Family Law Prof Blog

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

Sunday, December 15, 2019

Parness: “Faithful Parents: Choice of Childcare Parentage Laws”

Jeffrey A. Parness (NIU) has recently posted to SSRN his article Faithful Parents: Choice of Childcare Parentage Laws, 70 Mercer Law Review 325 (2019).  Here is the abstract:

In July 2017, the National Conference of Commissioners on Uniform State Laws (NCCUSL) approved and recommended for enactment in all U.S. states a new Uniform Parentage Act (2017 UPA). This act follows the 1973 and 2000 UPAs which have been widely adopted. While all three UPAs recognize forms of childcare parentage beyond biological ties (in and outside of marital births) and formal adoptions, the 2017 UPA is quite expansive in its provisions on such forms, including de facto parentage, voluntary acknowledgment parentage, and intended parentage of children born of assisted reproduction. These expanded forms of childcare parentage, relevant to child custody, visitation and support, are chiefly dependent on childcare agreements and/or parental-like acts rather than on blood ties or formal adoptions.

This article focuses on the choice of law problems arising with these expanded forms of childcare parentage. First, it reviews the UPA sections on choice of law and on the expansive forms of childcare parentage. Second, it demonstrates the challenging choice of law issues when childcare parentage disputes arise only after interstate moves, but depend upon premove behavior which is not precise (like giving birth) or which occurs at no particular time (like marriage to a birth mother at the time of birth). Third, the article posits that notwithstanding the UPA declarations that forum laws apply when adjudicating parentage, state courts should expressly recognize that sometimes forum laws include their own choice of law rules. Such a recognition should be also included in an amended 2017 UPA. This approach follows precedents on choosing between conflicting state laws in and outside of family law settings. It also honors reasonable expectations, lessens forum shopping, and avoids Full Faith and Credit difficulties where there are parentage-related “public acts,” as with voluntary parentage acknowledgments.

Finally, the article further posits that the 2017 UPA and state courts should establish some special choice of law rules. Special rules should operate, for example, when courts hear challenges to voluntary parentage acknowledgments (VAPs). Here, the VAP challenge laws of the state where the VAP was filed should be applied.

December 15, 2019 | Permalink | Comments (0)

Saturday, December 14, 2019

A Merry Christmas for Michigan Foster Children

From MLIVE:

Children in foster care around Michigan will be granted a special holiday wish this Christmas thanks to an annual volunteer effort called Operation Good Cheer.

Through the program, which partnered with Michigan Department of Health and Human Services employees, children are able to make a wish list of gifts they would like for Christmas. Volunteers purchase and wrap the gifts and on Saturday, Dec. 7, the gifts are transported to foster care children around the state.

“The holidays are a particularly difficult time for the more than 13,000 Michigan children in foster care who are separated from their families and friends,” said JooYeun Chang, executive director of the Children’s Services Agency at MDHHS, said in a release. “We are grateful that Child and Family Services of Michigan, donors and volunteers are bringing joy to children in foster care during the holidays.”

Read more here.

December 14, 2019 | Permalink | Comments (0)

Friday, December 13, 2019

Racial Adoption Discrimination in England

From the BBC:

A couple who were rejected by their local adoption service because of their Indian heritage have won their legal discrimination battle.

Sandeep and Reena Mander sued The Royal Borough of Windsor and Maidenhead Council after they were turned away from Adopt Berkshire three years ago.

Judge Melissa Clarke said the couple were discriminated against on the grounds of race.

The Sikh couple have now been awarded nearly £120,000 in damages.

The Manders, from Maidenhead, said they felt "directly discriminated against" when they were told by Adopt Berkshire "not to bother applying" because of their Indian heritage.

Read more here.

December 13, 2019 | Permalink | Comments (0)

Thursday, December 12, 2019

Sandwich Generation

From Forbes:

About 40 million people—or  about one-in-six Americans over age 15—provide some support for an older adult, according to a new report from the Bureau of Labor Statistics. On any given day, about one-quarter of them are actively caring for a parent, spouse, other relative, or friend.

...

The report provides important evidence about the burdens on those who are caring for an older adult while trying to hold down a job and also care for their children.

Read more here.

