Family Law Prof Blog

Ontario urged to spurn sharia

Ontario Premier Dalton McGuinty will let down women and help the cause of political Islam if he allows faith-based arbitration to go ahead, anti-sharia demonstrators charged Thursday at an emotional rally in Toronto. The protest was one of 12 in cities across Canada and Europe, as women's and human-rights groups lobbied against a proposal to allow sharia tribunals in Ontario. . . . Earlier this week, the Premier vowed that the rights of women will not be compromised if Ontario allows Islamic law to be used in family arbitration cases under the 1991 Ontario Arbitration Act. The government is reviewing a report by former New Democratic attorney-general Marion Boyd that concluded that Muslims in Ontario should have the same rights as other religious groups to settle family disputes through faith-based arbitration as an alternative to the courts. By Marina Jiménez, Grandmail.com. http://www.theglobeandmail.com/servlet/ArticleNews/TPStory/LAC/20050909/SHARIA09/TPNational/Canada (Last visited September 10, 2005, REO).

People and Family Law in the News

Monaco's Prince Albert II believes he was "set up" by a former flight attendant who says she had his child. "It was a very difficult moment for me," Albert, 47, told The New York Times in Saturday's editions. He added that he's still "coming to terms" with the unintended fatherhood. By Associated Press. http://www.fosters.com/apps/pbcs.dll/articleAID=/20050910/NEWS1402/109100009 (Last visited September 10, 2005, REO).

Singer Bobby Brown has made good on his promise to put money into an educational fund for his children and to pay them child support. Brown, during a voluntary appearance in Norfolk Probate and Family Court on Wednesday, told Judge Paula Carey he's up to date with his $5,000 monthly child support payments and with his contributions to their educational fund. . . . Brown, a Boston native, was sentenced to 90 days in prison in June 2004 for missing three months' worth of child support payments. . . . Brown was jailed for a day in March of that year after he failed to pay $63,000 he owed Ward.. By Associated Press, Boston Globe, Boston.com., http://www.boston.com/news/local/massachusetts/articles/2005/09/08/bobby_brown_appears_for_child_support_hearing/ (Last visited September 10, 2005, REO).

Minnesota Vikings All-Pro defensive tackle Kevin Williams faces a court date next week stemming from an Aug. 28 arrest for domestic violence, according to police records. Minnetonka police charged Williams with fifth-degree domestic assault, a misdemeanor, after his wife called 911 during an early-morning altercation at their home that involved a 13-inch kitchen knife. By. Judd Zulgad and Kevin Seifert, Star Tribune, Startribune.com. http://startribune.com/stories/503/5606385.html (Last visited September 10, 2005, REO).

UK calls for Tax levy to provide for child support payments

LONDON (Reuters) - The United Kingdom’s child support payments should be collected by the Inland Revenue rather than the much criticised Child Support Agency, former welfare minister Frank Field said on Thursday. "We've passed the stage where a billion pounds of maintenance has been written off as unrecoverable," Field told the BBC. "We're in a position where seven in 10 parents expecting maintenance are either getting nothing at all or only partial payment.  By:  Reuters, UK , Know.now. http://today.reuters.co.uk/news/newsArticle.aspx?type=topNews&storyID=2005-09-08T094530Z_01_SCH835016_RTRUKOC_0_UK-BRITAIN-CSA.xml (Last visited September 9, 2005, REO).

Michigan to try child support amnesty

Critics of a new amnesty program in Michigan for parents owing back child support say the program doesn't help those who want to pay but are broke. The Detroit News said parents who owe in Michigan and begin paying on their overdue child support bills between Oct. 1 and Dec. 31 will avoid civil and criminal penalties that range from jail to restricted drivers licenses to liens on property. The full past due amount must be paid by the end of the year to qualify. More than $8.8 billion in child support is owed by 610,000 parents in Michigan . Critics say the program will only benefit well-off parents who can afford to make payments. By:  UPI, Sciencedaily.com. http://www.sciencedaily.com/upi/?feed=TopNews&article=UPI-1-20050907-19151200-bc-us-childsupport.xml (Last visited September 10, 2005, REO).

