Adultery, Divorce & the Criminal Law

It looks like Eliot and Silda may be staying together after all. For a couple who has long been in the public spotlight, having a hot dog together in Central Park was surely a intentional display of a marriage on the mend. Is this surprising? Is this only to be expected? The statistics on adultery in this country vary widely from as low as 20 percent to as high as 75 percent of married people having engaged in adulterous sex. Many of these adulterous acts are discovered by spouses and many marriages undergo the difficult times now being experienced by the former governor and first lady of New York.

As a family law professor, I always ask matrimonial practitioners whether in their experience, divorce can be avoided after one spouse has cheated on the other. Their answers are always the same and sound true to life: some marriages can overcome an act of adultery while some cannot. What seems to matter are the underlying reasons that led the guilty spouse to stray. If the adultery involves emotional or spiritual bonds, it is a much harder road to forgiveness. Selective forgiveness makes sense on the personal level when two people are trying to sort out their marital relationship. Does it make sense on a societal level?

Americans have long been divided on how to deal with adultery as a societal phenomenon. Interestingly, this difference of opinion has led to selective forgiveness on a societal level. For example, David Paterson succeeded Eliot Spitzer and at his first new conference, Governor Paterson revealed that he too had committed a crime in his past: the misdemeanor of adultery. Certainly there were differences on substantive, procedural and political levels between the two men’s marital mistakes. However, as the New York Times noted, it is important to recognize that both patronizing a prostitute and committing adultery are crimes and yet only Eliot Spitzer is vulnerable to criminal prosecution. Admittedly, adultery has rarely been prosecuted in New York but as Sanford Kadish warned long ago, one of the great dangers of overcriminalization is the selective enforcement of our penal laws. Selective enforcement, of course, necessarily entails selective forgiveness.

In addition to the exercise of discretion by law enforcement as they scrutinize the conduct of individuals, it is also clear that entire categories of individuals are held to higher standards of behavior. Politicians, celebrities, and professional athletes are our leaders, role models and public icons and many believe that they should suffer the wrath of the criminal law even for minor crimes of morality that would ordinarily not be prosecuted if committed by us ordinary folks. Ordinary people are privileged as society largely forgives their adulterous acts.

I want to note one final irony that results from the divided opinion on the public policy question of adultery. Although adultery is a misdemeanor in some states including New York, it is a dead criminal law that is hardly ever enforced. Despite the lack of enforcement, if either Michelle Paterson or Silda Spitzer ever sought a divorce from their husbands, it would probably be granted on the grounds of cruel and inhuman treatment. Cruelty is the most popular ground in New York State today even though there are plenty of marriages breaking up over adultery. Why is this the case?

As one practitioner explained to me recently, no decent divorce lawyer in New York would ever allow their client to admit to a criminal misdemeanor as the grounds for their divorce. Instead, he would prudently advise parties to compromise on the use of the legal fiction of cruelty with this argument about the need to avoid self-incrimination. It is ironic that criminalizing adultery has had the opposite public policy effect: instead of condemning and discouraging certain harmful conduct, it ends up providing the excuse for adulterers to cover their behavior and avoid public stigma.

Posted by Elaine Chiu at 07:15 PM | Comments (0) | TrackBack

Marriage Patents: The Algorithm of Love

As some lawyers patented tax avoidance strategies, attorneys started to wonder what would be the next area to be colonized by this form of IP. This patent application suggests some new worries for family law:

The purpose of this invention is to provide an improved method of proposing marriage to an individual. The method of proposing to an individual generally comprising the steps of meeting the individual; exchanging names with the individual; dating the individual (not necessary); drafting a government document having a proposal to marry the individual incorporated therein; and showing the government document to the individual. The government document may be a patent application. The patent application may claim the method by which the proposor will make a marriage proposal to the individual. The proposor could then use the method claimed in the patent application to propose to the individual. The patent application could be the actual marriage proposal.

