Family Law Prof Blog

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

Friday, October 31, 2014

Happy Halloween!

October 31, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 30, 2014

Gupta-Kagan: "Non-Exclusive Adoption and Child Welfare"

Josh Gupta-Kagan has posted Non-Exclusive Adoption and Child Welfare,  Alabama Law Review (forthcoming) on SSRN.  Here is the abstract:

This Article proposes that child welfare law permit the non-exclusive adoption of foster children who cannot reunify with their parents — that is, adoption by foster parents without severing children’s legal relationships with their biological parents. Present law imposes a choice: extended family members or other foster parents may adopt foster children exclusively — and terminate the legal relationship between the child and biological parents — or they may become guardians — which preserves parent-child relationships but denies foster parents the legal title of “parent,” even when they are long-term primary caretakers.

Non-exclusive adoption would respect the lived reality of many foster children by legally recognizing all parents in their lives. Biological parents, even those who cannot reunify with their children, retain an important role for many foster children. Foster parents serve as functional parents and often see themselves, and are seen by children, as parents. Moreover, creating an additional legal path for foster children to leave foster care to new permanent families may help many children and families find legal options that minimize unnecessary litigation.

Some courts and legislators have recognized multiple parenthood, especially for children conceived through assisted reproductive technology (ART) and raised by same-sex partners. Yet multiple parenthood faces a core challenge — multiplying the number of legally recognized parents can multiply legal conflicts over children. Non-exclusive adoption in child welfare has a compelling answer. Child welfare law’s experience with guardianship demonstrates that the law can effectively allocate parental authority to avoid such conflicts by granting the adoptive parent legal and primary physical custody. This experience also shows one field where multiple parenthood is less radical than it appears at first. While this result raises equality concerns in ART cases, it is appropriate in child welfare cases which, by definition, involve biological parents who have been found unfit and unable to reunify with their children.

MR

October 30, 2014 | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 29, 2014

Seymore: "Openness in International Adoption, Columbia Human Rights Law Review"

Malinda L. Seymore has posted Openness in International Adoption,  Columbia Human Rights Law Review (forthcoming), on SSRN.  Here is the abstract:

The growth in international adoption has been spurred, at least in part, by the desire of adoptive parents to return to closed, confidential adoption where the identity of the birth mother is secret and there is no ongoing contact with her. After a long history of secrecy in domestic adoption in the United States, there is a robust trend toward openness. That is not the case with international adoption, which are typically closed transactions. There is, however, a growing interest in increased openness in international adoption. International adoptive families who were once happy to avoid birth parent involvement are now seeking them out, because of health concerns or because their child is interested in learning about their birth parents. Some adoptive families are concerned about issues of corruption, coercion, and trafficking in the birth country and want contact with birth parents to assuage those concerns. International adoptive families are learning about positive outcomes of domestic open adoptions, and hope to replicate those results in the international context. International adoptees are reaching adulthood and are increasingly interested in searching for birth families, despite the many practical difficulties in doing so. International human rights, and in particular the U.N. Convention on the Rights of the Child and the Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption, guarantee rights of identity and information that requires increased openness in international adoption. In addition, best interests of the child standards in international law points to a need for the same kinds of open adoption arrangements that have been studied in the West and have been determined to benefit children. Further, openness in international adoption is a practical solution to fraud, corruption and trafficking in international adoption by using the “sunlight as disinfectant” method. Countries involved in international adoption need to do more to take adoptees’ identity rights seriously.

Read more here.

MR

October 29, 2014 | Permalink | Comments (1) | TrackBack (0)

Social Neuroscience

From cafe. com:

In Part 1 of this interview, married neuroscientists John and Stephanie Cacioppo discussed her research on love. Here, John explains his research and some paradoxical behaviors of the lonely.

MG: You are one of the founders of social neuroscience. Can you explain what that is?

