Family Law Prof Blog

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

Friday, December 31, 2010

Family Law Symposium: "Belonging, The Family, and Family Law"

The Marriage and Family Law Research Project is pleased to invite all interested scholars to attend a Symposium on Belonging, the Family, and Family Law that will convene in room 472 of the J. Reuben Clark Law School at Brigham Young University on Friday, January 28, 2011. The Marriage and Family Law Research Project at the BYU Law School will be hosting this event. The purpose of this symposium is to provide an opportunity for respected experts and scholars of family law, particularly those whose work has focused on constitutional family law, upon the significance of family as a legal entity, and upon the concept of belonging as it relates to family and family law present papers addressing one or more of those topics. With numerous public policy issues being debated today concerning the definition, structure, regulation, protection and reconstitution of families in society and in the law, and with the methods, tools and processes for creating and enforcing such legal regulations, these three dimensions of family law are particularly relevant today.  Confirmed presenters include Professor Helen Alvare (George Mason), Professor Robert Burt (Yale Law School), Professor Linda Elrod (Washburn), Ann Laquer Estin (Iowa), Professor Scott FitzGibbon (Boston College),  Professor Akira Morita (Toyo, Japan), Laurence Nolan (Howard), Ya'ir Ronen (Negev, Israel), Robin F. Wilson (Washington & Lee) & Lynn Wardle (BYU), who will explore these topics from a variety of perspectives. Scholars interested in attending should RSVP to Lorelie Sander at ; no registration fee will be charged for academics (except a nominal charge for those seeking CLE) but RSVP is needed.   Further information about the symposium is available at .


December 31, 2010 | Permalink | Comments (0) | TrackBack (0)

A New Year's Eve Tradition

Feeling the pessure yet?!

From The Washington Post:

Whom you kiss [tonight] can set the course for a good year. Really. It's not magic - it's chemistry and neuroscience. And no matter how painstakingly you set the scene, in the end chemistry trumps mood music. From a scientific perspective, a kiss is a natural litmus test to help us identify a good partner. Start the first moments of 2011 with the right one, and you're beginning the year on a natural high.

If you can handle the pressure, read more here.


December 31, 2010 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Thursday, December 30, 2010

The Global Baby

From the Wall Street Journal on international baby creation markets:

In a hospital room on the Greek island of Crete with views of a sapphire sea lapping at ancient fortress walls, a Bulgarian woman plans to deliver a baby whose biological mother is an anonymous European egg donor, whose father is Italian, and whose birth is being orchestrated from Los Angeles.

She won't be keeping the child. The parents-to-be—an infertile Italian woman and her husband (who provided the sperm)—will take custody of the baby this summer, on the day of birth.

The birth mother is Katia Antonova, a surrogate. She emigrated to Greece from Bulgaria and is a waitress with a husband and three children of her own. She will use the money from her surrogacy to send at least one of her own children to university.

The man bringing together this disparate group is Rudy Rupak, chief executive of LLC, a California company that searches the globe to find the components for its business line. The business, in this case, is creating babies.

Mr. Rupak is a pioneer in a controversial field at the crossroads of reproductive technology and international adoption. Prospective parents put off by the rigor of traditional adoptions are bypassing that system by producing babies of their own—often using an egg donor from one country, a sperm donor from another, and a surrogate who will deliver in a third country to make what some industry participants call "a world baby."

They turn to PlanetHospital and a handful of other companies. "We take care of all aspects of the process, like a concierge service," says Mr. Rupak, a 41-year-old Canadian.

For years couples have turned to sperm donors, egg donors or surrogate mothers to help them become parents. Now the process is being taken to a level that is stretching legal and ethical boundaries. WSJ's Linda Blake reports from India.

Clients tend to be people who want children but can't do it themselves: families suffering from infertility; gay male couples. They may also have trouble adopting because of age or other obstacles.

And they're price sensitive. PlanetHospital's services run from $32,000 to around $68,000, versus up to $200,000 for a U.S. surrogate.

