"One Day Divorce" Overlooks Possibility of Working at Marriage in Favor of Judicial Economy

This guest blog post is by Zach Hardister, current Regent University Family Law student:

A new marital dissolution procedure in California carries innovation, but misses the mark on marriage potential.  The following summary was taken from the San Diego Superior Court website regarding the “One Day Divorce” procedure being implemented in San Diego, California:

“The One Day Divorce Program assists parties with divorce cases before the San Diego Superior Court to finish their case and get a final judgment. Eligible parties will receive hands on assistance in finalizing all of the necessary forms to obtain the final Judgment of divorce or separation. Parties who successfully complete the process will go before a judge the same day and will leave court with a final Judgment of Dissolution of Marriage or Legal Separation.”

Essentially, parties to a One Day Divorce must work out all aspects of dissolution or legal separation prior to appearing before the court. The current requirements for the One Day Divorce Program are:

1.  The parties must wait at least 6 months from the date of filing their Petition.
2. The parties must be self-represented.
3. The Summons and Petition must be served on the Respondent.
4. Proof of Service of Summons OR a Response must be filed with the Court.
5. The Parties must reach an agreement on all orders that will be included in the judgment, including: division of property and debts, spousal support, and if they have children, a parenting plan and child support. (This is not a requirement for the petitioner if the Respondent has not filed a response AND if the Respondent does not intend to participate in the program.)

According to California Court officials, nearly 72% of family law litigants are not represented by an attorney. Additionally, even simple divorce cases can take years to exit the system. These facts alone make California an ideal place to launch a pilot program of this nature.

After the filing and service requirements are met, both parties confer with a family law professional who examines their proposed divorce settlement agreement. Guided by the court professional, the parties fill out the forms needed to finalize the divorce right on the spot. If all of the necessary paperwork and disclosures are satisfactory, the litigants can appear in court the same day and leave with a final divorce decree in their possession.

It appears this new idea of the “One Day Divorce” is aimed at revising or extinguishing many of the requirements needed for summary dissolution in California. In the One Day Divorce Program, most (if not all) of the time, money, and resources needed to complete a simple divorce are eliminated. It’s been no secret that California is experiencing some of the worst budget problems in U.S. history. Fortunately, the One Day Divorce Program is completely funded by a grant from the San Diego Bar Foundation. Therefore, the SDBF has single-handedly relieved the San Diego court system from a majority of the financial burdens associated with these types of cases.

In a time when courts across the state are slashing public services because of budget cuts, the San Diego Superior Court is providing a new and innovative solution to simple divorces at no cost to the public. You can compare the differences between California Summary Dissolution and the One Day Divorce Program by looking up California Family Code §2400.

It is relatively easy to see the benefits provided to the court by the Program; however, the benefits which the parties receive are not as easily recognizable. Yes, the parties to a One Day Divorce are saving time and money in the present, but shouldn’t those involved in such a serious proceeding be more concerned about the long term effects? If the allure of avoiding attorneys and saving money isn’t enough to sway couples to the Program, avoiding all the time and trouble of the family court “grinder” surely will be.

Make no mistake; this program is truly innovative and beneficial. However, the glaring negative is that couples are not obligated to make an attempt at working things out before they rush into a dissolution of their marriage. A mere six months is all couples need before they can obtain their decree. Despite all the benefits, the One Day Divorce Program has the potential to make it too easy for a couple to obtain a dissolution. Of course, a great deal of couples are unable to peaceably form an agreement like the one needed for a One Day Divorce. Indeed, for this reason, good divorce attorneys will always have work in San Diego. In any case, this program gives couples a relatively “quick and easy” way out of what should be a lifelong commitment.

In sum, the Program is missing something more meaningful. The results of the One Day Divorce will be exciting to analyze as the program develops, especially if it becomes more widely accepted. Hopefully, there will be revised versions of the program if it catches on (“One Day Divorce [1.0]”?). Perhaps, a version that incorporates a more reconciliatory approach might work even better.  It is reasonable to believe that if either counseling or mediation were added to the requirements, more marriages might be rapidly preserved instead of terminated. California has a strong public policy for preserving marriage; however, it seems clear that the One Day Divorce Program overlooks this well established objective —at least for now.

Transforming Child Welfare for Restoration of Families

The welfare of children has been a concern of Americans for centuries.  That concern manifested itself in the 20th century as a large bureaucracy of administrative agencies who knew better than parents and families what was best for children.  But child welfare reform is taking place now in the 21st century.

While traditional child welfare work involved mostly agency action, Crystal Foster has worked with the Annie E. Casey Foundation on her research for the Child Advocacy Practicum last spring, developing an understanding of how children can be best protected.  See her presentation here.

The 21st century ideas about child welfare maintain child safety as the primary concern.  A major federal law in favor of that trend was the Adoption and Safe Families Act of 1997 (ASFA), promoting the adoption of children into forever families from foster care.  Child Welfare Agencies now use a family-centered, rather than an agency-centered, focus for children.  The focus ensures the safety and protection of children while preserving and supporting families. 
  

This focus brings a team of players together to help determine the least traumatic situation to promote a child's best interests.  That means that caseworkers, family members, the child, friends, relatives, neighbors, teachers, clergy and counselors all work together toward the solution.  It also means that families are a resource, and anytime a child can be cared for by kin and relatives, that is preferred.

Transforming child welfare for the restoration of families for children will take time, but it is well on its way.  Children deserve our best efforts in the 21st century.

Family Vulnerability and the Fruits of Reproductive Technology

Families built with the assistance of reproductive technology are amazing miracles of medical science.  Children who might otherwise not be born are blessed with life because of the pursuit of life for them by their parents.  This technology has also created new frontiers in family law.

A few recent events reveal that the complexity of these miracles ought not be taken lightly.  In some states parents may contract with surrogates to (sometimes conceive and) gestate and carry a baby to birth.  In a recent case that started with intended parents in Connecticut, a surrogate was offered $10,000 to terminate the contracted-for child when she was prenatally diagnosed with some serious medical problems including a cleft palate, and additional heart and brain issues.   Making a decision not to terminate the child forced the surrogate mother to move to Michigan where surrogacy laws there would uphold her decisions to protect the child, who according to CNN was born with birth defects and "an infectious smile."  Read that entire story here.