December 12, 2019 | Permalink | Comments (0)

Katz New Scholarship

Elizabeth D. Katz (Washington University School of Law) has posted to SSRN her recent articles:

'Racial and Religious Democracy': Identity and Equality at Mid-Century, Stanford Law Review (forthcoming).  Here is the abstract:

In our current political moment, discrimination against minority racial and religious groups routinely makes headlines. Though some press coverage of these occurrences acknowledges parallels and links between racial and religious prejudices, these intersections remain undertheorized in legal and historical scholarship. Because scholars typically study race and religion separately, they have overlooked the legal significance of how race and religion coexist in both discriminators and victims of prejudice. By contrast, this Article demonstrates that the intersection of racial and religious identities has meaningfully influenced legal and political efforts to achieve equality.

Drawing from extensive archival research, this Article unearths forgotten yet formative connections between racial and religious antidiscrimination efforts, at the local through federal levels, from the 1930s through 1950s. To examine these links, this account centers on the New York City family court, an unusually influential and high-profile trial court. In the 1930s, the NYC family court welcomed the most diverse bench ever assembled in the United States to that date (including women and men, blacks and whites, and Protestants, Catholics, and Jews), a development celebrated as bolstering American democracy and countering Nazi bigotry abroad. Several judges held leadership positions in the National Association for the Advancement of Colored People and the American Jewish Congress, path-breaking civil rights organizations with legal arms headquartered in NYC. The family court served as a testing ground for identity-related legal arguments that later rose to the national level because of its judges’ views and the fact that it merged two antidiscrimination focal points: public institutions’ treatment of children and application of fair employment practices. Longstanding policies required the court to match probation officers to juvenile delinquents by race and religion. By the 1940s, a coalition of black and Jewish judges regarded both types of identity-matching as unlawful discrimination. These judges successfully fought against their white Christian colleagues to end racial-matching, but their challenge to religious-matching proved more politically and legally difficult. What some perceived as religion-based discrimination and a violation of the separation of church and state others understood as legitimate protections for religious identity.

Foreshadowing, connecting, and continuing through canonical Supreme Court Establishment Clause and civil rights cases—such as McCollum v. Board, 333 U.S. 202 (1948) and Brown v. Board, 347 U.S. 483 (1954)—the family court judges and their allies both anticipated and influenced doctrine and norms that remain with us today. This history complicates and raises important questions about ongoing issues ranging from the significance of judges’ racial and religious backgrounds to the scope of religious groups’ involvement in child welfare services and penal contexts. The Article also calls for additional studies that free racial civil rights and First Amendment religion scholarship from their current silos in order to better understand the concurrent development of these crucial and contested areas of law.

 

Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, 86 U. Chi. L. Rev. 1241 (2019).  Here is the abstract:

Each year family courts incarcerate thousands of Americans for nonpayment of child support. The vast majority of these parents are not accorded criminal procedure protections because courts have characterized routine child support enforcement as a “civil” matter. The United States Supreme Court has endorsed this approach. In Turner v Rogers, the Court began from a premise it regarded as both legally significant and unquestionably true: that child support proceedings are civil. On that basis, the Court determined that an indigent father facing a year in jail was not entitled to a public defender. The Court’s analysis reflects a broader and widespread assumption that family law is a civil field. Recent scholarship has challenged that understanding by examining how criminal law and family law work in tandem to police certain conduct. This Article goes further by demonstrating that modern support duties and the family courts that enforce them evolved from criminal laws and courts.

Relying on extensive historical research, this Article argues that child support enforcement is criminal law in a civil guise. Family nonsupport was criminalized around the turn of the twentieth century to permit extradition of offenders. Criminal court judges then tasked newly minted probation officers with reconciling, investigating, and monitoring families — novel state interventions in domestic life. Probation officers, in turn, staffed and promoted specialized criminal nonsupport courts (initially called “domestic relations courts” and later “family courts”) that some cities opened to handle these prosecutions in the 1910s. Beginning in the 1930s, costs and stigma associated with criminal law led legislators to strategically relabel family courts and support enforcement as “civil,” even while retaining procedures, personnel, and powers drawn from the criminal context. Observers found the ongoing use of criminal-derived oversight methods unobjectionable; the decades in which support law was largely criminal law shifted norms about acceptable and desirable state involvement in family relationships. As the number of civil “child support” suits surpassed nonsupport prosecutions (which all states retained) and probation officers disappeared from family litigation, the criminal heritage and continued criminal-law reinforcement of family courts and support laws were obscured.

