Author Archive for solangel-maldonado
Introducing Guest Blogger Rachel Godsil
posted by Solangel Maldonado
I’m very pleased to announce that Professor Rachel Godsil is back for another guest visit. Rachel is the Eleanor Bontecou Professor of Law at Seton Hall University School of Law where she teaches Property, Family Law, Equality Under American Law, and Zoning and Land Use Policy. She has also taught at the University of Pennsylvania Law School. While on sabbatical, she served as convener of the Urban and Metropolitan Policy Group, advisor to the HUD transition team, and co-directed a report to HUD entitled “Retooling HUD for a Catalytic Federal Government.”
Rachel graduated from the University of Michigan Law School, where she served as executive articles editor of the law review, was awarded the Henry M. Bates Memorial Award, and was elected to the Order of the Coif. Prior to joining the Seton Hall faculty, she clerked for the Honorable John M. Walker, Jr., U.S. Court of Appeals for the Second Circuit, was an Assistant United States Attorney for the Southern District of New York, and Associate Counsel at the NAACP Legal Defense and Educational Fund. She was also an associate with Berle, Kass & Case and with Arnold & Porter in New York City.
Rachel has written extensively on the convergence of race, poverty, and the environment. Her recent publications include:
* Protecting Status: The Mortgage Crisis, Eminent Domain, and the Ethic of Homeownership, 77 Fordham L. Rev. 949 (2008)
* Contaminants in the Air and Soil in New Orleans after the Flood: Opportunities and Limitations for Community Empowerment (co-authored with Al Huang and Gina Solomon), in KATRINA AFTER THE FLOOD (Robert Bullard, ed. 2008).
* Building Upon Sax’s Edifice: The Evolution of Environmental Justice and the Challenges of the Engaged Scholarship (Gerald Torres, ed. 2007)
* Just Compensation in an Ownership Society (co-authored with David Simunovich), in PRIVATE PROPERTY, COMMUNITY DEVELOPMENT, AND EMINENT DOMAIN (Robin Paul Malloy, ed. 2007)
* Race Nuisance: The Politics of Law in the Jim Crow Era, 105 Mich. L. Rev. 505 (2006)
* AWAKENING FROM THE DREAM: CIVIL RIGHTS UNDER SIEGE AND THE NEW STRUGGLE FOR EQUAL JUSTICE (co-edited with Denise Morgan) (Carolina Academic Press 2005)
Rachel’s law review note, Remedying Environmental Racism, 90 Mich. L. Rev. 394 (1991) is one of the most cited law school notes of all time.
November 1, 2009 at 8:12 am
Posted in: Administrative Announcements
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Unmarried Couple Ban Symposium
posted by Solangel Maldonado
This symposium announcement just crossed my desk:
The Arkansas Law Review will host a symposium on the Unmarried Couple Adoption Ban on November 5, 2009, at the University of Arkansas School of Law in Fayetteville, Arkansas. The symposium will address the legal and political issues surrounding what was Arkansas’s Initiated Act 1, banning the adoption of children by unmarried couples in the state, as well as the national context in which it was passed. It will represent a balanced presentation of the various viewpoints on this widely debated issue.
Primary speakers will be Professor Mark Strasser of Capital University School of Law and Professor Lynn Wardle of Brigham Young University Law School. Representatives from Arkansas Advocates for Children & Families and the Family Council Action Committee will also participate.
October 14, 2009 at 1:31 pm
Posted in: Conferences, Family Law
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Assimilation: What Will It Mean for Affirmative Action?
posted by Solangel Maldonado
Orlando Patterson, the well-respected Harvard sociologist, wrote an article in the New York Times this week in which he argued that immigrants from Latin America and Asia will assimilate into mainstream American culture (whatever that might be) in the same way as European immigrants from the late 19th and early 20th century had. Maybe he’s right. Although social scientists have argued that Latino and Asian immigrants will not be able to assimilate as rapidly as Irish, Italian, and Jewish immigrants because the former are not white, there is some evidence suggesting that the children of Latino and Asian immigrants are assimilating quite well. They tend to be English-dominant (many do not speak or understand their parents’ native language), they have high intermarriage rates (with whites primarily but also with other groups), and many reside in integrated or predominantly white neighborhoods—all indicators of assimilation. Many Latinos (approximately 50% according to Patterson) also self-identify as white, suggesting that their experiences might not be that different from those of European immigrants.