When two women who were married in Iowa contracted for building a family through artificial reproductive technology (ART) they sued for the right to both be named on the child's birth certificate.  Iowa's high court ruled that both same sex parents must be listed on a birth certificate for a child of ART.  No father is listed for the child.  Read that piece here.

A suggestion for a law school graduation gift for a woman this year was a paid contract for freezing her reproductive gametes.  The thinking was that because she'd be so busy building her career as an attorney she wouldn't have time to build a family simultaneously; this gift would allow her the best of both worlds - freshly frozen younger eggs available for use after she made partner in her law firm.  Read about that here.  Wow.

The most terrifying reproductive technology story in recent weeks, however, has to be discovering that a man and his wife were created with the sperm of the same donor father.  You can read the husband's heart-wrenching decision-making process in an advice column here.

Family building occurs with the assistance of artificial reproductive technology, making miracles happen, yet those miracles are not without moral and legal complexity.  The law may attempt to clarify the legal issues surrounding those decisions, but personal and family vulnerability are guaranteed.  Life may hang in the balance for a child; a marriage may be jeopardized; a beautiful family may be created; but moral decisions will not be absent.  A restorative family mindset allows these situations to be viewed in a new light - one most beneficial to all the parties to protect their lives and their liberties, but one that also understands that what is legally permissible may not always be the best solution.  

Family Restoration Requires Family Security

Personal security for family members is significant for strong societies, and strong family law.  Dr. Mary Manjikian, Fulbright Scholar with the Robertson School of Government at Regent University, on the BLog Women in International Security highlights the importance of legal support for family restoration in the face of abuse and manipulation within marriage.

21st Century UK: Can women still be coerced within marriage?

March 18, 2013

Mary Manjikian
For the past two months, British newspaper readers have been riveted by the sage of Vicky Pryce and Chris Huhne. Here’s the story in brief: Price and Huhne were a British power couple. He was a liberal democratic member of Parliament and Secretary of State for Energy and Climate Change, while Price, an immigrant from Greece, was a high-flying academic who had served as Chief Economist in the Department of Business, Enterprise and Reform. They divorced in June 2010. During the divorce proceedings, Pryce gave a series of interviews alleging that they had had an abusive marriage in which he had coerced her on numerous occasions. According to Pryce, he forced her to sign a legal document saying that she had been the driver of the car when he was arrested for speeding in 2003, claiming that being convicted of such a charge could cost him his career. She also alleged that he pressured her to have an abortion on two occasions – the first time she complied while the second time she refused, going on to have a son.
In the legal trial which followed – both were tried for perverting the course of justice due to the fraud committed when Pryce took the speeding points for her husband – she adopted an unusual legal defense. She claimed that she was not liable for her unlawful behavior because it was an act of marital coercion. The coercion defense dates back to the seventh century in Britain when women had no legal rights or independent social, political or economic identity. In the original case, a husband hid stolen goods in the family home and the wife claimed that she felt forced to go along with his larcenous behavior since she had no independent means or recourse. She was found innocent by reason of marital coercion.
However, in 2013 (some thirteen hundred years later), Pryce lost her trial and now faces jail time, along with her ex-husband. The situation has led to a debate in Britain about the notion of martial coercion. At present, legal analysts claim that the defense is outdated for two reasons: First women today have independent legal status, along with incomes and careers. It is difficult to see how a woman could be coerced, they argue, when she clearly has the option of leaving the marriage. In other words, the law is outdated because marriage is no longer a patriarchal institution.
Second, some analysts argue that it is wrong – and in violation of European Human Rights legislation – to claim that only women can be coerced in an intimate relationship. Thus the law is discriminatory since it does not afford the same protection to everyone– including those in non-traditional partnerships. It improperly privileges both marriage and the rights of women in according this protection to them alone.
The stance advocated by both the jury and the judge in the Pryce case represents a clear shift from traditional 1970’s feminist thinking. Back then, scholars described marriage as an inherently repressive institution which did not benefit women and always oppressed them. Later, marriage was deemed to be an irrelevant institution, which conferred no utility upon the participants, and which should not be treated as in any way special or unique. In current debates about gay marriage, the thinking has changed again – with advocates noting that marriage benefits the participants and society, and that this benefit should be available to all. This argument against marital coercion legislation also represents an end to feminist essentialism arguments which suggested that women were inherently more peaceful or more fragile and that masculine behavior was inherently more belligerent. The new viewpoint suggests that both sexes have the potential for violence, aggression and coercion within marriage and that therefore women should not be afforded special protection.
The problem with both of these arguments is that they ignore other worldwide/global realities. Those who pillory Price and ask why she did not simply leave sound a great deal like those who would blame a woman for being raped.
It is also far too simplistic to argue that coercion no longer exists and that protections are no longer required. Even in Britain, statistics presented by Plan UK note that ten percent of adolescent girls in the UK marry before the age of eighteen. They note that worldwide, “every three seconds a girl becomes a child bride,” with the average age of marriage in some African nations hovering around fifteen. In addition, gendercide of female fetuses still exists – in India, in China and even in the US and the UK. Just this week, the British press reported on women in England who were pressured by their husbands and families to abort their female fetuses. (Even a prominent female physician felt powerless to resist deeply ingrained cultural attitudes and family power structures.) In another high profile case a surrogate was pressured to abort a child with birth defects. In addition, we can still identify situations where husbands will not ‘permit’ their wives to work, and feminist analysts have suggested that domestic violence within marriage represents a sort of internal terrorism.
So how do we reconcile these two conflicting views of marriage and intimate relations? Clearly, the jurors believed that Vicky Price could not have been coerced within the bounds of marriage because she was wealthy and educated. And certainly it upsets the feminist ‘party line’ to believe that even wealthy, educated women might be coerced into making reproductive choices by other people. Similarly, it is disturbing to contemplate that despite strides being made in women’s political representation and education, marriage may still be harmful to at least some women both in the UK and worldwide.
The problem is that in establishing an upper-middle class, educated, white woman as the standard for feminist thinking, we have (once again) failed to focus on the fact that she herself is an anomaly. It would be wrong to adopt universal policies regarding marital coercion or indeed marriage in general by making reference to this one isolated and atypical case. As we think about issues of human security, about the vulnerability of women who are refugees, immigrants and victims of war, we need to acknowledge that women are often uniquely vulnerable and deserving of special protection. Admitting this does not make anyone a bad feminist, nor does it affect the agenda of those who wish to provide more opportunities for women everywhere.
The danger is if Western policymakers continue to see middle-class white women as the ‘typical woman’ and to assume that policy prescriptions in the West will work equally well elsewhere in the world. For example, rolling back legislation which protects women within marriage in the UK might establish a standard which could then become a universal norm. This does not create a positive worldwide precedent.

