DIVERSITY IN FAMILY LAW OVER TIME & ACROSS THE UNITED STATES

1. DIVERSITY IN FAMILY LAW OVER TIME& ACROSS THE UNITED STATES SOC 5810 – Law and Society Dr. Mary C. Sengstock, Ph.D., C.C.S. Professor of Sociology Wayne State University http://users.wowway.com/~marycay910

2. LAW & THE FAMILY • Legal Conflicts of Interest Over Family: • Courts Have Had Lots of Control Re Family Life • Most Issues Controlled In States’ Rights • Therefore Much Variation • Through Decisions on Any Number of Issues • U.S. Has a Strong Belief in Family Privacy … • But Also Want to Ensure Families Do It Right! • If They Don’t “Act Right” – Courts Intervene! • Marriage – Child-Rearing – Child Support, etc.

3. ISSUES TO BE DISCUSSED • Rights of the Child: • Child Abuse • Education • Custody & Visitation • Women’s Rights in Family • Battered Women’s Syndrome • Death & Dying • Use & Discontinuance of Life Support

4. CHILD ABUSE (1) • People v. Ball(IL Ct of Ap, 1973) • Ball Was Teacher – Paddled Disruptive Student • Hit c. 10x – Observed By Other Teacher • Boy Not Badly Injured – But Parents Filed Battery Complaint • Can Teacher Administer Corporal Punishment if State Statutes Allow? • Court Said This Was Allowed (Even Though in This Case Parents Disapproved).

5. CHILD ABUSE (2) • State v. Ringer (1970): • Observers Cannot Come to Aid of Child Being Disciplined By Parents – Unless Great Excessive Force • BUT: Courts Have Supported Rights of A Prisoner to Come to Aid of Fellow Prisoner Being Attacked By a Guard – Whom He Killed (Mass v. Martin, 1976)

6. CHILD ABUSE (3) • State v. Williquette (Wisc Sup Ct, 1986) • Williquette Charged with Child Abuse … • For Failing to Prevent Husband from Beating & Sexually Abusing Son (7) & Daughter (8) • Trial Court Dismissed Case … • BUT: Wisc Sup Ct Overturned: • She Knew He Was Abusive – Don’t Leave Children • 1 Dissent: Wisc. Does Not Impose This on Parents Nor Allow Legal Action if Done • Based on English Common Law  U.S. Law

7. CHILD ABUSE (4): KILL UNBORN CHILD • Does Protecting Child Extend to Unborn? • Keeler v. Superior Ct of Amador Cty (CA), 1970 • About Same Time as Roe v. Wade • Couple Divorcing,Wife Pregnant by Other Man • Keeler Kicked Her in Abdomen, Child Stillborn • Keeler Charged with Murder of Unborn Child • Court Ruled Fetus Not a Human Being • 1 Dissent: Quickening Fetus Is Human Under Common Law (NOTE: Other Courts Discussing This! Some Hold Women Responsible for Drug Use in Pregnancy)

8. EDUCATION (1) • Has Child Right to Parental Support for Education? (Roe v. Doe, NY, 1971) • Father Said Would Pay for Daughter’s College Provided She Stayed in Dorm…She Moved Out • Father Refused to Pay … • Court Said His Demand Was Not Unreasonable • One Judge Said Courts Should Not Intervene in Family Issues Unless Grave Harm

9. EDUCATION (2) • Comment on Support for Education: • Fathers Have Generally Been Seen as Having Obligation to Support Children … • Children Can Buy Things & Charge to Father … • Can Also Sue Fathers, Charge Criminal Neglect • Mothers Generally Seen as Having This Only as 2ndary Obligation … • EXCEPT Women on Welfare – Who Are Expected to Work to Support Children

10. EDUCATION (3) • Can School Policy Prohibit Parents From Using Children in Religious Activities? Prince v. Mass (US Sup Ct, 1943) • Prince Was Jehovah Witness – Took Children to Distribute Literature • Charged with Violating Child Labor Laws • S. Ct: Parents & Children Have Right to Practice Religion, Get Religious Training • But Religious Practice Again Public Welfare Not Allowed • Child Should Be in School – Not Working for religious Group

11. CUSTODY OF CHILDREN (1) • Is an Advantage Given to Women? • Ex Parte Devine (Ala, 1981) • Ala Held That in “Tender Years” Mothers Were Preferred – Mothers Got Custody Unless Father Could Prove Her “Unfit” • Mr. Devine Contended Ala Law Gave Unfair Advantage to Women in Custody Disputes • Ala Court Agreed – Said This Provision Violated 14th Amendment to U.S. Constitution

