Family Law Prof Blog

Mental Illness and Family Law

From National Law Review: 

According to the National Institute of Mental Health,
Approximately 1 in 5 adults in the U.S. (46.6 million) experiences mental illness in a given year.
Approximately 1 in 25 adults in the U.S. (11.2 million) experiences a serious mental illness in a given year that substantially interferes with or limits one or more major life activities.

Not surprisingly, mental health issues come up in the context of a divorce in a variety of ways. They arise when mental health issues contribute to the breakdown of the marriage or relationship. For instance, a partner may suffer from a condition which causes him or her to behave in ways that are detrimental to the relationship.

If a spouse or partner is suffering from mental illness to the extent that he or she cannot make rational decisions, the court has a variety of options to protect that person, both personally and his or her property. The court can appoint a guardian for the person, particularly if the illness is so extreme as to cause a person to be incompetent.

Read more here.

 

 

 

Parness: "Marriage Equality, Parentage (In)Equality"

Jeffrey A. Parness (Northern Illinois University - College of Law) has recently posted on SSRN his new article Marriage Equality, Parentage (In)Equality, 32 Wisconsin Journal of Law Gender and Society __ (Fall 2017) (forthcoming).  Here is the abstract:

Recently, several quite distinguished commentators have asked how, if at all, the U.S. Supreme Court will speak, after its same sex marriage ruling in Obergefell v. Hodges, to interstate inequalities involving the federal constitutional rights of childcaring parents. Specifically, Professor Mayeri notes in the Yale Law Journal that today the “constitutional law of the family stands at a critical turning point,” leaving us to ponder whether the “advent of marriage equality,” which “disrupted conventional definitions of parenthood” by demoting “marriage and biology in favor or a more intent-based and functional criteria,” will heighten or diminish the federal “constitutional significance of marital status” in parentage matters. Professor NeJamie worries in the Harvard Law Review that Obergefell “may reduce incentives to achieve laws that recognize unmarried, nonbiological parents,” though there is the “potential” for it to “yield more robust recognition for some unmarried parents.” And Dean Murray, while recognizing this “potential,” worries in the California Law Review that Obergefell may not be read to “sanction and facilitate … methods of family formation … that credit nonmarriage.”

Obergefell did not directly address any issues involving national parentage equality. It is not likely that the ruling will prompt the U.S. Supreme Court to address national parentage equality any time soon. The Court has historically deferred to state parentage laws while recognizing their significant interstate variations.

While interstate parental childcare equality issues are important, they pale in significance to issues of intrastate equality for marital and biological parents, as well as for nonmarital, nonbiological, nonadoptive parents who care for children and who are often deemed de facto or presumed parents, which can include grandparents and/or stepparents. In the article I offer a few thoughts on intrastate parental childcare equality after explaining why interstate inequalities will likely remain unaddressed by the U.S. Supreme Court.

Todres: "Can Mandatory Reporting Laws Help Child Survivors of Human Trafficking?"

 Jonathan Todres (Georgia State University College of Law) has posted on SSRN his article Can Mandatory Reporting Laws Help Child Survivors of Human Trafficking?,  2016 Wisconsin Law Review Forward 69-78 (2016).  Here is the abstract:

Once thought of as primarily a criminal justice issue, human trafficking is now recognized an issue that implicates all sectors of society. Trafficked individuals have been identified in a breadth of industries, including manufacturing, agriculture, construction, mining, fisheries, forestry, health care, hospitality and tourism, domestic service, restaurants, forced-begging operations, and the sex industry. Preventing exploitation across so many sectors requires a comprehensive, coordinated response. In addition to the criminal justice system, social services, health care professionals, educators, businesses, media, and others all have a role to play in addressing human trafficking and its attendant forms of exploitation. As part of the recent push to broaden engagement in anti-trafficking efforts, policymakers and advocates have identified mandatory child abuse reporting statutes as a vehicle for engaging health care providers, educators, and others professionals who work with children to help identify children at risk of or exploited by human trafficking. This article examines the potential impact of mandatory reporting laws on efforts to address child trafficking. In the past several years, roughly one-quarter of the states have amended their mandatory reporting laws to cover some or all forms of human trafficking. This article argues that these measures, while well-intentioned, might not have the intended impact without further action. The article examines the potential for mandatory reporting to address both sex trafficking and labor trafficking and then discusses how to make mandatory reporting a more effective tool for addressing the trafficking of children.

