Family Law Prof Blog

India: Child's Custody Issue

From Tribune News Service:

The Punjab and Haryana High Court has made it clear that a minor under five years of age may not be residing with mother, but custody will be deemed to be at the place where she is putting up and the matter will be heard there. The controversy was whether the family court at Panipat had territorial jurisdiction to entertain a petition instituted by a mother to seek her daughter’s custody.

The father’s claim was that the minor’s custody was with him and the family court where the minor child “ordinarily” resided would have territorial jurisdiction. In this case, the child was in her father’s physical custody at Jagadhri. Referring to Section 6, Justice Monga asserted that there was a legal presumption with regard to natural guardianship vis-a-vis a “minor’s person” and “minor’s property” in case of a child less than five years of age and both were in favor of the mother. Along with view from the Bench, the court states that a female child below five will naturally lie with mother and therefore, custody will be with mother even if actual custody is with the father.

Justice Monga observed that the respondent-mother, at the time of instituting proceedings in the family court, was the deemed natural guardian of the minor and therefore, natural custody would be presumed to be with the mother, regardless of the place where the child was actually residing physically at that time. Justice Monga also considered the welfare and convenience of the child.

Read more here.

Life Insurance in a Divorce

From The National Law Review:

When divorce cases do not settle, and a judge has to decide the issues of alimony and child support, the law governing support allows the judge to order life insurance to secure the obligation. Typically, life insurance is needed in order to make sure a parent has sufficient support for a child if child support is ended due to the other parent’s death.

Who gets the insurance? In the vast majority of cases, it is the surviving parent who is named as a trustee on behalf of the child or children. The amount of years the child will need support is also a factor. Another issue to consider is making sure the designation of a beneficiary on the life insurance forms is appropriate and makes sense. Alimony is most often secured by life insurance. Depending on how much and how long a payer is paying alimony, the life insurance amount will be calculated.

As the children grow older, the need for as much life insurance decreases. Many agreements have a provision that allows the insured to decrease the face amount of the policy as time goes on. Another issue that has to be considered is the age and health of the person paying support at the time the obligations are set.

Read more here.

Coercive Control

From the New York Times:

The Congresswoman Cori Bush and the musician FKA twigs describe how manipulative, isolating conduct known as “coercive control” helped trap them in abusive relationships. Lawmakers are starting to listen.

....

Days into her freshman term as a Democratic Congresswoman from Missouri, Ms. Bush, 44, emerged as a public force; as her first action, she introduced legislation to investigate and expel members of Congress who voted to overturn the election and supported the riot in the Capitol.

But even before she was sworn in, she shared her experiences as a survivor of domestic abuse, in hopes of reframing the issue. “I’ve allowed myself to be vulnerable about it,” she said in an interview last month, “because I feel like if we don’t normalize the conversation — people are still being hurt, especially right now, with Covid, and the lockdown,” when calls to support networks are spiking.

Ms. Bush’s candor comes as some state lawmakers, working with researchers, have begun to reshape the law to acknowledge that the controlling and isolating behaviors she cites, often referred to as “coercive control,” are not only steppingstones to violence, but can be criminally abusive in their own right. Activists hope that by broadening the definition of abuse, they can help victims reclaim their autonomy, and catch perpetrators before cases spiral toward hospitalization — or worse.

In September, California passed a law that allows coercive control behaviors, such as isolating partners, to be introduced as evidence of domestic violence in family court. That month, Hawaii became the first state to enact anti-coercive control legislation. The New York and Connecticut legislatures introduced similar laws.

Read more here.

