Family Law Prof Blog

Judging Parents

From the Atlantic:

To be a parent on the internet is to be constantly accused of false advertising. We make parenting sound “so freaking horrible,” “messy, tedious, nightmarishly life-destroying,” like it will “change everything, mostly for the worse.” Or is it that we make it look “so easy,” “aesthetically-pleasing” and “effortlessly beautiful,” “miles from what motherhood looks like for many of us”?

People can’t seem to agree on whether it’s our soul-sucking complaints or our phony cheer that dominates the discourse. By some accounts, current discussions about the difficulties of motherhood are a pushback against a time when it was idealized. Others say the “mommy internet” used to be a place where moms could be “raw and authentic”; only recently has it become overrun with “staged, curated photos that don’t show the messier part of life.” Either way, it’s irresponsible. What real-life mother could possibly measure up to a “vision of motherly perfection”? Who would choose to have children in an atmosphere that insists child-rearing is so bleak?

Read more here.

Stolzenberg: "Nonconsensual Family Obligations"

Emily Stolzenberg (Villanova), Nonconsensual Family Obligations, 48 Brigham Young University Law Review 625 (2022).  Here is the abstract:

Even as the pandemic has both highlighted and compounded the challenges many U.S. families face in meeting their members’ basic needs, efforts to expand public subsidies for caretaking have gained little traction. Scholars have identified many historical and practical reasons for Americans’ entrenched skepticism toward the welfare state. Ideas matter, too, and this Article uncovers and critiques one that works to limit collective financial responsibility for families: the conviction that family support obligations must be legitimated through consent.

In family law, as in liberal political theory, consent works to reconcile state regulation with individual freedom. But because consent is a poor way to conceptualize relations of interdependence, consent-based ideas about what family members owe one another make family law doctrine less generous and justifiable than it could be. Such ideas also insulate citizens from financial obligations toward anyone’s family but their own.

Consent-based legitimation endures in part because “consent” can bear different meanings unless it is precisely defined—work that family law scholars have only begun to undertake. Contributing to that project, this Article develops a taxonomy that identifies the distinct roles consent plays in justifying family obligations. It then uses that taxonomy to analyze how uncritical consent-based reasoning contributes to an incoherent body of doctrine that naturalizes economic inequality within and between families.

To begin to address these problems, family law should incorporate additional principles beyond consent for justifying family support obligations. Adopting such a pluralist approach would allow family law to grapple with important normative questions directly and openly, contributing to more defensible (and potentially more egalitarian) doctrine. Recognizing what this Article calls “nonconsensual family obligations” is also the first step toward advocating for the collective responsibility to make the material inputs of family life available to all—rendering family support obligations both broader and more widely spread than we currently imagine them to be.

Koshan: "Challenging Myths and Stereotypes in Domestic Violence Cases"

Jennifer Koshan (Calgary), Challenging Myths and Stereotypes in Domestic Violence Cases, Canadian Journal of Family Law (forthcoming).  Here is the abstract:

Survivors of domestic violence, who are disproportionately women, face numerous myths and stereotypes about the veracity, nature, and extent of violence they and their children experience. False or faulty assumptions about domestic violence can have serious implications for the impartiality of legal actors and can result in harm to women and children. This article identifies the ongoing influence of myths and stereotypes about domestic violence, focusing on the common and evolving misconceptions legal actors have about survivors and the violence they experience. It reviews the literature on myths and stereotypes to catalogue the erroneous assumptions about domestic violence that have been identified and rebutted by scholars and advocates, also exploring why these assumptions can be so entrenched. This review reveals two overarching and related categories of myths and stereotypes about domestic violence: those about survivors’ credibility, and those about the nature and harms of domestic violence. The article then examines the Supreme Court of Canada’s guidance on these myths and stereotypes in criminal and family law decisions, also drawing on sexual assault decisions where there are gaps in recognition. Although some myths and stereotypes about domestic violence and survivors remain to be refuted, the article argues that the Court has provided a strong basis for obliging lower courts and other legal actors to avoid these myths and stereotypes in their decisions. The article concludes with recommendations for addressing myths and stereotypes about domestic violence, focusing on education for judges and other legal actors.