The calculated and incomplete conversion of family support enforcement from criminal to civil undercuts the supposedly distinct purposes, procedures, and penalties associated with the civil and criminal categories. Building on scholarship that critiques the Supreme Court’s treatment of statutory schemes that blur the civil-criminal divide, the Article draws from child support history to condemn the Court’s strong deference to legislative labels and to propose greater consideration of enforcement methods. If the Court were persuaded to recognize child support incarceration as a criminal sanction, then states would face a difficult choice. They could either allocate the resources needed for constitutionally mandated criminal procedure protections or decriminalize the enforcement machinery — ideally through elimination of most child support incarceration.

December 12, 2019 | Permalink | Comments (0)

Wednesday, December 11, 2019

House Passes Bill with Paid Parental Leave for Federal Employees

From CNN:

The House of Representatives passed an annual defense authorization bill on Wednesday with a provision that provides all federal workers with 12 weeks of paid parental leave for the first time in American history.

In the White House push for Space Force's inclusion, it was made clear, aides familiar with the negotiations said, that any number of Democratic priorities were potentially on the table. Over the objection of congressional Republicans, the White House agreed to the paid parental leave for federal workers in order to ensure the establishment of Space Force, the aides said.

Democrats celebrated the paid leave provision in the must-pass legislation, although the bill on the whole was met with dismay from some progressive members who felt they lost on many of their other legislative priorities after negotiations with the Republican-held Senate. The bill passed with a bipartisan vote of 377-48. Forty-one Democrats and six Republicans opposed it, along with independent Rep. Justin Amash.
...
There is currently no parental leave policy for federal government employees. The United States does not have a federal parental leave policy or law that applies nationwide, either. It is the only industrialized nation that does not have one.
 
"We in the federal government, I believe we should lead by example, and this is a perfect opportunity to do that," Rep. Jennifer Wexton, a freshman Democrat from a northern Virginia district where many federal employees live, told CNN.
 
"This is going to help us attract a new generation of federal workers," she added. "Our federal workforce has been aging. We need to make sure we can attract and retain people who want to work for the federal government. This will help."
 
The initial provision in the bill would have established paid parental leave for military and Department of Defense employees, but Democrats were able to extend the policy to all federal employees, Wexton said.
 

Read more here.

 
 

December 11, 2019 | Permalink | Comments (0)

Better Watch Out, Better Not Cry...A Breakup May Be Coming to Town

From the Sydney Morning Herald:

If festive rom coms are to be believed, the holiday season is all about love. Consider Love Actually, it manages to shoehorn a wedding, new relationships, a childhood romance, affairs and even holiday sex into a mere 145 minutes.

But, far from the silver screen, more relationships are ending this month than at any other time of year.

After analysing Facebook posts detailing break-ups, data experts discovered December 11 was the most common day for it, outstripping splits at the beginning of the year and around Valentine’s Day. Other research has revealed a similar penchant for the "close but not too close" to the end of the year break-up: a recent UK survey showed that people believe the latest acceptable day to split before Christmas is December 6.

Read more here.

December 11, 2019 | Permalink | Comments (0)

Oral Argument Recap in Monasky v. Taglieri

From ABC7 News:

The Supreme Court will now decide whether it agrees with Taglieri, or whether A.M.T. should be returned to her mother in the U.S. The court could also establish a clear standard for determining an infant's "habitual residence" and how lower court's should apply it going forward.

During oral arguments, however, the justices seemed very wary of getting deeply involved.

"We're talking about an international convention, but none of the other parties have adopted your position," a skeptical Chief Justice John Roberts told Monasky's attorney, who argues his client's intent to live in the U.S. should be overriding.

"Why should it be here instead of there?" Justice Sonia Sotomayor said, sharing her skepticism. "Why is it an American court rather than Italian court dealing with this custody issue?"

Justice Stephen Breyer outright opposed "laying down black letter rules" to govern custody battles.

"This is family law. Families differ," Breyer quipped. "How do we know what's in the best interest of a child? Federal judges don't know much about this."

