Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Sunday, October 17, 2021

Justices Seem Ready to Let Kentucky’s Attorney General Defend Abortion Law

From The New York Times:

The Supreme Court heard arguments in an abortion case on Tuesday, but the issue for the justices was a procedural one: Could Kentucky’s attorney general, a Republican, defend a state abortion law when the governor, a Democrat, refused to pursue further appeals after a federal appeals court struck down the law?

As the argument progressed through a thicket of technical issues, a majority of the justices seemed inclined to say yes.

Tuesday’s case, Cameron v. EMW Women’s Surgical Center, No. 20-601, concerned a Kentucky law that challengers said effectively banned the most common method of abortion in the second trimester of pregnancy, dilation and evacuation. The justices barely discussed the law during Tuesday’s argument.

Rather, they focused on the tangled history of the case and the complicated jurisdictional and procedural questions that arose from it.

The case started in 2018, when the state’s only abortion clinic and two doctors sued various state officials to challenge the law. The state’s attorney general at the time, Andy Beshear, a Democrat, said his office was not responsible for enforcing the law and entered into a stipulation dismissing the case against him, agreeing to abide by the final judgment and reserving the right to appeal.

While the case was moving forward, Kentucky’s political landscape shifted. Mr. Beshear, who had been attorney general, was elected governor. Daniel Cameron, a Republican, was elected attorney general.

Alexa Kolbi-Molinas, a lawyer with the American Civil Liberties Union, which represents the challengers, said Mr. Cameron was bound by the stipulation signed by his predecessor. “It doesn’t matter that there’s been a political party change,” she said.

Justice Elena Kagan said that was both basically right and a little unsettling.

Read more here. 

October 17, 2021 | Permalink | Comments (0)

Saturday, October 16, 2021

Top State Court Upholds Trust Provision Requiring Beneficiary to be Unmarried

From The ABA Journal:

The Indiana Supreme Court has upheld a trust provision that made distribution of an inheritance contingent on the beneficiary being unmarried.

The state supreme court ruled Oct. 8 that the provision is not an unlawful restraint on marriage.

The Indiana Supreme Court said Indiana law voids will provisions that condition a spouse’s inheritance on remaining unmarried. But the law doesn’t apply to trusts, which can set marriage conditions on spouses and others.

“The trust code does not prohibit conditions in restraint of marriage at all,” the Indiana Supreme Court said. “What it prohibits is ignoring the settlor’s intent (and where relevant, the trust’s purpose) as manifested in the trust’s plain terms.”

Read more here. 

October 16, 2021 | Permalink | Comments (0)

Friday, October 15, 2021

Families Separated by Trump Administration at the Border Still Waiting For Reunification

From CBS 60 Minutes:

It's been 35 years since Congress last passed a sweeping overhaul of the immigration system. So, president after president has careened from crisis to crisis at the border. President Biden is no different.

His administration is struggling to deal with one of the largest surges of migrants at the southern border in 20 years while, at the same time, trying to clean up another immigration mess you might think was already fixed.  

Michelle Brane leads the family reunification task force formed by President Biden in the first weeks of his presidency. Four federal agencies are working on it, but despite their power and reach, in seven months, they've only reunited 52 families.

Michelle Brane: We estimate that over 1,000, somewhere between 1,000, 1,500 maybe more remain separated. It's very hard to know because there's no record.

A federal investigation described the government's record-keeping during child separations as "ad-hoc."   One border station "used a basic whiteboard" to keep track of the children. Phone numbers, addresses and names for parents were missing. The federal judge who ordered the U.S. government in 2018 to reunite the families wrote, "migrant children are not accounted for with the same efficiency and accuracy as property."

Read more here. 

October 15, 2021 | Permalink | Comments (0)

Thursday, October 14, 2021

Child Welfare: Better Data and Guidance Could Help States Reinvest Adoption Savings and Improve Federal Oversight

From The U.S. Government Accountability Office:

Legislation enacted in 2008 increased federal reimbursement of state assistance payments to adoptive families, saving states more than $800 million from FY 2015-19. But, states must reinvest all of these "adoption savings" back into child welfare services.

From fiscal years 2015 through 2019, states collectively reinvested $516 million of the $843 million they accrued in “adoption savings”.