Some of the details are pretty bizarre:

Where the individual is emotionally connected to a current boyfriend, the inherent problems with such an emotional relationship between the individual and the current boyfriend may be overcome as set forth below. The meeting step 12 may also comprise one or more sub-steps, such as having the individual continuously beat the proposor at electronic trivia in a merciless fashion.

Though this application must be facetious, controversial "business method" patents have been a concern of the Court of Appeals for the Federal Circuit for some time. As it gets ready to consider In re Bilski en banc, hopefully it will keep in mind the points made by satire in the marriage patent app...and the Samuelson Center/PK/EFF/CU brief on the limits of patent law.

Posted by Frank Pasquale at 08:42 PM | Comments (1) | TrackBack

Bargain Men

Wealth watcher Robert Frank presented some survey data on "marriage for money" in the WSJ last week. Willingness to marry for money was surprisingly widespread, but the question's tactful wording casts some doubt on the data:

According to a survey by Prince & Associates, a Connecticut-based wealth-research firm, the average "price" that men and women demand to marry for money these days is $1.5 million. The survey polled 1,134 people nationwide with incomes ranging between $30,000 to $60,000 (squarely in the median range for nationwide incomes). The survey asked: "How willing are you to marry an average-looking person that you liked, if they had money?"

The question really gets at how much of a difference there is between a) an "average-looking" person and the respondent's ideal match, and b) "like" and "love". . . and since we don't know if some respondents imputed the latter into the former, it's not that useful. But I'll give Prince & Associates credit for limiting the survey to people in a narrow income band--I've argued elsewhere that such "willingness to accept" figures are meaningless otherwise.

They also came up with this provocative nugget of data:

Asked how much a potential spouse would need to have to be money-marriage material, women in their 20s said $2.5 million. The going rate fell to $1.1 million for women in their 30s, and rose again to $2.2 million for women in their 40s. Ms. Smock and Russ Alan Prince, Prince & Associate's founder, both attribute the fluctuation to the assumption that thirty-something women feel more pressure to get married than women in their 20s, so they are willing to lower the price. By their 40s, women are more comfortable being independent, so they're willing to hold out for more cash.

Men have cheaper requirements. In the Prince survey, their asking price overall was $1.2 million, with men in their 20s asking $1 million and men in their 40s asking $1.4 million. . . . No one in the survey quoted a price of more than $3 million. . . . . Douglas Freeman, a tax and estates attorney in California who works with wealthy families, says the men's numbers are lower because they would feel threatened by women worth several million dollars.

Though I find Freeman's projections of monetary machismo unconvincing, this story on "dating down" offers some anecdotal support for his point of view.

Posted by Frank Pasquale at 10:06 PM | Comments (1) | TrackBack

Saving the planet via polygamy

There's a really bizarre article in today's Washington Post. Under the title, "Divorce Found to Harm the Environment," the article states:

Divorce is not just a family matter. It exacts a serious toll on the environment by boosting the energy and water consumption of those who used to live together, according to a study by two Michigan State University researchers.

The analysis found that cohabiting couples and families around the globe use resources more efficiently than households that have split up. The researchers calculated that in 2005, divorced American households used between 42 and 61 percent more resources per person than before they separated, spending 46 percent more per person on electricity and 56 percent more on water. . . .

Married households use energy and water more efficiently than divorced ones because they share these resources -- including lighting and heating -- among more people, said Jianguo Liu, one of the paper's co-authors. Moreover, the divorced households they surveyed between 1998 and 2002 used up more space, occupying between 33 and 95 percent more rooms per person than in married households.

This is certainly a novel use of statistics, and likely to see much use in intra-family discussions this holiday season. I foresee the use of this statistic as another arrow in the quiver of passive-aggressive matchmaking parents everywhere. ("I don't see why George can't just find a nice girl, settle down, and save the environment.") But really, the stats seem to prove too much, don't they?

First, the environmental loss or gain isn't really coming from marriage, is it? It's coming from shared use of resources. And two people don't have to be married to share resources. Unmarried cohabitation would have exactly the same environmental impact due to shared resource use. It won't just be parents citing this article over Christmas dinner. "I know you're mad that Cindy moved in with me, Mom -- but we're only doing it to help save the planet."