____________________

Mary Manjikian is an Assistant Professor at the Robertson School of Government in Virginia Beach, VA. She is currently a Fulbright Research fellow at the Institute of Advanced Study at Durham University in the UK. She is the author of three books on international security.
Further Reading:
The Guardian: Marital Coercion
BBC: Martial coercion legal defense explained
The Daily Telegraph: Vicky Pryce trial – Guilty of perverting the course of justice

How the Louisiana Code Protects the Best Interests of In Vitro Fertilized Human Ovum

Family Law students at Regent University School of Law research state codes on myriad topics, among which is current statutes on assisted reproductive technology. The Louisiana Code Section entitled "Human Embryos" codified in part at LSA-R.S. 9:131 requires that all outcomes for embryos be resolved in their "best interests."

The Tennessee case of Davis v. Davis, 842 S.W.2d 588, 590 n.1 (Tenn. 1992) cites to this Louisiana code to determine the most appropriate outcome for the fate of seven frozen embryos of a divorcing couple. ("At the time of trial, only one state had enacted pertinent legislation. A Louisiana statute entitled 'Human Embryos,' among other things, forbids the intentional destruction of a cryopreserved IVF embryo and declares that disputes between parties should be resolved in the “best interest” of the embryo. 1986 La.Acts R.S. 9:121 et seq. Under the Louisiana statute, unwanted embryos must be made available for 'adoptive implantation.'")

Louisiana, through these statutory provisions, affords an incredible amount of legal power to, and protection over, the in vitro fertilized human ovum. Additional sections of that state's code protect embryos:

LSA-R.S. 9:123 ("An in vitro fertilized human ovum exists as a juridical person . . . .").

LSA-R.S. 9:124 ("As a juridical person, the in vitro fertilized human ovum shall be given an identification by the medical facility for use within the medical facility which entitles such ovum to sue or be sued. The confidentiality of the in vitro fertilization patient shall be maintained.").

LSA-R.S. 9:126 ("A court in the parish where the in vitro fertilized ovum is located may appoint a curator, upon motion of the in vitro fertilization patients, their heirs, or physicians who caused in vitro fertilization to be performed, to protect the in vitro fertilized human ovum's rights.").

LSA-R.S. 9:131 ("In disputes arising between any parties regarding the in vitro fertilized ovum, the judicial standard for resolving such disputes is to be in the best interest of the in vitro fertilized ovum.").

What Louisiana has done through these statutes is significant because it shows that states can enforce greater legal protection for the in vitro fertilized human ovum than can be afforded for the gestating unborn child under the landmark Supreme Court cases on abortion, Roe and Casey. This is cruelly ironic, because the ability to afford varying levels of legal protection for the unborn child (from in vitro fertilized human ovums to viable gestating unborn children) is grossly disproportionate to biological development. In effect, greater protection can be afforded for the in vitro fertilized human ovum than can be afforded to the gestating human child (at least prior to "viability").

Louisiana has further moved to foster "embryo adoption."

When states move to statutorily protect human embryos, they do so in the best interests of the child, the legal standard which protects all children, a major key to family restoration. Irony in that application, however, is only available in an abortion context. Louisiana sets the example for how states can legally protect children's best interests from fertilization.

Thanks to current Family Law student Paul Morin, Regent J.D. Candidate 2013 for this excellent post.

Vaccines, Parent's Rights and HPV

When Lisa Kneen's son Caleb was five, his father took him to the emergency room at Spruce Pine Hospital to be treated for an injury he received while riding his bicycle. After he and his father returned to their home in Bakersville, N.C., a lady from the Department of Social Services knocked on their door. Something about the visit did not feel right to Kneen. "I didn’t want to let her in," Kneen said, "but she said she had the right." So she let her in.

A nurse at the ER had noticed that Caleb had not received all of his shots and notified social services.

The Kneen family is one of many families across the United States who opt their children out from getting certain shots like the measles-mumps-rubella-vaccine, or the human papilloma virus [HPV] vaccine. Some families reject vaccinations for health concerns, others have religious reasons.

Currently, families in Virginia who share similar views with that of the Kneen family are forced to go through a lengthy process to opt their children out of receiving the HPV vaccine. Virginia law requires girls to receive the HPV vaccine before the sixth grade to prevent cervical cancer. House Bill 1121, recently introduced by Delegate Kathy J. Byron to the Virginia General Assembly, would have repealed the mandatory HPV vaccine in Virginia. However, CBS reports that it was tabled yesterday until next year’s General Assembly Session by the Senate.

Mandatory vaccinations are a controversial issue, especially among state legislatures. The National Conference of State Legislatures [NCSL] reports that since 2007, Washington, D.C. and at least 41 states have proposed legislation regarding the HPV vaccine. Some legislation required mandatory school vaccinations. However, the NCSL also reports that as of 2011, 20 states have some type of philosophical exemption law that allows people to opt-out.

That philosophical exemption law, or an opt-out of the mandatory vaccination, is often used when families are skeptical of the ingredients and preservatives in vaccines and when they believe there might be a possible connection between vaccines and autism.

Donna Clearman, an independent dietary consultant from Anoka, Minn., said that she does have some health concerns about vaccinations for young infants. "Infants who are breast-fed have an automatic immunity conferred to them through the breast milk and are not in need of vaccinations for at least six months," she said. "The additives and preservatives in vaccination are foreign substances that stress the infant’s immature system."

Clearman believes that individuals should have the right to decide what is best for themselves and their children. "I think breast-fed infants of healthy mothers should be exempt from vaccinations," she said.