Pre-Nup for Engagement Ring

From Naomi Cahn (UVA) & Julia D. Mahoney (UVA), writing for the Conversation:

When Jennifer Lopez and Ben Affleck got engaged the first time, in 2002, he gave her a very pricey ring. That engagement ring was reportedly worth as much as $2.5 million, made by luxury jeweler Harry Winston and adorned with a 6.1-carat pink diamond.

After the movie stars broke up in 2004 without getting married, J. Lo said she intended to return the ring “quietly” to Affleck. Whether or she ever did that or not, was Lopez entitled to keep the that rock or any of the others she got from her numerous ex-husbands and former fiancés?

The answer can matter to anyone who is engaged, married – or even thinking about tying the knot. No one knows for sure how many engagements end in a breakup, although there are estimates that roughly 1 in 5 do so.

As law professors who teach property and family law, we frequently talk to students – and our own relatives – about gifts and marriage. Students often ask us who owns the engagement ring if couples don’t get married or if they eventually divorce. They also want to know what happens if the ring is stolen.

Read the article here.

Carbone: "Family Courts and the Invisible Middle in an Era of Inequality"

June Carbone (Minnesota) recently posted to SSRN her article Family Courts and the Invisible Middle in an Era of Inequality, Edward Elgar Research Handbook on Family Justice Systems (2023).  Here is the abstract:

This chapter would examine how family law interacts with groups that order informal relationships without marriage, adoption, or contract. Marriage and adoption once served to formalize family relationships. Family law then overwhelmingly addressed two distinct contexts: divorces that dissolved the parties’ relationship and state actions that intervened to address child welfare. Today, however, forty percent of births take place outside of marriage and ever large numbers of couples cohabit, marry, divorce, and cohabit again without necessarily formalizing the terms of their shifting relationships. The chapter will examine how family courts intersect with these changing relationships.

First, while the conventional literature describes these couples as “drifting” into family relationships, the chapter will argue that these patterns reflect class-based community norms tied to understandable wariness about marriage and commitment.

Second, the chapter will suggest that family courts fail to recognize the different norms underlying the relationships, which further increases the reluctance to interact with the family court, increasing the attractiveness of avoiding formalities.

Third, the chapter will maintain that rather than recognize community differences most proposed reforms simply seek to impose marriage-based assumptions on the unmarried.

The chapter will conclude that these patterns form a largely invisible system of family law in which working parents achieve a matter of autonomy only to the degree that they can succeed in staying out of court. The chapter will suggest that family courts cannot simply acknowledge the alternative norms because the dissonance with formal values is too great. Instead, the best hope for reform lies with increased support for informal resolutions, aided by community-based mediation, that gives the parties greater autonomy in resolving their own disputes.

Antognini: "Unwed Parents: The Limits of the Constitution"

Albertina Antognini (Arizona) recently posted to SSRN her article Unwed Parents: The Limits of the Constitution, 35 Journal of the American Academy of Matrimonial Lawyers (2023).  Here is the abstract:

As marriage has evolved to become a more egalitarian institution in both form and substance, nonmarriage remains full of antiquated norms and gendered hierarchies. The Supreme Court has interpreted the Constitution’s applicability to nonmarriage in a number of cases, including in a series addressing unwed fathers; this essay focuses on a close reading of the most recent, Sessions v. Morales-Santana, decided in 2017. In an opinion authored by Justice Ginsburg, the Court struck down the different residency lengths required of unwed mothers and unwed fathers prior to transmitting citizenship to their children as a violation of equal protection. This essay argues that Morales-Santana signals a clear break from earlier unwed fathers cases by identifying the role that law plays in constructing what had previously been presented as unassailable fact. The Court in Morales-Santana exposes a set of ostensibly factual observations as legal judgments that rely on outdated notions of fathers and mothers, and which continue to prop up laws that differentiate between parents on the basis of sex to this day. How constitutional reasoning leads to these outcomes must be carefully scrutinized—if not to change the law, then at least to understand how it comes to be. The point of this essay then is to reveal the mechanisms by which value judgments become hardened into constitutional axioms in order to recover them as contingent, and therefore contestable, opinions.

