Regent Law Family Restoration

Fetal Pain and Fetal Ultrasound Window Could Restore Families

noreply@blogger.com (Regent Law School) — Wed, 25 Jan 2012 21:04:00 +0000

The Virginia General Assembly will consider two important bills to protect children and their families in Virginia - one considering fetal pain, and another offering a picture into the womb.

Senate Bills SB279 and SB484 add an ultrasound requirement prior to an abortion to Virginia's informed consent laws. Currently, a woman is offered a pamphlet with generic pictures showing gestational age and development. An ultrasound, however, would offer a mother information specific to her child, should she choose to view the images. Furthermore, an ultrasound provides for a "safer" abortion in that the gestational age of the child is known, not guessed, decreasing the medical risks to the mother. The Senate Education and Health committee will vote on this bill this week.

A recent Mason-Dixon poll revealed that this proposal is supported by 54% of Virginia voters and perhaps most notably, 57% of women in Virginia. Adding to the widespread support of this measure, nearly 20 states have passed some version of this commonsense legislation in the past decade. For more information on this proposal, visit the Virginia Family Foundation at www.vafamilyfoundation.org.

Legislation is also now pending in the Virginia General Assembly that would make it illegal to abort an unborn child that is capable of feeling pain. To learn more about the facts regarding unborn children and their experience during abortion see http://www.nrlc.org/abortion/Fetal_Pain/FetalPain091604.pdf). The Senate bill, SB 637, and the House version, HB 1285, seem to already have garnered support on both sides of the aisle because of its implications for both women and their children.

For more information on this proposal visit The Virginia Society for Human Life at www.vshl.org. This important bill, developed for VSHL with the help of the National Right to Life Committee State Legislation team, would protect unborn children from abortion after the point during pregnancy at which it can be scientifically proven that the baby in the womb is capable of feeling pain. The Unborn Child Protection Act has already passed into law in 5 other states, Nebraska, Kansas, Oklahoma, Idaho and Alabama. If passed, Virginia will be the sixth state to pass this life saving law.

Women, Children, and Families Harmed for 39 Years

noreply@blogger.com (Regent Law School) — Mon, 23 Jan 2012 16:52:00 +0000

Abortion harms women, children, and their families, and it has done so for 39 years. This week marks the anniversary of Roe v. Wade (1973), and its harmful effects.

Two women in Alabama are especially feeling those effects right now. See this report below from Birmingham, AL, where both were injured during their respective abortions at a location (which is a legal abortion clinic) that did not have a suitable door through which to wheel an emergency gurney.

This sad state of affairs serves to highlight abortion’s damage on every woman who endures it, every child who dies from it, every family that is thwarted by it, and every culture that is deceived by it. Abortion is an enemy of both personal and family restoration.

Two women injured in Alabama: run-down abortion clinic has no gurney access
BY JOHN JALSEVAC
Mon Jan 23, 2012 12:13 ESTComments (4)Tags: Abortion, Alabama, Kermit Gosnell, Operation Rescue

Birmingham, AL, January 23, 2012 (LifeSiteNews.com) – Two women were transported from a run-down Alabama abortion clinic Saturday, after apparently being injured during botched abortions, according to the pro-

life organization CEC for Life. The incidents took place at the New Women All Women abortion clinic in South Birmingham.

The botched abortions occurred on the day before the 39th memorial of the Roe v. Wade Supreme Court decision that decriminalized abortion in America. That decision promised that women would be insured “safe, legal abortions.”

Paramedics carry an injured woman down the stairs from the Alabama abortion facility.

According to several witnesses, an ambulance first arrived at the abortion facility at 9:31 a.m. but left shortly after without removing any patients from the clinic. At 10:21 a.m., less than an hour after the first ambulance, two more ambulances and another emergency vehicle returned to the abortion clinic. Witnesses said one of the women brought out by the EMTs appeared to be unconscious and bleeding. She was placed in an ambulance and transferred to a medical facility. A second woman emerged with an oxygen mask and was transported to the ambulance in a wheelchair.

Pro-Life blogger Jill Stanek posted dramatic photos taken at the scene that showed that EMT with gurneys were forced to navigate through an alley filled with trash and debris to reach a door that prevented gurney access. The condition of the two women is currently unknown.

“Abortionists love to complain about clinic regulations and portray them as an anti-abortion plot to prevent women from accessing, safe, legal care. This incident proves yet again how untrue those statements really are, and how much regulation is needed to close unsafe mills like New Woman All Woman,’” said Troy Newman, President of Operation Rescue and Pro-Life Nation. “This place is no safer for women that Kermit Gosnell’s ‘shop of horror.”

Last year, Pennsylvania abortionist Kermit Gosnell was charged with the murder of Karnamaya Mongar, who died after unlicensed medical staff administered an overdose of Demerol in November 2009. Lack of gurney access contributed to her death. Since then, several states have passed clinic regulations and increased inspections at abortion clinics. This has led to the closure of two abortion clinics in Illinois, two in Delaware, three in Pennsylvania, and more.

Pro-Life Nation says it is working with Fr. Terry Gensemer of CEC for Life to make sure that complaints against New Woman All Women are filed with the appropriate Alabama regulatory agencies.

Family Friendly Policies Needed in Law Firms to Promote Family Restoration

noreply@blogger.com (Regent Law School) — Sat, 21 Jan 2012 14:19:00 +0000

In a recent report the National Association for Law Placement (NALP) says that law firms may be making strides toward diversification of their employeees, but a family friendly work environment could promote stronger families for their employees, and more accurate representation of society in general as well.

Of particular note was the fact that proportions of minority employees rose in law firms in 2011. The proportions of lawyers who are racial minorities at large U.S. law firms rose in 2011 while those who are women declined slightly from the prior year, according to a report (http://op.bna.com/dlrcases.nsf/r?Open=smgk-8napv9) released Nov. 3, 2011, by the National Association for Law Placement. In 2010, “on the heels of the recession, we saw the figures for women and minority associates dip for the first time since NALP began tracking lawyer demographics at law firms,” said James Leipold, NALP's executive director. “The 2011 figures reveal that a year later, while the figures for minority associates have bounced back, the overall number of women associates actually declined further,” Leipold said. “This is a significant finding.”

The downward trend for female associates is troubling. The newest data suggest that the temporary setback for minority representation found in 2010 has been reversed but that the representation of women among associates has continued to trend downward, the report said. “The loss of women has slowed, but at a time when far too few women make up the partnership ranks of U.S. law firms, this is not a trend that can be ignored,” Leipold said. Among all lawyers, the share of women fell to 32.6 percent from 32.7 percent in 2010, while the proportion of minorities increased to 12.7 percent from 12.4 percent, NALP said, based on data compiled from its 2010-2011 Directory of Legal Employers. Among law firm partners, the share of women rose to 19.5 percent this year from 19.4 percent in 2010, while the proportion of minorities rose to 6.6 percent from 6.2 percent. Meanwhile, among law firm associates, the share of women remained little changed this year at 45.4 percent, while the proportion of minorities rose to 19.9 percent from 19.5 percent in 2010. Minority women continue to be the least represented at law firms, at 2.0 percent of partners and 11.0 percent of associates, NALP said. The directory of 124,000 lawyers at 1,349 offices was compiled in early 2011 and does not reflect staff changes that may have occurred since then.

Women and minorities increased, however, in D.C. and New York. Examining lawyers at a consistent group of “core” office listings in the five largest metropolitan areas represented in the directory, NALP said representation of women and minorities among partners and associates improved only in New York and Washington, D.C., and not in Boston, Chicago, or Los Angeles. In all five cities, most of the changes were small, less than one percentage point. Over the 18 years NALP has tracked diversity at law firms, total gains for women and minorities have been “only marginal,” the group said.

The text of the report on law firm diversity may be accessed at http://op.bna.com/dlrcases.nsf/r?Open=smgk-8napv9 . Law firms have not been known for their family friendliness toward female attorney associates and partners, but that does not mean that such an environment is not possible. In fact, the subject of mothers as great attorney hires has already been addressed in Lynne Marie Kohm, A Fresh Perspective on Women and Motherhood: The Traditional Values Mother Is One of a Few Good Men, 81 WOMEN LAWYERS J. 8 (June 1995); and the matter of hiring married women (and men) to foster firm and societal stability and strength has also been addressed in Lynne Marie Kohm, Does Marriage Make Good Business? Examining the Notion of Employer Endorsement of Marriage, 25 WHITTIER L. REV. 563 (2004).

Family friendly policies in law firms can make a tremendous difference in family restoration, for attorney employees certainly, but also for staff and clients as well, communicating that family strength is significantly important to that firm, an ideal that is well worth upholding for both society, the firm and those it serves.

Parenting is a Major Factor in Family Restoration

noreply@blogger.com (Regent Law School) — Tue, 17 Jan 2012 16:25:00 +0000

The Parental Happiness Curve
MercatorNet
W. Bradford Wilcox and Elizabeth Marquardt
December 19, 2011

In their 2011 State of Our Unions report (When Baby Makes Three: How Parenthood Makes Life Meaningful, and How Marriage Makes Parenthood Bearable [pdf]) W. Bradford Wilcox and Elizabeth Marquardt found, like other researchers, that parenthood is typically associated with lower levels of marital happiness among contemporary couples. But that is not the whole picture by any means, as they explain in the following excerpt from the report, subtitled, "Family Size, Faith, and the Meaning of Parenthood".

Given the negative association between marital happiness and parenthood, one might expect that the least happy husbands and wives would be parents of large families. Not so.

In a striking finding, it turns out that the relationship between family size and marital happiness is not linear, but curvilinear. In other words, according to the Survey of Marital Generosity, the happiest husbands and wives among today's young couples are those with no children and those with four or more children.