And second, if two-people-cohabitating really creates such great environmental impact -- why stop at two? The benefits of shared resource use can be expanded to greater heights, can't they?

For one thing, this is an incentive for families to keep their kids longer. There will be no more nagging at little Junior to go get his own place now that he's 35. Let's keep him in his old room, and save the planet.

But wait, there's more! What about polygamy? Now you're talking real resource savings. Think Big Love<, or perhaps Brigham Young and 56 wives. That's not just 56 wives -- that's 56 times a 40% reduction in water and electricity use. Wowzers! You may see a problematic patriarchal family system, but I see forward-looking, responsible use of scarce environmental resources.

Of course, removing 56 women from the marriage market skews the gender balance of the dating pool -- so we would need a reverse-Brigham as well, a woman who lived polyandrously with 56 husbands. And viola -- even more resources saved! You never knew it, but what's really destroying the environment these days is monogamy.

I hope Mitt Romney includes this discussion in his speech on Thursday.

Posted by Kaimipono D. Wenger at 03:46 PM | Comments (2) | TrackBack

Administering Family Values

Following some excellent reporting on the failures of the CPSC, the NYT gives a big picture forecast of rapid rulemaking in the remainder of the Bush administration:

Hoping to lock in policies backed by a pro-business administration . . . [b]usinesses are lobbying the Bush administration to roll back rules that let employees take time off for family needs and medical problems.

***

The National Association of Manufacturers [NAM] said the law had been widely abused and had caused “a staggering loss of work hours” as employees took unscheduled, intermittent time off for health conditions that could not be verified. The use of such leave time tends to rise sharply before holiday weekends, on the day after Super Bowl Sunday and on the first day of the local hunting season, employers said.

The NAM should watch out--they might provoke a hunter-FMLA alliance as durable as the hunter-environmentalist one. They could also generate more lawsuits in the future by putting complex limits on FMLA leave.

But I'm sure NAM has its eye on not just legal but cultural change. Perhaps the endgame is to force more and more workers to be like this one, quoted in Jill Andresky Fraser's White Collar Sweatshop (p. 23):

[A worker from Intel said] "If you make the choice to have a home life, you will be ranked and rated at the bottom. I was willing to work the endless hours, come in on weekends, travel to the ends of the earth. I had no hobbies, no outside interests. If I wasn't involved in the company, I wasn't anything."

It will be interesting to see how advocates of "heroic conservatism" respond to this push to limit the FMLA. In a perceptive editorial, former George W. Bush speechwriter Michael Gerson makes the following observation on the future of the Republican party:

The two intellectually vital movements within the Republican Party today are libertarianism and Roman Catholic social thought . . . . The difference between these visions is considerable. Various forms of libertarianism and anti-government conservatism share a belief that justice is defined by the imposition of impartial rules -- free markets and the rule of law. . . . But Catholic social thought takes a large step beyond that view [by asserting] that the justice of society is measured by its treatment of the helpless and poor.

And also by its treatment of those who care for dependents.

Posted by Frank Pasquale at 12:03 PM | Comments (0) | TrackBack

Oregon Supreme Court Considers Circumcision of 12-Year-Old Boy

No graphic for this post, tempted though I am . . . .

On November 6, the Oregon Supreme Court heard a dispute between parents over the circumcision of their 12-year-old son. The father, who has recently converted to Judaism and has full custody of the boy, wants him circumcised. The mother is trying to stop the procedure and argues that it is both sexual and physical abuse. The lower court dismissed her challenge but would not permit the circumcision to occur until all appeals were exhausted.

There’s been plenty of talk about this case over at Law Blog. Reading the comments provides a snapshot of the debate over whether the United States should continue its practice of male infant circumcision. Law Blog has comments about the procedure’s health benefits and associated risks; assertions about whether circumcised males experience less sexual pleasure than uncircumcised males; and questions about whether one can criticize male circumcision and avoid being labeled anti-semitic.

