Family Law Prof Blog

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

Friday, April 30, 2010

Motro: "Preglimony"

Shari Motro (University of Richmond School of Law) has posted "Preglimony" on SSRN.  Here is the abstract:

Unmarried lovers who conceive are strangers in the eyes of the law. If the woman terminates the pregnancy, the man owes her nothing. If she takes the pregnancy to term, the man’s obligation to support her is limited. The law reflects this lovers-as-strangers presumption by making a man’s obligation towards a woman with whom he conceives derivative of his paternity-related obligations; his duty is towards his child, not towards the woman in her own right. Thus, a pregnant woman’s lost wages and other personal costs are her private problem, and if there is no child at the end of the pregnancy, there is no one - from a legal perspective - that the man must support.

The law also endorses this lovers-as-strangers default in the way in which it treats men who do support their pregnant lovers. It does this through the tax code. Current tax law regards payments between unmarried lovers as gifts or as child support. This characterization not only misses the mark descriptively, it also misses an opportunity to reward and encourage a behavior that is critically important in an age when sex and procreation outside of marriage are common.

This Article argues that the law should develop a new framework for addressing the unique relationship between unmarried lovers who conceive and that tax reform offers a practical and relatively modest first step for doing so. To this end, it proposes that Congress create a pregnancy support deduction. The deduction would benefit taxpayers who support pregnant women above a certain threshold by extending to them the same deduction we now give taxpayers who pay alimony.


April 30, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Recordings Evidence in IL Fitness Hearing

An Illinois appellate court recently reversed and remanded a case on the basis that the trial court erred in admitting recordings of vulgar telephone conversations between parents in a hearing determining a mother’s fitness.  The appellate court noted that the recording lacked proper foundation and were not authenticated.  The dissent, however, underscored that no objection as to foundation was made at the trial level.  The case is In  re C.H., L.H., and W.H., Minors, Nos. 3-08-0529, 3-08-0534 & 3-08-0535 (Ill.Ct. App. March 18, 2010).  Read the full opinion here.



April 30, 2010 in Termination of Parental Rights | Permalink | Comments (0) | TrackBack (0)

Thursday, April 29, 2010

"Win" the Lottery, Lose a Wife?

A British postal worker blames the end of his marriage on his error in throwing away a winning lottery ticket:

Cemal Celikkanat, 38, a driver for the Royal Mail, said he thought the dollar amounts on the scratch-off card he purchased at Charnock News and Booze in Sheffield had to be in a row to win, but the card pays out for any three-of-a-kind dollar amounts, the Sheffield Telegraph reported Friday.

"When I found out I felt dizzy and dropped to my knees -- it was like being hit over the head. I threw away 100,000 pounds ($153,000)," he said. "I feel so terrible, I think about it every day, it's had a massive impact on my life."

He said he tried to retrieve the ticket from the trash at the convenience store but was told it had already been sent to an incinerator.

"I have left my wife -- we were having financial difficulties and this was the final straw. My colleagues tease me saying I must be rich because I can afford to throw away a fortune," he said. "When I bought my first scratch card six years ago you had to have three in a row to win. I assumed that applied to all the games I've played since then -- I can't bear to think about how much money I've thrown away."

He also says he has become "a laughing stock at work."  Maybe some stupid things we do should be kept private!

Read more here.


April 29, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Hessick: “Disentangling Child Pornography from Child Sex Abuse”

Carissa Byrne Hessick (Arizona State, Sandra Day O’Connor College of Law) has posted Disentangling Child Pornography from Child Sex Abuse, 88 Washington University Law Review__ (2010), on SSRN.  Here is the abstract:

Recent years have seen a significant increase in the criminal penalties associated with possession of child pornography. The new severity appears to be premised on arguments that blur the distinction between those who possess images of child pornography and those who sexually abuse children. In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing child pornography increases the risk that an individual will sexually abuse a child, and arguments that those who possess child pornography are abusing children undetected. This Article identifies instances where possession of child pornography and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue, and that when law enforcement statistics aggregate possession and child sex abuse, then the public may be misled into believing that law enforcement is successfully battling child sex abuse, when that is not the case. The Article concludes that the modern trend of increasing sentences for possession of child pornography ought to be reviewed, and it suggests several possible areas of reform.


April 29, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 28, 2010

Supreme Court to Hear Argument on Privacy of Traditional Marriage Supporters

The United States Supreme Court will hear argument today in Doe #1 v. Reed, a case testing whether the Washington Secretary of State permissibly sought to release the names and addresses of individuals signing a referendum petition opposing same sex marriage.

