Category: Family Law

2

Sofia Vergara, Frozen Embryos – and Trust Law?

MINOLTA DIGITAL CAMERA

MINOLTA DIGITAL CAMERA

The newest twist in the long-running dispute between Sofia Vergara and her former fiancé, Nick Loeb ,over their frozen embryos is not actually between Vergara and Loeb.   Instead, out of the blue, James Charbonnet, claiming to be the trustee of the frozen embryos, has sued Vergara in Louisiana.

Many couples have gone to court to fight about their frozen embryos. But, in addition to the fact that this case involves Vergara, there are a lot of strange things about this lawsuit. I’ll unpack just a few.

First, who cares about these embryos? Last year, Loeb sued Vergara in California, trying to make sure that the embryos they had created would not be destroyed. Vergara’s lawyers recently asked Loeb for the names of two former girlfriends who may have had abortions during his relationships with them; rather than provide the information, Loeb is dropping that particular lawsuit. The status of the embyros is unclear, as Vergara has said that she doesn’t want to get rid of the embryos, but she doesn’t want him to use them.

Second, why Louisiana? The embryos are in California, and so is Vergara; Loeb is in New York. So here’s why Louisiana is the chosen forum: Louisiana is the only state that accords status to an embryo as a “juridical person,” LSA-R.S. 9:123, so not only does it have legal status, it can be represented by an attorney.  In fact, a court can appoint a “curator,” a guardian, to protect the embryo’s rights. LSA-R.S. 9:126. And, indeed, the complaint requests that the court appoint Loeb as the “curator” for the embryos.

Third, what’s this about a trust?

The lawsuit complaint explains that the trust was created in Louisiana to provide for the health, education, maintenance, and support of its beneficiaries (complaint, Para. 78).  Nothing unusual about this standard — it is a common one in trusts.

But — the complaint also alleges that the trust was created in Louisiana to benefit the two female embryos (named “Emma” and “Isabella” in the lawsuit). And it claims the two embryos are “scheduled” to be the only beneficiaries of the trust. [Paras. 73-75]   This raises the issue of whether such a trust, set up only to benefit in vitro embryos, is valid. Anyone can create a trust and, in many states, a trust doesn’t even need to be in writing. But when someone (the settlor) creates a trust, black letter law requires that there must be a beneficiary. Even if the beneficiary is not “ascertainable’ when the trust is created, the beneficiary must come into existence within a specific time period.   Restatement (Third) of Trusts § 44 (2003). The complaint states that the two embryos “must be born alive in order to receive the inheritance due from the Trust.” (Para. 79) But we don’t know much else about the terms of the trust; unlike wills (or legal complaints), trusts are private documents that do not need to be filed in court.

And finally, what does the lawsuit seek? It requests that the court order that Vergara consent to let the embryos develop and be born.

I don’t know what the Louisiana court will do, although the suit seems far-fetched. I have taught trusts and estates for many years, I have co-authored one trusts and estates casebook and I’m in the midst of co-authoring a second. While I have seen plenty of lawsuits in which beneficiaries sue trustees, I have never seen a lawsuit in which a trustee sues to make sure that the beneficiaries are born (nor to appoint a “curator”). Because the embryos aren’t in Louisiana, nor have they ever been stored there, it doesn’t seem as though a Louisiana court would have any control over them. If they were living children, the Louisiana court would not have any authority over them because Louisiana is not their “home state”.

In speculating what this case is about, it is hard to ignore that one of the attorneys who filed the suit is a Senior Fellow in Legal Policy at the Charlotte Lozier Institute.  According to the Institute’s website, “We desire and seek that the benefits of modern medicine and the wealth of nations be put to the service of human life and that the scourges of abortion, physical disease, euthanasia and human exploitation will be diminished and ultimately overcome.”

So this functions as yet another publicity stunt to try to further an anti-abortion agenda. And it is a stark reminder of ongoing battles over a woman’s choice.

 

 

 

 

0

Family Law After Obergefell

 

The Supreme Court’s 2015 decision in Obergefell v. Hodges marked a sea change in family law.  While the immediate impact of the decision is clear – same-sex couples now have the right to marry in every state – the implications of the decision for family law and for practicing family lawyers are considerably broader.  Recognition of marriage equality has created new issues for courts deciding divorce and parenting cases, and for lawyers advising clients about issues related to family formation and family break-up. This post will highlight the family law implications of Obergefell  and explore some of the issues that are likely to arise in future cases involving the rights and obligations of same-sex couples.

Same-sex divorce, American style

According to the Williams Institute, close to 400,000 same-sex couples were already married at the time Obergefell was decided. A recent Gallup poll estimates that more than 120,000 additional same-sex couples have married since that time. But not all marriages endure.  About 40% of heterosexual marriages now end in divorce, and it is reasonable to anticipate that the divorce rate for same-sex couples will be roughly comparable.  Indeed, access to the financial and parenting remedies associated with divorce is one of the important benefits of marriage.   But same sex divorces are likely to raise some challenging legal issues.

Parenthood and the impact of the marital presumption

When an opposite sex couple divorces, legal parentage generally is not disputed. In part, this is due to the operation of the “marital presumption” — the legal rule that identifies the husband of a married woman as the legal father of any children born (or conceived) during the marriage.  At one time, the presumption was nearly irrebutable.  More recently, courts in a number of states have allowed divorcing parties to rebut the presumption based on genetic evidence of non-paternity.

Courts and legislatures have already begun to grapple with the application of the marital presumption to same-sex couples. Although the language of the presumption is usually gendered — specifying both a husband and a married woman — some courts have interpreted the statutory reference to husband to apply as well to a female spouse.  Other courts have declined to interpret their statutes broadly, but have invoked equal protection principles to extend the marital presumption to same-sex partners. See, e.g., Gartner v Iowa Department of Public Health, 830 N.W.2d 335 (Iowa 2013).  Still others have refused to apply the presumption to same-sex relationships, citing its biological underpinnings or opining that such a step is a matter for the legislature, not the judiciary.