JC:  The premise of social neuroscience is complementary to cognitive neuroscience – but distinct. In cognitive neuroscience you look at the brain as if it were a computer. The metaphor stimulates a number of questions. For instance, language is viewed as a way of representing information in the brain. So you ask: What is that representational system? Where is the encoding and decoding? What types of storage and memory systems exist? In social neuroscience, the appropriate metaphor is the cell phone. Brains are viewed as mobile, broadband-connected computing devices. This metaphor raises different questions, such as: Where’s the wifi card? What’s the communication protocol? Language is seen as one of the ways these devices are linked, rather than a way to represent information within the device. Neither cognitive nor social neuroscience is "correct." They are distinct and complementary perspectives on the human brain. 

Read more here.

MR

October 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 28, 2014

Gupta-Kagan: "The New Permanency"

Josh Gupta-Kagan has posted The New Permanency, U.C. Davis J. of Juv. L. & Pol'y (2015 Forthcoming) on SSRN.  Here is the abstract:

Permanency is a pillar of child welfare law; children generally do better with legally permanent caretakers than in temporary foster care. Historically, when foster children cannot reunify with their parents, states have sought to terminate parental rights and find adoptive families. But recent legal reforms have created a continuum of permanency options, many of which permit ongoing legal relationships with biological parents and do not require termination of biological parents’ rights. Research has demonstrated that such options are as lasting as adoption, and can help more children leave foster care to legally permanent caretakers. This continuum promises to empower families — especially children and their new permanent caregivers — to determine the best legal status for their particular situation. It also challenges a reliance on terminations of parental rights as the default tool to achieve permanency. This is the new permanency.

A milestone in the development of this new permanency was the 2008 Fostering Connections to Success and Increasing Adoptions Act (“Fostering Connections”), which provided federal funds for kinship guardianship subsidies. Yet six years after Fostering Connections, the number of guardianships nationally has not increased, just as many children grow up in foster care, and in many states families have no greater ability to choose the best option for them.

This Article is the first to explore the reasons for Fostering Connections’ failure to spark major changes. The fault lies in Fostering Connections’ failure to challenge the deep cultural and legal subordination of guardianship to adoption or the discretion child welfare agencies have to make core decisions in a case without significant court oversight. This Article also explores a jurisdiction in which the new permanency is close to reality. The District of Columbia has seen the number of guardianships surpass the number of adoptions, with more children reaching permanency, and fewer unnecessary terminations. The District thus represents an extreme version of what the new permanency could do nationally — although it also illustrates the problems with overly wide agency discretion regarding kinship placements.

This Article proposes a set of reforms that would help fully implement the new permanency nationwide. These reforms would rid the law of a hierarchy among permanency options, establish a stronger and more consistent preference for kinship placements, and empower families, not the state, to select the permanency option that best fits their situation, through more rigorous procedures and better provision of quality counsel than current law provides.

MR

October 28, 2014 | Permalink | Comments (0) | TrackBack (0)

Minimizing Chances of Divorce

From the Atlantic:

A diamond is forever, but an expensive engagement ring means the marriage might not last that long. According to a new study, spending between $2,000 and $4,000 on an engagement ring is significantly associated with an increase in the risk of divorce.

The data scientist Randal Olson recently visualized some of the findings from a paper by Andrew Francis and Hugo Mialon, two researchers at Emory University who studied 3,000 married couples in the U.S. to determine the factors that predicted divorce. They analyzed income, religious attendance, how important attractiveness was to each partner, wedding attendance, and other metrics to determine the aspects associated with eventual marital dissolution.

Their findings offer some take-aways for couples who want to minimize their chances of divorce: You should date for three years before popping the question. Be wealthy, but don't be a gold-digger. Have a huge wedding, but make sure it's cheap. And whatever you do, don't skip the honeymoon.

Here are the highlights, displayed with Olson's visualizations and used here with his permission:


Time Spent Dating Before Proposal

See more charts here.

MR

Hat Tip: Naomi Cahn

October 28, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, October 27, 2014

News from Texas

From the LA Times:

The daughter of Houston Mayor Annise Parker was briefly denied the chance to take a driving test this week because her birth certificate and other documentation indicated she has two mothers, the mayor said.

Parker, who married her longtime partner, Kathy Hubbard, in California this year and remains a rarity as an openly gay mayor of a major U.S. city, complained on her Twitter account on Friday.