Vicki Goodwin, a home-schooling mother from Flagstaff, Arizona, also has concerns about vaccinating her children. After her oldest daughter Kristin had an adverse skin reaction and started screaming upon getting her second polio vaccination, Goodwin did not continue with the other vaccinations. "After this, I decided I wasn’t going to do this again," she said. "I didn’t know how it would affect my future children."

Instead, Goodwin began to research other options and used homeopathic medicines to attempt to build up her daughters’ immune systems. Vaccination ingredients like mercury also caused Goodwin to question its use. She does not believe the government should mandate vaccines. "I think it should be a parental choice," she said. "It should be a family matter."

Many families have concerns about vaccines, but previous concerns about a connection with autism may not be accurate, according to an article published in the Science Insider. Recent consensus in the scientific community shows that there may not be a connection between the measles-mumps-rubella vaccine and autism.

Gastroenterologist Andrew Wakefield, formerly working at a hospital in the United Kingdom, published an article in 2008 linking the vaccine with autism and bowel disease. However, in 2012, the British General Medical Council convicted Wakefield of four counts of dishonesty and 12 counts of endangering children.

Dr. Kim Vore, a Family Practitioner from Washington, Pa., said there is a lot of misinformation about the risk of vaccine. "Vaccines have reduced the number of incidents of disease," she said. "There’s a decrease in the number of people dying and serious side effects…a lot of people are not aware about improved vaccines."

Vore thinks that if there is a public health menace, then some vaccines should be mandatory. However, there should be exceptions if someone had a previous allergic reaction to certain components within the vaccine.

Vore does have some concern about the state passing the laws that would mandate vaccines. Because the vaccines are constantly being looked at, she said, there needs to be some flexibility if science says the vaccine is no longer necessary. "Laws are not always flexible," she said.

Dr. Alan Morrison, an infectious disease physician leader at Inova Fairfax Hospital in Virginia, said that there is a stronger chance that infants are developing autism because women are having babies later on life, rather than getting it from vaccines. "Biology is not as forgiving," he said.

Morrison said there are no vaccines that have zero risk, but incidences of complications are extremely rare. He said in metropolitan areas, where there are some cases of unusual infectious diseases when foreign born residents come to live or visit, the "Instances are great reminders why we’re doing what we’re doing."

Health concerns about vaccines are prevalent among parents who opt-out of the mandatory vaccines, but they have other concerns as well. Professor Lynne Marie Kohm, Professor of Family Law at Regent University said, "Some vaccines are clearly wise and wanted by parents, such as those that have protected children from life-threatening contagious diseases."

She said, however, that when those requests become mandates that assume "self-destructive behavior like drug use and child sexual activity…the government is presuming that parents are no longer wise enough to provide for their children’s best interest."

"My position has always been that this vaccine is overreach on state action into private family matters constitutionally protecting the fundamental rights of parents to direct the upbringing of their own children," Kohm said.

Sheri Craft, from San Antonio, Texas and a mother of 11, said that the government has no authority to force anyone to get vaccinated. "One might argue that they have the duty to protect us from making a ‘bad’ choice and getting a disease if we don’t get vaccinated," she said. "But, that is going beyond the scope of their responsibility. That choice is up to each one of us."

This thoughtful post is from guest blogger Kaitlyn Speer, who is an intern at World Virginia, and a student at Patrick Henry College.

Best Interests of the Child When Parent is a Medical Marijuana Patient?

California estimates the state has 750,000-1,125,000 medical marijuana users residing within its jurisdiction. According to the California Judicial Report in 2011 there were 452,671 family law filings and 383,547 family law dispositions in that state. How does the use of marijuana medicinally, a legal prescription drug in California, affect a parent's ability to act in the best interests of his or her child?

This is not just an issue for California. Estimates based on a Colorado registry reveal that about 1-3% of the population are registered medical marijuana users. Currently 16 states hold favorable laws for medical marijuana, and 18 states have proposals for similar programs. Marijuana is still illegal according to the federal government, but its usage by parents in states that have nonetheless legalized its usage is becoming a concern in custody dispositions.

Rachel Toberty, Regent Law J.D. Candidate 2013, provided a detailed review of this area of law to Family Law students last week. In noting California's statutory code setting forth the factors for determination of the best interests of a child

California Family Law Code Section 3011 is clear:

• In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:

(a) the health, safety, and welfare of the child.

(b) any history of abuse by one parent or any other person seeking custody against any of the following…

(c) the nature and amount of contact with both parents, except as provided in Section 3046.

(d) the habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services…

As a controlled substance, medical marijuana falls within the language in italics above that would protect the best interests of children when their parents might be medical marijuana patients. In an age of parental autonomy, discerning what is best for the child can be easily overshadowed by how an adult/parent may wish to live his or her life.

Children are afforded protection by the law, particularly in custody disputes, when parents have requested judicial intervention into the family in a situation of breakdown. When parents place their liberty interests above the best interests of their child, a judge will intervene to reorder the parenting plan to provide for the child's best as a paramount objective.

Family restoration is well served by parents who understand that providing for their child's best interests may often be in direct conflict to their own self interest, though worth the sacrifice. But when the child's well being is clearly at stake, courts will always act to protect the child, even when a parent chooses his own way, rather than what is best for the child.

Family Restoration for Children in Poverty

Last Friday, Governor Bob McDonnell said something that social scientists have known for quite some time: family fragmentation is costing our culture dearly. University of Virginia sociology professor Brad Wilcox is one of the nation’s foremost experts on the impact of family breakdown and its effect on children. His research, as well as the research of many others, shows one of the primary reasons for poverty in our nation is not the lack of a large enough “safety net,” it is lack of intact families. Prof. Wilcox suggests that childhood poverty could drop as much as 20 percent if Virginia’s marriage rate were increased. The Huffington Post published an article on this as well. "Over the last decade, child poverty surged in 38 states and erased many of the gains in child well-being made in the last 20 years,..." [Read the entire piece at http://www.huffingtonpost.com/2011/08/17/child-poverty-climbs-in-3_n_929905.html.

Children suffer most from family breakdown. Kids who do not live in intact families are more likely to have lower academic performance, are more likely to engage in risky sexual activity, use illicit drugs, and have disciple problems. Intact marriage, on the other hand, can have significant social and economic benefits for everyone involved, promoting better physical health, improving finances, and providing the emotional stability to raise well-adjusted children.