The Children's Bureau—part of the Department of Health and Human Services' (HHS) Administration for Children and Families (ACF)—monitors states' adoption savings reinvestment, but its oversight is hindered by a lack of detailed data. Further, there is no statutory deadline for states to spend their savings, and Children's Bureau officials said states can delay their spending indefinitely. Also, the state data the Children's Bureau collects annually does not always allow it to definitively determine states' compliance with the requirement to spend at least 30 percent of their annual adoption savings on post-permanency and preventative services, including at least 20 percent on post-permanency services (the 20 and 30 percent requirements). If states do not reinvest their adoption savings or meet the 20 and 30 percent requirements, children will not benefit from the additional spending as intended by the law.

Nearly half (23 of 52) of the states reported in GAO's survey at least one significant challenge to reinvesting their adoption savings, most often citing early spending difficulties such as needing time to understand the new requirements and competing state budget priorities. 

The Bipartisan Budget Act of 2018 included a provision for GAO to study states' adoption savings reinvestment.

Read more here

October 14, 2021 | Permalink | Comments (0)

Wednesday, October 13, 2021

Justice Department Commemorates National Domestic Violence Awareness Month

From The U.S. Department of Justice, Office of Public Affairs:

The Justice Department joins law enforcement partners, victim services professionals, advocates and communities across the country in observing October as National Domestic Violence Awareness Month and announces more than $476 million in Office on Violence Against Women (OVW) grants. The funding supports projects that meaningfully address the needs of underserved and marginalized survivors, improve access to justice, enhance survivor safety, hold accountable those who have caused harm, and provide training and technical assistance to an array of professionals and systems working to address sexual assault, domestic violence, dating violence and stalking in every state and territory, as well as dozens of tribal communities.

In addition to administering grant funding, the department is combatting domestic and sexual violence in local and tribal communities on other fronts. The department has outlined a comprehensive strategy to address violent crime, which asked U.S. Attorneys to evaluate the current drivers of violent crime in their regions, including domestic violence, and to develop strategies to address these drivers. OVW’s announcement today of over $476 million in grants is a key part of that strategy. In addition, on Sept. 20, the department’s Office of Justice Programs announced more than $1.2 billion in Fiscal Year 2021 Victims of Crime Act funding.

In his Domestic Violence Awareness Month proclamation, President Joseph R. Biden, the original author of the Violence Against Women Act, called on all Americans to reaffirm their commitment to ending this violence, and in his Fiscal Year 2022 budget, proposed a historic $1 billion for grant programs administered by OVW.

Read more here.

October 13, 2021 | Permalink | Comments (0)

Tuesday, October 12, 2021

Iranian Authority Mandates Pregnant Women Be Reported To Prevent 'Criminal Abortions'

From ABC News:

"One of the ways to prevent abortion is ... by connecting laboratories and the clinical centres to introduce mothers with positive pregnancy test results," the letter states.

In Iran, abortion is illegal unless there's proof that giving birth would endanger the life of the mother or child, or pregnancy screening tests show the child will have serious physical or mental disabilities. This law only applies to pregnant women who are legally married. Women who get pregnant from extramarital affairs have no legal options for abortion in Iran. While some 9,000 legal abortions are performed annually in Iran, a country of 82 million people, more than 300,000 illegal abortions are also performed there each year, according to the semi-official Tasnim News Agency.

Now, conservatives in Iran are trying to restrict abortions even further by requiring a medical team’s diagnosis as well as the approval of two "faqihs" – or religious experts – and a judge. The controversial bill has yet to be ratified.
Read more here

October 12, 2021 | Permalink | Comments (0)

Monday, October 11, 2021

In China, Abducting Children In A Bid To Gain Custody

From The New York Times:

In China, where courts rarely grant joint physical custody, disputes over children are especially acrimonious. Judges often keep children in their existing living environment, saying it’s best for their well-being. But it creates a perverse incentive for parents going through a split to abduct and hide their children to win sole custody.

For decades, Chinese law did not make it a crime for parents to kidnap and conceal their own children. The problem has become more widespread as the country’s divorce rate has steadily risen. 

In June, the government sought to address the problem by outlawing abductions for custody purposes. Activists welcomed the law but said it was too early to tell whether it would make a difference.

An estimated 80,000 children were abducted and hidden for custody purposes in 2019, according to a recent report by Zhang Jing, a prominent family lawyer in Beijing, citing figures released by China’s highest court.