Figure A1 reveals that about 18 percent of wives with one to three children are "very happy" in their marriage, compared to 26 percent of wives with no children or four or more children, after controlling for differences in education, income, age, race, and ethnicity. Likewise about 14 percent of husbands with one to three children are "very happy" in their marriage, compared to 25 percent of husbands with no children or four or more children, after controlling for socioeconomic differences. This means that the parents of large families are at least 40 percent more likely to be happily married than the parents of smaller families.

What accounts for the surprisingly higher levels of marital bliss among parents of large families, given the obvious financial, practical, and emotional challenges of raising a large family in contemporary America? This finding seems to be largely a "selection" story, in which particular types of couples end up having large numbers of children, remain married to one another, and also enjoy cultural, social, and relational strengths that more than offset the challenges of parenting a large family. In this case, the Survey of Marital Generosity suggests that fathers and mothers of large families are partly happier because they find more meaning in life, receive more support from friends who share their faith, and have a stronger religious faith than their peers with smaller families.[1]

Take religious attendance. Figure A2 shows that the parents of large families are about twice as likely to attend church, synagogue, or mosque on a weekly basis or more often. It is certainly possible that having a large family can bring some people to their knees! But it is also likely that highly religious men and women feel called by God or encouraged by their religious networks of friends and family members to have large families.[2]

Or take meaning. Figure A3 shows that the parents of large families-especially mothers-are more likely to strongly agree that "my life has an important purpose," compared to their married peers with smaller families or no children. Meaning undoubtedly flows from the additional texture that each child adds to both parents' lives, but it's also likely that men and women who have a strong generative sense that their lives are endowed with meaning are also more willing and interested in having many children.

Couples with large families-specifically those who are more likely to have a strong faith, a sense of meaning in life, and the social support of religious friends-also seem able to handle the challenges of parenting a large family without witnessing a drop in marital quality. The cultural and social resources at their disposal seem to make them happier spouses than peers who do not have these resources.

The role of religious faith seems to be particularly important in moderating the association between family size and marital happiness for women. Analyses of the Survey of Marital Generosity indicate that religious mothers of large families are particularly likely to enjoy high levels of marital happiness, compared both to less religious wives and to other religious wives (with fewer or no children). By contrast, religious fathers of large families are no different from other religious husbands when it comes to marital happiness.

...[M]others of four or more children who are not religious are no happier than their nominally religious or secular peers who have smaller families, and they are less happy than childless wives who do not regularly attend religious services. But religious mothers of four or more children are markedly more likely than other wives-including other religious wives with fewer or no children-to report that they are "very happy" in their marriages. Figure A4 indicates that 59 percent of wives with large families who attend religious services at least weekly report that they are very happy, compared to 38 percent of childless religious wives, 30 percent of childless wives who are nominally religious or secular, slightly more than 25 percent of religious wives who have one to three children, and about 20 percent of married mothers who are nominally religious or secular. ...

A skeptic might speculate that religious mothers of large families have no choice but to put on rose-colored glasses when describing their own marriages, given their practical dependence upon and moral commitment to marriage. Perhaps this is true.

But, given the religious meaning, social support, and normative importance attached to marriage by men in many religious communities, it seems likely that part of what is happening is that religious mothers of large families benefit from having particularly attentive husbands.[3] The Survey of Marital Generosity indicates that their husbands are more likely to engage in regular acts of generosity-such as making coffee in the morning for their wives or frequently expressing affection-and to spend more quality time with their spouses compared to other husbands.

While few Americans wish to have nineteen children, the blend of religious faith and social support depicted in 19 Kids and Counting may come closer to the reality of today's large families than the equally exotic but ultimately tragic way of life brought to the small screen in Jon & Kate Plus 8.

(1) For statistical details on the results discussed in this sidebar, see www.stateofourunions.org/2011/e-ppendix.php.

(2) Sarah R. Hayford and S. Philip Morgan, "Religiosity and Fertility in the United States: The Role of Fertility Intentions," Social Forces 86 (2008): 1163-88.

(3) W. Bradford Wilcox, Soft Patriarchs, New Men: How Christianity Shapes Fathers and Husbands (Chicago: University of Chicago Press, 2004).

GA Issue Alert #5: Protecting Religious Child Placement Freedoms

noreply@blogger.com (Regent Law School) — Fri, 13 Jan 2012 13:18:00 +0000

Below is the Family Foundation’s most recent alert from Victoria Cobb.

Victoria Cobb, President
Tuesday, January 10, 2012

After nearly a year of battle and two different votes, in December the Virginia Board of Social Services finalized regulations for Virginia’s faith based child placement agencies that allow those important ministries to continue their work without government interference concerning their faith principles. Earlier proposed regulations would have required these agencies to adopt children to homosexuals regardless of their faith beliefs concerning family.

We were able to protect these agencies because of the strong efforts of our allies at the Virginia Catholic Conference and leaders from faith-based agencies across Virginia. Additionally, Governor Bob McDonnell and his administration provided leadership and worked to ensure the threatening regulation failed.

But we can’t trust that every future administration will hold those same values. We must protect these ministries legislatively from any future regulatory changes.

For that reason, we are asking the General Assembly to pass legislation that would protect the conscience rights of faith-based child agencies. Senator Jeff McWaters (R-8, Virginia Beach) and Delegate Todd Gilbert (R-15, Woodstock) have agreed to carry the legislation on behalf of the agencies.

In Virginia, faith-based child placement agencies facilitate the majority of adoptions, assisting hundreds of children and families every year. They also understand that it is in the best interest of the child to be adopted into a loving home with both a mother and a father. Social science makes it abundantly clear that having both a mom and a dad provides children the best chance for success.

Unfortunately, homosexual groups have placed the wants and desires of adults ahead of what is best for children. They pushed for the regulatory changes and unapologetically charge that faith-based groups should be coerced into violating their faith principles simply because they assist the state in adoptions, consequently receiving state funding.

The fact is that no adult has the right to adopt and to suggest otherwise is to misunderstand the purpose of adoption. It is not the mission of the state to provide adults with children; it is the obligation of the state to provide orphaned children with the best opportunity for success, to do what is in the best interest of the child. Preferably and whenever possible, that is a home with both a mother and father.

We will urge the General Assembly to put children first and protect the longstanding rights of faith-based child ministries.

Crumbling Families - Are the Courts to Blame?

noreply@blogger.com (Regent Law School) — Mon, 09 Jan 2012 20:35:00 +0000

Click here to read Prof. Kohm's discussion.

Grandparents Restoring Families

noreply@blogger.com (Regent Law School) — Wed, 04 Jan 2012 14:18:00 +0000

The United States Census Bureau estimates that 4.4 million children currently live in households with at least one grandparent. As of 2005, the national percentage of grandparents who were responsible for the upbringing of their grandchildren was 42.8 percent. Nearly half of America’s grandparents are being parents again.

Elizabeth Anderson, Regent Law Juris Doctor 2012 Candidate, has written an excellent article about the work of grandparents around America who are caring for their grandchildren. By providing their grandkids with a strong family, they are sacrificing their own golden years autonomy for the greater good. She writes:

"It’s no secret that the concept of a 'traditional family' has changed dramatically over the years. The breakdown of the nuclear family has had a tremendous impact on society, such that it is no longer uncommon to find a child being raised by a single mother, a homosexual couple, or grandparents. The focus of this article is on the third group: grandparents raising grandchildren.

This phenomenon falls under the category of kinship care. Kinship care is defined as 'any form of residential caregiving provided to children by kin, whether full-time or part-time, temporary or permanent, and whether initiated by private family agreement or under the custodial supervision of a state child welfare agency.' This article examines whether kinship care is dis-incentivized when grandparents who raise their grandchildren do not receive the same government assistance as foster parents."

Anderson discusses the background and history of this dilemma, beginning with a description of this rapidly growing phenomenon from a national viewpoint. Her work then examines state statutes, case law, and biblical principles implicated by grandparents raising their grandchildren. The article then presents potential solutions for state legislatures and grandparents who find themselves faced with the decision of whether a grandchild should be placed in foster care or kinship care with grandparents. Read the entire article here.

Many grandparents are becoming the key to strong family restoration for their grandchildren.

Protecting Elders from Abuse Through Family Restoration

noreply@blogger.com (Regent Law School) — Mon, 19 Dec 2011 19:40:00 +0000

The holiday season means family gatherings, and an opportunity to check in on elderly loved ones. Emily A. Martin, Candidate for Juris Doctor, Class of 2012, has written an excellent article dealing with how to protect elderly family members from abuse through family restoration. She writes,

"As the population of elderly people in America continues to increase, so do the difficulties associated with caring for senior citizens. When people age, they often become unable to care for themselves and require the assistance of in-home caregivers, assisted living facilities, and nursing homes to help them in their day-to-day lives. However, these situations often lead to the physical abuse, intimidation, or punishment of the elderly people who rely on their caregivers.

Often, seniors are unwilling or unable to report the abuse to their friends or family. To make matters worse, family members, nursing home staff, and assisted living facility staff are frequently discouraged from reporting the abuse to the proper authorities. Attorneys who are helping elderly clients and their families plan for the future must be well-educated on the subject of elder abuse, including knowing how to recognize elder abuse and having an awareness of ways to prevent and fight elder abuse. Lawyers can then impart this knowledge to clients, giving them the ability to combat elder abuse when they are faced with it."

Emily's article examines whether legal or social resources for loved ones and family members of senior citizens are adequate when it is suspected that those senior citizens are the victims of physical elder abuse. It explains the definition of elder abuse and the many effects that elder abuse can have on elderly people and their families. It discussed the legal remedies and social resources available to those who wish to fight elder abuse, followed by suggestions for changes that must be made in order to combat and prevent elder abuse in the future.

