Family Law Prof Blog

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

Saturday, March 31, 2018

Banasaznavaei: "A Study on the Temporary Marriage Contract in Iranian Law — Are Women Safe in Temporary Marriage Contracts?"

Sheida Banasaznavaei has posted to SSRN A Study on the Temporary Marriage Contract in Iranian Law — Are Women Safe in Temporary Marriage Contracts?. Here is the abstract:

With respect to temporary marriage in the modern society of Iran, there are no exact statistics or information. In fact, because these marriages are hidden, it is difficult to study and analyze this phenomenon. My objective is to conduct and prepare research, with the hope of opening the way to remove unclear issues and to review the regulations. I am going to discuss the pillars existing in temporary marriage contracts and analyze problematic issues regarding these factors. The institution of white marriage will be also considered in this paper, with the aim of presenting the modern concepts that dominate current Iranian society.

Since temporary marriage is one of the most challenging subjects in the thought school of Shi'a in legitimate law, its analysis from the standpoint of contract law is rare. It is contested whether the protection of widows and single mothers should be the most important objective of this relationship. Therefore, the goals of this research are twofold. First, it seeks to understand whether the regulations related to temporary marriage contracts include civil guarantees that support the family system's ethical values. Second, it analyzes if these provisions have been effectively adopted to protect women's economic rights.

March 31, 2018 | Permalink | Comments (0)

Feinberg: "Whither the Functional Parent? Revisiting Equitable Parenthood Doctrines in Light of Same-Sex Parents’ Increased Access to Obtaining Formal Legal Parent Status"

Jessica Feinberg has posted to SSRN Whither the Functional Parent? Revisiting Equitable Parenthood Doctrines in Light of Same-Sex Parents’ Increased Access to Obtaining Formal Legal Parent Status, Brooklyn Law Review , Vol. 83, No. 1, 2018. Here is the abstract:

Equitable parenthood doctrines generally provide rights relating to visitation or custody to an individual who has functioned as a child’s parent, but who is not recognized as a formal parent under existing law. These doctrines have played an essential role in protecting non-biological parents raising children within same-sex relationships, a group which historically has been excluded from the traditional avenues to establishing formal legal parent status based upon biology, marriage, and adoption. Over the past thirty years, a number of jurisdictions have adopted equitable parenthood doctrines to avoid the significant harm to children and unfairness that result from treating non-biological parents raising children within same-sex relationships as legal strangers to their children. In recent years, however, formal avenues to establishing legal parent status based upon marriage and adoption increasingly have been extended to non-biological parents raising children within same-sex relationships. While these developments are laudable steps in protecting LGBT families, they leave the future of equitable parenthood doctrines in question. Courts and legislatures may conclude that the increasing expansion to non-biological parents in same-sex relationships of formal avenues to establishing legal parent status means that equity no longer requires application or adoption of equitable parenthood doctrines. In fact, in cases involving same-sex parents, several courts have already cited as a justification for declining to adopt or apply equitable parenthood doctrines the availability of a formal avenue through which the individual seeking parental rights could have established legal parent status. This article argues that it would be a serious mistake for courts and legislatures to abandon equitable parenthood doctrines. Regardless of the increased availability to same-sex parents of formal avenues to establishing legal parent status, equitable parenthood doctrines will remain essential in promoting one of family law’s most important goals: protecting the best interests of children.

March 31, 2018 | Permalink | Comments (0)

Dividing 401(k)

From CNBC:

Divorcing couples can face enough agony as it is dividing up possessions and agreeing on custody of children, let alone splitting retirement assets.

Yet that nest egg often represents a divorcing couple's largest pot of money. And if the process for the division of those assets is not done properly, there can be a steep price to pay in taxes, penalties or an unintended amount of money going to an ex-spouse.

Even if you have an attorney — whether for a courtroom battle or mediation — experts say it's important for splitting couples to understand what's at stake.

Read more here.

