Concurring Opinions » Solangel Maldonado

Introducing Guest Blogger Rachel Godsil

Solangel Maldonado — Sun, 01 Nov 2009 15:12:33 +0000

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.

Unmarried Couple Ban Symposium

Solangel Maldonado — Wed, 14 Oct 2009 20:31:48 +0000

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.

Assimilation: What Will It Mean for Affirmative Action?

Solangel Maldonado — Fri, 21 Aug 2009 19:55:25 +0000

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.

I don’t know whether Latinos and Asian-Americans will assimilate into dominant U.S. culture, but if Professor Patterson is right, one might ask what this should mean for affirmative action. The Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003) upheld the limited use of affirmative action, relying, in large part, on the benefits to all groups of a diverse academic environment. If a group has largely assimilated, does this weaken the case—the diversity rationale—for affirmative action? Affirmative action serves to bring disadvantaged and underrepresented groups into dominant culture. If a group has assimilated, it is already part of that culture. Of course, Latinos and Asian-Americans are not homogenous groups and the experiences and likelihood of assimilation might be quite different for Cuban-Americans as compared to Mexican-Americans or Dominican-Americans, for example, or for Korean-Americans as compared to Vietnamese-Americans. If a Latina or Asian-American law school applicant is a member of a group that has largely assimilated, does that mean that she is no different (for purposes of affirmative action) than a first generation Irish-American or Italian-American? While the experiences of Italian-Americans, for example, are different from that of descendants of the Mayflower, these differences are rarely taken into consideration for purposes of affirmative action. If Latinos and Asian-Americans assimilate as European immigrants have, will colleges and universities have to search for minorities who are not assimilated in order to further their interest in diversity?

This question is further complicated by Patterson’s assertion that the African-American experience is fundamentally different from that of other minorities and therefore, African-Americans are unlikely to ever assimilate. He is not the only one to make this argument. In his book, Who Is White?: Latinos, Asians, and the New Black/Non-Black Divide (2003), sociologist George Yancey argues that in the not so distant future, Latinos and Asians will assimilate into dominant American culture and come to be viewed as “White” just like Italian, Irish, and Jewish Americans. This argument fails to consider where darker-skinned Latinos and Asian-Americans will fit in—will they be able assimilate? However, if we accept, for the sake of argument, Patterson’s and Yancey’s prediction, I wonder whether this means that affirmative action should be upheld for African-Americans only because for everyone else, race will soon cease to matter. These are difficult issues. I look forward to your feedback.

Is Divorce Too Easy? Helping Marriages Survive Infidelity

Solangel Maldonado — Fri, 10 Jul 2009 06:52:19 +0000

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?

Criminalizing Matchmaking: Mail Order Marriage Laws

Solangel Maldonado — Wed, 10 Jun 2009 15:35:37 +0000

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?

Forgiving the Ex, Part III

Solangel Maldonado — Wed, 06 May 2009 03:46:46 +0000

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.

One might argue that the lessons of VOM are not applicable in the divorce context because, unlike criminal law, in divorce there is no clear victim or wrongdoer. However, the majority of states that retain fault-based divorce (along with no-fault divorce) do not necessarily see it that way. Historically, states have classified some divorcing spouses as wrongdoers and their partners as victims. By making certain acts—such as adultery or extreme cruelty—grounds for divorce, the law has signaled that certain behaviors violate social norms of acceptable marital behavior. Spouses who violate these norms are treated as wrongdoers.

VOM’s lessons might be useful even when neither party is to blame for the breakup (for example, when spouses simply fell out of love or grew apart) or both are equally blameworthy. When spouses have hurt each other, each is likely to feel angry and resentful. To illustrate, even when the decision to divorce is mutual, the wife might blame the husband for not trying harder to make the marriage work while he might resent her for not being more attentive to his needs. These parties need to forgive just as much as the husband whose wife had an extramarital affair. A process that encourages divorcing parents to tell each other how much pain they have caused each other and to listen without interruption might cultivate mutual forgiveness regardless of who hurt whom the most.

I am not suggesting that the experiences of divorced parents are analogous to those of crime victims. Nor am I suggesting that the VOM model would be appropriate or effective in the context of divorce and post-separation parenting. Rather, I am merely using VOM to show that lawmakers have facilitated forgiveness and psychological healing in other contexts. Once we acknowledge that cultivating forgiveness between divorced parents could benefit them and their children and that lawmakers have assumed this role in other contexts, the question might no longer be whether the law can or should cultivate forgiveness, but rather how it should do so.