Overseas surrogacy has other advantages. Surrogates in some poorer countries have little or no legal right to the baby. In Greece, a surrogate can be prosecuted for trying to keep a child. By contrast, some U.S. surrogates have tried to legally claim the children they've carried.

The process can bring profound dilemmas. In some cases, clinics end up creating more fetuses than a couple needs, forcing a decision over whether to abort one or more pregnancies. Babies carried to term occasionally find themselves temporarily unable to get a passport.

Mr. Rupak is learning to navigate the uncharted nature of his field—the stateless babies, the ethical complexities. His expansion to Greece, a European Union member nation, is specifically intended to lessen the likelihood of the passport problem for European parents-to-be.

Some of his own clients have faced the abortion decision, Mr. Rupak says. "Sometimes they find the money" to pay for more children than they expected, he says. After all, they went to such lengths. And if they decide otherwise, Mr. Rupak says, "We don't judge."

Critics say the business is strewn with pitfalls. "The potential for abuse on many levels is big," says Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania in Philadelphia, discussing the industry in general terms. "You're straddling all these [international] boundaries to buy the ingredients and the equipment." Mr. Caplan calls it the "wild, wild west of medicine."

Laws are vague and can conflict from country to country. In 2008, baby Manji was born to an Indian surrogate just weeks after the divorce of her Japanese parents-to-be. (The family wasn't a PlanetHospital client.) According to a Duke University case study in legal ethics, it led to a tangle of Indian and Japanese law that first prevented the little girl from being issued a birth certificate, and later made it difficult for her father bring her home to Japan. Months went by. To fix the problem, Japan issued a special humanitarian visa.

"This area of law is very unsettled," says Evgenia Terehova, PlanetHospital's lawyer. "There can be all sorts of unforeseen circumstances."

Read the full article here.


December 30, 2010 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

The Marriage Gap

A new CNN article by Leah Ward Sears considers the "marriage gap":

Wilcox's study finds that over the last 30 years, among what the report calls "Middle Americans" (the 58% of moderately educated Americans who have a high school degree), the proportion of children born outside of marriage skyrocketed from 13% to 44% while the portion of adults in an intact first marriage dropped from 73% to 45%.

Meanwhile, among financially well-off Americans (the 30% who have a college degree or higher), the proportion of children born outside of marriage climbed only slightly from 2% to 6%, the divorce rate dropped from 15% to 11%, and intact first marriages dropped from 73% to 56%.

In sum, the relationships of Middle Americans increasingly resemble those of the poor, while marriages among upscale Americans are getting better in many respects.

Read more, including an analysis of this gap, here.


December 30, 2010 in Divorce (grounds) | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 29, 2010

King & Batagol: "Enforcer, Manager or Leader? The Judicial Role in Family Violence Courts"

Michael King and Becky Batagol (Monash University Faculty of Law) have posted "Enforcer, Manager or Leader? The Judicial Role in Family Violence Courts" (33 Int'l J. Law & Psychiatry 406) on SSRN.  Here is the abstract:

Judicial supervision of offenders is an important component of many family violence courts. Skepticism concerning the ability of offenders to reform and a desire to protect victims has led to some judges to use supervision as a form of deterrence. Supervision is also used to hold offenders accountable for following court orders. Some family violence courts apply processes used in drug courts, such as rewards and sanctions, to promote offender rehabilitation. This article suggests that while protection and support of victims should be the prime concern of family violence courts, a form of judging that engages offenders in the development and implementation of solutions for their problems and supports their implementation is more likely to promote their positive behavioral change than other approaches to judicial supervision. The approach to judging proposed in this article draws from therapeutic jurisprudence, feminist theory, transformational leadership and solution-focused brief therapy principles.


