Category: Family Law


When Does Jail Fail to Scare?

This past April, a milestone passed with little fanfare: H. Beatty Chadwick entered his thirteenth year in Pennsylvania jail. He has never been adjudicated guilty of a criminal offense, but, rather, continues to face charges of civil contempt related to a 1995 order in divorce litigation. In that proceeding, Chadwick was ordered to turn over $2.5 million in assets that the courts found he had stashed overseas. Twelve years and many appeals later, Chadwick still refuses to comply. The Third Circuit’s dispositive, and standard-setting, ruling came in 2002 in an opinion by then-judge Alito:

“The Supreme Court has never endorsed the proposition that confinement for civil contempt must cease when there is “no substantial likelihood of compliance.” On the contrary, in words that might as well have been written to describe the case now before us, the Bagwell Court stated that “[t]he paradigmatic coercive, civil contempt sanction … involves confining a contemnor indefinitely until he complies with an affirmative command such as an order ‘to pay alimony, or to surrender property ordered to be turned over to a receiver ….’ ” Bagwell, 512 U.S. at 828, 114 S.Ct. 2552 (emphasis added) (citation omitted) . . . Because the state courts have repeatedly found that Mr. Chadwick has the present ability to comply with the July 1994 state court order, we cannot disturb the state courts’ decision that there is no federal constitutional bar to Mr. Chadwick’s indefinite confinement for civil contempt so long as he retains the ability to comply with the order requiring him to pay over the money at issue. “

On one level, twelve years in jail without the full panoply of due process protections that come with a criminal trial seems unjust. Much of Chadwick’s defense rests on the claim that he doesn’t have the money: in a criminal trial, maybe the burden of proof would have made his claim more plausible. And there is a nagging feeling that he would not have seen twelve years for stealing $2.5 million, so maybe he has served his time, however it is constituted.

But, ultimately, Alito’s opinion seems right to me. (I say that even though it reversed a judgment issued by the Judge I clerked for.) If the constitutional status of a civil contempt order depended on its effect on defendants’ will, the resulting rule would produce perverse incentives. Those with greater fortitude and demonstrated willingness to continue to serve time rather than comply would be let out earlier than those who seem afraid of jail. This would promote false confidence and bravado, and reduce the general deterrent effect of contempt sanctions.

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.”


Facilitating Paternal Involvement

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.

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Debt, Status, and Fatherhood

penguin.jpgProfessor Maldonado’s thoughtful post on fathers reminds of me of one area where the distinction between status and contract in the family still has a huge bite: Debt. In particular the debts created by child support obligations.

Most debts are created in one of two ways. The first method is by contract. I borrow money, I buy on credit, I breach a contract that gives rise to damages, etc. The second method is by committing some tort that gives rise to an award of damages. Interestingly, once these debts are reduced to a sum certain they are more or less treated in the same way. The failure to pay the debt is not a crime. Furthermore, we do not generally allow injunctive relief for debt collection. (In other words, a court will not order a debtor to pay on pain of contempt.) By and large, the debts are even treated in comparable ways in bankruptcy.

Not so for debts of child support. In some jurisdictions failure to pay child support is a crime. Child support debts receive preferred treatment in bankruptcy. In the Old Dominion they try to hit deadbeat dads were they really live, revoking their hunting licences if they refuse to pay. Indeed, some courts have even upheld injunctions requiring unemployed fathers to accept offered employment so as to comply with child support obligations, claims that such work-on-pain-of-contempt-and-imprisonment violates the Thirteenth Amendment’s prohibition on “involuntary servitude” notwithstanding. In short, we treat the debts created by the status of “fatherhood” as being quite different than the debts created by contract or even by harm to others.

I’m not sure what to make of this. Mainly, I suspect that it simply reflects the desire to protect the rights’ of children to the economic support of their parents. But it is more than that. For example, other debts for the benefit of children — say those created by contract such as insurance policies — are not given anything like the same kind of treatment. In other words, it is not simply about making sure that kids get paid. Rather, I suspect that Maine’s claim about the progress of the law notwithstanding, we view a father’s obligation of economic support as changing his status. He is not simply a citizen with a debt. He is a father, something different than an ordinary person, and thus subject to certain intrinsic obligations. In this sense, I think, the law insists that fathers are more than simply income sources. They certainly are not treated like other income sources. Rather, the law insists that the failure to support one’s children is an action of particular blameworthiness that we are willing to accept extra costs to avert and that we are willing to punish with greater severity than other kinds of non-payment of debt. This doesn’t respond to the sorts of concerns raised by Professor Maldonado’s post, of course, but it does suggest that we are willing to treat the obligations of fatherhood as being more than accidental to one’s legal personhood.

Fathers aren’t like everyone else.


Why Have Fathers Disappeared?

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.

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The Mommy Wars and Breast Milk

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.

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Should the Law Recognize Grandparents’ Changing Roles?

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.

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China Tightens Restrictions on International Adoption—Will Demand for African-American Children Increase?

Thank you for the introduction and the opportunity to guest blog this month. I look forward to everyone’s comments.

The Chinese government’s new restrictions on international adoptions went into effect earlier this week. The new rules require that all adoptive parents be married at least two years (to a person of the opposite sex), that they have at least a high school education, and that their family assets total at least $80,000. Most Americans seeking to adopt internationally have no objection to the educational and financial requirements, possibly because most Americans adopting from China are upper middle class. However, there has been a lot of discussion on the adoption blogs about China’s new age and health requirements. According to the U.S. Department of State, China now requires that all foreigners seeking to adopt be 50 years of age or younger. They also must be free of certain medical conditions such as “mental disorders requiring medication for more than two years, including depression, mania, or anxiety neurosis” or a “Body Mass Index (BMI) of 40 or more.” Persons with severe facial deformities, limb paralysis or dysfunction, or blindness (even if only in one eye) are also disqualified.

Many sending countries place even greater restrictions on foreigners seeking to adopt. In addition, Russia has recently stopped accepting applications from American adoption agencies as it attempts once again to curb rampant corruption in its adoption system. Guatemala has similarly announced that it will impose greater restrictions on international adoptions as it attempts to comply with Hague Convention on Intercountry Adoption. As a result, many Americans must come to terms with the reality that their odds of creating or expanding their families through international adoption anytime soon might be reduced.

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