Forgiving the Ex, Part II

Solangel Maldonado — Sun, 03 May 2009 05:16:34 +0000

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?

Most people who have been deeply hurt do not consciously consider forgiving. Some researchers believe that most people need to be taught how to forgive and their work suggests it is possible to facilitate forgiveness in six to eight group sessions. Psychologists, such as Robert Enright and Everett Worthington, have used forgiveness interventions to help participants forgive offenses such as neglect, marital infidelity, and parental-love deprivation. Although social scientists have developed different forgiveness models, they all have certain elements in common. They all ask participants to acknowledge the pain the other person has caused them and the anger that they are feeling as a result. They also teach participants what forgiveness is (abandoning one’s right to resentment) and what it is not (excusing, condoning, or forgetting the hurtful and unjust behavior, giving up one’s desire for justice (i.e., punishment of a battering spouse), or reconciling with the injurer). They also encourage participants to attempt to understand the injurer’s background and experiences, not for the purpose of excusing the behavior, but rather to foster empathy. Finally, they encourage participants to consider forgiving and, if possible, to commit to forgiving. This does not mean that the person will forget the harm or that all of the angry feelings will go away immediately. To the contrary, even after deciding to forgive, the injured person is likely to recall the hurt and become angry again, but by committing to forgiveness, he will continue to try and let go of the anger and try to feel empathy and compassion for the other person.

Participants in forgiveness interventions have reported fewer negative feelings toward the injurer than the control group. They have also reported a greater willingness to forgive. One forgiveness intervention, Forgiveness and Divorce: Can Group Interventions Facilitate Forgiveness of a Former Spouse?, assigned 149 divorced individuals to one of three groups (1) a secular forgiveness group, (2) a religiously integrated forgiveness group, or (3) a wait-list control group. The group sessions discussed feelings of betrayal, coping with anger towards the former spouse, forgiveness education, preventing relapse (holding on to forgiveness), and closure. Although there were no differences between the secular and religiously integrated forgiveness groups, participants in these two groups self-reported similarly higher levels of forgiveness and lower depression than the wait-list control group.

Many states require divorcing parents to participate in parenting education and mediation of custody disputes, in part, to reduce inter-parental anger and help parents understand how their anger negatively affects their children. Given the potential benefits of forgiveness, lawmakers should consider requiring, or at least recommending, that angry, divorced parents participate in forgiveness interventions. Many people are probably skeptical of the law’s ability to cultivate forgiveness between divorced parents. In my next post, I will discuss how lawmakers have already attempted to facilitate forgiveness in other contexts and address some of the objections to this proposal.

Forgiving the Ex

Solangel Maldonado — Sat, 25 Apr 2009 01:10:40 +0000

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.

Anger towards a former spouse also negatively affects one’s children. Angry parents are less likely to agree on custodial arrangements and are more likely to denigrate the other parent to the children, or to deny or interfere with the other parent’s access to the children. Angry parents sometimes withhold child support and in some cases, launch a custody battle out of spite. As many as 25% of divorcing families are characterized as high conflict and their children are stuck in the middle of their parents conflict and hostility for most of their childhood years.

Children of angry parents are also more likely to be subjected to poor parenting. Not surprisingly, positive parenting skills (such as responsiveness and understanding of children’s needs) tend to decrease when interparental hostility is high, while bad parenting practices (such as yelling) tend to increase. Angry parents may also displace their anger towards the other parent onto their children.

Interparental anger also increases the likelihood that the nonresidential parent (usually the father) will abandon the children emotionally and financially. Approximately 30% of fathers who do not live with their children have little or no contact with them. Although there are many reasons for the lack of contact, the nonresidential father’s relationship with his children’s mother might be the strongest predictor of post-divorce paternal contact. One reason is that fathers are less likely to see their children if they have to deal with a former spouse whom they despise, despises them, or both.

So what does all of this have to with forgiveness? Well, a lot. Legislators have spent a lot of time and energy exploring ways to reduce the anger and bitterness that characterizes some divorces. The no-fault divorce movement was motivated, in part, by a desire to reduce the acrimony and hostility of divorce. It was believed (naively, if you ask me) that eliminating fault (e.g., adultery, cruelty, abandonment) as a ground for divorce and excluding evidence of marital misconduct from the divorce proceedings would “enable parties to end their marriage as amicably as possible.” Similarly, one of the primary goals of mandatory mediation of custody disputes is “to reduce any acrimony that exists between the parties to a dispute involving custody or visitation.” N.C. Gen. Stat. Ann. § 50-13.1 (1999). Most recently, many states have required divorcing parents to participate in parenting classes that teach them how their negative attitudes and behaviors towards each other affect their children. The hope, again, is to reduce (or least control) the interparental anger and hostility that negatively affects children.