I’ve argued elsewhere that even non-religious infant male circumcision is driven primarily by cultural concerns, not medical ones. Sociological research has shown that many parents decide to circumcise because they want their son to resemble his father or his peers. Moreover, the cultural ubiquitousness of infant male circumcision substantially affects the debate that surrounds the practice. Doctors, academics and judges cannot help but be influenced by the fact that they are likely to be circumcised themselves (particularly if they are Caucasian), or to have only been exposed to circumcised sexual partners, or to have decided to circumcise their own children. This cannot help but color the debate, probably in ways that even the participants themselves are unaware.

The Oregon case provides an interesting twist because the child is 12. At Law Blog, readers have emphasized the OUCH factor and argued that the boy can decide whether to undergo circumcision when he turns 18. But some other cultures believe that circumcision is too painful and traumatic for newborns; instead, they circumcise boys during late elementary school, as part of a passage into manhood.

An article in the NY Sun quotes Geoff Miller at NYU as stating that he would “be quite shocked or at least surprised” if the Oregon Supreme Court reverses the lower court. Miller has good reason for his opinion, as courts have been unsympathetic to non-custodial parents who seek to prevent the circumcision of infants, and to custodial parents who claim the procedure was done without their informed consent. Still, this case may turn out differently than the rest. The Pacific Northwest has the lowest circumcision rates of anywhere in the county. The boy is 12. The combination of these two factors may mean that judges in Oregon view this case through a different cultural lens.

Posted by Sarah Waldeck at 01:11 PM | Comments (12) | TrackBack

Eugenics Problems, Left and Right

Michael Gerson has an interesting editorial in the Washington Post on the Eugenics Temptation--of the left. He quotes the following statement of James Watson on embryo selection:

"If you could find the gene which determines sexuality and a woman decides she doesn't want a homosexual child, well, let her." In the same interview, [Watson] said, "We already accept that most couples don't want a Down child. You would have to be crazy to say you wanted one, because that child has no future."

Gerson then quotes Yuval Levin on a tension within liberalism that I've noted on this blog--between egalitarianism and libertarianism:

Science looks at human beings in their animal aspects. As animals, we are not always equal. It is precisely in the ways we are not simply animals that we are equal. So science, left to itself, poses a serious challenge to egalitarianism. The left . . . .finds itself increasingly disarmed against this challenge, as it grows increasingly uncomfortable with the necessarily transcendent basis of human equality. Part of the case for egalitarianism relies on the assertion of something beyond our animal nature crudely understood, and of a standard science alone will not provide. Defending equality requires tools the left used to possess but seems to have less and less of.

Gerson, whom David Frum "ranks among the most brilliant and most influential presidential speechwriters in decades," has put his finger on what is probably the most dangerous tension in "left" ideology today. Positional arms races for designer babies dovetail with an ethos that says that choice in reproductive matters must be absolute. As I stated five years ago in an article, egalitarian principles should check this tide.

However, Gerson ought to also admit the "right"'s partial responsibility for driving the appeal of such arms races. Libertarianism is as much an aspect of the Republican as the Democratic party, and its tendency to reject all arguments for regulation is probably a stronger political force than the left's alleged rejection of a "necessarily transcendent basis of human equality." The "left" itself is diverse, and one need only read the work of Michael Perry, or basic documents in Catholic social thought, to see a robust program of social solidarity wedded to an ideal of equality grounded in natural law.

Finally, let's consider why in America a family with a Down's syndrome child (or one with any disability) might think it "has no future." Why do we leave so much of children's health care up to the chance that their parents will be able to afford insurance? Why do we as a society cling to the ideal of permitting families to go bankrupt while providing health care for their children? Gerson states:

Progressives, at their best, have a special concern for the different, the struggling and the weak. When it comes to eugenics, they face not only a tension but a choice -- and they should choose human equality over the pursuit of human perfection.