Read the entire article here. This Christmas protect your elderly family members by finding ways to keep them safe and restore them to your family.

Substantive Due What? (Part II)

noreply@blogger.com (Regent Law School) — Wed, 14 Dec 2011 15:07:00 +0000

Family restoration is necessary for a healthy society. Everyone has been touched by some familial problem whether it is divorce, abortion, or separation. But one of the critical steps in figuring out solutions to our problems is to understand the state of the law regarding a family’s rights vis-á-vis the individual. In modern day America, courts have increasingly upheld the rights of the individual above the rights of a family, twisting many of the Supreme Court’s early 1900 decisions protecting the family into destructive holdings breaking down the family. One of the avenues the Court has used to create and elevate the individual and personal autonomy has been the doctrine of substantive due process.

The majority of Americans, if asked what substantive due process is, would have no idea. In fact, I would even postulate that many law students cannot even give it a definition. That is unsurprising because, in truth, substantive due process is a contradiction in terms. The Due Process Clauses, contained in the 5^th and 14^th Amendments “guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property.”[1] Substantive rights, however, encompass an individual’s various freedoms such as the Freedom of Speech, Religion, and the like. They are the “what” whereas due process is the “how” these rights are guaranteed.[2] Substantive Due Process, then, is a doctrine developed by the Supreme Court that guarantees not only that just processes be used whenever the government is punishing a person or otherwise depriving them of life, freedom or property, but that the 5^th and 14^th Amendments recognize some rights that are so fundamental to an individual’s liberty that the government cannot take them away, regardless of the procedure used.

So that begs the question: how did something that guarantees procedure come to give individuals substantive protections as well? The answer to that question is less than straightforward, but most scholarship suggests that the first sustained commitment to its usage followed from the 1905 case, Lochner v. New York.[3] In Lochner, the Court invalidated a New York statute that limited bakery employees to ten hours per day or sixty hours per week, holding that the law deprived the workers of their “liberty to contract” without “due process of law.”[4] According to one legal scholar, the majority in Lochner essentially supported their rationale with nothing more concrete than tenuous claims to constitutional theory: “Armed with nothing more than the vague . . . language of the due process clause, the Court had claimed for itself the power to invalidate legislative actions that interfered with the Court’s own version of fundamental liberty.”[5] Therefore, in one fortuitous decision, the Court infused the Due Process Clause with substantive meaning, “protecting, in essence, the economic philosophy of laissez faire” and opened the Constitution for 21^st century business.[6]

In the years following Lochner, the Court generally utilized its creative due process jurisprudence in cases dealing with the economic sphere alone. However, as the decision in Lochner did not specifically delineate between economic and non-economic issues the Court sought to expand its application of substantive due process more generally in the area of privacy. In 1919, the Nebraska legislature, highly cognizant of the patriotic zeal of the American public post World War I, passed a law prohibiting anyone from teaching any subject in a language other than English; the law further stipulated that no child could be taught a foreign language until they passed the eighth grade.[7] The legislature claimed it “had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety.” [8] Meyer, a teacher at Zion Parochial School, read to the class using a German Bible as a text for both instructional and religious purposes and was prosecuted under this statute. Thus in Meyer v. Nebraska, the Court faced a rather unpopular dilemma: allow states, under their police powers, to regulate curriculum in private schools, or invalidate a popular state law in the absence of a specific constitutional provision which prohibits such a regulatory intrusion. Turning to its previous decision in Lochner, the Court applied the recently expanded Fourteenth Amendment and firmly established the right of privacy doctrine so frequently applied in cases concerning individual rights cases. Speaking for the majority, Justice McReynolds reasoned that:

Without doubt, [the Fourteenth Amendment] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.[9]

Although these education-oriented cases resemble other Lochner-era cases in analytic form, in content they remain closer to modern privacy case law in that they go beyond the original meaning of the 5^th and 14^th Amendments and imply, if not create, a non-economic individual rights heretofore unknown to American citizens in any codifiable way.[10] Through this case-law foundation, the Court was able to build on the liberty interest reasoning that developed in these early 1900s cases.

In between Lochner and the turbulent era of the 1960s, the Supreme Court further developed the idea that individuals had certain, fundamental, (non-procedural), rights that emanated from the newly expanded Due Process Clauses. These “rights” relied upon the earlier educational cases like Myers, and centered on the idea that individuals have certain zones of privacy. By the 1960s, the Court even conformed criminal law to the newly minted privacy rights—before Katz v. United States, the Court had consistently maintained privacy as a place-oriented and property-based right relaying on the popular aphorism “a man’s home is his castle.”[11] However, in Katz, the Court reshaped the 4^th Amendment’s protection against warrantless searches declaring that the Constitution protects “people, not places.”[12]

Just like the rest of the country with the sexual revolution, the emergence of the Civil Rights Movement, and the feminist empowerment trend the Court was changing. In the 1965 case Griswold v. Connecticut, the Court in a five-four decision struck down a law that criminalized the use of contraceptives asserting the martial right of privacy thus overturning a 1961 decision, which upheld a similar law.[13] In this decision, Justice Douglas attempted to connect the unenumerated privacy right, however tenuously, to those specifically detailed in the Bill of Rights:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by the emanations from those guarantees that help give them life and substance . . . . Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: The enumeration in the Constitution, or certain rights, shall not be construed to deny or disparage others retained by the people.[14]

In Eisenstaedt, a case with facts the Court saw as similar to Griswold, Justice Brennan, writing for the majority, retracted the Court’s previous relationship-oriented limitations on privacy insisting: “If the right of privacy means anything, it is the right of the individual, single or married, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”[15] However, unlike Griswold, the Court’s majority in Eisenstaedt failed to make a distinction between married couple’s right to make reproductive choices and an individual’s choice to use contraceptives. Whereas the Court in Griswold focused upon the privacy rights of a married couple and the idea that the state should not interfere in a couple’s most intimate details, the Court found that there was no rational basis for a state law restricting non-married individuals from using contraception. The Court in Eisenstaedt seemed to overlook their own reasoning for protecting marital choices concerning procreation as Justice Douglas demonstrated in his opinion by asking rhetorically: "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship."[16] In fact, the Court in Eisenstaedt stated that the marital couple is not an independent entity with a single mind or heart, but that it is, instead, two separate individuals with separate emotions and intellects; therefore, the law could recognize an individual’s right to choose contraceptive methods.[17]

With Eisenstaedt, the Court foreshadowed what would become one of the most controversial cases of all time¾ Roe v. Wade and the conjoining case Doe v. Bolton. Infamous for legalizing abortion, these 1973 decisions codified the right to privacy by implicitly stating its fundamental nature, one that could be limited only by a compelling state interest. While acknowledging the situation surrounding abortion rights constitutes an “inherently different [situation] from marital intimacy,” the Court relied on its earlier assertion that “certain areas or zones of privacy . . . exist under the Constitution.”[18] Though again the justices refused to pin down exactly where these rights could be found; they relied upon Justice Douglas’ earlier reasoning in Griswold, declaring that the right could be derived from the “penumbras” of the 1^st, 4^th, 5^th, and 9^thAmendments, if not more explicitly in the 14^th Amendment’s “liberty” clause.[19] Thus, while the Court used its previous substantive due process reasoning from Griswold, a case that upheld a marital privacy right, Roe is more closely analogous to Eisenstaedt because in all reality the Court grounded its decision in the right of an individual, or a woman to choose what she does with her own body. The preeminence of individual rights in the Court’s jurisprudence is even more salient in the more recent case concerning abortion—Planned Parenthood v. Casey. In Casey, the Court found that Pennsylvania’s regulations requiring women seeking abortions to get informed consent and wait twenty-four hour prior to receiving an abortion were not unduly burdensome on a woman’s fundamental right to choose an abortion, but that the regulation requiring spousal notification created an undue burden and was thus unconstitutional.[20]

Thus, in a few short years, the Supreme Court changed the meaning of the 5^th and 14^th Amendments creating substantive due process and realms of protection for individuals upon which the government cannot intrude—like abortion. The problem with substantive due process, is that it gives the judiciary, the only non-elected branch of government, the unqualified right to decide what substantive rights are under the Due Process Clauses and how extensive that protection will be. Once the Court decides a right is fundamental, it becomes part of constitutional law and cannot be changed by an act of Congress, short of a constitutional amendment. In addition, the process the Court uses to determine what fundamental rights are is amorphous. The Court adopts whatever substantive rights it thinks are so basic, natural and fundamental that they must be protected even without reliance on any particular provision of the Constitution. Instead, the Court claims that these fundamental rights are rooted in the Liberty Clause of the 14^th Amendment. The second problem with substantive due process is that once the Court determines what a fundamental right is, it can use the power of judicial review to enforce these rights by reviewing all state and federal legislation to ensure compliance. For example, even though a number of state legislatures in the 1980s and 1990s passed restrictions on abortion processes to protect the health of the mother and unborn life, the Court struck down many of the statues because they interfered with a woman’s liberty interest or right of privacy.[21]

The substantive due process doctrine began in the realm of privacy, as protection for the family and parent’s rights in how they raise their children and make decisions concerning procreation. In the last few decades this same doctrine has been used more often to justify the elevation of individual rights over family and state interests. For example, as discussed above, the Casey decision denied a husband or father’s right to even know that his wife is pregnant and seeking an abortion, and a state’s interest in protecting life is still restricted to time until viability.