Despite these legislative efforts, many divorced parents are still angry. In fact, some studies suggest that custody disputes have increased in recent years, thereby fueling parents’ anger towards the other parent. Maybe parents need to learn to forgive. Numerous studies suggest that forgiveness reduces anger and that people can be taught, or at least encouraged, to forgive those who have unjustly hurt them.

In my next post, I will describe how lawmakers can use the numerous forgiveness interventions psychologists and other social scientists have applied in other contexts to help divorced or separated parents at least try to forgive each other.

Violence Against Women and Forgiveness

Solangel Maldonado — Tue, 31 Mar 2009 17:24:01 +0000

“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?

Almost as disturbing were commentaries that teenage girls’ reactions to the attack were the result of forgiveness. According to some experts on adolescents, some girls had forgiven Brown, felt bad for him because his own mother had been the victim of domestic violence, and did not want to judge him. To me, it sounds like they are excusing Brown’s behavior. That is not forgiveness. In the last twenty years, researchers in different disciplines have explored the meaning of forgiveness. Although they may disagree on when forgiveness is desirable and whether individuals can be taught to forgive, they all agree that forgiveness does not mean condoning or excusing the wrongful behavior. Indeed, forgiveness requires recognition that one was unjustly injured. As the philosopher Joanna North has stated, forgiveness does not “wipe out the fact of wrong having been done.” Furthermore, forgiveness and justice are not mutually exclusive. In other words, one can forgive and still demand that the wrongdoer be punished for his criminal acts.

Today, tomorrow, and throughout the month of April (Sexual Assault Awareness Month), October (Domestic Violence Awareness Month), and the rest of the year, universities across the nation and worldwide will hold Take Back the Night rallies to raise awareness of violence against women. I hope organizers bring their message to high schools around the country. They need it.

International Child Abductions and Children’s Best Interests

Solangel Maldonado — Mon, 16 Mar 2009 20:16:07 +0000

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.

The Goldman case clearly illustrates the first reason. Mr. Goldman did what he was supposed to do to get his son back to the United States. He immediately filed a petition for Sean’s return in New Jersey Superior Court. Just two months after Sean’s abduction, the New Jersey Superior Court ordered that he be returned to New Jersey. When Ms. Goldman did not comply with the New Jersey court order, Mr. Goldman contacted the U.S. Department of State which contacted the Brazilian government. Mr. Goldman also filed a petition for Sean’s return in the Brazilian courts. Sixteen months after Sean’s abduction, the Brazilian court agreed with the New Jersey Superior Court and held that Sean had been wrongfully removed to or retained in Brazil. However, the court found that one of the Hague’s exceptions to return applied—that legal action was not commenced within one year of the abduction and the child is now settled in the new country. Mr. Goldman has appealed the Brazilian court’s decision, arguing in part, that he filed his Hague petition within three months of Sean’s abduction. In the interim, there are two conflicting decisions from two different countries and no mechanism for resolving them. The U.S. State Department has cited Brazil for its failure to comply with the Hague, but that does nothing for parents like Mr. Goldman who are still waiting for their children’s return. Further, even if the Brazilian appellate courts decide that Sean must be returned to New Jersey, after almost five years in Brazil, the potential harm to this child, if he is returned to New Jersey, may be significant.

While this case was slowly making its way through the Brazilian court system, Ms. Goldman divorced Mr. Goldman and married her attorney. When she died a few hours after giving birth to her second child this past August, Mr. Goldman went to Brazil to take custody of Sean, but a Brazilian family court awarded custody to Sean’s stepfather. Although Mr. Goldman is certainly not to blame for the loss of his child, the Brazilian family court’s decision to deny him custody might actually be in Sean’s best interests. Most U.S. states recognize that parents have a fundamental right to the care and custody of their children and will not award custody to a non-parent over a parent unless it would be detrimental to the child’s welfare. This might be one of those cases where a child will suffer serious psychological and emotional harm if the court awards custody to a parent over a non-parent. Sean did not see his father once in almost four and a half years, and a return to the U.S. where he has not been since he was 4 years old (he is now 8), far away from his 7 month-old sister, his stepfather, and maternal grandparents would likely be detrimental. Children are resilient and Sean will probably be able to bond with his father once again, but it would be foolish to ignore the potential harm to a child if he is removed from his home and the people (such as his stepfather and grandparents) who may have become his psychological parents.