December 29, 2010 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 28, 2010

Triger: "Fear of the Wandering Gay: Some Reflections on Citizenship, Nationalism, and Recognition in Same-Sex Relationships"

Zvi Triger (The College of Management Academic Studies School of Law) has posted "Fear of the Wandering Gay: Some Reflections on Citizenship, Nationalism, and Recognition in Same-Sex Relationships" (forthcoming International Journal of Law in Context) on SSRN.  Here is the abstract:

This is an article about the fear of the Wandering Gay, about ways in which this fear has influenced domestic and international law regarding recognition in same-sex relationships, and about the ways this fear can be overcome. The article proceeds as follows: In part II I introduce the Wandering Gay as a hidden driving cultural concept behind a state’s reluctance (and in some places, outright objection) to fully recognize same-sex relationships. In part III I compare American and Israeli immigration policies concerning immigrants’ sexuality, and discuss the different foci of each system: While American policy (prior to its reform) was mainly concerned with sexual “deviancy,” Israeli policy has been concerned with otherness, particularly non-Jewishness, in general. However, as I argue, homosexuality is one way in which individuals are ‘othered’ by Israeli immigration policy, since they cannot acquire legal status based on their marital status.

Finally, in part IV I argue that marriage is being used as a weapon against LGBT individuals, and that this is done from within a discourse that elevates marriage to a right that only heterosexual citizens are entitled to. I argue that marriage is used as a means of discrimination against minorities and I question whether the proper solution to this violation of human rights is indeed to add more and more minorities to the privileged class of those who can get married, thus equipping them with the weapon of marriage to use against others.


December 28, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Harding: "The Harmonisation of Private International Law in Europe: Taking the Character Out of Family Law?"

Maebh Harding (University of Portsmouth School of Law) has posted "The Harmonisation of Private International Law in Europe: Taking the Character Out of Family Law?" on SSRN.  Here is the abstract:

EU regulations are now in place providing for the enforcement and recognition of judgments made concerning maintenance and marital status. A draft regulation for the standardisation of the applicable law governing divorce has received a lukewarm response while a regulation for the harmonisation of applicable law to matrimonial property dispute is currently being drafted.
These various regulations have divided a typical divorce into three main issues – the legal declaration of end of marriage, maintenance issues and property concerns. However, this simply is not the case in common law countries where a ‘package solution’ is common and the issues of maintenance, matrimonial property and status of the marriage are often intertwined. These proposals fail to take into account that it is not only the substantive law of these three issues that is a matter of national identity but also how the three issues relate to each other and are balanced by the courts.


December 28, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Levit: "Reshaping the Narrative Debate"

Nancy Levit (University of Missouri at Kansas City - School of Law) posted Reshaping the Narrative Debate, 34 Seattle University Law Review (forthcoming 2011).  Here is the abstract:

In Reshaping the Work-Family Debate: Why Men and Class Matter, Joan Williams sets out to alter the terms of the public discussion about working, caregiving, and work-family conflicts. In doing so, Williams also reframes part of the conversation about the use of narratives in legal analysis and policy-making.

This essay describes the debate about narrative or storytelling in the legal academy. Two decades ago, a pitched jurisprudential battle surfaced in the pages of law reviews about the value of storytelling as legal scholarship. Since that time, narrative has sifted into academic texts: people are telling stories all over the place. Research is also emerging in cognitive neuroscience about the value of stories to human comprehension. And law schools are beginning to consciously recognize that part of what they do is to train storytellers. Another narrative phenomenon has also become more pronounced during this same time frame. The overwhelming majority of the information people acquire comes from press accounts rather than reading original materials. The media have a singular ability to prioritize public issues and mold perceptions. Thus, press-constructed stories have become an increasingly powerful tool impelling or obstructing policy change.

Part I of this essay describes the history of the debate about the value of narrative as legal scholarship. Part II examines the explosion of stories and attention to storytelling both inside and outside the legal academy. It also reviews emerging evidence from cognitive neuroscience about the importance of stories to the ways humans understand the world. In Part III, the essay centers on media-created narratives and focuses on Joan Williams’ instructive methodology for interrogating press-constructed myths. Moving from dismantling to reconstruction, Part IV circles back to the importance of stories—and the ways academics can develop counter narratives that can help reshape public understandings about work, families and fairness.