Cahn: "Justice for the Menopause: A Research Agenda"

Naomi Cahn (UVA) has just posted to SSRN her article Justice for the Menopause: A Research Agenda.  Here is the abstract:

This short essay, prepared for a symposium on menstruation, is an initial effort to catalogue various legal approaches to menopause and to set out areas for further analysis. It argues for consideration of menopause in the movement for menstrual and gender justice. It briefly explores cultural images of menopause and post-menopausal women, including the ubiquitous hot flashes and a sexuality, analyzes potential legal claims based on age, sex, and disability for menopausal justice, and suggests the interrelationship between such approaches and social attitudes towards menopause, menstruation, and gender. It suggests that “normalizing” menopause, acknowledging its realities, is one means for removing the associated stigma and disabilities and might result in reinterpreting existing laws and future legal reforms.

Higdon: "If You Grant It, They Will Come: The Enduring Legal Legacy of Migratory Divorce"

Michael J. Higdon (Tennessee) has recently posted to SSRN his paper If You Grant It, They Will Come: The Enduring Legal Legacy of Migratory Divorce.  Here is the abstract:

Fifty years ago, California became the first state to enact no-fault divorce, making it easier than ever before for individuals to dissolve unsuccessful marriages. Soon every state would follow suit, and over the years much has been written about this national shift in the law of divorce. What has thus far escaped scrutiny, however, is one of the prime casualties of that switch—the phenomenon of migratory divorce. That failure is somewhat ironic given that, although no-fault divorce has existed for just over fifty years, migratory divorce played a prominent role in American legal history for well over a hundred years. Migratory divorce is the process through which people who lived in states where a divorce was difficult to obtain would temporarily relocate to another state—one with more liberal divorce laws—in order to satisfy that state’s domicil so as to obtain a divorce there. Divorce in hand, that person typically returned home to continue life as an unmarried person. Many states, however, opposed recognizing such divorces, giving rise to multiple Supreme Court opinions dealing with when a state is constitutionally required to recognize such a decree. Contemporaneous with that debate, a large number of Americans fiercely opposed the practice of migratory divorce altogether, fearing the impact it was having on the sanctity of marriage. As a result, there were a number of proposals over the years for dealing with the “problem,” primarily involving constitutional amendments and uniform laws. In light of this history, it is the position of this Article that the era of migratory divorce offers an invaluable resource for those studying not only the development, but also the continuing evolution of the American family law. Accordingly, this Article chronicles that legal phenomenon, offering detailed analysis of the various social, legal, and political influences that ultimately shaped this unique time in American history. The purpose in doing so is to, first, ensure that this fascinating period in American history is not forgotten, but more importantly, to distill the legal lessons this era gave rise to—lessons that are highly instructive to contemporary scholars, courts, and policy makers alike as they continue to wrestle with the emerging problems facing the law of domestic relations.

The Impact of Adoption on the Estate Planning

From JD Supra:

Under M.G.L. c. 190B, § 2-114 of the Massachusetts Uniform Probate Code (“MUPC”), an adopted child and the issue of an adopted child are treated as issue of the adopting parent for inheritance purposes. This means that an adopted child (and issue) will typically be treated in the same manner as the biological children (and issue) of the adopting parent. In addition, it is now standard practice in estate planning documents to include a provision stating that the definition of “issue” includes descendants by blood and descendants by adoption.

An issue frequently arises, however, where a stepparent has not formally adopted a stepchild.  Massachusetts does not recognize the concept of “equitable adoption,” which could otherwise result in such a stepchild having certain rights without having been legally adopted. 

When it comes to blended families, the best way to ensure that your intentions are reflected in your estate planning documents is to meet with an experienced estate planning attorney. 

Read more here.

 

Coronavirus Health Plan Decision: Co-Parenting Issue

From People:

Co-parenting in the time of COVID-19 brings extreme challenges. In addition to remote learning, economic changes and shelter-in-place orders, children of separated families also need to move between households — often with different COVID rules. That's why it's important for co-parents to communicate about protecting their children's health.

