When most people hear the word “adoption,” they picture what I often call the “Little Orphan Annie” model. You will recall in the Broadway play “Annie,” and before that in the “Little Orphan Annie” comic strip, Annie was only an infant when she was abandoned on the orphanage steps by her poor parents. After many adventures, Annie was adopted by Daddy Warbucks, a kind man with the emotional and economic resources to provide Annie with a real, forever home. Similarly, many people think of adoption mainly as a procedure for bringing babies and young children into forever families who will love and protect them. Although adoption takes that form for many people, in fact adoptions of older children and of stepchildren (adopted by second spouses to one of the children’s birth parents) are becoming more and more common.

There are also adult adoptions. The original model for adult adoptions may have been to formalize de facto family relationships, such as those that occurred when relatives would take in and raise an orphaned relative. Later, the model expanded to adoption of other adults who were significant to the adopter. In all of these situations, the adoption was not done for sentimental reasons; adoption served to secure inheritance rights for the adoptee. If the adopter wanted to leave significant property to a beloved person this could be done with a will, but disgruntled children or other relatives could seek to have the will set aside on grounds of undue influence or improper execution, thereby cutting out the interloper and increasing the shares of the will contestants. If the beloved person is legally adopted, challenging the will does not work because if a will is set aside, the property will pass by intestate succession to the children, including the adopted adult child. This technique has been effective to protect the inheritance rights of same-sex partners, although not every state allows adoptions where the parties have had a sexual relationship. Adoptions are rarely set aside, and it is questionable whether other children would even have standing to challenge the adoption.

The adoption of the adult girlfriend apparently makes her eligible for trust distributions as a child of Goodman. Goodman’s lawyer claims that his client’s motivation is to protect his children. Certainly that is part of Goodman’s motivation, given that he is facing the possibility of jail time in a criminal case as well as a potential damage judgment in the civil case. Still, the possibility of setting aside money to support children whom you already have a legal obligation to support is based on notions of protecting children and reducing the chances that society will have to support them. Here, arranging to have an adult girlfriend, who is presumably capable of self-support, share in the protections afforded to minor children seems like honoring the letter but not the spirit of the law. Even the judge who approved the adoption petition said it was “border[ing] on the surreal.” It will be interesting to see whether it withstands the inevitable legal challenges.

In 2009, Steven Miner II and his sister Kathryn Miner sued their mother, Kimberly Garrity, for emotional distress due to her alleged bad parenting and requested $50,000 in damages.

Although the Miner children grew up in Barrington Hills, Illinois, in a $1.5 million home, they apparently felt deprived of a proper mother.  Among the listed incidents of their mother’s “bad mothering” included Garrity telling her son, then 7, that she would call the police if he did not buckle his seat belt; calling her daughter at midnight, telling her to return from her homecoming festivities; refusing to take her daughter to a car show; failing to send her son care packages while he was in college; and failing to include money or checks in his birthday cards.  One exhibit included a birthday card Garrity sent to her son.  On the front of the card was a group cartoon tomatoes, all indistinguishable but for one, which had big, wide eyes.  Printed on the inside of the card was the sentiment, “Son I got you this Birthday card because it’s just like you . . . different from all the rest!”  Garrity wrote, “Have a great day!  Love & Hugs, Mom xoxoxo.”

Shelley Smith, Garrity’s attorney, said in court papers that the complaint was a “litany of childish complaints and ingratitude.”

An Illinois appeals court recently tossed the suit.  It noted that the children’s allegations “are unpleasant and perhaps insensitive, and some would arguably fall outside the realm of ‘good mothering,’ but they are not so shocking as to form a basis for a claim for intentional infliction of emotional distress.”

From the allegations given from both the Today show website and ABC News, there is nothing in the pleadings that comes even close to “fall[ing] outside the realm of ‘good mothering.’” Where is it written that a parent must always include money in birthday cards?  Or send packages to her child in college?  Or deny her child what the child wants but does not need?  Many would say what Garrity did was responsible mothering, not “outside the realm of ‘good mothering’,” and certainly not mothering intended to cause emotional distress.  And one must wonder whether “good mothering” differs from “good fathering.” Might there be a separate standard for fathers?  Why not refer to what Garrity did as simply “parenting”?

Oh, and the attorney for the children?  Their father.  He divorced their mother in 1995. Attorney Steven A. Miner claimed he filed the suit only after  researching it and says he tried to try to talk the children out of filing suit.  ABC News quotes Bruce Ottley, a law professor at DePaul University and author  of Illinois Tort Law, “This is just me surmising, but this looks more like the husband trying to get back at his wife.” Professor Ottley, you’re not the only one who drew that conclusion.

This trend has economic ramifications and, in particular, contributes to growing disparities in wealth distribution.  In this day and age, both husband and wife are likely to work for pay outside the home, and two-income households are usually better off than single-income households.  It’s further proof, I guess, of the way the private family sphere is always intertwined within the public market sphere.

For more discussion of the topic, see Pamela Paul, “How Divorce Lost Its Cachet,” New York Times, 17 June ’11, Styles 1:

http://www.nytimes.com/2011/06/19/fashion/how-divorce-lost-its-cachet.html?pagewanted=all

These cases illustrate one of the most difficult problems in child protection law: how do we define what is “good enough” parenting, and what is child abuse or child neglect? In very extreme cases of physical injury or neglect, such as the severe beating or extreme starving of a child, it is easy to see that maltreatment has occurred.   But what about more subtle behaviors, or behaviors that are arguably cultural or lifestyle choices – how do we know when the line has been crossed into abuse? If you beat your child until she is bloody, you have clearly acted abusively.  However, if you have paddled her because your religion advocates corporal punishment, it can be argued that you have acted within your parental prerogative to raise your child the way you believe is proper.  If you starve your child until she suffers from malnutrition, you have maltreated her.  However, if you have placed your child on a restricted vegetarian diet, you are arguably making reasonable choices to better her health.  Some parents argue that allowing children to sleep in a “family bed” with their parents promotes healthy parent-child bonding while other parents claim that these behaviors create the risk of crib death.  We live in a diverse society and as a general matter we tolerate wide variations in parenting.

The usual trigger for state intervention in cases of non-mainstream child-rearing is when the parental behaviors create actual harm or an unacceptable risk of harm to the child.  If you fire a gun aimed at your child but miss hitting her, you do not yet have actual harm (at least not physical harm) but you clearly have created an unreasonable risk justifying state intervention and removal of the child from your custody.  Behaviors like possession and consumption of alcohol or drugs do not cause such clear risk to the children as long as the children are not ingesting the substances or the parents are not so impaired that they cannot care for the children. Parents routinely engage in adult behaviors that might be risky for children – watching R-rated movies, drinking alcohol, having sexual relationships – but we do not consider these behaviors risky for their kids unless those kids are directly involved or exposed to the behaviors.  Moreover, we want to see proof of harm from exposure before the state can remove the children because child removal itself poses huge risks of psychological harm.  If a toddler walks in while mom and dad are watching Blue Velvet, intervention will not likely be justified – although if mom and dad were forcing the child to watch it, there might well be risk of harm to the child. The assessment of risk is largely subjective and context-driven.

So is it reasonable to remove kids simply because the parents are found to possess small amounts of marijuana?  If you are thinking that risk of harm justifying child removal exists because the parents are breaking a law, consider the fact that many parents speed, cheat on their taxes, shoplift, or sneak into movies without paying, but nobody suggests that child removal is warranted unless the children are directly involved and at obvious risk of harm.  Will your children be removed if you get a ticket for going 20 MPH over the limit?  Not likely, unless unbelted children are in your car at the time.

There are at least two very troubling things about foster placements based on parents’ possession of small amounts of marijuana.  One problem is that most of the people identified as being in this situation are in lower income brackets, and defense
lawyers cited in the New York Times article claim that the overwhelming majority are members of minority groups, despite the fact that large numbers of white parents are known to use marijuana at least occasionally.  It is simply unacceptable in my view to use marijuana possession as a proxy for risk of harm to children for minority parents, but ignore possession by white parents.  What could possibly justify this discrimination?

