Enforcing Surrogacy Agreements in Wisconsin

Posted on Categories Family Law, Public, Wisconsin Supreme Court1 Comment on Enforcing Surrogacy Agreements in Wisconsin
scan2Let’s say you are part of a married couple in Wisconsin. Due to a leukemia diagnosis and treatment for that disease, your eggs are no longer viable. Doctors agree that you are currently in good health and the disease is “a nonissue,” but your husband and you want children and you cannot bear them. A friend has offered to help you out. This woman has been your friend since grade school; you’ve each participated in the other’s wedding.  You and your husband are godparents to her youngest daughter. Your friend and her husband have five children of their own and have said they are done expanding their family. Her husband even had a vasectomy. Twice in four years she has offered to carry and bear a child for you.  Finally, you agree.

You and your husband visit a lawyer, and your friend and her husband visit a different lawyer.  The gist of the arrangement is that your friend will be artificially inseminated with your husband’s sperm. She will carry and bear the child, but she agrees that you and your husband alone would raise the child and she agrees to terminate her parental rights to allow you to adopt the child.  She would still be able to see the child; after all, you have long been friends and you plan to continue to see each other through social visits. You’re a bit concerned, though, that your friend may have difficulty giving up a child to whom she has biological ties, but she assures you she can do it. Your lawyers create numerous drafts of your agreement and each revises these drafts until finally all of you agree that what is written accurately reflects your understanding of the arrangement.  You all sign this agreement in November.  By this time, your friend is already almost five months’ pregnant.  She is due the following March.

After all of you sign the agreement, your relationship with your friend crumbles, and before the child is born your friend informs you that she will no longer terminate her parental rights to the child, as she had agreed.  Furthermore, she wants to have custody of the child.  In March, she gives birth to the baby.

Now what? Continue reading “Enforcing Surrogacy Agreements in Wisconsin”

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

Posted on Categories Family Law, Public2 Comments on Adoption and the Indian Child Welfare Act

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”

(Marriage) Equality and the Popularity Paradox

Posted on Categories Civil Rights, Constitutional Interpretation, Constitutional Law, Family Law, Federalism, PublicLeave a comment» on (Marriage) Equality and the Popularity Paradox

=Writing for the majority of the Supreme Court in United States v. Windsor, Justice Kennedy stated that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Under this test, the Court struck down a key provision from the so-called Defense of Marriage Act (DOMA), which defined “marriage” and “spouse” for purposes of federal law as referring only to opposite-sex marriages and spouses. The opinion concludes that DOMA’s very object was “to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”

It is almost trite to say that the result in Windsor would have been unthinkable just a few years ago. Yet this observation strikes at the heart of a paradox in the test applied by the Court: It suggests that a group has a realistic chance of being classified as a “politically unpopular group” deserving of protection only after it has acquired a certain level of popularity. Of course, the recent shift in popular opinion on same-sex marriage in the United States has been spectacular. In 2004, bans on same-sex marriage (and in many cases, also civil unions and other contractual protections of same-sex relationships) were adopted by popular vote in all of the eleven States where such bans had been put on the ballot during the general elections. Today, the States that have same-sex marriage bans on the books outnumber the States in which same-sex marriage is legalized by thirty-five to twelve (plus D.C.). Yet starting in 2010 or 2011, nationwide support for same-sex marriage began to exceed opposition to it. The increased popularity of the cause translated into political action: In 2012, for the first time voters approved initiatives to legalize same-sex marriage in three States (Maine, Maryland, and Washington). In that same year, voters in Minnesota voted down a proposed same-sex marriage ban. In sum, it is safe to say marriage equality has become a mainstream cause, albeit one that is still met with ardent opposition. Continue reading “(Marriage) Equality and the Popularity Paradox”

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”

What Katie Holmes’ Split from Tom Cruise Can Teach Us

Posted on Categories Family Law, Legal Practice, Popular Culture & Law, Public3 Comments on What Katie Holmes’ Split from Tom Cruise Can Teach Us

On June 28, actress Katie Holmes allegedly “blindsided” actor Tom Cruise, her husband of five-and-a-half years, by filing for divorce.  Cruise was filming a new movie in Iceland when Holmes filed her divorce papers in New York, where she and their daughter Suri had been living. 

What made this story even more dramatic was the incredibly calculated way in which Holmes is rumored to have plotted her departure and her filing.  Most media (gossip) reports claim that weeks (if not months) prior to June 28, Holmes set the wheels in motion, using pay-as-you-go cell phones to contact attorneys, cutting off ties with joint friends, firing staff that Cruise had hired, and renting a new apartment in New York City in her name only, allegedly telling Cruise that the new apartment had certain features that allowed for more privacy, even as she allegedly was professing her love for Cruise during phone calls with him.  (Stories can be found here, here, here, here, and here, undoubtedly among many other places.)

Why Holmes chose New York rather than California as the venue for her filing could be due to one, or both, of two possible reasons, as speculated by a number of legal sources, none of whom are connected with the Holmes-Cruise case.  First, filings in California are public, while filings in New York are sealed (and Holmes purportedly petitioned for an anonymous caption).  This would allow the couple privacy as they worked through the unraveling of their marriage. Second, it was widely speculated that custody of Holmes’ and Cruise’s daughter would be an issue.  Holmes requested sole legal custody, a move many thought occurred because Holmes (raised a Catholic) wanted to remove the influence of Scientology (Cruise’s professed religion) from Suri’s life, and a New York court is more likely than a California court to grant sole custody where parents cannot agree on child rearing issues.     

Holmes and Cruise settled their divorce in 11 days and though little has been officially released about the terms, most reports agree that Holmes with have primary custody of Suri in New York and Cruise will have liberal visitation rights.  Thereafter, Holmes and Cruise released a joint statement professing their commitment to work together as parents for their daughter’s best interests.   

So, what’s there left to talk about?

What I keep coming back to again and again was not that Holmes decided to end her marriage, but how she went about doing it.  Continue reading “What Katie Holmes’ Split from Tom Cruise Can Teach Us”

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”

Missing Children

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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”