Even if courts apply the marital presumption to same-sex couples, questions remain about its impact. In most states, the presumption is now rebuttable, and genetic evidence of non-paternity is often (albeit not always) sufficient grounds to rebut the presumption. But should genetic evidence be relevant to parentage in a same-sex marriage, where both spouses know from the outset that one parent will not be genetically related to the child.  And how, if at all, should the presumption apply to gay male marriages, in which neither spouse is a “married woman” and where the woman who gives birth is generally not an intended parent?  These questions, of course, raise the broader issue of whether parentage should be understood as a biological fact, or (primarily) as a legal and social construct.  And, if parentage is primarily a legal construct, what role (if any) should marriage play?

Moreover, as its name indicates, the marital presumption applies only to children born (or conceived) during a marriage. But many same-sex couples today are co-parenting children who were born to one spouse before their marriage, perhaps during a prior heterosexual union.  The marital presumption is of no use here, just as it provides no basis for step-parents to assert legal parentage in the absence of an adoption.  Other doctrines such as de facto parenthood, discussed in Professor Murphy’s last post, may be available to establish parental rights, but establishing parenthood under those doctrines in fact-specific and uncertain, and the doctrine has been criticized as insufficiently protective of the autonomy of biological parents.

Moreover, while many states now recognize some form of de facto parenthood, others do not, and, in the absence of a judicial decree, states are not required to respect each other’s parentage rules.  Thus, a same-sex partner who is recognized as a legal parent in one state may not be recognized in another.  For this reason, many family lawyers continue to advise same-sex spouses to secure parental rights through adoption, even where a couple is married at the time their child is born.  But adoption can be both expensive and intrusive, and many same-sex couples understandably assume that their marriage renders adoption unnecessary, only to find upon dissolution that the law is far less settled than they imagined.  Judicial declarations of parentage, obtained at the time a child is born, could provide an alternative means of interstate recognition, but existing state procedures are not designed for same-sex couples, whether married or not.

Divorce-related financial remedies

The dissolution of same-sex marriages presents other challenges as well. Current standards for both property distribution and post-divorce spousal support depend significantly on the length of the marriage in question; the longer the financial interdependence associated with marriage, the more robust the post-divorce sharing rules.  But many of today’s same-sex marriages were preceded by lengthy periods of non-marital cohabitation, particularly in states that refused to allow same-sex marriage prior to Obergefell.  If such a couple divorces after a relatively short marriage, can a court base a property or a support award on the lengthy period of pre-marital cohabitation?   Many courts have refused to do so in cases involving opposite-sex couples who cohabited prior to marriage, noting that the applicable statutory language refers specifically to the length of the marriage, not to the length of the relationship.  Should these decisions apply to same-sex couples?  Other courts have relied on their on their equitable powers to consider non-marital cohabitation as a factor in fixing the financial consequences of divorce.  Some commentators have suggested using common law marriage as a solution to this problem.  But common law marriage has traditionally required that individuals have the legal capacity to marry each other at the time the relevant conduct took place and that the parties held themselves out as married in one of the handful of states that allow couples to contract a common law marriage.  Both of these requirements are likely to post problems for most same-sex couples.

And how should Obergefell affect the treatment of cohabitation relationships that break up without a marriage?  Prior to Obergefell, a number of states had begun to apply principles of equity or implied contract to redistribute assets accumulated in one partner’s name at the end of a long-term cohabitation relationship.  Many of these cases involved same-sex couples, and the couple’s inability to marry may well have influenced the court’s decision.  The American Law Institute’s Principles of Family Dissolution took these developments a step further by extending status-based property and support remedies to unmarried partners who “for a significant period of time share a primary residence and a life together as a couple.”  How should Obergefell’s recognition of marriage equality affect the viability of these doctrines?  Does the availability of same-sex marriage weaken claims based on non-marital cohabitation on the theory that a couple’s decision not to marry is an indication that they (or at least one of them) prefer not to be bound by marital sharing principles? Is this a preference that the law should respect, even if, in hindsight, it turns out to be a bad deal for one of the parties?  Or should courts continue to apply functional, as well as formal criteria, to determine the appropriateness of post-relationship financial sharing?

Wither Civil Unions and Domestic Partnerships

More generally, how should the availability of same-sex marriage affect other legal statuses, such as domestic partnerships and civil unions? Should states that previously recognized such unions automatically convert them to marriages unless a couple explicitly “opts out?”  Or should states require that domestic partners affirmatively “opt in” to marriage?  What should be the legal default?  Will private companies that previously provided benefits to same-sex domestic partners now restrict such benefits to married couples?  And, if so, has the “right” to marry celebrated in Obergefell become an obligation to do so – a possibility that Professor Kathrine Franke cautioned against in her 2015 book, Wedlocked: The Perils of Marriage Equality.

More broadly, should states retain these alternative legal statuses as a form of “marriage lite” or have they outlived their utility now that both same-sex and opposite-sex couples have access to marriage? And if states choose to retain these alternatives, do constitutional equality principles require that they be made available to opposite-sex as well as same-sex couples? To non-romantic partners such as siblings or other relatives?  Now that marriage is available to same-sex as well as opposite sex, couples, how much should it matter?