The Trump administration also participated in the argument opposing "rigid per se tests" to establishing a child's habitual residency for purposes of custody.

Habitual residency "is a meaningless concept when you're talking about someone eight weeks old," Roberts said. "They don't even have habits... well, except one or two."

...

Monasky did receive some sympathy from Justice Ruth Bader Ginsburg, who noted that some accommodation might be necessary in difficult international cases of a mother fleeing violence.

Read more here.

December 11, 2019 | Permalink | Comments (0)

Hague Abduction Convention Supreme Court Case

Oral arguments in Monasky v. Taglieri involving the Hague Abduction Convention are being heard today at the U.S. Supreme Court.  One argument preview is available here.

December 11, 2019 | Permalink | Comments (0)

Tuesday, December 10, 2019

Abolishing Spousal Privilege

From FindLaw:

New Mexico [recently] became the first state to outright abolish spousal privilege. This comes after years of exceptions, workarounds and a general policy of courts to interpret the spousal privilege as narrowly as possible. While New Mexico is the first state, it may very well not be the last.

Spousal Communications, a Weakening Privilege

New Mexico Rules of Evidence 11-505(B) holds that “a person has a privilege to refuse to disclose, or to prevent another from disclosing, a confidential communication by the person to that person's spouse while they were married.” This is spousal testimonial privilege.

However, many courts, including the Supreme Court, have weakened spousal testimonial privilege. The Supreme Court in Trammel, for example, limited the privilege to the witness spouse only back in 1980.

Read more here.

December 10, 2019 | Permalink | Comments (0)

Monday, December 9, 2019

Federal Workers Set to Receive 3 Months Paid Parental Leave

From AP:

The Senate’s top Democrat said Sunday that congressional leaders have reached a “real breakthrough” deal to give 12 weeks of paid parental leave to millions of federal workers as part of the annual defense policy bill.

Sen. Charles Schumer said the agreement over the National Defense Authorization Act was reached late Friday night and a vote is expected later this week. The establishment of President Donald Trump’s proposed Space Force is also included in the bill.

Trump administration officials have said Space Force is urgently needed to preserve U.S. dominance in space. A proposal from the Pentagon released earlier this year suggested the service would have about 15,000 personnel and begin in 2020. Space Force would reside within the Air Force, similar to how the Marine Corps exists within the Navy.

Read more here.

December 9, 2019 | Permalink | Comments (0)

US Supreme Court Rejects Challenge to Kentucky Abortion Law

From NBC News:

The Supreme Court on Monday left in place a Kentucky law, mandating doctors perform ultrasounds and show fetal images to patients before they can perform abortions.

The high court declined, without comment, to hear an appeal brought by the American Civil Liberties Union on behalf of the state's lone abortion clinic.

The Kentucky law, which requires a doctor to describe an ultrasound in detail while a pregnant woman hears the fetal heartbeat, was passed in 2017.

Read more here.

December 9, 2019 | Permalink | Comments (0)

Cohabitation and Marriage Trends

From Pew:

As marriage rates have declined, the share of U.S. adults who have ever lived with an unmarried partner has risen. Amid these changes, most Americans find it acceptable for unmarried couples to live together, even for those who don’t plan to get married, according to a new Pew Research Center study. Still, a narrow majority sees societal benefits in marriage. The study also explores the experiences of adults who are married and those who are living with a partner, finding that married adults express higher levels of relationship satisfaction and trust in their partner than do those who are cohabiting.

Read here the seven key findings from the report, including that a larger share of adults have cohabited than have been married.

December 9, 2019 | Permalink | Comments (0)

Sunday, December 8, 2019

Gen Z on Marriage

From the New York Times:

Have you ever wondered what Generation Z thinks about marriage? 

...

We asked students to give us their thoughts on marriage. Is it something they see themselves doing someday? The responses below discuss both the exciting and scary parts of marriage, and interrogate the meaning of the institution itself.

Read more here.