December 28, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Monday, December 27, 2010

New Privacy in MT Family Law Cases?

From The Washington Post:

HELENA, Mont. -- The Montana Supreme Court is considering restrictions to public access of certain information now available throughout the court system, including a proposal to seal all documents filed in family law cases except for final orders.

Freedom of information advocates say the proposals are unnecessary and would run counter to the right-to-know provisions in the state constitution.

The Supreme Court put the recommendations out for public comment on Dec. 7. The comment period will last for 90 days.

State Law Librarian Judith Meadows, one of the authors of the proposals, said a change is needed because the court system's existing privacy rules aren't being applied evenly and people not represented by lawyers don't understand them.

That means sensitive information about children involved a custody dispute, divorce or another court proceeding could find its way to the Internet, where it could be gathered by child predators or be used to bully a child, Meadows said.

Read more here.


December 27, 2010 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Saturday, December 25, 2010

Happy Holidays!!!


December 25, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, December 24, 2010

Family is the Reason for the Season...

...for most people.  A new survey shows that almost half of Americans view Christmas as primarily a time for family, not religion.  Read more here.


December 24, 2010 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Thursday, December 23, 2010

Call for Papers: Midwest Family Law Consortium




THURSDAY, JUNE 16, 2011 - FRIDAY, JUNE 17, 2011



            The first decade of the 21st century has been an exciting time for family law scholars, teachers and practitioners.  Family law is more dynamic than ever, with changing social definitions of family and greater use of science and technology to create families.  Themes that have emerged in the first decade of the century will likely inform family law reforms in the coming decades.   The Midwest Family Law Consortium seeks papers that explore these issues and other hot topics for the 4th annual conference, June 16-17, 2011, at Michigan State University College of Law.

            While papers that address cutting edge themes in family law are encouraged, all paper and panel proposals are welcomed.  In addition, professors who wish to discuss techniques and insights concerning family law education are welcome to submit proposals for a teaching panel or panels.

            Interested persons should submit a one-page proposal with the name, title, and institutional affiliation of the presenter(s) and a brief summary of the proposed presentation to Cynthia Lee Starnes, Professor of Law, MSU College of Law at .  Proposals submitted before January 31, 2011 will be given priority consideration.

            The conference will begin Thursday, June 16, 2011, with an opening reception and dinner. Conference sessions will be held on Friday, June 17th and conclude by 5:00 p.m.

            The Midwest Family Law Consortium is an organization of law schools whose members collaborate to advance family law scholarship and teaching. Founded by the family law faculty of the University of Missouri Kansas City, William Mitchell College of Law and Indiana University Indianapolis, with additional sponsoring members Michigan State and Washburn law schools, the consortium is open to any law school, but serves primarily the Midwest region.

For further information contact:


            Melanie B. Jacobs                                                       Cynthia Lee Starnes

            Associate Professor of Law                                        Professor of Law

            MSU College of Law                                                 MSU College of Law

            441 Law College Building                                          411 Law College Building

            East Lansing, MI 48824                                             East Lansing, MI 48824        

            (517)432-6944                                                                        (517)432-6899                                     


December 23, 2010 in Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)

300+ Haitian Children Headed to New French Homes

From The Washington Post:

PARIS -- More than 300 Haitian children are preparing to fly to Paris with their new French adoptive families, just in time for the holidays.

French Foreign Minister Michele Alliot-Marie said Saturday that 318 children had been cleared for adoption and were being allowed to leave the Caribbean country, which is still reeling from a January earthquake and now experiencing a deadly cholera epidemic.

Authorities chartered two airplanes so French families can pick up the children. The flights will leave Paris on Tuesday and Thursday, Alliot-Marie said in a statement.