Part I parses the Court’s reasoning in Morales-Santana and explains how it differs from the cases that have come before it. This Part spends some time analyzing the Court’s decision to consider the unwed mixed-status family contemplated by the citizenship statutes, as opposed to remaining tethered to the American parents. This shift in perspective allows the Court to uncover the gendered assumptions that lie at the root of these laws, and renders the Court’s opinions in related areas vulnerable despite its assurances to the contrary. Part II then turns to what the Court did not do. The opinion in Morales-Santana fails to identify with any specificity the burdens that might accrue to the caretaking parent. It also ignores the ways in which same-sex couples are affected by, and could have helped challenge, the heteronormative family the laws presume. This Part concludes by highlighting the obvious – that the decision not only implicates gender but, critically, citizenship. Yet the Court was silent with regard to the racialized history of the citizenship rules, and fashioned a remedy that wholly ignored the predicament of the respondent, Luis Ramón Morales-Santana. As such, Morales-Santana allows the discrimination it took some steps towards eradicating, to continue.

Happy Spring!

Ngov: "More Than Friends: Recognizing Dichotomous Relationships in the Third Party Doctrine"

Eang L. Ngov (Barry) has recently posted to SSRN her article More Than Friends: Recognizing Dichotomous Relationships in the Third Party Doctrine.  Here is the abstract:

When a person gives information or something tangible to someone or a business, the Fourth Amendment’s third party doctrine allows the government to obtain that evidence without a warrant or probable cause. The third party doctrine is premised on the rationale that we hold no reasonable expectation of privacy when we voluntarily expose information to others and assumed the risk that the third party would share the information and must deal with the consequences of that misplaced trust. The doctrine originated from a series of cases where law enforcement obtained information revealed by criminals through their mistaken trust of other criminals, snitches, or undercover agents posing as criminals, as seen in On Lee v. United States, Lopez v. United States, Hoffa v. United States, Lewis v. United States, and United States v. White.

While the logic behind the impetus for third party doctrine might appear sound, the doctrine’s applications have been faulty. The third party doctrine makes sense when applied to criminals and personal relationships, such as friends, family, and neighbors. But the third party doctrine is incongruous when applied to legitimate commercial relationships, business transactions, or business records, as in United States v. Miller and Smith v. Maryland. We have a reasonable expectation of privacy within legitimate commercial relationships and business transactions because that expectation is protected by contractual duties and rights, industry norms that ensure proper business conduct, assurances given by the business or an independent party to secure our confidence, and legal recourse to vindicate our expectations. Commercial relationships differ significantly from personal relationships because of the differences in trust and privacy expectations between friends and businesses. Legal norms support and reinforce our privacy expectations with businesses and commercial relationships. Our expectation of privacy within business transactions is ensconced in and recognized throughout the legal system–common law, statutes, constitutions, and international law.

Based on the commonsense differences between commercial and personal relationships, this article is the first to propose a new paradigm for the third party doctrine by restraining its application only to the context of personal relationships. This paradigm is the most comprehensive model that has been proposed for refining the third party doctrine and ensures that our privacy does not shrink as technology expands.

Cohen: "Borrowed Wombs: On Uterus Transplants and the 'Right to Experience Pregnancy,'"

I. Glenn Cohen (Harvard) recently posted to SSRN his article Borrowed Wombs: On Uterus Transplants and the "Right to Experience Pregnancy," The University of Chicago Legal Forum 127 (2022).  Here is the abstract:

In December 2017, it was announced that the first birth from a uterus transplant in America occurred at Baylor University (earlier births had been reported from Sweden). In this case the uterus came from a living stranger, but in other reported cases the uterus has been donated by a family member (such as a mother or sister). In still other cases, the uterus has come
from a cadaver, as discussed below literally life brought into being and nurtured from death. In the future, it may also be possible to transplant uteruses on to the male pelvis, allowing trans women assigned male at birth or cisgender men to experience pregnancy, though the science is not yet quite there yet.

These transplant raise a host of interesting questions: would it better to get needed uteruses from
the dead rather than the living? Should uterus donors be paid? For deceased donors, is a general authorization (as with kidney donors) good enough, or should there be a requirement that authorization be given to this specific organ to be donated? Do private or public payers have an obligation to pay for these transplants as they would kidney or liver transplants, or should we think about them more like infertility treatments or even plastic surgery (to use a purposefully provocative comparison)? How, if at all, does the answer differ if the ultimate transplant recipient is a man or a trans person?