Murphy & Singer: "Divorced from Reality: Rethinking Family Dispute Resolution"

Jane Murphy (University of Baltimore School of Law ) and Jana Singer (University of Maryland Carey School of Law) have recently published Divorced from Reality: Rethinking Family Dispute Resolution (NYU Press 2015). The book is described by the authors:

Over the past thirty years, there has been a dramatic shift in the way the legal system approaches and resolves family disputes. This shift has replaced the law-oriented and judge-focused adversary model with a more collaborative and interdisciplinary regime that attempts to resolve both legal and non-legal issues. At the same time, American families have changed dramatically. Divorce rates have slowed, while the number of children born and raised outside of marriage has increased sharply. Grandparents, same sex partners and others considered third parties under the law are raising children.  As a result, the families who seek legal dispute resolution have become more diverse and their legal situations more complex.  Divorced from Reality argues that the current “problem solving” model fails to address the realities of today’s families. The authors suggest that while today’s dispute resolution regime may represent an improvement over its more adversary predecessor, it is built largely around the model of a divorcing nuclear family with lawyers representing all parties—a model that fits poorly with the realities of today’s disputing families. To serve the families it is meant to help, the legal system must rethink its reliance on courts and must adapt and reshape itself.

Order the book here.

 

Stępień-Sporek & Ryznar: "The Consequences of Non-Marriages"

Anna Stępień-Sporek & Margaret Ryznar have posted The Consequences of Non-Marriages, University of San Francisco Law Review (forthcoming) on SSRN.  Here is the abstract:

In several British surveys, the majority of people thought that cohabitants had the same legal status as married couples. However, this could not be farther from the truth—the law treats them as nothing more than strangers, albeit often with contractual capabilities to protect themselves in the event their cohabitation ends. A minority of American states, however, have refused even contract rights to cohabitants, with Illinois leading this contingent. In late 2014, however, an Illinois appellate court dramatically diverged from the state’s well-established precedent, determining that a recent change in public policy required recognizing property consequences of cohabitation. The legal framework on cohabitation is even more dynamic in Europe, ranging from no protection to equal protection that is provided in marriage, depending on the country. This Article therefore takes a comparative approach to examining the appropriate regulation of cohabitation and whether protections should be offered to cohabitants as their number continues to grow on both sides of the ocean.

Huntington: "Failure to Flourish: How Law Undermines Family Relationships"

Here is the Balkinization symposium on Professor Clare Huntington's book Failure to Flourish, and the collected posts (with contributions from Professors Elizabeth Scott, Solangel Maldonado, Robert Emery, Robin Lenhardt, and Linda McClain).

MR

Review of Carbone and Cahn's "Marriage Markets"

From the New York Times:

Two professors of family law, June Carbone and Naomi Cahn, have written a crisp and cogent account — rich with detail and utterly free of legalese — of America’s failure to invest in its children.

Their book, “Marriage Markets,” asserts that this failure lies not only in public policy but also in the private lives of Americans. Marriage, the time-honored way of fostering the interests of children, no longer works for many Americans. In an economy ruptured by increasing inequality, millions of men and women are deciding that marriage imposes obligations that they cannot meet. Nearly half of all marriages fail; more than 40 percent of American children are born to single mothers.

This is not a romantic book. Professor Carbone, who teaches at the University of Minnesota, and Professor Cahn, of George Washington University, describe picking a marriage partner as a high-stakes negotiation to find the most promising person, both emotionally and financially, for a lifelong commitment. It is a contract that comes with rights and responsibilities defined and enforced by law.

Read more here.

MR

Hasday's "Family Law Reimagined"

From Jill Elaine Hasday (University of Minnesota), writing for Slate:

Too often, the law permits sibling relationships to be severed by an adoption or a parent’s divorce or death. Sometimes, siblings are left with no way to stay in touch with each other. When siblings placed in different households have had the chance to write or speak publicly about their experiences, they have emphasized the pain, sadness, and complete shock that separation can inflict.

