Family Law Prof Blog

Happy Halloween!

                                    

         

MR

Obesity as a Basis for Losing Custody

A recent case out of the U.K. has brought renewed attention to the issue of whether morbid obesity in children is a sign of abuse and neglect, such that the parents of those children should lose custody.

The latest case to make headlines concerns a Scottish couple who lost custody of two of their six children on the basis of what was, their lawyer claims, a failure to reduce the kids' weight following warnings from Scottish social services. The couple lost their Oct. 14 appeal in a case that is far from clear-cut — representatives of Dundee City say they would never remove children "just because of a weight issue." But obesity appears to be the primary reason South Carolina mom Jerri Gray lost custody of her 14-year-old, 555-lb. son in May. She was arrested after missing a court date to examine whether she should retain custody after doctors had expressed concern about her son's weight to social services. The boy is currently living with his aunt, and his mother is facing criminal child-neglect charges.

Several other cases in recent years — in California, New Mexico, Texas and New York, as well as Canada — have garnered attention because a child's obesity resulted in loss of custody. "It's happening more than the public is aware of, but because these cases are usually kept quiet [as a result of child-privacy laws], we have no record," says Dr. Matt Capehorn, who sits on the board of the U.K.'s National Obesity Forum. The issue of whether parents should lose custody of their obese children took center stage two years ago with a British television documentary about Connor McCreaddie, an 8-year-old who weighed more than 200 lbs. and was at risk of being taken from his mother by authorities. She eventually weaned him off processed foods and retained custody.

Read the Time story here.

AC

Suicide Tourism Under Threat in Switzerland

TimesOnline reports that two draft Bills will be offered for public debate in Switzerland to tighten regulation of euthanasia clinics in Switzerland.  Dignitas and Exit, two of the most prominent Swiss euthanasia clinics spurring Europeans to engage in suicide tourism, will have to adhere to the new regulations or shut down operations.  Quite a bit of European media coverage has focused on these clinics, highlighting the grotesque apsects of the business of euthanasia, including a 70-hour suicide gone awry.

MR

New Issue of Family Law Quarterly Addresses International Enforcement of Child Support

Volume 43, number 1 of the Family Law Quarterly contains an article summarizing the 2008 suggested amendments to UIFSA (the Uniform Interstate Family Support Act), as well as a number of articles about international child support enforcement.  To look at the articles, go to

http://www.abanet.org/family/flq/

T.O. 

ABA Family Law Section to Offer the Trial Advocay Institute in May 2010

For some time the ABA Family Law Section has offered a Trial Advocacy Institute for lawyers with some experince who want to become better trial lawyers.  During this intensive week-long experience students are tutored by some of the best family lawyers in the U.S.  This year it will be held at the University of Denver Law School May 22-29. For more information, go to

http://www.abanet.org/family/events/tai/ 

T.O.

Are the Dodgers Community Property?

We'll find out soon enough.  With the filing of a petition for divorce on Tuesday, Jamie and Frank McCourt have begun what seems likely to become a long and bitter divorce battle.  Among the issues raised in the petition for divorce is ownership of the Los Angeles Dodgers.  Frank claims he is the sole owner of the team.  Jamie claims the team is community property.  A 2004 marital property agreement executed just after the Dodgers purchase indicates that the team may be Frank's separate property.  No doubt the enforceability of that agreement will be questioned, and there are reports that Frank himself did not believe the agreement made him sole owner of the team.  Read early news coverage of the case here and here.