Read more here.


December 23, 2010 in Adoption | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 22, 2010

Second Parent Adoption Struck Down by North Carolina Supreme Court

The North Carolina Supreme Court issued a ruling yesterday striking down the second parent adoption of a same sex couple.  From The Charlotte Observer:

North Carolina's highest court on Monday voided a state senator's adoption of her former domestic partner's biological son, a move that appears to close a method for same-sex couples to adopt unless the Legislature steps in.

The state Supreme Court ruled 5-2 that the adoption of Melissa Jarrell's son by state Sen. Julia Boseman was invalid because a Durham County District Court judge waived a requirement five years ago that Jarrell had to give up her parental rights in the process.

Under the adoption plan approved by the lower court, Boseman became an adoptive parent while Jarrell retained full parental rights as well.

However, Associate Justice Paul Newby wrote for the majority that the adoption never occurred in the eyes of the law because lawmakers have made clear the biological parent must terminate a legal relationship with the child. That part of the ruling favored Jarrell, who had sued to negate the adoption after the couple separated.

She and Boseman, North Carolina's first openly gay member of the General Assembly, had been living together when Jarrell gave birth to Jacob in 2002.

The majority of justices let stand another lower court ruling allowing the two to have joint custody of the child, saying it would be in Jacob's best interest for the women, who have been sharing parental responsibilities, to rear him.

Still, the ruling eliminates a method for same-sex couples to adopt and could raise legal questions about so-called "second parent" adoptions like this one. They have been granted in Durham and Orange counties in recent years, according to testimony and court documents.

Those issues are best addressed at the General Assembly, Newby wrote. At least 27 states permit second-parent adoptions through state law or based on evidence in local courts, according to the Human Rights Campaign, a national group that works for lesbian, gay, bisexual and transgender equality.

"The avenue is going to have to be changing the statute," Connell said in an interview. Otherwise, she said, this ruling closes down the method completely. Republicans taking charge of the Legislature next month are considering whether to vote on a constitutional amendment that would prohibit gay marriage.

Read the full article here.


December 22, 2010 in Adoption | Permalink | Comments (1) | TrackBack (0)

New EU Divorce Rules

From AFP:

BRUSSELS — Take a German and a Frenchwoman who marry in Italy, move to Portugal and then split up: under new EU rules on cross-border marriage adopted Monday the couple will be able to choose where to divorce.

The rules, to be applied by 14 of the European Union's 27 member states in mid-2012, will enable an Austrian-Bulgarian couple living in Slovenia, for example, or a Hungarian couple resident in Brussels to choose which country's rules apply in case of separation.

Of the more than one million divorces in the European Union in 2007, around 140,000, or 13 percent, concerned couples of different nationalities, the European Commission said.

The new legislation will enable couples with different nationalities, those living apart in different countries, or those living together in a nation other than their home country, to decide which country's laws apply to their divorce.

Read more here.



December 22, 2010 in Divorce (grounds) | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 21, 2010

Capers: "Home Is Where the Crime Is"

I. Bennett Capers (Hofstra Univ. School of Law) has posted "Home is Where the Crime Is" (forthcoming Michigan Law Review) on SSRN.  Here is the abstract:

There is a new vision of home that is beginning to gain ascendance, at least from the point of view of legal actors and doctrine in the criminal justice system. Under this vision, home is not always, or even usually, “sweet.” Under this new vision, the home is not a safe haven, inviolate and inviolable except for, perhaps, a burglar. Under this new vision, the home is a place of violence. And not violence perpetrated by intruders, but by co-habitants. The home, notionally a site of security, a place “safe” from outside intervention, now functions as a place that enables abuse, assault, and rape. It is the exemplary place of coercion. The home, in this re-vision, has metastasized into the scene of the crime. In short, home has become “where the crime is.”

