Judging Mothers

Posted on Categories Family Law, Feminism, Labor & Employment Law, PublicLeave a comment» on Judging Mothers

A mother’s choice about whether to breast feed or bottle feed her infant may seem like a purely personal decision. In fact, for decades it has been an individual decision with wide-reaching social, economic and political ramifications. Issues have ranged from the economic interests of large baby formula manufacturers to the introduction of formula in developing countries where there are problems with its safe use to medical advice suggesting that breast milk is superior for babies and social disapproval of women who either don’t nurse their babies or who stop nursing before the recommended one-year mark.

In an opinion piece in today’s New York Times, author Alissa Quart discusses the fact that less than 50% of American babies are breast-fed for at least six months, despite a medical culture that sometimes portrays formula as “evil” and a competitive mothering society where women ask each other “How long did you go?” Quart opines that this is understandable, given the time-consuming nature of breast-feeding, and the demands of many women’s workplaces which offer little or no maternity leave, little on-site daycare, and not enough flexibility to allow women to either structure their hours to allow nursing, or to pump milk while at work for later use by a caregiver. She argues that this breast-feeding obsession is part of a social phenomenon that seeks to eliminate all risks to children, and that we need to allow women to make individual decisions without subjecting them to guilt trips.

In The Conflict: How Motherhood Undermines the Status of Women (newly released in an English edition), French sociologist Elisabeth Badinter argues that the aggressive push for breast-feeding engineered by doctors, governments, and private groups such as the international La Leche League, is a significant part of a larger social agenda to demand perfection in parenting and especially in mothering. This has huge social and economic ramifications, according to Badinter, because seeking mothering perfection along these lines precludes women from equal competition in many professions, and leaves them at a permanent economic disadvantage in the workplace.

So what relevance do these discussions have for a legal blog? Continue reading “Judging Mothers”

Can Women Lawyers Have It All?

Posted on Categories Feminism, Public2 Comments on Can Women Lawyers Have It All?

The July/August issue of The Atlantic features the article “Why Women Still Can’t Have It All” by Anne-Marie Slaughter, a lawyer, Princeton professor and former director of policy planning at the U.S. State Department. Already the article has provoked a firestorm of controversy in print and online, as women and men weigh in on Slaughter’s bottom line: having it all in a rarified top tier job is not currently possible, but could be if we make some much needed changes to society and workplaces.

Slaughter begins the article by describing her own conflict between her dream foreign policy job with the State Department, and her then 14-year-old son who had been acting out at school back in Princeton, New Jersey. Slaughter was working in Washington D.C. during the week, leaving her husband in charge of their two boys; she would return home each weekend to be with the family. Although Slaughter had always assumed she would continue in such a dream job as long as her party was in power, she found that not only did her family need her at home, but she wanted to be there for them. Consequently, as soon as her two-year tenure at the State Department was over, she returned home to Princeton and resumed her work as a tenured professor.

Continue reading “Can Women Lawyers Have It All?”

Missing Children

Posted on Categories Family Law, Public1 Comment on Missing Children

The New York Times has been abuzz of late with articles suggesting that a long-ago missing child case may have finally been solved. Thirty-three years ago, six-year-old Etan Patz disappeared while walking the 1½ blocks to his school bus stop. Acting on a tip in this now cold case, police investigators recently dug up a basement located on Etan’s route, looking for a body. They did not find one, but another tip led them to Pedro Hernandez, who has confessed to the boy’s killing, claiming he lured Etan into a bodega basement, strangled him, and put the body in a bag that he placed curbside with other trash. Mr. Hernandez has not been charged: his story is convincing, but he seems to have neither a motive nor a history of violence or pedophilia. It is well-known that some people will confess to horrible crimes that they did not commit, and indeed there have been other false “confessions” in this very case. Why is it that there is such intense interest in such an old case?

Missing child cases are undeniably tragic, and every decent citizen wants to see a world where things like this do not happen. We lawyers, though, especially those of us concerned with child protection, are charged with coming up with sensible policies to keep kids safe, and it is no easy task. Etan’s case is remembered and pursued more than three decades after his disappearance precisely because the case touched a nerve with the populace and led to policy and behavior changes both large and small. Some of these changes have been good, others are more questionable.

It is important to remember that most kids who are missing from home have not been abducted and harmed by strangers as Etan apparently was. The vast majority of missing juveniles were taken by other family members, often in conjunction with disputes over child custody after a parental divorce or separation. Other cases, especially those involving older juveniles, may involve a child running away or voluntarily leaving in the company of someone the parents consider risky or even dangerous (such as an older, drug-using friend). Reliable statistics are hard to come by, but one set of FBI statistics from the year 2000 indicated that only approximately 5% of child disappearances were likely stranger abductions or kidnappings.

Of course, even five percent is too many abducted children, and nightmare cases like Etan’s have led to prompt public notifications of missing children on radio and television, pictures of missing kids on milk cartons, and organizations devoted to helping missing kids and their families, such as the National Center for Missing and Exploited Children. These are all good changes and, indeed, most children are eventually reunited with their families largely as a result of public awareness and coordinated law enforcement efforts.

