Family Law Prof Blog

Court allows parents to opt their children out of school lessons involving LGBTQ+ themes Amy Howe's Headshot

From SCOTUS Blog:

The Supreme Court on Friday ruled that a group of Maryland parents have a right to opt their elementary-school-aged children out of instruction that includes LGBTQ+ themes. By a vote of 6-3, the justices agreed with the parents – who are Muslim, Catholic, and Ukrainian Orthodox – that the Montgomery County school board’s refusal to provide them with that option violates their constitutional right to freely exercise their religion. 

Writing for the majority, Justice Samuel Alito acknowledged that “courts are not school boards or legislatures, and are ill-equipped to determine the ‘necessity’ of discrete aspects of a State’s program of compulsory education.” But he emphasized that “what the parents seek here is not the right to micromanage the public school curriculum, but rather to have their children opt out of a particular educational requirement that burdens their well-established right ‘to direct ‘the religious upbringing’ of their children’” under  the free exercise clause of the First Amendment. 

Justice Sonia Sotomayor dissented, in an opinion joined by Justices Elena Kagan and Ketanji Brown Jackson. Sotomayor warned that Friday’s decision “threatens the very essence of a public education” because it “strikes at the core premise of public schools: that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society.” 

The case comes to the court from Montgomery County, in the Washington, D.C., suburbs. With nearly 160,000 students enrolled during the 2024-25 school year, it is one of the nation’s largest school systems, and it’s in one of the most religiously diverse counties in the United States. 

The dispute stems from the county school board’s 2022 approval of books featuring LGBTQ+ characters for use in its language-arts curriculum. One book, Uncle Bobby’s Wedding, tells the story of a little girl’s reaction to her uncle’s same-sex wedding; another book, Pride Puppy, describes a puppy that becomes lost during a Pride parade. 

The county initially allowed parents to excuse their children from instruction using the LGBTQ-themed storybooks. When the county removed that option in 2023, several parents went to federal court. They contended that the school board’s refusal to let them excuse their children from such instruction violated their First Amendment rights in two ways: It robbed them of their ability to instruct their children on issues of gender and sexuality according to their faiths and burdened their right to control how and when their children are exposed to these issues. 

Read more here.

State lawmaker aims to update ‘outdated’ child custody laws in Pennsylvania

From ABC News:

Frustration over child custody laws in Pennsylvania motivated a Williamsport man to run for office, as he aims to fight for his children and open minds across the political aisle.

Rep. Jamie Flick (R-Lycoming/Union) has a bill that he said will be fairer to parents and better for children, and he might be the most unique dad in the state legislature.

“[I had] no political background whatsoever,” Flick said. “No, I don’t think I’ve ever been to a school board meeting.”

Rep. Flick is the unlikeliest of politicians.

“What got me interested?” he said. “It was going through the family court system, or, as I call it, the organized crime unit.”

Flick went through a nasty divorce and was only awarded child custody every other weekend.

Read more here.

Dividing Marital Assets in Same-Sex and Opposite-Sex Divorces

From Vanderbilt Law School:

Over the last decade, a national reckoning has unfolded regarding the historically unequal treatment of women in the workplace and beyond, as well as the broader implications and meaning of gender roles. What began primarily as a conversation around sexual misconduct in Hollywood – the #metoo movement – ultimately evolved into an examination of how gender and sexual orientation influence outcomes for every American. Nearly eight years later, the conversation continues, with mixed interpretations of the movement’s tangible impact on law and policy.

Gender roles have long been a contentious issue within family law, particularly as the division of marital assets in divorce has historically disadvantaged women, non-breadwinners, and those who take on traditional domestic roles within a marriage. For most of the 20th century, title-holder property divisions were the dominant principle in divorce settlements, which essentially codified gender biases into law. In the 1980s and 1990s, equitable division statutes attempted to rebalance the distribution of assets in a divorce by rebalancing the value attached to each spouse’s role and labor within the family. The jury is still out on the efficacy of those reforms.

