Category: Family Law


Maternity Leave Means Fathers Too

A Commissioner at the Massachusetts Commission Against Discrimination (the Commission) has announced that effective immediately the Massachusetts Maternity Leave Act (MMLA) will apply to new parents of either sex. This means that both mothers and fathers (or both parents in gay marriages) in Massachusetts will be entitled under state law to eight weeks of unpaid leave upon the birth or adoption of their child. (The MMLA applies to employers with six or more employees.)

This announcement by the MCAD is startling for many reasons. First, it appears that the Commission, has rewritten a statute that is clearly gender-based (“maternity” rather than “parental”) to be gender-neutral. The Commissioner admitted as much when he said the reason for the Commission’s interpretation is to avoid the following problem:

“If two women are married [as is legal in Massachusetts] and adopt a child, then they are both entitled to leave under the [MMLA], and yet if two men are married and adopt a child, they would be entitled to no leave under a strict reading of the statute. That result was troubling to us, and we didn’t think it was in keeping with our mandate by statute, which is to eliminate, eradicate and prevent discrimination in Massachusetts.”

The Commission says it “enjoys broad discretion” and so it is applying the statute to avoid what it considers to be a state constitutional problem. Of course, the Commission must apply the law in a constitutional manner, but it does seem to have taken a radical step in this instance without a notice and comment period that most major legislation (or legislative changes) undergo before passage. As some lawyers have said, it creates significant obligations for employers overnight, which obligations may not be what the legislature has intended.

Second, the Commission’s interpretation of the statute appears to understand the “discrimination” the MMLA seeks to eradicate as discrimination against parents rather than against women. I don’t know the history behind the MMLA, but its title (and language) suggests that the gist of the law was not to eradicate discrimination against parents but against mothers. (The word “female employee” is all over the statute.)

The big question for me, however, as I read this news is whether I care how startling it is and whether instead I should jump for joy that finally FINALLY some official legal body has recognized in a brave (however radical and oblique) way that gender equality requires that fathers/spouses be equal parents of newborns with mothers. I don’t think it a radical idea (although people I mention it to think it novel and curious) that the disparity in child care in our society — where most women are in charge of child care in their household despite more than sixty percent of mothers working outside of the home — is rooted in maternity leave, a gendered leave policy that creates inequality in the competence and expectations for child care. (To be sure, the FMLA is gender neutral and passed under congress’s section five powers as a remedial and prophylatic measure to combat sexism. But the MMLA targets infant child care specifically where as the FMLA covers diverse family relationships. For a quick comparison of the MMLA and FMLA see here.) By interpreting the MMLA in this way, the Commission has given most fathers/spouses in the Commonwealth the right to stay home with their newborn.

I have long lamented the accommodation of maternity leave – not because I think it unnecessary for mothers but because it creates an expectation that mothers (and not fathers/spouses) will stay home with the baby when born or adopted. In addition to providing time to physical recuperate from labor (which for most women takes between two and four weeks), maternity leave (especially for new moms) is a form of boot-camp, teaching women how to care for an infant by forcing the togetherness. Most women don’t know any better than most men how to calm a fussy baby, how to feed a baby, how to swaddle a baby or put her to sleep. These skills are gender-neutral. When do women become more competent than men at these tasks? When they care for their own newborn during maternity leave (or, admittedly, when they have taken a job caring for children or cared for a sibling or friend’s child prior to having their own child). Maternity leave is a three month (sometimes more) “head start” in the child-care department. And this head-start often sets the parameters for child-care duties in the future. At four months when a mother is back at work, that mother is typically better at soothing and dressing and feeding the baby because she has done it so often the past twelve weeks while her husband/spouse was at work. It makes sense, therefore, at the end of the work day, that when the baby is fussy or hungry that she calms and feeds the baby because she is better at it. This is an efficient division of labor. But it also relegates her to the “second shift,” one that mothers have historically complained about, whereby she works in the office all day and in the house all night. And this gendered child care dynamic is entirely avoidable if fathers/spouses became as competent as mothers in the earliest days of their baby’s life. Three months of total immersion in child care is a long time. Ask any parent: the learning curve is a steep one. And when the baby is crying, you want the most skilled person to calm that baby (i.e., the person who can succeed the fastest at the task). This is often the person who stayed home with the baby, and it is usually the woman.

So back to the Commission’s announcement. What it might accomplish if applied to both parents is to encourage them to become equally competent at caring for their newborn at an early enough stage in the parenting relationship to prevent gender inequality in child care in the future. And it sends the message that both parents are crucial to nurturing the child – which is of course true. How will it apply in practice? Does it allow for the possibility that one parent might stay home for the first eight weeks and the other parent for the second eight weeks? Would it allow for both parents to stay home at the same time? Either way, I hope this significantly changes the parental leave landscape in Massachusetts – for the better. It is long overdue that fathers/spouses be expected to care for their newborns as mothers are expected to. I would bet that many fathers/spouses would relish the idea of a three month leave to care for their new child. And I have no doubt that children will be better off for it. I applaud the Commission.


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?

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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.

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.

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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?

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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.”

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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.

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.

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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.

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?