Family Law Prof Blog

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

Saturday, March 31, 2012

English Court's Ruling in Child Custody Case

From the Guardian:

The gay father of a two-year-old boy living with his lesbian mother and her partner has won the right to be involved in his life in a landmark ruling that could have significant implications for "alternative families".

Judges at the court of appeal ruled that the couple's desire to set up "a two-parent lesbian nuclear family" might be "essentially selfish and may later insufficiently weigh the welfare and developing rights of the child".

The decision to have a child can never be a matter of "dry legal contract" and the father's right to play a role in his son's life must be recognised, ruled the judges.

Observing that "human emotions are powerful and inconstant", Lord Justice Thorpe said the father was "seeking to offer a relationship of considerable value" to his son.

Read more here.


March 31, 2012 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Friday, March 30, 2012

Revisiting Divorce Settlements

From the Financial Times:

Estranged wives are having to adjust their expectations about their divorce settlements as a result of the trend for investment banks to reward their bankers with bonuses in deferred shares, rather than cash.

James Pirrie at Family Law in Partnership says many divorce settlements agreed at the height of the banking boom in 2006 may have to be revisited. Court orders that were fixed then assumed that cash bonuses would continue to be paid, but such arrangements became unworkable when cash was replaced by deferred shares.

Read more here.


March 30, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, March 29, 2012

Abduction for Adoption?

From Yahoo! News:

Last month, a Dan Rather Reports producer and crew were in Canberra, Australia as Parliament released the findings of an 18-month-long investigation revealing illegal and unethical tactics used to convince young, unmarried mothers to surrender their babies to adoptive homes from the late 1940s to the 1980s. And we interviewed some of the victims -- adoptees and mothers separated at birth.

Read more, and see a related video, here.


HT: Elizabeth MacDowell

March 29, 2012 in Adoption | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 28, 2012

New Privacy Tort in Ontario Case

From Law Times:

On Jan. 18, the Court of Appeal for Ontario released its reasons in Jones v. Tsige confirming that there does in fact exist a tort of invasion of privacy based on intrusion upon seclusion.

While this decision doesn’t actually relate to a family law issue, it has substantial implications in the family law context that lawyers and parties must now consider.

Family law, more so than any other area of practice, is one where parties often go through each other’s e-mails, banking records, and employment and medical documentation without the other person’s knowledge.

Read more here.


March 28, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, March 26, 2012

Premarital Agreements for Same-Sex Couples

From the New York Times:

WHEN Ellen DeGeneres married Portia de Rossi in 2008, people wanted to know two things: What did they wear? And was there a prenup?

Regarding the first question, the couple wore Zac Posen.

The second question — Ms. DeGeneres’s representatives did not respond when asked if she had a prenup or not — has become important for many other same-sex couples, who have discovered that all the new opportunities to marry are accompanied by a gloomy companion that hangs silently over every prospective newlywed: the possibility of divorce.

Read more here.


March 26, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Online Dating

From the WSJ:

And yet, a recent analysis led by the social psychologist Eli Finkel of Northwestern University shows there is little reason to believe that these websites are improving dating outcomes. In fact, they might be making things worse.

The problem is that the typical dating site is founded on two false premises. The first is that successful pairing is merely a matter of matching personalities, finding people with compatible temperaments and attitudes., for instance, promises to match people based on their neurochemical profiles, while attempts to measure applicants on 29 dimensions of personality.

In a 2010 study of 23,000 married couples, however, similarity of personality accounted for just 0.5% of spousal satisfaction. In other words, 99.5% of their success together was explained by factors typically excluded from online dating questionnaires. This finding suggests that most of the vaunted algorithms are no more effective than a chance meeting at a bar.

And this leads to the second false premise of Internet dating: that choosing a mate should be a rational choice, in which people carefully comparison-shop for partners. That's the advantage, after all, of having millions of profiles to choose from. Rather than being misled by our instincts on a first date, we can calmly sort through the alternatives and find the best possible spouse, the would-be soul mate who will maximize our romantic utility.

