Tuesday, September 6, 2005

Case Law Developments: Judicial Bias in Custody Decisions

With one judge dissenting, the Michigan Court of Appeals reversed a trial court’s parenting time decision on the basis that the judge was biased against mother's status as primary wage earner.  The appellate court provides plenty of details about the trial, which involved fascinating contrasts of cultural perspectives on the role of women.

Peric v. Peric, 2005 Mich. App. LEXIS 2143(August 30, 2005)

Text of opinion on the web at http://courtofappeals.mijud.net/DOCUMENTS/OPINIONS/FINAL/COA/20050830_C259222_50_259222.OPN.PDF

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September 6, 2005 in Custody (parenting plans) | Permalink | TrackBack (0)

Case Law Developments: Child Support – Presumptions as to Overpayments and Underemployment

In an interesting case involving an attorney father who overpaid child support and then fell in arrears after he quit his high-paid position to become a public defender, the Tennessee Court of Appeals held that overpayments are to be treated as gifts unless proven otherwise.  The court also found that the attorney's decision to change jobs was a voluntary underemployment which would not justify lowering child support.

DeWerff v. DeWerff, 2005 Tenn. App. LEXIS 555 (August 31, 2005)
Text of Opinion on web at http://www.tsc.state.tn.us/OPINIONS/TCA/053/DeWerffOPN.wpd

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September 6, 2005 in Child Support (establishing), Child Support Enforcement | Permalink

Monday, September 5, 2005

Case Law Developments: Sanctions for Bad Faith Divorce Litigation

In two cases, the Texas Courts of Appeals recently were called upon to review trial court sanctions in divorce litigation.  The first case presented an easy case for sanctions, notable only for the audacity of the petitioner.  The second case presents a much more difficult case, highlighting the sometimes precarious nature of practice for divorce practitioners.

Kramer v. Kramer, 2005 Tex. App. LEXIS 7084 (August 30, 2005)

Upholding sanctions for groundless litigation against petitioner Mother, who filed suit for divorce as next friend for her son, who had been left incapacitated in an accident. She filed the suit knowing that her son’s wife had been appointed his legal guardian.  While she later dismissed the action, the Texas 13th District Court of Appeals (Corpus Christi) upheld the trial court’s sanctions on the basis that Mother had no standing to bring an action for divorce on her son’s behalf and that the action was brought solely for the purposes of harassment.

In the Interest of K.A.R., 2005 Tex. App. LEXIS 7080 (August 30, 2005)

In a much closer question of sanctions, the Texas Fourteenth District (Houston) Court of Appeals, in a 2-1 decision, affirmed an order of sanctions against a petitioner and his attorney.  The case involved protracted litigation, in which father had moved to modify the terms of the custody decree.  Over the course of the proceeding, father apparently changed his mind about proceeding with the motion.  Father eventually committed suicide shortly after the trial.  The Court of Appeals noted that other trials courts might not have ordered sanctions and that some of the basis for the trials court’s sanctions were ill-considered, it held that the trial court sanction was justified by one of its bases: the failure of both attorney and client to attend a court-ordered mediation.   Attorney had been unable to attend the mediation because of a conflicting trial setting, but the trial court found that attorney could have notified it earlier of the conflict.  Father failed to attend the mediation because he did not desire to further participate in any proceedings. 

The majority and dissenting opinions’ characterizations of the attorney’s conduct differed dramatically:

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September 5, 2005 in Attorneys | Permalink

Case Law Development: Procedure Required in Approving Parenting Plans

In this case, the Wisconsin Court of Appels reviews the proper procedures surrounding the parties' submission of parenting plans where the parents contest placement. “Here, the court adopted the mother's parenting plan in toto because the father had not submitted his at the time of the scheduling conference. We hold that this was improper. First, the court should not have considered placement and custody issues when the father had not yet received a copy of the mother's proposal. Our statutes, as well as due process, contemplate such an exchange. Moreover, because we conclude that a scheduling conference is not a pretrial conference, the father did not waive his right to object to his wife's proposal when he failed to submit his own plan prior to the scheduling conference. Indeed, the father had no notice, statutory or otherwise, that the court might consider custody and placement at that time. Hence, he was entitled to his day in court. Finally, even if we assume waiver on the father's part, the paramount concern in placement and custody decisions is the best interests of the minor child. Although the court may consider one party's uncooperative behavior a salient factor, it must clearly articulate how the parent's recalcitrance bears on the child's best interests. Accordingly, we reverse the decision below and direct the trial court to hold a new hearing on custody and placement.”