Read more here.


April 28, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Balancing Parental Rights with Children’s Interests

An Illinois Appellate Court recently held that not requiring a 15-year-old child to testify at a best interest hearing, when against the best interests of the child, did not deprive the mother of her fundamental right to care, custody and control of her child.  The case is In re A.W., Jr. , Nos. 3-09-0788, 3-09-0789 (Ill. App.Ct. Jan. 13, 2010).  Read the opinion here.


April 28, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 27, 2010

Preventing Adoption Disasters

The New York Times blog recently featured a discussion on "How to Prevent Adoption Disasters."  Six experts in adoption law - professors, lawyers, and social workers - give their unique perspectives on what can go wrong after an international adoption and what we might do to reduce the risk of a failed adoption.

Read the series here.


April 27, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Collins, Leib, & Markel: “(When) Should Family Status Matter in the Criminal Justice System?”

Jennifer M. Collins (Wake Forest University-School of Law), Ethan J. Leib (University of California-Hastings College of the Law), & Dan Markel (Florida State University College of Law) have posted (When) Should Family Status Matter in the Criminal Justice System?, 13 New Criminal Law Review 151-175 (2010) on SSRN.  Here is the abstract:

Last year, we published a book entitled Privilege or Punish: Criminal Justice and the Challenge of Family Ties (Oxford 2009). Recently, the New Criminal Law Review published a series of provocative and challenging reviews of this book by Professors Doug Berman, Naomi Cahn, and Jack Chin. Needless to say, we appreciate their very kind words about our project and its contributions.

In this Essay, however, our focus will be on responding to the interesting criticisms lodged against our book; we hope to do so in a way that is helpful in advancing the conversation about the intersection between criminal justice and family status beyond these pages.

P.S. The full symposium can be downloaded at this link on ssrn:


April 27, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Monday, April 26, 2010

UK Apologizes to Pope Over Gay Marriage Memo

The British government has issued a formal apology to the Pope for an internal memo suggesting that the Pope should bless gay marriage or "open an abortion ward" on an upcoming visit to England:

The highly sarcastic document was written by a junior official at the Foreign Office -- the U.K.'s equivalent of the State Department -- during a brainstorming session to develop an itinerary for Pope Benedict XVI's September trip, the first by a pontiff to Britain since 1982. The memo was sent to the prime minister's office and three other government departments, and came with a warning that its contents "should not be shared externally" as they included "even the most far-fetched of ideas."

Those unholy proposals, published by the Sunday Telegraph included suggestions that the pontiff use the trip to launch a range of "Benedict" condoms, "announce sacking of dodgy bishops," and take part in a public gymnastics display where he could "do forward rolls with children to promote healthy living." It also noted the pope could apologize for the Spanish Armada of 1588 or sing a charity song with Queen Elizabeth II.

After the Telegraph went public with the revelations, the Foreign Office issued a speedy apology, saying, "This is clearly a foolish document. Many of the ideas in the document are clearly ill-judged, naive and disrespectful."  Steven Mulvain, the 23-year-old Oxford graduate who penned the document -- and who once declared in a podcast that his hobbies included "drinking a lot" -- went unpunished. However, a more senior official who allowed the document to be sent out uncensored has since been "transferred to other duties," the government said.

Several religious leaders issued strong condemnations of the document, saying it revealed the government's anti-Christian bias.

Read the full story here.


April 26, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sexting Bill in IL

From the Chicago Tribune:

Students under 18 who use computers or cell phones to share nude photos of their peers would earn little more than a scolding under a measure the Illinois Senate approved . . . to address the "sexting" phenomenon.

Offenders would not face criminal charges, but would get juvenile court supervision that could result in counseling or community service. The bill doesn't address youths who send or receive racy photos if they don't distribute them.

"We're not trying to prosecute them if they keep it between themselves," said Rep. Darlene Senger, R-Naperville, who got a similar bill through the Illinois House last week. "It's when the third party is involved. That's when you get the situations where so-and-so committed suicide because the picture got up everywhere."

Read the rest here.


April 26, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, April 25, 2010

Egging a Judge...Don’t Try it at Home

From the Chicago Sun-Times:

He could have been charged with egg-ravated battery.

Instead, a Naperville man was jailed Wednesday for criminal contempt for throwing a raw egg at a DuPage County judge who had previously jailed him for failing to make child-support payments.