In fairness, not every Supreme Court decision concerning substantive due rights has destroyed the rights of families. In Moore v. City of East Cleveland, the Court struck down a local zoning law requiring all members of a dwelling to be members of an immediate family (e.g., grandparents could not live with grandchildren of different parents).[22] The Court, in 2000, protected the rights of parents in Troxel v. Granville by striking down a Washington statute that permitted any person to petition for visitation rights at any time and authorized state superior courts to grant such rights whenever the visitation would serve a child's best interest.[23] The mother, Granville, opposed the amount of visitation time sought by the Troxels, grandparents of her children. The Justices, in explaining their opinion, discussed the rights of parents to make decisions concerning the “care, custody, and control of their children” as a fundamental liberty interest."[24] The Justices recognized that the Court, historically, recognized broad rights and protection for the relationship between parent and child, and it is presumed that parents will act in the best interests of their children.[25] As such, the Court found that the Washington statute would deprive fit parents of their substantive due process right to raise their children and make important parenting decisions by requiring them to prove that visitation was not in the children’s best interest.[26] While these decisions provide hope, favorable family law decisions at the Supreme Court level remain few and far between, and the power the Court wielding in deciding such issues continues to threaten family restoration.

In conclusion, substantive due process has become a dangerous tool in the hands of nine Supreme Court justices who have used it to take highly political social issues outside of the public forum and beyond the reach of elected representatives. Today, matters concerning abortion, homosexual rights, and right to die issues have all reached the Court. Increasingly, both liberal and conservative groups alike have learned that getting a ruling in their favor at the Supreme Court allows them to circumvent legislative processes and change the supreme law of the land. So perhaps Robert Yates writing as Brutus in the Anti-Federalist Papers was correct when he predicted that the Supreme Court would be a source of almost unlimited federal power.[27] Nevertheless, the strengthening of communities and families can be achieved by everyday practices. Despite the harm substantive due process has done to our society, understanding the issues facing families and knowing legal rights can facilitate family reconciliation.

1 Bryan Garner, Black's Law Dictionary, 9th Ed.

²Ralph A. Rossum and G. Alan Tarr, American Constitutional Law 119 (7^th ed., California: Thomson Wadsworth, 2007).

³John Harrison, Substantive Due Process and the Constitutional Text, 83 Va. L. Rev. 493, 493 (1997).

⁴Lochner v. New York, 198 U.S. 45 (1905).

⁵Meyer v. State of Nebraska, 262 U.S. 390 (1923).

⁶Harrison, supra note 3 at 495.

⁷Id.

⁸Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 739, 743 (1989).

⁹Meyer v. State of Nebraska, 262 U.S. 390, 399 (1923).

¹⁰Id.

¹¹ See generally Olmstead v. United States, 277 U.S. 438 (1927). See

¹²Katz v. United States, 389 U.S. 347, 361 (1967).

[13] See also Poe v. Ullman, 367 U.S. 497 (1961).

[14] Griswold v. Connecticut, 381 U.S. 479 (1965) (internal quotation marks omitted).

[15] Eisenstaedt v. Baird, 405 U.S. 438, 453 (1972).

[16] Griswold, 381 U.S. at 486.

[17] Eisenstaedt, 405 U.S. at 453.

[18] Roe v. Wade, 410 U.S. 113 (1973).

[19] Id.

[20] Mary Helen Wimberly, Rethinking the Substantive Due Process Right to Privacy: Grounding Privacy in the Fourth Amendment, 60:1 Van. L. Rev. 283, 301 (2007).

[21] See Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983); Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833 (1992).

[22] Moore v. City of East Cleveland, 431 U.S. 494 (1977).

[23] Troxel v. Granville, 530 U.S. 57 (2000).

[24]Id. at 66.

[25] Id. at 66-67.

[26] Id. at 65-67.

[27] THE COMPLETE ANTI-FEDERALIST (Herbert J. Storing ed., 1981).

Substantive Due What? (Part I)

noreply@blogger.com (Regent Law School) — Fri, 09 Dec 2011 14:29:00 +0000

1 Bryan Garner, Black's Law Dictionary, 9th Ed.

²Ralph A. Rossum and G. Alan Tarr, American Constitutional Law 119 (7^th ed., California: Thomson Wadsworth, 2007).

³John Harrison, Substantive Due Process and the Constitutional Text, 83 Va. L. Rev. 493, 493 (1997).

⁴Lochner v. New York, 198 U.S. 45 (1905).

⁵Meyer v. State of Nebraska, 262 U.S. 390 (1923).

⁶Harrison, supra note 3 at 495.

⁷Id.

⁸Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 739, 743 (1989).

⁹Meyer v. State of Nebraska, 262 U.S. 390, 399 (1923).

¹⁰Id.

¹¹ See generally Olmstead v. United States, 277 U.S. 438 (1927). See

¹²Katz v. United States, 389 U.S. 347, 361 (1967).

[13] See also Poe v. Ullman, 367 U.S. 497 (1961).

[14] Griswold v. Connecticut, 381 U.S. 479 (1965) (internal quotation marks omitted).

[15] Eisenstaedt v. Baird, 405 U.S. 438, 453 (1972).

[16] Griswold, 381 U.S. at 486.

[17] Eisenstaedt, 405 U.S. at 453.

[18] Roe v. Wade, 410 U.S. 113 (1973).

[19] Id.

[20] Mary Helen Wimberly, Rethinking the Substantive Due Process Right to Privacy: Grounding Privacy in the Fourth Amendment, 60:1 Van. L. Rev. 283, 301 (2007).

[21] See Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983); Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833 (1992).

[22] Moore v. City of East Cleveland, 431 U.S. 494 (1977).

[23] Troxel v. Granville, 530 U.S. 57 (2000).

[24]Id. at 66.

[25] Id. at 66-67.

[26] Id. at 65-67.

[27] THE COMPLETE ANTI-FEDERALIST (Herbert J. Storing ed., 1981).

The Unexpected Solution to Europe's Demographic Crisis - Promoting Life and Family

noreply@blogger.com (Regent Law School) — Tue, 06 Dec 2011 14:38:00 +0000

Europe is caught in the icy grip of a demographic winter. Stemming from high abortion rates, low birth rates, and a culture that generally eschews the traditional family, the impact of population shrinkage – coupled with an aging European society – will have a dramatic and negative impact on every aspect of European life. Faced with the failure of current polices, several countries are turning to a surprising solution: pro-life and pro-family values.

The current demographic crisis in Europe is in essence the result of a broader cultural and economic crisis. As the European Union developed, the ideas of “ethical relativism” and materialism continued to grow, and for Europeans, a continued focus on individual freedom of choice and economic rationality led many of them to seek personal fulfilment rather than creating a traditional family and having children. This cultural shift is directly related to the current demographic depression Europe is faced with today.

What is of interest, however, is not the severity of this demographic situation but the recent responses of several European countries--particularly Eastern European countries suffering the greatest. Hoping to reverse these demographic trends before it becomes too late, these countries are recognizing that the traditional family unit and a culture that supports life is essential to the maintenance of a healthy population.

This is very unexpected, however, because for many years in Europe, a pro-family, pro-life policy was never envisaged; in fact, it was taboo. For the longest time, immigration was viewed as the only viable answer to Europe’s demographic crisis. As a 2010 Resolution for the Council of Europe makes clear, “Immigration is the principal reason for positive population growth in several European countries and immigration needs are projected to grow.” However, this demographic debacle can not be solved by immigration alone. By 2025, the EU needs over 150 million immigrants just to preserve current population levels, and faced with the reality that there simply is no immigration to Eastern Europe, the region is now looking to other solutions to solve this problem.

A recently adopted Resolution by the Council of Europe “Investing in family cohesion as a development factor in times of crisis” states that,

“The Parliamentary Assembly recognises the force that the family represents in meeting life’s challenges and considers that the family unit is a fundamental element to aid in the economic recovery, especially during times of adversity and change.”

A Parliamentary Assembly Recommendation calls for member States to “support regional and local policies to strengthen public services in order to bring about a truly family-friendly society and to develop intergenerational relationships within families,” thus recognizing the fundamental value of the family unit.

Eastern European countries like Hungary, for example, have also endorsed promoting the fundamental family unit. Hungary has taken a particularly bold approach by embracing pro-family and pro-life values specifically within the text of its recently-ratified Constitution. The new Constitution highlights the values of family, religion, life, dignity, and states that all citizens have a right to life and human dignity. “Human dignity is inviolable,” the Constitution states. “Everyone has the right to life and human dignity; the life of a fetus will be protected from conception.” The new Constitution also states that “Hungary protects the institution of marriage between man and woman, a matrimonial relationship voluntarily established, as well as the family as the basis for the survival of the nation. Hungary supports child-bearing.”

Furthermore, with the goal of making the process of adoption easier and in the spirit of new Constitution, the Hungarian government launched a daring “anti-abortion” media campaign in May 2011. The posters, placed on Budapest public transport vehicles and in stops, encouraged women to offer their children for adoption instead of choosing abortion. The advertisements featuring an image of a fetus read: “I understand if you’re not ready for me yet, but give me up for adoption instead – PLEASE LET ME LIVE!”

Despite the support for this campaign – and the victory it represents for pro-family and pro-life values – this message, however, was not met without opposition. On June 8th, Viviane Reding, European Commissioner for Justice, said in the European Parliament in Strasbourg that the recent anti-abortion campaign adopted in Hungary did not comply with the rules of the European Union's Progress Programme, which supplied funds for the campaign. In a stifling blow to the effort, the EU called on Hungary to stop the campaign and remove all of the posters printed. Reding warned that failure to comply with this request would result in “financial consequences” for Hungary – a painful reminder of the current value system in Europe.

In Russia there are signs that the government is re-evaluating its stance on the traditional family unit. Russia has long been the epicenter of the demographic crisis in Europe. According to a 2010 census, Russia’s population dropped from 145 million in 2002 to 143 million today, and despite government efforts to reverse the decline in population, the death rate continues to exceed the country’s birth rate. In addition to dismal birth and morality rates, Russia suffers from one of the world's highest abortion rates. This astronomical rate has become a serious concern for the government as it fights to stave off a dramatic population decline.