"Daughter needs drivers test," the mayor wrote. "Has all docs, some in MomA name, some MomK, but w/ birth cert showing both. DPS says can only be from 1 mom!"

The Texas Department of Public Safety, which oversees the issuance of driver's licenses in the state, said the initial decision to reject Parker's daughter's application had nothing to do with her parents' marital status. 

Department spokesman Tom Vinger said Parker's daughter failed to prove she was a Texas resident, but that the issue was later resolved.

Read more here.

MR

Hat Tip: Naomi Cahn

October 27, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, October 24, 2014

Seymore: "Sixteen and Pregnant: Minors' Consent in Abortion and Adoption"

Malinda L. Seymore has posted Sixteen and Pregnant: Minors' Consent in Abortion and Adoption,  Yale Journal of Law & Feminism, Vol. 25, No. 1, 2013, on SSRN.  Here is the abstract:

A minor girl’s decision about how to handle an unplanned pregnancy is a highly contested issue. Especially contentious is the minor’s ability to consent to an abortion independently of an adult such as her parents or a judge. That issue has received substantial attention from policy makers, scholars, judges, and legislators. Almost no attention has been paid, however, to the decision of a pregnant minor to continue her pregnancy, relinquish her constitutionally protected parental rights, and place a child for adoption. In 37 states, a minor’s abortion decision is regulated differently than an adult’s, while in only 15 states is a minor’s decision to relinquish parental rights and consent to adoption treated any differently from an adult’s decision. New neuroscientific advances in the understanding of minors’ decisionmaking seem to justify protective regulation of the adoption placement decisions of minor mothers, as does the law’s traditional treatment of minors’ decisionmaking in areas other than abortion. The justifications often advanced for the need for parental involvement in a minor’s abortion decision — the physical/medical risks, the psychological/emotional effects, and the importance of the decision — apply with equal force to the decision about adoption placement. The decision about adoption placement also differs from the abortion decision in at least one crucial respect — the legal complexity of the adoption decision adds another layer to the medical and moral decisions present in abortion. All states should require that minor mothers have independent legal counsel when making the decision about relinquishment of parental rights and consent to adoption placement.

MR

October 24, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, October 20, 2014

Link Between $ Spent on Wedding and Divorce

From the Independent:

A new study in the US has found that the more people spend on their weddings and engagement rings, the more likely they are to divorce.

Economic professors at Emory University carried out a study on over 3,000 US men and women who had been married to a member of the opposite sex.

Professors Andrew M Francis and Hugo M Mialon found that men who spent between $2,000 and $4,000 (£1,244 and £2,488) on engagement rings were 1.3 times more likely to get divorced than men who spent between $500 (£311) and $2,000 on a ring.

Read more here, and read the underlying paper here.

MR

October 20, 2014 | Permalink | Comments (1) | TrackBack (0)

Saturday, October 18, 2014

Owning Up

From the Telegraph:

Wives who cheat on their husbands are more likely to own up to infidelity because they are more pragmatic – and less proud – than men, divorce lawyers say.

The steady rise in the numbers of women with full time jobs has led to speculation that secret workplace affairs are likely to be on the increase.

But an analysis of recent case files at one law firm has concluded that in one important respect the two sexes still behave very differently: women are more likely to own up afterwards.

Lawyers at JMW Solicitors, which handles about 300 separations a year, examined case files going back three years.

They concluded that the overwhelming pattern appeared to be that, despite a changing balance of power between the sexes, women are still more likely to take adultery accusations “on the chin”.

Read more here.

MR

October 18, 2014 | Permalink | Comments (2) | TrackBack (0)

Friday, October 17, 2014

Lack of Divorce in the Philippines

From CNN:

When Rowena Festin leaves her job as a congressional aide in Quezon City, Metro Manila each day, she returns home to three children and a husband. But her marriage, like many others in the Philippines, exists in name only.

"My husband wants another person," she says. "We are living in the same house but both decided to live our own life."

Although both have long wanted to legally end their marriage, the government will not allow them to do so. The Philippines is the only country in the world, aside from Vatican City, which lacks divorce laws.

