Say It Ain’t So

Posted on Categories Family Law, Milwaukee2 Comments on Say It Ain’t So

We like to think that child abusers and child killers are monsters who are easily identifiable and, even more importantly, different from the rest of us “normal” people.  A recent news story in the Milwaukee Journal-Sentinel reminds us that the reality is more complicated. 

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.  Continue reading “Say It Ain’t So”

Law Gone Wrong: Adoption in the Context of Same-Sex Relationships

Posted on Categories Family Law, Wisconsin Law & Legal SystemLeave a comment» on Law Gone Wrong: Adoption in the Context of Same-Sex Relationships

Today’s post is the first 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).  First up is Professor David Papke.  

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. Continue reading “Law Gone Wrong: Adoption in the Context of Same-Sex Relationships”

Not Invited Back

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If you ventured into Barnes & Noble this holiday season, you may have been asked to buy a book to be donated to foster children.   The available options are displayed on shelves behind the cashiers: mostly an array of classic picture books for small children, with a smattering of selections for older grade-schoolers.  I think this comports with the image that pops into the average person’s head when the term “foster child” is uttered.  We imagine frightened, small children who have been rescued from violent or deprived homes and placed with earnest, supportive foster parents.  Of course, we know the reality is more complicated, and that there are plenty of older kids and teenagers in foster care, and that the skills and dedication of foster parents vary considerably.  A recent piece in the New York Times shines a spotlight on another aspect of the foster care system: the children who are in the system not because they were plucked away from their parents by Child Protective Services, but because their parents voluntarily surrendered them to foster care.

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.  Continue reading “Not Invited Back”

Do We Believe in No-Fault Divorce?

Posted on Categories Family Law3 Comments on Do We Believe in No-Fault Divorce?

The Style section of the Sunday New York Times usually has two pages of thumbnail wedding announcements (complete with tiny, charming photos), and one larger box entitled “Vows,” in which one lucky couple’s union is featured.  This past Sunday, the Vows column created a firestorm.   The featured couple – Carol Anne Riddell and John Partilla – proudly described how their romance began when they were both married to other people, and how they met in a pre-kindergarten classroom at the school attended by their children (each has two children from a first marriage).  Although they assert that they kept it platonic for a long while, they eventually declared their love for each other, divorced their first spouses, and celebrated their marriage in the recent ceremony featured in the Times.  They described their life together as full of love, although they concede that they have hurt their former spouses and children, and they profess regret for having done so.

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? Continue reading “Do We Believe in No-Fault Divorce?”

When Watching Over Children Isn’t Enough

Posted on Categories Family Law1 Comment on When Watching Over Children Isn’t Enough

An article in The New York Times last week reported on a recent study done on the effects of child abuse investigations.    The study looked at interview data with 595 children who lived in families known to be at risk for child maltreatment.  The children were interviewed at age 4 and again at age 8; and 164 of the 595 subjects were in families investigated by CPS (Child Protective Services) for possible child maltreatment during that time period.  The researchers looked for differences between the investigated and uninvestigated subjects in seven known risk factors for child maltreatment:  poverty, family functioning, social support, maternal depressive symptoms, maternal education, child anxious or depressive behavior and child aggressive behavior.  They found no significant differences in these factors between those families that had been investigated during the four year period and those families that had not been investigated during that time.  The sole exception was maternal depression: mothers in investigated families had more depressive symptoms than mothers whose families were not investigated.  To put it plainly, these children were at high risk of being maltreated when the study began, and they remained at high risk four years later, whether or not they had experienced CPS investigation.

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.  Continue reading “When Watching Over Children Isn’t Enough”

Legal Legitimization: Recent Court Cases and the LGBTQ Reality

Posted on Categories Family Law, Federal Law & Legal System2 Comments on Legal Legitimization: Recent Court Cases and the LGBTQ Reality



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: Continue reading “Legal Legitimization: Recent Court Cases and the LGBTQ Reality”

No Place to Call Home

Posted on Categories Family Law2 Comments on No Place to Call Home

The editorial section of last Sunday’s Milwaukee Journal-Sentinel included two articles under the heading “Foster Care’s Failure to Launch.”  Both pieces address the situation of teenagers in foster care and the difficulties they face when they “age out” of the system: in other words, they are forced to leave foster care at age 18, even though they are still young, vulnerable, and lacking functioning families.

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. Continue reading “No Place to Call Home”

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

Posted on Categories Constitutional Interpretation, Family Law, Federal Law & Legal System, U.S. Supreme Court, Wisconsin Civil Litigation, Wisconsin Court System, Wisconsin Law & Legal SystemLeave a comment» on “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. Continue reading ““Past Formalities” and “Present Realities”: Why Wendy Isn’t a Parent at All”

Why Do So Many Divorce Litigants Represent Themselves?

Posted on Categories Family Law, Legal Practice, Legal Scholarship6 Comments on 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.

Adoption and Age Discrimination

Posted on Categories Family Law, Legal Scholarship3 Comments on 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.

The Marriage Ref?

Posted on Categories Family Law, Popular Culture & Law2 Comments on The Marriage Ref?

Okay, I was drawn like a moth to a  flame (or more like watching a car accident) to keep on NBC after the closing ceremonies and watch The Marriage Ref last night under the deluded hope that maybe this would be a tv show with dispute resolution in action.  The tag line for this lovely show is that it finally gives you what every couple wants–a winner.  Well, it might do that for couples but it does not do that for television viewers.  First, as Roger Fisher once told me with very wise marital advice, if you think you have won an argument with your spouse (and celebrate afterwards!) you have missed the point.  So, I don’t think that marriage in general is better off with winners and losers.  If you start to treat marriage like football games–or litigation–you might as well file your own litigation in family court.   Second, where do they get these stories (a dead stuffed dog!?!) and who are these couples?  I suppose that reality tv might have completely deadened our sense of privacy and shame but really,  I need to hear about a couple’s argument on a stripper pole?   This is entertainment?  I mean, it is barely more than an argument about intimate marital relations which, let me say again, don’t stay intimate if you share them on tv!  So….no more Marriage Ref for me (unless, of course,  I really need to feel superior in my marriage.)

Cross posted at Indisputably.

Respecting Student Experience

Posted on Categories Family Law, Legal Education2 Comments on Respecting Student Experience

wallsOne of my favorite Christmas gifts this year was a copy of Jeannette Walls’ amazing memoir, The Glass Castle. In it, she describes growing up with her three siblings in a household characterized by chaos and poverty on the one hand, and love and a sense of wonderment on the other.

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.  Continue reading “Respecting Student Experience”