“Past Formalities” and “Present Realities”: Why Wendy Isn’t a Parent at All

On June 24th, the Wisconsin Court of Appeals ruled against a woman seeking legal recognition of her parental rights for the two children she adopted with her ex-partner. The two women adopted their children in 2002 and 2004 from Guatemala. The woman appealing, known in the record as Wendy, stayed at home with the children, while her partner, recorded as Liz, worked as an attorney. Liz was the legal adoptive parent so that the children could be on her healthcare plan. When the couple split up, the two women agreed to an informal custodial arrangement, but Wendy has no legal rights over or to her children. When Liz stopped allowing Wendy to see the children, Wendy lacked any legal recourse.

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.

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Why Do So Many Divorce Litigants Represent Themselves?

In recent years, an increasing number of people seeking divorces have dispensed with lawyers.  What explains this trend?  Judi McMullen and Debra Oswald set out to find some answers by examining a random sample of 567 divorce cases from Waukesha, Wisconsin.  Consistent with national trends, they found high percentages of pro se litigants (43.9 percent of husbands and 37.7 percent of wives).  Given the relative prosperity of Waukesha County, these high rates of self-representation are probably not just a matter of litigants not being able to afford a lawyer.  Rather, the data showed that people tended to represent themselves in the simpler sorts of cases.  When complicating factors like minor children were present, litigants were more likely to obtain counsel. According to McMullen and Oswald, “This suggests that divorce litigants have good, common sense notions about when self-representation is feasible and when it is not.”

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.

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Adoption and Age Discrimination

In recent years, we’ve heard a lot of discussion of interracial adoptions and adoptions by same-sex couples.  But it is possible that the most pervasive form of discrimination in adoption is discrimination against older prospective parents.  3L Sara Mills explores this topic in a new paper on SSRN entitled “Perpetuating Ageism Via Adoption Standards and Practices.”  She argues that age discrimination in adoption may be unconstitutional and proposes a new statute to address the problem.  Here is the abstract:

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.

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