California Governor to Veto Bill Authorizing Same-Sex Marriage

LOS ANGELES, Sept. 7 -- Gov. Arnold Schwarzenegger (R) announced Wednesday night that he will veto landmark legislation that would have allowed same-sex couples to marry. In a statement, Schwarzenegger's press secretary, Margita Thompson, said the governor opposes the legislation, passed Tuesday night by the California Assembly and last week by the state Senate, because he thinks the matter should be decided by California 's courts or its voters.  By: By John Pomfret, WashingtonPost Staff Writer, Thursday, September 8, 2005; Page A04, Washingtonpost.com

http://www.washingtonpost.com/wp-dyn/content/article/2005/09/07/AR2005090702020.html?referrer=email&referrer=email, (Last visited September 8, 2005, REO).

Case Law Development: Agreements to Pay Child Support Beyond Majority Enforced as Decrees; No Joinder of Tort Actions Permitted

In this case, Mother and Father agreed that both would pay for their child's post-secondary education, with a schedule for adjustments in child support. Child had a Uniform Gift to Minors Act (UGMA) account, for which Father was custodian.  The Colorado Court of Appeals upheld the trial court’s adjustment of child support on terms other than those in the agreement but reversed the trial court’s removal of Father as the custodian of the UGMA account on the grounds that the trial court did not have jurisdiction over a tort of breach of fiduciary duty. 

In re Marriage of Ludwig, 2005 Colo. App. LEXIS 1467 (September 8, 2005)
Opinion on the web at http://www.courts.state.co.us/coa/opinion/2005/2005q3/04CA0650.pdf (last visited September 9, 2005 bgf)

The court reasoned that, while agreements to extend child support beyond the age of majority are enforceable, they are enforced as decrees, rather than contracts, so that modifications to the agreement are governed by the standards for modification of any child support order.   The court also held that the trial court did not have to take into account the daughter’s UGMA account as an offset against Father’s child support obligation, as the determination of whether a child’s income should count in child support calculations is one made based on the totality of circumstances.  Finally, the court held that the trial court lacked jurisdiction over the breach of fiduciary claim, as Colorado does not permit joinder of interspousal tort claims or contract claims with marital actions.

Case Law Development: Jurisdiction and Parentage Decision in Surrogacy Contract Situations

The Ohio Court of Appeals needed to unweave the tangled web of assisted reproduction and jurisdiction in this case involving three parents, from three different states, each claiming to be the legal parent of triplets.  The case has made some news simply because the story is so intriguing. For law professors, this would make a great case study to help the students trace through the provisions of the UCCJA and PPKA and differentiate parentage determinations from custody decisions.

Rice v. Flynn, 2005 Ohio 4667; 2005 Ohio App. LEXIS 4205 (September 7, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/9/2005/2005-ohio-4667.pdf
(last visited September 9, 2005)

Dad (from Ohio) donated the sperm, Biological Mom (from Texas) donated the egg, and Gestational Mom (from Pennsylvania) donated the womb.  This was all part of a surrogacy contract in which neither woman was to be the mother of the child. When the triplets arrived, all claimed custody.  Dad then brought an action for custody against Gestational Mom in Pennsylvania.  The court held that the parties' surrogacy contract was void and gave temporary custody to Gestational Mom.  The problem was, Biological Mom, wasn't given notice of the proceedings. Biological Mom then sues Gestational Mom and Dad in Ohio, asking that the court establish her parentage and that of Dad.  On cross motions for summary judgment, the court found that it had no jurisdiction over the parentage of Gestational Mom, as that issue was for the Pennsylvania courts.  It did assert jurisdiction over the issue of parentage (but not parenting) of Dad and Biological Mom, finding that they were indeed the parents of the child.

