Archive for the ‘Family Law’ Category

No Right to Retire?

posted by Rachel Godsil

Courts regularly grapple with the competing principles of autonomy and obligation in the context of family law.   How to reconcile these principles – when gender, money, relative status, jealousy, spite, avarice are involved – is a fascinating challenge for judges.  These issues are also fun to teach since they are often uncomfortably close to most people’s own experiences. 

On Monday, the Massachusetts Supreme Court considered a variant of the autonomy/obligation condundrum in Pierce v. Pierce  - in which the Court was basically asked to decide whether a higher earning spouse has a “right to retire” and be exempted from otherwise on-going alimony obligations.

Rudolph Pierce was a well-compensated attorney.  In the divorce agreement from Carniece, his wife of 32 years, he agreed to pay $110,000 year in alimony until either party died or she remarried.  When he decided to retire from his partnership at age 65, he argued that he should be relieved of any obligation to pay alimony and asked the court to adopt a rebuttable presumption that all alimony should be terminated when (1) the supporting spouse retires from employment at a customary retirement age and has no actual earned income, (2) the parties’ marital assets, including their retirement assets, had been equally divided at the divorce, and (3) the parties have the same amount of liquid assets at the time of the provider spouse’s retirement.  

 The trial court agreed to a significant modifcation of Rudolph’s obligation – to $42 k – but held that in light of Carniece’s recent loss of her job, the fact that she was not yet t entitled to Social Security, and that Rudolph continued to have significant earning capacity (in addition to his assets and his current wife’s salary), he wasn’t off the hook altogether.   The Supreme Court rejected Rudolph’s rebutabble presumption and affirmed the multi-factoral test generally applicable to modification requests.

My first thought (which the Court echoed) is why (at age 57), Rudolph agreed to such a high alimony award without a change upon his retirement.   A cynic would suggest that this might have been  intentional so that his wife would agree to a fairly equal division of property despite the parties’ differential earning capacity (his wife had been the primary caretaker of the children and home though she worked outside of the home as well).

Cynicism aside – this is a difficult issue.  Rudolph’s arguement that declining to accept the presumption would grant the recipient spouse “effective veto power over the provider spouse’s retirement decision” was wildly exaggerated.   But the Court did impose limitations on when a “supporting spouse” will be able to retire – and for some, the idea of having to continue to work to support a former spouse will seem deeply problematic.

  November 11, 2009 at 2:06 pm  Tags: gender  Posted in: Family Law   Print This Post   2 Comments

The State of/and Nonmarital Unions

posted by Linda McClain

If the blitz of media coverage of the “State of the Union” of President Barack and First Lady Michelle Obama’s marriage may spur more general attention to the state of marriage and of government’s role in promoting it,  then perhaps today’s obituary of Michelle Triola Marvin, famous for her landmark “palimony” suit, in the 1970s, against actor Lee Marvin, might usefully direct attention to nonmarriage  and government’s proper role in nonmarital unions.  Marvin v. Marvin (1976) is a staple of Family Law casebooks and its basic concept of “palimony” — that economic obligations could arise between unmarried partners based on an express or implied contract or on various  equitable grounds – is part of our society’s basic vocabulary of relationships.  But there are many more nonmarital unions in the U.S. (and around the world) today than when Lee and Michelle Marvin lived together. And legal scholars continue to debate how law and policy should approach such unions. Morever, given that about 40% of households with unmarried cohabitants also include children, nonmarital unions  implicate broader concerns about family well-being. The term “fragile families,” for example, is used both by resarchers and by state and federal lawmakers to refer particularly to unmarried, low-income parents and their children.  ”Palimony” simply addresses what partners may owe each other when their relationship dissolves. (And, as the various obituaries for Michelle Triola Marvin indicate, utlimately, she did not win any financial judgment against Lee Marvin; contemporary claimants are often unsuccessful, as well.) It does not address the broader question of whether there should be legal regulation of nonmarital unions or whether the government or various nongovernmental actors should bestow any privileges or benefits upon cohabitants by virtue of their status. Why, after all, should an intimate adult relationship have economic consequences? What interest does the state have in nonmarital unions? This is an area in which difficult tensions and questions abound.

