Family Law Prof Blog

Mixed Vaxxed Couples

From the New York Times:

Holly Elgison and Len Schillaci are a mixed vaxxed couple, and they are far from alone.

“I was always going to get the vaccine, 100 percent,” said Ms. Elgison, a medical claims auditor in Valrico, Fla.

Her husband, a disaster insurance adjuster, said he will pass. “To be honest with you, I think that the worst of Covid is behind us,” Mr. Schillaci said. “I’m good.”

As the Biden administration seeks to get 80 percent of adult Americans immunized by summer, the continuing reluctance of men to get a shot could impede that goal.

Women are getting vaccinated at a far higher rate — about 10 percentage points — than men, even though the male-female divide is roughly even in the nation’s overall population. The trend is worrisome to many, especially as vaccination rates have dipped a bit recently.

The reasons for the U.S. gender gap are many, reflecting the role of women in specific occupations that received early vaccine priority, political and cultural differences and long standing patterns of women embracing preventive care more often generally than men.

The gap exists even as Covid-19 deaths worldwide have been about 2.4 times higher for men than among women. And the division elucidates the reality of women’s disproportionate role in caring for others in American society.

“It could matter to localized herd immunity,” said Alison Buttenheim, an associate professor of nursing at the University of Pennsylvania and expert on vaccine hesitancy. “While most experts are fretting about larger gaps by race, political party, religion and occupational group,” she said, many of which overlap with the gender disparities, “I haven’t heard of any specific initiatives to target men.”

Read more here.

Swiss Referendum on Same-Sex Marriage

From the Guardian:

Switzerland will hold a referendum on whether to push ahead with same-sex marriage after opponents forced the government to hold a binding vote on a 2020 law allowing gay couples to marry.

The Swiss parliament passed a bill recognising same-sex marriage last December, several years after most other western European states.

On Tuesday, the country’s federal chancellery announced that critics of the law had gathered 61,027 valid signatures in favour of putting the matter to a national vote.

Under Switzerland’s system of direct democracy, members of the public can veto parliamentary decisions via a referendum if they manage to collect 50,000 valid signatures within 100 days of the official publication of the act.

Read more here.

Parentage in Throuple

From CBC:

A British Columbia Supreme Court judge has ordered that all three members of a polyamorous "triad" should be registered as parents of the two-and-a-half-year-old boy they are raising together as a family.

In a decision released Monday, Justice Sandra Wilkinson said a "gap" in the provincial law dealing with parentage of children prevented a woman known as Olivia from being legally recognized as the mother of the child she considers her son.

Olivia has been in a romantic relationship with Bill and Eliza since 2016, two years before Eliza gave birth to Clarke, the baby fathered by Bill. The parties have been anonymized by an order of the court.

But because Clarke was conceived through sexual intercourse, B.C.'s Family Law Act left no room on his birth certificate for anyone but a birth mother and a "presumed" biological father.

Read more here.

Care as Infrastructure

From NPR:

Congressional Democrats are further expanding the definition of infrastructure with a plan to provide paid leave and family benefits for the vast majority of Americans.

Democrats are specifically calling the proposal "care infrastructure," adding to a party-wide push to redefine infrastructure beyond physical projects like roads, bridges and waterways. Republicans have almost universally rejected this rebranding, but Democrats insist that infrastructure should refer to all of the systems that contribute to a thriving economy.

House Ways and Means Committee Chairman Richard Neal, D-Mass., is leading the effort along with members of the committee, which is responsible for health care, Social Security and taxes.

Read more here.

Biden's American Family Plan

From the New York Times:

The president will lay out the full proposal, which he calls the American Family Plan, next week. It will include about $1.5 trillion in new spending and tax credits meant to fight poverty, reduce child care costs for families, make prekindergarten and community college free to all, and establish a national paid leave program, according to people familiar with the proposal. It is not yet final and could change before next week.

Read more here.

Abortion Restrictions Proliferating

From Reuters:

Idaho has become the latest Republican-led state to pass a "fetal heartbeat" law, prohibiting abortions after five or six weeks of pregnancy except in medical emergencies or in cases of rape or incest.

