Full Faith and Credit for Adoption

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On Monday, the United States Supreme Court issued a summary disposition reversing the judgment of the Alabama Supreme Court in V.L. v. E.L. (577 U.S. ___ (2016)) In that case, two women had been in a committed relationship with each other for over 15 years. While they were together, E.L. gave birth to three children through assisted reproductive technology, and she and V.L. raised the children together. At some point thereafter, V.L. formally adopted the children in Georgia, with the express consent of E.L. who retained her own parental rights. The Georgia court entered a final decree of adoption recognizing both women as parents to the children.

In 2011, V.L. and E.L. split up while living in Alabama, and shortly thereafter V.L filed a petition in circuit court alleging that her former partner was denying her access to the children. She asked the Alabama court to register the Georgia adoption, and to grant her some custody or visitation rights. The circuit court granted visitation, and E.L. appealed, claiming that Georgia lacked subject-matter jurisdiction to enter the decree of adoption. The Court of Civil Appeals rejected the jurisdictional argument, but did remand the case with directions to the family court to hold an evidentiary hearing before awarding visitation rights to V.L. The Alabama Supreme Court reversed, holding that Alabama was not required to accord full faith and credit to the Georgia judgment because Georgia did not have subject-matter jurisdiction to allow V.L. to adopt the children while E.L retained her parental rights.

In its per curiam opinion reversing the Alabama Supreme Court decision, SCOTUS emphasized that states are required to afford full faith and credit to a judgment unless that judgment was rendered by a court that “did not have jurisdiction over the subject matter or the relevant parties.” Although a court can look into whether a foreign court had jurisdiction, jurisdiction is presumed if the judgment is one of a court of general jurisdiction, and the presumption cannot be rebutted simply because a foreign court disagrees with the outcome of a case. Continue reading “Full Faith and Credit for Adoption”

Vaccination Uproar

Posted on Categories Family Law, Health Care, Public2 Comments on Vaccination Uproar

MeaslesDuring the past month, the American public has been bombarded with news reports about a continuing measles epidemic, as well as an extensive debate about whether measles vaccinations should be required to stop this epidemic and prevent future ones from developing.

In fact, all states require vaccinations against many contagious diseases, including measles. But there are exceptions, and the exceptions are broader in some states than others. Only a handful of states limit exceptions to medical necessity – for example, a child whose immune system is compromised by chemotherapy should not receive immunizations. Most states allow religious exemptions, so parents who are, for example, Christian Scientists need not vaccinate their children in contravention of their religious beliefs. However, about a third of the states, including Wisconsin, also allow much broader exemptions based on “conscience” or “philosophical reasons.” These broader exemption categories often can be invoked with little or no effort on a parent’s part, such as by checking a box on a form and signing it, and thus have the potential to erode the requirement if enough people choose not to vaccinate.

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Spouses, Income, Alimony

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alimonyThere are few things in family law more controversial than alimony (also referred to as spousal maintenance), which is defined as a series of support payments made by one former spouse to another. Traditionally, alimony may be awarded when one spouse has need of financial support to maintain the marital standard of living, the other spouse has the ability to pay it, and the award meets certain criteria of fairness (e.g. it should not plunge the paying spouse into poverty or excuse the payee spouse from engaging in paid employment). Historically, alimony was paid by ex-husbands to their ex-wives, but today’s laws make it plain that either a man or a woman may be the payor. Spouses who have stayed home or reduced paid employment to raise children may claim that their activities at home made success at work more possible for the other spouse to succeed in the workplace, and that this should result in a greater share of the property division or an alimony award to either compensate the stay-at-home spouse for the sacrificed opportunities (restitution) or enable him or her to re-tool for a job with good pay (rehabilitation). Indeed, statutes like Wisconsin’s §767.56 direct judges to consider all of these factors (and others) in determining whether to award alimony to a divorcing spouse.

Nonetheless, alimony has never been common and has become less so: the few empirical studies that have been done show that only a small minority of divorcing spouses are awarded alimony of any amount and for any duration. The reasons for the always-low and still-declining numbers of alimony recipients are many and varied, and a full discussion of all of the theories requires more than a blog post.

