Tag Archive for 'Family Law'

Embryonic Custody: An Emerging Legal Battlefield Featuring Sofia Vergara

One of the stars of Modern Family, Sofia Vergara, is currently in a custody dispute with her ex-fiancé, despite the fact that the two have never had any children together. Her ex-fiancé, Nick Loeb, wrote an op-ed featured in the New York Times that brought attention to a fairly new kind of custody battle: embryonic custody.

Sofia Vergara Embryo Custody DisputeThe frozen embryos, technically known as pre-embryos until their implantation in the uterus, were created in 2013. The medical directive signed by both parties states, “We understand and are aware that we may change this Directive. However, any and all changes must be mutually agreed to between both named partners. One person cannot use the Cryopreserved Material to create a child…without explicit written consent of the other person…”

Custody battles over embryos are the result of the rising popularity of in vitro fertilization (IVF). As stated in Loeb’s article, there are ten similar cases in the U.S. where one parent wants to take the embryo to term while the other parent opposes the action. Out of the ten cases, only the Pennsylvania (Reber v. Reiss) and Illinois (Szafranski v. Dunston) courts ruled in favor of the party who wished to bring the embryo to term.

How Do Courts Decide Embryonic Custody?

Courts take one of three approaches in deciding custody of a pre-embryo: a balance of interests test, a contracts approach or the mutual consent approach. In deciding traditional child custody cases, courts look to the best interests of the child. The juxtaposition between the two balancing of interests methods is a gray area for the courts because in the traditional custody cases, courts base custody on the best interests of the child and look at a variety of factors. In the balance of interests test for embryos, the court only looks at one factor: one party’s desire to use the embryos against the other party’s desire not to.

The courts believe there is a special interest when the embryos are a parties’ last chance to have a biological child, which tends to result in the case being decided in favor of the party who wishes to bring the embryo to term. The reasoning for both the Pennsylvania and Illinois courts were near identical: both women underwent chemotherapy and the embryos were their last chance to have biological children. The judges ruled that their interest in becoming a parent to biological children outweighed the opposing party’s interest in not bringing the embryos to term.

Loeb v. Vergara – Who Will Win?

There are many parallels with the IVF cases and the abortion cases heard by the Supreme Court, the most prominent is raising the question of “When does life begin?” Loeb believes that the embryos he created with Vergara should be brought to term because he says, “Lives were already created.”

Under the approach of the best interests’ of the parties, Loeb is likely to lose because there are no indications that the pre-embryos he created with Vergara are his last chance at a biological child. Under the traditional contracts approach, favored by the American Medical Association, Loeb also is likely to lose because the two parties signed a medical directive that requires the consent of both parties to bring the embryos to term.

It remains a likely possibility that the  Supreme Court will rule on a case regarding IVF custody (the only IVF related ruling the Court has issued is on IVF and social security in Astrue v. Capato) due to the complex moral, legal and ethical complications that arise with cases similar to Loebs’ and the growing popularity of the procedure.

Should Rapists Have Parental Rights?

The Daily Show did a segment on rapists and parental rights last week. Samantha Bee hugged adorable animals while dealing with the reality that women cannot terminate their rapist’s parental rights. Even though proposed laws terminating rapist’s parental rights have bipartisan support, about twenty states have yet to pass any laws regarding the parental rights of rapists.

RapeDisturbingly, many of these rapists will use child custody battles in family court as a means to drop the rape charges against them in criminal court. Many mothers will elect not to testify against the rapists rather than go through a soul-numbing child custody battle. As a result, many rapists walk out of criminal court free. The rapists don’t leave because they’re innocent though; they’re free because they used the family court to blackmail the victim.

This isn’t a small issue. According to Shauna Prewitt, an attorney who personally experienced this vicious system, about 32,000 women each year become pregnant after being raped. At least a third of them give birth and raise the child.

The Child’s Best Interest Are Not Served by Rush of Judgment

The parental rights of rapists are one of the toughest issues a family law court will face. It’s important that we have this debate. But this debate is ending in the wrong direction. The focus of a child custody dispute is, and always should be, about the child.

All press is focused on the mother. Congresswoman Schultz’s description of a nightmare scenario placed the listener in the mother’s head. “Every other weekend, you have to meet your rapist in a Denny’s parking lot and hand over your child? No, that can’t be real.” Congresswoman Schultz believed the solution was obvious. “If you’re the victim of rape, and you conceive a child, then you should be able to terminate your rapist’s parental rights.” Once again, the focus is on what the woman should be able to do, rather than what the child’s prospects could be.

Congresswoman Schultz means well, but “conception by rapist” is an emotional rallying cry for women’s rights rather than a real thoughtful assert of a child’s future. If we give a kneejerk reaction, we may miss certain problems.