The law, signed by Republican Governor Brad Little on Tuesday, follows a wave of similar legislation passed by states aiming to prompt a review of the 1973 U.S. Supreme Court ruling Roe v. Wade, which guarantees a woman's constitutional right to an abortion.

Also on Tuesday, Arizona passed a law banning abortions performed strictly on the basis of genetic disorders detected in the fetus, such as Down syndrome or cystic fibrosis, unless the condition is considered lethal.

Read more here.

China Emphasizing Family

From the Wall Street Journal:

Under Xi Jinping, the Communist Party has brought back talk of family values and women’s importance as caretakers, messages that many women say are out of step with their thinking on when—or even whether—to marry.

The party has long prided itself on promoting gender equality, but also demands that households follow its priorities of the moment. The emphasis on women’s role in educating children and caring for the elderly comes as birth and marriage rates drop, trends that may have dire economic consequences.

In the early years of Communist rule, Mao Zedong urged women to join the workforce to help build the nation and to hold off on marrying and having children. Later came edicts that couples could have only one child to avoid runaway population growth.

During Mr. Xi’s time in power, new party slogans emphasizing “family, family education and family virtues” or “pass on the red gene” have been coupled with efforts to censor voices on women's rights.

Read more here.

Abortion Pills Allowed By Mail During COVID-19

From the New York Times:

The Biden administration has decided to allow women to receive abortion pills by mail for the duration of the coronavirus pandemic, the latest development in an issue that has increasingly taken center stage in the American abortion debate.

In a letter sent...to two leading organizations representing reproductive health physicians, the acting commissioner of the Food and Drug Administration said that the agency would temporarily stop enforcing its requirement that the first of two drugs needed to terminate an early pregnancy be dispensed in a medical clinic.

The new policy counters a Supreme Court decision in January that sided with the Trump administration, which had appealed a federal judge’s decision last July to suspend the requirement. The judge had argued that the requirement put women at risk during the pandemic because they would need to visit clinics in person and often travel significant distances to do so.

Abortion through medication, first approved by the F.D.A. in 2000, is increasingly becoming women’s preferred method for terminating a pregnancy. As of 2017, research estimated that about 60 percent of abortion patients early enough in pregnancy to be eligible — 10 weeks pregnant or less — chose medication abortion over suction or surgery.

But the F.D.A. requires that the first drug in the two-medication regimen, mifepristone, be dispensed in clinics or hospitals by specially certified doctors or other medical providers. For years, reproductive health experts have urged that the requirement be lifted on the grounds that there are no significant safety reasons for in-person dispensing of a pill that women are then legally allowed to take on their own in any location, and that the restriction places the greatest burden on low-income women and those in areas with limited access to abortion providers.

For several years, with the F.D.A.’s permission, researchers have been conducting a study that provides telemedicine consultations to women seeking abortions and mails them the pills. Their research has found the approach to be safe and effective.

Read more here.

Call for Papers

Dear Law Professors and Legal Practitioners,

As the Associate Executive Editor of Articles for the Journal of Gender, Social Policy, & the Law, I am delighted to inform you we are currently accepting article submissions for publication in our upcoming issues. The latest Washington and Lee Law Review rankings list the American University Journal of Gender, Social Policy, & the Law as one of the top-cited legal periodicals in the U.S. and selected non-U.S. regions in the subject area of Social Policy, Gender, Sexuality and the Law. 

You can submit your article for consideration by email to [email protected], or through Scholastica. The Journal accepts submissions on a wide variety of topics and subjects within the legal field. We are interested in topics about disability law, racial justice and the law, constitutional issues, gender-based legal issues, health law, LGBTQIA+ issues within the legal system, and other related topics. To see our past publications, please visit http://www.jgspl.org/ and Westlaw for a complete list. 

However, please note we do not accept articles written by law students. We look for articles that present new legal arguments or perspectives about timely legal issues relating to U.S. laws directly or comparatively. There should also be substantial legal analysis throughout the piece. We prefer 15,000 words more or less, including at least 150 footnotes. Generally, we evaluate articles depending on many factors such as the strength of the argument, novelty, complexity, policy considerations, and whether the overall topic(s) falls within the Journal’s subject area.