This article, part of a symposium issue, does not purport to resolve all or even most of those questions. Its narrower focus is to compare uterus transplants to other ways to achieve parenthood, especially surrogacy and adoption, to evaluate what kinds of rights claims those who seek to use uterus transplants are making against the state and offer some tentative thoughts on how those claims should be treated. Among other things, I consider the way more recent reproductive technology innovations subtly shift the rights claims at issue from rights to *mimick* what is possible through non-assisted reproduction to right to *extend* such reproduction. I then discuss two remaining family law issues with living uterus donors, one related to intra-familial donation and the other to uterus donor anonymity.

 

Happy St. Patrick's Day!

Sexuality in Ancient Rome

From phys.org:

As Pompeii's House of the Vettii finally reopens after a long process of restoration, news outlets appear to be struggling with how to report on the Roman sex cultures so well recorded in the ruins of the city.

The Metro opened with the headline "Lavish Pompeii home that doubled as a brothel has some interesting wall art", while the Guardian highlighted the fresco of Priapus, the god of fertility (depicted weighing his oversized penis on a scale with bags of coins) as well as the erotic frescoes found next to the kitchen.

The Daily Mail, on the other hand—and arguably surprisingly—said nothing about the explicit frescoes and instead centered its story on the house's "historic hallmarks of interior design".

As a scholar who researches modern and contemporary visual cultures of sexuality, I was struck by how the heavy presence of sexual imagery in the ruins of Pompeii seems to confound those writing about it for a general audience.

Read more here.

Keep Dating After Wedding

From Deseret News:

Married couples who have frequent date nights say they’re happier with their relationship and have higher levels of sexual satisfaction, according to a new report, “The Date Night Opportunity,” from the National Marriage Project and the Wheatley Institute at Brigham Young University.

Despite the benefits of dating, a national survey of married couples found just 48% have regular date nights, even though those who do also rate their relationship higher in terms of stability.

Read more here.

Update on Genetically Modified Babies

From Yahoo! News:

He Jiankui, the Chinese scientist behind the world’s first genetically modified human babies, has provided an update on the children’s lives.

The researcher first announced the controversial babies — a pair of twins — in 2018, drawing massive condemnation from the international community. Many accused him of “playing god” as he harnessed the power of CRISPR-Cas9, a tool that alters DNA sequences and modifies gene functions.

He also sparked outrage in his native China, where he was jailed for three years for deliberately violating national biomedical regulations in pursuit of “personal fame and gain.” He was released in April 2022.

Nearly a year after his release, the scientist spoke with South China Morning Post and provided an update on the children’s status.

Read more here.

Save the Date: 2023 Family Law Scholars and Teachers Conference

The 2023 Family Law Scholars and Teachers Conference will be held at Boston College on June 14-15, 2023.  Professor Claire Donohue of BC Law is hosting and coordinating.

Japanese Favor Same-Sex Marriage in Survey

From Reuters:

...

The survey showed 64% of respondents were in favour of recognising same-sex marriage and roughly the same number said a law promoting the understanding of sexual diversity was needed. Just over a quarter of respondents said they were against same-sex marriage.

In November, a Japanese court upheld a ban on same-sex marriage but said a lack of legal protection for same-sex families violated their human rights, a comment welcomed by plantiffs as a step towards aligning Japan with other economically advanced nations.

Read more here.

Child Marriage in Two States

Vermont looking to raise child marriage, but Wyoming might not be able to do so.

Read the Vermont story here, and the Wyoming story here.

Work Spouses

From the Atlantic:

It started out as a fairly typical office friendship: You ate lunch together and joked around during breaks. Maybe you bonded over a shared affinity for escape rooms (or board games or birding or some other slightly weird hobby). Over time, you became fluent in the nuances of each other’s workplace beefs. By now, you vent to each other so regularly that the routine frustrations of professional life have spawned a carousel of inside jokes that leavens the day-to-day. You chat about your lives outside work too. But a lot of times, you don’t have to talk at all; if you need to be rescued from a conversation with an overbearing co-worker, a pointed glance will do. You aren’t Jim and Pam, because there isn’t anything romantic between you, but you can kind of see why people might suspect there is.