He missed Judge Timothy McJoynt. But the egg splattered on an American flag behind the bench.

Agim Demiri was subdued by a deputy, then ordered by the judge to serve seven days in jail.

McJoynt was presiding over a child-support hearing involving Demiri and his two children. In January, the judge had ordered him to spend several days in jail for nonpayment. Demiri has fallen behind in his child support by as much as $17,510, records show.

Read the article here.


April 25, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Saturday, April 24, 2010

Wax: "Diverging Family Structure and 'Rational' Behavior: The Decline in Marriage as a Disorder of Choice"

Amy L. Wax (University of Pennsylvania Law School) has posted "Diverging Family Structure and 'Rational' Behavior: The Decline in Marriage as a Disorder of Choice" on SSRN.  Here is the abstract:

The past fifty years have witnessed a growing divergence in family structure by social class, income, education, and race. The goal is to explain why significant segments of the population are moving away from the traditional patterns of family and reproduction. Most demographers acknowledge that external and material constraints fail to account for most of the present dispersion by class and race in marriage, divorce, and patterns of childbearing. Nor do these factors explain the widening of disparities over time. In attempting to improve on prior theories, this paper proposes a different explanation for these developments. It argues that demographic trends can best be explained as the product of growing differences in styles of thinking about partner choice and reproductive behavior. Drawing on the work of psychologists Richard Herrnstein and Gene Heyman, the paper presents a model that contrasts two distinct types of “rational” choice: “global” and “local.” It then demonstrates that average disparities by race and class in the adoption of local or global decisionmaking methods can account for the significant demographic variations now observed in rates of marriage, divorce, and out of wedlock childbearing. The paper then suggests that this diversity emerged in the wake of the normative deregulation of the sexual revolution. The demise of strong heuristic mores and institutional constraints, and the rise of individualism, facilitated the development of contrasting decisionmaking styles in intimate relations.


April 24, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Friday, April 23, 2010

Embryo Adoption Dispute Between Two Married Couples

Two Missouri couples are battling over the fate of unimplanted embryos transferred by contract in 2009:

Edward and Kerry Lambert of Pleasanton filed suit this week in Alameda County Superior Court seeking to regain power over two frozen embryos they donated - or, as both religious families put it, gave up for adoption - to Patrick and Jennifer McLaughlin.

Jennifer McLaughlin also filed suit in Missouri to maintain legal custody of the embryos.

Kerry Lambert and Jennifer McLaughlin met in January 2009 via a Web site designed to facilitate embryo donation. The Lamberts had four embryos left over from an in-vitro fertilization procedure that had successfully given them a son in 2007.

All of their embryos were created in 2006 using the sperm of Edward Lambert, now 53, and the egg of an anonymous donor. The Lamberts considered their family complete, but didn't want to destroy the extra embryos or donate them to science.

Jennifer and Patrick McLaughlin, a 42-year-old attorney, had tried getting pregnant without success. They had already adopted five children, now ages 4 to 11, but wanted to expand their family.

Both families signed a contract in February 2009 granting custody of the embryos to the McLaughlins. The contract was a pro forma one previously drafted to satisfy the Catholic church's doctrine regarding the sanctity of life, according to Al Watkins, the attorney for Jennifer McLaughlin.

The contract is unusual in that it states that if the McLaughlins didn't implant the embryos within a year, the Lamberts could revoke the agreement. Watkins called the clause "a safety valve" so that if the embryos aren't used, the donors can find another solution.

The four embryos have always been stored at a fertility clinic in San Ramon, and McLaughlin flew to the Bay Area, where two of them were implanted on May 21, 2009. She gave birth to brown-haired, blue-eyed twin girls - Sarah Estelle and Anna Isabelle - on Jan. 8.

She said she delayed making a final decision about what would happen to the two remaining embryos.

The former first-grade teacher said she knew raising seven children would be incredibly demanding and wanted to see how she and her family coped before deciding whether to add two more to their brood. She has now decided she wants to try to give birth to the remaining embryos.

"I've always wanted to have a big family," she said. "Siblings should be kept together."

But she said she got e-mails from Kerry Lambert starting in December, saying she'd found another family to take the remaining embryos.

Last week, Jennifer McLaughlin received a phone call from the San Ramon fertility clinic saying the Lamberts intended to reclaim the embryos, prompting the filing of the lawsuits.