The other troubling thing is that removal to foster care creates a very real risk of emotional harm to the children involved.
Children experience confusion, depression, fear and feelings of insecurity when they are taken away from their families, and the damage often lasts long after they are reunited with their parents.  It is ludicrous to think that it is preferable to take kids away from their parents because the fact that a parent has a marijuana cigarette might indicate larger parenting problems that might
cause some future harm to the children when we KNOW that removing them from their homes WILL cause immediate and often long-lasting emotional difficulties.

In my view, New York and other states addressing this problem should follow California’s lead and require child welfare workers to present convincing proof of actual harm to children from their parents’ use or possession of marijuana before those children may be taken into protective custody.

As you might imagine, approval of Rosie and dogs like her is not universal.  Everyone agrees that Rosie is adorable, but therein lies part of the alleged problem.  Defense attorneys fear that Rosie gives credibility to the child witness that may or may not be justified.  One of the public defenders in the case, David S. Martin, protested that each time the child witness stroked the dog’s fur, “it sent an unconscious message to the jury that she was under stress because she was telling the truth,” adding “There is no way for me to cross-examine the dog.”  Although the lawyer for the prosecution in this case refused to comment about Rosie for the article, Ellen O’Neill-Stephens, a Seattle prosecutor who is a proponent of dog-helpers in court, said “Sometimes the dog means the difference between a conviction and an acquittal.”

The past several decades have seen a great deal of discussion about the difficulty of dealing with child witnesses in a criminal trial, and there have been many judicial experiments – some effective and some not. 

The problem came to the fore in the 1980s when a slew of highly publicized child sexual abuse trials occurred.  The public jumped on the bandwagon of child protection and rallied around the cause: it was not unusual to see cars with bumper stickers reading “Listen to the children” and “Children don’t lie.”

Except sometimes, children do lie, and even more often, they tell what they think is the truth after adults (often well-meaning but sometimes malevolent) have questioned and probed and planted suggestions.  Gradually, the pendulum swung towards defendants’ rights, and beginning with Coy v. Iowa [finding an unconstitutional  denial of the right of confrontation when a statute presumed trauma to the witness in a child sexual assault trial, and the witnesses were allowed to testify from behind a screen that blocked their view of the defendant] and Maryland v. Craig [finding that child testimony via closed circuit television might be constitutionally allowed if there is a case-specific finding of necessity to prevent trauma and if there is adequate opportunity to cross-examine the witness], the U.S. Supreme Court required courts to make individualized findings about what might be necessary to help a traumatized witness while still allowing the defendant to exercise his constitutional right to confront witnesses against him.

Although many cases, including the aforementioned two, have addressed the issue of balancing rights of confrontation with the interests of child witnesses, it should be noted that a defendant’s right to a fair trial may be at stake here as well.   It is well-settled that a defendant’s right to a fair trial precludes the prosecution from unnecessarily manipulating the courtroom and its occupants so as to subtly convey that the defendant is guilty.  For example, a defendant cannot be compelled to undergo trial dressed in prison orange garb, and he must be offered acceptable street clothing for his appearances in court.  Failure to comply with these requirements can result in a mistrial or a new trial.  Moreover, witnesses against the defendant cannot just say nor do whatever they want in court – they must answer questions that comply with the rules of evidence about what is relevant and what is merely prejudicial.

From the defendant’s perspective, the concern with Rosie the dog and others like her is that the jury will conclude that the poor child witness must be telling the truth, otherwise she would not need Rosie’s encouragement so much.  Dog lovers – and there are many – tend to attribute human characteristics to dogs.  Surely a dog would not encourage a child witness to lie!  But the defense lawyers are right to point out that Rosie, by instinct or training or both, has learned to respond to stress or discomfort.  A child witness may well be feeling stress or discomfort, but it could come from truthful confrontation, from stage fright over speaking in front of a group, from fear of someone (but not necessarily the defendant), or even from lying, which is also very stressful for most people.  If the goodwill induced by the adorable Rosie leads jury members to believe only the best about the child witness and her motives, then the defendant might find it impossible to convince them otherwise.  True, the defense lawyers can cross-examine the child, but this must be done with kid gloves to avoid looking like a bully and actually hurting the defendant’s case.  The badgering, aggressive demolition of a teary child-witness exists only in certain TV scripts – any real lawyer would have to be insane to try anything of the sort.  Denigrating the dog in front of the jury probably wouldn’t be a good idea, either.

From the prosecution’s perspective, there are some human-shaped monsters out there that do very, very bad things to children – and those children are often terrified to testify.  If a golden retriever can comfort the child enough to get her story before the jury, then this seems like a practical solution.  It’s not like the dog is being presented as a witness to the crime, after all.  Of course, it’s clear that a cute dog reflects well on the witness, but really, how is this any different from having the child dress in a sweet, innocent-looking outfit, even if her normal attire is somewhat racier?  Everyone knows that eschewing orange prison attire isn’t the only sartorial decision being made in the courtroom.

Ultimately, this will have to be another balancing act overseen by judges.  Perhaps judges should be required to gently remind the jury that the dog is there to help the witness deal with stress, which could be the result of truth-telling, fabrication, stage-fright, or other factors.  Juries are useful precisely because they often revert to common sense –everyone knows that you are not necessarily a nice or honest person just because a dog likes you.  (Even Hitler and Stalin are reputed to have had dogs.)  If the dog becomes too active in the courtroom, the judge might need to intervene.   But overall, I think service dogs in the courtroom might be a very good thing indeed.

The New York Times reports that mother Trisha Conlon was thwarted in her efforts to obtain a custody order keeping her 13 and 14-year-old boys out of the home of her ex-husband and his current wife Kristine.  Why did Ms. Conlon request this order?  Because the current wife, Kristine Cushing, killed the two daughters she had with the father (and Trisha’s ex-husband), John Cushing Jr.  The killings occurred in 1991.  Mrs. Cushing was found not guilty by reason of insanity allegedly caused by an adverse reaction to Prozac.  She was hospitalized in a mental facility for four years, and was monitored for almost ten years after that.  In 2005, the state of California gave her an unconditional release.

Ms. Conlon learned that her boys were in the same household with Mrs. Cushing in 2007, but her ex said not to worry, he and Mrs. Cushing were splitting up.  They didn’t.  She recently discovered (with the help of a lawyer and a private investigator) that the boys have been in the home with Mrs. Cushing since 2008 – hence her request for a new custody order.

The Court Commissioner deciding the case declined to alter the existing order, which places one boy with each parent during the school year, and keeps them together in one or the other household for holidays and vacations.  The Commissioner’s reasoning was that, since the boys had been spending time with Mrs. Cushing since 2007 (even though their mother did not know of it), there is not now any significant change in circumstances that would warrant a change in physical placement.  Mrs. Conlon is appealing the decision.

Basically, the standard for a custody determination is the “best interest of the child,” but over the years, certain presumptions have arisen as to which things are likely in a child’s best interest.  Most relevant here is the fact that stability and continuity are believed to be in the best interests of all children.  To protect stability for children, and to remove any incentive litigious parents might have to keep re-opening any custody decision that is not in their favor, the law requires that in order to obtain a change in an existing custody order, a parent must show that there has been a substantial change in circumstances and that the change is in the best interests of the child.  What is a substantial change in circumstances?  Well, as you may have guessed, it  is a somewhat subjective determination that something has recently changed in a significant enough way that what is in the best interests of the child might have changed as well.  In general, the change must be something out of the ordinary rather than, for example, the totally predictable older age of the child or parent.