The tie between siblings is often the longest lasting relationship that a person ever experiences. Social science research makes clear that strong bonds between brothers and sisters can develop very early in childhood. Many children spend more time with their siblings than with anyone else, and siblings who grow up together accumulate a store of shared memories that can shape each sibling for life. Children with absent, dysfunctional, or warring parents often forge especially intense bonds with each other that provide solace, nurturing, and secure emotional attachments.

But as I discuss in my new book, Family Law Reimagined, the legal system has long acted as if marriage and parenthood are the only two family relationships that matter. In recent years, the law has expanded its focus slightly by directing more attention toward unmarried couples. Yet courts and legislatures still do remarkably little to protect sibling ties.

Read more here.

MR

Kutty: "Islamic Law and Adoptions"

Faisal Kutty (Valparaiso University Law School) has posted "Islamic Law and Adoptions," forthcoming in Robert L. Ballard et al., The Intercountry Adoption Debate: Dialogues Across Disciplines (Newcastle upon Tyne, UK: Cambridge Scholars Publishing, 2014).  Here is the abstract:

Throughout history, adoption has held a contentious and ambiguous role in the social imagination of many cultures. Adoption is a complex social, legal, and economic phenomenon that has existed in one form or another in most societies since ancient history. Religion has served to both advance and restrict adoption and similar childcare arrangements. Some religions have encouraged adoptions, others have initially been interpreted to restrict them, and yet others continue to restrict or advocate alternative arrangements. 

The belief that closed adoption, as practiced in the West, is the only acceptable form of permanent childcare is a significant obstacle to its acceptance among many Muslims. Adoption rights activists—and prospective adopters—have struggled to find ways around the difficulties this simple binary view causes for the millions of children around the world who could benefit from a loving home. With increasing numbers of abandoned and orphaned children and a growing number of hurdles, there is now an added urgency to tackle this issue. It is beyond the scope of this chapter to grapple with all of the nuances and issues raised by adoption in Islam. The goal of this chapter is more modest. It is to contribute to a better understanding of Islamic views on adoptions, provide insights into some of the tensions and points of convergence, lay groundwork to help in bridging the gap, and fill the existing void in properly caring for orphans, abandoned children, and children of unknown parentage consistent with contemporary notions of child welfare and the spirit of the Sharia. Part I provides a basic background on Islamic law, its sources, principles and methodology for development and evolution. Part II sets out a description of adoption and alternatives under classical Islamic law as understood and accepted by the orthodox Sunni community. Part III explores and highlights the areas of tension and convergence with modern western conceptions of adoption and child welfare. The chapter then concludes with some parting thoughts.

The chapter demonstrates that there is sufficient basis in Islamic jurisprudence to argue for qualified support of international adoptions. It is undeniable that taking care of orphans and foundlings is a religious obligation. Arguably one of the best ways to take care of these children is to place them in loving homes, provided that a child’s lineage is not intentionally negated or concealed. A reformed model of Islamic adoptions will enable Muslims to fulfill this religious obligation while ensuring that the most vulnerable do not fall through technical cracks and will not be negatively impacted by formal rules that no longer serve their intended purposes.

Read more here.

MR

Unmarried Fathers' Rights

From Professor Clare Huntington (Fordham Law), writing for the New York Times:

The fathers’ rights movement contends that the treatment of fathers and mothers is unequal under the law, but the real difference is between married and unmarried fathers.

My research shows that family law makes it much harder for unmarried fathers to sustain a relationship with their children. In most states, if a child is born to married parents, the mother’s husband is automatically established as the legal father. By contrast, unmarried fathers have to take additional steps to establish parentage.

Read more here.

MR

Huntington: "Failure to Flourish: How Law Undermines Family Relationships"

Clare Huntington (Fordham Law School) has published a new book, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press 2014).  Here is Oxford’s description:

Exploring the connection between families and inequality, Failure to Flourish: How Law Undermines Family Relationships argues that the legal regulation of families stands fundamentally at odds with the needs of families. Strong, stable, positive relationships are essential for both individuals and society to flourish, but from transportation policy to the criminal justice system, and from divorce rules to the child welfare system, the legal system makes it harder for parents to provide children with these kinds of relationships, exacerbating the growing inequality in America.