In Professor of Psychology Goldberg's research, "parents sometimes depicted their exes as anti-science and 'anti-vaxxers' and as endorsing theories regarding COVID-19 as a hoax or conspiracy," Goldberg says. "One mom said, 'I will almost certainly have to take him to court to be able to vaccinate [my child].' "

"When parents are unable to discuss hot issues without arguing, it is especially important to play nice," Sarah Bennett, says managing attorney at Sodoma Law North. She suggests that "a written record is crucial evidence if parents ultimately end up in court or mediation. "

Parents need to act quickly if they anticipate a problem with vaccination plans as going to court is costly and sometimes unnecessary to provide a solution to parents.

Read more here.

Bay Area: Spike in Domestic Relationship Issues as Pandemic Continues

From abc7News:

SAN FRANCISCO (KGO) -- The longer the pandemic stretches, the more strain it's putting on relationships. Attorneys are seeing a spike in consultations and divorce filings.

10 months into pandemic have adversely affected domestic relationships among couples. "The consultations have increased at least by 50% if not more. I would say the amount of clients who retain and file for divorce have increased by a third," said James Hoover of the Hoover Krepelka family law firm in San Jose.

Many couples do not know when and how to get help with their domestic relationship issues and counseling is often forgotten. The Hoover Krepelka law firm says requests for restraining orders are rising. However, counseling is also encouraged.

Read more here.

Jobs Report Shows Significant Gender Gap: Analysis

From The Hill:

Women lost 156,000 jobs in the month of December while men gained 16,000 jobs, underscoring how the pandemic-fueled rise in unemployment is disproportionately hitting women. 

An analysis from the National Women's Law Center shows that women essentially accounted for the 140,000 lost jobs the economy recorded in December. It's the first time the economy has shed jobs since the height of the pandemic. 

Women have also lost the majority of the net 9.8 million jobs lost since February, just before the beginning of the coronavirus pandemic.

Read more here.

CHINS Filings Stabilize After Surge in Recent Years

From The Indiana Lawyer:

Filings for child in need of services and termination of parental rights cases have swung in opposite directions in the past few years, according to statistics released recently by the Indiana Supreme Court.

The 2019 Judicial Service Report: Judicial Year in Review details updated figures on Indiana’s CHINS and TPR filings during the past five years, revealing that CHINS case filings decreased 11.5% in 2019 alone following a slow drop from an unprecedented surge of filings in 2016 and 2017.

The decrease in CHINS filings since 2015 is encouraging to Andrea Marsh, CHINS and TPR supervising public defender of the Marion County Public Defender Agency.

In the past five years, Marsh said that the Indiana Court of Appeals has offered additional guidance about factors that do not constitute a CHINS case and circumstances that shouldn’t lead to termination of parental rights. Certain categories of CHINS cases rarely come across Marsh’s desk anymore, which she thinks is attributable to federal leadership and calls from DCS director Terry Stigdon to not conflate poverty with neglect.

Read more here.

Biden, Harris Announce Formation of White House Gender Policy Council

From The Hill:

President-elect Biden and Vice President-elect Kamala Harris on Tuesday announced the formation of a White House Gender Policy Council, an effort they said will be aimed at advancing the country toward gender equality as their administration works to build the “nation back better.”

The Biden-Harris transition team said in the announcement that the council will be co-chaired by Jennifer Klein, chief strategy and policy officer at TIME’S UP, and Julissa Reynoso, the incoming assistant to the president and chief of staff to Dr. Jill Biden who also previously served as the U.S. ambassador to Uruguay under former President Obama. 

The transition team said the council will help guide and “coordinate government policy that impacts women and girls” across a variety of issues, including racial justice and economic security, and work in cooperation with other White House policy councils.

Read more here.

How Divorce Harms Kids, and How to Lessen That Harm

From Health Day:

Kids who see their parents bicker during a separation or divorce are more likely to develop a fear of abandonment, new research warns.

"We found that exposure to conflict predicted children's fear that they would be abandoned by one or both parents," said lead author Karey O'Hara, an assistant research professor of psychology at Arizona State University in Tempe. "In turn, children who reported higher fear of abandonment were more likely to report more mental health problems 11 months later," based on interviews with both the kids and their teachers.