Beyond Marriage and Divorce

Marriage equality is also likely to affect legal developments in contexts beyond divorce and parenting disputes. In her recent article, Inheritance Law and the Marital Presumption After Obergefell, my colleague, Paula Monopoli, examines the impact of Obergefell on inheritance law; she argues that important policy goals support extending a conclusive marital presumption to all nonbirth/nongenetic spouses for purposes of inheritance law, and suggests that the presumption be unmoored from its biological roots and re-conceptualized as resting on the presumed consent of the nonbirth/nongenetic spouse to be the parent of any child born during a marriage.  In a broader frame, Douglas NeJaime, argues in his recent Harvard Law Review article, Marriage Equality and the New Parenthood, that marriage equality was both enabled by – and, in turn, enables — significant shifts in the law’s understanding of parenthood and in its ongoing construction of families.  Without a doubt, this is a construction project that should capture the imagination and engage the efforts of both legal scholars and practicing family lawyers for many years to come.

0

Legal Recognition of De Facto Parents: Victory for Same-Sex Parents or Threat to Parental Autonomy

The LGBT community is celebrating two recent decisions from the highest courts in Maryland and New York recognizing non-biological “de facto parents” as legal parents. Slate and other media outlets have described these decisions as “overwhelming” victories for gay parents. Commentators also see these cases as part of the “ripple effect” of recognizing of marriage equality in Obergefell v. Hodges. After years of advocating for same-sex couples on a range of issues before both legislatures and courts, I am surprised at my reluctance to join the celebration. In questioning the wisdom of this trend, I tentatively and uncomfortably align myself with pro-marriage scholars and commentators who have long critiqued the recognition of de facto parenthood. I’m not pushing marriage but I think this new trend is unnecessary to protect same-sex families or other de facto parents and their children. I also worry that authorizing this kind of state intervention to overrule decisions of legal parents may have unintended consequences that should concern us all.

Maryland and New York join what is now a majority of states granting some or all parental rights to an adult who has acted in a parental role for some period of time but has not established legal parenthood through biology, adoption or marriage. Most states have also required that the relationship between the “de facto parent” and the child must be with the consent and encouragement of at least one legal parent. Both the New York and Maryland cases involved same-sex couples who had agreed to have a child together. The couples were unmarried at the time of the birth of their children, and the non-biological parents had not adopted the children. The relationship ends after some time in which both partners co-parented. After the break-up, the biological parents withheld access to the children and the conflicts ended up in court. Both the New York and Maryland courts reversed pre-Obergefell decisions and recognized “de facto parents.” Once recognized, de facto parents stand on equal footing with biological or adoptive parents in custody and visitation disputes.

Part of my skepticism about these decisions comes from questions about the continuing necessity of de facto parentage after Obergefell. Didn’t the Supreme Court’s establishment of marriage equality remove a major barrier to legal parenthood for same-sex couples, thereby making recognition of de facto parenthood less important? Indeed, one of the central arguments advanced by advocates and adopted by the Supreme Court was that allowing same-sex parents to establish families through marriage is essential to protect children. Justice Kennedy embraced these arguments in his majority opinion, finding that “Without the recognition, stability, and predictability marriage offers, [the children of same-sex parents] suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate children of same sex couples.”

I’m not joining the “marriage supremacy” folks; I’m just noting that decisions that establish the legal recognition of parentage without marriage (or biology or adoption) don’t seem to naturally flow from a decision that opens access to marriage to same-sex couples, in part, so that both parents can secure legal ties to their child. After Obergefell, same-sex couples should now have the benefit of marital presumptions and achieve legal parenthood by agreeing to conceive and raise a child together in the context of marriage. And, for those parents who choose not to marry, Windsor and Obergefell’s constitutional analysis should undermine any remaining state law barriers to applying existing parentage statutes to same sex couples or permitting second parent adoptions by non-biological parents. And if there are continuing barriers to applying the marital presumption or other parentage statutes to same-sex couples or to second parent adoptions by gay and lesbian partners, advocates should fight those battles rather than spreading the de facto parent doctrine.

So Obergefell made the fight for de facto parenthood less critical in securing the rights of LGBT parents. But what’s the harm of expanding the legal recognition of parentage? I worry about its impact on both parents and children, particularly poor parents who are already vulnerable to state overreaching. I am concerned about the erosion of parental autonomy when courts, upon a finding of de facto parenthood, can set the decisions of legal parents aside. Of course, some of the court opinions are drawn very narrowly. I’m comfortable with the court protecting the non-bio parent in the New York case by overruling the decision of the biological mother to exclude her former partner from their child’s life. Both parents had planned to conceive the child, raised the child together for two years and continued to co-parent after they broke up for another three years. New York, in fact, limits a finding of de facto parenthood to just these circumstances. A party seeking parental rights is only a de facto parent “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together.”

 

But other states have adopted broader definitions. For example, Maryland now recognizes de facto parenthood as long as the biological or adoptive parent consented to a parent-like relationship and the non-biological parent formed a bond with the child. In Kentucky, a “de facto custodian” of a child can seek custody if he or she is “the primary caregiver, has provided financial support and has resided with the child for at least six months, and the child is under three years of age.” The residency requirement goes up to one year if the child is over three. In Colorado, a third-party can stand on equal footing with a parent in the “allocation of parental responsibilities” when the third-party “has had the physical care of a child” for at least six months and petitions the court within six months after the care has ended.

This expansion of the legal definition of parenthood makes me think about how some of the low income mothers I have represented might have fared under these statutes. The mothers who, after traffic stops unearthed warrants related to old drug possession charges, left their children in the care of a grandparent or a friendly neighbor while serving their sentences. After they were released from jail six months later, they faced custody battles from the third parties who had taken care of their children. Before recognition of de facto parenthood, my clients were presumed to have the right to decide whom their children should visit or live with, absent unfitness or other extraordinary circumstances. After recognition of de facto parentage, the grandparent or neighbor would be on equal legal footing with the mother under a best interests analysis. I also fear for the non-custodial fathers who might now be squeezed out of their kids’ lives after their children’s mothers’ ex- spouses are recognized as de facto parents without the fathers’ consent or participation.

