August 27, 2005
Pro-gay McCain supports Arizona’s antigay amendment
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).
Marriage in the Military: Child Support and Custody
(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).
Who Controls the Family?
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).
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
August 25, 2005
Case Law Developments: Refinancing Not Per Se Transmutation of Separate Property
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
Husband owned a town home when he married Wife. He kept the town home in his own name. Shortly after they married, he sold the town home and the couple purchased a house in their joint names. The sale of the town home and the purchase of the house were simultaneous transactions. The settlement from the sale of the town home was wired directly to the house settlement as the down payment. During the 13 years the couple lived in the house, they contributed equally to the mortgage payments and expenses for renovations and repairs and Wife made non-monetary contributions such as painting and wallpapering. The couple refinanced the house three times, dividing the proceeds from the third refinancing equally between them. At the time of the dissolution proceeding the house was worth $ 465,000.
The trial court found that the entirety of the house was marital property as the refinancing had transmuted Husband's separate interest in the property into marital property. The Virginia Court of Appeals, addressing the issue for the first time, followed those other states that have held that refinancing does not in itself transmute a house into marital property. The court of appeals held that Husband had traced the proceeds of his separate property and that the refinancings, joint titling and joint contributions to the property did not transmute the character of that separate contribution.
Children Fathered By Anonymous Sperm Donors Make Contact Online
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
August 24, 2005
Iraq secularists denounce "Islamist" constitution
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).
America has caved on Iraqi women's rights
(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).
Judge blocks adoption subsidy limits
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).
Swaziland Girls Celebrate End of Sex Ban
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.)
August 23, 2005
Case Law Developments: Parental Rights of Same-Sex Parents
K.M. v. E.G., 2005 Cal. LEXIS 9066 (2005)
Five years ago, K.M donated her ova to her lesbian partner E.G. after E.G. had tried for over a year to conceive a child through artificial insemination. E.G. then gave birth to twins. K.M. signed the hospital's standard ova donation consent form, which included a provision disclaiming any parental status toward the children born from the donated eggs. However, after the couple separated, K.M. filed a petition to declare her a parent of the five-year-old girls, so as to obtain custody or visitation.
Both the trial and appellate courts held that K.M. had waived her rights by signing the consent form. They analogized her position to that of a sperm donor who, under the California Family Code, has no parental rights or responsibilities toward children resulting from their donation.
Justice Carlos Moreno, writing for the 4-2 majority of the California Supreme Court, disagreed. Analogizing to other cases in which a sperm donor was held to be a father because of his relationship to the mother and the child, the court held that, because K.M. and E.G. were living together, were registered domestic partners, and intended to raise the children in their home together, the statutory waiver did not apply.
The court then analyzed the case under the terms of the Uniform Parentage Act standard of “evidence of a parent-child relationship” and found that there was sufficient evidence of K.M.’s relationship to the children to establish parentage. The court considered K.M.’s genetic relationship with the children, the fact that they were being raised jointly with E.G. in their home, and testimony from teachers, caregivers, and friends regarding K.M.’s relationship to the girls. The court held that the hospital consent form's waiver was not relevant because, under the UPA, a parent may not waive his or her status by agreement prior to conception.
Distinguishing case law that had looked to the parties' intent regarding the children, the court noted that those cases involved situations in which three people claimed parentage (a husband and wife and a surrogate mother). An intent test was necessary in those cases because a child can only have two parents under California law. Here, the court noted, the court was not presented with choosing between mutually exclusive mothers, but merely with the question of parentage, for which the standard UPA analysis was appropriate.
Justice Joyce Kennard dissented, arguing that the court should apply the sperm donor statute to exclude K.M.’s from parentage.
Justice Kathryn Werdegar’s dissent argued that the “intent test” should apply and that K.M. had not established her intent to be a parent. Justice Werdegar noted that K.M. could have designated herself as an “intended parent” in executing the ova donation agreement and that, while the girls were raised in K.M. and E.G.’s home, the women had kept K.M.’s biological connection to the children a secret.
Text of opinion on web at
The California Supreme Court decided two other cases involving parental rights of lesbian mothers today as well.