U.S. officials, including the U.S. House of Representatives and Secretary of State Hillary Clinton, are pressuring Brazilian officials to return Sean to the U.S. immediately, as required by the Hague Convention. Unfortunately, just because the law requires a certain outcome does not mean that it will automatically be in this particular child’s best interests. This raises the question: at what point must children’s best interests be sacrificed to the international community’s interest in discouraging child abductions and its interest in ensuring that countries, such as Brazil, comply with international law expeditiously?

The Beginning of the End of Palimony

Solangel Maldonado — Mon, 09 Feb 2009 22:40:33 +0000

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.

I wonder whether the Senate Judiciary Committee has thoroughly considered the potential consequences of the bill. If the bill passes, it will eliminate virtually all claims for palimony in New Jersey. The wealthier party, who allegedly promised to support his girlfriend or mistress for the rest of her life, is unlikely to have put anything in writing. In fact, courts have recognized that “the palimony contract may be oral and usually is because parties entering this type of relationship usually do not record their understanding in specific legalese.” If lawmakers are concerned with equity and fairness to both parties, they should be aware that requiring agreements to be in writing (and to be signed) will not lead to equitable results.

Imagine the following facts. A man of considerable wealth lives with a woman for 25 years until his death. They never marry but conduct themselves, both in private and in public, as a devoted married couple. During their relationship, the woman expresses concern about her financial future should the relationship end. The man promises her, in the presence of others, that he will provide for her for the rest of her life. He dies intestate and the woman sues the estate to enforce the promise.

This is a palimony claim as recognized by the New Jersey Supreme Court in Estate of Roccamonte. The woman’s right to support “does not derive from the relationship itself, but rather is a right created by contract”—the man’s promise to support her for life. The consideration is the entry into a marital-like relationship and conducting herself like a spouse, for example, by “foregoing other liaisons and opportunities . . . providing companionship, and fulfilling [the other person’s] financial, emotional, physical, and social [needs].”

I am sympathetic to arguments in favor of requiring palimony agreements to be in writing. Oral agreements are inherently difficult to prove. They are rarely made in the presence of witnesses and the alleged promisor will often deny having made such a promise when the parties break up. In cases where the alleged promisor has died, courts are hesitant to rely on the palimony claimant’s testimony that such a promise was made. And yes, a party could falsely assert a claim for palimony even when no implied or express promise was made. These are the challenges posed by all oral agreements, but we rely on the adversary system to weed out false claims and enforce oral contracts so long as their existence and terms are proven.

More importantly, I am persuaded by the argument that a court “must consider the realities of the relationship in the quest to achieve substantial justice.” In cases where a party has foregone opportunities to pursue career goals, get married, or have children, for example, based on a partner’s promise of lifetime support, it would be unjust to deny that party the opportunity to assert a palimony claim. Thoughts?

Stealing Love

Solangel Maldonado — Wed, 21 Jan 2009 05:13:31 +0000

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.

Admittedly, courts are not flooded with these types of cases. However, when successful, the damages can be significant, especially when punitive damages are awarded. Yet, successful or not, one has to wonder why a significant minority of courts continue to entertain these claims. Does the threat of civil liability actually make a person think twice before starting a relationship with a married person? In many of these cases, the cheating spouse ends up marrying the other man or woman, which suggests that the affair was not merely a casual encounter, but the beginning of a potentially stable relationship. Moreover, despite Dr. Phil’s suggestion that someone can “steal your man” or woman, I am not convinced that affections can be stolen. Recognition of these types of claims ignores the cheating spouse’s free will. I also worry about the effect that civil litigation over a parent’s extramarital affair may have on children who are already struggling to cope with their parents’ divorce. Finally, it is disturbing that the “jilted” spouse can recover damages from the third party who interfered with the marriage, but cannot sue the cheating spouse—the person who breached the marital contract. All he or she can do is divorce the cheater.

On the other hand, do courts that continue to entertain these claims know something I do not? These courts have reasoned that “[w]hen a third person is at fault for the breakdown of a marriage, the law ought to provide a remedy.” Norton v. Macfarlane (Utah 1991). Yet, given the complexity of human relationships, how exactly is a jury supposed to determine who is responsible for the breakdown of a marriage?

Should Parents Lose Custody of Obese Kids?

Solangel Maldonado — Mon, 12 Jan 2009 17:59:55 +0000

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.

