Family Law Prof Blog

Florida adoption ban unconstitutional - again

Circuit Judge Cindy Lederman held Florida's bar to "homosexuals" adopting children unconstitutional.  The ban, a product of Anita Bryant's "Save Our Children" Campaign in the late 1970s, has been challenged numerous times, with trial judges finding it unconstitutional, see Family Law Professor Blog here and here.

Lederman, known for her innovative work with children (NPR profile here), held that the ban did not meet the rationality standard and granted the adoptions.   The state will reportedly appeal.

Copy of opinion, In re Gill, as pdf here.   More information on the case is available on the ACLU website here, including a link to a You Tube video.

RR

Same-Sex Marriage - California Prop 8

The California proposition amending the state constitution to define marriage as limited to one man and one woman will be heard by the California Supreme Court.   I have discussed this issue on the ConLawProf blog here.

RR

Responsibility for the Elderly

The subject of so-called "filial responsibility" laws is a fascinating one.  It is always sure to provoke an interesting class discussion.  A few casebooks in Family Law include a case; most include a note discussing the issue and citing one or two articles.

The New York Times has an article today here by Jane Gross.  Gross conveniently included a discussion of recent articles as well as a pdf file with citations of the current state laws; she writes:

So it fascinated me to learn that in 30 states, (PDF of 30-state list) adult children are legally responsible, at least on paper, to pay for necessities like food, clothing, shelter and medical attention for indigent parents. These statutes, known as filial responsibility laws, are modeled on the Elizabethan Poor Laws of 1601, which made blood relatives the primary source of support for family members, the elderly included. Public assistance was available only as a last resort.

Law Prof Katherine Pearson of Penn State Dickinson School of Law provides some of her recent articles on filial responsibility on her faculty webpage here.  She also has list of the filial responsibility statutes, helpfully providing hyperlinks to the statutes as well as citations to cases.

RR

Pres-Elect Obama & Family Law

The Obama Transition has been releasing materials on its change.gov website, many of which are important for Family Law Profs.

The "Family" page includes proposals on the FMLA and taxes.

Under "Civil Rights," the portion addressing "Support for the LGBT Community," includes proposals relating to same-sex relationships:

• Support Full Civil Unions and Federal Rights for LGBT Couples: Barack Obama supports full civil unions that give same-sex couples legal rights and privileges equal to those of married couples. Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. These rights and benefits include the right to assist a loved one in times of emergency, the right to equal health insurance and other employment benefits, and property rights.
• Oppose a Constitutional Ban on Same-Sex Marriage:
  Barack Obama voted against the Federal Marriage Amendment in 2006 which
  would have defined marriage as between a man and a woman and prevented
  judicial extension of marriage-like rights to same-sex or other
  unmarried couples.

RR

Divorce Actions by Guardians of Incompetents

The Dallas Morning News reported yesterday a case in which a son is seeking a guardianship for his 87-year-old father and to bring a divorce action on his behalf.  The news report provides plenty of details on the facts of the case and would make a fine case study of divorce dynamics on its own, but it is especially useful for calling student attention to the increasing intersections of elder law and divorce law. 

For a summary of the specific legal issues raised by this case, see the comment by UMKC Law Student Diane Snow Mills, "But I Love What's-His-Name": Inherent Dangers in the Changing Role of the Guardian in Divorce Actions on Behalf of Incompetents, 16 J. Am. Acad. Matrimonial Law. 527 (2000).  That article reviews the state laws on the issue and notes that, at the time of the article, only eight states had statutes or rules which specifically provided for divorce actions brought by the guardian of an incompetent ward.   In the remainder of the states, "the overwhelming majority of jurisdictions with no express statutory authority had held that the decision of whether or not to bring a dissolution action was such a highly personal one and could not be made by anyone other than the aggrieved spouse."  The article does note  a minority trend in the states to increasingly allow these actions and reviews the legal issues. 