What are we to make of this shift in how the law perceives the home, and how we perceive the home? What are the collateral consequences of this shift? These are the questions Jeannie Suk takes up in her provocative At Home in the Law. This Review assesses Suk’s claims critically, turns to some of the collateral effects of this shift that Suk elides, and switches lens to reveal a larger, more troubling picture.


December 21, 2010 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

A Father, but Not the Father

The New York Times recently ran a piece on the potential devastation caused when DNA testing proves a father is not the father.  Read it here.


Hat Tip: ER

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

Monday, December 20, 2010

Fletcher & Sindelar: "The Effects of Family Stressors on Substance Abuse Initiation in Adolescence"

Jason Fletcher (Yale Univ. School of Public Health) & Jody Sindelar (Yale University School of Public Health; NBER) have posted "The Effects of Family Stressors on Substance Use Initiation in Adolescence" on SSRN.  Here is the abstract:

Smoking and drinking are critical problems in adolescence that have long-term adverse impacts on health and socio-economic factors. We examine the extent to which family stresses influence the timing of initiation of smoking and drinking. Using national panel data from the National Educational Longitudinal Study (NELS) we capitalize on the survey design and use school-level fixed effects that control for the local environments, including prices of cigarettes and alcohol. In addition, we narrow our control group to classmates who will experience a similar stressor in the future. We find that a composite measure of family stressors when young increases the likelihood of initiating tobacco and alcohol use, with much of the impact attributable to parental divorce. In our baseline estimates, the composite stress measure is associated with a 30% increase in the likelihood of smoking and a 20% increase in drinking. When we control for multiple sources of confounding, the impact shrinks and remains significant for smoking but not for drinking. We conclude that studies which do not control for confounding are likely to significantly overestimate the impact of family stress on substance use. Our approach helps to move the literature forward by separating causal results from spurious associations.


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

Godsoe: "All in the Family: Towards a New Representational Model for Parents and Children"

Cynthia Godsoe (Brooklyn Law School) has recently posted All in the Family: Towards a New Representational Model for Parents and Children, Georgetown Journal of Legal Ethics (forthcoming) on SSRN.  Here is the abstract:

The presumption that parents act in their children’s interests governs both daily life and legal doctrine. This Article demonstrates that this presumption, while usually correct, is problematic when unquestioned because it masks any conflict between parents and children, and is at odds with the individualistic framework of the ethical rules governing attorneys. This harms families and puts attorneys at risk. This Article explores this representation problem in the previously largely ignored context of special education for children with disabilities. The Supreme Court, in Winkelman v. Parma City School District, recently established that parents and children each have substantive yet “intertwined” rights to a child’s appropriate education. Nonetheless, courts and attorneys continue to assume that parents speak for children, even in cases with a high risk of conflict. 

To best serve families and protect attorneys, this Article proposes a novel reconception of representation in education cases. Family representation posits the family as the client, with the attorney owing duties to each member individually and as part of the group. A family representation framework brings four real-world benefits: (1) it recognizes the interconnected nature of the relationships and rights of parents and children; (2) it engages both parties in the process, particularly important for children who have previously been overlooked; (3) it is economical, increasing the number of represented parties but not the number of attorneys; and (4) it brings attorney practice into accord with ethical standards. This model has ramifications beyond the educational sphere as it could also be fruitfully applied in torts and benefits actions by a parent and child against the state or other third party. Ultimately, reconceiving the attorney’s role as representing the family while respecting the voices of each member harmonizes the competing principles of individual autonomy and family unity to the benefit of parents, children and attorneys.



December 20, 2010 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Sunday, December 19, 2010

Rosenblum, et. al: "Pregnant Man?: A Conversation"

Darren Rosenblum (Pace Law School), et. al have posted "Pregnant Man?: A Conversation" (22 Yale Journal of Law & Feminism 207) on SSRN.  Here is the abstract:

This Essay includes a first-person narrative of having a child through surrogacy, responses to that narrative by other law professors and the surrogate, and a concluding response and epilogue by the Author.


December 19, 2010 in Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)