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Brutality Touches Down at Home

Posted on Categories Criminal Law & Process, Family Law, Public, Sports & LawLeave a comment» on Brutality Touches Down at Home

imagesVR6YYD65Anyone living in the United States who has watched TV in the last two weeks is undoubtedly aware that the NFL is in the midst of a storm of bad publicity. First, we saw the chilling videotape of Baltimore Ravens running back Ray Rice delivering a punch to the head that knocked out his then-fiancée (now wife) Janay Palmer, and then roughly dragging her off the elevator and dropping her like a sack of potatoes on the floor. Only days later, the Minnesota Vikings found themselves in the midst of a similar scandal when their star running back Adrian Peterson was charged with felony child abuse in Texas, where it is alleged he beat his 4-year-old son with a “switch.” Perhaps learning from the debacle that ensued when NFL Commissioner Roger Goodell originally imposed a meagre two-game suspension on Rice for his misdeeds, the Minnesota Vikings have suspended Peterson from games and team activities indefinitely, although since he continues to draw his $11 million dollar salary, he is hardly a sympathetic character at the moment. Meanwhile, the incidents involving NFL player violence against their partners and children keep surfacing.

A lot has already been said and written about these cases, and much of the discussion is thoughtful and educational. Numerous commenters, including New York Times columnist Michael Powell, have pointed out that we should not be so shocked that players who are rewarded for brutality on the football field revert to violent behavior at home. He makes an excellent point. After all, the NFL is not the only place where people who use force, sometimes brutal force, in their jobs have a hard time turning it off at home: the military and various police forces have faced similar issues. Moreover, we live in a society with a high tolerance for violence, at least violence of a recreational sort—as evidenced by numerous TV shows, video games and movies. Continue reading “Brutality Touches Down at Home”

Desperately Seeking Re-Homing

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Child adoptions in the United States may be legally arranged through state or private agencies, or through individual contacts between would-be adoptive parents and birth mothers. In any of these situations, state laws require court hearings and extensive psychological screening of the child and the prospective adoptive parents to determine (among other things) whether the child is in fact available for adoption and whether the prospective parents are safe, competent, and suitable for that child. Once an adoption order is entered, the child is the child of the adoptive parents for all purposes, just as if she had been born to them.

What would happen if such safeguards were not in place? Unfortunately, we now have a glimpse of what might happen to children in an unregulated adoption market, and it is chilling. A Reuters investigation, published in part by the Milwaukee Journal-Sentinel (to read part one,  click here ), reveals that for at least the past 5 years, there has been a thriving Internet market in private re-homing of previously adopted children. Adopted children with severe physical or emotional problems that overwhelmed their adoptive parents were sometimes placed with strangers who, via Internet chat groups, promised to give the kids a new home. However, without those time-consuming home visits, interviews and psychological evaluations, the parents placing the children had no real clue what would happen to their kids once the new “parents” took over. Nor did some of them seem to care, so desperate were they to unload those troubled adoptees.

Let me say here that many of these kids were indeed very troubled by any standard. Most (but not all) were adopted from foreign countries such as Russia or China, where they may have suffered from mistreatment by their birth parents or neglect in overcrowded orphanages. Some of them had violent tendencies and attacked their new parents, new siblings, or new pets. Some engaged in property destruction, including disturbing behaviors like smearing feces on walls, sexual acting out, or substance abuse. Some may have reactive attachment disorder, which is the inability to form normal emotional attachments to other people, thought to be caused by trauma and extreme emotional deprivation early in life. The adoption agencies washed their hands of the children upon completion of the legal adoption and provided no remedial services. Most of the parents earn too much to qualify for poverty-based programs, and there aren’t enough of those anyway. Private counseling and treatment costs a king’s ransom. It is not hard to see why the parents became desperate, and turned (as many people do) to the Internet for factual information and emotional support. Continue reading “Desperately Seeking Re-Homing”

The Catch-22 of Child Care

Posted on Categories Family Law, Public7 Comments on The Catch-22 of Child Care

ChildcareA recent article in the New York Times details the high cost of child care in the United States. Writer Alissa Quart cites research by sociologist Joya Misra, who argues that women with children are not approaching pay equity with men largely because working may not make economic sense given the high cost of child care. Yet if women drop out of the job market when their children are young, re-entering the job market may entail reduced pay and job responsibilities. A classic Catch-22. There has been much discussion in the past about how difficult it is for poor and working class women to obtain reliable, affordable child care, but this new article focuses on the fact that middle and even upper middle class women are also being priced out of the market for safe, high-quality child care. The author interviews several women in good jobs who struggle to pay for decent child care while still retaining enough income to pay for rent and other necessities. While it may be difficult to feel sorry for the plight of working mothers who are earning $40,000 per year or more, the take-away question from the article is this: if such educated and relatively privileged women cannot easily afford decent child care, what are people of average means supposed to do? The author concludes that the United States needs the same kind of high quality, government-subsidized day care that many other developed countries offer.