Read the rest of this post »

  October 31, 2009 at 1:19 pm   Posted in: Family Law   Print This Post   No Comments

First Marriage

posted by Linda McClain

Yesterday, when I went on the Internet on my office computer, the headline was, “State of Their Union,” referring to a sneak preview of a long story in this Sunday’s New York Times Magazine, “The Obama Marriage.” Earlier that day, when I turned on my home computer,  my internet provider listed as one of the top videos of the week  “Michelle Obama’s Love Tips.” Intrigued, I clicked on the site, which took me to a segment on E!News, with a story on “The First Lady sounds off on finding love” in the December issue of Glamour magazine.  Suddenly, we are awash not just in the usual glamorous photos of the First Couple, but also in stories of the First Marriage.  Since marriage promotion happens to be the next topic in my Family Law course,  and is a topic in which I have more than a passing interest, I thought I would write here about this very public marriage and how it might relate, if at all, to the federal government’s campaign of promoting healthy marriage (which, at the moment, due to DOMA, excludes same-sex couples from its purview) and to the more general question of marriage and gender relations. Read the rest of this post »

  October 30, 2009 at 8:21 am   Posted in: Family Law   Print This Post   No Comments

You’ve lost that Loving feeling

posted by Kaimipono D. Wenger

An incredible story in today’s news:

A Louisiana justice of the peace said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. Keith Bardwell, justice of the peace in Tangipahoa Parish, says it is his experience that most interracial marriages do not last long.

“I’m not a racist. I just don’t believe in mixing the races that way,” Bardwell told the Associated Press on Thursday. “I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.”

Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, he said.

It’s 2009, the Obama era, and some folks (a JP!) still haven’t gotten the memo on Loving v. Virginia. Mind-boggling.

  October 15, 2009 at 3:54 pm  Tags: Civil Rights, Loving v. Virginia, marriage, Race  Posted in: Civil Rights, Constitutional Law, Family Law   Print This Post   One Comment

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   Print This Post   No Comments

Breaching a Child’s Confidentiality

posted by Daniel Solove

Over at the NYT blog is an interesting story about a British writer (Julie Myerson) who has published a memoir about her son’s drug addiction (The Lost Child).  Her 20-year old son has criticized the publication of the book. According to the Telegraph (UK):

The 20-year-old said: “What she has done has taken the very worst years of my life and cleverly blended it into a work of art, and that to me is obscene.

“I was only 17, I was a confused teenager, I was too young really to know who I was or what was happening.

“What she describes in her book are a series of incidents, it’s not who I am and I find it very sad that she feels the need to tar me with the ‘drug addict’ brush.

“She’s been writing about me since I was two, and, quite frankly, I’m not surprised by anything she does any more.

The NYT Blog asks:

Is it inappropriate and even harmful to expose the private lives of minor children, in particular? What privacy lines should be observed, if any, in writing about family members and others?

It contains responses from four people, Alison Gopnik (a psychology professor), David Matthews (author), Melanie Gideon (author0, and Michael Greenberg (author).  For example, Author David Matthews writes:

Nothing is off limits as far as I’m concerned. Whether an author wants to risk fraying familial and social ties in the pursuit of the truth (as they see it) is a question left up to the writer.

Matthews’ response strikes me as rather extreme. In Britain, family members owe each other duties to keep private information confidential. In the US, the breach of confidentiality tort applies to doctors, lawyers, and others, but hasn’t been extended to friends and family.  Perhaps it should be.

According to the Telegraph article, Myerson’s son said:

“I even consulted a lawyer to try to stop it, but was told there wasn’t much I could do, so I made her take out the part where she said I was selling drugs to my 12-year-old brother, which was one of her fantasies.

I’m surprised that he was advised the law didn’t protect him, since the book was published in Britain and he’d likely have a decent case under British precedent.

The Myerson case is increasingly becoming more common.  Numerous bloggers are chronicling the lives of their children online, posting photos and a day-by-day account of their lives.  What happens when these children grow up and resent having their entire childhood permanently recorded for the world to see?

Should family members owe each other a duty of confidentiality?  Should parents write about a child’s life without that child’s consent?

Hat tip: PogoWasRight

  September 1, 2009 at 7:40 am   Posted in: Family Law, Privacy, Privacy (Gossip & Shaming), Tort Law   Print This Post   8 Comments

The Law Gives Up on Beatty Chadwick

posted by Dave Hoffman

Two years ago, I noted that H. Beatty Chadwick was about to spend his thirteenth year in a Pennsylvania jail for civil contempt, arising out of his failure to comply with a 1995 order to turn over assets in a divorce litigation.  I opined that:

Unless circumstances change, Chadwick will die in jail to preserve an idea: even civil law must be obeyed. As Robert Cover wrote, “Legal interpretation takes place in a field of pain and death.”