Of course, the questioning of traditional gender roles has been but one of several forces in recent years to reshape our understanding of marriage and family. The landmark Obergefell v. Hodges decision in 2015 legalized same-sex marriage nationally, and same-sex marriages have continued trending upwards in the years since. In their paper “When Equitable Becomes Equal: Experimental Evidence on Division of Marital Assets with Same-Sex Couples,” forthcoming in Florida Law Review, John Roberts JD/PhD’24 and Jennifer Bennett Shinall, the Sara J. Finley Chair in Women, Law & Policy at Vanderbilt Law, explore the intersection of these forces by studying the division of marital assets in same-sex divorces as compared to opposite-sex divorces.

Using an experimental vignette study, the authors found that “subjects divide marital assets between spouses equivalently, regardless of whether the divorcing couple is same-sex or opposite-sex. Subjects’ own sexual orientation, however, influences how they divide marital assets between divorcing spouses.” The authors address changing attitudes beyond same-sex marriage and divorce, pointing to new evidence that suggests our national reckoning on gender and sexual orientation “may at last mitigate longstanding, unequal outcomes at the time of divorce.”

Read more here. 

AI puts real child sex victims at risk, experts say

From BBC:

An increase in sophisticated AI-generated images of child abuse could result in police and other agencies chasing "fake" rather than genuine abuse, a charity has said.

The Internet Watch Foundation (IWF), based in Histon, near Cambridge, finds, flags, and removes images and videos of child sexual abuse from the web.

However, the ever-increasing use of AI images - a 300% increase in 2024 compared to the previous year - has added another layer of complexity to their work.

Dan Sexton, IWF chief technology officer, said there was now a risk that law enforcement and other agencies could be "trying to rescue children that don't exist or not trying to rescue children because they think they're AI".

Read more here.

Expansion of marriage rights to same-sex couples also expanded access to the psychological benefits that come with tying the knot

Marriage and the ability to start a family are human rights. Ten years ago, on June 26, 2015, the U.S. Supreme Court’s decision in the Obergefell v. Hodges case extended the right to marry to same-sex couples.

With 7.6% of Americans identifying as LGBTQ+, this decision continues to have an impact beyond legal benefits.

Marriage provides unique advantages – a reality we have come to know as psychology researchers who focus on couples. The right to marry allowed same-sex couples the opportunity to experience these advantages.

Benefits of a Healthy Marriage

Although evidence largely comes from different-sex couples, psychology research documents the numerous benefits healthy marriage confers on well-being. Married people experience more positive emotions. They also have many physical healthadvantages, such as being more likely to survive cancer or major surgery. Children of married couples seem to benefit as well.

A healthy marriage brings benefits that are distinct even from what couples in long-term relationships experience. Those who are married have better psychological well-being, such as less depression and better physical health than people in nonmarital romantic relationships, even those who live with their partner.

Not surprisingly, the benefits of being married do not extend to unhappy marriages. The effects of marriage on physical well-being, life satisfaction, depression and mental health more broadly depend on marital quality, and so do outcomes for children.

Read more here. 

Fears of adoptions breaking down over therapy cuts

From BBC:

Adoptive families have warned government cuts to specialist therapy for their children could ultimately lead to more adoptions breaking down.

In April the government announced a 40% cut to the amount of money each child is entitled to claim for therapy through the Adoption and Special Guardianship Support Fund (ASGSF).

One mother from Tyneside said a reduction in therapy would have a "devastating impact" on her family.

The Department for Education (DfE) said reducing the limit per child would allow more children to have access to the fund.

The mother who, we are calling Caroline to protect her child's identity, said as her son grew older he became more angry.

"He would throw things around in the house. He would get quite aggressive, throwing stuff at the walls, breaking stuff, and physical violence as well."

She said regular therapy through the ASGSF had been a "massive lifeline".

"Now sometimes he will cry, which sounds awful, but it means he's more in tune with his emotions and that it's OK to be sad and he doesn't have to be angry."

Read more here. 