12. CUSTODY OF CHILDREN (2) • Impact of Moving on Custody (Cooper v Cooper, NJ, 1984) • What Are Limits on Parent’s Right to Move? • Mr. Cooper Wanted to Prevent Mrs. Cooper form Moving from NJ, Claimed It Would Complicate His Visitation • Court Said Custodial Parent Can Move to Other State If It’s Good for Parent & Financially Advantageous to Children

13. CUSTODY OF CHILDREN (3) • How About Moving Out of Country? • Goldstein v. Goldstein (RI, 1973) • Mr. Goldstein Wanted to Take 9 ½ Yr Old Daughter to Israel; Daughter Wanted to Go • Mrs. Goldstein Claimed This Gave Inappropriate Weight to Child’s Preference • Court Said It Was Important But Only 1 Factor Out of Many – Had to Consider General Good of Child – Also Child Choosing Placed Strain on Everyone

14. CUSTODY OF CHILDREN (4) • Interracial Marriage & Custody (Palmore & Sidoti, US Sup Ct, 1984) • Parents Divorced; Wife (Sidoti) Got Custody • Palmore Sued for Custody Because New Husband Was Different Race  Social Strain • Trial Court Awarded Custody to Father … • But U.S. Sup Court Reversed – Racial Mixed Marriage Not Sufficient Reason to Change Custody

15. CUSTODY OF CHILDREN (5) • Physical Disability & Custody: Mrs. Carney Left Husband & 2 Sons (In Re Remarriage of Carney, Calif, 1979) • 4 Years Later Mr. Carney Became Paralyzed in Auto Accident • Mrs. Carney Wanted Kids Back • Calif Trial Court Gave Mother Custody … • U.S. Sup. Ct. Reversed – Saying Disability Is Not Sufficient Reason to Change Custody

16. SEXUAL BEHAVIOR & CUSTODY • Does “Sexual Experimentation” of Custodial Parent Make Her Unfit? (Feldman v. Feldman, NY, 1974) • Mrs. Feldman Had Custody – Ex-Husband Saw Copies of Screw Magazine In House – Sued for Custody – No Claim She Was Unfit • Trial Court Gave Kids to Father – S. Ct Reversed – Said Court Was Subjective – Holds Women to Higher Standard Than Men • But Man Can Be Forced to Avoid Female Visitors When Children Visit (DiVita v. DiVita (NJ, 1976)

17. RELIGION & CUSTODY • Religion & Custody (Quiner v. Quiner, Calif, 1967) • Couple Divorced, Wife Had Custody Joined Strict Religion Forbade Interaction With Outsiders, Including Father • Calif. Court Gave Father Custody – CA Sup Ct. Reversed – Said Religion Wasn’t Sufficient Reason to Change Custody • Illustrates Different Views in Different States: • CA: Wants Proof Religion Affects Child in Case • Wisc: Wants to Know If It Might Affect Child • Changes Burden of Proof!

18. PATERNITY & CUSTODY • Paternity & Visitation: Michael H. v. Gerald D. (S.Ct, 1989) • Michael Had Affair With Gerald’s Wife – Resulting in a Child, Gerald Listed as Father • Michael Wanted Visitation • Calif & U.S. Sup. Court Said: • Husband Presumed to Be Father • Man Has No Rights to Child Conceived With Another Man’s Wife • Illustrates Changing Views Re Parenthood! • Today Often Based on DNA – Even if Adulterous

19. HOMOSEXUALITY & VISITATION • Does Gay Parent Give Up Visitation? (JLP v. DJP, Mass, 1982) • JLP Was Homosexual, Attended Gay Church • He Had Visitation But Could Not Keep Them Over Night – Nor Take Then to His Church • He Appealed, Saying It Violated His Rights • Court Said They Could Look at Anything They Want to Determine Best Interest of Child – Even Bad Statistics on Gays Being More Likely to Abuse Children

20. GENERAL RULES OF CUSTODY & VISITATION In Custody Cases, Courts Usually Consider: • “Best Interest of Child” Is Determining Factor • No “Single Factor” Decisions Are Appropriate • Stability is Important for Children – Any Proposed Change Requires Greater Justification Than Maintenance of Status Quo

21. ANOTHER FAMILY ISSUE: PROTECTING BATTERED WOMEN • Historically, Women Have Been Victims of Battering by Their Husbands • Courts Have Been Reluctant to “Intervene” in Domestic Disputes  Men Have “Free Reign” • Women Have No Recourse in Courts  Have Killed Husbands in Defense • Q: Can Evidence of This Defense Pattern Be Used in Defending Women Accused of Killing a Batterer?