These facts notwithstanding, many Latino and Asian-American scholars would disagree with Professor Patterson’s assertion. They would point to continuing discrimination and evidence of implicit biases against Latinos and Asian-Americans and the widespread perception that these groups are not “really American,” as illustrated by the question “no, where are you really from?” when a person who does not look Black or White says that he is from Texas, California, or Kansas.
August 21, 2009 at 12:55 pm
Posted in: Race
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Is Divorce Too Easy? Helping Marriages Survive Infidelity
posted by Solangel Maldonado
Last week I came across a New York Times article that has led me to question my position on the legal regulation of divorce. I generally agree that once a person decides to end his or her marriage, there is little that lawmakers can do to help “save” it. Most people know that divorce often wreaks havoc on the family’s financial security, is almost always painful for the children, and can have long term negative effects on children’s emotional health, academic achievement, and adult relationships. Despite this knowledge, approximately one million children each year experience their parents’ divorce. Although there are many reasons why couples divorce, adultery is often at the top of the list. While some states require spouses seeking a no fault divorce to live apart for a statutory period (often 6 months), no state imposes a waiting period when the alleged ground is adultery. Adultery is seen as a marital offense that no one should have to endure. Indeed, until the late 1960s, adultery was the only ground for divorce in New York. It turns out, however, that most marriages survive adultery. In other words, although a betrayed spouse has the legal right to file for divorce immediately (at least in the two-thirds of states that still have fault based divorce), most do not. Marriages often last for years after the infidelity is discovered.
Many of us find it hard to believe that, in a time of websites with mottos such as “Life is short. Have an affair“, marriages might actually be stronger and more resilient today than they were 20 or 30 years ago. The divorce rate has stabilized in recent years after rising dramatically in the 1970s and 80s. In addition, the 10-year divorce rate for couples who married in the 1990s is significantly lower than that of couples who married in the 70s and 80s. Admittedly, a lower divorce rate does not necessarily mean that spouses are happy, but marriage has traditionally served a greater good than promoting the happiness of its individual members. The Supreme Court has described marriage as the “foundation . . . of society, without which there would be neither civilization nor progress.” Zablocki v. Redhail, 434 U.S. 364, 384 (1978).
Given society’s interest in marriage and all of the negative consequences of divorce, should law incentivize couples to repair the marriage after infidelity? For example, the reason why some states require couples seeking a no fault divorce to live apart for a significant period of time is that lawmakers believed that this waiting period might actually lead to reconciliation. The hope was that spouses who were living apart while waiting out the statutory period would come to the realization that they did not want to be apart and would reconcile. I am not aware of any empirical evidence suggesting that this waiting period actually leads to long term reconciliation, but many couples do reconcile after separation. Maybe they would not have done so had they been able to seek a divorce immediately.
Studies have found that at least two-thirds of people who discovered a spouse’s affair were still married and living with the cheating spouse years later. These studies might suggest that the law need not provide an incentive for spouses to stay together after infidelity—the majority are already doing so even though they have legal ability to exit immediately. Of course, there are many reasons why a betrayed spouse might stay (for the sake of the children or financial stability, for example) even if the law does not place any obstacles to exit. But is it possible that some marriages that did not survive infidelity could have survived had the law made divorce more difficult? Is it possible that a woman (whose first instinct upon discovering her husband’s affair is to kick him out) would give him a second chance if she knew that she was stuck with him anyway for at least another 6 months to a year. As the New York Times article noted, although the wife of unfaithful South Carolina Governor Mark Sanford asked him to move out after she discovered his affair, she still believes that their marriage can be repaired. What if the law could give them a push in that direction? Although a waiting period alone might not change spouses’ willingness or desire to try and save their marriage after an affair, social norms might. If the law were to require a cooling off period in cases of adultery, as it often does in no fault divorce cases, it would signal that adultery is forgivable—that society no longer considers it an offense that no one should be expected to endure. As a result, individuals who do not give their cheating spouses a second (or third, or fourth) chance could be stigmatized as uncommitted or even selfish. Therein lies the challenge when law tries to regulate intimate relationships. How can lawmakers encourage stronger marriages (which are presumably good for society and children) while simultaneously respecting individuals’ rights to personal happiness and freedom?
