September 24, 2005
Protection sought for Military victims of domestic or sexual violence
In an effort to get medical and psychological help to victims of domestic or sexual violence, some federal lawmakers want to guarantee victims’ rights to confidentiality when they get care. The Military Victims of Violence Confidentiality Act of 2005 would protect what victims tell health care workers, counselors or victim advocates, as well as the identity of victims. It would be up to the victims to decide what information about their treatment or identity may be shared with others. . . . The bill comes on the heels of a recommendation by the Defense Task Force on Sexual Harassment and Violence at the Military Service Academies that victims be given a legal privilege protecting information they share with those who treat them or advocate for them. By: Deborah Funk, Times staff writer, navytimes.com Please click here for complete story (last visited September 24, 2005, REO).
Gays sue in Florida over marriage amendment
TALLAHASSEE. A ballot proposal to ban same-sex marriages in Florida is a surreptitious attempt to prevent the creation of civil unions and strip gay couples of healthcare benefits and other legal rights, a coalition of gay couples said in a lawsuit filed this week with the Florida Supreme Court. The six couples, working with the American Civil Liberties Union and the American Federation of State, County and Municipal Employees, filed a petition asking the court to throw out the proposed ballot initiative because it violates Florida's Constitution. By: Mary Ellen Klas, The Miami Herald, Miami.com.Please click here for complete story (last visited September 24, 2005, REO).
Oregon gay marriage activists sue state
PORTLAND,Oregon. (Reuters) - Gay rights activists are suing the state of Oregon, saying that an amendment that voters added to the northwestern state's constitution last year banning gay marriage was unconstitutional. By: Reuters, Reuters.com.Please click here for complete story (last visited September 24, 2005, REO).
Chili approves Domestic violence law
After seven years of debate the Chilean Congress approved the new Intrafamily Violence Law Sept. 7, which classifies domestic violence as "all ill treatment that affects physical or mental health" of any family member. The law, which will take effect in October, allows for prison sentences of between 61 and 540 days for those found guilty of habitual abuse — either physical or psychological — of a family member. Additionally, the law allows for a 10 to 15-year prison sentence as punishment for abuse that causes severe injuries. By: Noticias Aliadas, LatinAmerica.org. Please click here for complete story (last visited September 24, 2005, REO).
Pakistan and US will cooperate on child custody disputes
ISLAMABAD: The Pakistani and US governments are likely to sign an agreement for consular access to parents living in the two countries over child custody disputes, Daily Times has learned. Sources said the Ministry of Interior had sought cabinet approval to start negotiations on the memorandum of understanding on consular cooperation in cases concerning parental access to children between Pakistan and the US . The memorandum of understanding had been initiated by the US government through its embassy in Islamabad. By: Zulfiqar Ghuman, dailytimes.com. Please click here for complete story (last visited September 24, 2005, REO).
September 23, 2005
Case Law Development: Prior Cohabitation in Non-Common-Law-Marriage States Is an "Impediment" to Common Law Marriage
The South Carolina Supreme Court reversed a trial court’s finding of common law marriage between a couple who lived in various states over their 15-year relationship in which they raised two children together. Because the couple began their cohabitation in a state that does not recognize common law marriage, the Court holds there was an “impediment” to marriage. The court then treated this impediment in the same way it could any other impediment, such as one party's existing marriage to a third person. According to the court, in these situations, “after the impediment is removed, the relationship is not automatically transformed into a common-law marriage. Instead, it is presumed that relationship remains non-marital. For the relationship to become marital, there must be a new mutual agreement either by way of civil ceremony or by way of recognition of the illicit relation and a new agreement to enter into a common law marriage.” Accordingly, the court found that the trial court erred in considering any evidence of the couple’s actions and intent while they lived in other states.
The dissenting justice would have found that cohabitation in a non-common-law state should not be treated as an impediment and would have given greater deference to the trial court’s determination.
Callen v. Callen, 2005 S.C. LEXIS 265 (September 19, 2005)
(Opinion on the web at http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=26041 last visited September 20, 2005 bgf)
Case Law Development: Marital Property Characterization During Bankruptcy of Married Couple
Students sometimes have a real difficulty in understanding that the laws governing characterization of property at divorce are not the same as the laws governing characterization of property during marriage. The United States Bankruptcy Court for the Eastern District of Wisconsin recently faced this same confusion in a debtor’s argument that he could claim as exempt from the bankruptcy estate, property that was his wife’s under marital property law because he had contributed to its maintenance.