Still, parents can do something about it: Just don't argue and fight in front of the kids, O'Hara urged.

"It is also important for parents to make sure that their children know that although they are separated or divorced, they will continue to care for them, to quell any fears of abandonment that the child might have," O'Hara said.

Read more here. 

Israeli Couples Marrying in Utah Virtually

From the Salt Lake Tribune:

The phones at the Utah County clerk’s office just keep ringing, many of the calls coming from those seeking marriage licenses. While that may not be surprising, given the county’s reputation as a haven for big families, there’s a twist.

 

A number of the calls are coming from Israel. In fact, between Dec. 28 and Jan. 13, the county issued 62 licenses to Israeli couples. About a third of the 474 marriage licenses that were issued during the same period were to couples outside of Utah.

 

The county has seen increased demand for its online marriage certificate services after the recent recognition of a handful of remotely issued Utah certificates by the Israeli government.

 

The move is monumental for Israel, which does not permit civil marriages within the country. In the past, couples who did not want or could not be married in a religious ceremony, such as those who are LGBTQ, interfaith or nonreligious couples, have had to travel outside of the country to be married civilly before bringing back their civil marriage license to register with Israeli officials. The pandemic, of course, severely limited couples’ ability to travel outside of Israel for such marriages.

 

Utah County’s marriage system offered a loophole. The entire process — from applying for a license to saying “I do” and receiving a marriage certificate — can be done online. In fact, couples don’t even need to be physically together for the ceremony as long as a Utah officiant can see and hear both of them over video call.

Read more here.

Litigating COVID-19 Vaccines in the Family Law Context

From JD Supra:

In joint legal custody, neither parent has legal custody rights superior to the other parent, which creates stalemates when the parties are unable to compromise.

When an impasse arises, such as whether the child should be vaccinated, what is the correct course of action? The Iowa Court of Appeals recently acknowledged this dilemma in In Re Marriage of Rigdon, 2020 WL 7868234 (Iowa Ct. App., Dec. 16, 2020). In Rigdon, the parents disputed whether their child should be administered psychotropic medicine. After failing to reach an agreement, the custodial parent proceeded with allowing the child to take the medicine. In response, the non-custodial parent filed a contempt action alleging the custodial parent violated his joint legal custody rights.

In Rigdon, the Iowa Court of Appeals suggested that the better course of action may have been for the court to decide the dispute before any further action was taken.

Read more here.

Family Trends

From Naomi Cahn (UVA), writing for Forbes:

Chances are that, like me, you know someone who has postponed their wedding. Or someone who has left her job because she can’t find child care during the pandemic. Or mothers who are home-schooling their children.

The pandemic has had a profound effect on the family, and that, in turn has had a profound effect on the economy. As the US Census reported, women were more than twice as likely as men not to be working because of pandemic-related child care issues. Women lost 156,000 jobs in December, while men’s jobs increased. And 2.1 million women have left the labor market entirely.   There are predictions that the pandemic may set women back in the workplace by at least 10 years. 

The pandemic is having other effects on the family. First,  even prior to the pandemic, marriage and divorce rates were dropping. 

...

And it appears that the pandemic has resulted in declining rates of both planned and unplanned pregnancies – although you might think otherwise with the bumper crop of celebrity pregnancies. 

The reasons for all of these demographic changes may be the same: lack of economic resources and financial insecurity due to the pandemic (not an issue for the celebrities expecting babies). One reason that people delay marriage or decide not to marry is they feel they have not yet achieved the necessary economic security they view as critical to having a stable marriage, notes Linda McClain, the Robert Kent Professor of Law at Boston University.  The average wedding costs nearly $34,000, points out Professor Amanda Miller, an expert in family and sociology and Chair of the Department of Sociology at the University of Indianapolis.