December 8, 2019 | Permalink | Comments (0)

Saturday, December 7, 2019

Review of "Marriage Story" Movie Now on Netflix

From the New Yorker:

Noah Baumbach’s new film, “Marriage Story” (currently in theatres, and coming to Netflix on December 6th), isn’t so much a story of a marriage as it is a story of stories—of the stories that are told about a marriage as it dies, the role of those stories in the lives of those who are soon to be exes, and, above all, the frameworks that give rise to those stories and prove to be inseparable from their substance. Baumbach’s prime strength as a director is his vision of talk as action. “Marriage Story” is his strongest film because it turns the very basis for that talk into a crucial part of the action—and it goes in surprising directions to reveal the personal importance of such talk and the high price (both literally and emotionally) that its protagonists pay to unleash it.

...

Charlie’s empathetic, humane lawyer, Bert (Alan Alda), explains the legal system of divorce to Charlie—it’s designed, he says, to protect poor and abused women from deadbeat husbands. And, though Nicole is far from poor and Charlie isn’t a deadbeat, what emerges is that she is, in a crucial way, abused—and that the circumstances of her marriage led her to feel not merely unhappy but voiceless. Nora and the legal system enable Nicole to tell her story seemingly for the first time. The system also weaponizes that story, turning it into an instrument of power. Part of that power involves the tailoring and reshaping of the story to satisfy the anticipated desires of the legal system, whether judges or court-appointed examiners. One key subplot involves Charlie’s clumsy effort to put on a show of fit parenthood for one such expert (played by Martha Kelly), and Nora’s effort to tailor Nicole’s personal narrative to satisfy the same expert. As part of that effort, Nora delivers a monologue regarding the excessive, unfair, and deeply ingrained expectations placed on mothers, a declaration of lucid observation and just anger that, at both screenings I’ve attended, was received in the theatre with applause.

Some of the best twists in the movie involve lawyerly battles (a third, played by Ray Liotta, is also involved). Avoiding spoilers: in the course of legal hearings, Nicole has the sense that her point of view, in Nora’s reshaping of it, is finally being heard by Charlie. Her view of him, of her life with him, of their marriage, is hitting home, wounding his pride, shattering his self-image, bursting his own veneer of amicability, and tapping into his own repressed torrent of frustrations. (He also vents his turmoil and confusion in a piano-bar rendition of Stephen Sondheim’s song “Being Alive”; Driver delivers the song in a few ardent long takes, which also sparked movie-house applause at both screenings.)

Read more here.

December 7, 2019 | Permalink | Comments (0)

Friday, December 6, 2019

Weddings Around the World

CBS is profiling weddings around the world, including the tiny weddings trend in the U.S. and a mixed-race couple in South Africa, in a short series available here.

December 6, 2019 | Permalink | Comments (0)

Thursday, December 5, 2019

Unlikely Friendship Between Obergefell and Hodges

From WOSU Public Media:

The landmark 2015 U.S. Supreme Court decision on "Obergefell v. Hodges" legalized same-sex marriage. In the case, Cincinnati real estate broker Jim Obergefell sued the state of Ohio for refusing to recognize his marriage to his husband John Arthur on Arthur’s death certificate after he died from ALS.

On the opposite side was Rick Hodges, who led the Ohio Department of Health and was designated as the defendant in the case. In this conversation for StoryCorps COLUMBUS, Obergefell sat down with Hodges to discuss the case and their resulting friendship.

The court case put Rick Hodges in an awkward position because even though it went against his personal values, he says he took an oath to defend the law.

"And I found it humorous, the the quandary I was in, because I did have an obligation to defend, but I hoped we lost," Hodges said.

Other than his name, Hodges had almost nothing to do with the long court battle.

"You were never in the courtroom," Obergefell said to Hodges. "You weren't even involved, really. You were just the name."

While the case didn't significantly affect the daily life of Hodges, it put Obergefel in the public spotlight after a very personal tragedy, the death of his husband.

Read more here.

December 5, 2019 | Permalink | Comments (0)

Wednesday, December 4, 2019

Tax Marriage Penalty Still in 2019

From CNBC:

If you tied the knot this year (or plan to this month), it’s worthwhile evaluating what getting married will mean for your 2019 tax situation. While many couples will see their taxes drop, some will face a “marriage penalty” — paying more than if they had remained unmarried and filed as single taxpayers.

In simple terms, the penalty comes into play when tax-bracket thresholds, and deductions or credits, are not double the amount allowed for single filers.

Read more here.

 

December 4, 2019 | Permalink | Comments (0)