Read more here.


March 26, 2012 in Current Affairs | Permalink | Comments (9) | TrackBack (0)

Sunday, March 25, 2012

Christopher & Christopher: "The Paradox of Statutory Rape"

Russel Christopher (Tulsa) and Kathryn Christopher have posted "The Paradox of Statutory Rape" on SSRN. Here is the abstract:

What once protected only virginal girls under the age of ten now also protects sexually aggressive males under the age of eighteen. While thirteenth-century statutory rape law had little reason to address the unthinkable possibility of chaste nine-year-old girls raping adult men, twenty-first-century statutory rape law has failed to address the modern reality of distinctly unchaste seventeen-year-old males raping adult women. Despite dramatically expanding statutory rape's protected class, the minimalist thirteenth-century conception of the offense remains largely unchanged -- intercourse with a juvenile. Overlooked is the new effect of this centuries-old offense -- a sexually aggressive seventeen-year-old raping an adult now exposes the adult rape victim to statutory rape liability. By being raped, the adult rape victim satisfies the minimal elements of the offense, lacks any defenses, and thereby commits statutory rape of her juvenile rapist. Therefore, the offense of statutory rape criminalizes being raped; that is, it criminalizes being the victim of rape. Paradoxically, while the offense of rape prohibits committing rape, the offense of statutory rape prohibits being raped. What the law of rape seeks to protect us from -- being raped -- the law of statutory rape punishes us for.


March 25, 2012 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Saturday, March 24, 2012

Morocco's Penal Code

From the Huffington Post:

RABAT, March 15 (Reuters) - Morocco on Thursday said it would amend a law allowing rapists to marry their underage female victims after the suicide of a teenage girl raised doubts about the effectiveness of reforms to women's rights in the country.

Sixteen-year-old Amina El-Filali killed herself last week near the northern city of Larache by swallowing rat poison after a six-month forced marriage to the man who raped her.

Local human rights activists say the law violates women's rights and was created to avoid damage to the reputation of the victim's family.

Read more here.


March 24, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, March 23, 2012

West: "A Marriage is a Marriage is a Marriage: The Limits of Perry v. Brown"

Robin West (Georgetown Univ. Law Center) has posted "A Marriage is a Marriage is a Marriage: The Limits of Perry v. Brown" (forthcoming Harvard L. Rev. Forum) on SSRN. Here is the abstract:

The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples — the right to the appellation of one’s partnership as a “marriage” — for no rational reason. The people of California’s categorization and differential treatment of same-sex couples as compared with opposite-sex couples, the court held, failed the test of minimal rationality required for upholding state action. The two types of couples were simply too indistinguishable to carry the weight of the difference between them that the people of California had tried to codify. Thus, the court struck down the state constitutional amendment.

The court did so, however, by relying heavily on facts peculiar to California’s political history, thereby limiting the case’s disruption of democratic processes in both California and elsewhere, and, not incidentally, minimizing the size of the target the case presents should the presumptively hostile Supreme Court review the decision. First, Proposition 8 removed an entitlement that had been granted by the California Supreme Court just a few years earlier. The case thus arose in a posture not shared by other cases involving same-sex marriage: what was at stake was the constitutionality of a referendum that took away — rather than failed to grant — same-sex marriage. Second, California, by statute, guarantees to same-sex couples a “domestic partnership” which statutorily grants all of the legal incidents of marriage, including rights of parentage and adoption. Because of the first fact — that what the Court was faced with was the withdrawal of a preexisting right — the Court did not have to reach the question of whether same-sex couples possess a “right to marry” where it has never before been recognized. Because of the second fact — that all that was at stake in California was the appellation “marriage” since the domestic partnership laws guaranteed to same-sex couples all other incidents of marital status — there was no need for the Court to decide whether there would be a “rational basis” for a state to refuse to grant the right to marry to same-sex couples on the basis of the purported superiority of child-raising in families headed by opposite-sex partners: the case simply does not raise these questions, since California’s statutory scheme grants equal family status to both sorts of couples, and Proposition 8 did not upset that. The court did not, therefore, have to decide that there exists a “fundamental right to marry,” or that any restriction on the rights of gay people to marry would violate fundamental constitutional values. Rather, it narrowly held that Proposition 8, which stripped gay citizens only of the appellation “married” and left all other incidents of marriage intact, worked a dignitary and psychic harm on gay and lesbian partners, and did so for no defensible reason. This decision is thus of no relevance to cases challenging a state’s refusal to extend marriage to include gays and lesbians, and it is of no relevance to cases challenging a state’s withdrawal of such a right if that right is also accompanied by a denial of concrete benefits and accompanied by some explanation — such as the superiority of hetero-sexual parenting — for the decision to do so. Perry v. Brown is nothing more than a sui generis decision for a unique set of facts. Thus, creative minimalism.