Ms. Conlon is being tripped up here by the fact that she did not file for a change in custody back in 2007, when she was alerted to the fact that Mrs. Cushing was back on the scene.  Apparently then, she was mollified by her ex-husband’s assurances that Mrs. Cushing was leaving him.  It is alleged that Mr. Cushing outright lied about the situation and apparently also instructed the boys to lie to their mother about the identity of their stepmother.  Since mom and dad now live in different states, Ms. Conlon did not have an opportunity to discover the truth of the situation.  If true, this is very troubling.  Ordinarily the law does not allow a person to profit from his wrongs in court: we say that a litigant must come into court with clean hands.  It would not be good for custody policy in general if the rule were to become that you will be allowed to keep any advantage, as long as the other parent does not find out about it.

There is at least one other troubling thing here: this decision flies in the face of common sense.  Yes, we all know that sometimes divorced parents go out of their way to fight with each other, and continue to battle over their children’s custody or upbringing.  But sometimes, the concerns of a fit parent are legitimate and deserve consideration.  Here, even the Commissioner who made the ruling conceded that if these were his own kids, he likely would not want them living with a woman who had killed two children.  But then he dismissed this as an “emotional reaction coming from a parent,” and said that he had to rule dispassionately.  I do not think that judges should ignore the law, but a gut-level emotional reaction to the facts of the case here might be a signal that these children may be in a situation that needs further investigation.

Has there been a substantial change in circumstances here? Arguably, the facts that the father lied or that the mother now knows what has been going on are significant changes.  The fact that Mrs. Cushing has not so far harmed the boys is not conclusive: the question is whether it is in their best interests to spend time in her household in light of all of the circumstances.  Maybe they should.  Maybe Mr. Cushing is correct and Mrs. Cushing is a fully cured and loving stepmother.  But Ms. Conlon shouldn’t have to take her ex-husband’s word for it – after all, he has already lied again and again.  Ms. Conlon should have an opportunity to prove that the best interests of the boys require a new custody arrangement.

What explains the different legal treatment of the two types of transracial adoption? David suggests two answers. The “formal” answer “involves the unique status of Native Americans under the law of the United States,” which regards tribes as sovereign nations of sorts. But a “more fundamental explanation” may have something to do with the unique force of racist attitudes towards African Americans and related negative beliefs regarding their parenting abilities.

David’s paper is entitled “Transracial Adoption: The Adoption of Native American and African American Children by Whites.”

Here, the Court held that “where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support).”  However, the Court added the caveat that “the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.”  Since Turner did not receive clear notice that his ability to pay – or not – was crucial in deciding whether he would be jailed, and since the court did not make an express finding that Turner was able to pay, his incarceration was found to have violated the Due Process Clause, and his case was remanded.  The dissent agreed that there should be no right to counsel in civil contempt cases for nonpayment of child support, but would not have vacated the state court judgment on the grounds that there were not sufficient procedural safeguards to protect Turner.

My colleagues who specialize in constitutional law, criminal law and sentencing will doubtless have other insights about this case.  Here, I would like to offer just a few observations from a family law perspective.

Turner’s situation is sadly familiar.  He is a person with apparently few financial resources who is also, according to his own account before the family court, a recovering drug addict.  He was ordered to pay $51.73 per week in child support beginning in June 2003, and over the next 3 years he was held in contempt five times for failure to pay.  He was sentenced to a 90-day jail term each of the first four times he was held in contempt, but on each occasion he came up with the money either before he had to serve any time, or after a couple of days in custody.  The fifth time, he actually served an entire six-month term in jail.  He remained in arrears, was ordered to “show cause,” failed to show up for his hearing, and ultimately was held in contempt and sentenced to 12 months in the proceeding being contested in the instant SCOTUS case.

What is a judge to do with such a guy?  On the one hand, it seems like a no-brainer that a drug addict presumably without steady employment is not able to pay his child support, and incarcerating someone for being unable to pay his bills seems like a throwback to the debtors’ prisons of Charles Dickens’ England.  On the other hand, notice that Turner – like countless others in his situation – magically came up with the money owed for support the first four times he was sentenced to jail time.  This phenomenon is commonplace.  Not every person who is in arrears is dishonest, but the truth of each situation is not easy to ascertain.  After all, the parents usually seem to be supporting themselves at least to some degree, even while they claim destitution with respect to their children’s needs.  As Justice Thomas discusses in his dissent, child support orders are notoriously difficult to enforce, and parents who owe (nearly always fathers at this point in history) may engage in all sorts of subterfuge to avoid payment, for example, working “off the books” for cash, or working in illegal occupations.  This is a huge social problem in this country.

According to the Office of Child Support Enforcement, there have been more than 11,000,000 child support cases with arrears due for each of the past five consecutive fiscal years.  Each of those cases represents a custodial parent forced to shoulder the support of a child – or children – without sufficient financial help from the other parent.  Part of the problem is that many a non-custodial parent may view support payments as excessive, or as going to an ex, rather than to the children, and a father may rationalize that the mother will squander the money on herself.  Other reluctant payers don’t think through the math – does any sane person really think that a child can be adequately supported on $51.73 per week, or that even a dishonest mother could somehow live in luxury on that amount?  I can certainly understand the impatience of a family court judge who, tired of the same old excuses, tosses a non-payer in jail without further ado.

Ultimately, I do not think that Turner v. Rogers will change family court civil contempt proceedings all that much.  The non-payers will not have court-appointed lawyers, but they will be specifically asked whether they can pay.  After hearing the usual excuses, and perhaps requiring some sort of proof, the judge will doubtless often still find that the defendant can pay and is in contempt for not doing so.   The forms will be filled out completely.  The deadbeats will go to jail, and then many of them will find, beg or borrow the money to pay, and they will be released from incarceration, only – in many cases – to repeat the cycle.

If only the Supreme Court – or anybody – could change the cycle.  That would really be something.

Obviously, very young children are entirely dependent on their parents’ efforts to get them to school, and to make sure that they have the necessary materials and support in order to attend consistently. However, problems of school truancy and failure to adequately fulfill academic requirements are more often seen and discussed as children enter the middle school and high school years. When we look at the issues facing these older students, are parent-directed laws a viable solution to the problem of kids failing in school?

To answer that question, we first need to know why kids fail, skip, or drop out of school in the first place. Although it is easy to dismiss truancy or school failure as results of parental laxity, research shows that the reasons for troubled school performance are complex. Educational researchers do not agree on the main causes of poor school performance by children. Students who are members of racial minorities or whose families are economically disadvantaged tend to be on average lower achievers in school, but it is not clear whether the different performance levels are due to different levels of stimulation and language limitations in their home environments (as suggested by researchers such as Bernstein, West, Denton, and Reaney), differences in habits and attitudes between the lower and middle classes (as theorized by DeMarrais and LeCompte), differences in school resources (suggested by Kozol and others), low teacher expectations (theorized by Steel, Aronson, and Casteel), or oppositional attitudes developed by students themselves in response to perceived oppression or discrimination (suggested by Farkas, Lleras, and Maczuga, among others). Research does not uniformly support the claim that children perform better academically when their parents are involved in school, so laws forcing parents to achieve a certain level of involvement do not seem likely to improve cognitive performance of students.

However, there does seem to be a correlation between parental involvement and children’s behavior in school: the higher the level of parental involvement, the fewer child-related behavior problems. Since truancy is popularly viewed as primarily a behavior problem, coercing – or at least strongly incentivizing – parental involvement at school seems like a rational way to address the problem. But is excessive school absence always a behavior problem in the usual sense of the word? Kids miss school for all sorts of reasons: illness, fear of bullying, being needed at home to babysit younger siblings, or just feeling like they want to skip. The hope in using carrots and sticks to elicit parental involvement in school is that the positive benefits known to correlate with parental school involvement will occur. If parents are more connected with the school (the thinking goes), they are likely to convey higher expectations and positive attitudes about school to their children. If parents have more connection with the school, they may become aware of problems experienced by their offspring in time to help the kids deal with the issues without skipping school or dropping out entirely. Thus truancy will go down, student performance will go up, and education will run much more smoothly. But will it, really?