Progressives might respond that conservatives, at their best, realize that our ideals can only survive when they are embedded in a culture that supports them. Gerson may be hard-pressed to defend the transcendent value of every individual life while promoting a neo-Nietzschean economic policy that routs ever more money to ubermenschen at the top of the income scale while cutting Medicaid funding. When it comes to economic policy, he faces not only a tension but a choice -- and he should choose human equality over the anti-tax, anti-spending dogma that has denied so many Americans basic economic security.

Posted by Frank Pasquale at 09:59 AM | Comments (1) | TrackBack

Oh, Britney

As both a criminal law and a family law professor, I have been following the developments in the Britney Spears custody saga with interest (solely for professional reasons, of course). It never ceases to amaze me how there is this unending parade of troubled celebrities willing to provide me with great material for classroom discussions. The development that particularly struck me today was her lawyer's assertion that she temporarily lost custody simply for her failure to take a drug test and get a CA driver's license. Several of the folks I have talked to have expressed bewilderment that she would not comply with these very simple steps mandated by the court when the custody of her children is at stake. Sadly, I think this another example of a phenomenon that I've been writing about -- that we tend to romanticize the parent-child relationship and assume that parents will generally do right by their children without court intervention. As I wrote in an article that appeared in the Northwestern University Law Review last year, " we desperately want to believe that all parents are good and loving individuals whose lives revolve around their children and who always act in their children's best interest." Britney Spears is yet another example of why we should have a conversation about whether the law's reliance on that assumption makes sense. For whatever reason -- mental illness, drug use, immaturity, a need for attention, an unconscious desire to be free of the burdens of parenthood -- Britney at this point in her life is unable to put the needs of her children first. Unfortunately, she is not the only parent in that position. These are incredibly complicated and painful questions, to be sure, with no quick or easy answers. But I think that it is a conversation worth having.

Posted by Jennifer Collins at 01:04 PM | Comments (0) | TrackBack

Do Dogs Have Standing?

Drake Bennett's piece Lawyer for the Dog raises some interesting issues in canine custody disputes:

Pet custody disputes have become an increasingly common fixture in divorce cases and [veterinarian Amy] Marder, an animal behavior specialist, has consulted in several. To do a proper evaluation, she likes to spend at least an hour and a half with the couple and the pet. . . .

Marder frowns on so-called "calling contests," a method used by lawyers in some custody cases, in which the owners stand at opposite ends of a room and call the pet to see which way it will go. She prefers to observe the animal's body language as it interacts with its owners. She looks at whether it sits closer to one or the other, and how it reacts when each pets it. . . .

Sometimes she recommends joint custody, but only if she thinks the animal can handle it. "Some animals think it's terrific to go live in two homes," she says. "Others have separation anxiety and splitting time would only make it worse."

I wonder if disgruntled parties can appeal to the Pet Psychic? Does a vet's assessment of an animal's mental state meet Daubert standards? What is it like to be a dog in the midst of such a dispute?

Posted by Frank Pasquale at 08:45 AM | Comments (4) | TrackBack

Should You Buy Divorce Insurance?

Divorce is catastrophic: it increases the rates of suicide and heart disease; can decrease overall well-being for both parents and children; and it significantly hurts the financial position of the parties, especially women.

But unlike almost all other catastrophic risks that we face, the costs of divorce can not be fully insured. Because of statutory requirements that limit insurance coverage to "fortuitous events", and the perception that divorce is elected (at least by one of the parties to the marriage), you can't buy a policy that will pay you for breach of the marriage contract. Such is the law.

I'm interested in this topic, and so I was quite intrigued to read about a new product being developed by an entrepreneur named John Logan, of the SafeGuard Guaranty Corporation: divorce insurance.