But a bill recently filed in Congress provides hope for thousands of couples trapped in failed and often abusive marriages, by legalizing divorce. It comes at a time when Catholic Church leaders from across the world are holding an "Extraordinary Synod" in Rome at the request of Pope Francis to explore the Church's position on issues such as family, marriage and divorce.

Read more here.

MR

October 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 16, 2014

Single Moms

From Professors June Carbone and Naomi Cahn, writing for Politico Magazine:

Over the course of our years-long research about the work and family lives of women across the country, we have been surprised by a common pattern threading through popular blogs, religious radio talk shows, sociological studies and the accounts of our friends, neighbors and acquaintances. Compared to a decade ago, higher rates of American women are getting pregnant unintentionally; indeed, the United States has one of the highest unintended birth rates in the developed world. At the same time, more women today have the children, and they often justify the decision in terms of their Christian faith and opposition to abortion. The surprise? Neither these women nor their families see much point in marrying a man merely because they are pregnant.

Read more here.

MR

October 16, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Grey Divorces

From Time:

For several years now, sociologists have noticed that education is a great protector against divorce. College-educated couples are about half as likely to divorce as high-school-educated couples. In fact, the rate of divorce among the college-educated is lower than it was 30 years ago. All except in one case: people older than 50.

...

Brown doesn’t think there’s a direct link between no-fault divorce and the uptick in elderly divorces, but rather that they are both part of the same reshaping of marriage that has been under way for several decades. “Marriage is now more individualized,” she says. “For couples who aren’t happy, divorce is an acceptable solution. Neither partner has to be ‘at fault’ — instead, the couple could have simply grown apart.”

Read more here.

MR

October 15, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Marriage for Money

From the Washington Post:

A few years ago, Oregon’s first lady, Cylvia Hayes, shared her rags-to-riches journey — from her dilapidated childhood home in Washington state, to a tent on government land in Oregon, to the governor’s mansion, where she now lives with Gov. John Kitzhaber (D).

But she never mentioned the Ethiopian immigrant she married 17 years ago and divorced in 2002. When stories seeped out this week that she helped him obtain U.S. residency in exchange for $5,000, she said she needed the cash.

“It was a marriage of convenience,” she said in a statement. “He needed help, and I needed financial support.”

Read more here.

MR

October 14, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, October 13, 2014

Gay Marriage in Alaska

From CNN:

In 1998, Alaska became the first of two states to pass a constitutional amendment to ban same-sex marriage.

On Sunday, a federal judge overturned the 16-year ban, saying the Constitution guarantees equal protection to all.

The judge's ruling makes Alaska the latest state where gay and lesbian couples can legally marry.

Read more here.

MR

October 13, 2014 | Permalink | Comments (0) | TrackBack (0)

Saturday, October 11, 2014

Call for Papers

The Richmond Journal of Law & the Public Interest is seeking submissions for the Spring Issue of our 2014-2015 volume.  We welcome high quality and well cited submissions from academics, judges, and established practitioners who would like to take part in the conversation of the evolution of law and its impact on citizens.

We currently have four total openings for articles for our Spring Issue.  As a Journal that centers in large part on the Public Interest, we are seeking at least one article that touches upon current Family Law issue(s) and the effects that the issue(s) may have on the National Public Interest or the Virginia Public Interest.  For a sense of what we are seeking for our general issues, please feel free to visit http://rjolpi.richmond.edu/archive.php

If you would like to submit an article for review and possibly publication, or if you have any questions at all, please do not hesitate to contact our Lead Articles Editors - Rich Forzani and Hillary Wallace.  They can be reached, respectively, at rich.forzani@richmond.edu and hillary.wallace@richmond.edu.