July 9, 2009 at 11:52 pm
Posted in: Family Law
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Criminalizing Matchmaking: Mail Order Marriage Laws
posted by Solangel Maldonado
During his recent appearance on the Late Show with David Letterman, actor Alec Baldwin, who has been involved in a bitter custody dispute with his ex-wife for years, offended many people when he said that he would love to have more children and was “thinking about getting a Filipino mail-order bride.” Mr. Baldwin has since apologized for the insensitive comment and admitted that “such anger and frustration about the issue of sex trafficking is understandable.” Admittedly, some mail order marriages are the result of sex trafficking, but does this mean that countries should criminalize the mail order marriage industry as the Philippines has done?
The Philippines has two statutes addressing mail order marriages. Republic Act No. 6955, enacted in 1990, makes it a crime for any person to ”carry on a business which has its purpose the matching of Filipino women for marriage to foreign nationals either on a mail-order basis or through personal introduction.” The penalty for violation of the Act is a minimum six years imprisonment. In addition, if the offender is a foreigner, he will be deported (after serving his sentence) and permanently banned from Philippines.
In 2003, the Philippines enacted the Anti-Trafficking in Persons Act,which, among other things, makes it illegal “To introduce or match for money, profit, or material, economic or other consideration . . . any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage.” The penalty for violation of the Anti-Trafficking Act is 20 years imprisonment and a minimum fine of one million pesos.
Despite these laws, the mail order bride industry continues to flourish. Experts estimate that one-third to one-half of all foreign fiancees who enter the United States each year met their American husbands-to-be through an international marriage broker. A large majority of the women come from Southeast Asian countries, including the Philippines, and the law has had little effect on international marriage brokers who do a lot of their advertising and matching online. Although the United States also has laws regulating the mail order bride industry, some commentators argue that these marriages exacerbate gender, race, and class inequalities and thus, the United States should follow the Philippines’ approach. Thoughts?
June 10, 2009 at 8:35 am
Posted in: Family Law, International & Comparative Law
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Forgiving the Ex, Part III
posted by Solangel Maldonado
In my last post, I proposed that states require or recommend that angry, divorced parents participate in forgiveness interventions. While many people are probably skeptical of the law’s ability to cultivate forgiveness between divorced parents, lawmakers have already attempted to facilitate forgiveness in other contexts, for example, victim offender mediation (“VOM”) in criminal cases.
During a VOM, the victim has the opportunity to tell the offender how his crime has impacted his or her life. The offender is then given the opportunity to express his feelings and reasons he committed the criminal act. Many crime victims who participated in VOM have been able to forgive their offenders for acts ranging from petty thefts and vandalism to horrendous crimes such as rape and murder of a loved one.
Some of the factors that have made VOM successful as far as enabling crime victims to start healing might apply in the context of divorce. First, just like crime victims, divorcing spouses often feel that an injustice has been done to them. Second, similar to crime victims who have benefitted from telling their attackers how their crimes have negatively impacted their lives, divorcing spouses want their spouses to know just how deeply they have hurt them. Third, in VOM, the opportunity to listen to the attackers’ reasons for their behavior has helped victims forgive. Listening to a former spouse express his feelings and reasons for his hurtful behavior might similarly enable a hurt spouse to feel compassion and empathy, necessary elements of forgiveness.