Statistics illustrate the evidence of why government has a fundamental interest in marriage. Those who suggest that “government should get out of marriage” misunderstand the inexorable link between good families and good government. Limited government is good, except when that reduces the marriage incentive, or relegates it to a religious governing body without legal force. The result is ever expanding government programs to provide for children without married parents caring for them.

The Virginia Family Foundation has reported on the Virginia particulars on this issue. "A 2008 study estimated that Virginians pay approximately $776 million per year in safety net programs due to out-of-wedlock births and family fragmentation, a number researchers called very conservative because it didn’t include things like health care costs. Overall, Americans pay at least $112 billion per year in these programs. Already, the Virginia Department of Social Services has recognized the importance of rebuilding families. According to its website, DSS “is developing a system-wide approach to strengthening families that focuses on the following three goals: reducing non-marital births; connecting and reconnecting fathers with their children; and encouraging the formation and maintenance of safe, stable, intact, two-parent families.” As the economy continues to struggle and policy makers look for solutions to our ever increasing national debt, they should not ignore marriage policies. By avoiding these issues they miss an opportunity to bring real solutions to the problem of poverty in our nation. Policy experts are ready and able to make suggestions; it’s high time our elected officials start listening [as Governor McDonnell is]." For more information go to www.votervoice.net/core.aspx?APP=Registration&AID=334&SiteID=-1.

Family Restoration and Law School Best Practices

Practical application and professional identity formation, though recommended by the 2007 Carnegie Report as part of a law school's best practices, is something that most attorneys do not begin to learn until they are in the practice of law.  Here at Regent University School of Law students have been learning both these things for quite some time. Since 1997 students in Family Law have been practically applying what they are learning in class in several ways, and that practice has been simultaneously forming their professional identity. 

Each student is presented with the assignment of drafting a Reconciliation Agreement for a simulated client involved in a troubled marriage.  The client has lost trust in his or her spouse, but does not want to rush to divorce as three small children are involved.  Understanding that their futures are at stake as well, this client requests an attorney who can work with him or her to provide legal remedies to foster family restoration.   More on how this is appropriate and important in law school, and to attorneys in general can be found at http://www.regentfamilyrestoration.blogspot.com/search?q=Reconciliation.  As students work through this simulation, they examine their own objectives in the practice of law, and form convictions on how law should be practiced, particularly regarding families.  Their professional identity is often largely formed and informed by this assignment.  An article has also been published describing this process for attorneys in the Virginia Bar Association Journal at

Understanding and Encouraging Realistic Reconciliation in an Age of Divorce, 32 VBA J. 8 (June/July 2006).

Furthermore, each semester students in Family law must prepare a statutory compilation of state family law regulations, preferably for the jurisdiction in which the student plans to practice law.   This assignment alongside the Reconciliation Agreement assignment often surprises students that their own state code does not foster family breakdown, as they may have heard, but actually seeks to find ways to stabilize and strengthen families.  More on how this affects the students can be found at http://regentfamilyrestoration.blogspot.com/2010/01/state-family-codes-can-restore-families.html.

Students are able to learn, form their own convictions, and then demonstrate how to analyze and assess both the nature and the regulation of marriage, family, divorce, and parenting from a restorative perspective by the end of this course.  Being informed by biblical principles throughout the course adds depth to the students' own personal practice of law from an ethical, moral and formative standpoint.   As a result, students grow as people and future lawyers by demonstrating an ability to accurately apply legal and biblical principles to actual problem settings.  In this context, students demonstrate how to learn and evaluate contemporary rules, assumptions and trends in family law in light of biblical principles and standards, and put them into practice in law by the completion of this course.

Carnegie's suggestions for practical application and professional identity formation have been a part of the Family Law curriculum at Regent University for quite some time, and as a result the public is better served by knowledgeable attorneys with a holistic perspective who can actually help them legally and make their lives better because of their practice of law.

Regent's Center for Global Justice, Human Rights and the Rule of Law sponsors Family Restoration presentation at Athens Institute for Educational Research

Stable nations and societies are largely based on stable family law and policy. Questions of family preservation in immigration policy present new dimensions of legal intervention. The Athens Institute of Educational Research Conference on Law this week welcomed the presentation of a manuscript considering the challenges of family law in immigration policy. Sponsored by Regent Law's Center for Global Justice, Human Rights and the Rule of Law, the presentation offered a review of the relevant literature, and focused on a policy discussion for immigration law that authentically works to preserve, reunify and restore families.

This discussion begins by considering the current dilemmas in United States immigration policy in light of challenges to families in legal immigration, national security concerns, and illegal immigration. Marriage definitions, the prohibitions on marriage fraud, and policies to protect the best interests of children are key in this discussion. Global challenges to immigration policy include combating human trafficking, building a nation's population with immigration in light of declining fertility rates, and multiculturalism that threatens national sovereignty.

The presentation offered policy principles that can work to build strong families and stable nations even in the midst of these challenges. A comprehensive approach to family law and immigration policy is possible - and necessary to restore families. These issues are really the beginning of building strong and stable nations through comprehensive family immigration policy.

Read the entire article here.

Lawyers Learning How to Facilitate Marital Reconciliation

Juile Maxey, Regent 3L, who took Family Law in the Spring of 2011, has described her experience in working on an assignment to draft a document that would serve a struggling married couple in restoring their family.  She writes:

It's no secret that Americans live in a culture inundated with divorce.  Even within Christianity, the divorce statistics are staggering.  I fear that my generation has almost grown numb to the painful concept of divorce and we see it as just another event that will probably occur in most people's lives.  As future attorneys, we are faced with the enormous issue – Can we turn the tide of divorce in our nation?  And if so, how can it be done?

It is a reality to me that men and women will step into my office one day and want out of their marriages for one reason or another.  In Professor Kohm's Family Law course, we have been exposed to tools that will enable us, as Christian attorneys, to chisel away at the monster of divorce.  One such tool is the reconciliation agreement each student drafted for the course.  The reconciliation agreement is similar to a typical separation agreement with one glaring difference – the focus of the agreement is to see the married couple reconcile their issues rather than cut their losses and get out of the marriage.  I've never known a person to enter into a marriage hoping it ends in separation and divorce.  When two people get married, there is hope that the union will last until death parts them.  The reconciliation agreement is about restoring the hope that was a foundational element of the marriage in the first place.