Finally, as someone who generally favors rules over discretion in most areas of family law, I worry about the uncertainty that will result from the broader, vague definitions of de facto parent. Will it make already contentious child access disputes even more protracted and expensive? Or, worse yet, will the better-financed de facto parent always prevail over poorer, unrepresented legal parents? There is also great uncertainty about the legal rights and obligations that flow from this kind of parentage. In most jurisdictions, de facto parents can seek custody and/or visitation under a best interests standard on equal footing with the legal parent. But what if this designation creates three or four legal parents? Are they all on the same legal footing? And what about the implications of this for financial obligations to the child? Does the de facto parent also have to pay child support? If there is a third, legal parent, are his or her child support obligations reduced when a de facto parent enters the picture? Vague standards result in unpredictability and that leads to more disputes involving children.

Of course, for the petitioners in many of these cases, marriage or even second parent adoptions weren’t options at the time of the conception or birth of their children. And access to lawyers for adoption or any family law conflict is always a challenge. But courts can now send a clear message to loving, de facto parents who want to be assured of continuing their relationships with their children. To fully protect yourself and your child, you need to affirmatively establish yourself as a legal parent—marry your co-parent, petition under parentage statutes and/or adopt your child. I may be missing a lot here but that seems like reasonable family policy.

 

 

 

3

Divergent Paths to Same-sex Marriage: What We Can Learn from South Africa

Last Sunday marked the one year anniversary of Obergefell v. Hodges, in which the Supreme Court ruled that excluding same-sex couples from marriage was unconstitutional. Obergefell was a huge development not only for the United States, but also for the world. Boris Dittrich, Advocacy Director of the LGBT Rights Program at Human Rights Watch, has predicted that Obergefell “will reverberate in many countries that still deny people the right to marry the person they love.”

As countries around the world draw inspiration from Obergefell, I hope Obergefell will not overshadow Fourie v. Minister of Home Affairs, another important case in the international arena. In 2005—nearly a decade before Obergefell—South Africa’s Constitutional Court ruled in Fourie that depriving same-sex couples of the ability to marry violated constitutional protections of dignity and equality. South Africa’s Constitutional Court became the first national apex court to decide that barring same-sex couples from marriage is unconstitutional. 

Many aspects of Fourie fascinate me, but in the confined space of this blog post, I will focus on just two. First, in comparison with Obergefell, Fourie offers a competing—and more compelling—conceptualization of the relationship between marriage and dignity. In Obergefell, Justice Kennedy endorsed a highly romanticized view of marriage as an institution that confers dignity upon those who enter it. “Marriage dignifies couples,” he said. “Marriage responds to the universal fear that a lonely person might call out only to find no one there.” He talks in grandiose terms about how “[n]o union is more profound than marriage,” and how being denied marriage is “being condemned to live in loneliness, excluded from one of civilization’s oldest institutions.”

Many commentators have criticized Obergefell for implying that people must get married to be fully dignified. (See, e.g., here, here, and here.) What about people who don’t want to get married, or people who simply haven’t found the right partner to marry? Obergefell’s over-the-top romanticization of marriage marginalizes these segments of society.

For the record: I’m married, I love being married, and I love being married to a spouse of the same sex! But I also think marriage is not for everyone, and that’s one reason why I admire the Fourie opinion. No other judicial opinion on same-sex marriage has done as good a job as Fourie at explaining the relationship between same-sex marriage and dignity. Fourie makes clear that marriage doesn’t dignify couples. Rather, it’s giving people the decision whether to marry—and whether to marry someone of the same sex—that is most important to dignity.

To the best of my knowledge, Fourie is the only judicial opinion on same-sex marriage that has explicitly engaged queer and feminist critiques of marriage. The Court acknowledged that many same-sex couples might well choose not to marry if given the opportunity. Instead of denigrating that choice, the Court explained that “what is in issue is not the decision to be taken, but the choice that is available. If heterosexual couples have the option of deciding whether to marry or not, so should same-sex couples have the choice . . .”

The South African Constitutional Court also avoided over-romanticizing marriage by emphasizing that marriage rights are important precisely because marriages often fail. If a couple is married, the government will help the couple sort things out if and when they break up. “[T]he law of marriage is invoked both at moments of blissful creation and at times of sad cessation.” If you are not married, you cannot claim the legal protections of divorce.

I am currently writing a law review essay that elaborates on the difference between Obergefell’s and Fourie’s competing visions of marriage, and the ramifications of each view. Stay tuned! In the meantime, I’d like to turn our attention to yet another fascinating aspect of Fourie: the Constitutional Court’s decision to delay providing a remedy to same-sex couples.

Read More

3

Dads Change Diapers Too

This is my third and final post about fathers as caregivers, drawing from some of my own experiences as a dad. (Earlier posts are available here and here.)

Father’s Day this year was really special because my husband, two-year-old daughter, and I celebrated on vacation in New York. We had a really lovely time overall. The trip was, however, also memorable because of this—have a look at this photo.

LaGuardia Airport, Terminal B, Concourse C

LaGuardia Airport, Terminal B, Concourse C

This is the United Airlines counter at LaGuardia Airport, Terminal B, Concourse C. I warily crouched down in the narrow space behind this counter to change my daughter’s diaper on the floor. I did it as fast as I could, feeling awkward about being there. I tried not to get in the way of the airline agents who were working behind the counter, and I shuddered at the thought of how dirty the floor might be.

My daughter and I were traveling home alone because my husband returned earlier for work. The agents at the ticket counter confirmed that there were no diaper changing facilities for fathers—no changing table in the men’s restroom, and no family restroom. The only diaper changing table was in the women’s room.

I suggested that I place my daughter’s changing pad on the table behind the ticket counter and change her there, but the airline agents said, understandably, that I needed to find someplace more discreet. The airport was bustling with people at every corner. After looking around, the agents offered to let me squeeze behind their ticket counter and use the cramped floor space there.