October 11, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, October 10, 2014

Fershee : "The Parent Trap: The Unconstitutional Practice of Severing Parental Rights Without Due Process of Law"

Kendra Huard Fershee (West Virginia University - College of Law) has just posted " The Parent Trap: The Unconstitutional Practice of Severing Parental Rights Without Due Process of Law,"  30 Georgia State University Law Review, (2014) to SSRN.  Here is the abstract:

In 1997, Congress passed the Adoption and Safe Families Act (ASFA) to stem what it perceived to be an overreliance by states on foster care to provide a safe place for children whose parents had been accused of abuse or neglect. Prior to ASFA, many children were placed in foster care for extended periods of time while their parents were evaluated for their fitness and rehabilitative efforts were made to reunify families. Congress considered the time children spent in foster care as damaging to them because it left them uncertain about where they would live in the future. Congress, in an attempt to reduce the amount of time children spend in foster care, included provisions in ASFA that require states to expedite termination of parental rights to such a speed that states have been engaging in, for many years, systematic deprivation of the parents’ procedural and substantive due process rights.

Child abuse and neglect have always been a problem in every society, but many cultures, including American culture, have a poor track record of successfully addressing the problem. Early American history shows a lack of appreciation or understanding of the problem, and the evolution of policies to combat child abuse and neglect has been slow and somewhat ineffectual. At the same time, courts have not had a spectacular record of effectively addressing the problem of child abuse and neglect. The Supreme Court was slow to consider problems related to families, and did not decide a case regarding the rights of parents to the care, control, and custody of their children until the late 1920s. And it was not until the 1980s that the Court finally declared that parents have a substantive due process right to the custody of their children.

Even though it took many years, the Supreme Court’s recent recognition of protections for the procedural and substantive due process rights of parents is clear: states must be extremely cautious when seeking to terminate parental rights. In fact, after ASFA, the opposite has been happening. States have every incentive to rush to judgment and sever parental rights, even when there is no evidence that the parent has ever abused the child who has been removed from his or her custody, and even when the parent is someone who could be a wonderful, loving, and caring parent. These due process violations occur in the context of the provisions of ASFA that make exceptions to the requirement that states make reasonable efforts to reunify families who have been separated after an allegation of abuse of neglect.

In the second most constitutionally problematic provision of ASFA, states are permitted to forego reasonable efforts to reunite parents with a child who has been removed from their custody (automatically upon birth, in many circumstances) when the parents have lost custody to a sibling of the child in the past. Then, in the most constitutionally problematic provision, states must rush to terminate parental rights of those parents, even with no evidence that they would be unfit to parent this child. Unfortunately, many state courts are applying these provisions with heavy hands, resulting in improper terminations, or near misses that are overturned upon appeal. Congress must change ASFA to change incentives to states so that they act in accordance with the constitution when terminating parental rights, and the Supreme Court should review cases where parents’ parental rights have been permanently severed based on evidence of past misconduct alone. Until then, parents are extremely vulnerable to state court judges who are guided by an unconstitutional statute and who may not appreciate the constitutional risks in applying it.

MR

 

 

October 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 7, 2014

Same-Sex Marriage in More States

From the New York Times:

The Supreme Court on Monday let stand appeals court rulings allowing same-sex marriage in five states, a major surprise that could signal the inevitability of the right of same-sex marriage nationwide.

The development cleared the way for same-sex marriages in Indiana, Oklahoma, Utah, Virginia and Wisconsin. Gay and lesbian couples started getting married in those states within hours.

The decision to let the appeals court rulings stand, which came without explanation in a series of brief orders, will have an enormous practical effect and may indicate a point of no return for the Supreme Court.

Read more here.

MR

October 7, 2014 | Permalink | Comments (0) | TrackBack (0)

"Reproducing Race"

From Dov Fox (San Diego), writing for Huffington Post:

More than a million children in the U.S. each year are conceived with donated sperm or eggs. Sperm banks and egg vendors offer online ordering and direct shipping of donor materials that prospective parents can shop for based on SAT scores, personality tests, and celebrity likeness.

"[W]hat we try to do is give [parents] as much choice as possible," explains Dr. Cappy Rothman, co-founder of the world's leading sperm bank, California Cryobank. "If our customers wanted high school dropouts," he adds, "we would give them high-school dropouts."

What many of these (mostly white) parents want is a child who will look like they do. This means picking a donor who is, like them, white.

Read more here.

MR

October 7, 2014 | Permalink | Comments (1) | TrackBack (0)