Family Law Prof Blog

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

Thursday, August 30, 2012

Partain: "Comparative Family Law, Korean Family Law, and the Missing Definitions of Family"

Roy Andrew Partain (Soongsil College of Law) has posted Comparative Family Law, Korean Family Law, and the Missing Definitions of Family,13 HongIk University Journal of Law (June 2012) on SSRN.  Here is the abstract:

This article uses comparative law to analyze the concept of ‘family’. In particular, the research focuses on how family is defined when a family group assembles outside of a nuclear marital family. The article discovers that ‘family’ is rarely defined outside of the concept of marriage in modern legal codes. However, eight characteristics and identifying behaviors of families can be found in the analysis of family law. These eight concepts are used to rebuild a potential definition of family that does not require the act of marriage. 

This article proposes that family law should include a parallel definition for families that do not meet current marital definitions of family. This article does not advocate changing current marriage codes; it merely suggests adding room for non-nuclear families in family law. These other, non-nuclear families deserve legal support and recognition. It is time for family law to recognize that all families need legal protection and legal affirmation as families. 

The reason to focus on family outside of the concept of marriage is that many family-type groups today fulfill the role of family life without legal recognition. These families serve broader societal goals of raising children, of providing for the elderly, and of sharing the burdens and responsibilities of life in a small group setting. Family law should extend the legal notion of family to include a wider array of options for non-nuclear families.

These types of families are all ‘normal’ families in some sense of the idea of family, but they may simply lack two central ingredients: marriage and a nuclear spousal pair.  These types of families should have as much legal right to formally exist as families based in nuclear marriage and sexually-based procreation. Specifically, there should be a legal entity called a “family” that serves a small group of individuals living in some form of interdependency under a common roof. The basic argument is to provide a parallel option for these types of alternative families alongside the traditional marriage-based family option.


August 30, 2012 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 29, 2012

November Referendum on Gay Marriage in Maryland

From the New York Times:

WASHINGTON — When Marylanders go to the polls in November, the state could become the first to affirm same-sex marriage in a popular vote.

In March, lawmakers in Maryland approved a measure to allow such unions, but it came with a built-in escape hatch: it would not take effect until 2013.

The waiting period was intended as a compromise with opponents of the measure and as an insurance policy for supporters. Lawmakers feared validating marriages for a period, only to have them overturned by a popular vote later, as happened with Proposition 8 in California.

Opponents of same-sex marriage in Maryland seized the opportunity to contest the law and gathered more than 100,000 signatures to put a referendum on the November ballot, setting the stage for a renewed debate on the issue.

Read more here.


Hat Tip: Naomi Cahn


August 29, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sleeping Beauties

From Orange News:

An art installation in Kiev features five real-life sleeping beauties - who have to marry a man who kisses them if they open their eyes.

The women are to lie 'sleeping' for three days as part of artist Taras Polataiko's installation in the National Art Museum of Ukraine.

As they sleep, men survey and kiss the women, trying to wake them, reports the Daily Telegraph.

Read more here.


Hat Tip: FS

August 29, 2012 in Marriage (impediments) | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 28, 2012

French Bill Legalizes Gay Marriage

From the Wall Street Journal:

The French government will introduce legislation in October authorizing gay marriage, a move that would bring France in line with a host of European countries and fulfill an election promise of President François Hollande.

"In October, we will send a bill to the National Assembly and the Senate to allow same-sex couples to marry," French Prime Minister Jean-Marc Ayrault said Saturday in an address to Socialist Party members at their annual gathering in the Atlantic port town of La Rochelle. "It would also allow them to form families and adopt children," Mr. Ayrault added.

Mr. Hollande's Socialist Party controls both houses of Parliament, rendering the passage of a gay-marriage bill more likely.

Read more here.


Hat Tip: Naomi Cahn

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

Monday, August 27, 2012

Pearson: "Displaced Mothers, Absent and Unnatural Fathers: LGBT Transracial Adoption"

Kim H. Pearson (Gonzaga University - School of Law) has posted Displaced Mothers, Absent and Unnatural Fathers: LGBT Transracial Adoption, 19 Michigan Journal of Gender & Law 149 (2012).  Here is the abstract:

This paper interrogates race contestation and sexual orientation transmission fears, showing that race and sexual orientation appear to have developed in a parallel fashion in court decisions and advocacy rhetoric. At the point of intersection in LGBT transracial adoption, race and orientation appear to be in competition, as though Black and gay cannot co-exist. Historically, courts have devalued racial identity transmission from parents of color and expressed fear of LGBT child outcomes. Over time, courts have moved towards seemingly neutral standards; however, these standards cover homophobia and racism. 