Failure to Flourish contends that we must re-orient the legal system to help families avoid crises and, when conflicts arise, intervene in a manner that heals relationships. To understand how wrong our family law system has gone and what we need to repair it, Failure to Flourish takes us from ancient Greece to cutting-edge psychological research, and from the chaotic corridors of local family courts to a quiet revolution under way in how services are provided to families in need. Incorporating the latest insights of positive psychology and social science research, the book sets forth a new, more emotionally intelligent vision for a legal system that not only resolves conflict but actively encourages the healthy relationships that are at the core of a stable society.

MR

Hasday: Family Law Reimagined

Jill Elaine Hasday (Univeristy of Minnesota Law) has published a new book, Family Law Reimagined (Harvard University Press 2014), available here:

One of the law’s most important and far-reaching roles is to govern family life and family members.  Family law decides who counts as kin, how family relationships are created and dissolved, and what legal rights and responsibilities come with marriage, parenthood, sibling ties, and other family bonds.  Yet despite its significance, the field remains remarkably understudied and poorly understood both within and outside the legal community.

Family Law Reimagined is the first book to explore the canonical narratives, stories, examples, and ideas that legal decisionmakers repeatedly invoke to explain family law and its governing principles.  These stories contend that family law is exclusively local, that it repudiates market principles, that it has eradicated the imprint of common law doctrines which subordinated married women, that it is dominated by contract rules permitting individuals to structure their relationships as they choose, and that it consistently prioritizes children’s interests over parents’ rights.

In this book, Jill Elaine Hasday reveals how family law’s canon misdescribes the reality of family law, misdirects attention away from the actual problems that family law confronts, and misshapes the policies that legal authorities pursue.  She demonstrates how much of the “common sense” that decisionmakers expound about family law actually makes little sense.

Family Law Reimagined uncovers and critiques the family law canon and outlines a path to reform.  The book challenges conventional answers and asks questions that judges and lawmakers routinely overlook.  It calls on us to reimagine family law.

MR

Infanti: "Big (Gay) Love: Has the IRS Legalized Polygamy?"

Anthony C. Infanti (University of Pittsburgh - School of Law) has posted "Big (Gay) Love: Has the IRS Legalized Polygamy?" North Carolina Law Review Addendum, 2014, Forthcoming, on SSRN.  Here is the abstract:

Within days in December, a federal judge in Utah made news by loosening that state’s criminal prohibition against polygamy and the Attorney General of North Dakota made news by opining that a party to a same-sex marriage could enter into a different-sex marriage in that state without first obtaining a divorce or annulment. Both of these opinions raised the specter of legalized plural marriage. What discussions of these opinions missed, however, is the possibility that the IRS might already have legalized plural marriage in the wake of the U.S. Supreme Court’s decision last June in United States v. Windsor, which struck down section three of the federal Defense of Marriage Act (DOMA). 

In exploring that possibility, this essay continues my work analyzing the shortcomings of the IRS’s implementation of the Windsor decision. The Secretary of the Treasury promised that IRS guidance would provide same-sex couples with “certainty and clear, coherent tax-filing guidance.” To the contrary, I have explained that the IRS’s guidance provides no more than the same veneer of clarity that DOMA did, because it leaves important questions unanswered, lays traps for the unwary, creates inequities, and entails unfortunate (and, hopefully, unintended) consequences. In this essay, I extend that analysis by explaining how ambiguity in the IRS’s guidance may also have unintentionally opened the door to recognizing plural marriage for federal tax purposes.

MR

Black "The Constitutional Limit of Zero Tolerance in Schools"

From Derek W. Black posted his article "The Constitutional Limit of Zero Tolerance in Schools" on SSRN.  Here is the abstract:

With the introduction of modern zero tolerance policies, schools now punish much more behavior than they ever have before. But not all the behavior is bad. Schools have expelled the student who brings aspirin or fingernail clippers to campus, who does not know that a keychain knife in his backpack, or who reports having taken away a knife from another student in order to keep everyone safe. Despite challenges to these examples, courts have upheld the suspension and expulsion of this good-faith, innocuous behavior. With little explanation, courts have opined that the Constitution places no meaningful limit on the application of zero tolerance policies. Indeed, courts have been so dismissive of constitutional challenges that most scholars all but concede the constitutionality of zero tolerance, arguing instead that schools should voluntarily adopt policy changes. This is incorrect. Although the constitution confers significant discretion on schools to regulate student behavior, that discretion does not include the authority to entirely strip students of their constitutional rights and punish them for any reason a school deems fit. This Article argues that fundamental principles of substantive due process limit zero tolerance. In particular, substantive due process prohibits state actors from (1) treating substantially dissimilarly situated students as though they are the same; (2) disregarding a student’s good-faith mistakes or innocence; and (3) presupposing the answers to due process inquiries so as to render hearings meaningless. Zero tolerance policies breach each of these principles and represent a broad overreach of state power, akin to the sort of state overreaching that the Supreme Court has struck down in related areas of juvenile justice. To comply with due process, the state must consider students’ intent and culpability, along with the potential harm posed by the behavior at issue. Contrary to conventional wisdom, courts can strike down zero tolerance policies that fail to take these steps without re-crafting constitutional doctrine.