There has been significant enthusiasm for the concept. As some noted, you could imagine such insurance having a collateral-benefit: "risk matching" your perspective spouse (or even a first date) based on their premiums. But when you think about the concept a little bit, obvious objections present themselves:

• Fraud and Adverse Selection: Since divorce can be elected, how could an insurance company prevent gaming? Fake marriages seeking divorce payouts might soon abound: would the insurance company have to order Green Card from NetFlix to train its agents? For lack of a cheap way to assess the risk of divorce, and fraudulent marriage, premium rates overall would increase, leading "good" candidates (i.e., those who would never divorce) to opt out of the pool. This divorce insurance externality would be extremely difficult to manage. Indeed, this is why marriage insurance excludes reasons like "change of heart." I don't know that it is a soluble problem.
• Public Policy:
Imagine that we could solve the problem of intentional fraud, so the only payouts would go to innocent victims of adulterous spouses. We might still imagine that the common law, which generally prohibits insurance that encourages socially wrongful conduct, would strike such contracts on public policy grounds. The argument would go that the insurance regime, by decreasing the cost of divorce on the victim spouse, in effect increases the incentives for adultery, by reducing the ultimate financial and emotional obligations. In my view, this is a foolish argument, but courts seem to persist in treating insurance as a step-child of the freedom to contract movement.

The externality problem seemed so severe that I decided to go to the source, and emailed John Logan about his product. He was nice enough to chat with me for a few minutes, and I can now share the fruits of that conversation with you.

I started the conversation believing that Logan was offering a true insurance product. A business methods patent the company may have filed stated that divorce insurance is:

1. An insurance policy covering at least some financial consequences of the untimely ending of a contractual relationship between two or more natural persons, which contractual relationship governs the natural persons way of living together.

12. A method of doing business comprising: determining a periodic amount to be charged a prospective participant for divorce insurance; charging that periodic amount to a participant in an insurance program over a period of time; and administering the insurance program.

But when I talked to Logan, he preferred to call the product to be offered a "hybrid insurance/investment product." The idea is that individuals would buy the right to a payout, in 25 years, of a fixed sum, and in turn promise to pay premiums priced based solely on the total face value of the instrument. The instrument – let's call it an annuity for ease of reference – has a contingency: if its owner gets divorced, the annuity pays out immediately, at a rate to be calculated based on the time since purchase and the premium rate. That is, the longer you stay in the marriage, and the closer you are to the end of the 25-year annuity, the more money you will get paid on divorce. The product does not seem to intend to graduate premiums at all based on the risks of divorce, or the "why". It is a fairly simple investment vehicle. The only other bell I learned about was their plan to permit individuals to recapture premiums at any time, so long as they purchase an initial premium rider, which is a bit of departure from ordinary insurance practice.

Because this isn't an insurance product, Logan plans to market and run his business largely online, with little or no need for the ordinary back-end costs of an insurance business (actuaries, etc.) That said, he still needs an initial capital investment, and is still looking for additional investors before the product launches. He hopes to roll out "divorce insurance" this fall, if the financing lines up. He estimates a premium market approaching $200 billion annually, based on a base premium of something like $1,200 annually per policy.

So what to think? Well, first, this is simply not divorce insurance. That doesn't mean it is a bad investment – I have no idea whether it is or not – but it does not intend to permit individuals to pay an actuarially measured share of the risks of divorce. I imagine that the legal and economic issues I've already discussed play a large role in the shaping of this product, but it still left me with some questions. There is obviously a degree of "yuck" factor when thinking about purchasing insurance for divorce – the kind of distaste than long discouraged pre-nups, and which makes proposals like these dead-letters. But this kind of financial vehicle would appeal to me more were I not "forced" to subsidize others' divorces, and instead were measured at my own risk level. What's the chance that courts will relax their public policy limitations on insurance anytime soon? Second, another way to approach the legal-fees aspect of this problem is through a prepaid legal service. I don’t know enough about these kinds of contracts, so this is a really ignorant question: how can such services possible get around conflict problems if they don't counsel the entire couple about the ethical issues at the beginning of the lawyer-client relationship?