That was the best option we could think of. I didn’t want to subject my fellow travelers to the sight (and possible smell) of a diaper change, especially the folks who were enjoying their meals nearby. I also didn’t want my daughter and me to have to deal with the glare of onlookers. So, behind the counter we retreated.

Lack of men’s access to diaper changing facilities always makes me wonder what year we’re living in. Isn’t it about time we got behind the idea that men change diapers too?

Placing diaper changing tables exclusively in women’s restrooms is a problem because, as I discussed earlier, men’s access to diaper changing facilities is important to the health and well-being of the children we love and care for. Excluding men from diaper changing facilities also troubles me because it reflects and reinforces the outdated cultural assumption that taking care of young children is strictly a woman’s role.

Access to diaper changing facilities is particularly important at airports because waiting to change the diaper on the plane presents challenges. Not all airplanes have diaper changing tables. Moreover, parents are not permitted to get out of their seats to change a diaper during take-off, landing, and periods of turbulence in between.

Cities like Honolulu, Miami, and San Francisco have laws that give men and women a right of equal access to diaper changing facilities. State Senator Brad Hoylman has proposed legislation that would make New York the first state to require new and newly renovated buildings to give men and women equal access to diaper changing stations. I hope his bill will become law. Unfortunately, Governor Brown of California vetoed similar measures in 2014.

At the federal level, Congresswoman Tammy Duckworth of Illinois has introduced the Friendly Airports for Mothers Act, which would require airports to provide lactation rooms. I think it would be great to pass an even broader law that addresses diaper changing facilities in addition to lactation rooms. This could make airports friendlier not only to mothers, but also to fathers. In the meantime, I have contacted LaGuardia Airport to request that they install changing tables in all of their men’s rooms.

To be clear, the agents at the ticket counter were really kind to my daughter and me. The main woman whom I spoke with expressed her own disappointment with what she called the airport’s “double standard.” Let’s fix this double standard.

The good news for the immediate future is that my daughter has made great strides with potty training. I’m so proud of her! Our days of having to hide behind an airline ticket counter are numbered. Still, this is a bigger issue that needs to be addressed.

For more of my writing about fatherhood, please check out my forthcoming law review essay entitled “Shaping Expectations about Dads as Caregivers: Toward an Ecological Approach.”

0

4 Wishes for Father’s Day

My post on Thursday expressed concerns about the cultural assumption that taking care of young children is a woman’s role. Today, I present a four-part wish list of public policy interventions. With Father’s Day coming up, these proposals seek to recognize dads as able caregivers.

Image from iStock.com/OlgaLebedeva

Image from iStock.com/OlgaLebedeva

1. Mandate dad-inclusive paid parental leave

The United States is notorious for being the only high-income country that doesn’t require employers to provide paid parental leave. Among employers that do offer some form of paid leave to new parents, many provide leave to new mothers (often framed as disability leave) but not to fathers. A report from 2014 estimated that 58 percent of employers offered paid leave to new mothers, but only 14 percent offered it to new fathers. Another study from 2012 reported that only 13 percent of fathers who took parental leave were paid, compared with 21 percent of mothers.

The first item on my wish list is a law requiring paid parental leave and, importantly, the law should grant leave rights to both moms and dads. A handful of states already have such legislation, but we need the whole country covered. Proposals for paid parental leave have already garnered a lot of attention, and that’s great. I think it’s important, however, not to focus too narrowly on this issue. For reasons that I discuss in a forthcoming essay, we also need to address other aspects of our social environment that affect dads as caregivers, including the following wish list items.

2. Require equal access to diaper changing facilities

Cities like Honolulu, Miami, and San Francisco have laws that give men and women a right of equal access to diaper changing facilities. I wish this right existed across the country. In 2014, California’s legislature passed two laws that would have required new and newly renovated buildings to grant men equal access to diaper changing tables by placing changing tables in men’s restrooms or family restrooms. It’s a shame that Governor Brown vetoed the measures. All too often, diaper changing tables are located exclusively in women’s restrooms. This is troubling because of the difficulty it creates for dads who need to change diapers. Moreover, lack of equal access sends the troubling message that only women should be expected to care for young children.

Restrooms have long been sites of regulation because they are so central to health and well-being. OSHA rules, the Americans with Disabilities Act, and state-level Restroom Access Acts all aim to make restrooms accessible. There is also pending litigation about the extent to which federal civil rights laws protect transgender individuals’ ability to use restrooms that correspond with their gender identity. Further regulating restrooms to ensure that men have equal access to diaper changing tables is long overdue.

3. Reframe state-supported “Mommy & Me” classes

When my daughter was a few months old, I began exploring community events for infants and parents. Friends told me how fun it would be to take her to “Mommy and Me” classes. “They’re called Mommy and Me classes, but I’m sure they’d let a dad in too,” one friend tried to reassure me. Mommy and Me classes abound—for example “Mommy and Me Yoga,” “Mommy and Me Music,” and “Mommy and Me Tender Twos.” While these classes may technically be open to fathers, the Mommy and Me moniker sends the message that fathers do not belong. This framing reinforces cultural expectations that caregiving should be left to mothers.

To be clear, these classes are not biological in nature. They are not breastfeeding classes. For example, Huntington Hospital in Pasadena offers a “Mommy and Me” class that it describes as “song time, parachute play, and bubbles with baby.”  All of these activities could surely involve fathers. Some places have begun to offer Daddy and Me classes, but these options are rare and I see no reason why moms and dads need to be segregated for song time and bubble play. Moreover, I’ve found that Daddy and Me Classes take place outside of the usual work schedule—on weeknights and weekends—thus reinforcing the outdated assumption that dads are breadwinners and moms are caregivers.