Abortion in Russia is freely available during the first twelve weeks of gestation, as well as at any point during the pregnancy in cases involving a risk to the life or health of the mother or severe fetal abnormalities. Moreover, abortion is legal up to the twenty second week of pregnancy on certain social grounds, including imprisonment, rape, or spousal disability or death. Abortion is only considered illegal if performed by someone without the proper qualifications.

Taking serious steps to tackle these issues head-on, Russia's Orthodox Church and conservative lawmakers are working in concert with doctors, sociologists, and economists to draft legislation aimed at reducing Russia’s one million plus abortions annually. The proposed bill limits the free “on demand” abortions at government-run clinics and require prescriptions for the “morning-after” pill. It also requires married women seeking an abortion to acquire their husband’s permission, and for teenage girls to obtain consent from their parents. In addition, the bill requires a mandatory waiting period of forty eight hours to one week for abortions—depending on the length of pregnancy. For women seeking to have an abortion, they would read and sign a statement detailing the possible negative consequences that may result, including “the onset of infertility.” The bill requires women six weeks pregnant or more to view their embryo or fetus on ultrasound, hear its heartbeat, and engage in counseling.

Orthodox Church spokesman Archpriest Vsevolod Chaplin, head of the Synodal Department for Church and Society Relations, told a committee of bill drafters, “I hope that very soon we will live in a Russia without abortions.” Echoing this sentiment, Hieromonk Dimitry Pershin, head of the Information and Publishing Directorate of the Synodal Youth Department, advocated prioritizing the care of pregnant women. It should become “the main idea of today’s Russia,” he said. Those involved hope an improved version of the bill will be considered in the parliament in the beginning of June.

Through these efforts Russian legislators are not attempting to rise above their European counterparts, because access to abortion still remains. Nevertheless, they are hoping to bring Russian law up to a standard on par with other member States. For instance, in Belgium women are required to have six days of counseling prior to an abortion and must check in with a doctor to monitor their health in the weeks after the procedure. In Finland, women seeking abortions are provided with information detailing the significant effects of the procedure. Also, abortions are only performed in hospitals, and it is illegal to perform abortions in clinics. Austria and Cyprus do not provide routine abortion procedures in state hospitals, and abortions are not paid for by the government health system. In Denmark and Poland, written parental consent is required if the woman seeking an abortion is a minor.

Russia’s proposed legislation also complies with the European Court of Human Right’s jurisprudence. In the case R.R. v. Poland, the court recognized the broad European consensus on the legitimacy of abortion; however, it did not hold that member States lack authority to control the procedural aspects of abortions. The court noted, “[A] broad margin of appreciation is accorded to the State as regards the circumstances in which an abortion will be permitted in a State.” (§ 187) It is important to note that the Court recognized that member States have the authority to control the procedural aspects of abortions, and in line with the Court’s precedent, the proposed Russian law does just that. Furthermore, as the Court recognised in A.B.C. v. Ireland, there is not a human right to abortion. The Court unambiguously made clear that "Article 8 cannot, accordingly, be interpreted as conferring a right to abortion”. (§ 214)

Today Europe, and much of the world for that matter, faces a demographic crisis that requires a remedy far beyond additional government programs. What is needed, rather, is a dramatic shift in culture – a shift from a culture that has stripped the family from its place of honor to one that places true value on life and family. Increasingly the answer becomes clear: a Christian-inspired culture—one that esteems the covenant of marriage and the sanctity of life—must be embraced if Europe is to experience any lasting positive change to its fragile demographic situation.

[Thanks to guest blogger Anna Ernest, Regent Law J.D. Candidate 2013, current Family Law student, and Russian-American citizen, for this post.]

Abortion, integrity and family restoration: Can you change your mind on abortion?

noreply@blogger.com (Regent Law School) — Fri, 02 Dec 2011 17:48:00 +0000

Can you change someone's mind on abortion? People love to hold their own views, but they also love to be consistent, or at least believe that they are inherently consistent.

When confronted with the logic of choice, many sense a lack of personal integrity in their ideas of choice. This can be convicting, sobering, but also esteem building and encouraging. See the video at http://www.180movie.com/ .

That lack of integrity and personal consistency can be apparent in the politically charged environment of choice. See

http://www.thecloakroomblog.com/2011/10/obamas-war-on-catholics-continues-fealty-to-abortion-trumps-victims-of-sex-trafficking/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+TheCloakroomHumanSexuality+%28The+Cloakroom+%C2%BB+Human+Sexuality%29 for how that atmosphere can trump even the protection of children enslaved in criminal underground sex trafficking rings.

Abortion also has international implications, as in how the international human right to choice is affecting Mexico's abortion position. See the Jurist.org article at http://jurist.org/sidebar/2011/10/carlos-cisneros-mexican-abortion.php.

Family law, abortion, human trafficking, and political consistency still have a personal stake in human integrity and family restoration.

At What Point Do We Become Human? Human Life, Family Restoration, and Some Comparative State Law

noreply@blogger.com (Regent Law School) — Tue, 29 Nov 2011 01:40:00 +0000

The question has perplexed philosophers, theologians and scientists for thousands of years and, more recently, the voters of Mississippi and Colorado regarding state constitutional amendments that would define life as beginning at the moment of conception. Mississippi voters rejected a recent amendment to protect human life from fertilization. [See a power point summary of those events here, thanks to Ruth Maron, Regent Law J.D. Candidate 2013, and current Family Law student.]

Missouri lawmakers, on the other hand, settled the prodigious philosophical dispute on May 14, 2010, when they declared that "[t]he life of each human being begins at conception,” and that “[a]bortion . . . terminate[s] the life of a separate, unique, living human being.” This language added new regulations to Missouri’s 24-hour informed consent law for abortions. MO. ANN. STAT. § 188.027 (West 2011).

Missouri, a state known for its strong pro-life advocacy, has taken many tactical moves both politically and legally to combat Roe v. Wade. See Planned Parenthood v. Ashcroft, 462 U.S. 476 (1983). Although Missouri’s 24-hour informed consent law does not eliminate abortions, it brings awareness to the general citizenry by prominently displaying those words on brochures that abortion providers are required to hand out to every woman seeking an abortion.

To be fair, Missouri doesn’t speak for everyone as to the great question surrounding at what point in our biological development are we infused with a soul? Even Aquinas and Augustine before him, wrestled with concepts first introduced by Aristotle in the fourth century B.C. who believed that a soul could only inhabit a fetus when that fetus began to look human, a timetable he set at 40 days for men and 90 days for women. Regardless of the differences, however, pro-lifers can and should—so long as Roe remains the law of the land—enact abortion regulations, which enlighten the body politic and shift the modern paradigm from death to life.

In the end, Missouri might serve as a model to other states, including Mississippi and Colorado, who desire to combat the adverse effects of Roe and Casey.

Thanks to John Suermann, Regent Law J.D. Candidate 2012, and current Family Law student.

Couple married 72 years die holding hands - Health - Aging - msnbc.com

noreply@blogger.com (Regent Law School) — Wed, 23 Nov 2011 16:05:00 +0000

What can happen in 72 years?

How about 72 hours... Denmark moves to legalize same sex marriage, and Connecticut School Official's have reversed themselves in requiring students to attend a school play with homosexual theme, and NH may legalize civil unions for siblings ... And Chile’s Constitutional Tribunal is set to reject same sex marriage; and a divorced man is suing his wedding photographer for missing the bouquet toss at his wedding in 2003, though his bride is now his ex-wife and has left the country; and a U. S. Senate Committee begins debate on the repeal of the Defense of Marriage Act ; and a NJ judge will consider converting civil union laws to same sex marriage;and a gay couple fights for birth certificate rights in Iowa trial court.

BUT... the New York town clerk of Ledyard who has faith objections to same sex marriage licenses was resoundingly reelected.

AND
This 72-year-married couple illustrate authentic marital oneness. See http://www.msnbc.msn.com/id/44960859/ns/health-aging/t/couple-married-years-die-holding-hands/#.Tp9yjHEZ_UR where her heart still beat through his body minutes after death.

72 years of oneness - hope offered in the midst of family law chaos.

Adoption Fosters Heroic Family Restoration and Redemption

noreply@blogger.com (Regent Law School) — Tue, 22 Nov 2011 01:09:00 +0000

November is National Adoption Month, a family relationship well worth celebrating! Adoption is the bravest choice any young woman or man can make when they are not ready to become parents. By choosing adoption, the best outcome of a crisis situation can be achieved for mother, father and child.

The National Council for Adoption (NCFA) understands that the best interests of children can be served through adoption. In a recent article by Charles T. Kenny, Ph.D., this reality is highlighted.

“After working through their fears and conflicts, birthmothers choose adoption because they believe that it is best for their children. They realize that adoption is not abandonment; it is a loving, responsible act. By choosing what is best for their children, birthmothers see themselves as good mothers. Instead of feeling like bad mothers for abandoning children or “giving them away,” they now begin to see that placing their children with loving couples is what it means for them to be good mothers. They redeem themselves, transforming their mistakes into positive outcomes. Adoption allows them to recover their self-esteem, restore their identity, and renew their dreams and goals.” See the entire article here: https://www.adoptioncouncil.org/infant-adoption/publications.html . The Adoption Advocate is a publication created by NCFA to educate policymakers, families, child welfare specialists, and other interested parties on today's most relevant child welfare issues.

The best interests of women can also be served by adoption. How can women and the general public be comfortable with adoption as an alternative to abortion or crisis parenting? Read the article by Paul Swope, of LifeNet Services that explains this phenomenon, and how to discuss the life of an unborn child or a new baby in terms that will be better received by women in unplanned pregnancies and their families.