MR

DiFonzo & Stern: "Intimate Associations: The Law and Culture of American Families"

The University of Michigan Press has just published Intimate Associations: The Law and Culture of American Families by J. Herbie DiFonzo and Ruth C. Stern. The book argues that all family forms should be respected and accorded legal equality. But at the same time, the social science evidence is clear that marriage is better than cohabitation for couples, for their children, and for society as a whole. The rise in divorce, cohabitation, single parenthood, and same-sex partnerships, along with an increase in surrogacy, adoption, and assisted reproductive technologies, have led to many and diverse configurations of families, or "intimate associations." The fluidity of modern families may give adults more personal choices, but it comes at the price of economic stability and social well-being. Drawing on a wealth of social science data, the book shows that, by a number of measures, children of married parents fare better than children in a household formed by cohabiting adults. This is not to condemn nontraditional families but rather to point out that society and, particularly, the law do not yet adequately provide for the needs of such families. The text applauds the ways in which courts and legislatures are beginning to replace rigid concepts of marriage and parenthood with the more flexible concept of “functional” family roles. Intimate Associations concludes with a call for the legal system to adapt to the continually changing reality of family life.

Joshi: "The Trouble with Inclusion"

Yuvraj Joshi has posted his article The Trouble with Inclusion, Virginia Journal of Social Policy and the Law, Vol. 21, No. 2, 2014, on SSRN.  Here is the abstract:

Attempts are being made to include members of excluded groups in societal institutions. Inclusion has been proposed as the solution to the injustice caused by exclusion. Yet, inclusion does not always achieve justice and might sometimes perpetuate injustice. This Article provides a framework for understanding inclusion that may fail to achieve social justice and uses this framework to assess the inclusion of lesbians and gays within marriage (marriage equality) and of women and minorities within organizations (organizational diversity). The former case study examines the legal and social movement for recognizing same-sex marriage while the latter engages a range of contemporary debates, including workplace diversity, gays in the military, women in armed combat and gender mainstreaming at the UN. Each shows that inclusion is less likely to achieve social justice where it misconstrues injustice, maintains the status quo, decouples from justice, legitimizes the institution or rationalizes injustice.

MR

LaVigne & Van Rybroek: "'He Got in My Face so I Shot Him': How Defendants' Language Impairments Impair Attorney-Client Relationships"

Michele LaVigne (University of Wisconsin Law School) & Gregory Van Rybroek (Mendota Mental Health Institute) have posted on SSRN "'He Got in My Face so I Shot Him': How Defendants' Language Impairments Impair Attorney-Client Relationships," 17 CUNY Law Review (2014).  Here is the abstract:

Language impairments -- deficits in language and the ability to use it -- occur at starkly elevated rates among adolescents and adults charged with and convicted of crimes. These impairments have serious ramifications for the quality of justice. In this article, we focus specifically on the effects of a client's language impairment on the attorney-client relationship, the constitutional realm that suffers most when a client lacks essential communication skills. The effects of language impairment can be seen in a client's ability to work with a lawyer in the first place, tell a story, comprehend legal information, and make a rational and informed decision. This article shows how these effects play themselves out within the attorney-client relationship, and the impact on the lawyer's ability to meet her constitutional and ethical obligations. We also propose concrete steps for improving the quality of communication within the attorney-client relationship. While attorneys will obviously shoulder much of the responsibility, judges and prosecutors are not exempt. A client's poor communication skills are not simply be "the lawyer's problem," but a matter of great concern for all stakeholders in the justice system.

