Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Thursday, January 21, 2010

Census Bureau Data Shows Highest Ever Median Age at First Marriage

Americans are waiting longer than ever to try matrimony for the first time. Statistics released by the U.S. Census Bureau show the median age of men who have their first wedding is now 28.1 years old, and for women it’s 25.9. In both cases, the age is the highest it’s ever been since the federal government first began keeping track of the rate in 1890.

See the data here or read news commentary on it here.

AC

January 21, 2010 | Permalink | Comments (0) | TrackBack (0)

Tattooing Children

We’ve previously touched on the difficulty of drawing a line between permitting parents to make certain medical decisions and having the state do so.  What about tattooing children with primitive instruments?  Is there something wrong with that?  How is different from piercing a baby’s ears, other than the permanency of having a “mom and dad” tattoo on your arm?

From myfoxdc.com:

CHATTOOGA COUNTY, Ga. - A Georgia couple is out of jail on bond after being arrested for tattooing six of their children.

Investigators say they put their children in danger, but they say they did nothing wrong.

Investigators said a plastic pen body with a needle made of a guitar string connected to an electric motor was used to tattoo the six children.

Read more here.

MR

January 21, 2010 in Child Abuse | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 20, 2010

Reform of Royal Marriage Rules on the Horizon?

Rules governing royal marriages and the succession to the throne of the UK breach the European Convention on Human Rights, an influential parliamentary committee has said.

The Joint Committee on Human Rights (JCHR) said that laws barring members of the Royal Family from marrying Roman Catholics were contrary to the Convention, while the rule that male heirs take precedence over older sisters in the succession was "arguably" also a breach.

The cross-party committee of MPs and peers urged the Government to adopt proposals put forward by Liberal Democrat MP Evan Harris to remove religious discrimination against Catholics in relation to royal marriages, and discrimination against women in relation to the succession.

Prime Minister Gordon Brown last year indicated sympathy with calls for reform, telling the House of Commons that "most people recognise the need for change" in the regime put in place by the 1701 Act of Settlement.

Read more here.

AC

January 20, 2010 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Ahmed: "Personal Autonomy and the Option of Religious Law"

Farrah Ahmed (University of Oxford) has posted Personal Autonomy and the Option of Religious Law, International Journal of Law, Policy and the Family (forthcoming), on SSRN.  Here is the abstract:

The ‘millet’ and 'personal law' systems, found in countries such as India, Bangladesh, Sri Lanka, Singapore, Malaysia and Israel, are long-standing models of state accommodation of religious norms in family law. This paper, a work of applied normative legal theory, uses the Indian system of personal laws as a test-case to consider the extent to which these modes of accommodation undermine personal autonomy.

In particular, it studies the claim, made both in the context of the Indian personal law system and in debates in other jurisdictions on the use of religious norms in family law, that if people had a choice between religious law and generally-applicable secular law, this would remove any objection to such systems on the grounds of personal autonomy. It also studies the further claim that such a power to choose would actually make the personal law system better for personal autonomy than a system of general secular laws.

Liberal states, including the United Kingdom and Canada, increasingly face calls from religious groups to reform family law in order to accommodate religious norms. The conclusions of this paper contribute to the broader question of whether these states should do so, as well as the question of what form any accommodation should take.

MR

 

January 20, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 19, 2010

New Jersey Supreme Court Allows Divorce to be Obtained After Death

Years ago, the New Jersey Supreme Court held that a spouse may continue divorce litigation after the other's death for the sole purpose of proving that the deceased spouse had diverted marital assets.  The divorce is an equitable method of recovering those diverted assets for equitable distribution. 

Last week, the New Jersey Supreme Court considered for the first time the reverse scenario.  In Kay v. Kay, the deceased spouse raised the claim that marital assets had been diverted during marriage.  The question was whether a divorce action to recover diverted assets for equitable distribution could be maintained by the deceased spouse's estate. 

The Court held that the right to continue divorce litigation under these circumstances is reciprocal.  Equitable distribution statutes exist to promote equity and fair dealing between the spouses, and depriving the estate of the opportunity to pursue its claim would not serve those policies.

Read the opinion here.

AC

January 19, 2010 in Property Division | Permalink | Comments (0) | TrackBack (0)

C-Sections Overused?

A third of births in the United States and a quarter of births in England are done by c-section.  Such planned surgeries, along with the “too posh to push” attitude of some, have been a cause for concern in both countries.  Also problematic have been stories where new mothers have not even been given a choice anymore by health care providers, who chose to deliver by c-section.

Read here and here for more.