We look forward to receiving your article submission.

Married for the Time Off

From the New York Times:

In Taiwan, one of the few places in the world to offer marriage leave to couples heading to the altar, a bank employee wed his partner on April 6, 2020.

They got divorced days later, on April 16.

Then they remarried the following day.

Another divorce and a third marriage followed on April 28 and April 29.

After a third divorce, on May 11, they got married for the fourth time, on May 12.

It was all a plot to take advantage of the self-governing island’s time-off policy for couples who get married — eight days of leave — the man’s employer, a bank in Taipei, said in public records.

The bank refused to approve the man’s application for paid time off beyond the mandated eight days for his first marriage. That prompted him to lodge a complaint with the Labor Department for violations of leave entitlements. The bank was fined $700 last October, but appealed the penalty in February, claiming that the employee had abused his rights.

Read more here.

 

Treuthart: "Marriage Story: A Tale of Divorce, Love...and the Law"

Mary Pat Treuthart, has recently posted to SSRN her article Marriage Story: A Tale of Divorce, Love...and the Law, 45 J. Legal Pro. 65 (2020).  Here is the abstract:

Noah Baumbach’s 2019 narrative feature film Marriage Story, with its nuanced capture of a relationship’s dissolution and the impact on the inter-generational family members, has generated much commentary from lawyers and other professionals. Using Marriage Story as a primary framing device, this article examines the lessons that we can learn as educators, scholars, and practitioners from this celluloid depiction of the legal and emotional aspects of divorce and child custody proceedings, the role of family lawyers and other professionals, their concomitant ethical responsibilities, and the use of appropriate dispute resolution processes.

Interview: Migrant Children Tell Their Stores in 'Hear My Voice'

From NPR:

A Picture Book About Children At The Border Aims To Spark Family Conversations.

In June 2019, attorney Warren Binford traveled to the U.S. Customs and Border Protection facility in Clint, Texas.

She ended up interviewing dozens of children over a few days, and gathered stories so shocking — of hungry, cold and sick children sleeping on concrete floors under Mylar blankets — that they became international news.

Hear My Voice/Escucha Mi Voz, published in both English and Spanish, features excerpts of the testimonies, paired with art by award-winning illustrators who are Latinx.

Binford is hoping that Hear My Voice/Escucha Mi Voz will be suitable for families to read and talk about together.

In March, the number of migrants encountered at the U.S.-Mexico border hit a 15-year high, according to NPR's reporting. That included nearly 19,000 children and teenagers traveling without a parent — double the levels from February and the most ever in a single month.

She says the purpose is to center the narrative back on the people most directly affected — the children.

Read more here.

Denial of Grandparental Visitation Reversed in ‘Unusual Circumstances’

From The Indiana Lawyer:

Ruling in a case presenting “somewhat unusual circumstances,” the Indiana Court of Appeals reversed the denial of a petition for grandparent visitation, finding the trial court had erred in determining the visitation would not be in the granddaughter’s best interests. The appeals court remanded for proceedings to establish a grandparent visitation order in the case.

J.I. is an 18-month-old whose mother consented to her adoption by the child’s aunt, Jessica McVey, after the Department of Child Services determined the baby was a child in need of services due to mother’s drug abuse problems. 

“While McVey is J.I.’s caretaker, she is not her legal parent. And even assuming that relevant documents have been filed to begin the adoption process, McVey has no fundamental right with respect to J.I. at this time because no adoption has occurred,” Altice wrote. “Our statutes contemplate that it is the trial court’s duty to determine what is in the best interests of a child, as Grandparents are at risk of losing all rights and visitation with J.I. if the adoption occurs."

Read more here.

Clinic Releases Report on Preserving Parental Rights for Incarcerated Parents

From Yale Law School:

Connecticut Voices for Children (CT Voices) and the Criminal Justice Advocacy Clinic of the Jerome N. Frank Legal Services Organization at Yale Law School (CJAC) released a report on March 12, 2021 that examines the collateral consequences of the Adoption and Safe Families Act on children with incarcerated parents.