Plus, divorce can be expensive. It’s not just a question of paying the lawyers, but two households cost more than one. While divorce rates have been consistently low for college- educated couples,  for those most likely to have lost their jobs during the current pandemic, current divorce rates may be artificially low, according to Professor Miller. Couples may wish to split up, but not be able to afford to do so right now.  

And there is another hopeful sign: the number of engagements is increasing, with jewelry ring sales rising.  But that is not a surprise to Professor Miller, because “getting engaged can be low cost- certainly much cheaper than having a baby or getting divorced.” As she notes, a ring is a one-time cost, so a stimulus check or bonus for front-line workers might help pay for that.

And, she adds, it’s unclear whether this will result in a flood of weddings (and divorces and babies) post-pandemic. While individuals may be excited to move forward with life events post-COVID-19, having postponed these events for so long may change how people feel about them. Ultimately, she predicts, given the economic downturn that women, in particular, have experienced recently, we might expect the current trends (increased engagements but decreased/delayed childbearing, marriage, and divorce) to continue.

Read more here.

 

Simpsons Family Life Unattainable

From the Atlantic:

The most famous dysfunctional family of 1990s television enjoyed, by today’s standards, an almost dreamily secure existence that now seems out of reach for all too many Americans. I refer, of course, to the Simpsons. Homer, a high-school graduate whose union job at the nuclear-power plant required little technical skill, supported a family of five. A home, a car, food, regular doctor’s appointments, and enough left over for plenty of beer at the local bar were all attainable on a single working-class salary. Bart might have had to find $1,000 for the family to go to England, but he didn’t have to worry that his parents would lose their home.

This lifestyle was not fantastical in the slightest—nothing, for example, like the ridiculously large Manhattan apartments in Friends. On the contrary, the Simpsons used to be quite ordinary—they were a lot like my Michigan working-class family in the 1990s.

The 1996 episode “Much Apu About Nothing” shows Homer’s paycheck. He grosses $479.60 per week, making his annual income about $25,000. My parents’ paychecks in the mid-’90s were similar. So were their educational backgrounds. My father had a two-year degree from the local community college, which he paid for while working nights; my mother had no education beyond high school. Until my parents’ divorce, we were a family of three living primarily on my mother’s salary as a physician’s receptionist, a working-class job like Homer’s.

By 1990—the year my father turned 36 and my mother 34—they were divorced. And significantly, they were both homeowners—an enormous feat for two newly single people.

Read more here.

Pandemic's Impact on Children

From the New York Times:

Since March, according to data from the Centers for Disease Control and Prevention, there has been a 24 percent spike nationwide in mental-health-related emergency room visits among children between the ages of 5 and 11, and a 31 percent rise among those between 12 and 17, compared with the same period last year.

While most children should bounce back from isolation and remote learning, childhood development experts said, those growing up amid other adversities like domestic violence, abuse and poverty are struggling to cope with the turmoils of the pandemic — and face greater obstacles in recovering.

“It’s not just the virus that is the problem,” said Alicia Lieberman, director of the Child Trauma Research Program at the University of California, San Francisco, which works annually with about 400 Bay Area children under the age of 6 who have experienced multiple forms of trauma.

Nearly all of the children are Black, Latino or mixed-race, and since the pandemic hit, she said, the program has seen “huge increases” in sleeping problems, nightmares and aggression among the youngsters, as well as bed-wetting among those who had previously grown out of it.

“There’s no question that it’s because they’re already dealing with trauma,” she said, and the virus “becomes one more source of uncontrollable danger.” 

Read more here.

Family Investment Gifts

From Tech Crunch:

A new fintech startup called EarlyBird wants to help families invest in their children’s financial futures. Through the EarlyBird  mobile app, parents in just a few minutes can create a custodial account, also known as a UGMA (Uniform Gifts to Minors Act) account. These accounts typically allow a parent, aka the “custodian,” to invest in stocks, bonds, mutual funds and other securities on behalf of the minor child. When the child comes of legal adult age, the investments become theirs.