MR 

January 19, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, January 18, 2010

Cameras in California’s Federal Courtrooms

We have recently blogged here about whether cameras should be allowed into the California federal district courtroom in which the Proposition 8 case on same-sex marriage is ongoing, with the video then being posted on YouTube.  The Supreme Court has just ruled on the issue, determining, in a per curiam opinion, that “the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting.”  The full opinion is available here.

MR     

January 18, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Teaching the Ongoing Proposition 8 Trial

Our friends at the Constitutional Law Prof Blog are closely monitoring the Proposition 8 trial in California—the first federal trial on the constitutionality of same-sex marriage bans.  They offer suggestions for using the trial in teaching here and provide a primer on the case here.

We have previously blogged about the case here and here.

MR    

January 18, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Class Action Against State Agency for Lax Child Support Collection

A West Virginia attorney recently filed a class action suit against the State Bureau of Child Support Enforcement, claiming that the Bureau has taken no action in scores of child support enforcement cases, allowing limitations to run and otherwise mishandling enforcement cases.

“I think we have class action here,” Webb said to a woman sitting in his office several months ago as she told him how the Child Advocacy Office handled her case. Her husband owed more than $16,000 in support payments, but the statute of limitations had kicked in and the order lapsed with no action from the office that is supposed to collect from delinquent obligors.

Webb has been a family law lawyer for 23 and served two terms in the state legislature. He knew that his client, Kimberley Hoover, wasn’t the only mother in West Virginia with a child support problem.

“The Child Advocate Office has a duty to collect child support payments for children. It should have been on high alert not to allow statutes of limitations to run out on these judgments,” says Webb with a slightly perceptible growl. “But they weren’t. No one seems to notice or care that children were losing thousands of dollars because of a failure to draft and implement a very simple writ of execution.”

Webb anticipates that the Child Advocacy Board will claim to be “overworked and underpaid” and will say that “the child support payments were uncollectable” in many cases. He doesn’t think that will pass as a defense. It is a particularly weak argument in the case of Kimberley Hoover. “The parent who owed the money advised the court that he was receiving a lump sum payment for a disability claim,” says Webb. “This was a collectable judgment.”

Read the full story here.

AC

January 18, 2010 in Child Support Enforcement | Permalink | Comments (1) | TrackBack (0)

Warm Up Your January Monday...

...by checking out  this link, featuring pictures of parents whose kids think they are awesome.  No joke.

MR

January 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 17, 2010

Haiti Earthquake Impacts Adoption Process

The effects of the devastating earthquake in Haiti have been felt by the many American families awaiting adoption from Haiti, who cannot get their adopted children out of the country.

For example, this Wisconsin adoptive couple is waiting for a 16-year-old Haitian boy to get his passport to join them; in the meantime, he is sleeping in an orphanage’s courtyard as the orphanage is structurally unstable.

Meanwhile, this mother from Skokie, Illinois is awaiting the opportunity to bring home her 4-year-old HIV positive adopted child from Haiti.

Hopefully, these cases will be resolved soon, but that might be difficult in the midst of disaster.

MR

January 17, 2010 in Current Affairs | Permalink | Comments (3) | TrackBack (0)

Fairfield: "Virtual Parentalism"

Joshua Fairfield (Washington and Lee University School of Law) has published "Virtual Parentalism," 66 Wash. & Lee L. Rev. 1215 (2009).  Read the abstract on SSRN here:

Parents, not laws, ultimately protect children both online and offline. If legislation places adults at legal risk because of the presence of children in virtual worlds, adults will exit those worlds, and children will be isolated into separate spaces. This will not improve safety for children. Instead, this Article suggests that Congress enact measures that encourage filtering technology and parental tools that will both protect children in virtual worlds, and protect free speech online.

AC

January 17, 2010 | Permalink | Comments (0) | TrackBack (0)

Saturday, January 16, 2010

Dauvergne & Millbank: "Forced Marriage as a Harm in Domestic and International Law"

Catherine Dauvergne (University of British Columbia Faculty of Law) and Jenni Millbank (University of Technology, Sydney) have posted "Forced Marriage as a Harm in Domestic and International Law" on SSRN.  Read the abstract here:

This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages both within Europe and elsewhere. We pay particular attention to British initiatives because they are in many ways the most far-reaching and innovative, and thus the contrast with the response of British refugee law is all the more stark.

AC

January 16, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, January 15, 2010

Murray: "Exposing the Underground Establishment Clause in the Supreme Court’s Abortion Cases"

Justin S. Murray (Georgetown University Law Center) has posted Exposing the Underground Establishment Clause in the Supreme Court’s Abortion Cases on SSRN.  Here is the abstract:

In Roe v. Wade, the Supreme Court held that women have a constitutional right to abortion based on the Due Process Clause. To arrive at this conclusion, the Court implicitly relied on concepts that properly belong to the Establishment Clause - in particular, the Establishment Clause requirement that all laws must be supported by secular purposes, not religious ones. This Article is the first attempt to describe and critically evaluate the Court’s use of Establishment Clause ideas in Roe and later abortion cases.