The court of appeals affirmed the trial court’s decision as to jurisdiction, noting that under the UCCJA and PPKA, the Pennsylvania court had exclusive jurisdiction over the “parenting” issues in the case, but not over the “parentage” issues of Dad and Biological Mom, as there was no notice given to her.  Thus, the Ohio trial court had jurisdiction to determine that Biological Mom and Dad were the mother and father, but not to allocate parental rights and responsibilities.

The court reversed the trial court, however, on the basis that, while the court properly based the first part of its decision on the genetic testing of the parents, it did not examine whether the genetic parents waived or relinquished parental rights.  This second step is necessary in any case involving a gestational surrogacy contract.

Whew!

Case Law Development: Hearing Required on Motions to Modify Custodial Parent's Authority in Health Care Decisions

In this lastest installment of an extended custody battle, the Minnesota Court of Appeals holds that when a party establishes a prima facie case for limiting the custodial parent’s authority to make health-care decisions, the district court errs by failing to hold an evidentiary hearing pursuant to Minnesota's statutes.

In re Marriage Tarlan, 2005 Minn. App. LEXIS 744 (September 6, 2005)
Opinion on the web at http://www.courts.state.mn.us/opinions/coa/current/opa042257-0906.htm
(last visited September 9, 2005 bgf)

The court noted that the statute for modification of custodial parent decisionmaking, which is identical to the Uniform Marriage and Divorce Act, requires a hearing.  The court interpreted this to mean that a hearing is required if the petitioning parent has established a prima facie case for modification under the statute.   

Mother had alleged that Father was continually weighing his daughter, against her will, causing her emotional trauma.  The county social service agency had also recommended that Father obtain counseling for his daughter and refrain from weighing her against her will.  The court found that these allegations, if true, presented a prima facie case for modification of a custodial parent's health care decision authority.  That standard requires that the parent's decisions endanger the health of the child.  The court stated, "Emotional abuse alone may constitute sufficient endangerment, and when an allegation of such abuse is supported by some evidence, an evidentiary hearing is appropriate."

Case Law Development: Covenant Not to Solicit Establishes Goodwill as Personal, Not Subject to Division

The Florida Court of Appeals held that, for the purpose of distinguishing enterprise goodwill from personal goodwill in the valuation of a business, there is no distinction between a "non-solicitation/non-piracy agreement" and a covenant not to compete.  The presence of either in a business agreement establish the goodwill component of the business as personal, thus not subject to division.

Held v. Held, 2005 Fla. App. LEXIS 14138  (September 7, 2005)
Available online at http://www.4dca.org/opfrm.html
(last visited September 9, 2005 bgf)

Case Law Development: Nations are "States" under UCCJA

In a case of first impression, the Maryland Court of Special Appeals navigates the UCCJA in a case involving international marriage, simultaneous court proceedings in India and the United States, and allegations of domestic abuse of Mother and Child.  The court holds that a foreign country is a "state" for purposes of the UCCJA.

Garg v. Garg, 2005 Md. App. LEXIS 179 (September 2, 2005)

Opinion on the web at http://www.courts.state.md.us/opinions/cosa/2005/1707s03.pdf  (last visited September 9, 2005 bgf)

The case involved a couple who were married in India and lived alternately in India and the United States throughout their marriage.  Their child was born in India.  Mother became a naturalized US citizen and claimed a resulting citizenship for her child.  The couple separated while they were living in India, and Mother and child returned to the United States, allegedly to escape Father's violence.  Father filed for custody of the child in India (but not for divorce).  Mother then filed for divorce and custody in Maryland.  Father moved to dismiss the action relying on the pending custody action in India and claiming that Mother had "abducted" child from India to Maryland.  Mother argued that she had not removed the child in violation of any court order and that Maryland was the child's home state.  She asked that the trial court appoint counsel for her child.  The trial court did not appoint counsel for the child, but took extensive testimony from experts regarding Indian child custody standards and regarding the allegations of abuse (much of the testimony is excerpted in the opinion).  The trial court then dismissed Mother's action for lack of jurisdiction, based on the pending Indian custody action and the court's conclusion that the testimony regarding abuse was not credible and that mother had wrongfully removed the child from India.

