on Westlaw (last visited 6-21-06 NVS)

Film on Polygamy by Indonesian Filmmaker

"Nia Dinata is, without much doubt, Indonesia's most talented new filmmaker: Packed screenings of her latest movie on polygamy at Cannes attest to that. More art house than Hollywood, her success springs from a fearless drive to address issues of the day with poignancy, and touches of humor. In "Love for Share," viewers can also detect something else, an authenticity bred of experience. For Dinata, 36, a movie that showed the behind the scenes anguish of polygamous marriages, most particularly for women, was an obvious thing to do. As more conservative strands of Islam take hold in Indonesia, polygamy is on the rise, flaunted in public by princesses and politicians. Dinata grasped the moment to show what she calls the sadness and denials behind the smiles of wives who say they accept being one of a crowd. When she was 18, just starting her freshman year at college in the United States, she was unexpectedly called home: Her father was taking a second wife." By Jane Perlez, International Herald Tribune Link to Article (last visited 8-21-06 NVS)

Daughters of Polygamists Rally in Support

"Calling their lives blessed, more than a dozen young women and girls from polygamist families in Utah spoke at a rally Saturday, calling for a change in state laws and the right to live their life and religion. "Because of our beliefs, many of our people have been incarcerated and had their basic human rights stripped of them, namely life, liberty and the pursuit of happiness," said a 19-year-old identified only as Tyler. "I didn't come here today to ask for your permission to live my beliefs. I shouldn't have to."

Polygamy is banned in the Utah Constitution and is a felony offense. The rally was unusual because those who practice polygamy typically try to live under the radar.It drew about 250 supporters to City Hall, said Mary Batchelor, co-founder of Principle Voices of Polygamy, which helped organize the event. The youths, ages 10 to 20, belong to various religious sects, as well as families that practice polygamy independent of religious affiliation. They said they spoke voluntarily. They gave only their first names, saying they were protecting the privacy of their parents." AP, CNN.com Link to Article (last visited 8-21-06 NVS)

Recent News and Scholarship on Transracial Adoptions

The New York Times reports that a growing number of white couples are pushing past longtime cultural resistance to adopt black children. In 2004, 26 percent of black children adopted from foster care, about 4,200, were adopted transracially, nearly all by whites. That is up from roughly 14 percent, or 2,200, in 1998, according to a New York Times analysis of data from the National Data Archive on Child Abuse and Neglect at Cornell University and from the Department of Health and Human Services.

Read the NYT Article (last visited August 17, 2006 bgf)

The past year has produced some provocative scholarship on the subject of transracial adoption by family law professors. 

• Solangel Maldonado, Discouraging Racial Preferences in Adoptions, 39 U.C. Davis L. Rev. 1415  (2006)
  Drawing on the rich literature on cognitive bias, Professor Maldonado debunks the myths about domestic and international adoptions and shows that racial preferences, even if unconscious, play a role in many Americans’ decisions to adopt internationally. She  proposes that the law discourage adoptions based on racial preferences by requiring that Americans seeking to adopt internationally, while there are available children in the United States who meet their non-race-based criteria, show non-race-based reasons for going abroad. (read the article)
• Tanya Washington Loving Grutter: Recognizing Race in TransRacial Adoptions, 16 Geo. Mason U. Civ. Rts. L.J. 1 (2005)  Professor Washington examines the available social science data that examines the success and failings of transracial adoptions.  She argues for a mandatory racial competency training program designed to preserve and promote the best interest of transracial adoptees and analyzes the constitutionality of such a program. (George Mason U Civil Rights Law Journal)

Several articles appeared in the The Boston College Third World Law Journal Symposium Issue on Black Children and their Families in the 21st Century, including:

• Twila Perry, Transracial Adoption And Gentrification: An Essay On Race, Power, Family And Community, 26 B.C. Third World L.J. 25 (2006)

Professor Perry argues that both transracial adoption and gentrification represent contexts in which, in the future, there may be increasing competition for limited resources. Professor Perry argues that in any such competition, Blacks will increasingly find themselves at a disadvantage stemming from the consequences of institutionalized racism. Professor Perry urges increased government involvement to preserve Black families and to protect Blacks against the displacement that often results from gentrification. (read the article)

• Michele Goodwin, The Free-Market Approach To Adoption: The Value Of A Baby, 26 B.C. Third World L.J. 61 (2006)

Professor Goodwin argues that the current adoption model in the United States resembles an unregulated marketplace in children.  She explores this marketplace and the way in which race, genetic traits, and class are implicated in adoption processes, resulting in higher fees associated with the adoption of children with desirable traits.  She proposes two mechanisms by which the government could regulate the adoption market -- price caps and taxation and advocates greater transparency and information in the adoption process to protect the welfare of children who might otherwise be exploited in an unregulated adoption market. (read the article)

• Angela Mae Kupenda, Seeking Different Treatment, Or Seeking The Same Regard: Remarketing The Transracial Adoption Debate, 26 B.C. Third World L.J. 97 (2006)