In re Czerneski, 2005 Bankr. LEXIS 1726 (E.D. Wis. September 13, 2005)
This was a joint bankruptcy petition, filed in anticipation of the couple’s divorce. Wife had some land that had been gifted to her during the marriage and which she had retained in her separate name. She claimed the allowable exemption for a portion of that land. Husband sought to exempt a portion of the land as his own exemption, stacking his exemption with wife’s so as to keep the land out of the bankruptcy estate. He relied on cases holding that, upon divorce, a spouse could be awarded a portion of their spouse’s separate property to compensate for contributions to the property. However, the court held that these cases did not apply to the determination of ownership during the marriage. Citing other instances in which the Wisconsin courts had been asked to apply property principles upon divorce outside that context, the court held that contribution to the maintenance of separate property does not transmute the property into marital property.
September 22, 2005
Children's Right to Participation
"Several provisions in the Convention on the Rights of the Child reflect children's right to participation. Article 12, in particular, reveals this special dimension. Participation is one of the guiding principles of the Convention, as well as one of its basic challenges. The principle affirms that children are full-fledged persons who have the right to express their views in all matters affecting them and requires that those views be heard and given due weight in accordance with the child's age and maturity. It recognizes the potential of children to enrich decision-making processes, to share perspectives and to participate as citizens and actors of change.
The Convention envisages a changed relationship between adults and children. Parents, teachers, caregivers and others interacting with children are seen no longer as mere providers, protectors or advocates, but also as negotiators and facilitators. Adults are therefore expected to create spaces and promote processes designed to enable and empower children to express views, to be consulted and to influence decisions." UNICEF, Convention on the Rights of the Child Link (last visited 9-21-05 NVS)
Parent-Child Speech and Child Custody Speech Restrictions
In a new law review article, Prof. Eugene Volokh explores the Free Speech Clause implications of various child custody speech restrictions. He makes several points: 1) readers should consider the extent to which courts consider parental speech and issue orders restricting it under the best interest standard; 2) the First Amendment is implicated when courts issue orders restricting parental speech and when courts make custody and visitation decisions based on speech; 3) the Free Speech Clause may prove to be of more importance than the Religion Clause even when parental speech is religious in nature; 4) given the fact that intact families are not prohibited from speech that may be against a child's best interest, parents who are apart should have the same rights unless the speech undermines the child's relationship with the other parent; 5) the next generation is entitled to hear a broad range of views; and 6) protecting only speech that doesn't threaten psychological harm to children is appealing but may ultimately prove to be "unhelpful." Eugene Volokh, Parent-Child Speech and Child Custody Speech Restrictions, 80 N.Y.U.L. Rev.___(2006) (forthcoming). Link to Article (last visited 9-21-05 NVS)
September 21, 2005
Connecticut to recognize civil unions; not same sex marriages
Connecticut will recognize civil unions and possibly domestic partnerships from other states and foreign countries when a new law allowing civil unions takes effect Oct. 1. But Attorney General Richard Blumenthal said Tuesday that Connecticut will not recognize same-sex marriages from neighboring Massachusetts because the Connecticut legislature has defined marriage as between a man and a woman. "Civil unions performed in other states are entitled to full faith and credit in Connecticut, and cannot be repeated here. Out-of-state same-sex marriages have no legal force and effect here," Blumenthal wrote in a legal opinion requested by the state's Department of Public Health, which administers marriage licenses. Married same-sex couples will, however, be able to enter into civil unions in Connecticut. Currently, Vermont is the only other state that allows civil unions. Massachusetts is the only state that allows same-sex marriages. Several states, including California, New Jersey and Maine, allow some form of same-sex domestic partnership. By: Susan Haigh, Associated Press Writer, Boston.com news.
http://www.boston.com/news/local/connecticut/articles/2005/09/20/blumenthal_out_of_state_civil_unions_to_be_recognized/ (last visited September 21, 2005, REO).