Guelig v. Guelig, 2005 Wisc. App. LEXIS 760 (August 31, 2005)
Opinion on the web at http://www.wisbar.org/res/capp/2005/2005ap000346.htm (last visited September 5, 2005 bgf)

September 5, 2005 in Custody (parenting plans) | Permalink

Case Law Developments: GAL Reports as Evidence

The Maine Supreme Court has held that introducing into evidence a guardian ad litem’s report that contains hearsay evidence does not violate due process rights of a parent in a child protection hearing.

In re Chelsea C., 2005 Me. LEXIS 114 (August 31, 2005) (bgf)

September 5, 2005 in Child Abuse | Permalink

Helping Children Handle Disaster-Related Anxiety

"Children sense the anxiety and tension in adults around them. And, like adults, children experience the same feelings of helplessness and lack of control that disaster-related stress can bring about. Unlike adults, however, children have little experience to help them place their current situation into perspective. Each child responds differently to disasters, depending on his or her understanding and maturity, but it’s easy to see how an event like this can create a great deal of anxiety in children of all ages because they will interpret the disaster as a personal danger to themselves and those they care about." Preschool children need the opportunity to discuss concerns and be reassured that they are safe. Grade-school age children ask many questions and benefit from clear, simple answers, not false reassurance. Adolescents may down-play their real concerns. By the National Mental Health Association. For More Information

September 5, 2005 | Permalink | TrackBack (0)

Sunday, September 4, 2005

Star Chicago Bears Linebacker is baby's dad

David Haugh, of the Chicago Tribune, reports that Tyna Robertson, who gave birth to the Chicago Bears star middle linebacker Brian Urlacher's son three months ago, has agreed in court that the Bears star is the baby's father. And the boy can use Urlacher's last name, both sides agreed Friday. But other issues involving visitation and child support were not resolved during a court hearing. . . .  Robertson, 33, is the same woman who sued dancer Michael Flatley for $35 million in March 2003, saying he had raped her, and accused a Naperville, Illinois doctor of inappropriate touching in a story she later recanted. Reporter Cindy Wojdyla Cain of the Chicago Sun-Times reports that Urlacher's court appearance drew several curiosity seekers, including a county judge who also waited to get an autograph for her teenage son. By David Haugh, Chicagotribune.com and Cindy Wojdyla Cain, Suntimes.com.

http://www.suntimes.com/output/news/cst-nws-urlacher03.html (last visited September 4, 2005); http://www.suntimes.com/output/news/cst-nws-urlacher03.html (last visited September 4, 2005).

September 4, 2005 in Paternity | Permalink | TrackBack (0)

Unmarried together: seniors choosing to cohabitate

The number of men and women who are 65 and older and choose to live together without getting married has nearly doubled in a decade, according to a study by the Census Bureau as reported in an October 2004 article posted online by the AARP. Of the 9.7 million unmarried partners who were cohabiting in 2000, the Census counted 266,600 couples in the 65-plus group. This number more than doubled since 1989, according to the Census Bureau. Furthermore, many experts think the numbers are now much higher and they are expected to climb even further as baby boomers age and Americans generally stay healthy and live longer. So what stops so many seniors from tying the knot? Among other things, it is often the prospect of financial loss, according to the same October 2004 article posted by AARP. By:  Patrick Lange, Sunherald.com.

http://www.sun-herald.com/NewsArchive4/090405/tp17de17.htm?date=090405&story=tp17de17.htm  (Last visited September 4, 2005).

September 4, 2005 in Cohabitation (live-ins) | Permalink | TrackBack (0)