While we should lobby companies to rename their Mommy and Me classes, public policy also has a role to play. Many, if not most, Mommy and Me classes are offered by government-funded entities such as hospitals and public libraries. As a public policy intervention, the government should condition its funding on the reframing of Mommy and Me classes. Some places have already begun to call their classes “Baby and Me” instead, a name that is much more inclusive of dads and other caregivers. The government should require this change of any state-funded entity that offers a Mommy and Me class.

4. Recast the image of dads in the federal government’s Fatherhood & Mentoring Initiative

The federal government runs a public education campaign that encourages fathers to be more engaged with parenting. While this is certainly a laudable goal, the program has set a very low bar, focusing on preventing fathers from being completely absent. As a result, the campaign’s media clips risk reinforcing the belief that dads ought to leave the bulk of hands-on caregiving to women. For my fourth wish list item, I wish the government would revamp its media campaign.

Consider, for example, the first video clip at the bottom of this post. It features three television personalities from the MLB (Major League Baseball) Network.  The men are in their offices, taking a moment out of the day to call their children by phone or videoconference to say hello.  The clip closes with one of the men telling viewers: “Remember: You’re never too far away from your kids to be a dad. Reach out and take a second to check in—because sometimes, the smallest moments can have the biggest impact on a child’s life.”

This clip might have the unfortunate effect of reproducing the idea that a model father is, first and foremost, a breadwinner. And being an engaged father simply means picking up the phone to call the kids from work. I wish the federal government would replace videos like this from its campaign with clips that showcase multiple sides of fatherhood, including images of fathers as hands-on caregivers.

Read More

4

Reflections for Father’s Day

Thank you to everyone at Concurring Opinions for inviting me to guest blog, and thank you to Solangel for her kind introduction. I’m usually a pretty private person, but I’d like to open up a bit in my first blog post by sharing some personal experiences.

iStock.com/OlgaLebedeva

Image from iStock.com/OlgaLebedeva

Two years ago, my life changed forever because I became a dad to the most amazing baby girl, and I had the privilege of taking a year off from teaching to stay at home. I know having children and taking time off from work is not the right choice for everyone. But for me, I can’t think of anything more right. I wouldn’t trade the experience for anything. Taking care of my daughter gives me incomparable joy and a sense of purpose that words cannot fully describe. Since returning to my usual law professor schedule, I relish seeing my little girl after leaving campus each day. She truly is my sunshine.

Against this backdrop of happiness, a sad reality is that my experiences as a father have heightened my awareness of troubling gender norms. I’ve long been cognizant of the cultural assumption that caregiving for young children is a woman’s role. Still, with firsthand experiences as a father, I’ve been struck by how strong this norm is.

With Father’s Day around the corner, I think back to my first Father’s Day dinner as a dad. The restaurant’s kind owner congratulated my husband and me on fatherhood. He gushed over our family. His celebration of us as same-sex parents was a delightful sign of how far we’ve come. Yet, in his next breath, he apologized that the men’s room had no diaper changing table and offered to let us use the women’s room instead, because there was a changing table there. I was disheartened by the reminder that only women are expected to change diapers. Women are saddled with the responsibility, and men who do want to change diapers face barriers. Instances like this may be small and inconsequential on their own, but the pervasiveness of these small occurrences reinforces expectations that men should leave caregiving to women.

To be sure, times are changing. More and more men are embracing childcare responsibilities traditionally associated with women—things like swaddling and singing to a fussy infant to coax her into slumber, preparing meals, cleaning kitchen messes, doing a child’s laundry, and managing older children’s after-school schedules, which might include craft or baking projects, running errands together, accompanying children to sports or dance classes, or helping with homework. The number of stay-at-home dads has grown rapidly. A 2012 study found that fathers comprised 16 percent of all stay-at-home parents. Meanwhile, fathers employed full-time outside the home tend to devote more time to childcare after work compared with fathers from previous generations. Another study found that the number of single father households had increased from less than 300,000 in 1960 to over 2.6 million in 2011. Census data from 2010 also showed that 10 percent of male same-sex couple households were raising children.

Despite these changes, mothers still shoulder a much larger share of childcare responsibilities than fathers, and our cultural environment reinforces this pattern. We are surrounded by a culture that treats childcare as the domain of women. Consider when a man prepares to become a father. He’s all too likely to learn that his employer offers no paternity leave even if it grants leave to new mothers. If the father decides to stay home anyway, he’ll probably search for activities to enjoy with his child, and will encounter numerous classes titled “Mommy and Me” as though fathers do not belong. As he shops for baby supplies, he’ll surely discover countless advertisements that deploy “mothers know best” rhetoric that questions the competency of fathers. These are just a few examples of everyday moments that coalesce, sending the message that men are not suited for—or are not expected to perform—caregiving.

These cultural dynamics are bad for men, bad for women, and bad for children. Fathers who are primary caregivers too often report feelings of isolation and stigma, feelings of being hyper-scrutinized for their parenting skills, and practical difficulties such as the lack of access to changing tables. Cultural expectations about caregiving are also bad for women because they place disproportionately heavy pressure on mothers. This is especially harmful to women who wish their male partners would contribute more to childcare, so that they could focus more energy on their careers. The current cultural environment is also bad for children. In some families, it might make sense for the mother to do most of the caregiving. But for many if not most other families—especially families with single dads or gay dads—it’s in children’s best interest for fathers to be engaged caregivers.

What can we do to address this conflation of caregiving with motherhood? Lobbying the private sector is one strategy. For example, I signed an online petition asking Amazon to rename its “Amazon Mom” service to be more inclusive of fathers. The service, which specializes in delivering products to caregivers of young children, has always technically been open to fathers, but the name “Amazon Mom” implied that caregiving is and should be the domain of mothers. I’m happy to report that Amazon has since renamed its service “Amazon Family.” Small victories like this can add up.