Elisa B. v. Sup. Ct., 2005 Cal. LEXIS 9065 (2005)
Elisa and her partner Emily were each artificially inseminated from the same sperm donor and each had children at the same time. Elisa had one child and Emily had twins. Emily stayed home with the children and Elisa, who earned more, supported the family financially. After the couple separated, Elisa continued to provide financial support for the twins, but when her job situation changed, she told Emily that she would no longer pay support. Emily sued and the court ordered support be paid. The appellate court reversed. The Supreme Court granted the writ to review the appellate court’s decision.
The Supreme Court court unanimously agreed that Elisa was the parent of the twins born to her partner and had a responsibility to pay child support. The partners had agreed that they were both parents of all three children and conducted themselves in a manner consistent with that agreement. The court noted that California, by virtue of allowing second parent adoptions, had previously decided that a child may have two parents of the same sex. The court then applied the UPA standard for a presumed father, finding that Elisa had received the children into her home and had openly held herself out as their parent.
Text of opinion on the web at http://www.courtinfo.ca.gov/opinions/documents/S125912.PDF
Kristine H. v. Lisa R., 2005 Cal. LEXIS 9064 (2005)
Here too, the couple involved had expressed a clear intent that they both be parents. When Kristine was pregnant, she and her partner Lisa filed suit and obtained a stipulated judgment declaring that they were both “the joint intended legal parents” of the unborn child so that the hospital would allow Lisa’s name to be included on the birth certificate. After raising the child together for two years, the couple separated. Kristine then filed an action requesting that the stipulated judgment be set aside, arguing that the court had lacked subject matter jurisdiction because the child was not yet born.
The trial court denied Kristine’s motion to vacate the judgment, rejecting the subject matter jurisdiction argument. The Court of Appeal reversed on a different ground, concluding that the judgment was void because it was based upon a stipulation of the parties and remanded for a finding of parentage under the UPA. The Supreme Court of California reversed, holding that it need not decide the validity of the judgment because Kristine was estopped from challenging the validity of that judgment. The court reviewed the many different circumstances in which estoppel had been applied in actions involving parental rights and duties and concluded that Kristine’s actions fell squarely within the requirements for estoppel.
Text of opinion on the web at http://www.courtinfo.ca.gov/opinions/documents/S126945.DOC
August 21, 2005
Law Review Article: Foster Care and Childhood Poverty
Fixing Foster Care or Reducing Child Poverty: The Pew Commission Recommendations and the Transracial Adoption Debate. This article focuses on one aspect of the Pew Commission's recommendations regarding data collection and analysis on foster children and whether the child welfare system is successful. Sarah Ramsey provides an overview of the constitutional framework for protection and a review of major changes in foster care and then analyzes the extent to which additional information and oversite will help resolve policy debates over child poverty and transracial adoption. She concludes that attention to information-gathering and oversight are important steps for improvement, but unlikely to resolve the child poverty and transracial adoption debates, because these debates are as much about why children enter foster care as they are about how they should exit foster care. Sarah Ramsey, Fixing Foster Care or Reducing Child Poverty: The Pew Commission Recommendations and the Transracial Adoption Debate, 66 Mont. L. Rev. 21 (2005). Link to Article
View the Pew Commission Recommendations. Pew Commission Recommendations (last visited Aug. 19, 2005)
Case Law Development: Case Study - Prima Facie Case for Change of Custody
Lagro v. Lagro, 2005 ND 151; 2005 N.D. LEXIS 187 (2005)
This case present an excellent study for the difficulties in stating a case for change in custody. With plenty of excerpts from Mom's affidavits and a dissenting opinion to provide an entirely different view, the case would make an excellent problem for classroom discussion.
The parents in this action had been divorced less than ten months, with a joint custody arrangement in place, when mom moved for sole custody based on allegations that dad had been neglecting his parental duties and that she had been acting as the primary physical custodian since the divorce. She also alleged dad’s parenting was placing the children at risk of physical and psychological harm. She did not, however, present affidavits from experts, teachers or others to support her allegations. The North Dakota Supreme Court upheld the trial court’s dismissal of her petition without an evidentiary hearing on the basis that her allegations lacked sufficient detail and competency to state a prima facie case. According to the court, affidavits must provide “specific, credible evidence.” Mom’s allegations regarding Dad’s behavior did not include the basis on which she was claiming knowledge of this behavior. Similarly, the court held that her statements regarding the number of days the children had been residing with her was insufficient to show a change primary physical care had shifted to her because “strict mathematical calculation from the affidavits of the time spent with the child does not establish a change of primary physical care.”