AC

New Frontiers: Scientists Make Sperm and Eggs from Stem Cells

Yesterday's online edition of Nature revealed that researchers at Stanford have determined the genes that coax human embryonic stem cells into becoming cells that form eggs and sperms.  As a Reuters article explains, researcher Dr. Kehkooi Kee was able to pinpoint germ cells (cells that differentiate into either eggs or sperm in the human body) that developed from embryonic stem cells by adding a gene that fluoresced green when germ cells were active.  Once the green fluoresced, indicating the formation of a germ cell, researchers began silencing and overexpressing genes to determine which ones were most involved in the transformation of stem cells to immature germ cells.  Among the most important genes in this transformation turned out to be DAZ, DAZL and BOULE.  Researchers may redo the process not with human embryo cells, but with a sliver of human skin.  This discovery has major implications for the definition of the family and the treatment of infertile couples, especially those who cannot produce their own viable sperm and eggs.  In theory, this technique would allow people to make babies without contributing their actual eggs or sperm.  Science, once again, provocatively presents new issues in family law, public policy, and ethics.     

                                                                     

MR

Australia Passes New Legislation affecting De Facto Couples

Australia has now joined New Zealand by passing legislation treating certain de facto couples like married couples when the relationship breaks down.  Like the New Zealand legislation, the Australian law (which become effective March 1 2009) directs courts to consider a number of factors to detmine whether the couple is a "de facto couple."  Articles describing this new law can be found in Volume 23, number 2 of the Australian Journal of Family Law (August 2009).

T.O.

Study: Childhood Cancer Survivors Less Likely to Marry

A recent study suggests that childhood cancer survivors are 20% to 25% less likely to marry compared with their siblings and the general American population.  It is suspected that some of the lingering effects of radiation—such as issues with thinking and memory, growth and physical functioning—seemed to cause these lower marriage rates among cancer survivors.  Lead researcher Kadan-Lottick stated, “While it can be debated whether marriage is a desirable outcome, marriage is generally an expected developmental goal in our society to the extent that most U.S. adults are married by the age of 30.  Our results suggest that survivors of childhood cancer need ongoing support even as they enter adulthood.”

 

                                                                                 

 MR

Gay Marriage Accepted in Norway

As of January 1, 2009 gay couples have had the right to marry in Norway.  Another change in the law accepted at the same time was an amendment to the Biotechnology Act to give cohabiting or married lesbians access to assisted reproductive technology.  The biological mother's partner will be granted co-mother status if she consents to the fertilization of her partner.  More information can be obtained at

http://www.regjeringen.no/en/dep/bld/Topics/Homosexuality/a-marriage-act-for-all-entering-into-fo.html?id=509376

T.O.  

Racial Bias in Adoption

This story describes the work of one advocacy group to call attention to racial bias plaguing the domestic adoption system.  Focusing on Texas, the article notes that:

Black and Hispanic children account for more than two-thirds of all Texas youngsters waiting for adoption, according to Family and Protective Services figures.

Half of the 174 children waiting for adoption in Lubbock County last year were Hispanic, even though the county's Hispanic population is 30 percent.

Statewide, a white child waits 28.7 months to be adopted while an African-American youngster waits 31.7 months and a Hispanic child 29.2 months.

Those figures don't surprise Richard Wexler, executive director of the National Coalition for Child Protection Reform, a nonprofit group in Alexandria, Va.

"Let's face it, the adoption process reflects the racial prejudices and biases in our society," Wexler said. "An African-American or a Hispanic child is more likely to be taken away from his or her parents than a white child. And when a white child is up for adoption he or she will find a home sooner than an African-American or a Hispanic child."

Those numbers are not all that surprising, and I'd be willing to bet they're quite similar nationwide.  What was more interesting to me is the claim that "social workers remove disproportionate numbers of non-white youngsters from families suspected of abuse or neglect, according to state records."  No Texas data supporting that claim was given.  And of course, it is difficult to judge how meaningful those numbers are given the non-homogeneous nature of abuse and neglect allegations.  Still, I do wonder whether the data nationally is consistent.  Looking at the numbers (percentages) alone, is it true in all states that non-white families are more likely to have their children removed after an abuse or neglect investigation than are their white counterparts?