Family Expansion on Grey's Anatomy Doesn't Boost Family Restoration

noreply@blogger.com (Regent Law School) — Sat, 19 Nov 2011 19:09:00 +0000

The popular medical drama Grey's Anatomy is no stranger to pushing moral boundaries in its episodes. While the show continues to push its "do what you like" stance on homosexuality, fornication, and divorce, it may be giving its viewers the wrong idea about life in the real world. In a recent episode entitled "Loss, Love, and Legacy" (episode available here: http://abc.go.com/shows/greys-anatomy/video), Seattle Grace Hospital's resident (no pun intended) lesbian couple, Dr. Callie Torres and Dr. Arizona Robbins, discuss legal issues surrounding their daughter Sophia.

Obviously, Sophia is not the biological daughter of both Callie and Arizona. During a brief split between the couple, Callie slept with Dr. Mark Sloan, the hospital's sex-crazed plastic surgeon. In true primetime television fashion, baby Sophia was the result of this "casual" encounter. Here is where the twist comes in.

As far as we know, Mark and Callie are listed on Sophia's birth certificate—after all, this is a medical show, so legal details are simply brushed aside. In this particular episode, Dr. Alex Karev mentions to Arizona, in the operating room of course, that she has no rights to Sophia if anything were to ever happen to their relationship (which is possible given that statistically homosexual unions dissolve after about 2 years). Arizona rushes home after surgery to tell Callie that she "wants a piece of paper" saying that Sophia is hers. Callie replies, "Sure! We'll get you that piece of paper."

Little do Callie and Arizona know that legally a child can only have two parents. So far in this case, Sophia's dance card is full with Callie and Mark. In order for Arizona to be legally considered a parent of Sophia, either Callie or Mark would have to relinquish their parental rights. Sorry Arizona, but that's never going to happen. The writers of Grey's Anatomy live in this fairy tale world where all three (Callie, Mark, and Arizona) co-parent as if this is a totally normal family. Since all three adults care about Sophia, there is no way that one of them would be willing to have his or her parental rights terminated. I'm afraid Arizona is going to have to be the odd (wo)man out in this love nest of Mark, Callie, and Sophia, even if she pursues "that piece of paper" through adoption.

I guess it's true what they say: three's company…four's a crowd.

[Thanks for this blog post provided by Elizabeth Anderson, Regent Law J. D. Candidate 2012, and current Elder Law student.]

Marriage in California Can Be Defended and Restored to the People

noreply@blogger.com (Regent Law School) — Fri, 18 Nov 2011 01:54:00 +0000

Today the California Supreme Court ruled on the Ninth Circuit's request of whether the people of California can retain private legal counsel to defend the people's referendum when their state officials charged with that duty refused to do. This question involved whether Proposition 8 could be defended at all, because California's highest officials would not. The Court issued this reponse:

"...We respond to the question posed by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state's interest in the initiative's validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so."

Read the entire opinion here.

The New York Times article analyzing this ruling is here: http://www.nytimes.com/2011/11/18/us/backers-of-proposition-8-can-challenge-court-ruling.html?_r=1&hp.

Thanks to the public interest law firms who have taken the defense of Proposition 8, and the many lawyers (several of whom are Regent Law graduates) defending marriage.

Marriage in California Can Be Defended, Even if State Officials Refuse to Do So

noreply@blogger.com (Regent Law School) — Thu, 17 Nov 2011 20:15:00 +0000

Read the entire opinion here.

Thanks to the public interest law firms who have taken the defense of Proposition 8, and the many lawyers (several of whom are Regent Law graduates) defending marriage.

Penn State Scandal Highlights Lack of Accountability, Family and Community Breakdown, and Disregard for Safety of Children

noreply@blogger.com (Regent Law School) — Thu, 10 Nov 2011 11:45:00 +0000

The country and Penn State University have been rocked this week with allegations of sexual assault by former Penn State coach Jerry Sandusky. And now the scandal has resulted in the firing of an otherwise amazing man and winningest college football coach, Joe Paterno, ending an incredible 46 year career. (See http://msn.foxsports.com/collegefootball/story/joe-paterno-fired-penn-state-football-coach-president-graham-spanier-child-sex-abuse-scandal-board-of-trustees-meeting-110911?ocid=ansfox11.) 409 victories and 2 National Championships could not overcome this devastation of moral failure.

Sandusky has been charged with over 40 counts of molesting and sexually assaulting at least nine young boys, all having met Sandusky through the Second Mile Foundation, a charity founded by Sandusky in 1977 to improve the lives of disadvantaged children. The assaults occurred over a period of at least 13 years, though the Pennsylvania Attorney General has asked any other victims to please come forward. A Grand Jury released its presentment last Saturday, which described in graphic detail Sandusky's alleged assaults upon these victims. A link to the Grand Jury Presentment can be found here (please be warned of its graphic nature; courtesy of Beaver County Times): http://www.timesonline.com/news/police_fire_courts/jerry-sandusky-grand-jury-presentment/article_2e4c04d6-9f56-5dcb-895d-35a909e4b342.html .

There has been a firestorm of criticism revolving around the case due to what administrators and head football coach Joe Paterno knew or should have known regarding these incidents, and a lack of reporting or even taking minimal action to prevent future incidents. This story by Penn State Alum and current ESPN reporter Dana O'Neil concerning the affect of the scandal on the community reveals the devastation brought on by these events - certainly to the individual victims and their families, but to the entire community as well. Courtesy of ESPN: http://espn.go.com/college-football/story/_/id/7203559/penn-state-nittany-lions-scandal-stuns-community .

Sandusky apparently used his ties to and position of authority in his Second Mile Foundation to draw in and prey upon the youth whose familes trusted him as a community friend. The Second Mile Foundation, a charity designed to improve the lives of disadvantaged boys, provided Sandusky cover for misappropriating parental and community trust to satisfy his wicked desires.

The Second Mile Foundation has this to say on its website about its mission: "Many children face adversity even before they understand how to dream. The Second Mile, founded in 1977 in State College, Pennsylvania, is a statewide non-profit organization for children who need additional support and who would benefit from positive human contact." (http://www.thesecondmile.org/aboutUs.php ) The Second Mile has, despite Sandusky's actions, done amazing things for Pennsylvania's disadvantaged youth. This scandal should not downgrade the good that the organization has done. But, the reasons for the foundation existing in the first place, and the seeming disregard for child safety raises many serious questions.

Second Mile exists because children's home lives were already missing a positive atmosphere in which they could grow. Whether due to divorce, inattention, absence, or abuse, children today find themselves alone more and more. Family breakdown has led these children to seek refuge in the homes of others and to trust individuals who are not their parents. These troubles can be opportunities for predators to exist, build trust, and then take advantage of these children. A recent figure indicated that in as many as 93 percent of child sexual cases, the child knows the person who commits the abuse (See Child Sexual Abuse and Prevention Center: http://www.stopitnow.org/child_sexual_abuse_fact_sheet ).

Parents sometimes have no choice but to partially out-source the raising of their children for many reasons. There is no one to directly blame but the defendant in this case, but the fact that Jerry Sandusky was repeatedly caught inappropriately touching young boys dating back to the 1990's and was still participating in Second Mile events until 2008 is extremely disturbing. It seems as though these boys and their claims were marginalized by the other adults around them, and somehow portrayed as unbelievable when compared with Sandusky. Sandusky came under police investigation in 1998 for an incident with a young boy in a shower and nothing was done to prevent him from having more young boys sleep over at his home. During these sleep-overs, Sandusky would establish trust with the young boys and then "see how far they would let him go," according to the Grand Jury presentment.

Due to the young age of these boys, it is not known exactly who knew what about these incidents. Young boys subjected to these assaults would most definitely experience fear and agitation regarding the abuse and would be unsure as to what to do or who to talk to. Another recent statistic shows that 88% (!) of all sexual abuse cases are never reported to authorities. (See Child Sexual Abuse and Prevention Center, at http://www.stopitnow.org/child_sexual_abuse_fact_sheet ). Sandusky's portrayal of himself as a trusted adult figure to these children would only increase their confusion.

These victims have suffered immense psychological and emotional damage as a result of these assaults and will bear these scars for the rest of their lives. It is an immense tragedy that Jerry Sandusky was allowed to continue to be around children even after one allegation of inappropriateness with a child.

This country cannot simply give a person the benefit of the doubt when it comes to cases of this nature. The protection of our children must be paramount in cases such as this, but so many times, individuals in positions of power are allowed a free pass because of who they are, who they know, or the politically correct climate of our nation. There have been allegations that Sandusky was still allowed on Penn State's campus as recently as last week even though he has been under investigation since 2008. Additionally, after a 2002 incident with another boy in the locker room showers at Penn State, Sandusky's only apparent punishment was to tell him to stop bringing children onto campus. Nothing else was done. That failure in itself is abhorrent, and should raise serious questions about all aspects of this case.

The Penn State scandal highlights the need for trusted moral authorities in the midst of family and community breakdown faced by children. Any disregard for their safety is irresponsible, unacceptable, and cannot be tolerated under any circumstances.

[Thanks to David Vitto, Regent University School of Law Candidate for Juris Doctorate 2013, for this post.]

California's Domestic Partnership Equality Act: Further Blurring the Line Between Domestic Partnerships and Marriage

noreply@blogger.com (Regent Law School) — Tue, 08 Nov 2011 15:53:00 +0000

California Governor Jerry Brown recently signed Senate Bill 651, the Domestic Partnership Equality Act into law. Senator Mark Leno, sponsor of the bill, has stated that, "by maintaining different requirements for domestic partners and married couples, California law is currently inconsistent with the state Supreme Court's ruling that all couples in domestic partnerships be treated equally. This measure would eliminate a number of inequities that exist between marriage and domestic partnerships…" (http://sd03.senate.ca.gov/legislation). SB 651 changes the California Family Code in three important ways that affect marriage and family law in California.