As well-intentioned as some of the parent-directed legislation may be, it ignores some important facts. For one thing, studies that show correlations between parental school involvement and positive educational outcomes examine voluntary parental involvement. The parents may have been predisposed to get involved at school due to personal characteristics which themselves increase the likelihood of their children’s success and decrease the likelihood of child truancy, or the school may have presented an attractive environment in which to become an involved parent, which atmosphere might also be partly responsible for school success. So the cause-effect relation is not entirely clear Even if the willing parental involvement is by itself responsible for part of the good educational outcome for some kids, it is not certain that coerced parental involvement will have the same positive results.

Another concern is that “grading” parents may undermine their status or authority in the eyes of their children at a time when those children are in the throes of normal adolescent rebellion. This could be counterproductive, giving kids another excuse to reject school and eschew any personal responsibility for their own success or failure. In addition, some studies have shown a strong correlation between peer group influences and truancy. It is notoriously difficult to control peer group access as children become adolescents, so short of moving, parents may have very little control over their children’s associates. If destructive peer groups are the real problem, pressuring parents to get involved in school or ridiculing their parenting may increase their stress levels without real results for their kids. Finally, there are some researchers who have posited that truancy is a rational response when a school is truly inadequate, and solutions ought to focus on providing alternative schools or even viable home-schooling. In this situation, the research suggests that parents should be allowed to look outside of the school itself, rather than becoming more involved in the school and its rituals.

The blame-the-parents mentality of the proposed legislation is especially troubling given that there is apparently no provision for individual fact-finding about whether a parent’s lack of involvement is actually causative of a student’s difficulties rather than a reaction to them. Equally troubling is this: since failure and truancy rates are on average higher in inner-city schools, the burden of the laws’ enforcement is likely to fall most heavily on parents who are already struggling with poverty, unemployment, and underfunded schools. This is not likely to result in the kind of school-parent alliance that best serves kids.

This is the fourth post in an occasional series entitled “Law Gone Wrong.”  The editors of the Faculty Blog invited Law School faculty to share their thoughts on misguided statutes, disastrous judicial decisions, and other examples where the law has gone wrong (and needs to be nudged back on course).  Today’s contribution is from Professor Judith G.  McMullen.

The current Wisconsin statute governing spousal maintenance, §767.56, is an undoubtedly well-meaning legislative attempt to give broad discretion to judges who must make difficult decisions about the division of financial assets at the time of a divorce.  I believe, however, that the breathtakingly broad discretion granted under the statute is a mistake.  

Spousal maintenance, also known as alimony, is the payment by one ex-spouse for the support of the other ex-spouse.  Although media accounts of celebrities like Tiger Woods may leave the impression that maintenance payments are commonplace (not to mention large), in fact only a small percentage of divorce judgments include awards of spousal maintenance.  Divorcing couples may bargain for and agree to different maintenance outcomes, and those agreements are generally incorporated into their divorce judgments and subsequently enforced.  If the parties do not agree, however, §767.56 says that the court “may grant an order requiring maintenance payments to either party for a limited or indefinite length of time” upon consideration of the factors listed in the statute.

The list of factors that the judge must consider is infinitely broad, and includes the length of the marriage, the health of the parties, the educational levels of the parties, the job experience, job history, and job prospects of the parties, as well as any contributions each might have made to the increased earning power of the other party.   The court is further directed to consider “the feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.”  Finally, the court must consider “[s]uch other factors as the court may in each individual case determine to be relevant.”  In other words, a judge can consider virtually anything.

Allowing judges to consider each case on its own merits seems at first like an ideal way to achieve fair resolutions in the infinite variety of divorce cases that are filed in this state.  Judges are highly educated after all, and the vast majority of judges are dedicated to trying to achieve justice in the many cases that come before them.  Even so, I find the super-broad discretion of § 767.56 to be troubling.

Here’s the thing:  the many factors that a judge must consider are not assigned any priority.  If a marriage has lasted 25 years, is that more or less important than the fact that one spouse obtained a professional degree during the marriage?  Is the fact that one party was the primary caretaker of the couple’s children for 10 years more or less important than the fact that the other party has chronic health problems?  The answer is that the relative importance of the listed factors, as well as what other factors might be dispositive, is solely up to the discretion of the judge.  Since each judge comes to the case with his or her own unique values and expectations, the relative importance of relevant factors may vary greatly from judge to judge.  This makes alimony outcomes entirely unpredictable.

 Absolute unpredictability of legal outcomes arguably has many consequences, but here I am concerned with only one: a totally unpredictable outcome skews bargaining behavior, and likely favors risk-takers and disfavors risk avoiders.  The stereotypical spouse likely to receive spousal maintenance payments would be a woman who has been married for over 20 years, and who spent most of that time as a full-time mother and housewife, perhaps also entertaining and otherwise supporting her husband’s career.  Statutes like §767.56 do not mandate an award of alimony to such a woman, and instead allow a potentially infinite number of “other factors” determined by the court to be “relevant” enough to result in the denial of maintenance.  Faced with uncertain financial prospects, the soon-to-be-ex-wife may settle for half or a bit more of the property, rather than petitioning for alimony that might not be awarded.  Indeed, her lawyer may well advise her to settle for the bird-in-the-hand of a property settlement.  The problem is that many women in this situation later discover that their diminished job prospects will not support anything like their marital standard of living, and they may rapidly exhaust their property nest-eggs after the divorce.  Moreover, a waiver of alimony is final, and the court has no discretion to re-open the case and award spousal support, even if the ex-wife is destitute.

If the spousal support statute offered more guidance such as a formula (as in child support cases), a starting presumption (as with property division) or even an ordering of priorities, divorcing couples could bargain with each other in a more informed and fairer way.  As it stands now, however, a petition for alimony is a roll of the dice.  If a divorcing spouse is not a gambler, her ex might successfully persuade her to settle for less than she needs, and less than she would receive in a more equitable system. 

The alleged crime is sadly familiar: a young man was arrested in connection with the death of his girlfriend’s two-year-old son, Karmari J. Curtis, whom the suspect was babysitting.  The boyfriend brought the toddler’s body to the emergency room and claimed that the child had drowned accidentally while in the bath.  Since the lifeless child was reportedly dry and completely dressed, medical personnel and the police doubted the story, and the medical examiner’s report on the cause of death is currently sealed pending charges.  At the time of the toddler’s death, the suspect, Corey Benson, was out on bail awaiting trial on charges of physical abuse of a child and child neglect.  The previous charges stem from an incident in October when Benson admitted to playing tackle football with the same child and doing elbow and leg drops to him afterwards.  The toddler suffered life-threatening injuries, including a lacerated liver, as the result of that incident.  Benson was under a court order to have no contact with the boy after the October charges.

Everything about this tragic incident is ghastly, but here I want to focus on one particularly chilling aspect of this situation: the suspect, Corey Benson, is a young man of great potential who seemed to have beaten the odds against him. 

One of six children, at the age of two he lost his father in a drug-related incident.  He was raised in a tough Milwaukee neighborhood by a single mother.  Although he was in and out of foster care, Benson excelled in school and was the valedictorian of his high school class.  He won a scholarship to Purdue University and graduated from there with an accounting degree.  He overcame the odds; he seemed to have such a bright future and now . . . this.

Research shows that people who were abused or neglected as children are at significantly higher risk of later becoming child abusers themselves, although contrary to popular belief the majority of abused children do not later become abusers.  Adults who were abused as children are also at significantly higher risk of experiencing other difficulties in life such as addiction, relationship problems, and depression.  Yet here, too, there are many formerly abused people who go on to live happy and productive lives.  Much research has attempted to identify why some formerly abused adults have happy life outcomes, while others lead tragic and unhappy lives rife with problems.  We hope that if we can discover the factors that save some abused children from an unhappy fate, we can reproduce those factors for other children and save them, too.

Essentially, child-saving factors can be either internal or external.  Internal factors are individual characteristics of the abused child, like intelligence, that make him more resilient and better able to seek out and get necessary help or affection. External factors are opportunities for the child to have essential developmental needs met by persons other than the maltreating parents.  School, counseling, and mentoring programs are examples of efforts that are thought to give maltreated kids some of the love and support that they have not been able to receive at home. 