Media and advocacy discourse pitting Black against gay has appeared in the context of Proposition 8 and Don’t Ask, Don’t Tell. LGBT transracial adoption appears to be another iteration of Black versus gay competition for the right to parent children of color. The staging of Black versus gay discourse in the context of transracial LGBT adoption reinforces stereotypes that gay fathers are male, white, and privileged, that Black fathers are absent, hyper-masculine and heterosexual, and that Black children are unwanted, damaged and dangerous. Reliance on these pernicious stereotypes creates structural costs such as obscuring the existence of LGBT families of color, concealing the history of lesbian mothering, displacing Black women as mothers, characterizing Black boys as damaged and dangerous, fixing gay men as parents of last resort, failing to acknowledge the social forces that remove Black men from the home, preventing coalition building between various groups with similar interests, and limiting the resources available to LGBT transracial families.

Read more here.



August 27, 2012 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Saturday, August 25, 2012

Child Support MA Case

From Bloomberg Family Law Reporter:

While it is within a trial court's discretion to order child support when parents share physical custody of their child, such an award may not be used to equalize their incomes, the Massachusetts Supreme Judicial Court ruled Aug. 15. Explaining that income equalization is inconsistent with principles underlying support orders, the court also noted that the trial judge below did not find that the subject child's reasonable needs were not being met in the absence of such an order, where both parents enjoyed comparable standards of living and had incomes exceeding the levels to which the support guidelines presumptively applied (M.C. v. T.K., Mass., No. 10910, 8/15/12).

Read more here.


Hat Tip: Naomi Cahn

August 25, 2012 in Child Support (establishing) | Permalink | Comments (2) | TrackBack (0)

Friday, August 24, 2012

Rapist Fathers' Rights to Child

From CNN:

It would not be long before I would learn firsthand that in the vast majority of states -- 31 -- men who father through rape are able to assert the same custody and visitation rights to their children that other fathers enjoy. When no law prohibits a rapist from exercising these rights, a woman may feel forced to bargain away her legal rights to a criminal trial in exchange for the rapist dropping the bid to have access to her child.

When faced with the choice between a lifetime tethered to her rapist or meaningful legal redress, the answer may be easy, but it is not painless. For the sake of her child, the woman will sacrifice her need to see her once immensely powerful perpetrator humbled by the court.

I know it because I lived it. I went to law school to learn how to stop it.

Read more here.


Hat Tip: SH

August 24, 2012 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Thursday, August 23, 2012

On Reproductive Technology

From the DC Bar:

Although the procedures can be expensive, an increasing number of couples and individuals are undergoing treatment for fertility assistance. ART includes fertility treatments in which both a woman’s egg and a man’s sperm are handled. More than 1 percent of all infants born in the United States each year are conceived using ART, according to the Centers for Disease Control and Prevention (CDC).

In vitro fertilization (IVF) is a process by which an egg is fertilized by sperm in a petri dish. Once an embryo has been created, it is then transferred—inserted inside a woman’s uterus—for possible implantation. IVF also can be used with an egg donation, where the woman providing the egg does not gestate the embryo. Sometimes potential parents, also known as intended parents, use surrogates to carry the embryos to term.

“The concept of parenthood is changing these days,” says Naomi Cahn, the John Theodore Fey Research Professor of Law at The George Washington University (GW) where she specializes in family law and reproductive technology. “One major problem is the concept of an embryo comes with political implications.”

Read more here.


August 23, 2012 in Alternative Reproduction, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 22, 2012

Grandparents & Visitation

From Reuters:

NEW YORK (Reuters) - Here's a sad scenario: Grandma and Grandpa pay for camp, shoes and college funds. But something goes awry; the kids' parents decide to split, and next thing you know it's Grandma and Grandpa who are out in the cold, writing checks but missing their grandchildren.

Think that couldn't happen? There are at least two trends that point to more of the above. Grandparents are helping their progeny more than ever; the AARP reported that a quarter spent more than a $1,000 a year on their grandkids, with 37 percent saying that they helped cover daily living costs.

At the same time, grandparents' rights to see and spend time with their grandchildren have become more difficult to litigate since a U.S. Supreme Court ruling in 2000, Troxel v. Granville, which struck down a Washington state law that allowed courts to order visitation rights for grandparents if they would be in the child's "best interest." Since then, many states have struck down their relevant laws and not rewritten them.

Read more here.


August 22, 2012 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 21, 2012

Foster Care in Jamaica

From Jamaica Observer:

A national campaign is soon to get underway to encourage more Jamaican families to foster some of the 6,000 children currently in State care.