Courts in California, Iowa, New Mexico, Pennsylvania, and Texas have recognized childhood morbid obesity as a legal issue. However, removing an obese child from an otherwise adequate home inaccurately suggests that parents have complete control over their children’s diet and exercise. This is not the case. For example, Brittany’s parents testified that Brittany (who was 12 years old) was known to have snacks after school and to “sneak food” at home. Anyone who has spent any time around older children (or who recalls their own childhood) knows that children do not always do as they are told. A finding of neglect in these cases also fails to consider the extent of schools’ responsibility for the rise in childhood obesity. Many schools have cut their physical education programs from five days a week (when I was in public school) to only once a week in some districts. In addition, schools serve high-caloric meals and provide vending machines stocked with junk food. In fact, the New York Appellate Division found that Brittany’s food consumption at school, rather than her parents’ allowance of inappropriate foods, may have been the cause of her 25 pound weight gain. Many parents serve their children only one meal—dinner. It is unlikely that parents are solely or even primarily responsible for the rise in childhood obesity.

I also worry that a determination that failure to address a child’s obesity may constitute neglect would disproportionately affect minority families who are more likely than whites to have obese children. For example, 14.5% of white adolescent girls are obese, as compared to 20% and 28% of Mexican-American and African-American adolescent girls, respectively. Minority children are already disproportionately represented in the foster care system. Do we really want to place more children in foster care? On the other hand, when a morbidly obese child develops, as Brittany did, “gallstones, excessive fat in her liver . . . which could eventually develop into nonalcoholic cirrhosis of the liver), sleep apnea, intermittent high blood pressure, pain in her knee joints, insulin resistance (indicating an increased risk of developing diabetes)” and the “significant social and psychological impact such morbidity has,” including depression, what is a court to do? I do understand the frustration of Brittany’s doctor who spent a long session explaining to Brittany’s mother the adverse effects of childhood obesity and what foods she should eat, only to see Brittany, minutes later, eating burgers and French fries in front of her mother. However, I am not sure that removal from the home (and placement in foster care) is the solution.

Polygamists Indicted in British Columbia

Solangel Maldonado — Sat, 10 Jan 2009 18:54:32 +0000

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.

What Exactly is Wrong With Polygamy?

Solangel Maldonado — Wed, 07 Jan 2009 05:00:00 +0000

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.

Many Americans believe that polygamy is morally wrong, but this view is not universal. Polygamy is legal and widely practiced in many countries in Africa and the Middle East and Islamic law allows a man to have up to four wives so long as he treats them equally. So why are most Americans vehemently opposed to polygamy?

Some people oppose polygamy because they are concerned about the potential for sexual abuse of young girls. Admittedly, some girls entering polygamous unions are too young for marriage (or sexual relationships). Some of the girls who lived in the polygamous ranch in the Texas case discussed above had become pregnant in their early teens. The husbands are often much older, men in their 50s and 60s, or older. Undeniably, many of these “spiritual marriages” are not consensual unions, but sexual abuse (rape) of a minor.

However, polygamy and sexual abuse of young girls do not necessarily go hand in hand. Every state has laws protecting minors from sexual abuse. States can prosecute child predators while allowing consenting adults to enter into polygamous relationships without fear of criminal prosecution. For example, law enforcement agencies in Utah and Arizona have chosen to focus on crimes within polygamous communities such as child abuse and domestic violence rather than polygamy itself.

Sexual abuse is clearly a problem in at least some polygamous communities. However, some adult women freely choose plural marriage. For example, Anne Wilde, a graduate of Brigham Young University and co-author of Voices in Harmony: Contemporary Women Celebrate Plural Marriage, freely chose plural marriage for 33 years until her husband’s death. Should women like Anne Wilde be able to enter into a polygamous marriage without fear of prosecution?

This question raises a second concern. Even if some adult women freely choose plural marriage, does polygamy harm all women? Arguably, polygamy violates the principle of gender equality. Although the term “polygamy” includes marriage to more than one man, such marriages are very rare; almost all polygamous societies practice only polygyny—marriage to more than one woman. Further, most plural wives have no legal protection during or after the marriage. The reason is that most polygamist men have one legal wife and the subsequent wives are “spiritual wives” – they are not legally married. When a spiritual marriage ends before the husband’s death, a spiritual wife has no claim to spousal support or equitable distribution of marital property. Spiritual wives are also not entitled to an intestate or elective share of the husband’s estate, or any of the legal benefits of marriage, including Social Security survivor benefits. While legal recognition of polygamous marriages might remedy these inequities, under current law, polygamist men who are unjustly enriched by their wives’ contributions to the marriage have no legal duty to provide anything in return.

