Category: Family Law

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?


Should You Buy Divorce Insurance?

brokenheart1.jpgDivorce 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:

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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.


When Does Jail Fail to Scare?

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

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

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

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

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


Facilitating Paternal Involvement

In a post last week, I discussed some of the reasons why so many noncustodial fathers disengage from their children. I received many thoughtful comments, some of which discussed the law’s unstated preference for maternal custody and mothers’ interference with visitation. Admittedly, some mothers do interfere with visitation and courts should do more to enforce fathers’ rights. However, we cannot ignore the opposite problem—fathers who do not see their children even when there is no one preventing them from doing so. There are many fathers who see their children less often than the custodial mother would like and less often than they are entitled to under the custody and visitation order. However, while residential parents may not legally interfere with the other parent’s access to the child, there are no legal or social sanctions imposed on fathers who fail to pick up their children for the evening or weekend as scheduled. Some mothers have actually gone to court asking the judge to force their child’s father to exercise his visitation rights only to be informed that there is nothing the law can do.

I disagree. The law can do something. The social and legal forces I discussed last week may have pushed some fathers away from their children. Thus, the law has a responsibility to facilitate paternal involvement. Unacceptably high rates of paternal absence call for drastic measures. That is why I propose that the law attempt to bring fathers back into their children’s lives by adopting a presumption of joint legal custody and requiring that they participate in their children’s upbringing.

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Debt, Status, and Fatherhood

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

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

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

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

Fathers aren’t like everyone else.