Online Idaho Child Support Payments Top $1 Million
The Idaho online service that enables children to receive child support payments faster has processed more than $1.4 million since it launched in November 2004. The online application allows parents to make child support payments with a credit or debit card, providing a convenient payment option for parents to avoid late fees, while eliminating the state's risk of receiving bad checks. By: News Staff.
http://www.govtech.net/magazine/channel_story.php/96680 (last visited September 21, 2005, REO).
Anglican rift over gays deepens in Nigeria
Nigeria's Anglican church has deleted all references to its mother church from its constitution, deepening a rift over homosexuality but stopping short of a feared schism. A statement on the church's website on Tuesday said "all former references to 'communion with the see of Canterbury' were deleted" at a meeting last week. Instead, the constitution affirms its ties with all churches that maintain the "faith, doctrine, sacrament and discipline of the one holy, Catholic and apostolic church". With about 17,5-million Anglicans, Nigeria has a strong voice in the 77-million-member worldwide Anglican communion. Nigerian Anglican Archbishop Peter Akinola has emerged as a leader of Anglican conservatives around the world, taking a key role through the Global South grouping of churches in Africa, Asia and Latin America in opposing any church acceptance of homosexuality. The Nigerian and Ugandan churches broke ties with the US Episcopal Church over its 2003 consecration of a gay bishop living with a partner. A dispute over same-sex marriages in England has deepened divisions. By: Daniel Balint-Kurti, Mail & Guardian On line.
http://www.mg.co.za/articlepage.aspx?area=/breaking_news/breaking_news__africa/&articleid=251522 (last visited September 21, 2005, REO).
September 20, 2005
Case Law Development: Burden of Proof in Annulment Actions
Nowdays, it seems that you only hear about annulments when pop stars wake up from the party a few days later and regret their impetuousness. Here’s a nice old-fashioned annulment case. Wife files for divorce after 13 years of marriage. Husband counterclaims for annulment, arguing that Wife was already married at the time she and Husband wed. Wife is required to produce a copy of the decree divorcing her from her first husband, which proves that the divorce came after the second marriage. But the trial court says the divorce decree is not proof that first husband was then alive. Because Husband did not prove that wife was not a widow before she became a second wife, the trial court granted a divorce rather than annulment.
The Hawai'i Court of Appeals reversed and remanded for a new trial. The court notes that the divorce decree had the effect of shifting the burden of proof to Wife to show that her first husband was not alive or not married to her at the time of her second marriage. The court's opinion cites a range of annulment-for-bigamy cases from other states from Kansas in 1885 to South Carolina in 2004.
Tagupa v. Tagupa, 2005 Haw. App. LEXIS 383 (September 15, 2005)
Opinion on the web at http://www.courts.state.hi.us/page_server/LegalReferences/73DFB8859867A628EAE7AB3DC5.html (last visited September 19, 2005 bgf)
AND JUST FOR FUN...
For annulments of more star-studded litigants, you can read about Brittany Spear's annulment of her hours-long marriage (for impetuousness as best as I can read the court's decision) or perhaps you'd like to see the petition for annulment of the day-long Dennis Rodman/Carmen Electra marriage (on the grounds of "unsound mind") or maybe you'd prefer to hear actress Renee Zellweger and country singer Kenny Chesney's talk about their planned annulment of their 5-month marriage (on the grounds of fraud - "but it's just legal language").
Case Law Development: Due Process prhibits "change of circumstance" standard for change of custody from nonparents to parents
When grandparents have temporary custody of a child, what is the standard to be applied if the child’s parents request a modification of that custody arrangement? The Ohio Court of Appeals has held that requiring proof of a change in circumstances, the test used for modification of custody in most instances, would be unconstitutional when applied in this case. The court affirmed the trial court’s use of the best-interest-of-the-child standard to return a boy to his parents.
The court distinguished those cases where a non-parent has been granted permanent custody, as that order cuts off parental rights. A temporary order of legal custody, however, leaves residual parental rights that are protected by due process.
In re Brayden James, 2005 Ohio 4847; 2005 Ohio App. LEXIS 4394 (September 16, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-4847.pdf (last visited September 20, 2005 bgf).