May 5, 2009 at 8:46 pm
Posted in: Family Law
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Forgiving the Ex, Part II
posted by Solangel Maldonado
In a post last week, I discussed the negative effects of persistent anger against a former spouse, including the harm to their children. I suggested that maybe lawmakers need to encourage divorced parents to forgive each other. As I write this sentence, I realize how naïve and simplistic that sounds. How are lawmakers supposed to help people forgive a former spouse who abused, betrayed, or neglected them? Doesn’t encouraging people to forgive suggest that their anger is unwarranted? Doesn’t it suggest that the injurer’s actions were justified or that one is condoning or excusing her wrongful and unjust behavior? Well, no. Forgiveness does not mean that the forgiver does not have a right to be angry. To the contrary, the person who forgives chooses to “abandon [her] right to resentment . . . toward one who unjustly injured [her] while fostering the undeserved qualities of compassion, generosity and even love toward [the injurer].” Enright et al. (1999).
When asked if they have considered forgiving someone who has hurt them deeply, people often reply that the other person “doesn’t deserve forgiveness.” That may be so, but one does not forgive for the injurer’s benefit, but for one’s own benefit and possibly, for the benefits to one’s children. As I discussed in my earlier post, forgiveness may reduce anger and its negative effects on one’s physical and psychological health and parenting abilities. It might also reduce some of the destructive behaviors some parents engage in after divorce such as interfering with the other parent’s access to the children or disparaging him or her in front of the children. It might also enable some former spouses to cooperate as co-parents in their children’s upbringing. The question is not why divorced parents should forgive, but rather how can they be encouraged to do so?
May 2, 2009 at 10:16 pm
Posted in: Family Law, Law and Humanities
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Forgiving the Ex
posted by Solangel Maldonado
It seems that Americans are giving a lot of thought to forgiveness these days. We are asking ourselves whether we should forgive Eliot Spitzer, bailed-out bankers, and the Bush administration’s practice of torture. Oprah and the Mayo Clinic have sections on forgiveness and, a few weeks ago, Case Western Reserve Law School held a symposium on “Forgiveness, Reconciliation, and the Law” where the keynote speaker, Jens Meierhenrich, analyzed the Truth and Reconciliation Commission of South Africa. I want to focus on an area where I think forgiveness matters most—at home.
It is no surprise that some (possibly many) divorcing spouses feel angry and vengeful during and after the divorce. This anger may be healthy at first. It might motivate a battered spouse to leave her abusive partner or push a husband to leave an unfaithful wife who is unlikely to change her behavior. Anger is a sign of self-respect and belief in one’s self-worth. However, anger that endures for months, years, even decades, is not healthy. Studies have found a correlation between long-term anger and high blood pressure, poor cardiovascular health, depression, anxiety, and sleep disorders.
April 24, 2009 at 6:10 pm
Posted in: Family Law
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Violence Against Women and Forgiveness
posted by Solangel Maldonado
“In the U.S., a woman is beaten by her partner every 9 seconds.” This was the subject line of an email announcing tonight’s Take Back the Night rally at Seton Hall Law School to raise awareness and protest violence against women. Although I have seen the statistic many times and I cover domestic violence in my Family Law course, I am still shocked by the prevalence of domestic abuse. According to the U.S. Department of Justice, one-third of all female murder victims are killed by an intimate partner and the proportion of female murder victims killed by an intimate partner has been increasing in recent years.
As shocking and disturbing as these statistics are, I am actually more surprised by number of teenage girls who do not see domestic abuse for what it is—a crime. I am referring to (you guessed it) R & B singer Chris Brown’s attack on his girlfriend, pop star Rihanna. According to court documents, Brown shoved Rihanna’s head against a car window, then punched, bit, and choked her nearly to the point of unconsciousness. He also threatened to kill her. Although Brown has been charged with two felonies—assault and criminal threats—46% of teenagers in a recent survey said that Rihanna was responsible for the attack and 52% said that they were both responsible. Why do so many teens blame the victim?