To some, this may seem too idealistic.  I would wholeheartedly and happily disagree with that person for several reasons. 

First, the reconciliation agreement is a valuable learning tool in a Family Law course.  Being that the main difference between the reconciliation agreement and a separation agreement is the end goal; the rest of the document is largely the same.  It covers the same issues and the documents are drafted in the same way.  So, not only do the students understand how to draft the reconciliation agreement but also, a typical separation agreement...two birds with one stone.

Additionally, we cannot continue to use the same legal tools and public policy we have been using and expect to see different results in separations and divorces.  The reconciliation agreement offers a relatively new approach to remedy a crumbling marriage.  During my (short) life, I have witnessed the trend in America - for thousands of couples, the only remedy that made sense to a hurting marriage was to separate and divorce.  The reconciliation agreement lets hurting couples know that there is another alternative; a much less messy and destructive alternative.  Although the reconciliation agreement seems like the underdog in the fight against divorce, even just a handful of saved marriages would be a giant victory against the enormous beast divorce has become.

Finally, no matter a person's religious beliefs, divorce is never a sought experience.  But as a Christian, I believe marriage is a sacred institution given to man by God and it is something we should fight to protect.  The reconciliation agreement is a way to unapologetically promote staying together and working out issues in a marriage instead of throwing in the towel.  I believe Christian lawyers have something very unique to offer clients outside of legal expertise – Hope.  I'm not saying Christian lawyers should try to have a prayer meeting and baptize every client that walks in the door.  But I do believe that we should fashion relationships with clients that present a message of hope for their future rather than a message of revenge, anger, greed, or bitterness.  I don't pretend to think this is always easy to achieve but I do believe that using a tool such a the reconciliation agreement brings clients one step closer to grasping the hope that we have in Christ.

Drafting the reconciliation agreement in Family Law was a valuable experience.  Not only do I feel better equipped and prepared to meet the needs of future clients, but, I know that promoting a reconciliation agreement will be an important tool to chip away at the monster of divorce in our nation.

Abortion Law is Family Law

Family Law Professor Helen Alvaré has a new article challenging the notion of many legal scholars that abortion law is constitutional law.  The Ruth Institute has published her piece where she discusses this idea, and challenges whether it is time for that to change.  Here is her work from the Ruth Institute web site: “Questions about ‘abortion and the law’ are usually seen as matters of constitutional law. Constitutional law, however, seems ill-suited. This is not only because the U.S. Supreme Court discovered a ‘constitutional right’ for something that had been banned by most states for most of the nation's history. It is also because the ‘privacy’ right encompassing abortion frames the issue as a struggle between the state and the woman over her right to define her life, her future, or even her ‘concept ...of the universe,’ in the famous words of the Casey Court. But it is becoming increasingly apparent that abortion is about family relationships, not simply a contest between the state and a woman who happens to be pregnant. Scientific discoveries about human development and the testimonies of women who have had or have considered an abortion suggest that it is family law rather than constitutional law that provides the best means of understanding the issue of abortion. Scientists do not really dispute the human genetic identity of the earliest embryo, or the continuity of identity from conception through birth and beyond. A book published recently to wide acclaim, Origins: How the Nine Months Before Birth Shape the Rest of Our Lives, by Annie Murphy Paul, shares scientific research indicating a relationship between external events like war and disease, and the wellbeing of those human persons who were unborn while their mothers experienced these events. Developments in the field of assisted reproductive technologies (‘ARTs’) also highlight the continuity between unborn and born lives, as does the now-routine practice of ultrasound technology. A person who spends even a little time in the company of post-aborted women and clients of crisis pregnancy centers will come away convinced that these women experienced their pregnancies as motherhood-dilemmas. Their internal debates about abortion did not revolve around the question: ‘Should I kill?’ Rather, they wondered, ‘Should I, can I, be a mother now?’ Abortion is a family issue in other ways as well, as explained in the affidavits of 180 women filed with the U.S. Supreme Court in the second partial-birth abortion case, Gonzales v. Carhart. They described how abortion affected their mothering, how siblings of aborted children experienced repercussions of the abortion, and how they became pregnant again quickly after the abortion in order to have a ‘replacement baby.’ Justice Kennedy's majority opinion in Gonzales v. Carhart indicated that the Court itself was beginning to understand abortion in a family context. The opinion states outright that a bond exists between a woman and her biological offspring and that the severance of this bond via abortion might cause significant suffering for the woman. The majority wrote that ‘Respect for human life finds an ultimate expression in the bond of love the mother has for her child.’ The Court's use of language like ‘mother’ and ‘child’ also indicates a family law context. So does the majority's choice of labels for the unborn including ‘a living organism while within the womb,’ ‘unborn child,’ ‘infant life,’ and ‘child assuming the human form.’ The Court continued: ‘some women come to regret their choice to abort the infant life they once created and sustained.’ There are quite a few signs, then, that the time is ripe for exploring abortion from within a family law context. Indeed, there is some evidence that family law is experiencing second thoughts about ‘what was lost’ during the period when lawmakers fell into a pattern of prioritizing adults' interests over children's. This is a fair characterization of family law's failures over the past 30-40 years: the failure to place meaningful limits on the use of ARTs in order to defer to adults' wishes and to the flourishing of the fertility industry; the adoption of no-fault divorce laws which turned a blind eye to the wellbeing of minor children within a marriage. This ‘adults'-eye-view’ (really a blindness) has permeated recent judicial decisions creating a right to same-sex marriage on the grounds that legal marriage is unrelated to any state interest in procreation and child-rearing. A backlash against the adults-first approach is now brewing. Bills introduced at the state level have suggested a number of positive steps, including restricting assisted reproductive technologies to married couples, or limiting donor anonymity. Others have proposed slowing down divorce proceedings, especially for couples with minor children. Meanwhile, every state which has turned the question of same-sex marriage over to voters has passed a law or constitutional amendment banning them, largely after campaigns insisting on the links between marriage, procreation, and child welfare."  Click here to continue reading the entire article.