Some brief background is essential in order to grasp the structure and significance of the underlying Establishment Clause dynamic of Roe. The Due Process Clause allows the government to restrict fundamental constitutional liberties (such as abortion) if it has a compelling reason for doing so. States have defended their abortion laws by arguing that protecting unborn human life against homicide is a compelling reason to restrict abortion. This argument, advanced in Roe, directly presented the Supreme Court with the question of whether fetuses are human beings entitled to protection against homicide.

The Court, however, refused to answer the question and provided a convoluted, ambiguous explanation for its refusal. Careful interpretation of these ambiguous passages reveals the Court’s underlying concern that neither the judiciary nor the legislature may decide the question of fetal humanity because it is a controversial religious question. When the Court’s rationale is clarified and plainly stated in this way, it becomes clear that Roe’s method of analysis - rejecting the state’s interest not because it is false or unimportant, but because it is religious and therefore an inappropriate basis for political judgment - is identical to the Establishment Clause requirement that legislation must be based on a secular purpose.

However, the Court’s analysis is problematic, because Establishment Clause principles are consistent with governmental protection of fetal life. The humanity of the fetus can be plausibly supported, not only on religious grounds, but also on the secular grounds of philosophical, historical, and experiential reasoning. To be clear, I do not argue that these secular grounds prove beyond dispute that fetuses are human beings. Instead, I defend the more modest proposition that a debatable secular case can be made for viewing fetuses as human beings. This conclusion is not strong enough to justify criminalization or restriction of abortion (which is beyond the scope of this Article), but it does prove that such criminalization or restriction would not violate the Establishment Clause. Thus, the Court should revisit the fundamental question that it evaded in Roe and later cases: is the fetus a human being, such that legislatures have a compelling interest in protecting fetal life against abortion?

MR

 

January 15, 2010 | Permalink | Comments (0) | TrackBack (0)

Iowa Grandparents Seek More Rights

As Iowa state legislators resumed their work this week, they are facing calls to change the laws on grandparents’ visitation to favor the grandparent-grandchild relationship.  Of course, legislators will be somewhat restricted by the famous Supreme Court case limiting grandparents’ visitation, Troxel v. Granville, 530 U.S. 57 (2000), available here.

From the Associated Press and The Des Moines Register:

Some family-law attorneys are calling for changes in Iowa law to make it easier for a court to grant grandparents face time — especially if one parent is dead.

Judy O'Donohoe, the Schwerins' Charles City attorney, is among those who believe state lawmakers can better balance children's needs for their grandparents and a parent's right to determine with whom their children associate and not run afoul of state and federal court decisions.

Current Iowa law is so strict it's almost impossible to get visitation, several lawyers said. Grandparents and great-grandparents have the right to ask the court for visits, but they have no shot at winning unless they can prove the custodial parent is "unfit" to make decisions about whom the child sees.

Court rulings don't require such a strict state law, advocates for change say. 

Read the full article here.

MR

January 15, 2010 | Permalink | Comments (1) | TrackBack (0)

Thursday, January 14, 2010

Abel: "Keeping Families Together, Saving Money, and Other Motivations Behind New Civil Right to Counsel Laws"

Laura Abel (Brennan Center for Justice at NYU School of Law) has posted Keeping Families Together, Saving Money, and Other Motivations Behind New Civil Right to Counsel Laws, Loyola of Los Angeles Law Review (forthcoming), on SSRN.  Here is the abstract:

In 2006, the American Bar Association’s House of Delegates unanimously passed a landmark resolution, calling on states to provide a right to counsel in civil cases in which “basic human needs” are at stake. In the years leading up to the resolution’s passage, and since then, Alabama, Arkansas, Connecticut, Florida, Hawaii, Louisiana, Montana, New York and Texas have enacted laws expanding the right to counsel in civil cases.

While most of the bills concerned child welfare in some way, their approaches varied widely and included: 1) expanding an existing right to counsel in termination of parental rights cases brought by the state so that it now covers cases in which a private individual is seeking to terminate parental rights; 2) providing counsel for parents at the early stages of child abuse and neglect cases; 3) strengthening an existing right to counsel for parents in child abuse and neglect cases by taking various measures to improve the quality of representation provided; 4) requiring the state government (or a nonprofit providing foster care services for the state) to retain an attorney to file a petition to adjust the immigration status of children who appear eligible for special immigrant juvenile status, and 5) providing counsel to parents in child custody proceedings pending in the state’s trial courts of general jurisdiction.