March 31, 2009 at 10:24 am
Posted in: Criminal Law, Family Law, Feminism and Gender
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International Child Abductions and Children’s Best Interests
posted by Solangel Maldonado
Some of my family law students have been following the international custody case involving Brazil and the United States. According to David Goldman, a New Jersey resident, in June 2004, his wife took their four year-old son, Sean, to Brazil on vacation where he was supposed to join them a week later. However, a few days after arriving in Brazil, his wife informed him she was divorcing him and would remain in Brazil with their son. This case is not unique. Thousands of parents each year remove children from their country of residence and retain them in another country without the other parent’s consent, in breach of the other parent’s custodial rights. Lawmakers around the world have long known that international child abduction by a parent is a serious problem and have attempted to create a mechanism to ensure that children are returned to their country of residence. Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, ratified by 68 nations, the signatory countries agree to promptly return a child who has been wrongfully removed to or retained in another signatory country.
Unfortunately, the Hague’s procedural mechanisms do not always work for two reasons. First, courts do not always comply with the Hague and second, even when they do, abducting parents sometimes go into hiding with the child and cannot be found. The retaining country and its law enforcement officials often make little effort to find the child.
March 16, 2009 at 1:16 pm
Posted in: Family Law, International & Comparative Law
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The Beginning of the End of Palimony
posted by Solangel Maldonado
Most unmarried couples probably give little thought to their legal rights should the relationship end (either by breakup or death of one of the parties). They might be surprised to learn that a state that was once quite receptive to palimony claims can decide to effectively bar such claims. Couples in New Jersey are about to learn this lesson. The state legislature is considering a bipartisan bill which would require palimony agreements to be in writing and be signed by the party against whom the claim is brought.
The bill, which is expected to pass unopposed, reflects a drastic shift in the state’s approach to palimony agreements. New Jersey courts currently enforce express (oral or written) or implied promises of financial support so long as there is some form of consideration sufficient to form a contract. The New Jersey Supreme Court is also the only state supreme court to hold that “cohabitation is not an essential requirement for a cause of action for palimony,” a requirement in all other states. By requiring palimony agreements to be in writing, the state most favorable to palimony claimants may become one of the most hostile to such claimants.
February 9, 2009 at 3:40 pm
Posted in: Family Law
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Stealing Love
posted by Solangel Maldonado
Love is a wonderful thing, but sometimes love (or infatuation) leads individuals to engage in behavior that can hurt not only them, but also their families. I am talking about extramarital affairs. Although over 85% of Americans believe that adultery is morally wrong, countless spouses are unfaithful. Last week the NY Times discussed the benefits of an anti-love vaccine which would prevent humans from falling in love with the wrong person (i.e., someone who is committed to another person). While such a drug would do wonders for those who wish to fight the occasional urge to stray, it does little to deter individuals who have no qualms about pursuing someone else’s spouse. The law, however, might already provide a deterrent, albeit a quite controversial one.
A minority of states, including Mississippi, North Carolina, South Dakota, and Utah, still recognize a cause of action for alienation of affections against any person who wrongfully interferes with a person’s marriage, thereby causing that person to lose his or her spouse’s affection. Lest you think these causes of action are a thing of the past, this past August, the Mississippi Supreme Court upheld a $1.5 million verdict against an attorney who had an affair with his client’s wife. The plaintiff, who had hired the attorney in connection with a medical malpractice case, prevailed on his claims for intentional infliction of emotional distress, breach of contract, and alienation of affections. Further, even after abolishing the tort of alienation of affections, some states, including California, Connecticut, Kentucky, Maryland, Ohio, Oregon, and Virginia, have allowed claims arising from an extramarital affair to be brought against certain professionals, including attorneys, psychiatrists/psychologists, and clergymen providing marital counseling services, on a theory of intentional infliction of emotional distress, professional malpractice, negligent counseling, and breach of fiduciary duty. For example, eight years after abolishing the tort of alienation of affections, the Kentucky Supreme Court upheld a claim for intentional infliction of emotional distress against a priest who had an affair with the plaintiff’s wife to whom the priest was supposedly providing marriage counseling.
January 20, 2009 at 10:13 pm
Posted in: Family Law, Tort Law
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Should Parents Lose Custody of Obese Kids?
posted by Solangel Maldonado
As I was preparing my new syllabus, I came across a case that forced me to think about the extent to which parents should bear responsibility for their children’s obesity. It is well-known that obesity places children at greater risk of Type 2 diabetes, heart disease, kidney failure, and possibly cancer later in life. Sixteen percent of American children and adolescents are obese; another sixteen percent are overweight. The medical profession has warned that, as a result of the rise in childhood obesity, the current generation of American children may have shorter life expectancies than their parents.