Recent cases on the subject have reflected this increasing willingness to allow these actions.  In August of this year, the Ohio Court of Appeals held that a guardian could bring a divorce action on behalf of an incompetent ward.  The court distinguished prior precedent that had prohibited such actions on the basis that those cases predated the adoption of the current Ohio Rules of Civil Procedure, which allow guardians "to sue or defend" on behalf of a ward.  Broach v. Broach, 177 Ohio App.3d 664, 2008-Ohio-4132. (opinion online)   Likewise, last month the New Hampshire Supreme Court issued a decision in a case raising a related issue: whether a guardian could continue an action for divorce that a husband had brought before he became incapacitated by stroke.  While the court noted that the majority rule continues to be that guardians may not initiate divorces on behalf of their incompetent wards, the case before it was exceptional in that the intent of the ward was clear given his action of bringing the divorce petition before he had become incapacitated.  In the Matter of John Salesky and Jacqueline Salesky, New Hampshire Supreme Court, October 8, 2008 (opinion online)(last visited November 18, 2008 bgf).

Conference Announcement: New Approaches to Domestic Violence

The Journal of Legal Commentary of St. John's University School of Law will present its 16th Annual Symposium on Friday March 20, 2009 with the theme "Thinking Outside the Box:  New Challenges
and New Approaches to Domestic Violence."  Speakers include Caroline Bettinger-Lopez, Sarah M. Buel,
Donna Coker, Cheryl Hanna, Donna Lee,Holly Maguigan, Kristian Miccio, Emily J. Sack, Elizabeth Schneider, Deborah Tuerkheimer and Joan Zorza.

For more information please contact Karyn DiDominici [email protected]
or (718) 990-1950.

BGF

Recent Scholarship on Safe Haven Laws

Recent articles addressing Safe Haven laws include:

Carol Sanger, Infant Safe Haven Laws: Legislating In The Culture Of Life, 106 Colum. L. Rev. 753 (2006) available on SSRN

A comprehensive article that addresses safe haven in a larger context of history and politics. Professor Carol Sanger examines the problem of infant abandonment in light of history and research on the characteristics of women who abandon or kill their newborns. She concludes that Safe Haven laws are unlikely to be effective in deterring these mothers. She then examines the enactment of this legislation as part of a larger political culture and suggests that “there is a snug and interesting fit between Safe Haven legislation and a culture whose politics are increasingly organized around the protection of unborn life.” She argues that Safe Haven laws have powerful social and cultural effects: shaping “social understandings of women as untrustworthy persons” and providing additional reinforcement for the “culture of life.” Professor Sanger examines more closely the “culture of life” in this context, raising the “possibility of a dismal feedback loop between the culture of life and the problem of infant abandonment” as young pregnant women “become immobilized in a dilemma where both pregnancy and abortion have become impossible choices.”

Jeffrey A. Parness & Therese A. Clarke Arado, Safe Haven, Adoption And Birth Record Laws: Where Are The Daddies? 36 Cap. U.L. Rev. 207 (2007).  Available on SSRN

Professors Jeffrey Parness and Terese Arado presented this article as part of the Capital University Law School's annual Wells Conference on Adoption Law. The article briefly reviews safe haven laws and argues that, under these laws, paternity interests are “unreasonably, if not unconstitutionally, foreclosed when children are abandoned by their mothers.”  The article draws parallels to adoption and birth records law that also allow for “paternity losses due to maternal acts.”  The article argues that “Lost daddies are unwarranted because laws should not allow maternal privacy rights and interests to so easily foreclose chances for responsible fatherhood, especially in settings where births result from consensual sex between unwed partners.” 

BGF 11-14-08

FAQ on Nebraska Safe Haven Law

At last count 34 children have been left at Nebraska hospitals under the state's safe haven law.  While the legislature is meeting in special session today to amend the law to put an age limit in place, family law professors are likely facing a number of questions by students about the law.   Here's a quick crib sheet with links to references.  (all sites last visited November 14, 2008 bgf)

Q.  What is this law and do other states have it? 

A.  According to the National Safe Haven Alliance :"Safe Haven laws have been passed in all 50 states since 1999. At that time a movement arose to combat increasing cases of infant abandonments across the U.S. In many cases these infants would perish from exposure to the elements, starvation or dehydration. Safe Haven laws were created to allow an adult to anonymously relinquish a baby into the hands of a responsible adult, in most cases at hospitals, police stations or fire stations, without fear of reprisal or prosecution." 

