Following a polemic debate, the Parliament in Uruguay passed a new law earlier this month legalizing same-sex couple adoption. Like most of the continent, Uruguay has a strong Roman Catholic culture and history; no other Latin American country has passed similar law. Church leaders quickly renounced the decision, claiming that children placed in gay homes would be blasphemously “conditioned”. The bill also encountered opposition from the country’s central-right Nationalist Party.

This new law is one in a string of laws directed at broadening rights within Uruguay’s gay community. In 2007, the country allowed homosexuals to have civil unions (although not “marriages”) and earlier this year, Parliament voted to relax some of the restrictions on gays in the military.

Nonetheless, the decision may have more to do with the needs of Uruguayan children than the rights of gay adults. Both sides of the debate claim to have the “higher interest” of the child in focus, with the undisputed need to find homes for displaced children in conflict with what the Bishop’s Conference of Uruguay claims is the child’s interest in having a traditional mother-father family structure.

Even for those in support of the law, there are two outstanding concerns. First, the bill still requires President Vazquez’s signature. More significantly, the bill may not actually make adoption as accessible to same-sex couples as initial media coverage purported. The law’s text says nothing about same-sex couple adoptions – it simply does not prohibit them. The stipulation that the adopted child take the surname of the father and the mother might, depending on interpretation, complicate the adoption process for homosexuals such that it is effectively illegal.

The legalization of homosexual couple adoption may seem ‘settled’ in the United States, but three states continue to prohibit same-sex couple foster care or adoption. Only twelve states have made it illegal to deny a couple the right to adopt on the basis of sexual orientation. Opinion polls suggest that the American public remains divided on the issue. What do you think: is it in the best interest of the child to find a happy, healthy home, or does a displaced child have a protectable interest in a traditional family paradigm?

The recent death of Michael Jackson has brought tough custody issues to the nation’s attention. It might be surprising to know that matters of guardianship in Texas are handled in the probate court, not the family court. The Texas Probate Code, Chapter 13 lays out the procedures for guardianship matters of minors after a person’s death or incapacitation.

Part 2 of the Probate Code places primary jurisdiction for these proceedings in a statutory probate court, which is designated under section 25 of the Government Code. If a county does not have a statutory probate court, the Probate Code allows for a county court at law or another statutory court exercising the jurisdiction of a probate court to handle the proceedings. In counties without these courts, the county court can exercise the jurisdiction of a statutory probate court.

Section 610 explains how to decide venue for guardianship appointments. Generally, proceedings should be brought in the county where the proposed ward resides or is located on the date the application is filed or in the county where the principal estate of the proposed ward is located. If there is a living parent who has custody of the minor the proceedings may be brought in the county where that parent resides. If both parents are dead, but the minor was in custody of a deceased parent, the proceedings may be brought in the county where the last surviving parent having custody resided. If both parents died in a common disaster the proceedings should be held in the county where both parents resided, if they resided in the same county and their deaths were simultaneous. If a guardian is appointed by will the proceedings may be brought in the county in which the will was admitted to probate or in the county of the appointee’s residence if the appointee resides in Texas.

Part 3 of the Code covers appointment and qualifications for guardianship. Section 676(b) states that parents are the natural guardians of minors, so if one parent is dead, the surviving parent is entitled to be appointed guardian of the minor children’s estates. The Code also states that the rights of parents who do not live together are equal.

In Texas, the judge will consider and usually appoint the guardian designated in a person’s will or written declaration but are not bound by such designation. If the court finds the designated guardian is disqualified, dead, refuses to serve, or would not serve the best interests of the minor children the court will not appoint that person guardianship. Instead, the court can appoint any eligible alternate designated guardian. If there are none the court will appoint another qualified person as guardian following the guidelines provided in the Code. Sec. 676(e) and 677A(e).

Section 676(c) explains how the court should appoint guardianship to a minor orphan if the last surviving parent did not appoint a guardian. If this is the case, the nearest ascendant in the direct line of the minor is entitled to guardianship of both the person and the estate of the minor. If there are more than one ascendant in the same degree, one of the ascendants shall be appointed as guardian based on what is in the best interest of the children.

This is by far an exhaustive description of Texas guardianship laws. The Texas Probate Code in its entirety can be read online at http://www.statutes.legis.state.tx.us/?link=PB

Previously on this blog I asked When does a name become child abuse?. The Washington Post picked up the meme in a more mainstream application from a recent study, Odd first names linked to criminality. According to the authors the aim is to “investigate the relationship between first name popularity and juvenile delinquency to test the hypothesis that unpopular names are positively correlated with crime.” Economist Steve Leavitt points out a potential statistical bias in
Do Uncommon Names Turn Kids Into Criminals? I’ll leave the statistical bias argument to the experts but I’ll note, since no one else seems to have done so already, that this argument was first put forth by the eminent sociologist Johnny Cash. A video of him delivering the results of his analysis appears below. Read the rest of this entry »

Tom Oldham, a professor at the University of Houston Law Center, has posted Changes in the Economic Consequences of Divorces, 1958-2008 to SSRN, which also appears in the Family Law Quarterly 42 (2008).