I believe that parents should make efforts to provide their children with healthy foods and regular exercise. However, I question whether parents who do not control their children’s weight problem should lose custody of their children to the state? Are we willing to hold that a parent who does little to address his child’s obesity has neglected his child in the same way as if he had failed to provide him with adequate nourishment or supervision? Courts and child welfare agencies are grappling wth this issue. In a recent case, In re Brittany T., a New York Family Court ordered the removal of a morbidly obese child from her parents’ home based on the parents’ consistent failure to comply with the court’s order that they take her to the gym 2-3 times a week and attend a nutrition and education program, among other things. Although the case was reversed on appeal, the New York Appellate Division did not hold that child obesity can never be grounds for neglect, but rather that, in this particular case, the Department of Social Services had not shown that the parents had willfully violated the terms of the court’s order. In fact, although Brittany had gained 25 pounds in five months, the evidence showed that her parents had taken her to the gym at least once a week, had met with a nutritionist, and had kept a food log for her. Yes, the food log reflected that Brittany ate “lots of chicken nuggets, lots of pop tarts, hot dogs, and pizza,” but the parents had maintained the log, as ordered.
January 12, 2009 at 10:59 am
Posted in: Family Law
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Polygamists Indicted in British Columbia
posted by Solangel Maldonado
The day after I posted What Exactly is Wrong with Polygamy, the Canadian press reported that two alleged leaders of the polygamous community of Bountiful in British Columbia had been charged with practicing polygamy in violation of the Criminal Code. The Code makes it a crime for any person to enter into “any kind of conjugal union with more than one person at the same time.” One of the charged men is alleged to have 20 wives; the other man is alleged to have two wives. There is no allegation that the defendants’ wives are underage. Although no charges have been brought against any of the wives, as Angela Campbell has pointed out, “[e]nforcing the criminal law against polygamy risks imprisoning not only the women’s husbands, but also them.”
The criminal indictment has placed the issue of polygamy at the forefront of Canadian constitutional law. The British Columbia authorities have been aware of the practice of polygamy in Bountiful for decades, but had chosen not to prosecute, in part, because some legal experts believe that the prohibition on polygamy will not survive a constitutional challenge. The Canadian Charter of Rights and Freedoms protects “freedom of conscience and religion.” In fact, the British Columbia Attorney General sought legal advice from three independent sources before deciding to approve the indictment and two recommended against charging the men with polygamy. The opinion of the third source has not been released.
Unlike the U.S. Supreme Court, which has rejected claims of religious freedom to practice polygamy, the Supreme Court of Canada has never addressed whether laws prohibiting polygamy violate the guarantee of religious freedom under the Charter of Rights. The accused men, who are alleging religious persecution, are likely to claim religious freedom as a defense to the charges. It will be interesting to see how this case develops.
January 10, 2009 at 11:54 am
Posted in: Family Law, Religion
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What Exactly is Wrong With Polygamy?
posted by Solangel Maldonado
Thanks to Concurring Opinions for inviting me back to blog this month. I look forward to your comments.
I have been thinking a lot about polygamy lately. As I prepare to teach Family Law once again, I am confronted with polygamy everywhere I turn. First, the third season of Big Love, the HBO series about a Utah entrepreneur struggling to support and “satisfy” his three wives and eight children, begins next week. Second, last April, the Texas Department of Family and Protective Services removed 468 children from their homes in a polygamous ranch. Although the Texas Supreme Court ordered the children’s return to their parents after finding no immediate danger warranting emergency removal, child protective services has continued its investigation in a handful of cases. Third, I have been following Professor Angela Campbell’s research on the polygamous community of Bountiful in British Columbia, which has challenged some of my assumptions about polygamous wives. Finally, I recently learned that polygamy is practiced in the U.S., not only by members of a fundamentalist Mormon sect in Utah, Arizona, and Texas, but also by Black Muslims and African immigrants in New York and Philadelphia. This brings me to the question I would like to raise: What exactly is wrong with polygamy? I will discuss some frequently made arguments and look forward to reading yours.