Abortion law is family law.  How a society orders its procreative rights either strengthens or weakens the families in that society.  For this reason many states are re-ordering their abortion law.  For example, South Dakota recently approved a 3-day waiting period for an abortion.  See the article at:

http://jurist.org/paperchase/2011/03/south-dakota-approves-3-day-abortion-waiting-period.php.  Younger Americans are realizing the effects of an adult-focused approach and are speaking out about it on college campuses.  At two New York colleges, students are having to fight for their right to do so.  Read about that here: http://www.yournabe.com/articles/2011/03/15/brooklyn/courier-yn_brooklyn_front_page-bn_kingsboroughlawsuit_2011_3_18_bk.txt.

Abortion places an adult’s interests above that of a helpless, innocent child.  When a society treats children in an abortive manner at the beginning of their lives, that adult-centeredness grows stronger with aging children.  Adults placing their interests above their children, born and unborn, weakens families. 

Family restoration is needed in the area of procreative rights.  Family restoration brings societal strength, and that strength is fostered by an end to abortion, and all adult first procreation. If families are restored and strengthened, the society will be strengthened in turn.  Children are always the future of any civilization.  Considering how adults treat children illuminates the core values of that culture. 

Individualism, Family and Faith from a Law Student's Perspective

In learning Family Law and Constitutional Law in the same semester, Mr. Eric Young, Regent J.D. Candidate 2011, has put together his thoughts on the notion of individualism and the family in the following piece, integrating his own personal faith into the legal concepts which so desperately have need of a consistent and authentic foundation. His piece follows (click here to read the full article).

THE GOOD, THE BAD, AND THE UGLY OF INDIVIDUALISM:

The Intersection of Supreme Court Jurisprudence on Individual Rights and the Family 

By Eric Young, Regent Law 2011

Individualism and the rights that stem from that concept are part of the American identity. Individualism is such a fundamental concept that it makes bedfellows out of both sides of political debate and is endorsed by the courts, especially in the liberty interest of the individual within the Fourteenth Amendment.

Individual rights are seen in America as existing pre-textually, as either a transcendental right or one endowed inalienably by our Creator and exists in nature. Ironically, the Supreme Court of the United States has not used nature as a justification for individual rights. The assumption is that individualism and its appended rights must be one of the values that make America great. Individual rights, however, also permit a husband or wife to abandon the family unit without fault, allow a woman without consequence to murder her unborn child, allows homosexuals to not only engage in sodomy, but in many jurisdictions consecrate this conduct in matrimony... (read more)

Can Families Rely on a Court to Protect Children From Strip Searches?

Parents and students do not check their constitutional rights at the school house door, yet the law in the area of student strip searches is not helpful to families, as Andrew Miles (Regent Law 2010) found in his research on this aspect of juvenile law. His article, Students Being Stripped of Their Rights at the Schoolhouse Gate, examines whether the best interests of the child are served when public school officials are permitted to strip search students in order to provide a safe educational environment. What he found would bring alarm to any parent.

In order to comprehend this problem, an understanding of the status of juveniles in the eyes of the law is important, and Miles provides a comprehensive overview while including a knowledge of how courts have dealt with students’ claims of unreasonable strip searches by school officials. Schools have indeed strip searched numerous students in numerous settings for an array of reasons in schools across America – yikes!

“The study of juvenile law presents two interrelated questions: what rights are recognized by the government for juveniles and how are those rights are treated under the law? Unlike animals, human children have a relatively long period during which they are vulnerable and completely dependent on adults.”

Miles expresses his dismay in what he characterizes as “the Supreme Court shirked its duties,” by opining that the law on student strip searches was not clearly defined at the time one student, Savana Redding, was searched, “instead of taking the opportunity to clarify the factors it had left unclear” in a previous similar case. Miles argues that the Supreme Court fails to protect young Americans who still have an interest in privacy, even if this interest is lessened by virtue of their juvenile status.

Parents seriously need to be informed on this area of law – for the sake of their children’s privacy and personhood. Read Andrew Miles' article here, and find out why every family should teach their children to request parental presence at ANY necessary opportunity – especially when that child is about to be subjected to a strip search!

Juveniles Are Better Restored to Their Families if Treated Like Children

The purpose of a juvenile justice system is to provide rehabilitative punishment to kids who have made criminal mistakes. When the state carries out this objective it is acting in its parens patriae capacity. The road towards the development of the juvenile justice system in America has been long, and is indeed still in process. Until the late nineteenth century, juveniles who committed crimes were dealt with through the same criminal justice system that addressed the offenses of adults.

Because they were not dealt with separately there was no way of addressing the special needs of juvenile offenders. Over time state legislators realized that there needed to be a court devoted to the issues of juvenile offenders. This is particularly necessary in the cases of juvenile sex offenders, as set forth in detail in Branded for Life: Juvenile Sex offenders and the Sex Offender Registry by Tiffany Verdell (Regent Law 2010). She demonstrates the need for unique treatment of juvenile sex offenders with the case of a 16 year old kid named Brandon.

“Brandon was a senior in high school when he met a 14-year-old girl on a church youth trip. With her parents’ blessing, they began to date, and openly saw each other romantically for almost a year. When it was disclosed that consensual sexual contact had occurred, her parents pressed charges against Brandon and he was convicted of sexual assault and placed on the sex offender registry in his state. As a result, Brandon was fired from his job. He will be on the registry and publicly branded as a sex offender for the rest of his life. In his mother’s words, ‘I break down in tears several times a week. I know there are violent sexual predators that need to be punished, but this seems like punishment far beyond reasonable for what my son did.’”

Tiffany Verdell argues quite persuasively that it is counterproductive to brand people like Brandon as a sex offender for life, and suggests the development of an aspect of the juvenile justice system to respond to this growing problem. The need for public safety must be balanced with the purpose of the juvenile justice system, the unique potential of the juvenile offender for rehabilitation and re-integration back in society, and the unintended consequences of registration.

Read the entire article here.