Many say the figures are most likely higher. A longtime judge in the southern Chinese city of Guangzhou told state news media in 2019 that more than half the contested divorce cases she saw involved the abduction of a child for custody purposes.

Read more here

October 11, 2021 | Permalink | Comments (0)

Sunday, October 10, 2021

Increased Role of Parent Does Not Guarantee Joint Decision-Making Responsibility Award

From Law Times:

A recent case in Ontario decided on the matter of joint decision-making responsibility.

In Khairzad v. Erroussa, 2021 ONCA 667, a couple had separated prior to the birth of their child. Their child had since resided with one of the parties. Father filed a motion for joint decision-making responsibility and increased parenting time based on his increased role in their child's life.

The judge dismissed the motion after finding that mother was a victim of domestic violence from child's father. In the same order, the judge also increased father's monthly child support. Judge noted that child was thriving under primary care of mother, and history of abuse, communication of difficulties, and distrust rendered a joint decision-making arrangement unworkable.

Additionally, for the best interest of the child, an increase of parenting time would be unreasonable.

Read more here.

October 10, 2021 | Permalink | Comments (0)

Saturday, October 9, 2021

The Issue With Mississippi's Child Care Program And Pandemic Funds Might Help

From Winona Times:

Mississippi’s Child Care Development Fund is a federal block-grant program that provides child care assistance to working parents earning up to 85% of the state’s median income, $45,937 for a family of three.

Congress bumped Mississippi’s allocation up to around $90 million for 2018 and 2019, and the state received nearly $145 million in 2020 due to pandemic relief, allowing the state to serve an estimate of up to 30% of income-eligible kids currently. But advocates argue there are still tens of thousands of low-income children disconnected from any publicly available early childhood program. 

One major issue with the child care program in Mississippi is that parents, typically single moms, are required to participate in the state’s child support system, using state-contracted attorneys to go after their spouses in court. In essence, this process leads to child care vouchers being denied or lost. While single moms are facing stress from the workforce since pandemic, more children need help from the pandemic funds.

Read more here.

October 9, 2021 | Permalink | Comments (0)

Friday, October 8, 2021

Division Of Property Among Unmarried Couples

From Investopedia:

Following the pandemic, the number of never-married young adults is likely to break new records. With the trend of fewer young adults getting married, property division becomes a concern for relationship breakups. Property division upon "divorce" of unmarried couples is different than it for married couples, though.

In the example of alimony, unmarried couples would not receive a judgment from the court. Instead, neither partner is entitled to alimony after a breakup unless there is proof of an agreement to provide post-separation support (aka “palimony”). Child visitation and child support are another big area for both types. A civil union (sometimes called a “domestic partnership”) is a legal relationship between two partners that can confer rights at the state level, with no federal protections or benefits. Though created to allow same-sex couples to legalize their relationships, it is also available to heterosexual couples in lieu of marriage. Some states, however, stopped offering civil unions when same-sex marriage became legal.

Today only four states (New Jersey, Illinois, Hawaii, and Colorado) allow couples to initiate new civil unions. Vermont still recognizes older civil unions, but it maintains separate procedures for divorce and civil union dissolution.

Read more here.

October 8, 2021 | Permalink | Comments (0)

Thursday, October 7, 2021

Petitions Filed to Supreme Court Asking For The Review Of Constitutionality Of Indian Child Welfare Act

From Muscogee Nation News:

The state of Texas, four tribes along with several parents, including non-Native, have filed petitions asking the U.S. Supreme Court to review the constitutionality of the Indian Child Welfare Act (ICWA). Also seeking review is President Joe Biden’s Secretary of the Interior, Deb Haaland, who became the named lead defendant in the case upon being confirmed to her position.

The petitions are a response to the U.S. 5th Court of Appeals decision last April in the Brackeen v. Halaand, formerly Brackeen v. Bernhardt, that alleged ICWA is unconstitutional for discriminating against non-Native families in the placement of Native children. The court ruled that Congress has authority to enact ICWA which gives preference to Indigenous families in the adoption of Native American children.

ICWA was passed by Congress in 1978 in response to Native American children being placed with non-Native families after being removed from their homes. Research by the National Indian Child Welfare Association found 25%-35% of all Native children were forcibly removed from their home by state child welfare and private adoption agencies and of those, 85% were placed with non-Native families, even when fit and willing relatives were available.