March 31, 2018 | Permalink | Comments (0)

Friday, March 30, 2018

Free-Range Parenting Legalized in Utah

From the Hill:

Utah has become the first state to legalize “free-range parenting," codifying that kids can participate in unsupervised activities without their parents facing neglect charges.

Utah. Gov. Gary Herbert (R) signed the law earlier this month that redefines child “neglect,” ABC News reported Tuesday.

“Absence evidence of clear danger, abuse or neglect, we believe that parents have the best sense of how to teach responsibility to their children” Herbert said in a statement.

Read more here.

March 30, 2018 | Permalink | Comments (1)

Thursday, March 29, 2018

Denmark's "Reflection Period"

From The New York Times:

COPENHAGEN — As one of the most wired countries in the world, Denmark offers hospital records, death certificates, tax returns and other important documents with little more than a couple of clicks.

Even a divorce can be obtained in less than a week with only a short online form and a $60 fee. But Denmark has long had one of the highest divorce rates in Europe, and the government has decided that breaking up should be a little a harder to do.

Under new rules set to go into effect next year, couples who have children and who decide to dissolve their marriage will be required to observe a three-month “reflection period” before the divorce takes effect, during which they will be offered free counseling. The idea is to provide protection for children, who will also receive counseling during the waiting period. (The quick divorce is still available for childless couples and in cases of abuse.)

Read more here. 

March 29, 2018 | Permalink | Comments (0)

Carsley: Reconceiving Quebec's Laws on Surrogate Motherhood

Stefanie Carsley has posted to SSRN Reconceiving Quebec's Laws on Surrogate Motherhood, Forthcoming in 96 Canadian Bar Review (2018). Here is the abstract:

In September 2016, the Quebec government announced that it intends to reform the Civil Code of Québec to recognize and further regulate surrogate motherhood. Quebec's Minister of Justice indicated that in bringing forward these changes, the government will consider recommendations provided in a 2015 report by the Comité consultative sur le droit de la famille (the Comité). This article explores the history, objectives and effects of Quebec's current legal responses to surrogacy and examines the strengths and weaknesses of the Comité's proposed reforms. It argues that while the report's proposals would better support and protect surrogate mothers and children born through surrogacy than Quebec's current regime, the Comité's recommendations do not adequately account for intended parents' interests or recognize diverse family forms. It recommends that the Quebec government look to British Columbia's Family Law Act and Ontario's Children's Law Reform Act for further inspiration for how to reimagine Quebec's surrogacy laws.

March 29, 2018 | Permalink | Comments (0)

Wednesday, March 28, 2018

Divorce Camp

From US News:

The life of Barbara Klas seemed perfect — a 21-year marriage, two children, a posh home in Woodbury and a career as an attorney.

Then came the perfect disaster. Her husband announced he was moving to Duluth, buying a company and dating a new girlfriend "half his age," recalled Klas.

It felt like being pushed out of an airplane.

"He was going through a midlife crisis," Klas told the Pioneer Press.

But she was able to find a parachute — Daisy Camp. The Edina nonprofit group runs a series of divorce camps for women enduring one of the worst periods of their lives.

Klas has been to several of the camps, which range from two hours to two days in length. The sessions have different themes, such as child custody, finances or legal rights. But each one addresses the fundamental need for women going through divorce — dealing with their emotions.

"Divorce is 70 percent emotional, 30 percent legal," said Angela Heart, divorce attorney and a presenter at a Daisy Camp in January.

Read more here.