First, Section 297 of the Family Code has been amended to omit any common residence requirement for persons wishing to enter into a Domestic Partnership. Domestic partners are defined as, "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." Before SB 651 was enacted in order for a same sex couple to register for a domestic partnership they must share a common residence. There is no longer such requirement.

The second important change made to the California Family Code is that the age requirement for Domestic Partnerships is removed. Previously, in order to register for a Domestic Partnership both persons had to be 18 years or older. The new law does away with this bright line rule and instead permits minors to enter into a Domestic Partnership with either parental or judicial consent. Though a minor has no legal capacity to enter into a legal relationship like this, he or she can bypass that incapacity by obtaining the consent of a parent or a judge to become a domestic partner, just like marriage.

The third substantive change made by SB 651 is its amendment of Family Code Section 2320. This section governs divorce. The new code allows California courts to grant divorces to same sex couples who were married in California but now reside in a jurisdiction that will not grant them a divorce. Previously, in order to have a California court grant a divorce there was a six month residency in the state and a three month minimum residency in the county requirement. However, this new law terminates any residency requirements for same sex couples who were married in California and now reside in a state that will not grant them a divorce because the state refuses to recognize same sex marriage.

Taken individually these changes may seem minimal, however the larger issue is that these changes represent a further blurring of the lines between marriage and domestic partnerships. The stated goal behind the enactment of these changes was to deal with the inequalities between marriage and domestic partnerships as perceived by proponents of the expansion of marriage. Essentially, erasing the common residence requirement and eliminating the 18 year or older age requirement were supposed to make registering for a domestic partnership look like entering into marriage. This effectively levels the difference between marriage and domestic partnerships, further blurring the distinctions, diluting and weakening marriage and families.

Under existing marriage laws in California in order to enter into a valid marriage the parties must not be already married to another, the persons must not be related by blood or affinity, they must be 18 years or older or obtain parental or judicial consent, they must be of opposite sex (although this is currently being fought over in the case of Proposition 8), and they must be capable of consenting. The current California Family Code governing Domestic Partnerships now reads to look very much like the requirements for marriage. Now in order to register for a Domestic Partnership the persons must not be presently married or registered in another domestic partnership, unrelated by blood, over the age of 18 or obtained judicial or parental consent, capable of consenting, of the same sex, or eligible under Title II of the Social Security Act.

Furthermore, amending the divorce code seeks to further legitimize that California allows same sex marriage. Senator Leno has stated, "Ultimately, domestic partnerships have never and will never offer the same dignity and protections that come with marriage. To ensure people are treated equally under the law, we must restore the freedom to marry for all Californians." See http://www.eqca.org/site/apps/nlnet/content2.aspx?c=kuLRJ9MRKrH&b=6493233&ct=9134403.

The ultimate goal behind the changes in the California Family Code is to make domestic partnerships as close to marriage as possible while California waits for the case on Proposition 8 to be settled in the courts. Proponents of this new bill subscribe to the theory if it looks like a duck and quacks like a duck it is probably a duck. Here the thought is, if domestic partnership looks like marriage and acts like marriage it should be marriage.

Making these changes to the California Family Code affect marriage and family law in California and will effectively overhaul the Family Code to legalize same sex marriage in California, regardless of what the voters chose in Proposition 8, and regardless of what rulings are made in the federal case moving through the Ninth Circuit to the Supreme Court of the United States.

[This excellent post is courtesy of guest blogger Rachel Toberty, Regent Law J.D. Candidate 2013, currently taking Family Law this semester.]

Giving a Second Chance to Couples in Crisis - A Year in the Life of a Troubled Marriage

noreply@blogger.com (Regent Law School) — Fri, 04 Nov 2011 19:09:00 +0000

American society is famous for its unusually high divorce rate. Too often, sociologists and other social scientists who dare tackle the discourse on that social stigma merely present an elaborate listing of the plethora of negative consequences of divorce on individuals and on society as a whole. The legal community has been too often, pointed at as a big contributor to that process of breaking up families. In fact, family law attorneys and especially divorce attorneys are looked upon as the vultures that feed on the carcasses of broken down families. That a possible solution to that brokenness should therefore be spearheaded by members of that same legal community just goes to show how reliable stereotypes are. A new proposal from the legal community focuses on divorce prevention.

A former judge and a family therapist, in hoping to further reduce our divorce rate, proposed The Second Chances Act to end unnecessary divorces. http://conversationcenter.org/propositions/2011-07.pdf

One must first note that this proposition in no way opposes statutory fault-based divorce, but rather targets couples who are uncertain about divorce, or are seeking it because they are unable to communicate effectively – most notably those couples who would pursue divorce due to “irreconcilable differences” or “irretrievable breakdown.” According to the Second Chances Act a recent study showed that “in as many as 40 percent of couples well into the divorce process, one or both of the spouses would be interested in reconciliation services. (In 10 percent of the couples, both spouses are interested but probably haven’t told each other.)”

This alternative proposition makes it very clear that the authors are highly concerned with the incidence of divorce on children, as it jeopardizes their welfare and their socio-economic future.

The highlights of the Second Chances Act are:

- A One year waiting period before starting the divorce proceedings, during which the couple undergoes:

o Discernment counseling, where both parties decided whether to continue towards divorce or agree to a six month period of marital therapy and other services to see if they can restore the marriage, and

o Pre-divorce parenting classes with reconciliation material, this would obviously be aimed at couples with children, to educate them

§ on the ravages of divorce on their children lives,

§ on how to assist their children go through the difficult transition, and

§ provide them the tools that can help reconcile their union.

To the spouse in a hurry to terminate the relationship, given the sanctity of marriage, this blogger thinks that they owe it to the level of commitment they made by marrying, to their children (if any present or future), and to the trauma of divorce on their own lives, to give a good faith effort to save their union.

Besides, what is one year if at the end of it one can leave with a mind at peace? A year in the life of a troubled marriage can make a tremendous difference if that marriage is restored.

Between this blog as a family lawyer’s manifesto for hope in the restoration of the American family, and the Second Chances proposition which aims at salvaging family unity, there might still be hope for our divorce-ridden America yet. The question that remains is whether those in legislative authority will head this cry for help.

[Thanks to Lydie Sop Moguem, Regent Law J.D. Candidate 2013, currently taking Family Law this fall semester.]

Family Restoration Linked with Marriage and Economic Growth Benefits Men, Women and Children

noreply@blogger.com (Regent Law School) — Wed, 02 Nov 2011 13:01:00 +0000

Family restoration is dependent on some key elements in family culture and family law, and it is becoming more evident that marriage, child stability, and money are at the core of that restoration.

Family structure is more important for a child's health and well being than whether his or her birth was planned by parents. Recent empirical evidence from artificial reproduction results tend to reveal that children thrive when they have parental clarity and family stability. The Washington Times printed an article focused on this; find it here at http://www.washingtontimes.com/news/2011/oct/6/family-structure-said-to-trump-wanted-as-key-to-a-/?utm_source=RSS_Feed&utm_medium=RSS.]

And it appears that more evidence illustrates that marriage is the link to that thriving, for children, and for the entire family, particularly regarding economic growth. Stephanie Hallett of The Huffington Post reported on a recent study that "Marriage, quite literally, is the lifeblood of the economy." This, according to a new report released last Monday by the National Marriage Project at the University of Virginia, entitled "The Sustainable Demographic Dividend," examined demographic data, such as census records and consumer expenditure surveys, and concluded that economic growth is dependent on healthy marriages.

She writes, "The University of Virginia researchers found that when people get married and have children, seven sectors of the economy experience tenable growth. The specific sectors are: child care, life and personal insurance, household products and services, health care, food, home maintenance/home services, and pets and toys. By contrast, those industries suffer when marriage and fertility rates are low.

Since the recession hit, marriage and fertility rates have been waning. In 2009, the number of babies born in the U.S. dropped by 2.3 percent. Young Americans want to get married and have kids, says Brad Wilcox, lead researcher on the report, most just can't afford to do it given current unemployment, and underemployment, rates.

'So many American young adults, aged 18 to 46, [indicate] that they'd like two or three kids, or that they'd see two or three kids as the ideal family size. That's particularly striking because in the wake of the recession the fertility rate has come down to slightly below two kids on average,' he says. 'What that suggests is that there's a gap between the number of kids young adults would like to have, and the number they're actually having.'"

The major findings in this report point to the notion that a strong economy depends on strong families. Families provide a future customer base, future workers with important human social capital and they give men an incentive to work harder in the labor force. When either marriage or fertility are waning, in contrast, that can have a negative long-term impact on the economy and on particular industries.

People who get married and have children are more likely to spend money in certain sectors of the economy. In particular, the seven areas highlighted in the report are: child care, life and personal insurance, household products and services, health care, food, home maintenance/home services, and pets and toys. This teds to meant that companies like Procter & Gamble, Northwestern Mutual life insurance, Target, Home Depot, these kinds of companies are more likely to flourish when Americans get married and have kids.

Interestingly, the report highlights the importance of men in families. Wilcox points this out with clarity. "[There is] a real premium that men tend to enjoy when it comes to marriage ... Men who are married tend to earn more than men who are not married. What we think is happening here is that the act of getting married, and often having kids, encourages men to think in terms not just of their own welfare but of the welfare of their families, and to behave more responsibly.... Marriage seems to help men become more responsible, more strategic in their thinking and more oriented towards the long term rather than just having a good time in the present."