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Adopting Veronica

Posted on Categories Family Law, Federal Indian Law, Public1 Comment on Adopting Veronica

Recently I wrote about the U.S. Supreme Court decision in which the Court declared that a Native American father was not covered by the Indian Child Welfare Act’s procedures for TPR because he had abandoned the child before her birth, and the Court stated that ICWA only protects existing families and their relationships. SCOTUS remanded the case to the South Carolina courts to decide the future custody of the child. Last week, the South Carolina Supreme Court found that the couple seeking to adopt Baby Girl – named Veronica – was the only party properly seeking her adoption, and ordered the Family Court to finalize the adoption.

So what happens now? It appears that Veronica will be transferred almost immediately, which is somewhat unusual. Normally, a court would hold a hearing to determine the best interests of the child, and might gradually re-introduce the child to her adoptive parents since, after two years in Oklahoma with her birth father, little Veronica might not feel comfortable moving back into the Capobianco home in South Carolina. In addition, under so-called “grandparent visitation” statutes, the birth father might be awarded some visitation rights. But here, where the adoptive parents and the biological father have fought bitterly for almost Veronica’s whole life (and where they live half a continent away from each other), shared custody might not be a viable option. Continue reading “Adopting Veronica”

Measuring Child Abuse Incidence

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Boy with Black Eye Hugging Teddy Bear --- Image by © Guntmar Fritz/zefa/CorbisProbably you are familiar with some version of the old philosophical riddle “If a tree falls in the forest and there is no one there to hear it, is there still a sound?”  Today’s question is similar: “If a child is maltreated but the maltreatment is not reported to authorities, does it still count as child maltreatment?”

I do not mean to be flip.

One of the perennial controversies in child protection circles is how high the rate of child maltreatment actually is, and the answer is never straightforward.  It depends on how we define abuse and neglect (physical, emotional and sexual), how we measure it (Third party reports? Self-reports by victims or perpetrators? Arrests? Convictions?), and whom we think it affects (Poor people? Addicts? Members of certain minority groups? Everyone?)  A lot rides on the answers to these questions, from public funding to public attention to the issue, and the answers often vary from time to time and place to place.

There are, however, some areas of agreement.  Continue reading “Measuring Child Abuse Incidence”

Adoption and the Indian Child Welfare Act

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Although major cases involving gay marriage have grabbed most of the headlines in recent weeks, the Supreme Court of the United States handed down yet another important family law case at the end of this year’s term. In Adoptive Couple v. Baby Girl, 570 U.S. ___ (2013), the Court held in a 5-4 decision that Sections 1912(d) and 1912(f) of the Indian Child Welfare Act do not apply in situations where a parent has never had custody of his child. This reversed a South Carolina Supreme Court decision and remanded an already protracted adoption and custody dispute for still more proceedings in state court.

The facts of the case are mostly undisputed. Baby Girl’s parents, who lived about four hours away from each other, became engaged in December 2008. About a month later, Birth Mother (who is “predominantly Hispanic”) informed Birth Father (a member of the Cherokee Nation) that she was pregnant. The relationship went downhill thereafter, apparently at least partly because the couple differed over what to do next: Birth Father wanted to move up the wedding and refused to provide financial support until after the marriage while Birth Mother did not agree to this and broke off the engagement in May,2009. In June of that year, Birth Mother sent a text message to Birth Father, asking if he preferred relinquishing his parental rights or paying child support, and he texted back that he would rather give up his rights. It is undisputed that Birth Father provided no financial or other support to the mother or baby during the pregnancy or during the four months after Baby Girl was born. Continue reading “Adoption and the Indian Child Welfare Act”

The Cop on My Porch

Posted on Categories Criminal Law & Process, Family Law, Public, Wisconsin Law & Legal System1 Comment on The Cop on My Porch

On December 1st, the Azana Salon and Spa in Brookfield reopens for business. Unless you have been out of the country for the last five weeks, you no doubt know that the salon was the scene of a mass shooting on October 21, 2012. A gunman entered the building and killed three women, including his wife, who was a salon employee. He wounded four other women and then killed himself. The shooter’s wife had recently obtained a temporary restraining order against him after numerous domestic violence incidents including, according to the Milwaukee Journal-Sentinel, an incident where the shooter slashed his wife’s tires in the spa parking lot.