Q.  What children are being reliquished under these laws?

The difference between the Nebraska law and these other laws is all other states have an age limit - ranging from 3 days to 1 year old.  See The National Center of States Courts Safe Haven Legislation Chart (2003).  In the first two months of the Nebraska law, the majority of children abandoned were teenagers, 90% of whome were previously involved in some type of mental health services and over half of which were at one time, or currently are wards of the state. See more statistics about the children from this report from Nebraska station KOLN/KGIN's website.

Q. Why were these laws passed?

A. The laws were passed to prevent newborns from being killed or abandoned in unsafe conditions.  "The advocates of these laws believe that lives will be saved, crimes will be prevented from occurring, and more infants will be available for adoption. Others have argued that these laws may not work, because the women who commit neonaticide often deny or conceal that they are pregnant, and do not arrange for the birthing process or for the care of the child after the birth. [Other researchers] have argued that women who commit neonaticide usually do so in a state of panic and fear, so it is unlikely that they will be sufficiently calm to consider dropping off their newborn in a designated safe place. National Abandoned Infants Assistance Resource Center, Discarded Infants and Neonaticide: A Review of the Literature 9 (2004)(citations omitted)

Q. What happens to the parents who have abandoned their children under these laws?

A.  All safe haven laws provide some form of anonymity for the relinquishing parent and so no authorities make no attempt to identify or locate that person, though some states do allow authorities to ask for medical information from the relinquishing parent.  Most states do require verification that the infant has not been reported as a missing child, and some states require a public notice or a search for the non-relinquishing parent (nearly always the father).  All safe haven laws also provide some form of defense or immunity from criminal prosecution. 

Q.  What is a parent's rights or responsibilities if they have relinquished a child under these laws?

A.  Generally, the parent is presumed to have abandoned the child.  Abandonment is a basis for termination of parental rights. National Abandoned Infants Assistance Resource Center, Expediting Permanency for Abandoned Infants 7 (UC Berkeley 2007).  The Nebraska law is particularly vague on the impact of a parent's abandonment under the safe haven law -- apart from providing for immunity from criminal prosecution, it's simply unclear what happens next to these children.  Read more about the problem in this Wall Street Journal article.

Hurricane Katrina -- Urban Institute report on consequences for low-income children and families

The Urban Institute released a November 5, 2008 report, "Understanding the Consequences of Hurricane Katrina for ACF Service Populations."

According to the Urban Institute, "This report is an analysis of alternative datasets and research approaches to assess the effects of Hurricane Katrina on populations served by the U.S. Department of Health and Human Services/Administration for Children and Families (ACF). The assessment addresses four overarching research questions, with an emphasis on using existing datasets: 1) where did populations of interest go and where are they living since Katrina; what are the effects on income and employment; what are the needs for ACF programs and services; and how did the disaster affect ACF programs themselves? The report includes an extensive annotated bibliography of analyses through January 2007."

(visited by MIF 11-10-08)

Ballot Initiatives

In yesterday's voting across the nation, several states had ballot initiatives relating to family law.

Florida, Arizona & California each presented constitutional amendments banning same-sex marriage. Florida and Arizona both passed the amendment and, in California, with more than 95% of the vote counted, Proposition 8 leads 52.1% to 47.9%. The effect of this amendment on the estimated 18,000 same-sex couples who wed in California during the last 4 1/2 months is unclear.  Court challenges to the law are already in the works.  All three amendments define marraige as "a union between one man and one woman."  Florida's amendment also provides that "no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized."

Arkansas Initiative 1, which bans an individual who is “cohabiting with a sexual partner outside of marriage which is valid under the constitution and laws of this state” from adopting or serving as a foster parent to a child, passed with 57% of the voter's approval.

A number of states had ballot initiatives related to abortion.  Colorado's Amendment 48 would have defined a "person" from the point of egg fertilization. The amendment was defeated nearly 3 to 1.  South Dakota's Measure 11 again proposed a ban on abortion, with some exceptions for incest, rape or when the mother's life or health are endangered.  The effort to set up a test case to challenge Roe v. Wade was rejected by 56% of voters. California Proposition 4 would have required doctors to notify a minor's parents before performing an abortion and mandated a 48-hour waiting period before the procedure was narrowly defeated.

For a summary of these and other ballot initiatives, see the Time report.  (BGF)