Family Law Quarterly
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Volume 44, No. 1 (Spring 2010) — 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 (Cricket)

The Need for Reality Testing in Relocation Cases
Patrick Parkinson, Judy Cashmore & Judi Single

This article reports on an interesting study of Australian relocation cases. Relocation disputes are a growing international trend in part because of the increase in international mobility and changing dating patterns resulting from use of the Internet as a social networking tool. The authors look at seventy-one cases and report that in forty-seven of them courts allowed the applicant to move with children. The proportion of cases going to trial in Australia over the issue of relocation is very much greater than in family law disputes generally. Thus, the study demonstrates that relocation disputes are very difficult to settle and disproportionately take up judicial resources. For many relocating parents, victories can be Pyrrhic due to the high costs of litigating the disputes and maintaining contact with the other parent after the move. Travel can be burdensome for parents and also children. Thus, if parents are not able to negotiate their own resolutions, changes in shared parenting arrangements may result from breaches of orders, rather than their variation.

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Pet Custody: Distorting Language and the Law
John DeWitt Gregory

The author shows that pets that are the subject of disputes between divorcing spouses or separating unmarried couples should continue to be characterized as property under a rational legal system. Proposals in the law review literature and halting, early attempts by some courts to place pets in some category other than property, which flirted with a standard derived from the prevailing best-interest-of-the-child doctrine in conventional child custody and visitation cases, are, at best, vanity. Such proposals do violence to both the language of the law of child custody, create uncertainty in a well-established area of divorce law, and offer no discernible prospect of improving the welfare of companion animals.

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The Hague's Online Child Abduction Materials: A Trap for the Unwary
Carol S. Bruch & Margaret M. Durkin

The authors, a law professor and a law librarian, describe two efforts by the Hague Conference on Private International Law to support its 1980 Child Abduction Convention— intergovernmental meetings for States Parties and a website database of Convention cases. They identify important omissions and inaccuracies in the Conference's online materials, and then detail how researchers can best find the information they need. The authors also suggest improvements that would enhance the accuracy and utility of the Conference's online resources and the work products of the Conference's legal staff. Examples are drawn from research problems that became evident in Abbott v. Abbott , 2010 WL 1946730 (U.S. May 17, 2010), a Convention case that was decided while this article was in press.

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French Supreme Court Restates Rules on Jurisdiction, Recognition, and Enforcement of Foreign Decisions in Matrimonial Matters: A New Chance for Old Cases
Alain Cornec & Julie Losson

United States lawyers and their clients dealing with French cases have been infuriated for ages by the so-called "national jurisdiction privilege," which thwarted enforcement in France of foreign judgments. This two centuries old line of French cases has disappeared (II) and the result is good for American matrimonial lawyers. The French Cour de Casation strongly limited the traditional judge-made interpretation of the law, upon which a French citizen always has a right to sue a foreign national and be sued by a foreign national in France solely on the basis of French nationality. This rule blocked enforcement of most foreign judgments. The new rule, which is retroactive, is leading to a complex and evolving case law concerning recognition of judgments, lis pendens, and forum non conveniens (III), and may lead American practitioners to consider reviving former "hopeless" cases.

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Book Reviews

From Dispute Resolution to Peacemaking: Collaborative Divorce Handbook—Helping Families without Going to Court by Forrest S. Mosten
Review by J. Herbie DiFonzo

The author reviews the Collaborative Divorce Handbook and in so doing reflects on collaborative law: what it is and how it should work and how "subversive lawyers such as Woody Mosten are laboring in the vineyard, trying to cultivate lawyers as peacemakers."

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Family Finances: Papers form the 13th World Conference of the International Society of Family Law
Review by Scott Fitzgibbon

The author looks at what happens to family finances when families fracture in dispute, separation, or divorce. Assets and income that formerly were devoted to projects of familial solidarity become objects of competing claims. The law often deploys doctrines based on contract and tort, awarding relief for broken promises and disappointed reliance. The author asks how family law might resist the atomistic impulse and nurture familial relationships. The author acknowledges three principles, most of which are expressed or implied in the papers from the 13th World Conference of the International Society of Family Law, which may guide public policy and the law along lines that foster rather than undermine family solidarity. He encourages governments to avoid disruptive policies and laws, promote family enterprises, and respect and commend the normativities of the solidaristic family.

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2009 Schwab Essay Winners
The Schwab Essay Contest for law students is sponsored by the ABA Section of Family Law.

Inappropriate Injury: The Case for Barring Consideration of a Parent's Homosexuality in Custody Actions
Andrea "Drew" Lehman
This article examines what happens when courts address the rights of homosexuals to parent. It chronicles three prevailing approaches courts use in addressing how the sexual orientation of a parent affects the "best interests" analysis. The article then explores the framework of the theory of injury and the types of harm that courts presume correspond with being raised by a homosexual parent. The article concludes that when the injury to the child is properly framed, it compels a conclusion that consideration of a parent's homosexuality must be barred completely. Finally, the author argues that the current standards assessing the fitness of a gay or lesbian parent are both illegal under the U.S. Constitution and do not truly address what is in the best interest of the children at the center of these disputes. Each test fails because each operates as a vehicle for imparting the same underlying questions of injury that cannot be a subject of inquiry because of their unconstitutional or unconscionable nature.

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In Support of a Gender-Neutral Framework for Resolving Selective Reduction Disputes
Kathleen Lee

This article examines selective reduction disputes and argues that a man's right to choose should be given legal protection equal to that of a woman's. After providing background information on the process of, and need for, selective reduction, this article argues that current abortion laws, which limit legal decision-making rights to women, should not apply in the selective reduction context. It then examines the judicial reasoning behind granting men's preferences additional consideration in frozen embryo disputes, and concludes that this reasoning should be applied to disputes between couples over whether to undergo selective reduction.

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Publication Date: July 2010