We don’t know what happened to Corey Benson when he was growing up, but the fact that he was in and out of foster care suggests there were serious abuse or neglect issues in his family.  He clearly has some characteristics that would improve his chances of breaking the cycle of maltreatment, such as intelligence and a reportedly strong work ethic.  We don’t know what kind of services he received, or why they could not somehow have prevented the current tragedy.  Benson has not been convicted of either the beating or the killing, and he is innocent until proven guilty.  The evidence against him, though, is troubling.  Benson’s admissions in the police record about the October incident at the very least show a troubling lack of understanding about how to take care of a child, what with descriptions of tackle football and acting on “aggression and adrenaline” that built up as the suspect played with the toddler. 

Although our society has made some progress in identifying ways to help maltreated children live healthy and productive lives, the death of little Karmari reminds us that there is a lot we do not know about how and when to intervene.  We have the continual hope that if we get to maltreated children earlier we can save even more of them from harm.  But sometimes we can’t save them, and we do not yet fully know why not.

As currently written, WIS. STAT.  48.92 – Effect of Adoption is a bad statute with unintended results.  The statute says that, with the exception of stepparent adoptions, an adoption ends all legal relationships between the adopted child and that child’s biological parents.  Put in blunter words, the rights of all biological parents are terminated when an adoption is finalized. This statute no doubt grows out a determination to normalize the lives of adopted children.  They are to have only one set of parents and to know just who those parents are.  On a deeper level, the statute reflects the possessive imperatives so central in the dominant American world view and extends it to adoptive children.

The great problem with the statute involves same-sex couples with children.  It is increasingly common for one member of a same-sex partnership to have a child brought into the relationship from a prior opposite-sex marriage, as a result of adoption, or conceived via artificial insemination.  Call this the “pre-existing parent” in the same-sex partnership.  The pre-existing parent might want their same-sex partner to adopt any children brought into the relationship.  In such cases, the second partner might be perceived as a parent by the child or children, and the second partner might be ready and willing to adopt any child from a previous relationship.  However, if this adoption is finalized in Wisconsin, the statute operates to automatically terminate the parental rights of the pre-existing parent -– a patently unwanted result given a hope to achieve some degree of family unification through adoption.  For a judicial confirmation of the absurd result of the Wisconsin statute, see Interest of Angel Lace M., 184 Wis. 2d 492, 516 N.W. 2d 678 (1994).

What could be done to fix WIS. STA.  48.92?  A whole new statute allowing and facilitating adoption by same-sex partners would be the best solution, but one fears the state’s current hostility toward expanding gay rights would make this difficult to achieve.  Alternatively, one could change the existing statute to create an exception for same-sex partners seeking to adopt their partners’ children.  As noted above, the statute already includes a comparable exception for stepparents adopting their spouses’ children.  Stepparents, after all, would also consider it absurd if the act of adopting their stepchildren terminated the parental rights of the pre-existing parent in the relationship.

The article, one in a series of profiles of persons who benefit from the NYT Neediest Cases fund appeal, gives us a snapshot view of Lydia Monserrate, a 21-year-old who recently aged out of foster care. 

One of four children, Lydia entered foster care as a teenager whose mother had filed a PINS (persons in need of supervision) petition with the court.  As a teen, Lydia skipped school, drank alcohol and shoplifted with her teen buddies, kids her mother considered a bad crowd.  When her mother couldn’t control her, Lydia ended up in foster care, living in 13 foster homes in the past 5 years.  While her behavior may not have been perfect, her tales of foster care, replete with dog bites, attacks by neighborhood girls and being locked out of houses when the foster parents were not home, are troubling.  Now, thanks to food stamps, charity, and a caseworker who has remained in the picture even though Lydia has aged out of foster care, Lydia has a one-room apartment and is working on her GED.  Lydia’s mother would not take her back, even though Lydia says “I asked my mom a thousand times if I could come back home.”

Undoubtedly, Lydia’s mom has her own side to this story, and there are certainly things we do not know about this family situation and the mother’s motives.  But we need to ask why kicking a teenager permanently out of the home is considered an option by many people.  The teenage years can be trying in even the calmest of families, but it is important to remember that rebellion is a normal part of the developmental process for teens.  Obviously, some teens rebel by sleeping late and talking back to their parents, while others engage in more serious behaviors such as drinking, drugs, truancy, or stealing.  Some parents may try the approach of telling a kid “follow my rules or you’re out of here,” but what if the teen calls the parent’s bluff?  Parents are kidding themselves if they think that throwing kids out will put those kids on a better path, because most of the time the kids end up on a much more dangerous path.  Throwaway kids are at much higher risk of being involved in criminal activities, both as victims and as perpetrators.  Since drugs and prostitution are high on the list of crimes involving throwaway youth, it is not easy to separate the victims from the perpetrators.  Victim, perpetrator, or both, it does seem that Lydia has been let down, both by her mother and by the foster care system.

Certainly Riddell and Partilla aren’t the first unfaithful spouses to end up together, and they won’t be the last.  What is surprising is the frenzy of overwhelmingly negative reader comments to the Times.  “Why does the Times glorify home-wrecking?” queried David from NY.  A commenter identifying himself as Dr. Dubs from NYC was outraged: “So you’re telling me, as long as I’m happy, who cares what happens to my legally wedded spouse and kids?” he stormed.  “This story reeks of selfishness.”  Funny valentine from New Jersey commented that the Vows column “was absolutely the saddest story in the NYT, save the obits.”

Why the uproar in this era of no-fault divorce, not to mention in a society with a divorce rate of around 50 percent?

The whole idea of no-fault divorce is that marriages typically fail for a host of reasons, and there is plenty of blame to go around.  Rarely is there a good guy and a bad guy: people may grow apart, or they may be mutually hurtful and rejecting of each other over a period of time.  Forcing couples into a legal proceeding meant to establish who was guilty and who was innocent led to a lot of mudslinging, which was harmful to the divorcing spouses and especially toxic to their children.

And yet . . . unrepented infidelity seems to touch a particular nerve with people.  Perhaps it was the perceived glorification of the new relationship, or perhaps it was a sense of identification with the former spouses.  Comment after comment expressed sympathy for the unknown spurned ex-spouses, and comment after comment noted the negative effects of divorce on children.  Indeed, many studies have found negative effects of divorce on children, although the level and duration of harm may vary with factors such as levels of conflict between the divorcing parents.  It seems here that the concern for the children was a reflection of the fact that most readers assumed that the children would naturally suffer if their parents acted in a way that those readers viewed as selfish and self-glorifying.

One problem with no-fault divorce is thought to be that many divorcing couples will feel the need to justify themselves, and may move accusations of fault to other parts of the proceeding, leading to more ferocious custody or property disputes.  There is no evidence that this is the case: divorce has always produced conflicts over money and children, but there does not seem to be a trend towards more contentious settlement now that the actual divorce is assured.  Some social commentators have opined that we have become blasé about divorce.  Judging by the reactions to the Times column, though, many of us are not blasé about either marriage or divorce.

The authors comment that the results are not surprising, given that many of the risk factors that were studied are not usually addressed by the interventions that follow child protective services investigations. 

The authors point out that poverty and lack of social support are known to put families at risk of child maltreatment, but investigations and the interventions that follow them are more likely to focus on things known to be more closely associated with child abuse, such as domestic violence or substance abuse (two factors that were not considered in the current study). 

Actually, I think most people DO find the results to be surprising.  The fact is we often view investigations into suspected abuse as a kind of solution.  We expect that such investigations will reveal whether or not there is maltreatment, we expect that curative solutions will be offered, and we expect that these interventions will be successful.  Even in the absence of strong remedial programs, we hope that letting parents know that they are being watched will make them change their parenting for the better.   The reality is somewhat more complicated.  Investigations often yield ambiguous findings, and even where abuse is detected, there is not a one-size fits all solution.  Mere observation of a struggling family does nothing to teach the parents how to improve their family situation.  Ironically, the success rates may be higher where the maltreatment is more egregious and the intervention more drastic, such as when an abused child’s parents’ parental rights are terminated, and the child is adopted by a forever family.  Such children were not included in the present study, which looked only at children who had the same caregiver at age 4 and at age 8.

