Category: Family Law

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The Beginning of the End of Palimony

Most unmarried couples probably give little thought to their legal rights should the relationship end (either by breakup or death of one of the parties). They might be surprised to learn that a state that was once quite receptive to palimony claims can decide to effectively bar such claims. Couples in New Jersey are about to learn this lesson. The state legislature is considering a bipartisan bill which would require palimony agreements to be in writing and be signed by the party against whom the claim is brought.

The bill, which is expected to pass unopposed, reflects a drastic shift in the state’s approach to palimony agreements. New Jersey courts currently enforce express (oral or written) or implied promises of financial support so long as there is some form of consideration sufficient to form a contract. The New Jersey Supreme Court is also the only state supreme court to hold that “cohabitation is not an essential requirement for a cause of action for palimony,” a requirement in all other states. By requiring palimony agreements to be in writing, the state most favorable to palimony claimants may become one of the most hostile to such claimants.

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23

Stealing Love

Love is a wonderful thing, but sometimes love (or infatuation) leads individuals to engage in behavior that can hurt not only them, but also their families. I am talking about extramarital affairs. Although over 85% of Americans believe that adultery is morally wrong, countless spouses are unfaithful. Last week the NY Times discussed the benefits of an anti-love vaccine which would prevent humans from falling in love with the wrong person (i.e., someone who is committed to another person). While such a drug would do wonders for those who wish to fight the occasional urge to stray, it does little to deter individuals who have no qualms about pursuing someone else’s spouse. The law, however, might already provide a deterrent, albeit a quite controversial one.

A minority of states, including Mississippi, North Carolina, South Dakota, and Utah, still recognize a cause of action for alienation of affections against any person who wrongfully interferes with a person’s marriage, thereby causing that person to lose his or her spouse’s affection. Lest you think these causes of action are a thing of the past, this past August, the Mississippi Supreme Court upheld a $1.5 million verdict against an attorney who had an affair with his client’s wife. The plaintiff, who had hired the attorney in connection with a medical malpractice case, prevailed on his claims for intentional infliction of emotional distress, breach of contract, and alienation of affections. Further, even after abolishing the tort of alienation of affections, some states, including California, Connecticut, Kentucky, Maryland, Ohio, Oregon, and Virginia, have allowed claims arising from an extramarital affair to be brought against certain professionals, including attorneys, psychiatrists/psychologists, and clergymen providing marital counseling services, on a theory of intentional infliction of emotional distress, professional malpractice, negligent counseling, and breach of fiduciary duty. For example, eight years after abolishing the tort of alienation of affections, the Kentucky Supreme Court upheld a claim for intentional infliction of emotional distress against a priest who had an affair with the plaintiff’s wife to whom the priest was supposedly providing marriage counseling.

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Should Parents Lose Custody of Obese Kids?

As I was preparing my new syllabus, I came across a case that forced me to think about the extent to which parents should bear responsibility for their children’s obesity. It is well-known that obesity places children at greater risk of Type 2 diabetes, heart disease, kidney failure, and possibly cancer later in life. Sixteen percent of American children and adolescents are obese; another sixteen percent are overweight. The medical profession has warned that, as a result of the rise in childhood obesity, the current generation of American children may have shorter life expectancies than their parents.

I believe that parents should make efforts to provide their children with healthy foods and regular exercise. However, I question whether parents who do not control their children’s weight problem should lose custody of their children to the state? Are we willing to hold that a parent who does little to address his child’s obesity has neglected his child in the same way as if he had failed to provide him with adequate nourishment or supervision? Courts and child welfare agencies are grappling wth this issue. In a recent case, In re Brittany T., a New York Family Court ordered the removal of a morbidly obese child from her parents’ home based on the parents’ consistent failure to comply with the court’s order that they take her to the gym 2-3 times a week and attend a nutrition and education program, among other things. Although the case was reversed on appeal, the New York Appellate Division did not hold that child obesity can never be grounds for neglect, but rather that, in this particular case, the Department of Social Services had not shown that the parents had willfully violated the terms of the court’s order. In fact, although Brittany had gained 25 pounds in five months, the evidence showed that her parents had taken her to the gym at least once a week, had met with a nutritionist, and had kept a food log for her. Yes, the food log reflected that Brittany ate “lots of chicken nuggets, lots of pop tarts, hot dogs, and pizza,” but the parents had maintained the log, as ordered.