Polygamy is illegal in all 50 states. Yet, it is estimated that 50,000 to 100,000 men, women, and children live in polygamous households in the U.S. Most polygamists do not enter into plural marriages for purely personal reasons, but rather are guided by religious beliefs. Members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (which broke with the Mormon church in 1890 when the latter disavowed polygamy) believe that only men who have at least three wives will enter the highest level of heaven and that women can only get to heaven if their husbands take them there. The United States Supreme Court, in Reynolds v. United States , rejected claims of religious freedom under the First Amendment to practice polygamy.
January 6, 2009 at 10:00 pm
Posted in: Family Law, Feminism and Gender, Religion
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Facilitating Paternal Involvement
posted by Solangel Maldonado
In a post last week, I discussed some of the reasons why so many noncustodial fathers disengage from their children. I received many thoughtful comments, some of which discussed the law’s unstated preference for maternal custody and mothers’ interference with visitation. Admittedly, some mothers do interfere with visitation and courts should do more to enforce fathers’ rights. However, we cannot ignore the opposite problem—fathers who do not see their children even when there is no one preventing them from doing so. There are many fathers who see their children less often than the custodial mother would like and less often than they are entitled to under the custody and visitation order. However, while residential parents may not legally interfere with the other parent’s access to the child, there are no legal or social sanctions imposed on fathers who fail to pick up their children for the evening or weekend as scheduled. Some mothers have actually gone to court asking the judge to force their child’s father to exercise his visitation rights only to be informed that there is nothing the law can do.
I disagree. The law can do something. The social and legal forces I discussed last week may have pushed some fathers away from their children. Thus, the law has a responsibility to facilitate paternal involvement. Unacceptably high rates of paternal absence call for drastic measures. That is why I propose that the law attempt to bring fathers back into their children’s lives by adopting a presumption of joint legal custody and requiring that they participate in their children’s upbringing.
June 1, 2007 at 12:52 pm
Posted in: Family Law
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Why Have Fathers Disappeared?
posted by Solangel Maldonado
For years, policymakers have known that a significant proportion of fathers have little contact with their children once their relationship with their children’s mother ends. Although fathers today are less likely to disengage from their children than divorced fathers in previous decades, 20% to 30% of children have little or no contact with their fathers. Disengaged fathers—those who have had no contact with their children in the past year—pose a significant problem for society, especially their children. Although some studies suggest that children are no worse off when they have no contact with their fathers, other studies suggest otherwise. These latter studies have found that children who have regular “quality contact” (defined below) with their fathers tend to
■ adapt better to their parents’ divorce
■ have higher self-esteem
■ suffer lower rates of depression
■ experience fewer behavioral problems
■ enjoy higher levels of cognitive development, and
■ are more emotionally stable than children who have little or no contact with their fathers.
There is also evidence suggesting that children who share close relationships with their fathers might be less likely to
■ use drugs
■ attempt suicide
■ drop out of school
■ be unemployed
■ engage in early sexual activity and become pregnant at a young age
■ engage in anti-social and criminal behavior, or
■ disengage from their children–become absent fathers themselves
Just as important or perhaps even more so, children want to see their fathers and feel rejected when contact is infrequent. They blame themselves for their fathers’ absence, believing that their fathers abandoned them because they were “bad” or because they are simply unlovable.
May 24, 2007 at 10:56 pm
Posted in: Family Law
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The Mommy Wars and Breast Milk
posted by Solangel Maldonado
Last month, we saw the revival of the “Mommy Wars” once again. Triggered by the publication of Leslie Bennetts’ book, The Feminine Mistake, major newspapers, magazines, and blogs debated Bennetts’ premise that mothers who leave the workplace to raise children, even temporarily, risk significant economic losses in the future. As commentators debated the pros and cons of women’s life choices, and the effects on their children, there was little discussion of an issue that may have a much greater impact on children—outsourcing of breast milk. Yes, you read it right the first time. Although women have always breastfed other women’s children, as Time magazine recently reported, only now is there a clear for-profit market in human breast milk in the United States.