March 28, 2018 | Permalink | Comments (0)

Chadwick: "Legitimating the Immigrant Family"

Gillian Chadwick has posted to SSRN Legitimating the Immigrant Family. Here is the abstract:

The concept of legitimation represents a widening chasm at the intersection of immigration and family law. The BIA and courts’ persistent reliance on legitimation as a dispositive factor in determining who counts as a “real” family is increasingly at odds with family law’s complex, nuanced, and ever-more inclusive vision of family. The BIA and courts tend to significantly privilege parent-child relationships linked by biological or pseudo-biological connection, despite the INA’s reliance on state family law frameworks that have evolved beyond that narrow idea. In the context of derivative citizenship, the exclusionary forces at the heart of immigration law override family law’s inherent drive to include children and protect families. Whether it is the intent or merely a byproduct of a pretext driven by the exclusionary imperative of immigration law, the result is the same: the BIA and courts cling to the otherwise obsolete notion of legitimation, which has its roots in an archaic social norm designed to control reproduction and with it, the female body. This paper argues that immigration law should cede to family law’s inclusionary concept of the family, pushing back against the inherent exclusionary interests at the heart of modern immigration law.

March 28, 2018 | Permalink | Comments (0)

Scott & Chen: "Fiduciary Principles in Family Law"

Elizabeth S. Scott & Ben Chen have posted to SSRN Fiduciary Principles in Family Law, Columbia Public Law Research Paper No. 14-577. Here is the abstract:

Family members bear primary responsibility for the care of dependent and vulnerable individuals in our society, and therefore family relationships are infused with fiduciary obligation. Most importantly, the legal relationship between parents and their minor children is best understood as one that is regulated by fiduciary principles. Husbands and wives relate to one another as equals under contemporary law, but this relationship as well is subject to duties of care and loyalty when either spouse is in a condition of dependency. Finally, if an adult is severely intellectually disabled or becomes incapacitated and in need of a guardian, a family member is often preferred to serve in this role. 

This chapter examines the application of fiduciary principles and doctrine to close family relationships. The chapter explains that while the parent-child and spousal relationships are governed by fiduciary principles and duties, enforcement of these duties [at least when family relationships are intact] is largely accomplished through informal bonding and monitoring mechanisms. In contrast, when family members become guardians of adult relatives, including elderly parents and disabled adult children, obligations are formally enforced under fiduciary law with minimal recognition of the family bond. The chapter examines the rationales for these contrasting approaches and questions whether adjustments are indicated. It concludes that modest relaxation of formal fiduciary obligations in the context of close family relationships might sometimes serve the interests of the incapacitated adult by supporting her relationship with the family guardian.

March 28, 2018 | Permalink | Comments (0)

Tuesday, March 27, 2018

Call for Change in Mississippi Adoption Laws

From News Channel 3:

JACKSON, Miss. — Adoption laws in Mississippi haven’t changed since the 1800s, says Nash Nunnery, a Mississippi Business Journal reporter who was adopted in the mid-1950s when he was several months old. The laws that date from the time when an unwed pregnancy was considered a disgrace still linger.

“People like me searching for my birth mother can’t obtain any identifying information,” Nunnery said. “They have refused to give me her name even. I paid for Canopy Services, the state adoption agency, to do a search and all that they would tell me is that my mother was a 5′, 3″ tall, strawberry blonde and that my grandfather was a farmer. Even with the death of my mother, they won’t release names or anything else. I actually think it is wrong. It is archaic.”

The right to know the identity of your birth parents, Nunnery said, is the only civil right left in the country that hasn’t been addressed. While both his adoptive parents are wonderful people, Nunnery feels there is a right for someone to have information about their biological parents, as well.

Read more here.

 

March 27, 2018 | Permalink | Comments (0)

Call for Papers: Intl Academy for the Study of the Jurisprudence of the Family

 

International Academy for the Study of the Jurisprudence of the Family
http://www. iasjf.org

Notice of Academic Symposium and Call for Papers
“Family and Poverty”
June 20-21 2018, at University of Asia and the Pacific, Philippines

The International Academy for the Study of the Jurisprudence of the Family (IASJF) is pleased to
announce that it will hold its Eleventh International Symposium on the jurisprudence of the family on
Wednesday and Thursday, June 20-21, 2018, at the School of Law, University of Asia and the Pacific, in
Metro Manila (Philippines). The Symposium is on “Family and Poverty”. The Symposium will address
the issues related to the topic from a juridical point of view; interdisciplinary presentations are also
welcome.