AC

Octomom's Fertility Doctor Expelled from a Medical Society

While the legal profession continues pondering the appropriate limits of fertility treatment, the American Society for Reproductive Medicine has recently expelled Dr. Michael Kamrava—the doctor who implanted 6 embryos (2 of which split in utero) last year in 33-year-old Nadya Suleman, mother of octuplets.  Although the society’s membership is voluntary and therefore does not impact Dr. Kamrava’s ability to practice medicine, the Society stated that Dr. Kamrava exhibited “a pattern of behavior that violated the group’s standards.”  The Society’s guidelines recommend no more than 2 embryos for women under 35 and no more than 5 embryos for women over 40.  Nadya Suleman already had 6 children when she became pregnant with octuplets following Dr. Kamrava's fertility treatment.

 

                                                                                                  

MR

Ryznar and Stępień-Sporek: "To Have and to Hold, for Richer or Richer: Premarital Agreements in the Comparative Context"

Margaret Ryznar (yours truly, in the interest of disclosure) and Anna Stępień-Sporek (University of Gdańsk) have posted To Have and to Hold, for Richer or Richer: Premarital Agreements in the Comparative Context, 13 Chapman Law Review__(2010), on SSRN.  Here is the abstract:

The premarital agreement, perhaps one of the world’s most unromantic documents, also happens to be quite powerful and complex. Although its most highly-publicized use has been to control post-divorce property division, the premarital agreement’s most significant importance is in its power to circumvent the statutory defaults governing spouses’ rights and responsibilities not only during divorce or death, but also during marriage. However, the enforceability of premarital agreements is subject to procedural and substantive review in the United States. Such agreements also raise universal public policy issues with regard to the meaning of fairness and the limits on freedom of contract. To further understand and address these issues, this Article considers premarital agreements in the comparative context, analyzing the approach of the United States, as well as that of France, Germany, Switzerland, and Poland. The resulting lessons implicate the freedom of contract, the potential characteristics of the regulatory framework surrounding premarital agreements, and the popularity of such agreements among prospective spouses.


MR

Fun for your Monday morning - Will California Soon Ban Divorce?

The Los Angeles Times reports on a proposed constitutional amendment to ban divorce.

California Secretary of State Debra Bowen today authorized the backer of an initiative that would ban divorce to begin collecting signatures to put the proposed constitutional amendment before voters.

John Marcotte now has until March 22, 2010, to collect 694,354 signatures of registered voters in order to get the measure on the ballot next year. The proposal would change the California Constitution to "eliminate the ability of married couples to get divorced in California."

Couples could still get their marriages annulled under the proposal.

AC

European Family Law Conference - Call for Papers

The 4th Conference of the Commission on European Family Law will be held at the University of Cambridge on April 8-10, 2010.  The conference will focus primarily on marital property law, but the organizers have issued a call for papers for scholars with "less than 10 years' research experience" in the areas of protection of the elderly, freedom of testation and protection of family members, and child maintenance.  Abstracts must be submitted by December 15, 2009.  The conference organizers will cover presenters' travel expenses.  Read about the conference and view the full program and call for papers here.

AC

Triger: "The Gendered Racial Formation: Foreign Men, 'Our' Women, and the Law"

Zvi H. Triger (The College of Management School of Law) has posted The Gendered Racial Formation: Foreign Men, "Our" Women, and the Law, 30 Women's Rights Law Reporter__ (2009), on SSRN.  Here is the abstract:

This article analyses the paradox relating to the tension between cultural perceptions and legal norms. Throughout history, countless nations have instituted limitations on marriage and prohibitions on intermarriage. While many of these prohibitions were, for the most part, gender neutral, meaning that both men and women members of the community were barred from marriage outside the community, cultural norms have treated women marrying foreign men less forgivingly than the opposite case. Using historical sources and ancient texts on intermarriage and sexuality, the article argues that the discrepancy between law and culture is to be found in the early Judeo-Christian tradition, which attributed the foreign male with unquenchable sexual prowess while not perceiving the foreign female in the same vein. As the article argues, this was due to a patriarchal worldview which promoted close scrutiny of and control over women's sexuality. Patriarchy, then, led to the development of a cultural taboo on local women marrying foreign men while ignoring the case of men marrying foreign women, despite the gender neutrality of the initial ban.