This is according to Minister of Youth and Culture Lisa Hanna, who says the State doesn't have the space to adequately accommodate the number of children in its care.

Read more here.


August 21, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, August 20, 2012

Cohen & Chen: "Trading-Off Reproductive Technology and Adoption: A Response to Appleton and Pollak"

I. Glenn Cohen (Harvard Law) &  Daniel L. Chen (Duke Law) have recently posted their article "Trading-Off Reproductive Technology and Adoption: A Response to Appleton and Pollak," Minnesota Law Review on SSRN.  Here is the abstract:

As part of the Minnesota Law Review's Headnote online forum, we respond in this paper to Profs Susan Frelich Appleton & Robert A. Pollak, Exploring the Connections Between Adoption and IVF: Twibling Analyses, 95 MINN. L. REV. HEADNOTES 60, 66–69 (2011), which is itself a response to our article, Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should It Matter?, 95 MINN. L. REV. 485 (2010), 

We view Professors Appleton and Professor Pollak’s response to our article as both complimentary and complementary. First, they are extremely generous with their praise for our project, which is particularly gratifying given how important their own work has been in the field. Second, and perhaps more importantly, they suggest a number of new tangents and ideas prompted by our project. We first summarize those contributions and how we think they fit with our article. We then very briefly discuss a few instances where we might characterize what we have said differently than they do.


August 20, 2012 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Saturday, August 18, 2012

Vera Wang Black Wedding Gowns...


August 18, 2012 in Current Affairs | Permalink | Comments (7) | TrackBack (0)

Friday, August 17, 2012

Second Chances

From the Wall Street Journal:

They got hitched while still in their teens, divorced 20 years and four children later, and are getting remarried after nearly a half-century apart.

For Lena Henderson and Roland Davis, both 85 years old, the second time around is finally here. The couple plans to get married again on Saturday, with four generations on hand to see it happen.

Read more here.


August 17, 2012 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Thursday, August 16, 2012

Scottish Cohabitation Case

From Family Law Week:

In Gow v Grant [2012] UKSC 29, a Scottish cohabitation case, heard in the Supreme Court, Barnoness Hale has said that lessons can be learned in England and Wales from the practicability and fairness provided by Scottish legislation.

The appeal was concerned with the meaning and effect of section 28 of the Family Law (Scotland) Act 2006 which, for the first time, enables a cohabitant to apply to the court for financial provision where the cohabitation ends otherwise than by the death of one of the parties. The court may make an order for payment by the other cohabitant of a capital sum, having regard to whether that party ("the defender") has derived economic advantage from contributions made by the applicant and whether the applicant has suffered economic disadvantage in the interests of the defender or any child. The court must then have regard to the extent to which any economic advantage derived by one party is offset by economic disadvantage suffered by that party, or economic disadvantage suffered by one party is offset by economic advantage derived by that party.

Read more here.


August 16, 2012 in Cohabitation (live-ins) | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 15, 2012

Basic Divorce Overview

From the State Bar of Wisconisn:

July 5, 2012 – Although Wisconsin has consistently stayed below the national divorce rate, 16,635 couples were divorced last year. One in every 1.8 marriages ends in divorce.

So it was not surprising that a healthy number of young lawyers turned out for a recent CLE seminar, “Handling a Basic Divorce,” which revealed that divorces aren’t so basic.

However, several seasoned family law practitioners presented a wealth of information that lawyers can use to start or build a divorce law practice, including practical advice. This article highlights some of the major issues, including practical tips, to handle a basic divorce.

Read more here.


August 15, 2012 in Divorce (grounds) | Permalink | Comments (2) | TrackBack (0)

Tuesday, August 14, 2012

KY Case on Grandparents' Rights


Twenty years after a ruling that gave grandparents the right to visit their grandchildren over the parents’ objection, the Kentucky Supreme Court is preparing to give the controversial issue another look.

In 1992, the court upheld a state law that allows grandparent visitation if it is in the child’s best interests, ruling that if “a grandparent is physically, mentally and morally fit, then a grandchild will ordinarily benefit from contact with the grandparent.”

But in a case from Louisville that will be argued Friday, the court will revisit the issue for the first time since the U.S. Supreme Court ruled in 2000 that the wishes of objecting parents must be given “special weight” and that fit parents must be “presumed to be acting in their child’s best interests.”

Read more here, and see the appellate opinion here.