The appellate court reversed because, even if India properly had jurisdiction over the custody case, the trial court erred in dismissing the divorce action and in not appointing counsel for the child in an action in which child abuse was alleged.

For the benefit of the trial court on remand, the appellate court provided an extensive analysis of the application of the UCCJA in international custody disputes.  Mother had argued that India could not be a "state" under the UCCJA.  In interpreting the meaning of "state" under the UCCJA, the court made reference to the UCCJEA to determine legislative intent.  The court concluded that "the plain meaning of the UCCJEA makes clear that the term "state" applies to foreign nations, so long as the foreign custody law does not offend our public policy."   Moreover, the court noted that "We have found no support in the UCCJA for the court's determination that home state jurisdiction is lost when a child has been impermissibly removed from one jurisdiction to another."

Case Law Development: One Spouse's Sole Contribution Not Sufficient Justification for Failure to Divide Marital Property

In a 4-2 decision, the Arkansas Court of Appeals reverses (for the second time) a trial court's award of a retirement fund to the wage earning spouse from a 12-year marriage.  The case presents a window into the stubborn influence of the historical source of funds approach to property division.  Making the case even more interesting are the couple involved.  Husband is 66 years old and Wife is 60.  Husband was disabled when the couple married while wife worked as a nurse (though by the time of the divorce, she also was disabled).  Wife's retirement funds when the couple were married were worth about $22,000.  By the time of the divorce the retirement funds were worth over $240,000.  The trial court awarded all of the retirement funds to wife, applying what appeared to be a source of funds analysis.  (The court provides lengthy excerpts from the trial court's opinions, which include statements like "... the length of the marriage was twelve, almost thirteen years.  I have been married thirty-four years. It doesn't seem extremely long.") 

The court of appeals reversed, requiring the trial court to consider the equitable factors required by Arkansas statutes and to provide specific justifications for any division other than equal.  On remand, the trial judge again awarded the entire fund to Wife. 

The majority sees the trial court's justification as inadequate, emphasizing the strength of the presumption that equal is equitable and the importance of recognizing marriage as an economic partnership.  The dissent would defer to the trial court's conclusions that Husband had not contributed to the marital estate and that the relative needs of the parties were such that an unequal division was warranted.   Clearly, the trial judge will have to divide the retirement funds this time on remand.  It remains to be seen whether any division other than equal could survive yet another appeal.

Baxley v. Baxley, 2005 Ark. App. LEXIS 562  (September 7, 2005)
Opinion on the web at http://courts.state.ar.us/opinions/2005b/20050907/ca041131.html
(last visited 9/9/05 bgf)

Maps Illustrating State Laws and Policies Related to Same-Sex Relationships

The Human Rights Campaign has developed a series of color-coded maps of the United States that give a "snapshot" of state laws relating to same-sex relationships. Featured maps include: Statewide Marriage Laws, Relationship Recognition, and Second-Parent/Stepparent Adoption Laws. By the Human Rights Campaign. Link to Website (Last visited 9-7-05 NVS)

Case Law Development: Claim of Economic Contribution Allowed Despite Post-Nuptial

In an opinion that reveals just how difficult it is to draft air-tight agreements, a majority of the Texas Court of Appeals allowed a wife’s claim of economic contribution to the marital home, despite a post-nuptial agreement dividing the parties’ properties, waiving claims against each other’s estates, and designating the marital home as community property.

Moroch v. Collins, 2005 Tex. App. LEXIS 7359 (September 6, 2005)

Opinion on the web at http://www.courtstuff.com/cgi-bin/as_web.exe?c05topin.ask+D+12311

After eleven years of marriage, the Morochs partitioned their property in a post-nuptial agreement. Other than the household checking account, the only item designated as community property was the the marital home, worth over $1.5 million.  All other properties were allocated to the separate estate of husband or wife.  Moreover, the agreement provided that wife “waives and releases any right of reimbursement that she might presently or in the future have or claim on behalf of her separate estate or the community estate against the separate estate of Husband.”