Studies have shown that breast-fed babies enjoy numerous health benefits which infant formula simply cannot replicate. Clearly, breast milk is best but the question is “whose breast milk?” An infant might benefit most from his own mother’s milk, but there is evidence that another woman’s breast milk is preferable to infant formula. Some mothers are physically unable to provide their children with their own breast milk, while others choose not to because, according to Time, they have “high powered careers.” If the market for human breast milk continues to grow, this latter group (although small) might find itself in the center of the Mommy Wars.
Women who purchase human breast milk are generally wealthier than the women they employ to nurse their children. Although at a salary of $1,000 per week, wet nurses earn more than most nannies, and demand for their services is increasing, some people are uncomfortable with the class and racial implications of this line of work. Let’s not forget that during slavery, Black women often nursed their masters’ children.
May 18, 2007 at 11:28 pm
Posted in: Family Law, Feminism and Gender
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Should the Law Recognize Grandparents’ Changing Roles?
posted by Solangel Maldonado
Social scientists have long been aware of the significant role that grandparents in many minority and low-income families play in their grandchildren’s upbringing. These grandparents often live with or in close proximity to their grandchildren and provide much of their day to day care. The reasons are, in part, economic as the cost of child care has become prohibitive for many families, but they are also cultural. For example, African-American families have long been more likely than the rest of the U.S. population to rely on extended family members for child care. They are also more likely to encourage what I call quasi-parental relationships between grandparents and grandchildren as opposed to the “companionate” role that, according to sociologists Andrew Cherlin and Frank Furtensberg, the majority of grandparents play. Companionate grandparents play with their grandchildren, they buy them presents, and according to Dr. Kornhaber, the author of various grandparenting books, they become “a buddy,” “pal,” “secret confidante, and, at times, even a lighthearted conspirator” to their grandchildren. However, companionate grandparents have relatively little influence over their grandchildren’s upbringing and little desire for greater involvement.
If the majority of grandparents play only a companionate role in their grandchildren’s upbringing, current jurisprudence on grandparents’ rights makes a lot of sense. The Supreme Court in Troxel v. Granville (2000) held that parents’ constitutional right to raise their children as they see fit requires that their decisions to deny grandparents and other non-parents access to their children be granted “special weight.” Although the Court never defined “special weight,” the majority of lower courts interpreting Troxel have applied a presumption that parents’ decisions to deny non-parents visitation with their children is in children’s best interests.
May 10, 2007 at 7:13 pm
Posted in: Family Law
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Why So Few Black Ballerinas?
posted by Solangel Maldonado
There was an interesting article in yesterday’s NY Times discussing the absence of Black ballerinas in prominent ballet companies in the U.S. The reasons are many and complex, including economic (ballet is expensive), the pool of qualified dancers is very small, and access to ballet training is quite limited in the U.S. But I was struck by the suggestion that ballet companies are reluctant to hire even exceptionally gifted Black ballerinas because they are afraid to challenge their subscriber base and their expectation of “a ballet company, the way you thought ballet was.” Other Black ballerinas suggested that stereotyping of Black women was a major obstacle to their success because “Black women are perceived as being forceful, which doesn’t square with the ethereal image of a ballerina.”
I must confess that my exposure to ballet is quite limited. Thus, I found it hard to believe that dance companies would pass up the opportunity to recruit talented dancers because they feared their audience reaction. Then I remembered a column which appeared in the NY Times Magazine last December. A reader asked “The Ethicist” columnist whether she was racist because her enjoyment of “The Nutcracker” ballet had been “severely marred by the appearance of a black snowflake and then, even worse, a black Snow King.” According to this anonymous reader, “the aesthetic incongruity was inconceivable. The entire ballet was spoiled.” I am not sure what to make of this reader’s question, but it does suggest that ballet companies’ concerns about their audience’s ability to welcome Black dancers are not completely unfounded. Any thoughts?
May 7, 2007 at 10:48 am
Posted in: Feminism and Gender, Race
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