Professor Kupenda urges a remarketing of the transracial adoption debate to reflect a request based on sameness, not difference. The request is not one for different treatment for black children. Rather, it is for black children to be given the same regard that is given to white children. This request is illustrated with the story of a black couple seeking to adopt healthy, fat white babies. (read the article)

Finally, for some broader perspectives on adoption, including transracial adoption, you may want to check out Barbara Bennett Woodhouse's article Waiting for Loving: The Child's Fundamental Right to Adoption, 34 Cap. U.L. Rev. 297 (2005) or Professor Lynn D. Wardle's article Parentlessness: Adoption Problems, Paradigms, Policies and Parameters, 4 Whittier J. Child & Fam. Advoc. 323 (2005)

(All links last visited August 17, 2006 bgf)

Race as a Consideration In Custody Actions

While we're looking at race and adoption, it seems appropriate to point out that the debate over how and if race should be considered in custody actions is not settled.  A recent Illinois Appeals Court decision affirmed a trial judge's decision to grant sole custody of a 2-year-old bi-racial child to her African-American mother rather than her Caucasion father.  The bitter custody battle included 15 days of trial, 128 exhibits and 15 witnesses (including four experts, the admissibility of whose testimony was a central issue in the appeal).  The trial judge found both parents equally fit to care for the child but favored mother in part because "the mother was able to provide the child with the support she would need in a world that was potentially hostile to biracial individuals."

The court considered the effect of Palmore v. Sidoti, 466 U.S. 429 (1984) and concluded that, while race cannot be the sole factor in a custody determination, "Volumes of cases from other jurisdictions have interpreted Palmore as not prohibiting the consideration of race in matters of child custody."

A strongly worded dissent argued that  "Despite this court's weak protest to the contrary, the remarks in the trial court's letter of opinion show that the court's decision for custody improperly hinged on the sole factor of race: that only an African-American person can properly raise a biracial child in this society."

In re Gambla, 2006 Ill. App. LEXIS 667 (July 31, 2006)
opinion on the web (last visited August 17, 2006 bgf)

Battle over Teenager's Choice of Medical Treatment is Settled

The Washington Post reports that the family of a Virginia boy who has refused conventional medical treatment for cancer reached a settlement today with state officials, agreeing that he will see a new doctor while continuing his alternative therapy.  (See July 13th Family Law Prof Blog posting on this case)

Read the Washington Post article   (last visited August 17, 2006 bgf)

Caseworker Visits Key to Foster Care Safety

Experts believe that frequent visits from caseworkers are key to keeping children safe in foster care. As a result of lawsuits, consent decrees, and collaborations with child advocacy groups, forty-three states have adopted standards calling for monthly caseworker visits to children in foster care. However, twenty-seven states have been cited as needing imporvement in this area. Information from Department of Health and Human Services, Office of Inspector General, State Standards and Capacity to Track Frequency of Caseworker Visits with Children in Foster Care, (2005) Link to Report (last visited 8-16-06 NVS)

Grieving Father Sues County for Failure to Stop Abuse

"Matthew Radke tried to get someone to pay attention to the bruises on his 18-month-old son, Makaio, for three months. First police, then a doctor, then a court-appointed advocate saw bruises on the toddler. Three times, Freeborn County child-protection workers visited the Albert Lea home where Makaio lived with his mother and two friends of hers. Three times, Peggy Radke's explanations satisfied the caseworkers. On April 21, 2001, less than 24 hours after the last visit, Makaio was found dead — his ribs broken, his lungs punctured and his body nearly covered with bruises. He had been left alone for 12 hours with 27-year-old Paul Gutierrez, who is now serving life in prison without parole for the boy's death.

But Matthew Radke also blames the county. In what could turn out to be a landmark case, Radke is suing Freeborn County, claiming it failed to stop the abuse. Last year, the suit was given a green light by the Minnesota Supreme Court — the first time a citizen has been allowed to sue a county under the state's child-protection statute." By Rick Links, Pioneer Press Link to Article (last visited 8-16-06 NVS)

Read Radke v. County of Freeborn, 694 N.W.2d 788 (Minn. 2005) Link to Westlaw (last visited 8-16-06 NVS)

Parents' Companions Linked to Child Abuse

"When the boyfriend moved in, the bruises began. Kailyn Montgomery's mother was alarmed. Every few days, new bruises appeared on Lindsey Ostler's 2-year-old. Ostler took her daughter to a clinic and then a hospital, triggering an investigation. Ramsey County authorities put the Maplewood girl in protective foster care until her injuries healed, then sent her home. Two months later, 18-year-old Kyle Kelbel beat Kailyn to death.

That was December 2000. The murder made Kailyn one of at least 13 children since 1999 killed by their parents' companions, according to the Minnesota Department of Human Services. Her case illustrates what some say is a growing problem — desperate young women entrusting their children to men in situations that make them more likely to be abused." By Rick Links, Pioneer Press Link to Article (last visited 8-16-06 NVS)

Case Law Development: PKPA Requires Recognizing Originating States Custody Order Even if Another State Would be able to Exercise Jurisdiction under its own Version of the UCCJEA

The Connecticut Court of Appeals provides a brief and readable explanation of the interaction of the PKPA and the UCCJEA in a case in which Florida had originally entered a custody order and Father then obtained a modification of that custody order in Connecticut.  The court found that since the Florida court properly exercised jurisdiction under the PKPA in the first instance and Mother still resided there, that state's courts continued to have sole and exclusive jurisdiction.  Since Florida's version of the UCCJEA provided a basis for that jurisdiction, the Connecticut court could not modify custody without an order from Florida stating that it no longer has jurisdiction. This was so even though under Connecticut's version of the UCCJEA, there would be a basis for Connecticut to exercise jurisdiction over the custody action.