Juvenile Sex Offender Registry

Foster Children Victimized by Culture of (Drug) Control

Already victimized by removal from their original families, foster children are being prescribed powerful mind altering medication to “manage unruly kids, rather than treat their anger[,] sadness” or underlying issues, being even further victimized. All toward often devastating consequences, as Andrew Porter (Regent Law 2010) so aptly lays out in his article "Curing the Medication Straightjacket: Construing a Clear Standard of Informed Consent and Psychiatric Care for the Use of Psychotropic Medications on Children in Foster Care." None of the drug treatment really helps them medically, nor does it help them to be restored to their families. Rather, Andrew Porter describes how prescription drugs are being used as convenient control of foster children - and in many cases it's killing them.

For example, a six year old in Washington “failed to wake up in his Seattle foster home” because a toxic level of amitriptyline, a psychotropic drug used to treat depression and hyperactivity, was found in his blood.

How this phenomenon manifests itself in the lives of foster kids across America is disturbing. The Tennessee’s Department of Children Services faced a class action lawsuit alleging several issues including the overuse of psychotropic medications “as a method of discipline or control.” There has been a wide spread dramatic increase in the prescription of psychotropic medication to children, but “psychiatric drug treatment for youth in systems of care may be more heavy-handed in terms of the potency of the medications prescribed as well as less collaborative.”

The facts surrounding little Gabriel Meyers in Florida are most shocking. On April 16, 2009, Gabriel Myers, a seven year old foster child, hung himself with a detachable shower hose. Gabriel’s past was a nightmare that most people hope to never experience. At the age of six his mother was arrested for drugs, and within a few months his visitation changed, he was moved around into three different “homes,” changed schools, and was sexually abused. Gabriel then received numerous behavior and psychological assessments that found he was “overwhelmed with change and possibl[y] re-experiencing trauma.” Dealing with these overwhelming circumstances, Gabriel began to act out and exhibit inappropriate behaviors. To manage his inappropriate behaviors, Gabriel was proscribed "powerful mind-altering drugs" linked to increased suicidal thoughts, but did not receive any “specific and upfront therapy to deal with [his] identified trauma.”

As Andrew Porter points out, "the end result of these tragic circumstances was that “Gabriel Myers was no one’s child; no single individual became a champion to ensure that his needs were met in a timely fashion,” and as a result he tragically ended his life at the age of seven.

Foster children pose unique legal issues because they are “no one’s child.” “Youth in state care often do not have a consistent interested party to coordinate treatment planning and clinical care, to provide informed consent for their treatment, or to provide longitudinal oversight.” Currently, “guidelines listing inappropriate patterns of psychotropic medications prescribed for youth are few,” but even if these guidelines existed what should they entail? Who should determine whether a foster child needs psychotropic medication; the local child service agency, a treating physician, a judge, the temporary foster parents, the child, or perhaps an independent third party? Who should provide informed consent? How does the state maintain longitudinal oversight over psychotropic medication when foster children are usually nomads traveling from home to home and from physician to physician over the course of their childhood?"

This Article examines the chronic use of psychotropic medications on foster children without a clear and lucid standard of psychiatric care and informed consent.

Juvenile Law Presentation

Mediation in Juvenile Cases Brings Family Restoration

Juvenile crime peaked in the 1980’s and continues to be a problem in the caseload of the courts. Many juvenile, cases, are ripe for mediation and parental involvement, however, argues Jennifer Kornman, in her recent article on the topic. Mediation could solve case expense as well as judicial overloading of the juvenile court system, and could be a very viable alternative to restore kids to their families.

In her article she states, "In many cases of delinquent juveniles the children are just acting as kids, not realizing the repercussions of their actions. A conflict arises in their life and the juveniles don’t know how to handle it so they lash out in the 'improper' way. This is not to excuse their actions, but twenty years ago most of these cases wouldn’t have even have made it into the courtroom. These children don’t need to be labeled delinquents; rather they need to gain the skills of working through their problems without violence."

Children are by definition immature and therefore should receive more leniency and help than an adult. Juveniles require skills that will continue through their entire life rather than labeling the juveniles as delinquents and having them have self-fulfilling prophecies of delinquency. To save children from being dragged through the court system and being labeled as “delinquent” children who have been accused of minor misdemeanors (mainly assault and battery or status offense ), children should go through mediation rather than through adjudication, argues Kornman. Her article walks through the definition and purpose of mediation, how mediation is used in divorce settlements and the shortcomings of mediation when domestic violence is involved, how mediation is used with children, how Lucas County Ohio has tried to solve the problem, and what courts should start mandating for children when they come through the court system.

Mediation has been emerging as an efficient and cost effective solution to the large caseload that courts must face within the last twenty years, and Kornman's article applies that process to the important area of juvenile crime - an excellent path toward family restoration.

Read the entire article here.

Gangs Do Not Restore Families – They Take their Place

When Sean Harris was finished presenting his research on gang phenomenon and related law it was overwhelmingly clear that a gang culture replaces the family. From Crips to Bloods and every other gang organization, the mob-like mentality in the gang culture is an incredible draw to kids who are particularly lonely and lost in broken, often fatherless, families.

This article by Sean Harris surveys certain state gang statutes and examine whether state legislatures have provided those statutes addressing gang activity in order to determine if those states lacking such statutes should take action due to a gang presence in its state.

Section I presents the current status of gangs in the United States, the types of crimes they commit, and the participation of juveniles in gangs. Section II discusses gang initiation and recruitment, and section III gives an introduction to the responses that have been given legislatively to the areas discussed in both sections, explaining generally what an anti-recruitment and gang participation statute is. Section IV then analyzes those states in the United States that lack one of the three areas of gang statutes under analysis, those being a statutory definition of a gang, a statutory penalty for gang recruitment, a statutory penalty for gang participation, or in the alternative to a penalty for gang participation, a sentencing enhancement. That section is broken down by region in which a brief overview for gang activity in the region is discussed, followed by an analysis of each individual state lacking one or more of the gang statutes subject to this article, noting the statutes the particular state has, those it lacks, and whether there is gang activity or a gang presence in the state. Section V briefly discusses an area for future research, and section VI proposes the statutory forms states should either adopt outright if they are lacking statutes or change to if they already have some form of statute in place.

Strong families make a difference to communities, and to individuals. Working toward a culture of family restoration along with the statutory changes Sean Harris suggests ar the top strategies for changing the gang “family” phenomenon.

To learn more, read Sean Harris’ article here .