The report, “Incarcerated Parents and Termination of Parental Rights in Connecticut: Recommendations for Reform,” examines the unintended impacts of the Adoption and Safe Families Act (ASFA), a federal law passed in 1997 that shifted the goal of child-protection policy from family preservation to adoption, and outlines recommendations to protect parental rights and promote the welfare of children with incarcerated parents.

“As it stands, the Adoption and Safe Families Act can unintentionally cause harm to children and families with incarcerated parents,” said Emily Byrne, Executive Director of Connecticut Voices for Children. “It is well within the power of the state to implement exceptions to the ASFA guidelines that would benefit the well-being of children and protect the rights of incarcerated parents; attention to this matter is even especially important during the pandemic.

By statute, judges must consider the parent’s “degree of personal rehabilitation” and “[t]he extent to which the parent has maintained contact with the child, including visitations, communications, or contributions.”

This presents unique challenges for incarcerated parents who often face barriers to maintaining contact including, but not limited to: the distance that many parents are incarcerated from their homes; the cost of visiting; the cost of phone calls; and the frequent relocation of children in foster care. According to the Marshall Project, from 2006–2019, at least 32,000 incarcerated parents’ parental rights have been terminated nationally, with approximately 5,000 seemingly on the basis of their incarceration alone.

Read more here.

Helping Young Women in the Juvenile Justice System Avoid Violent Relationships

From The Boston Globe:

Lifespan researcher and Northeastern professor Dr. Christie Rizzo developed the Date SMART program, which. uses techniques to help teens build skills necessary for healthy relationships. 

The Date SMART program is designed to reduce both dating violence and sexual risk behaviors among adolescent females. The program is unique in that it uses cognitive-behavioral therapy techniques to help teens build skills that research has shown are necessary for healthy relationships. These include strategies for managing emotions, communicating effectively, selecting healthy partners, and reducing mental health symptoms such as depression.

The current study is a randomized controlled trial comparing the Date SMART program to an educational program focused on health. Two-hundred and fifty girls involved with the Rhode Island Family Court participated in the study and were followed for one year to assess changes in dating violence, delinquency, and sexual risk taking.

Studies suggest that about half of females in the juvenile justice system have histories of serious physical or sexual violence in dating relationships. We also know that these young women often possess other risk factors such as exposure to childhood adversity and experiences with mental health symptoms that may be linked to their dating violence experiences.

Read more here.

Decision Strikes Key Parts of Native American Adoptions Law

From Associated Press:

Parts of a federal law giving Native American families preference in the adoption of Native American children were effectively struck down Tuesday by a sharply divided federal appeals court, a defeat for tribal leaders who said the 1978 law was important to protecting their families and culture.

The complex ruling from 16 judges of the 5th U.S. Circuit Court of Appeals upholds a lower court’s finding that the Indian Child Welfare Act’s preferences for Native American families or licensed “Indian foster homes” violate constitutional equal protection requirements.

It also said some of the provisions of the law “unconstitutionally commandeer” state officials’ duties in adoption matters.

The 1978 law has long been championed by Native American leaders as a means of preserving Native American families and culture.

Opponents of the law include non-Native families who have tried to adopt American Indian children in emotional legal cases.

The case could wind up at the Supreme Court.

Read more here.

Cahn: "CRISPR Parents and Informed Consent"

Naomi Cahn (UVA) recently posted to SSRN her article CRISPR Parents and Informed Consent, 23 SMU Science & Technology Law Review 3 (2020).  Here is the abstract:

Clustered Regularly Interspaced Short Palindromic Repeat Associated System (CRISPR-Cas9) is evolving as a multi-faceted technology that can help in finding cures for rare diseases, as well as creating babies with geneedited cells. Yet, along with complex ethical questions, it also raises legal issues in numerous areas, from intellectual property to health to family law, and it has been the subject of philosophers, ethicists, scientists, as well as legal scholars.

