Articles Posted in Family Law

Cornell University law professor Sherry F. Colb considers some pros and cons of legalizing and enforcing gestational surrogacy agreements, as the New York State legislature is currently considering doing. Colb points out that legalizing these agreements would help clean up the patchwork of different surrogacy laws in different states (and thus make the outcome of conflicts more predictable), but she also notes that government endorsement of surrogacy may perpetuate or ignore related issues of equality and born children seeking adoption.

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the Arizona Supreme Court that correctly applies the US Supreme Court’s reasoning in Obergefell v. Hodges to hold that the marital presumption applies to same-sex couples just as it applies to opposite-sex couples. Grossman provides a brief legal history of same-sex marriage and the attendant obligations and benefits and praises the Arizona court for its clear and well reasoned opinion.

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the Idaho Supreme Court taking a narrow view of the parental rights of lesbian co-parents. Grossman explains the background of that case and the patchwork of laws state courts across the United States use to reach inconsistent, and often unpredictable, results with respect to the parental rights of unmarried same-sex partners.

Cornell University law professor Sherry F. Colb comments critically on a California bill that would regulate (but not prohibit) child marriage. Colb argues that the law, which in its current proposed form would allow parents and courts to give consent for a minor child to marry, disregards important norms about children’s rights and the importance of real consent to a sexual relationship.

SMU Dedman School of Law professors Joanna L. Grossman and Dale Carpenter comment on a recent decision by the Texas Supreme Court in which it refuses to give effect to the U.S. Supreme Court’s ruling in Obergefell v. Hodges, which recognized a constitutional right of same-sex couples to marry. Grossman and Carpenter explain why the Texas court’s decision was clearly wrong and why factors other than merits might have (though they should not have) affected the ruling in that case.

SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s recent summary reversal of the Arkansas Supreme Court’s ruling that upheld that state’s attempt to avoid the marriage equality decision in Obergefell v. Hodges. Grossman describes the ways in which some states, such as Arkansas in this case, have tried to avoid, subvert, or limit Obergefell’s holding, and she discusses the Supreme Court’s simple yet clear response, as well as the significance of Justice Gorsuch’s dissent from the per curiam opinion.

SMU Dedman School of Law professor Joanna L. Grossman describes a case in which the Louisiana Supreme Court voided a prenuptial agreement for its failure to abide by strict formalities required in that state. Grossman discusses the history of prenuptial and postnuptial agreements and uses this case and one from New York to illustrate the importance of paying attention to the details when forming these documents.

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the Alaska Supreme Court holding that alienation of affections is not a cognizable claim in that state. Grossman explains the history of so-called heart-balm actions, including alienation of affections, and chronicles their gradual decline over time in most states.

SMU Dedman School of Law professor Joanna L. Grossman and Stanford Law professor Lawrence M. Friedman consider whether a sexual tie should continue to be a component of the institution of marriage. Grossman and Friedman describe the history of marriage and provide two examples where two people who cannot marry each other arguably still deserve some sort of legal protection for their relationships.

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the Virginia Supreme Court holding that the recipient of an engagement ring must return it after the engagement was called off. Grossman explains the legal background of engagement rings and other gifts and provides some sage wisdom to couples wishing to become engaged and eventually to marry.

SMU Dedman School of Law professor Joanna L. Grossman comments on a case in which an Indiana man unsuccessfully sought to disavow paternity of a child born to his wife. Grossman provides a brief explanation of the history of paternity laws and their growing as American families become more diverse.

SMU Dedman School of Law professor Joanna L. Grossman describes a recent decision by a Texas appellate court applying that state’s parentage laws to a situation involving a man who donated his sperm so his friend could become pregnant. Grossman notes that while resolution of the “donor versus dad” question differs from state to state depending on the particular laws that apply, the facts of this case proved straightforward given the language of the Texas statute at issue.

SMU Dedman School of Law professor Joanna L. Grossman comments on some of the parentage cases that have arisen since the U.S. Supreme Court decided in Obergefell v. Hodges that same-sex couples have a constitutional right to marry. Grossman describes the patchwork of cases that generally trend toward greater recognition of same-sex co-parents.

SMU Dedman School of Law professor Joanna L. Grossman discusses the continuing impact of Troxel v. Granville, a seminal case in family law that addressed third-party visitation rights, particularly those of grandparents. Grossman lays out Troxel’s holding and explains how it relates to family law in a larger context, then analyzes a more recent Pennsylvania Supreme Court family law case with facts that the court held distinguished it from the broader statute addressed in Troxel. This decision, Grossman posits, was correct. The legislature in the Pennsylvania case had overstepped its bounds, to the significant detriment of parental rights.

Cornell University law professor Sherry Colb discusses a recent decision by New York’s highest court expanding the definition of parental status to include same-sex partners intending to parent. Colb explains the court’s ruling and discusses a U.S. Supreme Court decision regarding the rights of non-parents that might stand in the New York court’s way.

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the New Hampshire Supreme Court in which it held that a man’s adultery after separating from his wife barred him from seeking a divorce on the grounds on her prior adultery. Grossman provides the historical background of fault and no-fault divorces and explains why the court reached this correct, albeit strange, conclusion.

SMU Dedman School of Law Professor Joanna Grossman comments on a recent decision by the Illinois Supreme Court reaffirming a decades-old decision by the same court that seemed obsolete even at the time. Grossman argues that the recent decision unfairly withholds protections from nonmarital families and does not actually serve the purported public policy purpose of favoring marriage.

SMU Dedman School of Law Professor Joanna Grossman discusses a decision by the highest court of Maryland reversing itself and allowing a claim of de facto parentage. Grossman describes the history of de facto parentage in the United States and explains how the court reached its decision.

Hofstra University law professor Joanna Grossman comments on a recent decision by the U.S. Court of Appeals for the Tenth Circuit reinstating Utah’s criminal law banning bigamy. Grossman explains the facts leading up to the lawsuit, the holding of the district, and the reasoning behind the Tenth Circuit’s reversal.

Hofstra University law professor Joanna Grossman discusses North Carolina’s recent passage of House Bill 2 (HB 2), which purports to take away existing anti-discrimination rights from LGBT people. Grossman explains why the law is unconstitutional and considers whether, in light of the law’s patent unconstitutionality, the law reflects even greater animus by those who passed it.