March 23, 2012 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Jail for Facebook Rant on Divorce


Photographer Mark Byron was so bothered by his pending divorce and child visitation issues that he blasted his soon-to-be ex-wife on his personal Facebook page.

That touched off a battle that resulted in a Hamilton County judge ordering Byron jailed for his Facebook rant – and to post on his page an apology to his wife and all of his Facebook friends or go to jail, something free speech experts found troubling.

Read more here.


March 23, 2012 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Thursday, March 22, 2012

Happy Newlyweds Ultimately Unhappy Divorcees

From the Huffington Post:

In recent years, there have been several studies that suggest that some happy and satisfied newlyweds were still getting divorced. Paul Amato and Bryndl Hohmann-Marriott's 2007 research is one such example; they found that there was a surprising number low-distress couples that were splitting up.

Read more here.


March 22, 2012 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 21, 2012

NYT Book Review: "The Story of Lawrence v. Texas"

The New York Times recently ran a very interesting book review of "The Story of Lawrence v. Texas" by Dale Carpenter.  Read it here.


March 21, 2012 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 20, 2012

Astrue v. Capato (11-159): meaning of "child" in trusts/wills law

From CNN:

Shocking as it may sound, the seemingly endless federal bureaucracy can get confusing, especially when interpreting statutory procedure. When that happens, federal courts -- including the Supreme Court -- by precedent normally give the government the benefit of the doubt, what is called "administrative deference."

That ambiguity was on display Monday in an unusual legal dilemma: Can a child conceived after the death of the biological father be eligible for survivor benefits under Social Security?

The Obama administration thinks not, and a majority of justices -- almost by default -- appeared to agree during a spirited morning of oral arguments.

"You lose if the statute is ambiguous," said Chief Justice John Roberts to the lawyer for the surviving parent. "Is there any reason we shouldn't conclude based on the last hour that it's at least ambiguous?"

Added Justice Elena Kagan: "It's a mess."

At issue is how the court should interpret the word "child" and whether state laws over wills and trusts are adequate to deal with evolving technology for in vitro fertilization.

Read more here.


March 20, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Religious Divorce

From the NYT:

CHICAGO — Before a packed house of 350 men and women at a Jewish educational center, Beverly Siegel suggested three questions that religious Jewish women should ask before divorcing: “Do I get a get? Do I not get a get? Hmm, what kind of get should I get?”

Ms. Siegel, a Chicago filmmaker, was screening her 2011 documentary, “Women Unchained,” about Jewish women whose husbands refuse to give a religious divorce known as a get. Less religious Jews divorce with no thought to the get. But in traditional Judaism, the husband may withhold the divorce. The women are considered agunot, or “chained wives.” A recent survey found that between 2005 and 2010, there were 462 cases of agunot in North America.

Even if she has obtained a civil divorce, a chained wife, or agunah, cannot remarry within the faith. If she does, children from her new marriage carry a stigma forever. In exchange for a get, husbands often demand reduced alimony, favorable child-custody arrangements, even cash payouts.