Read more here.

October 7, 2021 | Permalink | Comments (0)

Wednesday, October 6, 2021

Islam: Guardian Approval For Marriage May Be Abused

From The National:

Automatic legal services are allowing hundreds of women in Saudi Arabia to file, argue and win court proceedings that grant them a judge's approval to bypass their guardian's consent for marriage.

Saudi lawyer Hazim Al Madani says that while guardianship approval is a prerequisite for women's marriage in Islam, some guardians abuse the powers granted to them by the law. Many Saudi women's families would not consent to the marriage solely based on men's nationalities, "religiosity and morals." 

In 2018, Saudi Arabia granted women the ability to work without getting permission from a legal guardian. This has given them the freedom to keep personal issues protected from scrutiny and abuse. Under previous guardianship restrictions, a woman could find herself redundant because her guardian no longer approved of her employment. Mr. Al Madani said the select number of court proceedings published by the ministry on its website encourages women in similar situations to tackle their own issues through the legal system.

Read more here.

October 6, 2021 | Permalink | Comments (0)

Tuesday, October 5, 2021

Biden Administration Reversed A Ban On Abortion Referrals By Family Planning Clinics

From NPR:

Biden campaigned on a promise to overturn the restrictions on family planning clinics, but abortion was not a central issue in the 2020 presidential race. It may become one in the 2022 midterm elections to determine who controls Congress.

"Given the attacks on abortion in Texas and across the country, it's more important than ever that patients can access their choice of birth control and other health care through Title X," Planned Parenthood President Alexis McGill Johnson said in a statement.

The new abortion referral policy for family planning clinics will take effect Nov. 8.

Read more here.

October 5, 2021 | Permalink | Comments (0)

Monday, October 4, 2021

Congress Has Opportunity to Address The Issue Of National Paid Family Leave Policy

From CNBC:

A sweeping new legislative proposal on Capitol Hill could give Congress a rare opportunity to address an issue that has long been on the backburner – paid family leave.

Lawmakers on both sides of the aisle have proposed a national paid leave policy so that all workers can take time out of work. The Covid-19 pandemic has helped focus attention on the issue, which was largely untouched by Congress since the Family and Medical Leave Act of 1993 let workers take unpaid leave for family or medical reasons.

Now, lawmakers are negotiating the terms of a more permanent policy, which could give workers up to 12 weeks’ time off. If approved, more workers will be able to take time off to care for loved ones or tend to their own medical needs. Families who have struggled to juggle health issues and work without access to paid leave say such a policy would have made a huge difference in their lives.

Read more here.

October 4, 2021 | Permalink | Comments (0)

Sunday, October 3, 2021

Deadline Approaching for States to Implement Family First Federal Law

From The Colorado Sun:

Under the Family First law, states are rewarded for keeping children in family settings instead of institutions

A decade ago, 1,257 foster kids in Colorado were living in group homes and institutions, the kind of places where children and teens line up for medication and eat at appointed meal times in a cafeteria. That number now has dropped to 339, a joyful statistic that means hundreds of kids are instead living in homes with relatives and foster families. 

The shift is the entire premise behind the Family First Prevention Services Act, a federal law that overhauled child welfare funding and has forced states to redesign programs to put more emphasis on preventing out-of-home placements. After years of planning, the Oct. 1 deadline to follow the law is one week away.

But for state and county child protection officials, the work is not over. While Colorado has managed to steer kids to “kinship” and other family placements, and has ramped up a host of abuse and neglect prevention programs in preparation for Family First, critics say the shift has come so swiftly that Colorado now lacks enough beds at residential centers and psychiatric facilities for the young people with the most acute mental health issues.

Read more here. 

October 3, 2021 | Permalink | Comments (0)

Saturday, October 2, 2021

Michigan Grassroots Grow Efforts To Reverse Surrogacy Ban

From Above the Law:

Michiganders are organizing to have their voices heard on the state’s more than 30-year-old surrogacy ban. On August 26, the Michigan Fertility Alliance met to prepare for an advocacy day scheduled for September 22, 2021.

The group is focused on educating Wolverine State legislators on the unique –- not in a good way –- status of Michigan law when it comes to family building options. The members and their supporters say that, despite what may have been good intention when original passed, the surrogacy ban has led to nothing but hardships for folks who hope to grow their families.