When the couple divorced in 2004, wife made a claim for economic contribution based on her down-payment on the home, her payment of the mortgage, and her funding of major remodeling. Despite the fact that all these contributions were made before the 1987 prenuptial, the trial court held that the prenuptial only waived wife’s claims against husband’s separate estate, not against the community estate.  The court also held that the designation of the marital home as community property did not extinguish her claim against the marital estate for her economic contributions.  Since her total claim for contribution exceeded the value of the home, the court awarded her the entire interest in the home.

One judge dissented, providing the text of the pertinent provisions of the prenuptial and arguing that the parties intended to preclude any separate claims for contribution, whether against each other or against the marital estate.

BGF

California Legislature OKs Gay Marriage

The California Legislature made history Tuesday as the Assembly passed a bill to legalize same-sex marriage. With no votes to spare, California 's lawmakers became the first in the United States to act without a court order to sanction gay marriages. The measure was approved after three Democratic lawmakers who abstained on a similar proposal that failed in June changed their minds under intense lobbying by bill author Assemblyman Mark Leno (D-San Francisco) and gay and civil rights activists.. . . The bill, which would change California's legal definition of marriage from "a civil contract between a man and a woman" to a "civil contract between two persons," now goes to Gov. Arnold Schwarzenegger. He has signaled that he will veto it. By Nancy Vogel, Los Angeles Times, latimes.com.

http://www.latimes.com/news/local/politics/cal/la-me-gaymarriage7sep07,1,5420306.story?coll=la-news-politics-california (Last visited September 7, 2005, REO).

Single mom in Kentucky National Guard struggling for custody of daughter

Despite all of her external ruggedness, Lt. Eva Crouch starts to cry just thinking about losing custody of her daughter. A member of the Kentucky National Guard, Crouch's family life changed dramatically when she was deployed in 2003. Now, more than a year after her return, Crouch has finally won the latest round in a court battle and custody of her daughter. . . . There are currently about 360 single parents in the Kentucky National Guard. However, there are no laws specifically protecting them from losing custody because of a deployment. Eva Crouch says her case is illustrative of a need for better safeguards to protect single-parent soldiers in custody disputes. Crouch estimated her legal fees cost about $10,000, and she lost a year with her daughter.  By Associated Press, WKYT TV Newsfirst, http://www.wkyt.com/Global/story.asp?S=3807600 (Last visited September 6, 2005, REO).

Michigan Family court ruling wounds National Guardsman in the heart

(Column) Gallant Americans are risking life and limb in Iraq to defend home and country. But they never dreamed they might lose their children, too. When Army National Guard Spc. Joe McNeilly of Grand Ledge, Mich., came home after 15 months in Iraq , he found that a family court "referee" had taken away his joint custody of his 10-year-old son and given full custody and control to the boy's mother. . . . Michigan State Rep. Rick Jones has introduced legislation (HB 5100) providing that absences for military service cannot be used against a parent and that a permanent custody arrangement cannot be established while a parent is on active duty. He is hearing from legislators in other states who want to sponsor similar bills.  By:  Phyllis Schlafly, Townhall.com.  http://www.townhall.com/columnists/phyllisschlafly/ps20050905.shtml (Last visited September 6, 2005, REO). Additional information:  California Moving Protections For Military While Congress Lags Behind, August 21, 2005, http://mensnewsdaily.com/blog/2005/08/california-moving-protections-for.htm (Last visited September 6, 2005, REO).