Court upholds Tennessee’s ban on certain medical treatments for transgender minors

From SCOTUSblog:

The Supreme Court on Wednesday upheld Tennessee’s ban on puberty blockers and hormone therapy for transgender teenagers. By a vote of 6-3, the justices rejected an argument by three transgender teens (along with their parents and a Memphis doctor) that the law violates their constitutional right to equal protection and should be scrutinized using a more stringent standard than the one used by a federal appeals court in Cincinnati. 

Writing for the majority, Chief Justice John Roberts acknowledged that the dispute “carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field.” But the court’s only role, he said, is to ensure that the Tennessee law does not violate the Constitution’s guarantee of equal protection. “Having concluded that it does not,” he wrote, “we leave questions regarding its policy to the people, their elected representatives, and the democratic process.” 

The court’s Democratic appointees dissented from the decision. Justice Sonia Sotomayor wrote that the court’s ruling “authorizes, without second thought, untold harm to transgender children and the parents and families who love them.” 

According to KFF, more than half the states have laws similar to Tennessee’s. The decision also comes just under five months after President Donald Trump signed a series of executive orders affecting the rights of LGBTQ+ people – and, in particular, transgender people. One such order, signed on Jan. 28, seeks to restrict the availability of certain medical treatment for transgender people under the age of 19. 

Read more here. 

Thank you for a great FLSTC!

Thank you to everyone who attended and made the 2025 Family Law Scholars & Teachers Conference a success this year!

Special thanks to our conference chairs, Laura Matthews-Jolly and Sarah Lorr, and to our gracious hosts, Elizabeth Kukura and Drexel Kline Law! 

Savarese: "Witnesses for the State: Children and the Making of Modern Evidence Law"

Laura Savarese (Michigan State University) has recently posted to SSRN her paper, Witnesses for the State: Children and the Making of Modern Evidence Law.  Here is the abstract:

This article identifies an overlooked legacy of the child protection movement in the late-nineteenth and early-twentieth-century U.S.: transformations in evidence law and procedure that undermined common-law restrictions on children's testimony. Scholarship on the nineteenth-century modernization of evidence law argues that the rise of cross-examination allowed for the demise of common-law witness disqualification rules. The erosion of restrictions on children's testimony, however, requires an alternative or additional explanation, because cross-examination did not allay fears about children's reliability. The driving force for changes in the law governing child witnesses, I argue, was the slate of nineteenth-century child protection laws whose enforcement typically required children's testimony. The case study of Progressive-Era New York, presented here, reveals how evidence law and procedure adapted to substantive law's demand for children's evidence: reformers legislated an exception to the common-law oath requirement in children's cases, pushed trial courts to modernize their approach to examining child witnesses’ competency, and expanded the state's power to detain children as material witnesses. Those reforms fostered the ends of law enforcement, but did not resolve enduring debates about the reliability risks of children's testimony and the costs of testifying for children's wellbeing.

Happy Juneteenth

Happy Juneteenth

Kolinsky: "Fundamental Rights and Fair Fights: Holding Out for Legal Parent Recognition Under State Multiparent Recognition Statutes"

Heather M. Kolinsky (University of Florida Levin College of Law) has recently posted to SSRN her paper, Fundamental Rights and Fair Fights: Holding Out for Legal Parent Recognition Under State Multiparent Recognition Statutes.  Here is the abstract:

This Article considers the impact of the behavioral proxy of holding out to establish legal parenthood, and how that proxy functions in new statutory frameworks designed to recognize more than two legal parents for a child.  Holding out was originally conceived as a mechanism to allow unmarried biological fathers to seek legal parent status.  Holding out has been extended to intended and intentional parents in surrogacy and assisted reproductive technology as well as to married and unmarried same sex partners.  In these iterations holding out has facilitated legal parent recognition as the modern family form has evolved to include more than the traditional marital dyad. However, holding out may not map as easily onto newer statutory forms of legal parent recognition. 