The IASJF is an independent, interdisciplinary scholarly society that seeks to promote thoughtful
consideration and discussion of the foundations of the family, including marriage, parenting, extended
and other family relations. The website is at http://www.iasjf.org/. The IASFJ has previously hosted
academic symposia in USA, Argentina, Israel, Spain, Malta, Qatar, Poland and Peru, among others. The
IASFJ sponsors the International Journal of the Jurisprudence of the Family (IJJF), published in both print
editions and in HeinOnline. Papers from prior symposia have been published in past volumes of the IJJF;
and selected submitted papers from the 2018 Symposium will be published in volume 8 of the IJJF.
The University of Asia and the Pacific is located in Pearl Drive, Ortigas Center, Pasig City, Metro
Manila, Philippines.


Persons wishing to present a scholarly paper at the Symposium should submit a short abstract of
the paper they propose (no more than 200 words) including a working title, the identity, institutional
affiliation and full contact information of the author(s), and a brief description of the proposed paper.
Proposals should be sent to Professor Stefano Troiano (iasjf2018symposium@gmail.com) by 15 May
2018. Acceptances will be on a rolling-acceptance basis. All Symposium participants must register ($125
Academy Members, $170 non-Members) and pay for their own transportation and hotel. Fee includes all
Symposium meals and local transportation from the hotel to the venue of the Symposium. To take
advantage of the cheapest fares, it is advisable to book airline connections as soon as possible. Online
registration will be open from 15 April 2018. For further information about the IASFJ or this Symposium,
please go to http://www.iasjf.org/.

 

For further information on the conference, visit http://webpages.uidaho.edu/iasjf/conferences.html

March 27, 2018 | Permalink | Comments (0)

Thinking About Divorce After Engagement

From TIME:

Congratulations on your engagement! Now, let’s talk about divorce.

I know, I know. This is a time for celebration and excitement, not pragmatic pessimism. Right now you want to plan the cake (vanilla buttercream, if I get a vote), not a hypothetical division of assets. I get it, I do. But give me three minutes to try to persuade you (I do that for a living) that talking about divorce, right now, is the most romantic, committed thing you and your fiancé could be doing.

Read more here.

March 27, 2018 | Permalink | Comments (0)

Cossman & Ryder: "Beyond Beyond Conjugality"

Brenda Cossman & Bruce Ryder have posted Beyond Beyond Conjugality, (2017) 30(2) Canadian Journal of Family Law 227-263. Here is the abstract:

In 2001, the Law Commission of Canada released its report Beyond Conjugality: Recognizing and Supporting Close Adult Relationships. The Report questioned whether marriage and conjugality should have any relevance as legal categories, and considered whether the state should get out of the business of regulating marriage altogether. The Report advocated a systematic rethinking of the way in which close adult relationships are regulated and recognized. In particular, it argued that conjugality - long used as the criteria for recognizing and regulating relationships - is ill-suited to achieving governmental policy objectives. The Beyond Conjugality report has been extensively debated and cited in the past fifteen years. Even though it is too early, from the Law Commission’s long-term perspective, to come up with a final assessment of the success of the Beyond Conjugality report, our paper assesses its impact on scholarly and political debates thus far. We consider whether the assumptions and methodology underlying the report remain valuable. By stopping short of recommending that the state cease to regulate marriage altogether, and by not recommending the repeal of conjugal offences such as polygamy, did the report not go far enough? With the benefits of hindsight, would we write the Report differently now? To what extent did the recognition of same sex marriage in Canada in 2005 limit further reconsideration of adult personal relationships? Is the model of conjugality that the Report criticized more entrenched today? Is there a way that we would write the report differently today that would give further political and legal resonance to alternatives to conjugality? Specifically, how might we have better looked beyond the dyadic couple to consider multiple party relationships as well?

