Wednesday, August 31, 2005
This year's state legislative season draws to a close having produced a near-record number of laws imposing new restrictions on a woman's access to abortion or contraception. Since January, governors have signed several dozen antiabortion measures ranging from parental consent requirements to an outright ban looming in South Dakota. Not since 1999, when a wave of laws banning late-term abortions swept the legislatures, have states imposed so many and so varied a menu of regulations on reproductive health care. Three states have passed bills requiring that women seeking an abortion be warned that the fetus will feel pain, despite inconclusive scientific data on the question. West Virginia and Florida approved legislation recognizing a pre-viable fetus, or embryo, as an independent victim of homicide. And in Missouri, Gov. Matt Blunt (R) has summoned lawmakers into special session Sept. 6 to consider three antiabortion proposals. By Ceci Connolly, Washingtonpost.com.
http://www.washingtonpost.com/wp-dyn/content/article/2005/08/28/AR2005082800981.html (last visited August 30, 2005).
Texas doctors who perform abortions without parental approval or after the third trimester could face capital murder charges because of a new law that takes effect this week, a prosecutors group says. The Texas District and County Attorneys Association has outlined that scenario in its new book updating the Texas penal code and in public presentations around the state. The group says such charges could occur under the new law because of the 2003 fetal protection law. Key legislators said Monday that wasn't their intent. (Thanks to Professor Paul Caron for the tip.) By: Kelly Shannon, Associated Press, HoustonChronicle.com.
http://www.chron.com/cs/CDA/ssistory.mpl/metropolitan/3330600 (last visited August 31, 2005).
(Open Forum--Opinion) Peggy Drexler's new book, "Raising Boys Without Men: How Maverick Moms Are Creating the Next Generation of Exceptional Men," contends that father-absent homes -- particularly "single mother by choice" and lesbian homes -- are the best environments for boys. While "Raising Boys" may seem like a harmless, feel-good affirmation for "maverick moms," it could have a damaging impact on children by affecting both the choices women make and family law. Drexler, who is in San Francisco this week for book signings and related events, contends that sons from fatherless families "grow up emotionally stronger," "have a wider range of interests and friendships" and "appear more at ease in situations of conflict" than boys from "traditional" (i.e., father- present) households. Her research, however, is flawed. By Glenn Sacks, Open Forum, San Francisco Chronicle, SFGate.com.
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/08/31/EDG8LEFOKI1.DTL (last visited August 31, 2005.
Tuesday, August 30, 2005
Case Law Development: Reformation Unavailable as Remedy for Unambiguous but Inequitable Property Division Agreements in Family Court
Gorman v. Gorman, 2005 R.I. LEXIS 166 (August 26, 2005)
In what the Supreme Court of Rhode Island terms a "close and troubling case," the court reversed a trial court order reforming the terms of a settlement agreement in a dissolution action. Husband and wife negotiated an agreement regarding property distribution, which they requested the family court in their dissolution action approve. The agreement contained a provision that divided all of Husband's specified stock option plan from his employment through a QDRO. However, Wife was unaware that Husband's employment also included a separate stock bonus plan that could not be subject to a QDRO. Two months after the divorce was finalized and the court had approved that agreement, Wife moved for "clarification" of the agreement and to reopen the judgment under Rhode Island's relief from judgment rule.
The trial court found the agreement ambiguous, given the negotiations and understandings of the parties, and ordered that the agreement be reformed to divide all of Husband's stock according to the agreement.
The Supreme Court held that the trial court erred in finding the agreement ambiguous as the provision clearly identified the stock option plan that would be subject to division. The fact that Husband had an interested in a different stock bonus plan did not make the agreement ambiguous. The court noted that, were this an ordinary contract, that finding would end the analysis. In this case, it meant that reformation was not a remedy available to the family court.
However, the trial court was not outside its authority to refuse to enforce the agreement. "As a result of the fundamental difference between ordinary business contracts and spousal agreements, family courts should and do monitor such agreements with special attention and with a concern for the equities of the situation." The appropriate approach, according to the court, would be for the family court either to have "directed the parties to negotiate a new Property Settlement Agreement for review and approval by the court or simply ordered the parties to proceed to trial." It remanded for the trial court to proceed accordingly, in the "fervant hope" the parties would be able to reach a negotiated resolution. While noting that "we perceive no evidence of unethically sharp dealing on the part of defendant or his attorney," the court did caution to attorneys in general that, "it is incumbent upon parties seeking court approval of a proposed property settlement agreement to bring the salient features of the agreement to the attention of the Family Court justice."
Neal v. Commissioner of Internal Revenue, T.C. Memo 2005-201, 2005 Tax Ct. Memo LEXIS 201 (August 24, 2005)
We tell students that a divorce judgment does not necessarily affect the obligations a spouse might have to creditors. Here's a lovely tax court opinion to make the point clear.