 Although there is a growing body of law review articles regarding the civil right to counsel, until now the passage of these statutes has received little attention. Rather, most of the recent literature focuses on the potential for judicial expansion of the right. This article attempts to understand the reasons for legislative expansion of the right, and to draw some lessons for the future. Section II examines the legislature’s motivations for passing each statute. Section III explores motivations common to many of the bills, including expectations of financial savings, a desire to fix failing state child welfare bureaucracies, and notions of fundamental fairness. Most of the bills were enacted with little or no opposition. Section IV draws lessons that may prove helpful to advocates wishing to heed the ABA's call to expand further the right to counsel in civil cases.

MR

January 14, 2010 | Permalink | Comments (1) | TrackBack (0)

Evidentiary Issues in IL Domestic Violence Cases

The Illinois Court of Appeals recently affirmed that section 115-7.4 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.4 (West. Supp. 2007)), which permits prior acts of domestic battery to be admissible in a domestic battery trial, does not violate defendant’s due process.  This is because another statutory section provides a notice requirement, while yet another statutory section mandates that the trial court, before admitting such evidence, engage in an inquiry regarding whether the other-crimes evidence is relevant and whether its probative value outweighs its prejudicial effect.

The case is People v. Dabbs, No. 3-08-0709 (Ill. Ct. of App. 2009) and the opinion can be read here.

MR

January 14, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 13, 2010

Norwegian Study Shows No Significant Correlation Between Divorce Rate and Parenting a Child with Cancer

Using data on nearly 978,000 married couples in Norway, researchers found that divorce rates between 1974 and 2001 were no higher among couples with a child suffering from cancer compared with other parents.

When other factors were considered, such as parents' age and family income, couples who had a child with cancer were 4 percent more likely to get divorced than other parents -- a difference that was not significant in statistical terms.

Few studies have looked at divorce among parents of children with cancer. But there is often a "general perception" -- whether at cancer clinics or in support groups -- that the strain of having a child or a spouse with cancer puts couples at risk of divorce, noted Dr. Astri Syse of the Cancer Registry of Norway in Oslo, the lead researcher on the new study.

These perceptions, she told Reuters Health in an email, are "unsubstantiated myths that may add another burden to the people afflicted by cancer or afflicted family members, and thus important to highlight as incorrect."

"In general, our study ought to reassure parents of children with cancer," Syse said.

She added, however, that the study was conducted in a country with an extensive welfare system that includes free healthcare, and that may shield couples from some of the economic hardships and other stresses that can affect families dealing with a child's cancer.

That, according to Syse, leaves the question of whether the findings extend to countries with different health and welfare systems, including the U.S.

Read the full story here.

AC

January 13, 2010 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

Psychiatrist Communications Unprotected Under Act in IL Custody Cases

In answering a question certified for interlocutory appeal, an Illinois Appellate Court determined that the Mental Health Confidentiality Act does not protect communications with Section 604(b) court-appointed psychiatrist in custody-visitation evaluation.  The party did no receive mental health services under the Act and the relationship was not therapeutic.  Here, the party also had no expectation of the confidentiality of the communications.

The case is Johnston v. Weil, No. 1-08-2861 (Ill. Ct. of App., Dec. 2, 2009) and the opinion can be read here.

MR     

January 13, 2010 in Custody (parenting plans) | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 12, 2010

Supreme Court Hears Oral Arguments on Civil Commitment of Sex Offenders Today

Today, the United States Supreme Court heard arguments in United States v. Comstock (08-1224), which deals with a federal law that indefinitely commits those who finished serving their sentences in North Carolina, typically for sexual offenses against minors.  During oral argument, General Kagan pointed that out of 103 people certified under these laws, 83 had committed sexual offenses.  She stated:

What is necessary [under this law] is two things: First, that the person in fact have engaged in sexually violent behavior or child molestation. So there is a factual predicate there. And -- and so far, the Bureau of Prisons has found that about 15,000 people whom it has reviewed meet that factual predicate. Of those, the Bureau of Prisons has certified only 105 of those, who were also found to have the kind of mental illness that made it reasonably likely that -- that they would continue to commit this -- these kinds of offenses. (Tr. 24-25).

The Supreme Court has previously upheld a similar Kansas law in Kansas v. Hendricks, 521 U.S. 346 (1997).

The Supreme Court oral argument transcript in United States v. Comstock (08-1224) is available here, and commentary on the law from a victim's perspective is here.

MR

 

January 12, 2010 in Child Abuse | Permalink | Comments (1) | TrackBack (0)