So, I guess that Cover needs to be footnoted: “Except when judges blink.”  Beatty is out.  And his jailers are celebrating:

About 35 prison staffers gathered yesterday – some crying and hugging Chadwick – to say goodbye to the “model inmate” who had worked in the law library and forged friendships with everyone from guards to senior administrators, said prison Superintendent John Reilly.

“He’s done more time than maybe the majority of people convicted of homicide do,” said Reilly, a former prosecutor. “What person in his right mind is going to flaunt the authority of the court and say, ‘I’m going to spend the rest of my life in jail?’ People just aren’t made that way.”

Maybe so, but that claim seems to be another example of how we routinely ignore the tremendous emotional investment people have in being vindicated by courts.  As far as I can tell, the state courts of Pennsylvania have not abandoned their factual finding that Chadwick had the money and refused to comply with their order. They’ve just concluded that his ornery will would never bow to any legal pressure.

But just because the judges of Delaware County gave up on compliance doesn’t mean that Chadwick has paid his debt to the courts, his ex-wife, or society at large.  His conduct (as alleged) created a social harm which his ultimate freedom only made worse.  As the  attorney for Chadwick’s ex-wife pointed out, “[h]ere’s a guy who thumbed his nose at a court order for 14 years … There should be some kind of sanctions for doing that.”

  July 27, 2009 at 7:36 pm   Posted in: Behavioral Law and Economics, Criminal Law, Family Law, Law and Psychology, Weird   Print This Post   4 Comments

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   Print This Post   7 Comments

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   Print This Post   11 Comments

Personality Types, Creativity, and Same-Sex Marriage

posted by Naomi Cahn

Co-authored with June Carbone 

UCLA’s Williams Institute has just issued two studies on the economic effects of gay marriage. The first study, on the relationship between a state’s approach to marriage equality and population migration – documents that members of the “creative class” –  people who “create’ as their job – who are in same-sex relationships were much more likely to move to Massachusetts following the Goodridge decision and the legalization of same-sex marriage. The study’s author suggests that this could improve help the state’s economy in the long-term. A second study shows that same-sex weddings have added over $100 million to the Massachusetts economy  (although this is not even a drop in the bucket in the $300 billion spent in Massachusetts in, for example 2004). Serendipitously, David Brooks wrote an op ed in the New York Times today, “In Praise of Dullness,” discussing  a different study that found the ideal C.E.O. is ” humble, diffident, relentless and a bit unidimensional,” in short, “not the most exciting people to be around.”  This study complements the work of journalists and political scientists, such as Bill Bishop and Andrew Gelman,  who increasingly find that the high tech centers of the country (including the Boston corridor) attract that same creative class open to new ideas and approving of same sex marriage, while the conscientious, more religious, and conventional family oriented types are drawn to other regions – regions that tend to oppose same-sex marriage.

Do these divisions suggest that opposition to same-sex marriage is in our genes – or at least our personality types? The CEOs and the creative class of the new economy may not belong to different tribes, but they tend to see the world through different lenses that color  their  perceptions.      Read the rest of this post »

  May 19, 2009 at 1:34 pm  Tags: cultural frameworks, economics, gay marriage  Posted in: Civil Rights, Family Law   Print This Post   No Comments

After Craigslist, Seeking Arrangements?

posted by Frank Pasquale

Attorney generals have been pressuring Craigslist to eliminate “ads that are poorly disguised come-ons for illegal prostitution.” One key question about the campaign: is the prostitution or the “poor disguising” of it the target? The free pass given to Seeking Arrangements suggests the latter–and how difficult it is to limit commodification nowadays.

According to Ruth Padawer’s excellent profile of Seeking Arrangements, the deals brokered by “sugar daddies” and “sugar babies” on the site are complicated:

[S]ince the 1970s, courts have ruled that as long as the woman is paid for some service besides sex — housecleaning, companionship — the arrangement is not the equivalent of prostitution. “When these sugar-daddy relationships go the way I think they should go, the lines are pretty blurry between that and a typical boyfriend-girlfriend relationship,” [one woman on the site] said. “And when they go the way I don’t think they should go, the lines are blurry between that and sex work.”

One image on the site features a dazed, graying man doted on by two barely clad attendants . . . . But this marketing spin doesn’t capture the nuances of the relationships that often develop between the “daddies” and the “babies” who meet on the site — relationships that can turn out to be more complicated than even the members themselves expect.

Padawer notes that “these men — especially those shopping for women half their age — are digging deep into their pockets to pay for an illusion: that . .. they’re still enchanting enough to charm pretty young women.” It’s a description/judgment that might well undercut the appeal of such sites if it becomes prevalent enough (though the decadent spirit has always preferred simulation over the real thing).