He also highlights the benefit of male presence to women in marriage, and the destablizing effect of non-marriage. "[Women are] more likely to accumulate wealth and assets when they get and stay married in part because they're often pooling their income with their spouse, and partially because they and their spouse tend to adopt a more long-term orientation toward their financial well-being rather than a short-term orientation. Marriage is an institution. And Americans often don't recognize the importance of institutions. But there are a set of norms, a set of practices, we associate with marriage. Things like fidelity, for instance, compromise, sacrifice, mutual aid, that we're less likely to associate with things like cohabitation. Of course, the attraction of cohabitation is that it gives people the freedom and flexibility to order their romantic lives as they see fit, but the downside is that that freedom and flexibility don't equal the same degree of commitment or that same degree of long-term orientation. That commitment and that long-term orientation tend to reinforce stability. There's [also] a kind of ritual power to weddings. [They] bring together your friends and your family to see you make a commitment to someone else. [Your friends and family] are implicitly standing not just with you there at that moment in time, but moving forward throughout your relationship. I think that most of us are more committed to, more deliberate about, more hard-working when it comes to our married relationship as compared to our cohabiting relationship, in part because we have stood up before our friends and family and made a commitment about this person and this relationship."

These findings also explain why many couples otherwise headed toward divorce are reconsidering a family split. USA Today tracked the story of one New York couple in the midst of that uncertainty [See http://yourlife.usatoday.com/sex-relationships/divorce/story/2011-09-28/Some-couples-pull-back-from-the-edge-of-divorce/50592266/1]. "Adding to the confusion is the financial reality that a split is expensive. Census data released last week suggest that the economy has indeed caused a dip in divorce. Some experts predict a divorce explosion when the economy improves, but others say the recession may keep some together long enough to work it out.

"There's a whole lot more ambivalence out there than any of us ever thought," says psychologist William Doherty, a marriage and family therapist and professor of family social science at the University of Minnesota. He'll present results of his survey in Washington next month, expanding on his research published last spring.

Family restoration linked with marriage produces economic growth, stable healthy children, and benefits men and women as well.

Marriage Expansion Puts Individuals, Societies, Churches at Risk

noreply@blogger.com (Regent Law School) — Thu, 27 Oct 2011 12:17:00 +0000

For over a decade, Rose Marie Belforte has been a widely-respected Town Clerk in Ledyard, New York. She loves her job and goes out of her way to ensure that local government works well for the citizens of her small town. When New York legalized same-sex marriage, Rose Marie realized that if she had to certify those marriages, it would conflict with her Christian faith. She asked if a deputy could perform any same-sex marriages should the situation arise. Her request was denied, and now her job and career are threatened. See her explain her chilling storry here at https://marriageada.org/donationland/?ref=EB111013DANT.

Over the past several years, many Americans have been bullied, threatened, and even fired from their jobs, for no other reason than because they support traditional marriage. The Marriage Anti-Defamation Alliance is available to defend Americans' religious liberty and free speech rights in such cases.

U.S. News and World Report's Debate Club has posted some important dialogue on the same sex union debate, recently featuring Bryan Brown (Regent Law 1996), the Executive Director of the National Organization of Marriage. Brown discusses the implications of same sex marriage for the United States.

"The real question that faces the nation is this: Should the U.S. Supreme Court or Congress invalidate the marriage laws of 44 states and eviscerate 30 state constitutions in order to redefine marriage to make it genderless? ... It is a fundamental misunderstanding of the marriage debate to think that same-sex marriage would exist in the law alongside traditional marriage as simply a new and different expression of the same marriage institution Americans have always known.

What is at stake is two competing definitions of marriage—the union of any two people regardless of gender, versus the collective understanding of virtually every nation throughout recorded history that marriage is the union of one man and one woman." Read the entire piece at http://www.usnews.com/debate-club/should-gay-marriage-be-legal-nationwide/nationally-legal-gay-marriage-puts-churches-at-risk .

The expansion of marriage toward a genderless standard alters family notions radically. It begins and completes the process of family deconstruction, and makes family restoration impossible.

Topeka, Kansas Repeals Domestic Violence Law - A Move Away from Family Restoration

noreply@blogger.com (Regent Law School) — Mon, 24 Oct 2011 16:21:00 +0000

Topeka, Kansas has determined it will no longer prosecute domestic violence assault cases, and has effectively repealed its domestic violence law. Many jurisdictions, in fact, have simply decided in-house to no longer prosecute domestic assaults cases, but Topeka has gone even one step further by repealing their city ordinance. Read the full article at http://slatest.slate.com/posts/2011/10/12/topeka_kansas_repeals_domestic_violence_law_amid_budget_cuts.html.

Misdemeanor domestic violence cases are disliked intensely by most prosecutors. The reasons for this are understandable from their perspective -- often it is a "he said, she said" situation concerning exactly what happened during the incident. It's not unusual for the victim to decide not to cooperate in the prosecution, and, even when the victim does cooperate it is difficult to get a conviction. For a prosecutor with a limited budget, an overwhelming workload, and a limited number of hours in the day during which cases can be resolved, it is much easier to either grant a diversion to the perpetrator or to decide not to prosecute at all.

The unfortunate result of this is victims who believe that even if the violence against them is reported, they will not be taken seriously, or if they are taken seriously the abuser will receive very little in the way of repercussions. Sadly, both of these assumptions are correct.

The tensions that this creates in a community became all too real a few weeks ago in Kansas when the City of Topeka repealed its ordinance against domestic violence thereby decriminalizing the act. This action on the part of the city was precipitated by the district attorney adopting a policy not to prosecute misdemeanor cases committed within the city limits, placing this responsibility on the city instead, due to a ten percent budget cut in the state agency.

In its desperation to find ways to not have to take on this responsibility, and knowing that the state is statutorily obligated to prosecute domestic violence cases if the city does not, Topeka decided to, in the words of city councilman Chad Manspeaker, "play hardball" with the state." This strategy has apparently worked. Two weeks ago the district attorney's office announced, under tremendous pressure from the media and domestic violence organizations all over the nation, that it would once again begin to prosecute these cases. In truth, they had to: misdemeanor domestic violence is no longer against the law in Topeka and so the city has no authority to prosecute it as a crime, but it is a crime in the state of Kansas - this leaves little choice in who now bears the responsibility.

In a statement recently released by the District Attorney's office we are told that office, "now retains sole authority to prosecute domestic battery misdemeanors and will take on this responsibility so as to better protect and serve our community. We will do so with less staff, less resources, and severe constraints on our ability to effectively seek justice." The take away message: we don't want to do it but have no other choice even though it is a great inconvenience for us to do so. The City of Topeka wins.

The big loser, however, is not the district attorney - rather, it is the victims of abuse who are left feeling even more confused and abandoned by a system that, even at its best, has never worked well for them. They are once again left to feel as though the crimes being committed against them are not being taken seriously.
Domestic violence is a crime in which the perpetrators receive their cues from society at large and are strongly influenced by how much they think will be tolerated. The allegedly "uncontrollable anger" of an abuser becomes surprisingly well controlled when law enforcement officers arrive on a scene. Knowledge that the crime is either not going to be prosecuted at all or that it will only be prosecuted reluctantly will be viewed by them as implied permission.

Where does this leave the victims? Exactly where they are accustomed to being: alone, with little hope, and trying the best they can to navigate a judicial system that does not want them there.

[Thanks to Kathleen Hodge, Regent Law 3L, for this special guest post.]

Family Restoration on Trial at the InterAmerican Court of Human Rights

noreply@blogger.com (Regent Law School) — Tue, 18 Oct 2011 00:54:00 +0000

A recent article out of Washington, D.C. by Tom McFeely published at the Daily News of the National Catholic Register focused on the Chilean human-rights case involving a lesbian mother, and how this case could have a far-reaching international effect on children's best interests. "A case before the Inter-American Court of Human Rights could have negative consequences throughout the Americas for marriage and the family, religious freedom and national sovereignty. At the request of the Alliance Defense Fund, Professor Kohm and her students on behalf of Regent's Center for Global Justice submitted an Amicus Brief on behalf of the children who are the subject of international custody litigation.

The case involves a child-custody claim advanced by a Chilean judge who abandoned her marriage to pursue a lesbian relationship. Chilean father Jaime López Allende has had sole court-ordered custody of his three daughters for the last eight years and is the girls' preferred custodial parent. Despite these facts, the transnational Inter-American Commission on Human Rights has ruled in favor of awarding custody to his ex-wife, Karen Atala. The Washington, D.C.-based commission concluded Chile's courts impermissibly violated the American Convention on Human Rights by denying Atala custody because of her sexual orientation.

The commission's non-binding decision is now before the Inter-American Court of Human Rights, which has authority under the American Convention on Human Rights to issue binding rulings on nations that are parties to the convention. 'I believe the intent here is to fabricate an illegitimate transnationalist jurisprudence to alter the essential foundations of Chilean society — family and marriage,' Bishop Juan Ignacio González Errazuriz of San Bernardo, Chile, told the Register via email. 'This is undoubtedly a very grave concern.'

Bishop González's concerns about the Atala case are shared by the Alliance Defense Fund, an Arizona-based legal organization dedicated to protection of religious freedom, the sanctity of life and marriage and the family. The commission's decision contained four fundamental flaws, according to a legal brief the ADF submitted last month to the Inter-American Court." Read more: http://www.ncregister.com/daily-news/family-and-marriage-on-trial#ixzz1aVNEE6gE.

You can read the Best Interests of the Child Brief here. Family Restoration for three Chilean children is the focus of human rights in the InterAmerican Court. Their future, and the future of global custody litigation are hanging in the balance in this case. For them, this means the preservation of their family.