MR

Ohio Adoptees Kept in Cages File Suit

The New York Times reports the latest in the case involving the Torrence family (read this older post about the early developments in the case):

Two Ohio teenagers forced by their adoptive parents to sleep in cages have sued the couple and caseworkers who arranged the adoptions. The lawsuit was filed Tuesday in Cuyahoga County Common Pleas Court in Cleveland on behalf of Sharen Torrence, 18, and Michael Gravelle, 17. Their adoptive parents, Michael and Sharen Gravelle, named the children after them. The couple are now serving two-year prison terms for abusing some of their 11 adopted special-needs children. The suit also names caseworkers and the Hamilton County Department of Job and Family Services in Cincinnati. It said the Gravelles were unfit to be parents and should never have gotten custody of the children. Julie Wilson, a spokeswoman for the Hamilton County prosecutor’s office, declined to comment.

AC

Dwindling Funds for Ohio Domestic Violence Attorneys

An Ohio newspaper article reports that the state will more than halve repayment rates for attorneys who work on domestic abuse cases from $150 to $60 an hour for court work and $30 an hour for travel.  In 2008, Ohio had paid $1.32 million to lawyers, and nearly half went to a handful attorneys or law firms.  A local advocate is quoted expressing concern for domestic violence victims as a result of these cuts, many of whom seek protection orders from the courts, but as state coffers continue to lighten, we might see more cost cutting.  

                                                                     

MR

Montana Supreme Court Recognizes Parental Interest in Non-Biological De Facto Parent

In Kulstad v. Maniaci, the Montana Supreme Court recognized a parental interest, and thus upheld visitation, in a non-biological former lesbian partner (Kulstad) over the objection of the children's adoptive mother (Maniaci).  The court ruled that Kulstad established a long-term de facto status as parent to the six and ten year-old children adopted by Maniaci when Kulstad and Maniaci were involved in a live-in relationship.  The relationship created between Kulstad and the children was held to outweigh Maniaci's Troxel-recognized fundamental right to make decisions for her children.

Read the entire opinion here, and some interesting blog commentary on it here.

AC

Yablon-Zug: "Dangerous Gamble: Child Support, Casino Dividends and the Fate of the Indian Family"

Marcia Anne Yablon-Zug (University of South Carolina School of Law) has posted Dangerous Gamble: Child Support, Casino Dividends and the Fate of the Indian Family, 36 Wm. Mitchell L. Rev.__(2009/2010) on SSRN.  Here is the abstract:

Casino dividends have created significant wealth for many Indian tribes and have greatly improved the lives of their members. However, these benefits do not come without a price. Other scholars have noted the negative effects of gaming on tribal membership, culture, and identity but, there has been virtually no discussion regarding how casino gaming may hurt the Indian family. A recent case from the Florida Court of Appeals vividly illustrates how casino dividends can be used in ways that harm Indian families. In Cypress v. Jumper, the Florida court completely relieved an Indian father of any and all financial obligation to his children due to his children’s receipt of tribal casino dividends. In this article, I explore both the basis for, and ramifications of, this decision. I conclude that the court’s decision is not supported by previous case law permitting the consideration of children’s income but rather, is the result of the parties’ Indian ethnicity and the historic and continuing negative perceptions regarding Indian parents. I then explore the importance of child support and demonstrate that the benefits of paying child support are not simply monetary, but are also emotional and psychological. These additional benefits are especially important for Indian children who, given the centuries long assault on the Indian family, are more likely to experience family break down and the emotional and psychological effects of such breakdown than non-Indian children. Consequently, I argue that the Cypress decision creates a dangerous precedent that if followed, will allow Indian gaming to significantly harm Indian families.

MR