Some states have enacted statutes that allow recognition of more than two legal parents for a child at any one time, opening the door to recognition of more parental caregiving relationships outside the legal parent binary. The reality is that recognizing those parental caregiving relationships is often a fraught exercise in navigating a system that remains fundamentally structured to recognize no more than two legal parents to whom the state assigns rights and responsibilities.  That tension is heightened when a petitioner is biologically related to a child, versus an unrelated caregiver, as societal presumptions of performative care required of kin may inhibit recognition of some groups of third legal parents as compared to others.

Family law changes will better protect domestic violence victims – and their pet

From The Conversation:

Welcome changes to family law come into effect this week to better support victims of domestic violence in property settlements.

Importantly, the Family Law Amendment Bill 2024 will provide a new framework for determining ownership of the family pet in divorce and separation proceedings. Pets will no longer be recognised merely as property, but as “companion animals”.

Family law courts must now consider animal abuse, including threats to harm pets, when deciding which partner is awarded ownership.

Research suggests up to 15% of all animal cruelty cases involve domestic violence offending. Therefore, the new laws will provide some relief to partners whose beloved pets have suffered abuse.

Read more here.

Southern Baptists overwhelmingly call for a ban on gay marriage

From CNN:

Southern Baptists overwhelmingly endorsed a ban on gay marriage — including a call for a reversal of the US Supreme Court’s 10-year-old precedent legalizing it nationwide.

They also called for legislators to curtail sports betting and to support policies that promote childbearing.

The votes came at the gathering of more than 10,000 church representatives at the annual meeting of the nation’s largest Protestant denomination.

A proposed resolution says legislators have a duty to “pass laws that reflect the truth of creation and natural law — about marriage, sex, human life, and family” and to oppose laws contradicting “what God has made plain through nature and Scripture.”

A wide-ranging resolution calls for the “overturning of laws and court rulings, including Obergefell v. Hodges, that defy God’s design for marriage and family.” A reversal of Obergefell wouldn’t in and of itself be a ban.

The resolution calls “for laws that affirm marriage between one man and one women.”

Read more here.

What the Marriage Equality Backlash Taught Me About the Fight for Trans Rights

From ACLU News:

On June 26, 2015, the Supreme Court ruled that excluding same-sex couples from civil marriage was unconstitutional. I was outside the Supreme Court that day, celebrating the advocacy achievement that seemed impossible a decade prior when bans on marriage for same-sex couples passed by wide margins in state after state. Couples, families, and advocates gathered on the steps outside the court, singing, crying, and embracing. I thought about my younger self who could not have imagined a life and future as a queer adult, and about the generations of LGBTQ people who came before me and faced so many more obstacles to realizing their own queer adulthoods.

Though the fight for legal recognition of marriage for same-sex couples spanned decades, the final stages of progress seemed lightning fast for many people outside of the LGBTQ legal movement.

In June of 2013, the Supreme Court held in United States v. Windsor that the federal law defining marriage as between one man and one woman violated the Constitution's equal protection and due process guarantees. That decision opened the door to immediate constitutional challenges to the remaining state-level bans on marriage for same-sex couples. Two years later, in 2015, the Supreme Court held in Obergefell v. Hodges that excluding same-sex couples from marriage violated the Constitution.

The Obergefell ruling was a defining moment in our country’s legal history that came after decades of hard work and setbacks. Today, my child’s generation cannot even fathom that same-sex couples could not marry in many states when they were born. That transformation in law and culture has been met with fierce backlash from opponents of LGBTQ equality.

Immediately following the court’s decision in Obergefell, the aggressive movement to prevent marriage equality trained its financial resources and advocacy efforts on curtailing legal equality for LGBTQ people under local, state and federal civil rights statutes. In November 2015, a ballot campaign in Houston, Texas became the testing ground for new anti-LGBT messaging. Houston voters were voting on a repeal of a municipal non-discrimination ordinance, HERO, that would have extended local civil rights protections to fifteen classes of people, including veterans, people of color, disabled people, women and LGBTQ people.