Scott v. Somers, 2006 Conn. App. LEXIS 369 (August 15, 2006)
Opinion on the web

Case Law Development: Emancipation May Not Be Based Solely on Poor College Grades

A New Jersey trial court ordered that a 20-year-old daughter would be emancipated if she did not earn a
"B" average in college that semester.  In the court's words, " "Whatever she finishes this semester with, if it's a B average, [Father] pays. If it's not a B average, he's off the hook, and maybe she has to take a year off and get a job and save money so she can go to school the next year. Maybe she has to go to school at night and work during the day or vice-versa."  When daughter's semester did not meet the grade standard imposed, the trial court ordered a termination of child support.  The court of appeals reversed, concluding that "Early struggles at school do not take a child outside of the parental sphere and make him or her independent. On the contrary, when the child struggles in college he or she may need and rely on his or her parents even more than during times of success. The standard applied by the court was arbitrary, capricious and unreasonable." The appellate court also found that the trial judge had failed to make adequate findings as to the father's ability to contribute to his daughter's college expenses.

Keno v. Pilgrim, (August 15, 2006)
Opinion on the web (last visited August 15, 2006 bgf)

Case Law Development: Duress & Undue Influence in Post-Nuptial Agreements

The California Court of Appeals addresses the burdens of proof and standards for establishing the defenses of undue influence and duress when seeking to make a marital agreement regarding property unenforceable.  The case involved a couple who had executed a premarital agreement giving Husband all his business property.  Eleven years later, while Husband and Wife were staying at an inn, he executed a document transferring to Wife as her separate property 20% of the stock in his business and the family home.  The couple separated a few months later and Husband soon thereafter filed for divorce.  The trial court found that this document was unenforceable due to undue influence and duress, as Husband had provided credible evidence that he had signed the document after Wife had screamed at him, struck him, and threatened to divorce him and alienate him from their children if he did not provide her with this security.  The court of appeals affirmed.

In regards to the undue influence argument, the court began with the presumption that, because married couples are in a confidential relationship with one another, "if one spouse secures an advantage from [an interspousal] transaction, a statutory presumption arises under section 721 that the advantaged spouse exercised undue influence and the transaction will be set aside."   Since Wife gained an advantage from the transaction, she then had the burden of rebutting the presumption of undue influence by proving that Husband's signature was "freely and voluntarily made, with full knowledge of all the facts, and with a complete understanding of its effect."  The court found that the trial court's decision that Wife had not met this burden was supported by the evidence.  The court agreed Husband had "executed the document as a reaction to [Wife's] continued yelling and screaming and out of fear that she would otherwise block him from having a continued relationship with his children" and therefore the agreement was not freely and voluntarily made.

The court also found that the alternative grounds of duress was supported by the evidence. 

The court of appeals, found that duress does not require proof of illegal acts but rather "includes whatever destroys one's free agency" and may be proven by "threats, importunity or any species of mental coercion"'

In this case, Ralph's free will was constrained by Kathleen's threats to deny him access to his children. Kathleen disagrees, saying that any threat to deny Ralph access to the children could hardly constitute duress, inasmuch as child custody and visitation matters are resolved by the courts. She emphasizes that Ralph, as a successful businessman, had access to lawyers and should have known better than to be frightened at the suggestion that she somehow could have thwarted his rights to see his children. However, as Ralph testified, he did not discuss Kathleen's threats with legal counsel until after the date he was constrained to execute the October 1999 writing. Moreover, it is not unheard of for one parent to fail to comply with court custody or visitation orders or to engage in efforts to scuttle the relationship between the children and the other parent. As a practical matter, the courts are ill-equipped to undo the damage done by infighting parents....

It is also true, as Kathleen states, that Ralph admitted he was not actually afraid for his physical safety on account of Kathleen's physical abuse of him. The fact that he did not expect to wind up in the hospital the next time she struck him does not, however, mean that her abuse did not have a cumulative and real effect on his mental state.

In re Marriage of Balcof, 2006 Cal. App. LEXIS 1252 (August 15, 2006)
Opinion on the web (last visited August 15, 2006 bgf)

More Studies on the Health and Happiness Effects of Marriage

Care to catch up on some of the latest news reports on studies of marriage and family?  Pick your proof...

• Depressed singles receive greater psychological benefits from getting married than those who aren't depressed;
• A women's libido starts to wane as soon as she feels sure she has got her man;
• Children of working mothers aren't as happy as children of stay-at-home moms; and
• those who never married tended to die earlier than those who were divorced, separated or widowed.

(all sites visited August 16, 2006 bgf)