In my view, the government can—and should—also play a role in fostering a cultural environment that does not equate caregiving with women. In my next blog post, I’ll offer my wish list of public policy interventions aimed at supporting dads as caregivers.

[Update 6/27: click here and here for the next two posts in this series.]

This blog post is adapted from my forthcoming law review essay entitled “Shaping Expectations about Dads as Caregivers: Toward an Ecological Approach.”

1

Big Mike: Non marital families

Amidst a recent move, I had one of those conversations that happen for those of us who teach family law.  My mover, Big Mike, about halfway through the day, discovered I taught family law.  I saw the spark in his eyes. “Well then I really need to talk to you!” he said.  Sometimes this means someone has had a terrible experience with a lawyer, or with a judge.  After all, family law is one of the most common intersections that people have with lawyers.  Just as often, they have a situation they want to discuss.

That was the case with Big Mike, who several trips later up and down the stairs, started to tell me his story, in the hopes that I might have some advice for him. What was fascinating about Big Mike’s story was what it revealed that is remarkably commonplace:  the legal uncertainties and lack of support of non-marital families.

Big Mike has a son who is 11 years old.  When his son was 11 months old, Big Mike came home to a cleaned out apartment, the baby’s mother gone along with his son and her 7 year old daughter.  They had long since ended their relationship, but Mike thought they would work out how to raise their son together.  Instead, she had decided to move to live with a friend in another state.  Big Mike found them and made it clear that he wanted to remain in the life of his son.  She responded by giving him the baby, and since then he has raised his son.  His son’s mother made no further contact nor did she visit.  She remained out of state with her daughter, and subsequently got into a relationship with a man who molested her daughter. She moved a number of times, and continued to make bad life choices.   Meanwhile, Mike maintained contact with his son’s grandmother, who his son visits periodically. Recently the birthmom made contact with him, and her text made him concerned that she might want to try to establish a relationship with her son, or even might seek custody or visitation.  The message indicated her regret for not being a good parent, but that she would like to make amends somehow.  It also hinted at the possibility that she might move back to Florida. Read More

0

Fathers, Work, Family and Masculinities

Men’s care work and wage work both are powerfully impacted by the dynamic of masculinities. Masculinities are the male equivalent of female gender norms; they are plural because there are multiple variations, but with a dominant or hegemonic set of standards that set out the hierarchy among men and which men are at the top of the heap.  Just as gender norms powerfully impact women’s lives, the same is true of men’s lives.  Masculinities constrain their engagement and performance of fatherhood, as well as the way in which they work, including limiting themselves and the women they work with. Structural constraints (the assumption work is primary, so the amount, timing and expectations of workers assume no family responsibilities) impact the gender divide in both work and family realms, but the cultural constraints are also powerful.  Even while challenged and in flux due to movement and change in gender dynamics, hegemonic masculinity, the dominant masculinity norm, continues to create hierarchies between men and women, and among men.  Movement in the gender dynamic belies the strength of its underlying foundation.  It is necessary to continue to ask both the woman question and the man question, and in those inquiries, to dig deeper and intersectionally.  So whatever we think we have identified about women and men, we need to ask, “And is this true for all women, all men?”

A series of recent articles about men and women, fathers and mothers, expose the dynamic and range of ways in which the constraints of masculinities remain a significant barrier to equality.

First, a recent opinion piece in the NY Times explores the way that fathers care for their children, noticing a shift in their engagement in the tasks of caregiving but also in the messages and roles they convey about gender to their children.  This is significant movement from the breadwinner definition of fatherhood as singularly an economic role.  But while the shift is important, it is critical to recognize how much distance is yet to be travelled.  The disparity between men and women in family work (caregiving and household work) remains, and it is significant.

A second story, “How Society Pays When Women’s Work is Unpaid,” highlights this family work differential by the concept of the “time gap,” an additional factor to be noticed in addition to the wage gap.  No less a high-profile figure than Melinda Gates laments the significance of this issue for women, but the example she provides of a solution, that of husband Bill taking the kids to school several times a week, is limited.  The message is that no less a man than Bill Gates can be asked to “help.”  But imagine if Bill had written about this instead of Melinda.  Imagine if Bill owned a robust version of taking responsibility for the full range of family work (and planning, and long term thinking) that would constitute real equality.

What gets in the way of both men’s care and doing their share of other household work is masculinities’ defining of men’s and women’s gender roles. Michael Kimmel, one of the leading researchers of masculinities, provides a rich example of this in a profile of a class he teaches in his masculinities program.  Kimmel asks young college men and women the attributes of the Good Man.  Somewhat tentatively, not sure what he is after, they respond “honest”, “caring.”  Then he asks them, what are the attributes of the Real Man.  The answers come thick and fast: “take charge, authoritative,” “take risks,” “never cry,” “walk like a man, talk like a man.” And there it is—the norm that does not embrace care, equality, or women’s equal value.  Rather, it is a norm that would reject engaging in care, or sharing household work, because it is “women’s work.”  The core command of masculinities remains:  “Don’t be a girl.”

And the rejection of things female means the devaluation of women and the defending of what is considered male from female incursion. That clearly has an impact on women’s opportunities and ability to be accepted and valued as equals.  But it also has an impact on men.  It means they are defined and limited in a way that pushes them to be complicit (dominant and gender differentiated), in order to be accepted as a Real Man.

These two threads are clear in two other recent stories. First, a recent comprehensive study demonstrates that when women enter a job category in significant numbers, the compensation for the field declines.

In other words, when enough women are doing the work, it becomes “women’s work,” and therefore it has less value. This is in addition to differential payment of women for the same work (doctors and lawyers making less for the same job based on gender), and differential payment for very similar work by identifying it in a gendered way (housecleaning versus janitorial work). Not only do are women harmed by this, but it also encourages men to defend against women changing the value of the job, keeping it “men’s work,” and deters men from taking work categorized as “women’s work.” Gender segregation and hierarchy is sustained.