The term made a little more sense in its original form. The phrase office wife seems to have been coined in the second half of the 19th century, when the former U.K. Prime Minister William Ewart Gladstone used it to describe the oneness of mind and uncalculating commitment shared by a minister and his (male) secretary. In later decades, the expression became a means of referring to secretaries more generally—that is, to typically female assistants who handled their boss’s tedious affairs at work as his wife did at home. At times, it gestured toward the potential for romance, as in Faith Baldwin’s 1929 novel The Office Wife, in which a wife, a husband, and a secretary are entangled in a web of infidelity. But eventually, this trope fell out of favor; secretaries distanced themselves from the role of their boss’s caregiver, and the influential feminist scholar Rosabeth Moss Kanter criticized the gendered divisions of labor and power imbalances that work marriages created.

But work spouses didn’t so much disappear as evolve. By the late 1980s, in step with changing attitudes toward marriage, the dynamic had started to morph into something more egalitarian. As David Owen, a former contributing editor at The Atlantic, described in a 1987 essay, the new office marriage did not have to be a hierarchical and questionably romantic relationship between a boss and a secretary; it could be a platonic bond between a male and a female peer. The appeal, to Owen, lay as much in what the other person didn’t know about you as what they did: The two of you could share secrets about your real partners, but because your work wife didn’t know about your habit of leaving dirty dishes in the sink, she wouldn’t nag you about it. It was a cross-sex relationship that benefited from professional boundaries, offering some of the emotional intimacy of marriage without the trouble of sharing a household.

Today, your work spouse doesn’t need to be someone of the opposite gender, though McBride and Bergen found that these relationships still tend to occur with someone of the gender you are attracted to. You don’t have to have a real spouse to have a work spouse, though a lot of work spouses do. The office marriage has shed many of the stereotypes that once defined it, but the term itself has strangely persisted.

Read more here.

Marriage Is Sweet, and Helps Blood Sugar Levels

From WebMD:

Living with a spouse or a partner may help middle-age and older adults keep their blood sugar level in check, new research suggests.

And it doesn't even have to be an ideal union. Just having the relationship seems to provide benefit, whether the partners described it as supportive or strained. 

Katherine J. Ford, PhD, with the Department of Psychology at Carleton University in Ontario, Canada, led the study, published online today in the journal BMJ Open Diabetes Research & Care.

The team used data from 2004 to 2013 from more than 3,000 people in the English Longitudinal Study of Ageing (ELSA), a sample of adults in England ages 50-89 and their partners.

The people studied had not been diagnosed with diabetes and were asked over a decade about whether they had a wife, husband, or partner and whether there had been a change in their partnership status.

Ford says they saw an improvement – an average 0.2% decrease in HbA1c, a measure of average blood sugar concentrations over 3 months -- when participants transitioned into a marriage or domestic partnership and a worsening, in this case a 0.2% increase in HbA1c, when they left such a relationship.

To put the results into some context, the researchers say that other work has suggested that a decrease of 0.2% in the average HbA1c value "would decrease excess mortality by 25%.” 

Read more here.

Happy International Women's Day

Dahl's Books

From the Rolling Stone:

EAGLE-EYED READERS OF Roald Dahl might notice some small-but-significant changes within an upcoming republishing of the legendary author’s children’s books as some language has been changed to make it less offensive and more inclusive.

Dahl’s own literary estate approved of the edits, which include changing the description of Augustus Gloop in Charlie and the Chocolate Factory from “fat” to “enormous,” and replacing the word “female” throughout Matilda with “woman,” the Guardian reports.

A spokesperson for the Roald Dahl Story Company said of the changes in a statement, “When publishing new print runs of books written years ago, it’s not unusual to review the language used alongside updating other details including a book’s cover and page layout. Our guiding principle throughout has been to maintain the storylines, characters, and the irreverence and sharp-edged spirit of the original text. Any changes made have been small and carefully considered.”

According to the Guardian, publishers Puffin hired sensitivity readers — “a collective for people who are passionate about inclusion and accessibility in children’s literature,” Puffin said — to comb through Dahl’s children’s books (but not his adult works), with those readers finding over 100 edits, ranging from tweaking or removing a word or two to rewriting entire couplets. 

Read more here.