MR

Hatcher: "Forgotten Fathers"

Daniel L. Hatcher ( University of Baltimore - School of Law) has posted "Forgotten Fathers," 93 Boston University Law Review 897 (2013).  Here is the abstract:

Poor fathers like John are largely forgotten, written off as a subset of the unworthy poor. These fathers struggle with poverty – often with near hopelessness – within multiple systems in which they are either entangled or overlooked, such as child-support and welfare programs, family courts, the criminal justice system, housing programs, and the healthcare, education, and foster-care systems. For these impoverished fathers, the “end of men” is often not simply a question for purposes of discussion but a fact that is all too real. In the instances in which poor fathers are not forgotten, they are targeted as causes of poverty rather than as possible victims themselves – or more accurately they fall somewhere along the false dichotomy between pure blame and pure sympathy. The poor fathers are lumped together in monolithic descriptions that become constants in equations attempting to understand and solve societal ills. 

This Essay seeks to step back, to de-simplify the incorrect math and begin drawing the interconnections between the legal and policy systems impacting low-income fathers, including the linkages to impoverished women and families. The contexts of race, gender, and class are engaged within the numerous systems and legal structures that impoverished fathers encounter. These systems and their impact must each be considered individually while simultaneously understanding the broader view of the system interactions. The appropriate discussion point for fathers like John is not found in the narrative of the “end of men” and the purported competition between men and women as struggling for the mantel of the dominant sex. Nor is the issue best illustrated by a Super Bowl commercial for a Dodge Charger muscle car “vrooming toward the camera punctuated by bold all caps: MAN’S LAST STAND,” with the lingering question of who should be “steering the beast.” John does not even have a driver’s license. Rather, the discussion for impoverished fathers should be directed toward whether there is an opportunity to turn back from their gradual acquiescence to failure, and whether at-risk boys can veer away from a seemingly pre- determined path.

MR

Burkstrand-Reid: "From Sex for Pleasure to Sex for Parenthood: How the Law Manufactures Mothers"

Beth A. Burkstrand-Reid (University of Nebraska at Lincoln - College of Law) recently posted "From Sex for Pleasure to Sex for Parenthood: How the Law Manufactures Mothers," Hastings Law Journal (2013).  Here is the abstract:

As soon as sperm enter a woman, so do law and politics, or so the decades-long disputes surrounding abortion suggest. Now, however, renewed debates surrounding contraceptives show legal and political interference with women’s sexual and reproductive autonomy may actually precede the sperm. This Article argues that, increasingly, women even thinking about having sex are defined socially and legally as “mothers.” Via this broad definition of who is a “mother," the State extends its reach into women’s decision-making throughout their reproductive lifetime. 

This Article argues that the State simultaneously devalues women’s choices to have sex for pleasure, which this Article calls desexualization, and uses medical rituals associated with motherhood, which this Article calls ritualization, to persuade women to accept the role of mother. Desexualization and ritualization signal the State’s attempt to influence women’s sexual and reproductive decision-making not only in the context of abortion but also in the areas of contraception, pregnancy, and childbirth.

MR

CONFERENCE & CALL FOR PAPERS: CONVERGE! Re-Imagining the Movement to End Gender Violence

CONVERGE! Re-Imagining the Movement to End Gender Violence
February 7-8, 2014
Fri. 8:30 a.m. - 5:30 p.m.   |   Sat., 8:30 a.m. - 4 p.m.

Hosted by University of Miami School of Law, University of Miami School of Law Race & Social Justice Law Review, Miami Worker's Center Sisterhood of Survivors, and Center on Applied Feminism-University of Baltimore School of Law.

Register<http://www.law.miami.edu/academics/converge/index.php?op=0>   |   Call for Papers & Presentations<http://www.law.miami.edu/academics/converge/presentations.php?op=4>

For more than 40 years, gender violence has been the focus of U.S. feminist activism.

Where are we headed now?

The CONVERGE! conference will bring together survivors, activists, lawyers, service providers, and academics to reconsider the dominant U.S. responses to gender violence, to build capacity for political mobilization and reform, to share innovative approaches to gender violence, and to promote cross-fertilization and collaboration. Join the CONVERGE! conversation to build a transformative political agenda to refocus U.S. priorities in ways that better address the intersecting inequalities that create and maintain gender violence.