The law appears to have chosen to fight only the straight-up trade of sex for money. The battle against sites like Seeking Arrangements will probably have to be a cultural one.

  May 15, 2009 at 7:05 am   Posted in: Economic Analysis of Law, Family Law, Feminism and Gender   Print This Post   No Comments

What’s in a Name, Part 2: Consider “half-siblings”

posted by Naomi Cahn

Ryan Kramer graduated from Colorado University’s aerospace engineering program on Friday, a program that is so tough that only about 50% of those who begin ultimately finish it.  Before he starts his master’s degree in engineering management  at USC this fall, one of his big summer plans is to meet two of his half-siblings; he has at least five others.

I’ve met Ryan once, and was incredibly impressed with him – I’m not surprised that he was able to complete his competitive college program nor that he is seeking out half-siblings and the man who anonymously provided the sperm that enabled Ryan to exist.  Ryan and I met at a conference on establishing a national donor gamete databank. Ryan and his mother, Wendy Kramer, have started the enormously successful Donor Sibling Registry, which is now responsible for connecting more than 6000 people with others who share some of the same genetic origins (disclosure: I have just become a board member of the DSR).

Donor-conceived offspring often – although not always – regret their lack of connection with their entire biological heritage. They want to know more about the often anonymous individual[s] who helped create them. As the secrecy around using “donor” sperm and eggs dissolves – in the past, parents frequently did not tell their children that they had been created by donor gametes — offspring and their parents are increasingly trying to get additional information and are advocating for disclosure of “donor” identities. Many have begun to use the internet to create an extended family that includes others who have used the same donor. Almost 150,000 people visited the DSR website in 2008, and more than 24,000 people have registered on it. It maintains an extremely active blog and message group.

The language in the donor world shows how these families are constructed. Offspring who share the same donor are typically labelled “half-siblings.  “Accidental incest” is a concern.   The word “donor” is itself a misnomer; gametes are typically sold rather than provided altrustically.   Read the rest of this post »

  May 10, 2009 at 2:30 pm   Posted in: Bioethics, Family Law, Feminism and Gender   Print This Post   2 Comments

Red, Blue, and Lavender Marriage

posted by Naomi Cahn

While it may be too early to uncork the champagne bottle to celebrate the legality of gay marriage in New Hampshire and the District of Columbia, it is certainly not premature to buy some champagne, nor to celebrate the changing approach to gay marriage. On Tuesday (May 5), Maine’s House of Representatives voted out a bill that legalizes same-sex marriage in the state, sending it to the governor for signature; and on Wednesday, the governor signed it; New Hampshire’s legislature is considering a similar bill; and on Tuesday, the D.C. City Council also voted - 12-1, with former Mayor Marion Barry casting the dissenting vote – to recognize gay marriages performed in other jurisdictions (my colleague, Mary Cheh, and a City Council member, was in the majority).  The Mayor has indicated he will sign the bill but, given D.C.’s peculiar Home Rule status, Congress has 30 days to review the legislation. Gay marriage is already legal in Massachusetts, Connecticut, Iowa, and Vermont, and New York, where the governor has introduced similar legislation, recognizes gay marriages performed elsewhere.

As June Carbone and I have written in Red Families v. Blue Families (Oxford University Press, forthcoming), it is no surprise that all of the states to legalize same-sex marriage are blue. We have suggested that the new information economy is transforming the family, and has resulted in the development of two different family paradigms: red and blue. Those who live the “blue family” paradigm – they tend to marry later and have children later at an age when both partners reach emotional maturity and financial independence — are reaping handsome rewards.

Read the rest of this post »

  May 6, 2009 at 12:48 pm   Posted in: Family Law, Feminism and Gender   Print This Post   No Comments

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.

Read the rest of this post »

  May 5, 2009 at 8:46 pm   Posted in: Family Law   Print This Post   3 Comments

What’s in a Name? Consider “Embryos”

posted by Naomi Cahn

Dan first asked me to blog a few months ago, around the time my book, Test Tube Families: Why the Fertility Market Needs Legal Regulation, was hitting the market. Since then, we’ve had Nadya Suleman’s octuplets, President Obama’s lifting of the federal stem cell research ban (although this may only apply to embryos resulting from fertility efforts), and proposed new legislation in Georgia that would allow for embryos to be “adopted.” These events in reproductive technology are neither as newsworthy nor as profoundly disturbing as the torture memos or bailing out Wall Street — or, potentially, as swine flu. They are, nonetheless, critical to the cultural conflict over abortion, family formation, and gender roles.