22. BACKGROUND OFBATTERED WOMEN’S SYNDROME • The Pattern Psychological Experts Have Established … • Describes the Manner in Which an Abusive Husband Operates … • Its Effect on His Victim … • And the Manner in Which She Fights Back

23. DEFININGBATTERED WOMEN’S SYNDROME • Women Know from Experience How Her Husband’s Battering Pattern Works … • Can Predict His Future Actions … • Know When He Is Likely to Attack Her Next • Know from Experience NO ONE (e.g., Police, Courts) Is Likely to Assist Her … • She Eventually Takes Action … Anticipating an Imminent Attack … She Attacks 1st & Kills Him • Had Generally NOT Been Accepted By Courts

24. Q: CAN THIS BE USED AS DEFENSE IN COURT? • Had NOT Been Accepted by Several Courts • State v. Hodges(Kansas Sup Ct 1986) Changed This • Hodges Was 33 Yr Victim of Wife Abuse • Shot Husband & Claimed Self Defense • Defense Presented Testimony on “Battered Women’s Syndrome” – Stating Women Subjected to Years of Abuse Believe No One Else Will Help Them – Take Own Measures • Trial Court Rejected Defense Testimony

25. STATE V. HODGES APPEAL • Hodges Was Convicted of Voluntary Manslaughter & Appealed to Kansas Sup. Ct. • Court Stated Expert Witness Testimony on Battered Women’s Syndrome Was Relevant, Should Have Been Allowed • Key Issue: Defining “Self-Defense”:Immediate Danger or Imminent Danger?

26. KEY ISSUE: DEFINING “SELF-DEFENSE” • Immediate Danger: Narrower – Someone Is Holding a Gun to Your Head NOW – Impossible to Obtain an Intermediary • Imminent Danger: Broader – Individual At Risk of Immediate Danger – i.e., Get a Call – Person With Gun On the Way Over to Get You • Experts Say Battered Women Are Always in Imminent Danger • Changed Legal Meaning of Self Defense

27. ANOTHER FAMILY ISSUE:MAINTAINING LIFE SUPPORT • Numerous Cases Re Right of a Patient (or Patient’s Family) to Remove Life Support • Not the Same as Physician Assisted Suicide • Questions: How Much Life Support Should Be Provided? • How Long Should Life Support Be Maintained? • Who Makes These Decisions? • Patient? Family? Hospital? Court?

28. CRUZAN v DIR Of MO PUB HEALTH(U.S. Sup Ct, 1990) • Cruzan Was in Auto Accident, Vegetative State • Parents Wanted to Remove Life Support … • Hospital Refused – Parents Sued, Claimed Daughter Would Prefer • Courts Very Divided … • Mo. Ct. Claimed “No Clear, Convincing Evidence Daughter Would Prefer” • Sup. Ct. Supported State Court – State Could Require “Clear, Convincing Evidence”

29. TERRI SCHIAVO CASE (Florida & U.S. Sup Ct., 2005) • Terri Had Been in Vegetative State for 15 Years • Husband Wanted to Remove Life Support, Claimed She Would Not Want This • Her Parents Insisted She Was “Responsive” • Florida Courts, Sup.Ct. Supported Removal • U.S. Congress Intervened – Insisted She Should Remain on Life Support, Numerous Measures to Enforce That Position • Finally Removed in March, 2005, & Died

30. Q: WHO SHOULD MAKE THESE DECISIONS? • Many Commentators Claimed Congress, Pres. G.W. Bush, Gov. Job Bush Showed “a Total Disregard for Citizen’s Right to Be Left Alone” (M.A.Lawrence, freep.com, 2005) • Who Should Make These Decisions? What Kinds of Issues Should Be Considered? • General Assumption: Individual’s Wishes Should Be Considered – if They Can Be Known! • How to Determine Them?

31. KEY LIFE SUPPORT ISSUES • What if Patient’s Wishes Not Clearly Known? • What if Patient Wants to Die & Hospital Disagrees? (Similar to Parent Wanting Child to Get Abortion Which She Does Not Want) • Should Cost of Care Be a Factor? • What About Level of Disability? • What If YOU Were the Disabled Person They Did Not Want to Care For? • Role of Disability Groups, Concerns Raised with Obamacare (Opponents’ Claim of “Death Panels”)

32. CONCLUSION • Courts Have MANY Opinions On Family Issues • Generally STATE Issues – Since These Fall Under the “States’ Rights” (10th Amendment) of the U.S. Constitution • Occasionally U.S. Supreme Court Intervenes • Usually Only with Clear Issues of Individual State Discrimination (Prohibited By 14th Amendment) • EX: Palmore (Racial Discrimination); Sidoti (Disability Discrimination); Michael H. v. Gerald D. (Presumption of Paternity) • Schiavo Was a Clear Aberration!