Articles Posted in Family Law

Justia columnist and Hofstra law professor Joanna Grossman comments on the Supreme Court’s recent decision in United States v. Windsor, holding that the federal Defense of Marriage Act (DOMA)—passed in 1996 in haste to ward off same-sex marriage in the states—is unconstitutional. Grossman chronicles DOMA's history; discusses challenges to DOMA Section Three; and explains why Windsor was the perfect test case for DOMA. She also covers the standing issue, in addition to the merits questions discussed by the majority opinion and the dissent.

Justia columnist and U.C., Davis law professor Vikram David Amar offers thoughts on what we may expect to see in the Supreme Court’s ultimate ruling on Proposition 8. Among other points, Amar cautions that we should not expect a definite resolution of the federal constitutional question of same-sex marriage. He also describes some of the narrower options for which the Court might opt instead, and in some instances, the likelihood of particular options being chosen.

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent Iowa Supreme Court ruling allowing the lesbian co-partner of the biological mother of a child to be listed on that child’s birth certificate. Grossman covers the facts regarding the particular co-partners who prevailed in this landmark decision, and the reasoning that convinced the Iowa Supreme Court—which earlier had legalized same-sex marriage—to side with them and to grant them both the rights to be recognized as the legal mothers of the child whom they are raising together.

Justia columnist and Hofstra law professor Joanna Grossman comments on the validity, in New York, of marriages performed by the Universal Life Church, which ordains its ministers via the click of an online button, and subsequent online approval. New York courts are split on the matter, and as Grossman notes, a recent annulment filing has brought the issue up once again. Her column brings up interesting questions such as, “Who is a minister?” and “What is a Church?”

Justia columnist and Hofstra law professor Joanna Grossman comments on how the legal status of the spouses in a marriage may change if one of them has sex-reassignment surgery—either before or after the marriage, or whether their legal sex must always be the one they had at birth. Grossman covers cases on this topic in Kansas, Texas, Florida and New Jersey, and their outcomes.

Justia columnist and Hofstra law professor Joanna Grossman comments on the recurring legal issue of whether a lesbian co-parent—one who functions as a second parent for her partner’s biological child—can acquire parental or quasi-parental rights that allow her to still enjoy a parent-child relationship after the adults’ relationship ends. Grossman discusses state Supreme Court cases from Kansas, North Carolina and Ohio that take on this very question. She also discusses the question whether a child can have three legal parents (one of whom is a sperm donor and the other two, lesbian co-parents) and notes that no court, so far, has allowed that.

Justia columnist and Hofstra law professor Joanna Grossman discusses a New Jersey case in which the state’s high court held unanimously—and perhaps surprisingly, to some—that the state may not find a newborn to be abused or neglected based solely on evidence of prenatal drug exposure, without evidence of actual harm to the child. Grossman covers the problem of drug use among pregnant women; states’ various approaches to that problem; and the question of when pre-natal drug use should be deemed child abuse under the law.

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and Stanford law professor Lawrence Friedman explain the rule that one who slays his or her spouse cannot then inherit from that spouse. To illustrate the doctrine, Grossman and Friedman focus on a case involving a murder in the British Virgin Islands (BVI), and raise the interesting question of who determines, in this context, if a suspect was actually the slayer. They also explain why not only the slayer, but also the slayer’s children, are barred from inheriting from the murder victim. In addition to the BVI case, Grossman and Friedman cover a long-ago New York case that they deem the grandfather of all slayer cases, as well as a few other, more recent slayer cases.

In Part One of this two-part series of columns, which appeared on December 12, Justia columnist and Cornell law professor Sherry Colb commented on the following question: Do men who father children through rape, and whose victims take their pregnancies to term, have parental rights vis-à-vis those children? If so, that would mean that the rapist father could seek visitation with, or even custody of, those children. Now, in Part Two of the series, Colb examines how and why many state laws seem to support even rapist fathers’ visitation rights, due to the burdens of proof they impose, with alleged rapists often needing to be convicted of rape beyond a reasonable doubt before their visitation rights are refused or terminated. Colb outlines a number of alternative legal approaches that she argues would be preferable to those that currently exist.