Two doctors are married and have three children. They maintain separate finances throughout their marriage. Doctor Mom pays nearly all the household expenses, takes care of the kids, and earns professional awards. Doctor Dad cheats on his taxes and his wife, spends lavishly (and secretly) on himself and his lover, and drives himself into bankruptcy twice. When Doctor Mom finally gets the picture, she's given a divorce judgment that orders Doctor Dad to pay "all outstanding joint Federal income taxes as well as any other future tax liability having been incurred during the course of the parties' marriage."
But Doctor Mom still has to deal with the IRS on the unpaid tax liabilities from their joint tax returns. In this proceeding, she requests equitable relief from liability for taxes incurred during her marriage. The opinion makes it clear that, even under the egregious facts of this case, equitable relief is not lightly granted. The court notes that two of the prerequisites for equitable relief (whether petitioner had knowledge of or reason to know of Alimam's nonpayment of the taxes due and whether petitioner would suffer economic hardship if not granted relief from joint and several liability) are "difficult questions." In balancing all the facts, however, the court decides that Doctor Mom has paid enough.
Opinion on the web at: http://www.ustaxcourt.gov/InOpHistoric/NealRuthE.TCM.WPD.pdf
In re Dakota H., 2005 Cal. App. LEXIS 1351 (August 26, 2005)
This termination of parental rights case not only clearly describes the procedural stages of a termination case, but also demonstrates how the shift in the burden of proof and presumptions at various stages makes all the difference in the outcome. Moreover, the case is an example of a heart-wrenching story that leaves one wondering how well the legal system really serves the children and families involved.
Full text of opinion at: http://www.courtinfo.ca.gov/opinions/documents/D045824.PDF
State v. Petithory, 2005 Iowa Sup. LEXIS 115 (August 26, 2005)
"Parents can commit a crime by exposing their children to danger--even if the parents themselves pose the danger. In this case, a baby girl lost her life because of her father's meth abuse; coming down from a high, he fell asleep while she sat in a running bathtub." Father argued that the criminal neglect statute, requiring proof that he “knowingly or recklessly exposes [the child] to a hazard or danger” could not extend to situations in which the danger is the parent himself. The Iowa Supreme Court disagrees with plenty of citations to “common sense”, maxims of statutory construction, and excerpts from expert testimony about the effect of methamphetamine abuse on parenting.
Full opinion on the web at: http://www.judicial.state.ia.us/supreme/opinions/20050826/03-1679.asp
Monday, August 29, 2005
In The Public and Private Ordering of Marriage, Brian Bix explores the appropriate extent of public and private ordering of marriage and marriage-like relationships. He presents an overview of public and private ordering and discusses common objections to private ordering including creation of agreements contrary to the public interest, harm to third parties, and the possible inability of the parties to protect their own interests. He suggests that both individual autonomy and protection of the vulnerable might be achieved through the creation of a menu of acceptable relationship options potentially coupled with procedural protections similar to those applied to premarital agreements. Prof. Bix concludes by urging consideration of the role of marriage from individual and societal perspectives, identification of marital structures necessary to achieve the functions of marriage, and the extent to which the state should favor some forms of private ordering over others. Brian H. Bix, The Public and Private Ordering of Marriage, 2004 U. Chi. Legal F. 295 (2004). Link to Article
The Law Commission of Canada (a law reform agency advising Parliament on improvement of Canadian law) has considered whether individuals should be allowed to designate whether their relationships are governed by particular law. Their report, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, discusses the merits and problems associated with governance through private law (such as contract), ascription (set of obligations presumed to meet the needs of most people), and registration (an orderly framework for choosing rights and responsibilities). Link to Commission Report
To begin thinking about the rights and obligations of marriage, visit a website listing them. Rights and Obligations
Sunday, August 28, 2005
Rodney P. v. Stacy B., 2005 Ky. LEXIS 245 (August 25, 2005)
This case of first impression, the Kentucky Supreme Court examines child support obligations for an incarcerated child. Here, Mom had custody of two children. She moved to modify Dad’s child support payments based on Dad’s increased income. Dad responded that, because the oldest child was in state custody for status and delinquency offenses, child support should be calculated based on Mom's custody of one child rather than two. Mom did not provide any evidence that she was providing support for the incarcerated child or had expenses related to her custody of him. Dad argued that, because the state could sue him to collect the costs of support for the son, if he were also ordered to pay Mom support for the son, he would end up paying twice.
The court reviews the few cases across the United States involving incarcerated children and child support, noting that, while most held that parents had a continuing duty of child support for an incarcerated child, those cases were ones in which the parent was seeking to terminate the support obligation entirely under an emancipation theory. Here, Dad was not seeking to terminate his support obligation, but rather to have support calculated as if he were the custodial parent of the incarcerated son. The court agreed with this approach.