The study authors, as well as the author of an accompanying editorial, suggest that social work should focus on addressing broader family, caregiver and child risk factors.  Improvements in social support systems for families at risk and individual therapy are two interventions that are known to improve outcomes for children at risk.  Why aren’t such measures routinely undertaken?  Part of the reason is cost: these interventions are time and labor intensive, and they cost money.  Plus, our society tends towards crisis intervention followed by a quick fix (and not only where child protection is involved – note, for example, the proliferation of quick-result diets).  There is often resentment over providing ongoing services to at-risk families.  Some people seem to feel that giving housekeeping or therapeutic services to at-risk families rewards those families for poor choices and bad behavior, especially when so many middle income families cannot afford help to carry out their own duties and solve their own problems. 

Comments on the study also emphasize that social workers are obliged to play different, sometimes opposing, roles:  CPS workers are supposed to provide help to struggling parents, but at the same time their reports are used in the criminal justice system’s punishment of child maltreatment.  In the editorial accompanying the study, Dr. Abraham B. Bergman suggests that the task of building a case for punishing child abusers should be left to the police, and social workers should focus their efforts on helping families to improve their physical and emotional circumstances.  This seems like a good starting point.

Lately, courts all across the country have been standing up to religious (or sometimes what’s called “moral”) bias against the LGBTQ community. In one way, it is not surprising that there have been so many recent cases, because such bias is a pervasive part of the legal reality members of LGBTQ community face on an everyday basis. Nonetheless, theses sorts of court decisions seem to be, at this particular moment in time, flying out the doors of courthouses all over the country. I’ll take a moment to hit some of the high points before getting down to the real question: does it even matter?

In March of this year, a federal judge held that a lesbian teen’s First Amendment rights had been violated when the Itawamba County School District refused to allow her to bring a female date to the prom. The district had banned same-sex couples at the prom in the past, but Constance McMillen implored them to make an exception. The district refused, and McMillen, represented by the ACLU, sued them on First Amendment grounds. The federal judge agreed that her rights had been violated but refused to grant her request that the school still sponsor a prom to which she could bring a female date.

In another federal case, in July, the United States District Court for the District of Columbia ruled that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. Section 3 reads as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

This case, however, did not challenge the constitutionality of refusing to allow same-sex couples to marry. Rather, it challenged DOMA by arguing that the Equal Protection Clause requires the federal government to treat same-sex married couples from Massachusetts the same as heterosexual married couples from Massachusetts. Specifically, it pointed to health care retirement benefits as well as tax benefits. The District Court judge ruled that Section 3 of DOMA violated the Equal Protection Clause, stating that “this court is convinced that ‘there exists no fairly conceivable set of facts that could ground a rational relationship’ between DOMA and a legitimate government objective.” Judge Joseph Tauro did a clear job of delineating which level of scrutiny he employed, ultimately concluding that strict scrutiny need not even apply because Section 3 cannot “pass constitutional muster even under the highly deferential rational basis test.”

Just weeks before the Gill case, the Supreme Court handed down its opinion in Christian Legal Society v. Martinez. Members of the Christian Legal Society at Hastings College of Law challenged the school’s refusal to recognize them as an official student group. The school denied them this status because the group demanded that all officers embrace their collective opinion that homosexuality is a sin, an opinion in impermissible conflict with the school’s anti-discrimination policy. The Court ruled that the school retained the right to deny official status to groups that failed to follow the “all-corners” anti-discrimination policy but remanded the case to the Ninth Circuit. The case did little to advance the law in this area, most likely because this is really a question of policy.

Most recently, a United State District Court judge ruled that Eastern Michigan University (EMU) was within its rights to dismiss a counseling master’s student because she refused, on religious grounds, to counsel homosexual clients. EMU adheres to the American Counseling Association’s (ACA) ethical guidelines, which require that counselors work in neutral, non-judgmental ways—no matter their client’s moral, religious, or social beliefs. The ACA has definitively banned discrimination based on sexual orientation. Last year, the student in this case did not want to work with a homosexual client because they did not share the same moral values, and the student therefore referred the client to a different counselor. The District Judge ruled against the student, explaining that her dismissal was justified because no one required her to change her beliefs; rather, the ACA (and EMU) required that she set them aside in her professional role, something expected of all ACA counselors, no matter the issue.

In light of these cases, the LGBTQ community has many reasons to be excited. Still, I recommend no one begin counting their proverbial chickens. Anti-gay rights groups are already rallying behind the defeated parties in these cases, with vows to take their appeals to the Supreme Court.

And beyond that, many of these cases (e.g., Martinez) are saying a whole lot of nothing. Even if they were, though, groundbreaking cases will do nothing to change individuals’ minds. Were the Supreme Court to declare same-sex marriage a fundamental right and sexual orientation a suspect classification tomorrow, there are still many things that won’t get easier. Legitimization from the State is but one piece, one step in the correct direction.

One article, written by Kathy Markeland, describes current efforts in Wisconsin to try to address the problems of young people who “age out” of foster care without ever returning to their families or being legally adopted into a new family.   Wisconsin has made “modest steps” to help kids – and they are in many ways still kids – who must leave foster care, including funding individual post-foster-care planning, extended health care and some college scholarships.  Markeland argues persuasively that Wisconsin should follow Illinois’s lead, and give foster kids the option of remaining in foster care until age 21.  She cites statistics showing that 50% more young adults are living with their parents now than in the 1970s, and argues that failing to provide a similar option for foster kids means that they will be forced into adulthood before they are ready.

The other article, written by Greta Anderson describes the author’s own experience of aging out of foster care.

Removed from her family at age 15, Anderson found herself with “a lot left to learn” after she reached her eighteenth birthday, but says “the number of people willing to teach me drastically decreased.”  She describes the pain and confusion of being a teen who receives “services” rather than long-term love and support.  Her message is that every member of society – not just helping professionals – can work to help teens in (and aging out of) foster care by stepping up to help even when not obligated to do so.

The dirty little secret of foster care is that child protective services do a better job of protecting children from physical harm than they do at protecting the emotional well being of foster kids.  There are many dedicated foster parents, and many kids end up being adopted into “forever families,” but the situation is bleaker for teens.  The teenage years are rocky for even squared-away kids in fully functioning families, and the difficulties multiply when the kids have been traumatized for many years by dysfunctional family situations.  Many foster parents would rather take on adorable babies and toddlers than moody teenagers, and the babies are more likely to be permanently adopted as well.  Teens in foster care may feel that attachment to their foster parents is disloyal to their natural parents, and the attachment feels risky anyway, because teens are old enough to understand that the people who provide services, including the foster parents, are being paid to do so.

The truth is that for decades, the average age of attaining complete financial independence from one’s parents has been rising.  Emotional dependence may last even longer for most people.  Think of the myriad things that young adults learn, as if by osmosis, from their parents: how to write checks or apply for credit, how to drive a car through snow and rain, or how to dress for a wedding or a job interview.   Those adults who are lucky enough to have parents living often continue to rely on those parents for advice or help when unexpected things occur.  Teens and young adults who must face the world without this kind of support are disadvantaged in many ways.

Robert Frost said “Home is where, when you have to go there, they have to take you in.”  There are no easy answers here, but this much is clear:  we must, as a society, find ways to connect kids who are aging out of foster care with adults who will commit to providing them with the support of at least an emotional home that will take them in, whenever they have to go there.

Wisconsin law does not permit same-sex couples adoptive rights; only one parent is the “legal parent.” The court justified its decision on the basis that Wisconsin law defines a “parent” as only the biological or adoptive parent. Wendy is neither of these and thus, at least under the law, not a parent at all.