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5

Polygamists Indicted in British Columbia

The day after I posted What Exactly is Wrong with Polygamy, the Canadian press reported that two alleged leaders of the polygamous community of Bountiful in British Columbia had been charged with practicing polygamy in violation of the Criminal Code. The Code makes it a crime for any person to enter into “any kind of conjugal union with more than one person at the same time.” One of the charged men is alleged to have 20 wives; the other man is alleged to have two wives. There is no allegation that the defendants’ wives are underage. Although no charges have been brought against any of the wives, as Angela Campbell has pointed out, “[e]nforcing the criminal law against polygamy risks imprisoning not only the women’s husbands, but also them.”

The criminal indictment has placed the issue of polygamy at the forefront of Canadian constitutional law. The British Columbia authorities have been aware of the practice of polygamy in Bountiful for decades, but had chosen not to prosecute, in part, because some legal experts believe that the prohibition on polygamy will not survive a constitutional challenge. The Canadian Charter of Rights and Freedoms protects “freedom of conscience and religion.” In fact, the British Columbia Attorney General sought legal advice from three independent sources before deciding to approve the indictment and two recommended against charging the men with polygamy. The opinion of the third source has not been released.

Unlike the U.S. Supreme Court, which has rejected claims of religious freedom to practice polygamy, the Supreme Court of Canada has never addressed whether laws prohibiting polygamy violate the guarantee of religious freedom under the Charter of Rights. The accused men, who are alleging religious persecution, are likely to claim religious freedom as a defense to the charges. It will be interesting to see how this case develops.

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What Exactly is Wrong With Polygamy?

Thanks to Concurring Opinions for inviting me back to blog this month. I look forward to your comments.

I have been thinking a lot about polygamy lately. As I prepare to teach Family Law once again, I am confronted with polygamy everywhere I turn. First, the third season of Big Love, the HBO series about a Utah entrepreneur struggling to support and “satisfy” his three wives and eight children, begins next week. Second, last April, the Texas Department of Family and Protective Services removed 468 children from their homes in a polygamous ranch. Although the Texas Supreme Court ordered the children’s return to their parents after finding no immediate danger warranting emergency removal, child protective services has continued its investigation in a handful of cases. Third, I have been following Professor Angela Campbell’s research on the polygamous community of Bountiful in British Columbia, which has challenged some of my assumptions about polygamous wives. Finally, I recently learned that polygamy is practiced in the U.S., not only by members of a fundamentalist Mormon sect in Utah, Arizona, and Texas, but also by Black Muslims and African immigrants in New York and Philadelphia. This brings me to the question I would like to raise: What exactly is wrong with polygamy? I will discuss some frequently made arguments and look forward to reading yours.

Polygamy is illegal in all 50 states. Yet, it is estimated that 50,000 to 100,000 men, women, and children live in polygamous households in the U.S. Most polygamists do not enter into plural marriages for purely personal reasons, but rather are guided by religious beliefs. Members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (which broke with the Mormon church in 1890 when the latter disavowed polygamy) believe that only men who have at least three wives will enter the highest level of heaven and that women can only get to heaven if their husbands take them there. The United States Supreme Court, in Reynolds v. United States , rejected claims of religious freedom under the First Amendment to practice polygamy.

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Keeping Track of Domestic Violence Abusers

120px-Old_bracelets_%28aka%29.jpgHawaii, Michigan, and other states now permit courts to grant protective orders requiring domestic violence abusers to wear GPS devices that would notify authorities and victims of an abuser’s whereabouts. In some states such as Illinois, the device would let the victim know if the defendant is within a certain distance from the victim’s home or work. Such protective orders have great potential to prevent or stop abuse–abusers often target victims at their workplaces. Some domestic violence advocates worry that the technology may give victims a false sense of security because technology is, of course, imperfect. A GPS system does a victim little good if a system provides notice of an offender’s location via cell phone and the victim has traveled to a spot with no cell service and the offender is too close to the victim to allow the authorities to come to her aid before the offender strikes. Aside from technical difficulties, victims surely leave their home and work areas and thus would be unprotected if the GPS device only notifies victims when an offender has traveled within the zone of exclusion, i.e., the victim’s home and work. Nonetheless, the use of a GPS system could play an important role in a larger effort to deter domestic violence. Harvard’s Civil Rights-Civil Liberties Journal has devoted scholarly attention to the issue that is worth serious study.

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From Patriarchy to Kindergarchy

Joseph Epstein has a characteristically persnickety and insightful essay in the Weekly Standard on the “Rise of the Kindergarchy:”

In America we are currently living in a Kindergarchy, under rule by children. . . . For the past 30 years at least, we have been lavishing vast expense and anxiety on our children in ways that are unprecedented in American and in perhaps any other national life.