Opponents of plural marriage argue that exposure to polygamy is harmful to children. Texas officials believed that the “culture of polygamy” in the compound was such a threat to the children’s health that immediate removal was necessary. Although the Texas Supreme Court found no evidence to warrant removal, in 1955, the Utah Supreme Court upheld a similar raid on a polygamous community, finding that a polygamous home was an “immoral environment for the rearing of children.” However, some adults raised in polygamous households recall their childhood fondly. One woman who grew up with seven mothers and 60 siblings told the Salt Lake Tribune: “I’ve always considered that I had a fairy-tale childhood . . . I had more close friends and family than most people have acquaintances. It was warm and supportive. You knew you were loved.” Few adults recall their childhood, whether polygamous or not, quite so fondly. However, according to the ABA Journal , many of the attorneys who represented the children in the Texas case thought that the children’s mothers “seemed like great parents . . . Their children were noticeably well-behaved . . . and quite playful.” It is worth noting that the children repeatedly asked to go back home to the polygamous ranch.

We cannot assume that children reared in polygamous households are necessarily worse off than children reared in one or two parent homes. In fact, in recent years, the Utah Supreme Court seems to have changed its opinion that a polygamous home is an “immoral environment for the rearing of children,” and has held that the practice of polygamy does not make a person unfit to serve as a custodial or adoptive parent. In other words, in a custody dispute between a parent who practices polygamy and one that does not, it might be in a child’s best interest to reside with the polygamist parent.

Finally, I would like to return to the argument that polygamy is immoral. Although many Americans hold this view, the Supreme Court has repeatedly held that the majority’s belief that certain conduct is immoral does not mean that it “may use the power of the State to enforce these views on the whole society through operations of criminal law” and Massachusetts and Connecticut allow same-sex marriage despite many individuals’ beliefs that such marriages are immoral. This brings me back to my original question: If there is no evidence that polygamy per se harms children, why shouldn’t consenting adults be allowed to enter into polygamous relationships?

Facilitating Paternal Involvement

Solangel Maldonado — Fri, 01 Jun 2007 19:52:21 +0000

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.

Some fathers fail to exercise visitation rights because they have internalized the message that their role after divorce is primarily economic. These fathers do not realize the importance of their presence and involvement to their children’s well-being. A presumption of joint legal custody would signal to fathers that the law and society respect their rights and responsibilities as parents. It clarifies that fatherhood entails more than just financial support and includes responsibility for the child’s upbringing.

Furthermore, there is some evidence that fathers with joint legal custody see their children more frequently and have more overnight visits than fathers who lack the legal right to make any decisions about their child’s upbringing. Thus, a presumption of joint legal custody might increase paternal involvement.

Many states already have a presumption or preference for joint legal custody and this is quickly becoming the most common custodial arrangement in many jurisdictions. However, joint legal custody is not enough. Currently, joint legal custody grants nonresidential fathers the right to participate in major child-rearing decisions, but imposes no duty on fathers to provide physical care to their children. Fathers’ responsibilities to their children, other than child support, are voluntary. If the law is to recognize nonresidential fathers as full parents, they must behave like parents and actually help to raise their children. The law must stop treating visitation as a right and treat it instead as a legally enforceable duty.

One of nonresidential fathers’ major complaints about visitation schedules is that they do not allow them to spend enough time with their children to enable them to be effective parents. When children spend only one evening and alternating weekends with their fathers, fathers feel the need to entertain them and children perceive their time together as fun and games. If fathers had residential custody for two months during the summer, long weekends, one week during Christmas, one week for spring or winter break, etc., they might be able to develop a more “normal” parent-child relationship with their children.

No standard visitation schedule will accommodate all families. Thus, each parent should be required to submit a detailed parenting time schedule. The court could adopt or modify the schedule that best provides each parent with enough time to maintain a significant relationship with the child and allows each parent to be actively involved in the child’s upbringing. Once the schedule is set, both parents (not just the primary residential parent) would be legally required to follow it.