In Part One of this two-part series of columns, Justia columnist and Cornell law professor Sherry Colb comments on the following question: Do men who father children through rape, and whose victims take their pregnancies to term, have parental rights vis-à-vis those children? If so, that would mean that the rapist father could seek visitation with, or even custody of, those children. Colb describes both the argument in favor of allowing such men paternal rights, and the argument against doing so. In Part Two of this series, appearing on December 17, Colb examines how and why many state laws seem to support even rapist fathers’ visitation.

Justia columnist and Hofstra law professor Joanna Grossman comments on the two upcoming U.S. Supreme Court cases relating to same-sex marriage. The first case presents the question whether the federal Defense of Marriage Act (DOMA)—one provision of which precludes the federal government from giving effect, for any federal law purpose, to a validly celebrated same-sex marriage—is unconstitutional. The second case raises the issue of the constitutionality—or lack thereof—of a voter referendum in California that eliminated a right of same-sex marriage that the state’s highest court had previously ruled to be constitutionally necessary. Grossman provides detailed background on same-sex marriage developments in the U.S., and then goes on to analyze the issues raised by DOMA and the California referendum, respectively, and to consider the various possible outcomes that the Court might reach in each Supreme Court case. While Grossman notes that the Supreme Court has often tended to rule in ways that bring along straggler states on social justice issues, rather than being ahead of the states as a group, she also notes that this case could be an exception to that pattern.

Justia columnist and Cornell law professor Michael Dorf comments on two questions involving same-sex marriage that the Supreme Court may or may not duck: First, there is the question whether Section 3 of the Defense of Marriage Act (DOMA)—which defines marriage under federal law as opposite-sex marriage, even when state law recognizes same-sex marriage—is constitutionally valid. And, second, there is the question whether California violated the Constitution when it enacted Proposition 8, which prospectively eliminated the possibility of same-sex marriage, and thereby nullified an earlier California Supreme Court ruling that had found a state-constitutional right to same-sex marriage. Dorf considers why the Justices might—or might not—see the cases that raise these questions to be appropriate vehicles for Supreme Court review, and notes what might happen next if the Court does not take up a DOMA case.

Justia columnist and Hofstra law professor Joanna Grossman evaluates the meaning of the votes cast across the nation on the various pro-same-sex marriage referendums. Such referendums passed in Maryland, Maine, and Washington State. Grossman describes the details of the various referendums and other ballot measures relating to same-sex marriage, and notes the split, in each state she discusses, regarding votes for Obama and for Romney, respectively. Grossman explains why such referendums are noteworthy: (1) the common but not necessarily correct idea that this is an issue for the people (not courts) to decide; (2) the fact that the referendums may augur the future of same-sex marriage in America; and (3) the referendums show that young voters tend to be pro-same-sex marriage, and as more and young people reach voting age, there very likely will be even more pro-same-sex marriage voters. Grossman concludes, citing relevant statistics and developments, that among young people, and Americans generally, we are seeing a sea change toward support of gay marriage.

Justia columnist and attorney David Kemp comments on the recent decision by the U.S. Court of Appeals for the Second Circuit striking down Section 3 of the Defense of Marriage Act (DOMA), which defines marriage, for federal purposes, as being between a man and a woman. Kemp discusses why the Second Circuit held that the Constitution’s Equal Protection Clause required the application of intermediate scrutiny. Kemp also notes that the Second Circuit was the first court facing this issue not to also analyze the issue using a lower level of scrutiny. In addition, he discusses a number of other cases decided by courts across the country, that have confronted the issue of what level of scrutiny is proper for classifications based on sexual orientation—and why such cases may well lead to eventual Supreme Court review.

Justia columnist and Hofstra law professor Joanna Grossman discusses the law relating to paternity fraud—that is, to instances when women falsely claim that one man has fathered their child, when in fact, the child's father was another man. Grossman focuses on a Tennessee case that fits that very scenario. There, the man who was falsely led to believe that a child was his, and who consequently paid child support for that child, sued his ex-wife for damages, and won on his claim for intentional misrepresentation of paternity. As Grossman notes, a few other states take approaches similar to Tennessee's. Grossman also covers the approach that the Uniform Parenthood Act (UPA) takes to this issue.