Read more here.

 

They led the fight for marriage equality

From USA Today:

On Sunday’s episode of The Excerpt podcast: Jim Obergefell and his partner John Arthur's fight to have their marriage recognized by their home state of Ohio ultimately paved the way for nationwide marriage equality for the LGBTQ+ community. John, tragically, passed before the ruling, but the couple’s story endures as a milestone for the LGBTQ+ community. Jim Obergefell joins The Excerpt to share more about his historic journey.

Listen here. 

State Spotlight: Who is considered a ‘grandparent’? The Colorado Supreme Court has a new definition

From CPR News:

A tragic murder-suicide case that left three young Colorado children parentless has led to a new legal precedent for who can be considered a grandparent in the state. 

In 2020, 33-year-old Brandon Sullivan killed himself and his wife Amanda in their Delta County home, leaving behind a 2-year-old child and infant twins. Amanda’s parents, Suzanne and August Nicolas, took custody of the children and later adopted them. 

Sullivan’s parents, Jayne and Daniel Sullivan, later requested grandparent visitation rights for the three children which were granted by a court. But in 2022, the Nicolases filed a motion for relief from the court’s ruling, arguing that “following their adoption of the children, the Sullivans were no longer the children’s grandparents, meaning they lacked standing to seek grandparent visitation.” 

The request relied on the present-tense language in Colorado law which defines a “grandparent” as “a person who is the parent of a child’s father or mother, who is related to the child by blood, in whole or by half, adoption, or marriage."

Read more here.

Divorces tend to spike in early spring and late summer. Here's why

From NPR:

Kirk Stange keeps a close eye on the calendar — and right now, he's enjoying the summer break.

Stange isn't a student. He's a family law attorney with 25 years in the business. During a recent interview, he told NPR he has noticed a pattern: Divorce filings hit two peaks per year — one in late summer and the other in early spring.

"It's a very seasonal business," the divorced father of two said, adding that it's similar to the rush CPAs face come Tax Day in April.

Stange's firm has 27 offices across nine states, and he's been keeping meticulous records on the influx of new clients for the last decade. "Every year we see the same thing, no matter what state we're looking at," he said.

Read more here.

Study shows marriage habits straying from traditional patterns

From MSN:

"Women college graduates are not sticking to traditional compatibility traits when choosing a husband, according to one study. Preferences are changing as economics play a larger role.

American Institute for Boys and Men data say female college graduates have difficulty finding equally-educated partners.

University of Indianapolis Sociology Professor Amanda Miller, PhD, said historically, college-educated women married within the same circles.

Instead of foregoing marriage entirely, Miller explained, more are deciding on "exogamy"- marrying outside their social group. 

Read more here.

Father Who Didn’t Pay Child Support May Be Denied Gun Rights

From Bloomberg News:

The contempt conviction and four-year sentence a Maryland father received for not paying court-ordered child support allowed the state to deny him the right to have a gun and charge him as a felon in possession, Maryland’s high court said.

Robert L. Fooks said that his common law conviction wasn’t a felony and that he therefore couldn’t be charged as a felon in possession. But Chief Justice Matthew J. Fader said June 6 for the Maryland Supreme Court that the state law that required disarming Fooks passed muster under the US Supreme Court’s current Second Amendment analysis.

Read more here. 

 

Share of Married LGBTQ+ Americans Down Slightly From Peak

From Gallup:

Continuing the pattern seen in the years after the Supreme Court legalized gay marriage nationally in 2015, LGBTQ+ Americans in cohabiting same-sex relationships remain more likely to be married than living with a domestic partner. However, the 55% now in same-sex marriages is down slightly from the high of 61% between June 2016 and June 2017, the second full year after the Supreme Court legalized same-sex marriage nationwide in its June 2015 Obergefell v. Hodges decision.

In the months leading up to that decision, when same-sex marriages were legal in most but not all states, 38% of cohabiting same-sex couples reported being married, while 62% were in domestic partnerships.

Read more here.