Domestic violence has always been a devilishly difficult crime to prevent or prosecute. Abusers tend to be controlling and manipulative, and the visible physical injuries they inflict often pale by comparison to the emotional injuries. Victims are often psychologically abused and controlled to the point that they may feel responsible for the attacks, and they often stay in their relationships hoping for change in their partners. Abused women—and it is most often women—are afraid to leave their abusers and rightfully so. The time immediately after a woman leaves is the most dangerous time, since the abusers often succumb to rage and the need to control their victims. This may cause them to escalate the violence, and while Zina Houghton’s death is tragic, it is sadly not unusual for a battered woman to die at the hands of her abuser.

This tragedy reminded me of an experience I had last spring. The doorbell rang at 8 o’clock one night, and I flipped on the porch light so as to peer out before opening the door. A uniformed police officer was standing on my porch. This is almost never a good thing. Continue reading “The Cop on My Porch”

We Are All Sikhs

Posted on Categories Family Law, Public, Religion & Law3 Comments on We Are All Sikhs

The day after the dreadful attacks of September 11, 2001, the French newspaper Le Monde published an editorial under the headline “Nous Sommes Tous Américains” (“We Are All Americans”).  The headline was meant to convey not only that the French people stood behind Americans in our desperate hour, but also that they shared our vulnerability as well as our responsibility in an increasingly dangerous world.  The editorial warned that modern technology enables suicidal warriors of all ideological stripes to do more damage than ever before, and the writer emphasized that all leaders need to act to discourage ordinary people from joining the murderous aims of warmongers like those who wreaked havoc on September 11th.

On Sunday, a smaller — but no less terrible — act of carnage occurred in Oak Creek, when a lone gunman killed six people and wounded three others before he was shot and killed by a police officer.  Deaths by violence are always terrible, but this was also an attack against an entire religious community that resides among us.

I first began to learn about Sikhism a few years ago when one of my students, herself a Sikh, kindly gave me a book about her religion.  The religion was founded in the 15th century and has over 20 million followers throughout the world.  Sikhs believe in one God, Whom they believe is the same Supreme Being worshipped by followers of other religions.  To quote from the website www.Sikhs.org, “Sikhism preaches that people of different races, religions, or sex are all equal in the eyes of God.  It teaches the full equality of men and women.”  The Sikh religion also emphasizes tolerance, honesty, community service, and sharing with those in need.

It is beyond ironic that members of a group devoted to peace, equality and tolerance were violently slaughtered in what the FBI is investigating as an act of domestic terrorism. Continue reading “We Are All Sikhs”

Should This Man Go Free?

Posted on Categories Criminal Law & Process, Public3 Comments on Should This Man Go Free?

Today’s New York Times Sunday magazine contains a fascinating article about Greg Ousley, a 33-year-old Indiana man who is in prison for killing his parents when he was 14 years old.  Journalist Scott Anderson reports that Greg is serving a 60-year sentence, with no possibility of parole until 2019. However, Greg’s appeals lawyer is pursuing a sentence modification procedure, which could potentially allow him to be released early if none of the victims’ next of kin object. Of the seven relatives in question – his two sisters and five aunts and uncles – only one aunt objects to the early parole. This is enough to derail the process for now, despite the fact that prison officials think Greg has been rehabilitated since he has been a model prisoner for years and has earned both a high school equivalency certificate and a college degree (magna cum laude) while in prison.

As Anderson points out in his article, parricide is a fairly rare crime, and the killing of both parents is rarer still. Most of the cases seem to involve severe physical or sexual abuse of the child-turned-killer. Greg Ousley’s case is more nuanced. He appears not to have been severely abused, although his parents clearly had issues and few would nominate them for parents of the year – at least if Greg’s version is to be believed. Greg’s dad had a fairly serious drinking problem, his mother (who had been orphaned at a young age) had abandonment issues and was prone to rages in which she verbally abused her children. Apparently neither parent was good at verbally expressing either love or empathy. Greg was angry at his parents for the way they treated him, and he was especially angry at his mother after he found her in the garage kissing his father’s best friend. Greg was also severely depressed. Both a middle school teacher and Greg’s mother seem to have recognized this, but their somewhat modest efforts to address the issue with Greg were rebuffed, and they did not pursue the conversation further. At some point Greg decided to kill his parents, he wrote about it in his journal, he told his friends that he would kill his parents, and ultimately he shot both his father and mother at point-blank range with a 12-gauge shotgun. Ironically, he did it on a night that he now remembers as a night when his parents reached out to him in a positive way, and the three had spent the evening playing guitar and singing at home. Continue reading “Should This Man Go Free?”