The Lamberts have refused to provide more details about why they want the embryos back. Jennifer McLaughlin, on the other hand, has hired a publicist and appeared on national television to discuss the case.

The San Ramon clinic has agreed to keep the embryos until the case is resolved in court. A hearing date in the Missouri case is set for Wednesday.

Read more here.


April 23, 2010 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

U.S. Supreme Court Case Impacting Domestic Violence


Advocates for domestic violence victims are sounding the warning about a little-noticed U.S. Supreme Court case that they say could make it much harder for battered women and men to enforce restraining orders against their abusers.

 The case Robertson v. U.S. ex rel. Watson . . . challenges the way restraining orders are enforced in the District of Columbia. D.C. law allows victims themselves to bring criminal contempt charges when abusers infringe on a court order. At least 14 states have similar setups, according to an amicus brief filed by George Washington University Law School's Domestic Violence Legal Empowerment and Appeals Project.

Read more about this pending Supreme Court case here.


April 23, 2010 in Domestic Violence | Permalink | Comments (2) | TrackBack (0)

Thursday, April 22, 2010

Argument Heard in Texas Same-Sex Divorce Case

The Dallas Court of Appeals heard argument yesterday in a case in which two men married in Massachusetts sought a divorce from a Texas court.  The trial court granted a judgment of a divorce, and the Texas Attorney General has appealed.

The Dallas men, who declined to be interviewed for this story and are known only as J.B. and H.B. in court filings, had an amicable separation, with no disputes on separation of property and no children involved, said attorney Peter Schulte, who represents J.B. The couple, who married in 2006 in Massachusetts and separated two years later, simply want an official divorce, Schulte said.

Gay and lesbian couples who turn to the courts when they break up are getting mixed results across the nation. A Pennsylvania judge last month refused to divorce two women who married in Massachusetts, while New York grants such divorces even though the state doesn't allow same-sex marriage.

"The bottom line is that same-sex couples have families and their families have the same needs and problems, but often don't have the same rights," said Jennifer Pizer, a lawyer for Lambda Legal, a national legal organization that promotes equal rights for gay, lesbian, bisexual and transgender people.

"It really is an unenviable position that the courts have put these couples in," said Karen Loewy, an attorney at the Gay and Lesbian Advocates and Defenders.

Abbott, a Republican seeking re-election, declined to be interviewed for this story. He has argued in court filings that because the state doesn't recognize gay marriage there can be no divorce, but a gay or lesbian Texas couple may have a marriage voided. Attorneys representing such couples argue that voiding a marriage here could leave it intact in other states, creating problems for property divisions and other issues.

Dallas divorce attorney Tom Greenwald said he's advising gay couples to wait and see how things play out in the courts.

"Getting the court of appeals to even accept the issue is a step in the right direction in getting some clarity on this," he said. "We just don't know how to treat it."

Read more here.


April 22, 2010 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Easteal: “Marriage-Like Relationships: Can Battered Woman Syndrome or Reality Be Pleaded in Social Security Law?”

Patricia L. Easteal (University of Canberra) has posted Marriage-Like Relationships: Can Battered Woman Syndrome or Reality Be Pleaded in Social Security Law?, 34 Alternative Law Journal 174 (2009).  Here is the abstract:

The effects of living in domestic violence upon its victims’ ability to make choices have been documented in various legal areas. For instance ‘learned helplessness’ and the other disempowering effects of domestic violence are now well recognized in the criminal law relating to murder and provocation. Evidence showing how victims’ choice-making may become constrained thus affecting their capacity to leave the violent relationship has been deemed as relevant in a number of cases. But battered woman’s syndrome, or what is perhaps better described as ‘battered woman’s reality,’ has had only patchy acceptance in case law outside of homicide. A recent Administrative Appeals Tribunal decision suggests though that it may now be achieving acceptance in social security law.


April 22, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 21, 2010

Willis: "Property Transfers Incident to Divorce: the End of a Nightmare, the Opening of Two Loopholes"

Steven J. Willis (University of Florida College of Law) has posted "Property Transfers Incident to Divorce: the End of a Nightmare, the Opening of Two Loopholes" on SSRN.  Here is the abstract:

From 1987 until 2002, the assignment of income doctrine applied to property transfers incident to divorce. Since Revenue Ruling 2002-22 was issued, the doctrine has not applied. This article argues that the revenue ruling is poor public policy and it should be revoked. It effectively results in the deductibility of child support and alimony without restriction. As a result, the ruling effectively repeals two important statutory constraints.
For practitioners, however, this can be very beneficial, as it gives substantial tax benefits to some divorcing couples.