Woman says religion prevents her from paying child support

The Vermont Supreme Court will hear arguments on whether a former Vermont woman can avoid paying child support because of her religious beliefs. The  Vermont Office of Child Support in 2003 received a court order allowing it to suspend the driver's license of Joyce Stanzione, a former Vermont resident who has not paid child support since she separated from her husband in 1991.Stanzione is a long-time member of the Twelve Tribes Messianic Community in Florida and is not allowed under church law to have an income, said Jean Swantko, her attorney. Suspending her license because she has no income violates the First Amendment of the U.S. Constitution, which protects religious freedom, said Swantko, who is also a member of the Twelve Tribes Community. Information from: The Times Argus, Boston.com news.

http://www.boston.com/news/local/vermont/articles/2005/09/05/woman_says_religion_prevents_her_from_paying_child_support/  (Last visited September 7, 2005, REO). Additional information: TimesArgus.com, http://www.timesargus.com/apps/pbcs.dll/article?AID=/20050905/NEWS/509050320/1003 (Last visited September 7, 2005, REO).

Case Law Developments: Trial Court May Not Enter “Reasonable Visitation” Order If Specific Parenting Time Plan Requested

In this case, the Michigan Court of Appeals provides us with fabulous final exam question material and interesting analysis of some unique issues.

The issue of first impression presented by the case was whether trial courts may order "reasonable visitation" when one party has requested a specific parenting time.  The Michigan Court of Appeals held that, under the terms of Michigan's custody statutes, a trial court must enter an order detailing specific parenting times if a party requests, even if the request is oral and during the pendency of the hearing.

In addition to the parenting time issues in this case, however, the Court of Appeals reviewed:

• division of pension survivor benefits, including the trial court's distribution of a portion of husband’s separate property;
• division of a personal injury award;
• transmutation of husband’s contribution to the purchase of a family home; and
• effect of a post-nuptial agreement of the division of property.

Pickering v. Pickering, 2005 Mich. App. LEXIS 2126 (August 30, 2005)
Text of opinion on web at http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20050830_C253342_46_253342.OPN.PDF

BGF

Case Law Developments: Jurisdiction of Court to Order Partition of Cohabitant's Property in Protective Order Action

In a case involving a six-year litigation between cohabitants, the New Jersey appellate court held that the trial court did not err in ordering equitable partition of cohabitant's property even though the action had been brought initially as a protective order action.  The court found that the partition remedy, while not within the scope of the protective order statute, was within the trial court's general equitable powers and that the court could include partition with the protective order action, rather than requiring that a separate case be filed. 

Mitchell v. Oksienik, 2005 N.J. Super. LEXIS 267 (September 2, 2005)

After cohabiting and raising children together for nine years, plaintiff brought an action under New Jersey’s protective order statute asking for a restraining order against her partner.  The proceedings stemming from that original complaint lasted six years.  As part of these extended proceedings, the court ordered that the house the couple had purchased together (though held in her partner’s name only) should be sold and the proceeds divided.  Defendant argues that this order was outside the court’s jurisdiction under the protective order act.  The New Jersey Court of Appeals upholds the trial court decision on the basis that division of property interests held by cohabiting couples are properly decided by the family court’s general equitable power and that it is not error for the trial court to combine the issue of partition with the protective order decision in the interests of judicial economy rather than requiring that a separate action be filed. 

BGF

Case Law Developments: Jurisdiction of Court to Assign Veteren's Disability Payments in Divorce Decree

The Virginia Court of Appeals bars collateral attack of a divorce decree incorporating an agreement to assign veteren's disability benefits.

Winfree v. Winfree, 2005 Va. App. LEXIS 330 (August 30, 2005)
Text of opinion on web at http://www.courts.state.va.us/opinions/opncavtx/2391043.txt

In a property settlement agreement incorporated into a divorce decree, Husband agreed to assign his veteran’s disability benefits to wife.  Seven years later, Husband attacks the agreement as void ab initio because federal law prohibits assignment of these benefits, thus depriving the court of subject matter jurisdiction over disposition of those benefits.  The Virginia Court of Appeals noted that trial courts are expressly authorized to incorporate settlement agreements into divorce decrees, so that there is subject matter jurisdiction.  Even if the agreement contained provisions prohibited by federal law, this would only make the agreement voidable, not void, so that collateral attack would be prohibited.

BGF