The majority opinion held that the trial court’s determination should be reviewed on an abuse of discretion standard. Justice Kapsner dissented, arguing that the majority had ignored the plain words of the custody statute by changing what previous cases had held to be a question of law into a matter of discretion. Justice Kapsner suggests that, if the court is concerned that parties can too easily meet the statutory standard by providing unsupported allegations, the attorney’s fees provisions would provide amble deterrents.
Text of opinion on the web at http://www.ndcourts.com/_court/opinions/20050094.htm
Case Law Development: Expert Testimony In Child Abuse Actions
State v. MacLennan, 2005 Minn. LEXIS 480 (Minn. 2005)
This case involved a 17-year-old boy who shot his father and, to support his claim of self-defense, sought to introduce expert testimony on battered child syndrome. The trial court denied his motion and he was convicted of first-degree murder. The Minnesota Supreme Court affirmed the conviction on the basis that the defense had not provided allegations of physical or sexual abuse that would be a necessary foundation for the introduction of BCS evidence.
Nonetheless, the court goes on to analyze the issue of whether Minnesota recognized expert testimony regarding this syndrome and the relevant standard for admissibility of that evidence. Minnesota is one of the states which applies the “generally acceptance” standards of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) for the admissability of scientific evidence, rather than the test of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed. 2d 469 (1993), which requires expert testimony to have a reliable basis in the knowledge and experience of the relevant discipline. Here, the court held that the Frye standard, and its necessary hearings to determine acceptance by the scientific community, does not apply to expert testimony on "battered child syndrome."
The court reasoned that, unlike most testimony grounded in the physical sciences, which is based on complex tests and often provides proof of what actually happened in the case, testimony by "syndromes" experts provides general explanations for human behavior and may not be used to prove whether a defendant actually suffers from the syndrome. Thus, the court concluded that the Frye standard for evaluating scientific evidence was unsuitable and admissibility should turn on whether the evidence meets Minn. R. Evid. 702, which focuses inquiry primarily on whether the evidence will assist the jury.
Text of opinion on the web at:
To read more about it:
Sarah H. Ramsey & Robert F. Kelly, Social Science Knowledge in Family Law Cases: Judicial Gate-Keeping in the Daubert Era, 59 U. Miami L. Rev. 1 (2004)
Stewart W. Gagnon, Daubert, its Progeny, And Their Effect on Family Law Litigation in State Courts, American Academy of Matrimonial Lawyers, at http://www.aaml.org/Articles/2000-6/GagnonDaubert.htm (last visited August 21, 2005)
Case Law Development: Parental Rights
Robertson v. Hecksel, 2005 U.S. App. LEXIS 17201 (11th Cir. 2005)
After her adult son was shot and killed by a police officer, Mother sued police officer and city under 42 U.S.C.S. § 1983 alleging a deprivation of her Fourteenth Amendment right to a relationship with her adult son and sought damages for loss of support, loss of companionship, and past and future mental pain and suffering. The Eleventh Circuit upheld the trial court’s dismissal for failure to state a claim, holding that the Fourteenth Amendment's substantive due process protections did not extend to the relationship between a parent and his or her adult son.
The court reviews what it considered ambiguous and conflicting decisions from other circuits on the issue. While the First, Third, Seventh, and District of Columbia Circuits had rejected claims of deprivation of parental rights incidental to deprivation of their adult child’s right, it was unclear whether these courts held that no right exists or that no remedy was available for incidental deprivations of the right. The court distinguished those cases in which individuals have brought Section 1983 actions as personal representatives of the decedent, rather than consortium claims. In those cases, the claimant is basing the action on the deprivation of the decedent’s clear constitutional right to be free from arbitrary deprivation of life whereas this case was based solely on the deprivation of the parent’s alleged constitutional right to companionship. The court held that no such right of a parent exists under the constitution, while commenting:
“Our holding that a parent does not have a constitutional right of companionship with an adult child is in no way meant to minimize the loss of an adult child as compared to a minor child. The loss of a child at any age, under any circumstances, is one of the most difficult experiences a parent can endure. While the parent/adult child relationship is an important one, the Constitution does not protect against all encroachments by the state onto the interests of individuals. Instead, it is the province of the Florida legislature to decide when a parent can recover for the loss of an adult child. We will not circumvent its authority through an unsupported reading of the Fourteenth Amendment.”