There have been other changes in individual behavior, though, that have produced more mixed results. Parents have become much more fearful in the past few decades, and more watchful parenting is only sometimes a good thing. On the one hand, it is much less likely that a child will be abducted by a malevolent stranger if said child never leaves the house unattended by mom or dad. On the other hand, these same children will get less fresh air, exercise and peer social interaction than did children of prior times. While my similarly middle-aged friends and I remember walking home from school and riding bikes far and wide when we were kids, few parents today accord those privileges to their own offspring. If parents are at work during their children’s after school hours, kids either go to structured programs or remain at home doing homework, watching TV and playing video games. This introduces dangers of a different sort. Sedentary lifestyles and excessive screen time may be related to increasing rates of childhood obesity and its attendant health problems. Indeed, recent news reports have also discussed higher rates of diabetes in children and adolescents, a trend almost certainly due in part to changes in diet and exercise patterns among kids. It seems we have exchanged one dire risk for another.

Ultimately, we need to face the fact that there are oh-so-many things from which children need protection, and that neither laws nor individual parents can infallibly guarantee child safety in our dangerous world. It is hard being a parent, hard being a child, and impossible to come up with perfect child protection strategies. But of course, it is important that we all keep trying.

Divorce Is Never Easy

Posted on Categories Family Law, Public3 Comments on Divorce Is Never Easy

Every few years, we can count on hearing social commentary on the alleged erosion of American values.  Predictably, marriage is part of the discussion, and inevitably, the American divorce rate is cited as a cause for concern.  The figure usually cited is that 50% of marriages in the U.S. end in divorce, although the true figure is somewhere between 40% and 50% overall, with higher rates among couples who married at younger ages and lower rates for couples who married at older ages. 

The usual trajectory of this discussion is for someone to claim that we have made divorce “too easy,” that marriages are viewed as throwaway commodities, and that the whole mess started in the 1970s when American states began to adopt no fault statutes.  Prior to that time, one spouse had to claim total innocence in the marital breakdown while proving “fault” by the other party in one of several designated categories – typically adultery, desertion, or physical or mental cruelty. This proof was a painful and distasteful process, and it could both lengthen the divorce process and make it more expensive. 

The adoption of no fault provisions made it possible for one party to obtain a divorce by alleging a ground such as “irretrievable breakdown” of the marriage without specifically attributing the blame to either partner.  Since U.S. divorce rates peaked in the early 1980s after the adoption of no-fault laws, social critics periodically argue that we should return to fault-based statutes to make divorce hard to obtain.

Continue reading “Divorce Is Never Easy”

The Many Faces of Adoption

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Recent news reports describe a new twist in adoption practice. According to the reports John Goodman, a wealthy Florida man, has adopted his 42 year old girlfriend, apparently in an attempt to protect some of his assets against possible losses in a wrongful death action filed against him. Goodman is alleged to have been drunk at the time he ran a stop sign, resulting in an accident that killed another man. Prior to the adoption of his girlfriend, Goodman had set up a trust for his two minor children, which the girlfriend may now share in as an adopted child, and news reports say that, under Florida law, the parents of the deceased man could not claim wrongful death damages from that trust.

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.

Continue reading “The Many Faces of Adoption”

Does Marijuana Possession Equal Child Neglect?

Posted on Categories Family Law, Public3 Comments on Does Marijuana Possession Equal Child Neglect?

According to a recent NewYork Times article, many New York parents who have been caught with marijuana or who have admitted using it have found themselves charged with child neglect and have even, in some cases, lost custody of their children.  In many of these cases, the amounts of marijuana in question have been too small to bring even misdemeanor charges against the parents for possession.  Nevertheless, the parents have been deemed neglectful and their children have been removed by child protective services, which have placed the kids in foster care for days, weeks or months.

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? Continue reading “Does Marijuana Possession Equal Child Neglect?”

When the Witness Woofs

Posted on Categories Criminal Law & Process, Family Law, Judges & Judicial Process, PublicLeave a comment» on When the Witness Woofs

When a New York teenager had to testify against her father, claiming he raped and impregnated her, she shared the witness box with a helper.  According to The New York Times, that helper was Rosie, a specially trained golden retriever who comforts and encourages traumatized or stressed individuals.  Rosie has a highly developed sense of empathy, and will nuzzle, snuggle or lean against someone who is experiencing stress or trauma.  Psychologists sing the praises of service dogs like her, and courts in several states have ruled that witnesses who are especially vulnerable, such as children in sexual abuse cases, may be accompanied by canine helpers.

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.  Continue reading “When the Witness Woofs”

Custody Concerns

Posted on Categories Family Law, Public1 Comment on Custody Concerns

A custody dispute that has recently been in the national news illustrates the convoluted nature of custody law which has led in this particular case to a very troubling outcome.  (I submit that this case is also Exhibit A as to why the public has such a bad impression of law and lawyers, but that is a topic for another day).