This leads to questions that are more cultural than legal (though still legal, yes). How do we define parent? How do we define family? The Supreme Court has spoken to these questions, though not in the terms at issue here.

In Stanley v. Illinois, a man lost his parental rights because he was not married to his children’s mother. Stanley and his girlfriend lived together on and off for 18 years and had three children together. When she died, Illinois law commanded the children become wards of the state because their father was not married to their mother. His actual fitness to be a parent was irrelevant. (Familiar yet?) The United States Supreme Court held that the Illinois law violated Stanley’s right to due process of law by taking his children without a hearing to determine his fitness. The law allowed Illinois to circumvent the neglect hearing process because Stanley was not married to his children’s mother. The Court wrote,

Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand.

Stanley, 405 U.S. 645, 656-57 (1972). In many ways the Stanley case is distinguishable and probably even unreliable—the case is, after all, nearing it’s 40^th birthday and has some questionable history (though it remains good law).  But the Court’s reasoning does suggest that “past formalities” and “presumption” cannot be the basis for denying an unwed father his parental rights (which the Court has protected stringently). Is that really so different from saying that because of the presumption that a same-sex couple is illegitimate, unfit, or other similar reasons, the non-biological or non-adoptive parent is not a parent at all? Really, that’s what Illinois was saying to Stanley by operating on the presumption that most—if not all—unwed fathers are unfit: that he’s not a parent at all.

Though “past formalities” dictate a certain family structure, one ought to be careful in assuming the modern family structure is a long-standing phenomenon; it’s not. It’s relatively new in the span of American history and newer still in the span of human history. The mother, father, 2.5 children structure simply wasn’t practical before the Industrial Revolution allowed it to be so.*  I’m not suggesting that people didn’t live this way, only that the word“family” and those responsible for childcare encompassed a much wider breadth of people than those who fit this pattern. Nuclear, insular families are a rather modern phenomenon, though we’ve latched on to that picture and understanding with formidable might.

In any case, if we allow “past formalities” to rule rather than paying attention to “present realities,” our law fails to keep up with our society. Like Illinois presumed Stanley was an unfit father because he was unmarried, there exists a presumption that same-sex couples are inherently unfit to raise children and that the non-biological/ adoptive parent isn’t a parent at all.  Wendy, then, isn’t just unfit to be a parent; she’s not a parent at all. And unfortunately, the people who suffer most from this unjust presumption will be her children.

*For discussion of construction of the modern family structure in America, see Elaine Tyler May, Homeward Bound: American Families in the Cold War Era (Basic Books 2008).

The data were not as clear regarding the effects of hiring counsel.  For instance, cases with represented clients took longer to complete, but this may simply reflect the fact that these cases tended to be more complex.

McMullen and Oswald reported their research in a recently published article entitled “Why Do We Need a Lawyer? An Empirical Study of Divorce Cases,” which appeared at 12 J. Law & Fam. Studies 57 (2010).  The article is also available here on SSRN.

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it affects minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first systematic examination of the issue of age discrimination in adoption and proposes both constitutional and statutory remedies to counter the problem.  The justifications for age discrimination in adoption are no longer supported by empirical evidence or societal realities.  Ultimately, when an older petitioner is denied the right to adopt, the agency, the court, and, fundamentally, society are implicitly rejecting the worth and dignity of older individuals and impermissibly discriminating based on ageist stereotypes.

Cross posted at Indisputably.

Jeannette and her siblings live in a series of cars, tents, or leaky-roofed houses without heat. They forage for food in farmers’ fields and trash cans, wear cast-off clothing, and bathe so infrequently as to attract the scorn of schoolmates. Their unstructured life and economic deprivation are partly a product of their father Rex’s alcoholism, and partly a result of their mother’s free-spiritedness, which often bordered on mental illness. The parents held jobs for periods of time, but usually quit or were fired because they did not like the infringement of a work schedule on their freedom or did not see eye-to-eye with their bosses on some point. Despite these physical hardships, the Walls family is full of love and mutual affection, and Jeannette’s account of her family is surprisingly gentle and forgiving.

As a Family Law teacher who addresses issues such as child maltreatment, parental rights and child protection, I am fascinated by first person accounts of family life, and Walls’ account is full of nuance and insight. There is one scene however, that haunts me as a teacher. 

Walls recounts how, after leaving her West Virginia home, she enrolls in Barnard College in New York City, supporting herself with grants, loans, and minimum wage jobs. By this time, her siblings had also escaped to New York, and her parents followed – living first in their car and, when they lost that, living on the street or squatting in abandoned buildings. Both parents had job skills, but neither held jobs for any long period of time.  Instead, they foraged in dumpsters or played poker for influxes of cash. Whenever the Walls children confronted their parents about the situation, the parents assured the children that they were content with their “freedom.”

One day, a political science professor who was a particular favorite of Walls asked the class whether homelessness was due to drug abuse and aid programs (as the conservatives claimed) or cuts in aid programs and no economic opportunities for the poor (as liberals claimed). She called on Walls, who answered “Neither” and then went on to say (thinking of – but not mentioning – her parents and the choices they had made), “I think that maybe sometimes people get the lives they want.” The professor was incensed, asking incredulously if Walls was claiming that homeless people don’t want roofs over their heads or warm beds. Here, I quote from Walls’ account:

“Not exactly,” I said. I was fumbling for words. “They do. But if some of them were willing to work hard and make compromises, they might not have ideal lives, but they could make ends meet.”

Professor Fuchs walked around from behind her lectern. “What do you know about the lives of the underprivileged?” she asked. She was practically trembling with agitation. “What do you know about the hardships and obstacles that the underclass faces?”

The other students were staring at me.

“You have a point,” I said.

( The Glass Castle, pp. 256-257.)

So why do I find this passage so haunting? We law professors spend a lot of time becoming expert in our specialty areas, and we work hard to instill in our students not only knowledge of objective facts, but also reasoning ability and a sense of justice. That’s all good for the most part, but we need to remember that our students also have experiences and knowledge that can educate us and their fellow classmates. It is tempting for us professors to believe we have figured out the best solutions to certain legal or social problems, and the more time, energy, and ego we invest in our approaches, the harder it becomes to see that we may have overlooked something. It is good to push students to develop passion for law and social policy, but we must not become arrogant about imposing our opinions to the point that students feel judged or alienated. Part of the learning experience has to be, in my opinion, the student connecting concepts learned in class with real-life experiences. To the extent that the student can verbalize this to the teacher or other students, everyone will be enriched.

I am particularly aware of this dilemma in my own field of Family Law, where lawyer understanding and empathy for a client can go a long way in assuring a just solution to a case. In my years as a professor, I have had students who have faced all sorts of difficult family situations. I have had students who were divorced or cohabiting, students whose parents had divorced, students who had been abused as children, and students who struggled with addictions, either their own or those of family members. I have had students who adopted children, students who were adopted themselves, students who had adopted siblings, and students who gave children up for adoption. I’ve had students who have had to make hard choices to withhold medical care from terminally ill relatives, including their own children. The list goes on and on and these are only the ones I know about. Each time a student has shared insights gained from these hard realities, the other students and I have gained valuable knowledge and perspective. Even when a student is reticent to share the experience with the class as a whole, experiences shared with me help me to present the material with more sensitivity and a broader range of information and insight than I would have had otherwise.

The challenge for us teachers is to create an intellectually open environment where students can admit who they are; the challenge for students is to trust that sharing their experiences will help them and others to gain insight and knowledge. When students feel free to share their experiences, other students and we professors learn, too. Think about the insight Jeannette Walls’ professor could have gained into the plight of the poor and the homeless if she had somehow been able to elicit some of Walls’ experience!