The second thread is the defense of male work, defending male turf. One of the most vehement examples of this recently was exposed by two female sportswriters, who published the almost-daily vile, threatening, and nasty feedback they get.  The harassment is not about their work, but who they are; not about their personality or point of view, but about their gender.  In an attempt to combat this, instead of the strategy of ignoring it, sloughing it off as “boys will be boys,” the two sportswriters created a YouTube video, with one of their male colleagues reading the comments to them.  Removing the distancing and anonymity of social media and instead presenting this as if said face to face brings home the misogyny and gender hatred.

The patterns of devaluing, objectification, and harassment demand stronger legal remedies. These patterns should be considered not just as expressions of dominant masculinities aimed at women, but also that they are aimed at men, to punish non-conforming men and to keep all other men in line.

The construction of gender norms, and the limitations imposed on men, returns full circle to affect men’s care. As long as women are not men’s equals at work, that dynamic pushes asymmetric patterns of family work.  As long as men must conform to a masculinities norm at work that devalues care, it will affect their engagement in care.  This has such a powerful impact on family law, and the ability to construct caregiving as men’s work that is part of being a Real Man.  Imagine if the students asked about the meaning of being a Real Man responded by saying “an involved and engaged father” as their FIRST answer.

And then we have to ask the next question: and is this the same for all men?  The news articles did not differentiate by race, class, or sexual orientation, but all of those intersectional identities have an impact on both care and wage work.  Low income African American fathers, for example, are more likely to be in a non-marital household, and are discouraged by the purely economic demands made on them, often impossible to satisfy, of the child support system, while having little support for their caregiving role.  At the same time, a recent study found that Black fathers as a group are more engaged with caregiving than many fathers, contrary to the stereotype of disengagement.  Men of color are at the bottom of the masculinities hierarchy but also engage in resistance to the hegemonic norm.  Their unmet needs as well as their successful resistance suggest issues to resolve and possible strategies that might work for all men. Gay men face unique challenges in creating families and having their family ties recognized, as well as facing harassment and underemployment at work.  A binary gender paradigm that presumes a heterosexual norm disserves them.  Grappling with the questions of work and family equalities therefore requires intersectional analysis.

A range of remedies might be used to grapple with these issues. The bottom line is that we remind ourselves to “ask the other question(s).”

0

Introducing Guest Blogger Nancy E. Dowd

dowd-nancyI am delighted to welcome Professor Nancy E. Dowd who will be joining us for a guest visit this month.  Professor Dowd holds the David H. Levin Chair in Family Law at the University of Florida, Levin College of Law.  Professor Dowd’s research focuses on social justice issues connected to family law, and therefore touches on not only family law but also juvenile law, constitutional law, race and gender analysis, and social change theories. She is currently engaged in research and writing about a developmental model of equality and focusing on the life course of African American boys from birth to age 18.  Two of Professor Dowd’s most recent books focus on the radical reform needed in the juvenile justice system.  Justice for Kids: Keeping Kids Out of the Juvenile Justice System (NYU Press 2011) brings together activists and scholars to articulate ways to keep kids out of the juvenile justice system, by diversion into other more helpful and supportive resolutions.  A New Juvenile Justice System: Total Reform for a Broken System (NYU Press 2015) articulates the vision of a new youth justice system focused on child well being and public safety. Her other recent book is The Man Question: Male Privilege and Subordination (NYU Press 2010), in which she explores masculinities theories as a means to expand gender analysis and also incorporate other hierarchies that affect gender, particularly race and class.

Professor Dowd served as the Director of the Center on Children and Families at the University of Florida, Levin College of Law until 2015, and in that role focused on issues of juvenile justice, social justice, non-traditional families, gay and lesbian rights, and collaboration with the Center for the Study of Race and Race Relations on issues of race and families. While director, she was also involved with successful grants that established the Intimate Partner Violence Assistance Clinic led by Professor Teresa Drake, a groundbreaking collaboration between law and medicine to establish a cutting edge clinic. That work has exposed the importance of trauma informed scholarship and service, and feeds back into Professor Dowd’s current scholarship as well.

Her other recent publications include:

  • A Developmental Equality Model for the Best Interests of Children, in Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-Being (Elaine E. Sutherland & Lesley Anne Barnes Macfarlane, eds., Cambridge University Press, forthcoming 2016)
  • Collaborative Law at Divorce in the United States, in “Le ragioni degli altri”. Mediazione e famiglia tra conflitto e dialogo: una prospettiva comparatistica ed interdisciplinare (“The reasons of the others.” Mediation and family between conflict and dialogue: a comparative and interdisciplinary perspective) (Elena Urso ed. 2014).
  • Unfinished Equality: The Case of Black Boys, 2 Ind. J.L. & Soc. Equality 36 (2013)
  • What Men? The Essentialist Error of The “End of Men,” 93 B.U. L. Rev. 1203
  • Asking the Man Question: Masculinities Analysis and Feminist Theory, in Exploring Masculinities: Feminist Legal Theory Reflections (Michael Thomson & Martha Fineman eds., Ashgate 2013)
  • Sperm, Testosterone, Masculinities, and Fatherhood, 13 Nev. L.J. 101 (2013)
  • Fatherhood and Equality: Reconfiguring Masculinities, XLV Suffolk U. L. Rev. 1049 (2012)
  • Masculinities and Law: Feminist Legal Theory Meets Masculinities Theory (with Nancy Levit & Ann McGinley), in Masculinities and Law: A Multidimensional Approach (Frank Rudy Cooper & Ann McGinley eds., New York University Press, 2012)

You can find her ssrn page here