March 27, 2018 | Permalink | Comments (0)

Monday, March 26, 2018

Aloni: "The Marital Wealth Gap"

Erez Aloni has posted to SSRN The Marital Wealth Gap, Washington Law Review, Vol. 93, 2018. Here is the abstract:

Married couples are wealthier than people in all other family structures. The top 10% of wealth holders are, in great proportion, married. Even among the wealthiest households, married couples hold significantly more wealth than others. The Article identifies this phenomenon as the “Marital Wealth Gap,” and critiques the role of diverse legal mechanisms in creating and maintaining it. Marriage also contributes to the concentration of wealth because marriage patterns are increasingly assortative: wealth marries wealth. The law entrenches or even exacerbates these class-based marriage patterns by erecting structural barriers that hinder people from meeting across economic strata.

How can the state restructure the law to alleviate the marital wealth gap? The Article proposes a fundamental shift in the way the state treats wealth and family status. It advances a theory grounded in transformative “recognition and redistribution” that decentralizes marriage’s monopoly on wealth-related benefits and simultaneously aims to reduce wealth concentration among the richest households. Principally, since marriage is the preserve of the well-off, the state should decouple wealth benefits from marriage. At the same time, it should combat the structures that enable wealth concentration among affluent married couples, thereby dismantling the architecture that supports the marital wealth gap.

March 26, 2018 | Permalink | Comments (0)

Child Custody Dispute Between State of Florida and Native American Tribe

From ABC News:

A child-custody case in Florida has erupted into a battle between state officials and a Native American tribe after a couple complained that their newborn was snatched from a hospital by tribal police based on bogus accusations made by the grandmother, who allegedly does not like the father because he's white.

Rebecca Sanders, a member of the Miccosukee tribe, and Justin Johnson say tribal police came to Baptist Hospital in Kendall, Florida, and took their baby girl, Ingrid Ronan Johnson, two days after her birth on March 16.

A tribal judge granted custody of the baby and Sanders' two other children to Sanders' mother, Betty Osceola.

Read more here. 

March 26, 2018 | Permalink | Comments (0)

Adekile: "Towards the Development of a Marital Property Regime for Nigeria: A Case for Socio-Legal Research for Gender Justice"

Oluwakemi Mary Adekile has posted to SSRN Towards the Development of a Marital Property Regime for Nigeria: A Case for Socio-Legal Research for Gender Justice. Here is the abstract:

This work interrogates research needs for the development of marital property rights in Nigeria and raises the question of whether there shouldn’t be a move into socio-legal investigations of social norms through family market research with a view for law to internalize family realities. It is an effort to stimulate a different approach to imperative legal reform. It suggests that doctrinal legal research may not be adequate to provide an acceptable inclusive marital property regime. Socio-legal research might help Nigerian law reflect the de facto financial/property arrangements in marriage. The objective is to move questions and concerns of property rights from doctrinal content analysis into quantitative empirical evaluation. It argues that social dialogue and family market research into the developmental implications of the absence of a cohesive property regime in Nigeria and the form of legal intervention in a culturally and religiously diversified society is needed. The research finds while culture and customary laws recognize separate property rights and no spousal interests, modern legal systems including human rights regimes and national laws stipulate equality of rights in marriage. Without empirical social-legal research which documents marriage and social realities through family market research there will continue to be a gap between the law in the books and the law in practice. The paper concludes that culture and gendered definitions of the division of marital work are limiting factors to the scope of property rights, but the dynamism of culture is a call for its constant interrogation.

March 26, 2018 | Permalink | Comments (0)

Sunday, March 25, 2018

Hunter: "Varieties of Constitutional Experience: Direct Democracy and the Marriage Equality Campaign"

Nan D. Hunter has posted to SSRN Varieties of Constitutional Experience: Direct Democracy and the Marriage Equality Campaign, UCLA Law Review, Forthcoming. Here is the abstract:

Beginning in the 1970s, the overwhelming success of anti-gay ballot questions made direct democracy the most powerful bête noire of the LGBT rights movement. It is thus deeply ironic that, more than any other factor, an electoral politics-style campaign led to the national mandate for marriage equality announced by the Supreme Court in Obergefell v. Hodges. This occurred because marriage equality advocates set out to change social and constitutional meanings not primarily through courts or legislatures, but with a strategy designed to win over moveable middle voters in ballot question elections. Successful pro-gay litigation arguments, followed by supportive reasoning in judicial victories, grew directly out of the messaging frames that tested best with voters. A new variation on popular constitutionalism was born.