The most obvious problem is that we are assuming the father is guilty. Unless the father pleads guilty or is convicted of rape, the father is not a rapist. In rape cases, one of the strongest defenses is that the woman consented to sex. Evidence is hard to come by in those cases, so it comes down to a “he said, she said” battle. In child custody cases, the parents may be so focused on fighting each other that they cannot make good decisions for the child.

Family courts use the child’s best interest standard because parents often need reminders that their fight is about their child, not each other. There are plenty of child custody cases where the mother falsely accuses the father of hitting her or stealing from her or abusing her, in the hopes that the court will give her sole custody. Family law judges and lawyers wouldn’t be surprised if a mother lies about being raped in order to gain sole custody.

I’m not saying that all women who accuse the father of rape are lying. I’m certainly not suggesting that fathers should use child custody as leverage to get out of criminal court. But rape and child custody are highly emotional topics where evidence may be hard to come by. If the mother is lying about the rape and the state terminates the father’s parental rights, it is the child who will suffer.

Instead of a unilateral termination of parental rights if the mother accuses the father of raping her, states could enact a law prohibiting parents from dropping criminal charges in exchange for child custody. It would not be in a child’s best interest to have a parent sacrifice the child so that the parent can remain out of prison. Prohibiting child custody settlements from dropping criminal charges is a solution that would protect the defendant’s criminal rights, the mother’s rights, and the child’s best interests.

You Can Have a 90 Day Fiancé Too!

TLC’s latest television show, 90 Day Fiancé, explores the trials and tribulations of Americans being engaged to foreigners. The premise of the show is that couples who met abroad must legally get marry within a 90 day period where the foreign significant others visit the United States.

90 day fianceThroughout this time, the couples must evaluate their compatibility. If they don’t  walk down the aisle by the end of the 90 days, then heartbreak occurs and the foreigner must pack his or her bags and leave the United States.

How Is This Possible?

Although America may have some strict immigration laws, America does not want to prevent its citizens from finding true love outside of the motherland. As a result, US citizens who find love abroad may sponsor K-1 visas (i.e. fiancé visas) to allow their foreign counterparts to visit America. In order to qualify for this visa, the American citizen must intend to marry their foreign counterpart at the time of the application.

What Happens When the Visa Is Approved?

Once the K-1 visa is approved, your fiancé has 6 months to come to the United States and may stay here for 90 days. The fiancé may only use this visa once to enter onto U.S. soils. This does not mean the foreign counterpart gets a green card; she merely gets to visit United States.

After this 90 day period, the visa will expire. The couple must wed in order for the foreign counterpart to stay in the United States. If not, the foreign counterpart must leave.

Seeking Legal Help with a 90 Day Fiancé

An immigration lawyer can help you with all the paperwork. A lawyer may be necessary to ensure that all documents are properly prepared. Note that your application will become more complex if either you or your fiancé has gone through the K-1 visa process previously.

Should Islamic Laws Be Allowed in US Courts?

Sharia Law’s Impact on the United States

A few years ago, voters were outraged when they heard that a judge had denied a woman a protective order after her husband had raped her because the husband was a Muslim who claimed that marital rape was legal under Islamic, or Sharia law. The decision was overturned on appeal, but anti-Sharia laws have popped up over the country since that case.

Sharia Islam Law In AmericaConflicts between Sharia law and American law largely arise in family law, typically when couples from countries that recognize Sharia law migrant to the United States. These couples file for divorce and will argue over domestic violence and/or property distribution. One of the spouses, usually the husband, will use belief in Islam as a justification for a legal conclusion that favors the spouse.

Alternatively, that same spouse, usually the husband, will argue that the prenuptial agreement signed in the original country was recognized under Sharia law, and the agreement should thus be recognized in the United States.

Sharia law also comes up in contract disputes and religious arbitrations involving Muslims.

Why We Should Discuss This Issue

Although conflicts between Sharia law and American law have existed since the 1970s, if not earlier, the idea of American courts applying Sharia law didn’t become explosive until the September 11 attacks. Seven states, Arizona, Kansas, Louisiana, North Carolina, Oklahoma, South Dakota and Tennessee, have enacted anti-Sharia laws. Alabama will vote on the issue this November.

Anti-Sharia laws have not gone unopposed. Oklahoma’s constitution amendment banning Sharia law was ruled unconstitutional because it was considered discriminatory. Missouri’s anti-Sharia bill was vetoed by Missouri’s governor because it would make international adoptions too difficult.