Although legally enforceable parenting schedules may lead to greater paternal involvement, there will always be some parents who will not see their children as often as they should. The law cannot and should not force an unwilling parent to spend time with his children. However, it can impose public penalties as a means of shaming nonresidential parents into parenting their children. Courts can impose a few hours of community service when nonresidential parents fail to pick up their children for the weekend as scheduled (with no good reason, of course). When parents in Virginia fail to pay child support, the child support enforcement agency places a boot on their cars. The boot not only prevents the parent from using his vehicle; it also alerts the community that its owner has failed to pay child support. Community service for absent fathers might have the same effect–it would alert the community that the person sweeping the park wearing a uniform with a photograph of a child is an “emotional deadbeat.” Courts could also impose many of the same public penalties that we currently impose on parents who have not paid child support–posting their names on government agency websites, in post offices, family courts, and other public buildings. It could also impose minor fines that could be used to create billboards asking “Have you seen or called your child today?”

Prosecutors are unlikely to pursue fathers who fail to maintain contact with their children. Thus, these legal enforcement mechanisms are primarily symbolic. However, by making paternal involvement mandatory and legally enforceable (at least theoretically), the law might be able to create or facilitate a social norm of involved fatherhood.

According to social norms theorists, many of us recycle, pick up after our dogs, and wear seat belts, for example, not because we fear legal sanctions, but because we want to avoid community disapproval. By the same token, by making paternal involvement mandatory, the law would signal that good fathers remain involved in their children’s upbringing. Is it possible that, in time, neighbors, colleagues, family, and friends would express disapproval of fathers who do not participate in their children’s upbringing? Fathers who now believe that they are good parents because they support their children and see them sporadically would get the message that good fathers are involved fathers. They might eventually internalize this norm of involved or nurturing fatherhood and see their children more frequently.

Why Have Fathers Disappeared?

Solangel Maldonado — Fri, 25 May 2007 05:56:57 +0000

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.

Not surprisingly, fathers who rarely see their children tend not to pay child support. Until recently, policymakers and scholars were primarily concerned with figuring out ways to make “deadbeat” fathers pay. However, scholars and policymakers have recently begun exploring the reasons why so many fathers, including those that were very involved in their children’s lives when they lived with them, have little contact with their children once they no longer live with them. The University of Wisconsin just sponsored a conference on “Noncustodial Fatherhood: How Law and Policy Influence Men’s Connections to Their Children” and the AALS Mid-year Meeting next month will hold a panel on “Maintaining Children’s Relationships with Both Parents.” Later this year, the New Zealand Family Law Society will begin their conference with a keynote address on paternal disengagement.

Why do so many fathers disengage from their children? It is not because they do not love their children; at least that is not the reason in the vast majority of cases. It appears that fathers disengage, at least in some cases, because the law has made it difficult for them to parent their children. Many fathers complain that the typical visitation arrangement of one evening a week and alternating weekends and holidays does not allow them to be effective and involved parents. They claim that by relegating them to the role of visitor, the law has taken away their parental authority and has made them into “Disneyland Dads.” Disneyland Dads entertain their children by taking them to fun places such as amusement parks and theme restaurants, buying them unnecessary toys and clothing, and basically showing them a good time. However, they fail to interact with them in the way that custodial parents do. They do not engage in authoritative parenting or do routine activities with their children such as reading, homework, watching TV, doing chores, running errands, or visiting friends and family. This Disneyland-type contact is not beneficial to children. It is also not very appealing to fathers who dislike the superficial nature of the relationship and hate feeling that they are more like friends or fun relatives than actual parents.

Many fathers blame their children’s mothers for their lack of involvement in their children’s upbringing. Above, I stated that children benefit from “quality” contact with their fathers. “Quality” contact refers both to the type of interaction between fathers and their children (Disneyland v. authoritative parenting) and the level of conflict between the nonresidential father and the child’s mother. The benefits of paternal involvement are minimal or non-existent when parents do not cooperate with each other and father-child contact takes place in a high-conflict setting. Unfortunately, approximately 25% of divorced or separated parents seem unable to be civil to each other and as many as 25% of mothers admit to interfering with fathers’ access to their children. Fathers in these cases sometimes walk away from their children, permanently.

I believe that fathers disengage from their children, in part, because legal and social norms of fatherhood have made it possible for them to do so. The social and legal norm of post-divorce fatherhood is primarily economic. Nonresidential fathers must pay child support but there is no expectation that they will nurture their children, help raise them, or continue to play a significant role in their lives. In many communities, a father who pays child support is a viewed as a good father even if he does nothing else for his children precisely because society expects and accepts that many fathers will abandon their children once they no longer live with them. In contrast, mothers are expected to nurture their children and those who do not are demonized.