Perhaps no one, and these matters were thus common ground in a provocative session for students this week, with presentations by Dean Joseph D. Kearney (“10 Things I Learned During My 28 Days as a Divorce Lawyer”), Milwaukee lawyer Thomas St. John ’72 (“5 Things Any Lawyer Should Know Even Before Taking the Case”), and Milwaukee County Circuit Judge Michael J. Dwyer (“3 Things a Law Student Should Know About Family Law”). But, despite a great deal of common ground, the speakers’ views did not seem entirely in accord.

The basis for the discussion was a case that the Dean handled on a pro bono basis a few years ago in Illinois for a high school classmate. The focus of the Dean and Attorney St. John was primarily on litigation points, and there were many similarities in their lists. 

For example, this was the second item on Dean Kearney’s list: “The best thing you can do to settle your client’s case favorably is to prepare diligently for trial.” And this was second on Attorney St. John’s list: “Know how to try a case – they don’t all settle.” (St. John estimated that 90 to 95 percent of divorce proceedings are resolved by a settlement.)

Both also stressed the importance of a lawyer’s having a full understanding of a client’s situation when it comes to property and business matters. Being knowledgeable in real estate issues, tax implications, and an array of similar aspects of a divorce case and being systematic in compiling the details can be keys to successful representation, both said, although the importance of each matter will vary according to the context. Attorney St. John recalled prevailing in some cases largely because the other side was represented by a lawyer who was not versed in the specifics of the matter.    

While the points were no doubt of substantial interest to the audience of about 70 students (and presented in an entertaining and engaging way — I would stand behind saying that even if the Dean weren’t reading this), Judge Dwyer’s points painted the picture of trends in family law in the broadest fashion. And it was here that, although the time constraints did not permit full exploration of the differences and the presenters were careful not unnecessarily to disagree with one another, there seemed to be some differences between the lawyers and the judge.

Following the David Letterman model, all the speakers gave their lists in reverse order, and each gave one more point than advertised. For Judge Dwyer, the points were:

3) The litigation model is right for only a small percentage of divorce cases.

2) The future of family law is in providing competent limited-scope representation.

1a) More than 80 percent of litigants in family court are not represented by lawyers.

1)  Historically (prior to 2003), law schools have not prepared students for the practice of family law.

Dwyer credited the Marquette Law School for being part of changing that history, with an emphasis on negotiation skills and the like. It was evident that the Dean and Attorney St. John at least, while scarcely denying the value of such skills, were not prepared to put them on a par with trial preparation in the hierarchy of importance for a lawyer representing someone in a divorce case.

Yesterday’s New York Times reports

It is interesting to speculate on the impact these trends will have on marriage and divorce. 

It is possible that there will be fewer marriages, since fewer women will be motivated to marry for economic security as was common in days gone by.  In fact, the article acknowledges that marriage rates have declined in recent years.  The data are hard to interpret, though.  On the one hand, women who have college degrees are more likely to marry than are women who don’t have college degrees.  On the other hand, anecdotal evidence like that reported in the article indicates that educated women feel that many men are threatened by the prospect of having a higher-earning wife.  Some of these women would like to be married, but haven’t found any takers yet.

It is also possible that this trend will further reduce the number of divorce cases involving alimony awards to women, and possibly increase alimony awards to men.  Alimony was originally conceived as a continuation of a husband’s support of his ex-wife once the marriage ended, and came from a time when women’s opportunities for self-support were few.  Eventually, the law evolved so that alimony could be awarded to the lower-earning spouse, whether the husband or the wife, to maintain that person at some semblance of the marital standard of living or to obtain the job skills to be adequately self-supporting.  Despite the gender neutrality of the modern concept of alimony, only a small minority of alimony awards are currently made to ex-husbands.  Over the past several decades, alimony awards (whether to men or women) have been fewer and for shorter periods of time – a result that is consistent with evidence that women are more likely to be the higher earners in many marriages.

Theoretically, we could see alimony awards remaining constant, while seeing a shift in awards away from ex-wives and towards ex-husbands.  I suspect that there will be significant resistance to this happening, because the notion that men “should” be breadwinners is still quite strong in this society.  The Pew Research Center report also states that only the wife worked in seven percent of households last year, up from five percent in 2007.  These numbers were higher in African-American households, where twelve percent had only the wife working last year compared to nine percent in 2007.  The husband is a breadwinner in a large majority of households, and this is in keeping with our social expectations.  There continues to be a gender stereotype that makes it difficult for men to successfully seek alimony from their working ex-wives.  The fact that more men have lost their jobs in the Great Recession, coupled with the fact that financial woes put a strain on marriages, may challenge the traditional gender expectations.  Perhaps more of those better educated, higher-earning wives will become ex-wives with alimony to pay.

As a person who has been studying children’s issues for many years, I find a number of things about this campaign to be noteworthy.For one thing, it is always refreshing to see resources expended on prevention of harm to children.  Too often, remedies for child maltreatment consist of after-the-fact punishment of perpetrators and too-little-too-late psychological interventions with the injured or neglected children (assuming that they are lucky enough to survive).  Provision of child-related information is a positive, preemptive step.  While some child maltreatment is committed with malice, plenty of harm comes to children who are hurt by adults who simply don’t know enough to make better choices.  For example, a child may be beaten for bed-wetting because a parent mistakenly believes that the child is deliberately being naughty.  In fact, bed-wetting is not in the conscious control of the child and bedwetting is common until at least age 5 or 6.  Parents who know this may be less likely to be filled with rage when the child doesn’t stay dry.  [Of course, the separate issue of whether a beating is ever appropriate is less easily addressed by information campaigns alone.]  The angry impulse to shake a crying child provides another example of harm caused by people who may not be terrible or filled with evil intent.  In recent years, child advocates have attempted to educate the public on avoiding “shaken-baby syndrome” by providing information showing that even mild shaking can cause severe or fatal damage to a young child’s spine or brain because of children’s relatively larger heads and weaker neck muscles.  If you’ve ever seen a sign or bumper sticker with “Never, never, never shake a baby” imprinted on it, you have absorbed this information.

Another interesting thing about this campaign is more troubling.  We don’t always like to admit it, but certain child-rearing methods come in and out of favor with parents and professionals alike.  We hope that this is because science progresses in a linear direction, providing us with steadily improving information over time.  The truth, though, is probably more complicated.  The fact is that there is a lot that science, medicine, and society do not understand, and a lot of the child-rearing or safety advice offered by experts is in fact somewhat cyclical in nature.

Speaking not just as a child advocate but as a mother whose oldest child is in her mid-twenties, let me add some perspective.  The fact is that 20+ years ago, much of this expert advice was just the opposite.  Adults’ sleeping with infants was not favored by experts then, either, but more for psychological reasons.  Children needed to learn to soothe themselves to sleep, we were told, and the sooner they learned, the better.  Recommendations for their cribs were different, however.  Bumper pads were encouraged, so that babies would not bump their heads on the crib rails or somehow get their heads stuck in the rails (this second concern was a non-issue by the 1980s, though, because government regulations required bars on cribs to be closer together than they had been previously).  The point I remember the most clearly, probably because it was so heavily emphasized, was that babies were at all times to be placed so as to sleep on their sides or tummies so as to avoid SIDS.  I cannot count the number of times I woke my babies up while I maneuvered them into the approved sleeping position.

As I mentioned above, maybe we are just getting better information now, and more lives will be saved.  I hope so.  The theory of stomach-sleeping twenty years ago was that a back-sleeper might spit up milk and choke, thereby causing a SIDS death.  I believe the theory now is that the baby’s own weight might compress his breathing passages if he is on his tummy, but the airways will be clearer with back sleeping.  The truth is that researchers still do not understand what causes SIDS, and we are all desperate to try anything that we think will prevent it.

My final observation is that we have to be careful here, lest we add to the burdens of grief-stricken parents who have lost infants.  We want to encourage parents to use the safest, most up-to-date methods in caring for their children.  We should not, however, become too arrogant about what we know.  It would be a serious mistake at this point, in my opinion, to try to treat parents who opt for unapproved sleeping techniques as neglectful parents.   We simply do not yet know enough to make that judgment.