The lawyers who led the marriage equality campaign succeeded by decentering litigation until after opinion polls registered majority support for allowing same-sex marriage. In developing and implementing this strategy, they were assisted by professionals skilled in communications research and enabled by large-scale, coordinated funding. These dimensions of the marriage equality effort both validate and contradict much of the law and society scholarship predicting that court-centered rights discourse will inevitably dominate law reform campaigns.

In this Article, I argue that the same-sex marriage campaign is likely to foreshadow sophisticated social change efforts in the future that look less like traditional impact litigation strategies and more like social marketing campaigns, one component of which may be constitutional interpretation. Whether this model has major potential for significantly progressive change will turn on its effectiveness for issues that involve claims for redistribution of material resources or greater openness in governance, challenges with which the marriage equality effort was not forced to engage.

In the marriage campaign, voter-tested messaging led to two major discursive innovations. The first was the jettisoning of rights arguments in favor of storytelling models that were grounded in emotions rather than rights. Advocates stopped enumerating the legal benefits of marriage and talked more about the bonds of commitment exemplified by same-sex couples. Second, ballot question campaign ads increasingly featured the construction of a storytelling arc centered on how opposition to same-sex marriage of older or more conservative voters could morph into acceptance (even if not endorsement) of it. These narratives guided conflicted, moveable middle voters (and others) along a path toward a different sense of moral awareness about homosexuality and same-sex marriage than the manichean version of morality arguments used by conservatives. The new approaches were calibrated, tested, and refined for particular audiences, producing empirical evidence to support a new addition to the language of law: data-driven arguments.

The most significant limitations of this approach operated at the level of social and constitutional meanings. Several discursive pivot points that emerged from the messaging strategy led to the shrinkage of what might have been greater emphasis on the pluralism of family forms as the foundation for equality and liberty in the realm of personal relationships.

 

    • The shift from an equality frame based on analogies to other social minorities to a universalized sameness approach;

 

    • The shift from an emphasis on the material consequences of being denied access to the legal incidents of marriage to an emphasis on commitment, child raising, and the relational and emotional motivations for wanting to marry; and

 

    • The avoidance of arguments for “expanding” or “changing” marriage and the stress of the desire for “joining” marriage.

 


This new frame reassured moderate voters and judges that the traditional norms and practices associated with marriage were not being threatened, producing a kind of cultural interest conversion. This was brought about through a discourse that was mined from the rhetoric of popular constitutionalism but suffused with the resonance of respectability.

March 25, 2018 | Permalink | Comments (0)

Saturday, March 24, 2018

Witte: " The Nature of Family in Seventeenth-Century Liberal Protestant Thought: Hugo Grotius and John Selden"

John Witte has posted to SSRN The Nature of Family in Seventeenth-Century Liberal Protestant Thought: Hugo Grotius and John Selden, University of Illinois Law Review (2017): 1947-1969. Here is the abstract:

Our contemporary debates about the nature of sex, marriage, and family life are not new. A half millennium ago, the Protestant Reformation set off a comparably tumultuous sexual revolution that bitterly divided the Catholic and Protestant worlds. Over the next century, jurists and theologians used various natural lawtheories to develop a common foundation for Western family law. In this Essay, I sample the writings of Dutch jurist Hugo Grotius (1583-1645) and English jurist John Selden (1684-1654) — two leading Protestant natural law theorists whose seminal writings helped to shape the Continental civil law and the Anglo-American common law traditions respectively. These two scholarly giants knew and respected each other, but they differed on their approach to natural law and its applications to family law and other legal questions. Grotius based his theory of natural law on rational self-evidence — the rational inferences that can be drawn from human intuition and inclinations, common experiences and customs, and the nature of human sexuality and interaction. Selden based his theory of natural law on primeval divine commands, whose principles and precepts were worked out by great legal traditions with enlightened leadership, most notably by the Jewish tradition. Despite these different starting points and accents, both Grotius and Selden embraced a good number of traditional teachings on sex, marriage, and family life, albeit with non-traditional methods and rationales.