Justia columnist and Hofstra law professor Joanna Grossman discusses an interesting legal issue: If a person enters into a civil union with one person, and then later enters into a marriage with another, is he or she guilty of bigamy? The Massachusetts Supreme Judicial Court said yes, ruling that for this purpose, a civil union is tantamount to a marriage. Grossman sets out the background regarding the advent of civil unions in a number of states, and then explores the bigamy issue. She also notes that because the civil union is still a relatively a novel legal status, unforeseen problems have sprung up, such as the difficulty of getting courts to dissolve such unions—which has led some couples to be stuck in unhappy civil unions without recourse, and thus to simply walk away, with no legal termination of the union. When a member of such a couple then sought to marry, Grossman notes, the bigamy issue posed another thorny legal conundrum for the courts. To make things even more complicated, too, Grossman observes, some states do not recognize other states’ civil unions, and others do.

Justia columnist and Hofstra law professor Joanna Grossman comments on the Supreme Court’s recent family law decision in Astrue v. Capato. As Grossman explains, the case involved a woman’s becoming pregnant with her husband’s sperm—which he had had frozen—after he passed away. The legal question that the situation raised was whether the resulting posthumously conceived children would be deemed to be the husband’s children under the Social Security Act, for purposes of receiving child survivor’s benefits. As Grossman explains, the answer to this question will vary based on the law of the state. Grossman describes some of the complexities of modern parentage law, which derives mostly from state law, but also has federal law aspects. She also explains why the Court ruled as it did, deeming the children at issue not to count as the husband’s children for Social Security survivor’s purposes, and giving six rationales for reaching that result. Grossman also calls upon states to clarify the status of posthumously conceived children, rather than leaving them in legal limbo and out in the cold for Social Security survivor's benefits purposes.

Justia columnist and Hofstra law professor Joanna Grossman discusses the important questions of whether and when a child who is born outside the U.S. can acquire citizenship from a U.S. citizen parent. Grossman focuses especially on the heartbreaking case of U.S. citizen Ellie Lavi, who gave birth to twins in Israel. When Lavi sought U.S. citizenship for the twins, the State Department informed her that the twins would not be deemed U.S. citizens unless Lavi could prove that the donor sperm or egg came from a U.S. citizen. Grossman strongly criticizes the State Department’s decision to, in effect, deem the gamete donors, not Lavi, the babies’ parents for purposes of U.S. citizenship—even though no one disputes that Lavi, a U.S. citizen, gave birth to the twins. Grossman covers the ways in which children can gain U.S. citizenship by descent; describes the more onerous rules for out-of-wedlock children; considers whether treating unwed citizen fathers and unwed citizen mothers differently is discriminatory; and discusses who counts as a “mother” and thus a person able to convey citizenship. Finally, Grossman considers four interesting scenarios regarding the descent of citizenship to children; describes the consequences of non-citizenship; and urges the State Department to deal more fairly and justly with the modern realities of reproductive technology.

Justia columnist and U. Washington law professor Anita Ramasastry addresses the intersection of divorce, digital identities and virtual property. In the course of her analysis, she asks an interesting question that is likely to become more and more prevalent, as virtual property becomes ever more popular and more valuable: When a couple is divorcing, what happens to their virtual property? Ramasastry also notes the role that Facebook has played as a cause or factor in many divorces, and considers the questions of whether, and how, virtual property should be divided in divorce proceedings. Moreover, noting the increasing use of social-networking activity in such proceedings, Ramasastry suggests that it's wise to be less social online—especially regarding new relationships—while divorce proceedings are still ongoing.

Justia columnist and Hofstra law professor Joanna Grossman comments on the situation in Washington State, which is now poised to legalize same-sex marriage. Grossman contends that the Washington State situation is significant not only because Washington State will now become the seventh state to legalize same-sex marriage, but also because—for the first time since the beginning of the same-sex marriage controversy—a state legislature will move from a statutory ban on same-sex marriage, to a statutory authorization of it. Grossman covers Washington State’s path through many different stages of the same-sex marriage controversy; the details of the bill passed by the Washington State senate; and the potential implications of the State of Washington’s experience for the same-sex marriage movement more generally.