Many legal experts have dismissed the efforts to ban Sharia law as solutions in search of a problem. Ironically, they are making the same mistake as the hotheads who enact these anti-Sharia laws: they are dismissing the issue without giving the matter much thought. The issues with Sharia law are small, but we should examine rather than trivialize such cases. My cursory research into Sharia law in the United States has drawn me to these observations:

  1. Family cases involving Sharia law are limited to the facts. It would be difficult for Sharia law to “creep” into American case law because most of the cases involving Sharia law are distinguishable based on facts which don’t often arise outside of the Islamic community. In cases where American judges acted consistently with Sharia law, the parties were citizens from Pakistan, India, Israel, or other countries which use Sharia law. Our judges aren’t allowing Sharia law to supersede American law. Instead, our judges are recognizing the legitimacy of courts outside of the United States when the nationals of those other countries are involved.
  2. Cases involving Sharia law would reach the same outcome even if Islam wasn’t involved. In some cases, there is no conflict between Sharia law and our law. For instance, Sharia law demands that Islamic courts apply a “child’s best interest” standard when deciding child custody. Coincidentally, our legal system uses the same standard. Obviously, cultures will differ on what exactly is in a child’s best interests. Islamic courts believe that children who grow up in an Islamic society are better off than children who do not. That belief seems wrong, but let’s not forget that our own courts used to overvalue Christianity when they awarded the custody of Native American children to white parents. In other cases, our judges have decided to stay out of the case. For example, our judges cannot decide employment disputes between Imams and mosques. That is an internal religious dispute and our federal constitution forbids courts from meddling with the free exercise of religion. This would be true even if the conflict involved a minister and a church, so in these few cases there would be no difference in the outcome.

The Threat Which Is Not Threatening

Currently, these anti-Sharia laws are naïve experiments. Laws which specifically target Sharia specifically targets Muslims and are thus unconstitutional. Some states tried to “fix” that problem by making them broad. Instead of banning Sharia law, states like Oklahoma are banning “foreign law.” Alabama has taken this a step further and is prohibiting the application of laws which conflict with Alabama’s own policies.

Making the ant-Sharia laws broader only creates more problems. Banning foreign laws makes it next to impossible to attract international contracts since companies in other countries won’t do business if they don’t think their contracts will be honored. Alabama’s proposed law is even more extreme. I can’t see states like Alabama ignoring the United States Supreme Court merely because the Supreme Court decides cases contrary to Alabama law.

So if states are worried that their courts will decide cases which legitimize wife beating or marital rape based on Islam, what can these states do? Instead of having states enact unconstitutional and overbroad anti-Sharia laws, Congress should strengthen our refugee laws. Most of the women being victimized by Sharia law came to the United States to escape unjust marital arrangements and abusive husbands. If we make it easier for women from Islamic countries to obtain political refugee status, we would do more good than the symbolic, but empty, anti-Sharia laws that states are currently trying to enact.

Statutory Rape – Everyone Loses

Statutory rape laws are supposed to protect underage girls from predatory men. Ironically, statutory rape puts all the focus on the men. If society punishes men for engaging in sex with minors, then there won’t be underage pregnancies. From the state’s point of view, it makes complete sense. If only it were that simple.

statutory rapeStatistics appear to bolster the idea that statutory rape discourages adolescent pregnancy. In 2012, the teen birth rate in the United States was 29% of all births in the country. This is a drop from the 1990s, when the teen birth rate was 60% of all births. But what about the 29% of single mothers—girls under the age of 18—who do get pregnant? Abortion is permitted in some states, but abortion is controversial at best.

If a teenage girl does give birth, society wants to punish the father. But here’s the catch 22. If we send the father to jail for statutory rape, then he won’t be able to make money to pay for child support. While trying to protect teenage girls in general, statutory rape laws harm young mothers and their infants.

It is really difficult for a man to make money for his child if he is in jail for creating that child. Even when the father gets out of jail, he might be considered a sex offender. Registered sex offenders aren’t popular with employers, landlords, or the public in general.

This means that the adolescent mother is stuck raising her son or daughter on her own. In the modern United States, a single income household can’t support a child—especially if the single income had to drop out of high school to have the child. Chances are the child will grow up to be part of the same cycle that their parents found themselves in.

Is There An Alternative?

First, statutory rape laws aren’t going anywhere. Statistics support the idea that they keep teenage pregnancy down. Even without statistical support, too many voters would be worried about child molesters for statutory rape laws to be abandoned.

The question is whether men convicted of statutory rape should be able to share custody of their children. The way I phrased that question probably lends itself to a certain answer (“Yes they should!”). However, the truth of the matter is that this type of case is best handled on a case by case basis. Obviously, child molesters who are willing to lure young girls to bed might do the same to their daughters. On the other hand, if the father is a twenty-something year old who is just in over his head, society might want to set aside its own judgments for the best interests of the child.

Statutory rape often looks like it’s designed to make society feel better about the sexual nature of adolescence, even though that comfort comes at the expense of infants who need a mother and a father. The father might be naive, but a naïve father is better than no father.