Family Law Quarterly
Volume 45, No. 3 (Fall 2011)

Potpourri of Family Law Topics

Table of Contents

Please note that pursuant to the ABA's copyright and reprint policies, these articles may not be disseminated without written permission.

Editor's Note
Linda D. Elrod

International Divorce: Litigating Marital Property and Support Rights

Ann Laquer Estin

This article is adapted from Ann Laquer Estin's International Family Law Desk Book, which the ABA will publish in 2012. The article considers three broad areas: (1) questions of jurisdiction and procedure, including special problems raised by the practice of divisible divorce in which dissolution of a marriage may occur separately from litigation over financial incidents; (2) questions as to the law governing marital property and support rights in cross-border cases and the role of marital agreements in defining these rights; and (3) cross-border recognition and enforcement of marital property and support rights.

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Another Inconvenient Truth: Fragile Families and the Looming Financial Crisis for the Welfare State
Patrick Parkinson

This article examines the emerging financial crisis for governments around the western world arising from the growing fragility of family life and the increase in births to mothers without a partner living in the home. The costs of family instability are not just borne by individuals. They are, to a very significant extent, borne by taxpayers who provide income support for many parents and their children, pay substantial administrative costs in ensuring income transfers through the child support system, and bear more of the costs of caring for the elderly than would be necessary if a greater number of marital and quasi-marital relationships remained intact.

The growing costs to the public purse arising from ex-nuptial births and the breakdown of parental relationships are simply unsustainable when taken together with the existing governmental debt burden, growing environmental problems, aging populations, and the problem of decreased fertility in developed countries. Governments, therefore, need to act in support of programs and services that have the goal of promoting safe, stable, and nurturing relationships between children and adults and to eliminate perverse incentives to choose family forms that may not be optimal as a context for raising children.

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Custody and Visitation Rights in Germany After the Decisions of the European Court on Human Rights
Andreas T. Hanke

This article provides an introduction into child custody laws in Germany and the influence of two decisions of the European Court on Human Rights from 2009 and 2010, Anayo v. Germany and Zaunegger v. Germany, concerning a father’s rights to access his children.

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Financial Provision in England After an Overseas Divorce
James Copson

This article traces three sea changes in English family law that swept away much of the received wisdom and common practice of years before. The first occurred in 2000, with the House of Lords (now the Supreme Court) decision in White v. White, which is now the bedrock decision for asset division on divorce. A second sea change occurred in 2010, with the Supreme Court decision in Radmacher v. Granatino, which immeasurably strengthened the enforceability of prenuptial agreements in England and Wales, rendering them enforceable unless their terms are held to be unfair. The third sea change occurred with the House of Lords decision of Agbaje v. Agbaje, which heralded a new approach to financial provisions in England after a divorce elsewhere, with far-reaching consequences for those around the globe with English connections.

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The Evolution of Legal Parenthood--Family Law and the Indissolubility of Parenthood by Patrick Parkinson

Book Review by Nicholas Bala

Parkinson's central thesis that fatherhood is increasingly “indissoluble” will be controversial to some readers, but his analysis cannot be ignored.  This reviewer recommends this book to anyone with a serious interest in contemporary international trends and developments in family law and policy.  

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2011 Schwab Essay Winners

The Schwab Essay Contest for law students is sponsored by the ABA Section of Family Law.

Black v. Simms: A Lost Opportunity to Benefit Children by Preserving Sibling Relationships When Same-Sex Families Dissolve
Natalie Amato

This article discusses the significant impact of sibling relationships on children's emotional, intellectual, social, and psychological growth.  When states fail to recognize parental rights for gay and lesbian de facto parents, children of same-sex couples may not be permitted to maintain relationships with their siblings.  The author uses the Louisiana case of Black v. Simms as a prism through which to examine how courts may better protect children of same-sex unions. When the law fails to adapt to the changing composition of the American family, it is children who suffer.  Instead, courts should ensure that children are able to maintain important sibling relationships.

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A Global Perspective of Children's Rights: Advocating for U.S.-Citizen Minors After Parental Deportation Through Federal Subagency Creation
Kaitlyn McKenna

On a national level, the objectives of family law and immigration law conflict when the parents of a minor child are being deported but the family decides it is in the child’s best interest to remain in the . An overall systemic response is needed to protect the family unit while maintaining the natural rights of American citizens who remain in the United States after their parents are deported. This article proposes the creation of a federal subagency to the Department of Homeland Security, called the United States Citizen Minors with Deported Guardians (USCMDG), to protect the rights and interests of American children who have been placed in this potentially traumatic situation. This agency will have a staff of professionals, including psychiatrists, social workers, and attorneys to ensure a smooth transition into and out of the foster care system, facilitate the best interests of the child and, by association, the family as well. USCMDG also will serve as a link to maintain contact between the child and the deported family members, and reunify the family when possible.

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Sexting and Louisiana's Punishment for the Children and the Law Intends to Protect from Prosecution Under Child Pornography Statutes
Andrea Erwin Potter

To protect children from prosecution under child pornography statutes, in 2010, the Louisiana legislature enacted a sexting law. However, this article suggests that there may be troubling legal results for the minors the law intends to protect. The new law creates a legal impossibility, does not correct some of the current problems, and now conflicts with the Louisiana Children’s Code. Finally, the act gives judges limited discretion at the disposition stage. The result of this new act is that in eliminating one set of problems, a completely new collection was created.

The author discusses the sexting trend and explicates how some states have enacted specific legislation aimed at sexting. She explores the real life and legal consequences of prosecuting sexting under child pornography statutes and discusses the need for reformation because in the case of child offenders the punishment is not proportionate to the crime.

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Board of Editors

Editor in Chief
Linda D. Elrod

Associate Editors
Robert G. Spector
Nancy Ver Steegh

Board of Editors
Jeff Atkinson
Elizabeth B. Brandt
Jean N. Crowe
John DeWitt Gregory
Robert J. Levy
J. Thomas Oldham
John J. Sampson
Samuel V. Schoonmaker, IV

Reviewing Editors
Susan Appleton
Patricia M. Hoff
Harry D. Krause
Paul M. Kurtz

Managing Editor
Deborah Eisel

2011-2012 Student Editorial Staff
Washburn University School of Law

Student Editor-In-Chief
LeTiffany O. Obozele

Student Executive Research Editors
Samuel R. Feather
Laura E. Windheuser

Student Senior Editors
Laura A. Allison
Corrine E. Johnson
Kelly A. Navinsky-Wenzl
Madeline J. Rogers

Student Junior Editors
Leah N. Bockover
Steven L. Goaslind
Ellen J. Grennier
Benjamin T. Hinkle
Daniel N. Jacob
Jordan P. Seckman

Staff Assistants
Penny R. Fell
Shirley Jacobson