March 24, 2018 | Permalink | Comments (0)

Friday, March 23, 2018

Fernando & Ross: "Stifled Voices: Hearing Children's Objections in Hague Child Abduction Convention Cases in Australia"

Michelle Fernando & Nicola M. Ross have posted to SSRN Stifled Voices: Hearing Children's Objections in Hague Child Abduction Convention Cases in Australia, (2018) 32(1) International Journal of Law, Policy and the Family. Here is the abstract:

In 2012, four Italian children unlawfully retained in Australia by their mother were sent back to Italy, even though they had been in Australia for over 2 years, all four objected to being returned and the two elder children were aged 12 and 14 years at the time of the first hearing. The High Court of Australia ruled that the children had been afforded natural justice and that their views had been appropriately heard and considered, despite the children not having had legal representation or the opportunity to express their views directly. This article examines the meaning and operation of the ‘children’s objection’ exception to a mandatory return order made in Australia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. While the general rule is that children unlawfully taken from their home country by a parent must be returned, Article 13 gives a court discretion to refuse to return a child if the child objects and is of sufficient age and maturity. In Australia, the child’s objection must also show a ‘strength of feeling’ beyond a mere preference or ordinary wishes. The authors discuss the limitations of the current procedures for hearing children’s objections in light of the child’s right to be heard pursuant to Article 12 of the United Nations Convention on the Rights of the Child, and advocate greater use of Independent Children’s Lawyers and meetings between children and judges in Hague Convention cases.

March 23, 2018 | Permalink | Comments (0)

Joslin: "Nurturing Parenthood Through the UPA (2017)"

Courtney G. Joslin has posted to SSRN Nurturing Parenthood Through the UPA (2017), 127 Yale Law Journal Forum 589 (2018). Here is the abstract:

Same-sex couples now have the right to marry throughout the country. Douglas NeJaime’s insightful article carefully explains how LGBT parent-families remain vulnerable despite this important development. NeJaime demonstrates that while the law recognizes nonbiological parentage, it does so in asymmetrical ways that “reflect[] and perpetuate[] inequality based on gender and sexual orientation.” These asymmetries harm the adults and the children in these families, and violate core constitutional mandates.

This Response shows how the recently approved revisions to the Uniform Parentage Act (UPA)—UPA (2017)—address many of the critical gaps in parentage law identified by NeJaime. The UPA (2017) expands the ways in which a nonbiological parent may establish her or his parentage. The Act carries over the longstanding holding-out provision, but revises it so that it applies equally to men and women. The UPA (2017) also adds a new provision on de facto parents, under which someone who has been acting as a parent can legally establish his or her parentage, and expands the classes of people who can establish parentage through the voluntary acknowledgment process. The Act also updates the assisted reproductive technology (ART) provisions to permit individuals of any gender to establish their parentage based on proper consent to the ART procedure.

In addition, the UPA (2017) removes many gender-based distinctions that long have shaped parentage law. In so doing, the UPA (2017) helps states bring their parentage statutes into compliance with the Supreme Court’s decisions in Obergefell v. Hodges, Pavan v. Smith, and Sessions v. Morales-Santana. These Supreme Court decisions make clear that family law provisions that discriminate on the basis of gender or sexual orientation may be constitutionally suspect.

By adopting the UPA (2017) and making these changes, states can reform parentage law to more evenhandedly protect all parent-child relationships.

March 23, 2018 | Permalink | Comments (0)