Text of opinion at http://www.kycourts.net/Supreme/SC_Opinions.shtm
The inclusion of unprecedented language in a draft treaty to protect and promote the rights of persons with disabilities; allowing sexual and reproductive health services to become a human right, was met by widespread support of governments participating in a United Nations session. However, it is feared that the language that the document could be used to turn abortion rights into international law. Pro-life NGOs around the globe are concerned that no EU member states have challenged the language, including Malta amongst other states where abortion is either illegal or heavily restricted. Among such countries are also Portugal, Poland and Ireland. According to the Catholic News website CWNews.com, the draft article reads that persons with disabilities are to be provided with the same range and standard of health and rehabilitation services as provided other citizens, including sexual and reproductive health services, where according to the same source, in UN vernacular, sexual and reproductive services translates as abortion. By Ruth Davies, MaltaMedia.com.
http://www.maltamedia.com/news/2005/eu/article_7204.shtml (last visited August 28, 2005).
Saturday, August 27, 2005
A proposed constitutional amendment to ban same-sex marriage in Arizona has just gotten a big endorsement—from the state's notoriously pro-gay Republican U.S. senator, John McCain. At a Thursday night meeting with the group Protect marriage Arizona, McCain not only endorsed the proposal, he also signed a petition to place the measure on the November 2006 state ballot. McCain has opposed an amendment to the U.S. constitution banning same-sex marriage, saying it's an issue that should be left to the states. But in a statement, McCain said he believes that "the institution of marriage should be reserved for the union of one man and one woman." Advocate.com.
http://www.advocate.com/news_detail_ektid20099.asp (last visited August 27, 2005).
(Column) After applauding Missouri in my column for passing a law that protects Reservists and Guard Members from child support arrears as they go from high-paying civilian jobs to lower pay on the front lines of Iraq and Afghanistan, I recently learned that Governor Arnold Schwarzenegger may soon sign a bi-partisan supported bill (SB 1082) that would protect individuals with current custody orders in addition to fair child support protection that does not punish activated or deployed parents who can no longer exercise their parenting time. . . . The pending legislation addresses both the modification of child support payments and child custody orders. Michael Robinson, a lobbyist on family court issues in California who spearheaded the bill through the California Assembly and Senate, appears to have been successful in convincing California legislators that when military personnel are sent to potentially face death in Iraq, it is grossly unfair to allow ex-spouses to take advantage of this situation by filing suit for custody of the children when deployed service members are in no position to fight for their rights in court. . . . Because of the Bradley Amendment, a child support order can only be modified retroactively to the date of a filing of a petition. In so far as many reservists are called up on short notice and are not able to file a petition for a reduction in their monthly child support amount before they are deployed, they can return with arrearages, penalties and interest that cannot be forgiven. By Captain Gene Thomas Gomulka, Military.com.
http://www.military.com/NewContent/0,13190,Gomulka_082905,00.html (last visited August 27, 2005).
LINYI, China -- A crowd of disheveled villagers was waiting when Chen Guangcheng stepped out of the car. More women than men among them, a mix of desperation and hope on their faces, they ushered him along a dirt path and into a nearby house. Then, one after another, they told him about the city's campaign against "unplanned births." Since March, the farmers said, local authorities had been raiding the homes of families with two children and demanding at least one parent be sterilized. Women pregnant with a third child were forced to have abortions. And if people tried to hide, the officials jailed their relatives and neighbors, beating them and holding them hostage until the fugitives turned themselves in. By: Philip P. Pan, WashingtonPost Foreign Service, Washingtonpost.com.
http://www.washingtonpost.com/wp-dyn/content/article/2005/08/26/AR2005082601756.html?referrer=email&referrer=email (last visited August 27, 2005).
Friday, August 26, 2005
Case Law Developments: Conditioning Consent to Adoption Makes Post-nuptial Agreement Void Against Public Policy
Stutz v. Stutz, 2005 Tenn. App. LEXIS 517 (August 23, 2005)
This case presents no real suprises as law goes. Readers will not even be surprised to know that couples will use children as a bargaining chip. What makes this case unique is that the bargaining was not during divorce but in negotiating a post-nuptial agreement in the 20th year of an intact marriage in order to convince a husband to consent to an adoption.
Mom wanted a baby and was unable to conceive. Dad did not want to adopt. Mom agrees in a post-nuptial to surrender her equitable share of the $11 million dollar marital estate and in return for Dad's agreement to adopt a child. The case has plenty of excerpts from the agreement, letters and testimony to paint a vivid picture of the mindset of both Mom and Dad as well as the questionable role of the attorneys involved in drafting the agreement.