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. Continue reading “Custody Concerns”

The Right to Violent Video Games

Posted on Categories Computer Law, First Amendment, U.S. Supreme CourtLeave a comment» on The Right to Violent Video Games

This week, the U.S. Supreme Court struck down a California law banning the sale of violent video games to children.  In Brown v. Entertainment Merchants Association, 564 U.S. 1 (2011), the Court held that the First Amendment right to free speech protects the video games.  As I predicted last November in a blog post on the oral argument in this case, Justice Scalia did not favor upholding the law, and indeed he wrote the majority opinion, which was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  Justice Alito and Chief Justice Roberts wrote a separate opinion, concurring in the judgment, while only Justices Thomas and Breyer dissented.

So what’s to like – or at least protect – about violent video games?  The opinion is clear that video games are protected by the First Amendment.  Although the Court notes that the Free Speech Clause exists primarily “to protect discourse on public matters,” it has long been “recognized that it is difficult to distinguish politics from entertainment, and dangerous to try.”  The Court notes that there are plenty of examples of political commentary or even propaganda to be found in fiction.  The Court goes on to state that last term’s opinion in United States v. Stevens controls.  Stevens struck down a statute that criminalized the creation, sale, or possession of specified types of depiction of animal cruelty, and Scalia summarized the holding thusly: “new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.” (564 U.S. at 3)  Here, the California legislature tried to characterize the regulation of violent video games as dealing with a type of obscenity, and the majority states that violence is different from obscenity, and therefore it is irrelevant that Ginsberg v. New York allowed the state to apply an age-adjusted standard for its restriction on the sale of obscene materials to minors.  The Court says that California tried “to create a wholly new category of content-based regulation that is permissible only for speech directed at children.”  “That,” says the Court “is unprecedented and mistaken.” (564 U.S. at 7)

Continue reading “The Right to Violent Video Games”

Child Support, Contempt of Court, and (Maybe) Lawyers

Posted on Categories Family Law, Public, U.S. Supreme Court31 Comments on Child Support, Contempt of Court, and (Maybe) Lawyers

This week, the US Supreme Court handed down a decision in Turner v. Rogers, a case involving a non-custodial parent who was jailed for nonpayment of child support.  Failure to pay child support is a violation of a court order to pay, and is thus handled as a civil contempt of court case.  A finding of civil contempt in these cases is predicated on nonpayment when the defendant is financially capable of paying, and a defendant can always avoid jail time by either paying the amount owed, or by showing that he is incapable of paying.  Turner had been ordered to pay $51.73 per week for the support of his child and had been sentenced to jail time on several previous occasions for failure to pay.  He was not represented by counsel at the hearing where he received a 12-month sentence, which he served in its entirety.  At the hearing in question, the judge sentenced Turner without making an express finding that Turner was financially capable of paying the support owed.  On appeal, Turner argued that the US Constitution entitled him to counsel at his hearing because, although the contempt proceeding is civil in nature, the potential for incarceration triggered a Due Process Clause-based right to be represented.  Although Supreme Court cases have consistently found that the Sixth Amendment right to counsel in criminal cases does not apply to civil cases (not even civil contempt cases), there was a split in the circuits over whether a defendant has a right to counsel under the Due Process clause in civil contempt proceedings enforcing child support orders.

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. Continue reading “Child Support, Contempt of Court, and (Maybe) Lawyers”

The Sins of the Children Visited – This Time – on Their Parents

Posted on Categories Education & Law, Family LawLeave a comment» on The Sins of the Children Visited – This Time – on Their Parents

What to do about children who fail in school, or who simply fail to attend school at all? Efforts in recent years have focused on the schools themselves and on the teachers, and there have been initiatives to test children for performance in key areas and punish schools or teachers in underperforming schools. A recent New York Times article describes another approach: punishing the parents of underperforming (or under-attending) students. In “Whose Failing Grade Is It?” author Lisa Belkin discusses proposed legislation that endeavors to hold parents accountable for the performance of their offspring. She cites as examples a bill proposed in Indiana that would require parents to volunteer for at least three hours per semester in their children’s schools, as well as a proposed bill in Florida that would grade parents on their level of involvement in their children’s education, said grade to be posted on the child’s own report card. Belkin also notes that some states (she mentions Alaska and California) already have laws in place allowing for punishment of parents of habitual truants by imposing monetary fines or requiring attendance at parenting classes. The Indiana and Florida proposals were not enacted this past year, but their sponsors have vowed to try again in the new legislative session.

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?

Continue reading “The Sins of the Children Visited – This Time – on Their Parents”

Law Gone Wrong: Wisconsin’s Spousal Maintenance Statute

Posted on Categories Family Law, Wisconsin Law & Legal System24 Comments on Law Gone Wrong: Wisconsin’s Spousal Maintenance Statute

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. Continue reading “Law Gone Wrong: Wisconsin’s Spousal Maintenance Statute”