Back in the late 1980s, following a surrogacy scandal known as the Baby M case, Michigan, along with other states like New York and New Jersey, passed laws banning and even criminalizing surrogacy. Since that time, New York, New Jersey, and pretty much every other state that had an anti-surrogacy law on the books, has reversed course and passed surrogacy-supportive regulations. Michigan stands alone in its extreme stance, threatening felony punishment for anyone who assists with a surrogacy contract in contradiction to the law, and forcing parents to undergo arduous legal processes to obtain legal rights to their own children.

Read more here

October 2, 2021 | Permalink | Comments (0)

Friday, October 1, 2021

International Battle Over 6-Year-Old Cable-Car Survivor Goes to Court

From The New York Times:

The fate of Eitan Biran, whose parents were killed at an Italian mountain resort in May, has become an international cause pitting relatives in Israel against those in Italy.

October 1, 2021 | Permalink | Comments (0)

Thursday, September 30, 2021

You Don’t Have To Be Britney Spears To Get A Prenuptial Agreement

From CNBC:

Millions of people congratulated Britney Spears on her recent engagement. Almost as many urged her to get a prenuptial agreement. . . . In fact, the singer’s assets are valued at more than $50 million, which makes the pop star and her long-time love obvious candidates, but fame, fortune and a financial conservatorship aside, most couples can benefit by sorting out some money issues before tying the knot.

For example, prenups, which generally safeguard real estate and investments holdings, savings accounts or a business, can also offer the chance to hash out how a partner could be compensated for leaving the workforce to care for their children.

In addition, it’s increasingly common that there are complicating factors, including children from a previous relationship, a family business, real estate and investments holdings, or one partner’s student loan or credit card debt.

A solid prenup can even help couples stay married, according to Penelope Hefner, a family law attorney and principal of Sodoma Law Union in Monroe, North Carolina. It’s an opportunity to have those conversations about money, she said. Doing this before getting married gives each person a better understanding of what’s most important to their partner as well as the chance to discuss and set shared goals.

Read more here. 

September 30, 2021 | Permalink | Comments (0)

Wednesday, September 29, 2021

Rewriting Your Will After Divorce

From Investopedia:

Many states have laws that, after a divorce, automatically revoke gifts to a former spouse listed in a will. . . . Some states go even further to include provisions that revoke gifts to family members of a former spouse.

Typically, if you had alternate beneficiaries listed in your will, the gifts would default to them. If you had no alternate beneficiary for a gift, the person you listed in your will as a residual beneficiary would inherit the assets in question. However, it is not a great idea to rely on state law in these matters. Additionally, during the divorce process, you are still technically married, and you may wish to change your beneficiaries in advance of the final divorce decree

Most married people leave everything in their will to their surviving spouse. If this is how your will currently reads, be sure to remove your ex-spouse as a beneficiary and add a new beneficiary. Be aware, however, that many assets are passed outside of a will. These asset transfers are based on bank or insurance documents. Therefore, it is also critical to change the beneficiary designation on those documents. 

The important items to update in your will are your beneficiaries, executor, property, and guardianship of minor children. 

Read more here

September 29, 2021 | Permalink | Comments (0)

Tuesday, September 28, 2021

Should Foster Youth Age Out At 21? This Week’s Cutoff of Pandemic Relief Money Again Raises the Question

From The Seattle Times:

[A]s part of its emergency response to the pandemic, the federal government last year required states to continue providing benefits to those who would otherwise age out of “extended foster care” programs for young adults. Washington used federal pandemic relief money to do so.

On Thursday, the moratorium on aging out is set to expire, cutting off payments to about 320 people in Washington and 20,000 nationwide, unless the feds or the state step in.

The federal government, in addition to issuing the moratorium, allocated $400 million in emergency funding to help 23- to 26-year-old former foster children. The deadline for distributing that money, unless extended, is also Thursday. Treehouse, charged with administering $1.65 million in Washington, has so far only been able to find 600 of an estimated 2,800 of these young adults, according to Rains.

The pandemic has heightened worries that already existed about those aging out of the foster system. Some say 21 is too soon — even in normal times — to expect them to be completely independent.

Advocates note California in July approved a plan to send monthly checks of up to $1,000 to 21- to 24-year-olds who have been through the foster care system — heralded as the country’s first guaranteed income program.

Read more here. 

September 28, 2021 | Permalink | Comments (0)