Text of the opinion on the web at: http://www.ca11.uscourts.gov/opinions/ops/200412367.pdf
August 21, 2005 | Permalink
Lawsuit: adoption-subsidy limits illegal, harmful
Child welfare advocates filed a class-action lawsuit in St. Louis, Missouri to try to stop a new law that would limit monthly support checks for certain families who adopt foster children. The lawsuit, filed in U.S. District Court in Kansas City, accuses 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. Currently, the state gives about $225 a month per child to families who have adopted some 11,000 children out of foster care - regardless of the family's income. But legislators, grappling with a tight state budget, created limits earlier this year that restrict the subsidies to families earning less than 250 percent of the poverty level, $48,375 annually for a family of four. The state has estimated that about 2,000 children will lose subsidies, with initial estimates of a $12 million savings next fiscal year. The state Department of Social Services reduced that estimate Tuesday to between $6 million and $8 million. Critics say Missouri will end up spending more to keep an adoptable child in foster care as families will have little incentive to adopt. By: Associated Press, BostonHerald.com.
http://news.bostonherald.com/national/view.bg?articleid=98299, last visited August 21, 2005.
How's your sex life?
Insurance companies in England are to start asking applicants about their sexual behaviour, rather than if they are gay, before demanding an HIV test. Life insurance companies are to stop asking questions about applicants' sexuality that have enabled them to discriminate against gay men. Insurance application forms currently include a question about the applicant's sexual orientation. In many cases, if a male applicant declares himself to be gay, the insurer will ask him to take an HIV test before proceeding with the application. But from the end of September, the emphasis will switch to behaviour rather than sexuality, with insurers asking: 'In the last five years have you been exposed to the risk of HIV infection?' The Association of British Insurers' statement of best practice on HIV and insurance, drawn up last October, recognises that being a gay man does not necessarily mean a person is at higher risk of HIV infection. By Jill Insley, The Observer.
http://observer.guardian.co.uk/cash/story/0,6903,1553021,00.html, last visited August 21, 2005.
Philippine Maids Seek Shelter From Abuse
DUBAI, United Arab Emirates. -- The Arab family that hired Lisa forced her to work impossible hours, she said. Foot massages were ordered at 2 a.m., then breakfast had to be made four hours later. And for half a year, the family paid the Filipina maid nothing. . . . Filipina women have been flooding into this fast-growing city to work as maids for as little as $160 a month. But the influx has led to a doubling of those seeking shelter in recent weeks, with as many as five runaways a day fleeing to the consulate, labor attache Vicente Cabe said Wednesday. . . . With so many reports of abuse, Indonesia recently banned unskilled women from working in the Gulf as house maids. Philippine Consul-General Generoso Calonge said he wanted his government to do the same. By: Jim Krane, WashingtonPost.com.
http://www.washingtonpost.com/wp-dyn/content/article/2005/08/18/AR2005081800213.html, last visited August 21, 2005.
Backers: Same-sex union ban advancing; Opponents say the proposed amendment to the constitution is politically motivated
Supporters of a constitutional amendment that would ban same-sex marriage in Florida said Friday that they are "on the brink" of collecting enough signatures to prompt a Supreme Court review of their proposal. The measure, which supporters want to put on the November 2006 ballot, would define marriage in Floridaas "the legal union of only one man and one woman as husband and wife." It also would ensure that "no other legal union that is treated as marriage or the substantial equivalent" would be allowed. Backers say the amendment is necessary because gay marriage would undermine heterosexual marriage. Opponents call it an attempt to sanction discrimination and to rally social conservatives to the polls next year. By Jason Garcia and Arin Gencer , OrlandoSentinel.
http://www.orlandosentinel.com/news/local/state/orl-marriage2005aug20,0,1154555.story, last visited August 21, 2005.