Read more here.


March 20, 2012 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

Monday, March 19, 2012

Facebook Friending Leads to Bigamy Charge

From Reuters:

Facebook's "People You May Know" feature can at times be obnoxious. But other than suggesting high school classmates you never want to see again, it remains pretty harmless, right?

Wrong. Alan O'Neill is probably wishing he never signed up for the social networking service. The Washington state corrections officer faces felony bigamy charges after Facebook suggested his first wife friend his second wife.

He apparently forgot to divorce the first one.

Read more here.


March 19, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Predicting Celebrity Divorce

From the NYT:

In 2006, Garth Sundem and I confronted one of the great unsolved mysteries in social science: Exactly how soon will a given celebrity marriage blow up?

Drawing on Garth’s statistical expertise and my extensive survey of the literature in supermarket checkout lines, we published an equation in The New York Times predicting the probability that a celebrity marriage would endure. The equation’s variables included the relative fame of the husband and wife, their ages, the length of their courtship, their marital history, and the sex-symbol factor (determined by looking at the woman’s first five Google hits and counting how many show her in skimpy attire, or no attire).

Now, with more five years of follow-up data, we can report firm empirical support for the Sundem/Tierney Unified Celebrity Theory.

Read more here.


March 19, 2012 | Permalink | Comments (0) | TrackBack (0)

Saturday, March 17, 2012

Happy St. Patrick's Day



March 17, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, March 16, 2012

IN Guidelines for Parenting Arrangements


EVANSVILLE — Indiana is revising its guidelines for determining parenting arrangements in divorce and paternity cases to include new concepts in handling situations in which parents can't agree.

The guidelines were first put into use in Indiana about 10 years ago and were based on a child-centered model used in Lake County, said Jeffrey Bercovitz, juvenile and family law director a the Indiana Judicial Center. There the term "parenting time" is used instead of "visitation" to emphasize the importance of both parents' roles in their children's lives.

"The ultimate goal is to try and keep conflict to a minimum," said Vanderburgh Superior Court Judge Mary Margaret Lloyd.

Read more here.


March 16, 2012 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Thursday, March 15, 2012

Work Stress on Marriage

From the Telegraph:

A study conducted by the Florida State University College of Business, examines the role of support in households where daily stress is common to both spouses.

Lead author Dr Wayne Hochwarter studied 400 working couples, asking about their relationship and stress levels.

He said: "Given that a lack of support from one's spouse represents a major cause of both divorce and career derailment, this research is needed to address issues that affect both home and work."

Couples with the highest levels of support at home were more satisfied with their marriage, were more likely to say that had a good relationship with their colleagues and concentrated better at work, it was suggested.

They were also less likely to say they were tired after work, be guilty about neglecting their family and were less critical of their spouse and children.

Read more here.


March 15, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 14, 2012

Cahn: "The New Kinship"

Naomi Cahn (George Washington Univ. School of Law) has posted "The New Kinship" (Georgetown L. J. (forthcoming 2012) on SSRN.  Here is the abstract:

Over the past century, the Supreme Court has articulated numerous doctrines that protect family privacy. These doctrines are not, however, well-suited to the brave new world of families formed through donor eggs, sperm, and embryos. As the number of donor-conceived children born to same-sex and heterosexual couples and to single parents increases, and as these families develop connections to one another, the law has not yet adjusted. This Article provides an extensive mapping of these “donor-conceived family communities,” and it reaches two major conclusions that support the development of these new families. First, relational interests, the traditional focus infamily law, should govern the regulation of the donor world. Second, legal recognition should be given to the emotional and psychological ties between donor families in order to provide guidance to the development of donor-conceived family communities. These two principles point the way to integrating changing social realities into a new legal framework for donor families, allowing children from the same donor to connect to one another. While further regulation of relationships has its dangers, this paradigm shift in the donor world could prompt broader beneficial changes, creating options beyond framing all families within the dyadic nuclear-family model.


March 14, 2012 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)