Consider the proposed Georgia law, and almost copycat-like, legislation in Tennesse. The “Option of Adoption Act” is a Georgia bill that is now sitting on the desk of Ga.. Governor Sonny Perdue. This is the same Republican governor who filed his own brief in Northwest Austin Municipal Utility District v. Holder (the Voting Rights Case that the Supreme Court heard last week), arguing – among other things — that electing a black president indicates no further need for the type of scrutiny Georgia receives under Section 5; the Georgia attorney general had, apparently, refused to file such a brief. Anyway, the Option of Adoption Act, which was introduced in the Georgia legislature by an anti-abortion state representative, sets out methods through which people who create an embryo (when someone undergoes a cycle of in vitro fertilization, there are often embryos left over that ) can donate any leftovers to someone else. There may be up to half a million frozen embryos in the United States, although many of them are incapable of becoming viable fetuses. In Georgia, if the legislation becomes law, the recipients of any embryo transfer can then choose to petition a court for recognition that they are the legal parents of any child born to them.

.One of the bill’s advocates, Daniel Becker, the President of Georgia Right to Life, trumpeted that, “’This bill is monumental in that it establishes the adoption of embryos as children for adoption purposes.’” Indeed, there have even been claims that an embryo exchange should be the basis for eligibility under the federal adoption tax credit. As Sarah Lawsky and I painstaking show in Embryo Exchanges and Adoption Tax Credits, use of someone else’s embryo is not an adoption. Calling embryos “children” is problematic for a number of reasons.

Read the rest of this post »

  May 4, 2009 at 7:00 am   Posted in: Bioethics, Family Law, Feminism and Gender   Print This Post   8 Comments

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?

Read the rest of this post »

  May 2, 2009 at 10:16 pm   Posted in: Family Law, Law and Humanities   Print This Post   5 Comments

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.

Read the rest of this post »

  April 24, 2009 at 6:10 pm   Posted in: Family Law   Print This Post   5 Comments

UCLA Law Review 56:4 (April 2009)

posted by UCLA Law Review

Volume 56, Issue 4 (April 2009)

Articles

A Constitutional Birthright: The State, Parentage, and the Rights Of Newborn Persons (pdf)

James G. Dwyer

“Which Is To Be Master,” The Judiciary or the Legislature? When Statutory Directives Violate Separation Of Powers (pdf)

Linda D. Jellum

Normative Methods for Lawyers (pdf)

Joseph William Singer

Comment

Sex Outside of the Therapy Hour: Practical and Constitutional Limits on Therapist Sexual Misconduct Regulations (pdf)

S. Wesley Gorman

  April 19, 2009 at 5:11 pm   Posted in: Constitutional Law, Family Law, Law Rev (UCLA), Law Rev Forum, Legal Theory, Teaching   Print This Post   No Comments

Is Eight Enough?

posted by Jennifer Collins

It is wonderful to be back on Concurring Opinions and I want to thank Dan for graciously inviting me to return. I want to start off my guest stint by mentioning a family law piece that I am currently working on. Naomi Cahn and I have a forthcoming essay in the Northwestern Colloquy, which we plan to follow up with a longer article, about some of the legal and ethical issues raised by the recent birth of octuplets in California. Although large families have traditionally been celebrated in our culture — consider the recent success of the cable show “Jon & Kate Plus Eight,” as well as those old pop culture standbys “The Brady Bunch” and “Cheaper by the Dozen” — the reactions to the Suleman case have been very different, with everyone from doctors to bloggers to her own parents deeming the births “a medical catastrophe” and “absolutely irresponsible.” Two states — Georgia and Missouri — have already introduced legislation in response to the births. In the essay, Naomi and I argue that restrictions on the number of embyros that can be transferred in any single IVF procedure are justifiable, as long as we couple that effort with increased insurance coverage and some potential for flexibility in an individual case. But we also argue that increased restrictions on access to fertility treatment cannot be justified. We therefore diverge from those commentators who argue that we should consider things like marital status, existing family size or financial resources in deciding which individuals may receive fertility treatment. Because this project is still very much a work in progress, we would welcome any comments or feedback.

  April 16, 2009 at 1:26 pm   Posted in: Family Law   Print This Post   One Comment

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?

Read the rest of this post »

  March 31, 2009 at 10:24 am   Posted in: Criminal Law, Family Law, Feminism and Gender   Print This Post   8 Comments

• « Older Entries