Fathers themselves have defined their parenting roles after divorce in mostly economic terms. Many fathers believe that they have little influence on their children and that by paying child support and visiting sporadically, they are fulfilling their parental responsibilities. They compare themselves to fathers who do not pay child support and never see their children. By this standard, fathers who do anything for their children seem like good fathers. As Professor Terry Arendell discovered in her interviews with divorced fathers, instead of seeing their minimal level of involvement with their children as deviant, any level of contact evoked a “stance of self-congratulation” because they felt were doing better than most fathers.

In future posts, I will discuss what the law should do to change this norm of economic fatherhood and facilitate fathers’ involvement with their children.

The Mommy Wars and Breast Milk

Solangel Maldonado — Sat, 19 May 2007 06:28:14 +0000

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.

However, as Professor Waldeck argued in her prescient article, Encouraging a Market in Human Milk, society has an interest in ensuring that as many children as possible receive human milk. While some women already donate breast milk (for free) to milk banks across the country, Professor Waldeck argues that the prospect of financial compensation is likely to motivate more women to donate, thereby providing greater numbers of children with the health benefits of breast milk.

What does all of this have to do with law? We first have to ask whether states should regulate a market in human breast milk, or more specifically, who can be a wet nurse? Which employment laws would apply? How much trust are we willing to place in the agencies that match wet nurses and families in the same way that they place nannies, chauffeurs, and personal chefs in private homes? Do the reasons why a woman hires a wet nurse matter? In the surrogacy context, commentators have suggested that women who are able to carry a child to term should not be allowed to contract with a surrogate for convenience. Should women have to similarly show that they cannot breast-feed before they are allowed to hire a wet nurse?

I don’t have any answers, only questions. I must admit that I am particularly uncomfortable with the potential exploitation of poor women who have few options. Then I think of the African-American woman Time interviewed who wet nursed ten infants over a seven year period to put her own two children through college. She stated that her job is “fulfilling” so I am hesitant to question her choices. Just as important, if the law prohibits women from selling their breast milk or wet nursing services, will the government help them find jobs that will enable them to provide their families with an adequate standard of living? Somehow, I doubt it.

Should the Law Recognize Grandparents’ Changing Roles?

Solangel Maldonado — Fri, 11 May 2007 02:13:35 +0000

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.

Even if we agree that parents’ decisions about who shall have access to their children should be entitled to deference where the petitioner has played a relatively small role in the child’s upbringing, we have to question whether the same standard should apply where the petitioner’s role has been significant. In Troxel, Justice Kennedy cautioned against rejecting the best interests of the child standard in cases where a non-parent seeking visitation had played “a caregiving role” to the child “over a significant period of time.”

It turns out that an increasing number of grandparents are playing much more than a companionate role in their grandchildren’s upbringing. According to today’s NY Times, in an effort to help their adult children balance careers and parenthood, many more grandparents, of all racial and economic backgrounds, are becoming more involved in their grandchildren’s day to day care. Some have sold their homes and moved closer to their grandchildren, while others commute long distances to provide much needed child care. Other grandparents are taking time off from their own careers or retiring early so they can play a greater role in their grandchildren’s lives. Although most of these grandparents’ level of involvement in their grandchildren’s upbringing is less than that of the parents,’ they are clearly playing much more than a companionate role.

What happens in the small number, but unfortunately not rare, cases where the adult child and the grandparents have a disagreement (usually about something completely unrelated to the child) and the parent terminates the grandparents’ access to the child? In many cases since Troxel, courts have denied grandparents visitation even when they had lived with the child for a significant period of time and it was clearly in the child’s best interests to visit with them. Some courts have held that in order to rebut the parental presumption, the grandparents must show not only that the parent’s denial of visitation was unreasonable, but that the parent is unfit. This is a virtually unsurmountable standard absent evidence of child abuse or neglect. Other courts have required clear and convincing evidence that the child will suffer substantial harm absent visitation with the grandparent. Evidence that visitation is in the child’s best interests is not sufficient to rebut the presumption that the parents’ decision to deny visitation was made with the child’s best interests in mind. Only after the grandparent rebuts the parental presumption will the court consider evidence that visitation is in the child’s best interests.

Grandparent visitation suits are already quite common. As more and more grandparents play a greater role in their children’s day to day upbringing, it is possible that we will see even more visitation disputes in our courts. Grandparents who have played caregiving roles are unlikely to simply walk away when their children terminate all contact. Given this change in grandparents’ roles, has the time comes to rethink Troxel and its progeny?

Why So Few Black Ballerinas?

Solangel Maldonado — Mon, 07 May 2007 17:48:02 +0000

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?