Through the app, parents can set up an account for their child, then invite other family members and close friends to contribute.

The idea is not so different, in spirit at least, from something like HoneyFund, where newlyweds ask loved ones for cash donations instead of physical gifts. Similarly, EarlyBird offers an alternative to giving a child toys and more “stuff,” by inviting family and friends to donate money. Except in EarlyBird’s case, it’s not asking for straight cash donations — this is not some glorified crowdfunding platform, after all — it’s enabling investments.

Specifically, EarlyBird aims to make it easier and less confusing for parents to establish custodial accounts. It’s not the first fintech to do so — Stash and Acorns, for example, also offer this.

EarlyBird, however, aims to combine the investment account itself with a platform that allows for social features and a gifting experience. The idea is to make the act of donating to the account feel more like a real gift — unlike the gift of a check or some cash tucked into a greeting card.

Read more here.

Symposium Today

Symposium on COVID Care Crisis

From Law.com:

It’s not easy to teach from home while also caring for kids whose schools have gone remote. And that law review article you want to finish? Good luck finding time for that.

The COVID-19 pandemic has presented no shortage of challenges for legal academics, and an upcoming virtual symposium explores how those burdens have been especially onerous for women and are likely to carry long-term career implications. The free Symposium on the COVID Care Crisis and its Implications for Legal Academia takes place Thursday and Friday, and was the brainchild of Florida International University law professor Cyra Choudhury, Thomas Jefferson law professor Meera Deo, and Indiana University professor Shruti Rana.

Law.com caught up with Choudhury to discuss why women are struggling more than men to balance work and family, and how the legal academy can help ensure women don’t fall behind. Her answers have been edited for length.

How did this idea for the symposium come about?

A number of us had been noticing the impact of the COVID pandemic on women, very early on. Last year, around June, I started noticing in my social media feeds women complaining about the pressure of isolation, quarantine and the lockdown orders. I’m a family law scholar. I spend a lot of time looking at families and what impacts them. I’m a feminist legal scholar too so this was of real interest to me. It’s odd because I don’t have children so I’m not in the same position. But a few months into the pandemic people were feeling the stress and pressure. [Meera Deo] and I were tweeting with each other about these issues. At that point, one of us suggested, “We need to do something to bring to light that this is going to be an issue downstream.” We had noticed that women scholars in other disciplines were having a hard time producing scholarship and meeting all their work obligations. We started working on a letter to law reviews alerting them that they were going to see a drop-off in submissions from women. We sent it out to a majority of law reviews telling them, basically, “This is the crisis.”

Scholarly output is one way to gauge the impact of the COVID child care crisis. What were some of the other concerns you were seeing surface from women legal academics as the pandemic set it?

Concretely, the child care burden. This quickly turned into having to juggle work from home and 24/7 child care at home when schools started shutting down. That was the most obvious stressor for most people, and it continues to be. We have no child care outside the home, so parents are having to not just meet their work obligations. We see overlaps: people taking Zoom calls while trying to supervise their kids at their learning, in the same physical and temporal space. And there is just the mental stress of COVID—if you came down with it, that adds an additional burden.

You received a robust response after you put out a call for papers on this topic. Did that surprise you?

We knew this was something we had to think about and we had to theorize, document, etc. We didn’t do it unthinkingly. When we put out the call, someone said, “This is odd that you are asking people to write about not being able to write.” Not everyone is in the position of being so stretched that they can’t produce something. On top of that, we made it very easy. We got a very positive response. We didn’t want to turn people down, so we tried to slot in as many people as we could. We expanded [the symposium] to two days. We were surprised at people’s willingness to do some work on this. We were gratified that people wanted to talk about this, because it’s impacting them personally. For many people, what they’re writing about is really personal experiences.

Read more here.