The focus in this article is at the intersection of family law and health law. The argument assumes that CRISPR will be used (black market or otherwise), and focuses on the rights of parents to make decisions about health care for their children and the subsequent consequences for children. It argues for responsible use by parents, which, in turn, requires responsibility from health care providers in obtaining informed consent and an understanding from the parents concerning any procedures used. The two issues at the core of this article are parents' rights to make decisions concerning their potential children, and the need for informed consent to support parental choices.

The mere possibility of using CRISPR-Cas9 may have a profound change on how parents and the medical profession address preconception and prenatal intervention. Might doctors try to override decisions of parents? Can doctors override that type of decision based on the child's best interests? Might parents choose--or not choose--genetic enhancements just because they can, or because of expectations of what constitutes a good parent? Might children sue their parents for not having used CRISPR-Cas9? There has been some attention given to children's rights to sue providers for illnesses relating to medical involvement, but this article suggests that the real issues center on parents for choosing to engage in and risk their children's future health on a newly developing technology, and on health care providers for ensuring adequate understanding of the technology. The fear, now with a strong basis based on actual experiences, is that the technology will be used in practice before it has been well-validated for clinical use, and thus produce unexpected, and adverse, outcomes for any resulting children.

It is yet another example of a technology that has outpaced regulation. As CRISPR--and any other germline editing techniques--move forward, patients' rights to make informed decisions should be accorded significant attention and protection.

A Road-Tripping Feminist in China

From the NYT:

She spends each night alone, curled up in a four-and-a-half by eight-foot rooftop tent, balanced on stilts above her car. She often eats her meals in parking lots. She has seen her daughter and grandchildren only once in the past six months, and her husband not at all.

Su Min, a 56-year-old retiree from Henan Province in central China, has never been happier.

“I’ve been a wife, a mother and a grandmother,” Ms. Su said. “I came out this time to find myself.”

After fulfilling her family’s expectations of dutiful Chinese womanhood, Ms. Su is embracing a new identity: fearless road-tripper and internet sensation. For six months, she has been on a solo drive across China, documenting her journey for more than 1.35 million followers across several social media platforms.

Her main appeal is not the scenic vistas she captures, though those are plentiful. It is the intimate revelations she mixes in with them, about her abusive marriage, dissatisfaction with domestic life and newfound freedom. Her blunt but vulnerable demeanor has made Ms. Su — a former factory worker with a high school education — an accidental feminist icon of a sort rarely seen in China.

Older women send her messages about how painfully familiar her story feels, and greet her at each destination bearing fruit and home-cooked meals. For younger women, she is a font of advice about marriage and child-rearing. “I wish my mother could be like Auntie Su and live for herself, instead of being trapped and locked in by life,” read a comment on one of her videos.

Her unexpected popularity speaks to the collision of two major forces in Chinese society: the rapid spread of the internet, and a flourishing awareness of gender equality in a country where traditional gender roles are still deeply rooted, especially among older generations.

Read more here.

The Existence of Child Abuse Makes Child Custody Issues Harder to Decide

From CBS Denver:

Domestic violence survivors say their children are being put at risk by courts who don’t understand the impact of abuse on kids. They’re fighting for a bill that would change how child custody battles are decided. In many cases, courts award joint custody even when there is evidence of abuse.

Rep. Meg Froelich introduced a bill that would require training on an ongoing basis and make abuse the first consideration when awarding custody.

Those opposed to the bill argue just because someone is a bad spouse doesn’t make that person a bad parent. They insist kids need both parents and shared custody is what’s best for the kids.

Read more here.

New Mexico: Family Tax Credit

From Buffalo News:

Gov. Michelle Lujan Grisham on Tuesday signed into law a measure that supporters are billing as the most progressive shift in the state’s tax structure in years.

As for the Low-Income Comprehensive Tax Rebate, the new law will increase that up to $730, depending on income and family size. The previous maximum was $450.

The purpose, according to the Governor, is to lift more families out of poverty and strengthen the safety net for the most vulnerable people in our community under the anti-poverty efforts.

Read more here.