Hat Tip: Jamie R. Abrams

August 14, 2012 in Current Affairs | Permalink | Comments (3) | TrackBack (0)

Monday, August 13, 2012


From the New York Times:

While three (or more) is still a crowd for most newly married couples, more of them are choosing to take their loved ones with them on what has come to be called a buddymoon, according to Brandon Warner, the founder of Traveler's Joy, an online registry that helps couples plan their honeymoons.

The Sunday Telegraph in Australia reported something of a tren in 2010: “Couples are bending the wedding rules by taking the honey out of the honeymoon.” In the United States, the rap performers Alicia Keys and Swizz Beatz and the country music singers Blake Shelton and Miranda Lambert helped popularize the honeymoon-with-friends idea with lavish buddymoons.

While relatives and loved ones have occasionally tagged along since the days when wedding trips were made by horse and buggy, Mr. Warner said that difficult economic times are responsible for the number of noncelebrity couples who are now choosing this arrangement. Fewer people are taking vacations, he said, so “when a rare and special family event arises, like a wedding, it creates an opportunity for friends and families to come together to celebrate and take a vacation.” (The buddies usually pay their own way.)

W. Bradford Wilcox, a sociologist and the director of the National Marriage Project at the University of Virginia, said that he was not aware of any statistics on buddymoons, but that the idea made sense in light of changes in sexual mores.

“Today, when about 65 percent of couples cohabitate prior to marriage, the honeymoon is less likely to be a major turning point in their relationship,” said Professor Wilcox, who had not heard the term buddymoon. “For them, I think having friends come along is less of a big deal, and in some ways makes it more of a special and exceptional occasion.”

Read more here.


August 13, 2012 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Saturday, August 11, 2012

On Parenting

From the New York Times:

In a typical experiment, Dr. Dweck takes young children into a room and asks them to solve a simple puzzle. Most do so with little difficulty. But then Dr. Dweck tells some, but not all, of the kids how very bright and capable they are. As it turns out, the children who are not told they’re smart are more motivated to tackle increasingly difficult puzzles. They also exhibit higher levels of confidence and show greater overall progress in puzzle-solving.

This may seem counterintuitive, but praising children’s talents and abilities seems to rattle their confidence. Tackling more difficult puzzles carries the risk of losing one’s status as “smart” and deprives kids of the thrill of choosing to work simply for its own sake, regardless of outcomes. Dr. Dweck’s work aligns nicely with that of Dr. Baumrind, who also found that reasonably supporting a child’s autonomy and limiting interference results in better academic and emotional outcomes.


Parents also have to make sure their own lives are fulfilling. There is no parent more vulnerable to the excesses of overparenting than an unhappy parent. One of the most important things we do for our children is to present them with a version of adult life that is appealing and worth striving for.

Read more here.


August 11, 2012 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Friday, August 10, 2012

Divorce Performance Art

From the Washington Post:

At 10 a.m. on Aug. 11, Kathryn Cornelius will wear a white gown and walk toward her betrothed to exchange vows before a crowd of assembled guests. An ordained minister will officiate, then the pair will drink champagne, cut the cake and gaze into each other’s eyes as they dance their first dance. And then they will divorce.

At 11 a.m. she’ll do it all over again with someone new. And at noon, 1 p.m., 2 p.m., 3 p.m. and every hour on the hour until she has wed and divorced seven people.

When it’s over, she’ll go home, take off the gown, let the spray tan fade. She will hope that those in attendance might think differently, now, about weddings, marriage, divorce, and the jangled mess of love and loathing in modern America. That they will be jarred into thinking about how easy it is for people to get married and divorced and married again — assuming the government has granted them that right.

Her performance art piece is called “Save the Date.” It will take place at the Corcoran Gallery of Art as part of the museum’s "Take It to the Bridge" series, co-sponsored by the Washington Project for the Arts. “The Bridge” is a 7-foot-by-7-foot plexiglass cube that was recently installed above the Corcoran’s entryway. Artists in the series will use the Bridge as both the space and inspiration for their installations or live performances.

Read more here.   In the comments section of the story, one person notes that this is not new, and that Alix Lambert did the same in 1993 with both men and a woman over the course of a few months.


August 10, 2012 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Thursday, August 9, 2012

Punished for Child's Chalk Sidewalk Drawing


A Virginia mom has been ordered by a judge to perform community service after allowing her daughter to do chalk drawings in a public park.

Last Tuesday, Susan Mortensen appeared in a Richmond, Va. court and agreed to serve 50 hours of community service by January 3, or return to court for sentencing and possibly a $2500 fine. Some parents have responded with outrage that a treasured childhood pastime could result in legal action.

Read more here.


August 9, 2012 in Custody (parenting plans) | Permalink | Comments (1) | TrackBack (0)