Case Law Development: Mother's Mental Illness Justified Lack of Contact with Children
A tragic case, said the trial court, but the adoption had to be denied because mother’s consent was required. Mother had tried to kill one of the three children involved in this case and had been hospitalized for mental illness ever since then. A order of protection had been issued against her, prohibiting her contact with the children. The Ohio Court of Appeals held that, in those circumstances, mother’s failure to contact or support the children was justified, as it was not the result of her intentional conduct, but rather resulted from her mental illness. Accordingly, her children could not be placed in adoption without her consent.
In re Mitchell Children, 2005 Ohio 4841; 2005 Ohio App. LEXIS 4386 (September 15, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/5/2005/2005-ohio-4841.pdf (last visited September 20, 2005 bgf)
September 19, 2005
Associate Dean Paul Kurtz Appointed to Three NCCUSL Committees
"University of Georgia School of Law Associate Dean Paul M. Kurtz has been named to three committees of the National Conference of Commissioners on Uniform State Laws by organization president Howard J. Swibel. Kurtz has worked with NCCUSL, a non-profit group whose 300 members review state laws and determine which areas of law should be standardized, since 2001, when Gov. Roy E. Barnes selected him to be a commissioner representing the state of Georgia.
Kurtz will serve on several of NCCUSL’s key committees, the most prestigious being the Joint Editorial Board on Uniform Family Law. The board monitors developments and proposes changes regarding family law-related uniform and model acts generated by the conference. Several of these acts have been extremely influential in the field of family law, including the Uniform Interstate Family Support Act and the Uniform Parentage Act.
He will also serve on the Drafting Committee for the Uniform Guardianship Interstate Jurisdiction and Enforcement Act as well as a committee designated to draft a uniform act concerning children who have been relocated due to divorce. Furthermore, he will maintain his position on the Drafting Committee for the Uniform Representation of Children in Abuse and Neglect and Custody Proceedings Act." By Kristin Kissiah Link to Article (Last visited 9-18-05 NVS)
September 18, 2005
Case Law Development: Removing Children to Kinship Care in Another Country Superior to Termination of Parental Rights
The Iowa Court of Appeals reversed the termination of Mother’s parental rights in a case with international and cultural implications. The termination of Mother’s parental rights was based on her conviction of the federal crime of misprision of felony (not divulging information about a crime committed by the father of her children). The trial court’s best interests of the child determination disregarded the option of allowing the children to live in Mexico with Mother’s sister during the brief period of mother’s incarceration, because, during the 18 months the children were in five different foster homes in Iowa, they had “bonded into the English-speaking, Iowa culture.”
The court of appeals noted the overwhelming evidence that termination would not be in the best interests of the child and reversed. That evidence included favorable reports regarding the suitability of placing the boys in sister’s home -- reports that came from sources as diverse as the Mexican consulate, social workers in both countries, and even the boys’ current foster mother. In addition, all evidence pointed to the existence of an extremely strong mother-child bond, an “impeccable parenting history”, and the adaptability and resilience of the children. The court concluded that, while a conviction and sentence can serve as grounds for termination, in this case a termination would not serve the best interests of the children.
In the Matter of B.A. and R.A., 2005 Iowa App. LEXIS 1148 (September 14, 2005)
Opinion available on the web at http://www.judicial.state.ia.us/appeals/opinions/20050914/05-0011.asp (last visited September 17, 2005 bgf)
Case Law Development: No Legislative Preference for Joint Physical Care Arrangements
The Iowa legislature has moved from a position of affirmatively disfavoring joint physical care of children to increasingly favoring the arrangement. In this case, the Iowa Court of Appeals was asked to interpret the effect of 2004 amendments to the child custody statutes. The court concluded that the legislation did not establish either a preference or presumption for joint physical care, but required only that, upon a parent’s request for joint physical care, the trial court must explain any decision to reject that request in terms of the best interest of the child. Nonetheless, the court reversed the trial court’s decision here because, though the trial court explained its decision, the court of appeals disagreed with the trial court’s view of the facts. The case is a lovely example of the importance of deference to other institutional decision makers – whether it is a trial court’s deferring to the legislature or an appellate court’s deference (or lack of deference) to a trial court assessments.