This article, part of an issue that surveys changes in family law over the past 50 years, discusses how the economic consequences of divorce have changed during this period. This article surveys some of the various social changes that have had an impact, such as changes in the divorce rate, changes in the characteristics of divorcing couples, and changes in women’s participation in the work force. Some family law legal changes are also discussed, such as the acceptance of equitable distribution and changes in rules applicable to spousal support. Other legal changes are mentioned, such as the acceptance of premarital agreements, the adoption of Medicare, and the acceptance of no-fault divorce.

The article notes that some very general consensus seems to be evolving regarding child support awards and marital property rules. In contrast, very different (and frequently unclear) standards are applied across the country regarding spousal support. The article discusses recent developments in Canada regarding the adoption of advisory spousal support guidelines as one potential avenue to increase predictability of spousal support awards in the U. S.

• J. Thomas Oldham, Changes in the Economic Consequences of Divorces, 1958-2008, Family Law Quarterly, Vol. 42, No. 3, 2008, U of Houston Law Center No. 2009-A-1
• Oldham on the Economic Consequences of Divorce

Grits for Breakfast and the Brownsville Herald reported that Justice of the Peace Gustavo “Gus” Garza, from Brownsville, Texas, was ordered last month by State District Judge Abel C. Limas to stop his practice of offering spanking as an alternative sanction for disciplining children in his courtroom. If a child was convicted of truancy, JP Garza offered parents the alternative to spank their children instead of paying the normal $500 fine. However a parent filed a lawsuit against Garza alleging he “felt he had no choice but to paddle his stepdaughter because he did not have the money for the $500 fine.” Judge Limas agreed, saying, “The Texas Legislature would be the body that could address the issue of corporal punishment in the courts. ‘We are not here to make law.’”

The full article:

Pct. 6 Justice of the Peace Gustavo “Gus” Garza will not be able to allow spanking as an option for disciplining children in his courtroom, according to a court ruling Wednesday.

State District Judge Abel C. Limas, who asserted jurisdiction in the case, halted spanking as a form of punishment in Garza’s courtroom on Wednesday. Limas pointed to the protection, safety and emotional well-being of children as his reason for approving the temporary injunction.

“I am encouraged that Judge Limas acted to protect the interests of the children of Los Fresnos,” said Mark Sossi, the attorney who on behalf of three families requested that courtroom spankings be stopped.

The ruling came after the filing of a lawsuit by Mary Vasquez and Daniel Zurita against Garza last week. The lawsuit alleges that Zurita had felt compelled to spank his stepdaughter in lieu of a $500 fine and criminal conviction for truancy.

“Obviously, we had one judge acting outside his authority when forcing parents to spank their children in his courtroom,” Sossi said. “It doesn’t help the children with anything, and it contributes to a circus-like atmosphere in the courtroom.”

Cameron County Chief Counsel Richard Burst said he didn’t know whether the county would attempt an appeal.

“I think it’s best to sit on it and make a decision tomorrow,” said Burst, who with co-counsel Bruce Hodge, defended Garza at Wednesday’s hearing.

With the county’s legal represenation at his side, Garza took the stand early in the hearing to defend the spankings.

“I think that discipline works,” Garza said of paddling, which he said parents select in lieu of paying fines by choice. “It’s effective. It’s efficient. It’s immediate. There are no questions.”

Garza said that he did not compel or coerce parents to paddle children. However, he also testified that he does not provide other alternatives to fines, such as counseling or community service, because he does not believe these are effective.

He estimated that fewer than 100 children have been paddled in his courtroom since he took office in January 2007.

During the hearing, Sossi directed Garza to demonstrate how children are positioned for the paddling. Stepping down, Garza placed his arms on the armrests of a chair and bent down with his buttocks facing Limas.

“I find your approach trying to embarrass me,” Garza told the attorney. Sossi rebutted by asking whether Garza thinks 13- and 14-year-old girls and boys would find it humiliating.

Limas also found that there had been no criminal intent on Garza’s part and that the spankings had not been illegal. The judge ordered Garza to refrain from this form of disciplinary action in the courtroom.

Vasquez and Zurita also took the stand, noting that they do not believe in corporal punishment. Zurita said he felt he had no choice but to paddle his stepdaughter because he did not have the money for the $500 fine.

“There were no other options,” Zurita testified.

Limas indicated agreement in his comments from the bench, noting that he at times would not have been able to pay $500 either and that he had heard no testimony that the fines had been less than $500. “There needs to be a clear option,” Limas said.

Limas indicated that the Texas Legislature would be the body that could address the issue of corporal punishment in the courts.

“We are not here to make law,” Limas said.

Source: Perez-Trevino, Emma. Without a Paddle. The Brownsville Herald. June 11, 2008.