The court, of course, held the agreement void as against public policy, stating that "An adoption should not be viewed as a business opportunity by an adoptive parent.... We find the agreement arrived at by these parties to be both cynical and self-serving." Your students will see it as a "Believe It or Not" story.
Full text of opinion on the web at http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/053/stutzlindaOPN.pdf
Thursday, August 25, 2005
Wiese v. Wiese, 2005 Va. App. LEXIS 322 (Aug. 23, 2005).
The Virginia Court of Appeals joins the courts in Ohio and Idaho in holding that refinancing does not per se transmute separate property. The case presents nice straightforward facts for demonstrating the arguments regarding transmutation and would make an excellent classroom example.
Text of opinion on the web at http://www.courts.state.va.us/opinions/opncavwp/2251044.pdf
More than one million children are "fathered" by sperm donors each year. A Yahoo chat group allows offspring from the same sperm donor to contact each other. Nearly 950 matches have been made since the chat group started in 2000. Visitors can check for matches but must pay a $25 fee for contact information. By Kay Miller, Minneapolis Star-Tribune. Link to Article
"The same man fathered their three children. And neither woman has ever met him." Two mothers used the same sperm donor and met online years later. The donor may have fathered as many as 100 children. By Kay Miller, Minneapolis Star-Tribune. Link to Article
Visit the Donor Sibling Registry. Registry
Wednesday, August 24, 2005
Secular Iraqis said on Wednesday, August 24, that a proposed new constitution left no room for doubt about the Islamist path the country was heading down two years after a U.S.-led invasion was supposed to produce greater freedoms. The document presented to parliament on Monday is suffused with the language of political Islam in defining the state, and assigns a primary role to Islam as a source for legislation. . . . The draft says Islam is the official religion of the state and there can be no law that contradicts the "fixed principles of its rulings". The preamble says the constitution responds to "the call of our religious and national leaders and the insistence of our great religious authorities". "Human rights should not be linked to Islamic Sharia law at all. It should be listed separately in the constitution," said Safia Souhail, Iraq 's ambassador to Egypt. The prominent women's rights campaigner denounced wording that grants each religious sect the right to run its own family courts -- apparently doing away with previous civil codes -- as an open door to further Islamicise the legal system. By Andrew Hammond, Reuters Foundation, AltertNet.
http://www.alertnet.org/thenews/newsdesk/HAM421341.htm (last visited August 24, 2005).
(Op-Ed Column) . . . America has caved on Iraqi women's rights. In fact, the women's rights activists supported by George and Laura Bush may have to leave Iraq . But, as a former C.I.A. Middle East specialist, Reuel Marc Gerecht, said on "Meet the Press," U.S. democracy in 1900 didn't let women vote. If Iraqi democracy resembled that, "we'd all be thrilled," he said. "I mean, women's social rights are not critical to the evolution of democracy." Yesterday, the president hailed the constitution establishing an Islamic republic as "an amazing process," and said it "honors women's rights, the rights of minorities." Could he really think that? Or is he following the Vietnam model - declaring victory so we can leave? By Maureen Dowd, NY Times.com.
http://www.nytimes.com/2005/08/24/opinion/24dowd.html (last visited August 24, 2005).
A federal judge in Kansas City agreed Wednesday, August 18, to temporarily block a new Missouri law that would limit monthly support checks for certain families who adopt foster children. . . . It comes after a class-action lawsuit filed in U.S. District Court in Kansas City accused Gov. Matt Blunt and Gary Sherman, director of the Missouri Department of Social Services, of failing to protect the interests of abused and neglected children. By Cheryl Wittenauer, The Associated Press.
http://www.kansascity.com/mld/kansascity/news/local/12410001.htm (last visited August 24, 2005). Additional background information may be found earlier in this Blog and at http://news.bostonherald.com/national/view.bg?articleid=98299 (last visited August 21, 2005).
MBABANE, Swaziland. Thousands of Swazi girls Tuesday celebrated the end of a ban on sexual activity on Tuesday, August 23 that had been imposed as a way to combat AIDS in one of the countries hit hardest by the epidemic. King Mswati III, Africa's last absolute monarch, had reinstated the "umchwasho" chastity ritual for five years in 2001, banning sexual relations for girls younger than 18. But the move was ridiculed as old-fashioned and unfairly focused on girls and the king himself was accused of ignoring it. The King’s decision marks the end of the "umchwasho" rite banning sex for girls younger than 18. The ancient rite was imposed in 2001 in a bid to slow the spread of AIDS. Experts said the ritual did little to slow AIDS in Swaziland, where 42.6 percent of pregnant women and up to 40 percent of adults are infected with the virus the highest rate in the world. By Thulani Mthethwa, The Associated Press, WashingtonPost.com.
http://www.washingtonpost.com/wp-dyn/content/article/2005/08/23/AR2005082300876.html?sub=AR, (Last visited August 24, 2005.)