Ellis v. Ellis, 2005 Iowa App. LEXIS 1143 (September 14, 2005) Opinion available on web at http://www.judicial.state.ia.us/appeals/opinions/20050914/04-1449.asp (Last visited September 17, 2005 bgf)
The child in this case was nearly two years old. The couple separated when he was 10-months old and had cooperated in his care. Mother contended that, while she and Father had been able to share the care of their son fairly equally, she felt that, if there was a disagreement, Father would not give any consideration to her opinion. The trial court agreed with Mother’s assessment that joint decision-making would not work if the parties disagreed and would lead to more tension and dispute. The court noted that both parents were caring and competent caregivers, but because Father was a recently recovering alcoholic, the court chose to give primary physical care to Mother with very liberal visitation to Father.
The Court of Appeals disagreed, finding that the trouble the couple had experienced in communication resulted mostly because of the tension of a pending divorce. The Court of Appeals expressed more confidence that they would be able to manage joint physical care. The court concluded that this arrangement ”will best assure Paxton the opportunity for the maximum continuing physical and emotional contact with both parents and will best encourage his parents to share the rights and responsibilities of raising him.”
Case Law Development: Grounds for Relief from Paternity Judgment
After a court of appeals in 1999 allowed a father to be relieved of his parental duties under Tennessee’s relief from judgment rule, the court of appeals has reviewed a number of cases in which genetic tests conclusively exclude a legal father as the biological father and the father then seeks relief from the judgment of his paternity. In this case, Father knew that he was not the biological father of his paramour’s child, but voluntarily sought an order of legitimation and and an order to change the child’s last name to his own. When, a few months after marrying Mother, Father sought divorce, he also filed for relief from the judgment of legitimation, arguing that he did not know that the judgment would mean he would have continuing obligation in the event of divorce. The court of appeals concluded that there was no error in refusing relief and, in doing so, reviewed a number of recent cases addressing the issue. The court noted that there was no “bright line rule” requiring relief from judgment whenever one discovers their biological parentage status. Given the recent deluge of cases this case recites, one suspects the courts might even regret having opened the door to relief from judgment in these cases at all.
Welch v. Welch, 2005 Tenn. App. LEXIS 570 (September 13, 2005)
Opinion on the web at http://www.tsc.state.tn.us/OPINIONS/053/WelchMichaelOPN.wpd (last visited September 17, 2005 bgf)
Case Law Development: Private School Tuition as Separate Responsibility Beyond Child Support
The Mississippi courts have been working their way through the allocation of private school tuition in child support, and apparently have yet to find agreement. In 2002, the Mississippi Supreme Court held, in a 5-4 opinion, that private school tuition is, by itself, an inadequate basis for a child support award in excess of the statutory guidelines. Southerland v. Southerland, 816 So. 2d 1004, 2002 Miss. LEXIS 133 (Miss. 2002). Since then, lower courts have struggled with the scope of this holding. This past week, the courts of appeals issued two opinions on the same day that came to opposite results on whether private school tuition could be ordered separate from child support.
Striebeck V Striebeck, 2005 Miss. App. LEXIS 639 (September 13, 2005) http://www.mssc.state.ms.us/Images/OPINIONS/CO28988.PDF (last visited September 17, 2005)
and Roberts V. Roberts, 2005 Miss. App. LEXIS 638 (September 13, 2005) http://www.mssc.state.ms.us/Images/OPINIONS/CO28988.PDF (last visited September 17, 2005)
Neither case explains its decision very completely and it is difficult to reconcile the cases…
The difference can hardly be explained by any facts evident from the opinions, in both cases Father was the primary earner, with roughly similar but fluctuating income (Mr. Roberts was a pharmaceutical salesman while Mr. Striebeck was a trial attorney in solo practice). In both cases the parties had agreed to send the children to private school before the divorce. In Striebeck, however, the court concluded that “While it is true that our supreme court has previously stated that private school tuition should not be awarded in some factual circumstances, we cannot find that the chancellor erred in this instance.” In Roberts, the court concluded, “While a father's agreement prior to divorce to send a child to private school may be one legitimate factor to be considered, it is by itself an inadequate basis for an award of support in excess of that allowed by the statutory guidelines."