Thursday, October 29, 2015
A Tennessee court granted Mother and Father's divorce in 2000. Because Mother's was found to have a drug problem and was not visiting or contacting the children, the court denied Mother access to the children until she successfully demonstrated she was drug-free.
Nine months later, Father filed a petition to terminate Mother's parental rights. Father listed in that petition the formal marital home as Mother's address even though Father knew the court had divested Mother of any right or interest in the house in the divorce judgment and Father, who resided in the home, knew Mother did not. Unable (predictably) to accomplish personal service, Father served Mother by publication, however, Father did not follow Tennessee's statutory requirements for such service. Mother did not answer or appear and the trial court granted Father's motion for default judgment terminating Mother's parental rights.
In 2010, almost nine years later, Mother filed a motion to set aside the default judgment. She asked the court to find the default judgment void for lack of personal jurisdiction. The trial court determined that Father knew Mother did not reside at the marital residence when summons issued and made no attempt to locate Mother before resorting to service by publication. The trial court set aside the default judgment and the intermediate appellate court affirmed the judgment. The Supreme Court of Tennessee granted Father's permission to appeal.
Friday, September 4, 2015
Richard Carlson (South Texas) has posted, "A Child's Right to a Family versus a State's Right to Institutionalize the Child," on SSRN. Carlson's article explores tension in the United Nations Convention on the Rights of the Child between institutionalization and family placement as options for children without parents or guardians. Carlson acknowledges the Convention adopts a "child's best interest" standard toward placement and embraces the benefits of raising children in a "family environment." However, Carlson argues that the Convention's grant of broad discretion to states to institutionalize children, "cannot be squared with a 'child’s best interests,' the 'family environment' ideal or modern child development theory.
Carlson's abstract reads:
Convention on the Rights of the Child (CRC), declares that a child has the right to be raised in a "family environment." Nevertheless, the CRC grants states the discretion to institutionalize children who are without functioning families. States have this discretion because the CRC does not require states to arrange, facilitate, or even allow for child placement in a permanent, substitute family. In this article, I describe this contradiction in international law -- a child's right a family environment versus the state's discretion to institutionalize the child -- and I explore the possible reasons for the contradiction. A chief reason for the contradiction is anxiety about intercountry adoption. I propose some ways to resolve the contradiction and to pave the way for the creation of a true right to a family, including by placement in a permanent substitute family.
Thursday, October 17, 2013
Reversing 24-year old precedent, the Alabama Supreme Court held earlier this month that Alabama law does not authorize courts to order parents to pay postminority educational expenses. The case is Ex Parte Christopher, No. 1120386 (Ala. October 4, 2013).
In Ex Parte Bayliss, 550 So.2d 986 (Ala. 1989), the court interpreted an Alabama statute to allow a divorce court to order a noncustodial parent to pay a child's college expenses. The statute reads:
Upon granting a divorce, the court may give the custody and education of the children of the marriage to either father or mother, as may seem right and proper...
Christopher turned on the meaning of "children of the marriage" and the court's obligation to follow stare decisis. The court looked to the common law and dictionary definitions of "children," which is not a defined term in the statute, to conclude the phrase refers to minors. The court noted that interpreting the term "children" to include adults would lead to the "absurd and unjust" result of court "assign[ing] custody of the adult children of a marriage to one of the divorcing parties."
Regarding stare decisis, the court wrote:
By departing from settled precedent on the meaing of the term "children" in [the statute] and expressly overturing eight cases that conformed to that precedent, the Bayliss court indeed "unsettled" the law. The question arises whether we are bound by the principle of stare decisis to follow Bayliss, even though that opinion itself repudiated that principle. We are not so constrained.
The majority determined that the court erred in Bayliss and the court had an obligation to correct the error.
Two justices dissented in separate opinions in a lengthy decision including six opinions and 74 pages. One dissenting justice, citing the acquiescence principle, observed that in the 24 subsequent years, the Alabama legislature had not statitutorily overturned Bayliss. The justice finds this fact to be an instructive interpretive benchmark.
The states are divided on this issue with some providing no discretion for courts to order parents to support or educate nonminority children, e.g., Curtis v. Kline, 666 A.2d 265 (Pa. 1995) (no duty to support postminority children), others providing for the duty to pay educational expenses to age 21, e.g., Utah Code Ann. sec. 15-2-1, and still others giving courts authority to do so without regard to age, e.g., Donarski v. Donarski, 581 N.W.2d 130 (N.D. 1998) (postminority support is limited and based upon case circumstances).