***

When Lyndon Johnson began the War on Poverty in 1965, its most popular . . . program was Headstart, which provided the children of the poor with preschooling, so that they would catch up with the children of the middle class by the time all began kindergarten at the age of five. But the middle class soon set in motion a headstart program of its own, sending its children to nursery and preschools as early as is physiologically possible.

Where one’s child goes to school, how well he does in school, which schools give him the best shot at even better schools later on–these are all matters of the most intense concern. Under Kindergarchy, no effort on behalf of one’s children’s schooling is too extensive, no expense too great, no sacrifice in time and energy on the part of parents too exacting.

Epstein gives many reasons for the rise of the kindergarchy, but overlooks a pretty obvious one: rising inequality, both in schools and incomes. As Republicans Ross Douthat and Reihan Salam have noted, recent economic policies appear designed to bring America closer to the income distribution of Latin America–where financial missteps can have a lot more serious consequences than, say, Scandinavia. For less familial angst, we might want to take a look at the policies of Finland, where “even the best universities don’t have the elite status of a Harvard,” and failure to find a good job doesn’t bring with it a chance of spiralling into lack of health and dental care.

Driving While Elderly

According to Jane Gross, the growing population of elderly drivers is forcing some difficult conversations in families:

Thirty-six percent of adult children polled by the Web site Caring.com and the National Safety Council said that talking to their parents about the need to stop driving would be harder than discussing funeral plans (29 percent) or selling the family home (18 percent).

Though framed as an aid to the elderly themselves, the “car key conversation” is about saving others, too. The discussion reminds me of some empirical work done by Margaret Brinig and colleagues on the “public choice of driving regulations.” Their work

evaluates state driving rules, obtained from laws, regulations, and driver’s manuals, tests, based upon Department of Transportation data, whether the type of laws affects driving and accident rates for those over 64 and suggests a uniform scheme combining self-reporting of driving problems, on-the-road tests of drivers who fall below safe driving standards, and individualized restrictions where these can enable drivers to safely operate vehicles.

In the course of the paper, they mention an alternative, market-based “solution” to the problem.

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Are you an “equal parent”?

Yesterday’s New York Times Magazine ran a cover story about the age-old work-family balance called When Mom and Dad Share It All. It very much tracks some of the debates and sentiments from my last post on maternity versus parental leave. The NYT article describes three families and goes into significant depth describing how each manage (or don’t) the gendered dynamics of career and childcare. Behind these featured families are statistics such as women doing 38 hours a week of housework on average and men doing 12 (when only the husband is working). This three-one ratio goes down, but only to a two-one ratio when both parents are working — women doing 28 hours a week of housework and men doing 16.

The child care dynamic is even more drastic (and not counted in the housework statistic):

Where the housework ratio is two to one, the wife-to-husband ratio for child care in the United States is close to five to one. As with housework, that ratio does not change as much as you would expect when you account for who brings home a paycheck. In a family where Mom stays home and Dad goes to work, she spends 15 hours a week caring for children and he spends 2. In families in which both parents are wage earners, Mom’s average drops to 11 and Dad’s goes up to 3. Lest you think this is at least a significant improvement over our parents and grandparents, not so fast. “The most striking part,” Blair says, “is that none of this is all that different, in terms of ratio, from 90 years ago.”

I was saddened to hear that little has changed in almost a century??!! Okay, so perhaps moms have “more flexible jobs” than dads do (for reasons of socialization or something else), and therefore can take care of the children more. To be sure, I thought, as a professor, I have much more flexibility than my husband, which explains why I do more of the child care during the week. But wait… , the article explains:

…the perception of flexibility is itself a matter of perception. In her study, she was struck by how often the wife’s job was seen by both spouses as being more flexible than the husband’s. By way of example she describes two actual couples, one in which he is a college professor and she is a physician and one in which she is a college professor and he is a physician. In either case, Deutsch says “both the husband and wife claimed the man’s job was less flexible.”

Yikes! I started wondering how flexible is my job as compared to my husband’s? Who is making it “more” or “less” flexible? Which policies and preferences are preventing us from equal-parenting in the ways this article describes? And then I wondered whether the professor-fathers out there do as much child care as I do — that is, do they perceive their job to be more flexible than their spouses, as do I? I would guess the trend is that more fathers with flexible schedules (as this article documents) are doing more of the child care, but the trend is sadly slow and (also as this article documents) greatly imbalanced still after so much time.

There is more in this article as well … worth a read.

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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.