April 21, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Grief over a Parent’s Death

A recent CNN story confirms the obvious strength of the parent-child bond:

In fact, 73 percent of adults believe that their lives would have been "much better" had their loved ones not died when they were young, according to a survey released Monday by Comfort Zone Camp, a nonprofit provider of childhood bereavement camps, and Matthew Greenwald and Associates Inc.

 Read more here.


April 21, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 20, 2010

Minnesota "Couples on the Brink" Bill

Proponents of a pending bill in the Minnesota legislature argue it provides "an off ramp on the superhighway to divorce":

Minnesota courts are working to process divorces more quickly. Research shows the longer divorce cases drag on in the courts, the more animosity builds up, particularly if couples have children.

But some wonder if speedy divorces are too quickly rushing people to end marriages -- even couples who might have some hope of reconciling. To address such concerns, the Legislature is considering a bill that family advocates say would provide an "off ramp" on the superhighway to divorce.

"We have data on 2,500 divorcing people in Hennepin County. [They are] parents who are a lot more ambivalent and reluctant about getting a divorce than anybody realized," said Bill Doherty, a marriage expert at the University of Minnesota.

Doherty and his research team, which included a family court judge, surveyed 2,484 divorcing parents in 2008 and 2009, and found that 70 percent of couples agreed divorce was the best course of action. But in about one-third of the cases, at least one spouse wasn't sure.

Some were wavering. Others said they'd stay if their spouse significantly addressed problems such as alcoholism or infidelity, and others said they'd do anything to save their marriage.

The most likely person to be interested in saving a marriage was the person left behind. Since two-thirds of divorces are brought by wives, husbands are more often what Doherty calls "the hopeful spouse."

But the courts aren't designed for such uncertainty, said Doherty, a licensed psychologist and director of the university's Marriage and Family Therapy program.

"The way the courts view it is you have a legal right to a divorce," he said. "And just like when you show up to get your driver's license, nobody says, 'Are you sure you want to drive?'"

The Couples on the Brink bill that Doherty is championing would use an additional $5 tax on marriage licenses to develop a way to identify couples who might want to reconcile -- and improve the quality of marriage counseling they'd receive.

"They go to clergy who often don't know what to do with them," Doherty said. "They go to counselors who are sometimes not well trained in marriage counseling. And even if they do some marriage counseling, these are difficult situations."

Doherty likens it to practicing medicine in an emergency room. He said that with better training for counselors and clergy, 10 percent of couples headed for divorce might be able to restore their marriages.

Couples with a history of domestic violence would not qualify.

Divorce lawyers say there are better uses for this public money. The Minnesota State Bar Association family lawyers narrowly voted against supporting Couples on the Brink, said Pamela Waggoner, chairwoman of the bar's family law section.

"We have other programs that are wanting -- domestic violence prevention programs and programs that assist parents in successfully parenting their children as a separated couple," she said.

Read more news coverage here or the bill here.


April 20, 2010 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

Feinberg: "The Plus One Policy: An Autonomous Model of Family Reunification"

 Jessica Feinberg (DePaul University College of Law) has recently posted The Plus One Policy: An Autonomous Model of Family Reunification, Nevada Law Review (forthcoming), on SSRN.  Here is the abstract:

Citizens who share close, important relationships with non-citizens often face significant obstacles if they wish to continue these relationships on a permanent basis within the United States. In order to lawfully immigrate to the United States, non-citizen loved ones must fit within one of the narrowly defined admission categories established by the Immigration and Nationality Act. The majority of individuals able to immigrate can do so because they share relationships with United States citizens that render them eligible under the “family reunification” admission category. Unfortunately, immigration law’s definition of family includes only relationships that could fit within the “traditional family unit.” Thus, many citizens find themselves unable to reunite with the people they value most. This Article proposes adding a new category to immigration law’s current family reunification scheme. The “Plus One Policy” would allow an adult United States citizen to sponsor one important individual in her life who does not fit within any of the pre-existing family reunification provisions. The Plus One Policy seeks to supplement the current purely “bounded model” of family reunification, in which the government categorically decides which relationships are most valuable to its citizens, with an “autonomous model,” whereby citizens decide for themselves which relationships they value most. Not only would such a model demonstrate that the United States recognizes and respects the wide variety of domestic and global conceptions of family, it would also further the humane and practical goals of family reunification law.


April 20, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)