Posted by Dave Hoffman at 11:44 AM | Comments (4) | TrackBack

Joan Williams, Law Professor Making a Difference

There's a must-read NYT Mag. piece on Joan Williams, who has done amazing work to restore "work/life balance" to lawyers and employees generally. As the piece notes, "in the United States today, working parents receive supports and benefits that in much of the developed world would be considered scandalously ungenerous." Williams's book Unbending Gender has advanced lawsuits combating "workplace discrimination because of family care-giving obligations:"

Williams argued that the growing tension between work and family was not simply a product of economic necessity. It stemmed, rather, from a marketplace structured around an increasingly outdated masculine norm: the “ideal worker” who can work full time for an entire career while enjoying “immunity from family work.” At a time when both adults in most families had come to participate in the labor force, Williams argued that this standard was unrealistic, especially for women, who remained the primary caregivers in most households.

Williams's focus has also helped extend antidiscrimination law beyond "so-called 'glass ceiling' cases involving women barred from the top rungs of a handful of elite professions," to plaintiffs who "have ranged across the occupational spectrum, from physicians to police officers to grocery clerks." It's good to see that a law prof can help spur the EEOC to take the problems of working parents seriously, even as some in DC are unwilling to offer the most basic supports provided by our OECD peers.

Posted by Frank Pasquale at 10:35 PM | Comments (3) | TrackBack

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."

Posted by Dave Hoffman at 07:31 AM | Comments (18) | TrackBack

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.

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.

Posted by Solangel Maldonado at 12:52 PM | Comments (12) | TrackBack

Debt, Status, and Fatherhood

Professor 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.

Posted by Nate Oman at 12:34 PM | Comments (1) | TrackBack

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.

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.

Posted by Solangel Maldonado at 10:56 PM | Comments (15) | TrackBack

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.

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.

Posted by Solangel Maldonado at 11:28 PM | Comments (4) | TrackBack

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.

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?

Posted by Solangel Maldonado at 07:13 PM | Comments (8) | TrackBack

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.

A few days ago I got a call from a journalist asking what effect, if any, China’s new restrictions will have on white Americans’ adoptions of African-American children. One might expect that China’s new policies would lead some white Americans who would otherwise have adopted from China to adopt an African-American child. After all, these are families who had already decided to adopt a child of a different race. However, I am not hopeful. As much as I would like to believe that China’s restrictions will lead many more white Americans to seek African-American children, not only from foster care, but from private agencies that place primarily healthy infants who were relinquished voluntarily, I am not sure China’s restrictions will lead to increased demand for African-American children.

First, some families chose to adopt internationally because they wish to avoid the risk that the birth mother or father will later change their minds and attempt to reclaim the child. Although this rarely happens, understandably, some adoptive parents prefer to adopt from abroad where this particular risk might be even lower although the risks of other types of disruptions might be higher. Second, some adoptive parents want to avoid open adoptions which are increasingly common in the U.S. and require the adoptive parents to keep in contact (albeit minimal contact in many cases) with the birth parents.

But let me suggest a third reason—race. Is it possible that some white Americans disqualified from adopting from China might not seek to adopt an African-American child precisely because he is Black? The literature on unconscious racial bias shows that cognitive biases against African-Americans influence employers’ evaluations of applicants’ resumes based on whether they have a “white” name or a “Black” name. Unconscious racial biases also affect the amount of bail set, and even the rate at which NBA referees call fouls against African-American players. Studies have shown that Americans marrying interracially find African-Americans to be the least desirable marriage partners, even when the study participants honestly believed that they had no racial biases. Further, demand for African-American children is significantly lower than demand for children of other races. Indeed, many adoption agencies subsidize adoptions of African-American infants because too few families are interested in adopting these children. The standard fee for adoptions of “Caucasian, Hispanic, Asian-American, or Native-American infants, or any combination thereof” does not apply to adoptions of African-American infants which are discounted as much as 50%. Thus, I ask: Is it possible that unconscious biases against African-American children will keep some white families from providing a child with his “forever family?”

Posted by Solangel Maldonado at 02:32 PM | Comments (8) | TrackBack