October 8, 2005
Mass. Court Hears gay challenge to 1913 Marriage Law
Massachusetts, which became the first state to legalize gay marriage, is now considering whether same-sex couples from other states can marry there. In a case argued Thursday that is being closely watched across the country, eight gay couples from surrounding states, all of whom were denied marriage licenses in Massachusetts, are challenging the law. The 1913 law forbids nonresidents from marrying in Massachusetts if their union would not be recognized in their home state. If the Supreme Judicial Court strikes down the law, same-sex couples from across the country could wed in Massachusetts and then go to their home state and demand that the marriage be recognized. Source: Denise Lavoie, Associated Press, news.yahoo.com. For the complete story, click here (last visited October 8, 2005, REO).
Court Hears Case on Suicide Law – Roberts appears skeptical
The Supreme Court held oral arguments Wednesday on Oregon's first-in-the-nation law allowing physician-assisted suicide. To some observers, Chief Justice John G. Roberts Jr., sounded skeptical about the state's claim that it can make its own rules without federal interference. Before the Court is a 2001 directive by then-Attorney General John D. Ashcroft that threatens punishment of any Oregon doctor who prescribes a lethal dose of federally controlled drugs to help a terminally ill patient end his or her own life. Oregon enacted its law permitting such prescriptions in 1997, and the state says it falls within its traditional prerogative to regulate the practice of medicine. Source: Charles Lane, Washington Post, WashingtonPost.com.For the complete story, click here (last visited October 8, 2005, REO).
Biological dad challenges child support order for 40-year-old daughter
The South Carolina Supreme Court was asked Friday to overrule a lower court order requiring a biological father to pay child support for a 40-year-old mentally disabled daughter. The father was ordered in 2001 to pay $91 weekly to support his daughter. The mother had filed a lawsuit in 1999 seeking child support for her then-34-year-old daughter, who lives with her in Lexington County. The couple never married and did not have a long-term relationship. The father argued that a family court judge should have dismissed the lawsuit against him because the deadline to bring a paternity action had expired. He also claimed that the amount ordered was excessive because his daughter already receives about $775 a month through her part-time job and federal disability payments. The South Carolina Court ruled unanimously in 2003 that a divorced father must pay child support for his then-27-year-old daughter, who had a genetic disease that causes mental retardation and severe muscular weakness. Source: Associated Press, MyrtleBeachOnline.com.For the complete story, click here (last visited October 8, 2005, REO).
Multi-million dollar London Sex academy offers lovers tips
A 4.7 million pound sex academy opening next year in London intends to bring bedroom issues out into the open - including tips on being a better lover and explaining orgasms. The academy said it would address sex issues "in an exciting, amusing and yet educational way." Dr Kevan Wylie, from the European Federation of Sexology, added: "Whether [obtaining sex information] is in relation to better love-making, avoiding sexually transmitted infections and even enjoying particular kinks or fetishes, it's high time there's a leading London venue that communicates this information in a responsible and engaging manner.” Source: BBC News, news.bbc.co.uk.For the complete story, click here (last visited October 8, 2005, REO).
October 7, 2005
Teaching Resources: Sources for Constructing Case Studies in Parenting Plans
Having the party names, you can also review the entire docket at the Connecticut Superior Court website http://www.jud2.state.ct.us/civil_inquiry/GetParty.asp
While using these cases to construct problems will still require some creative story telling to fill in the blanks and is certainly not as easy as retrieving entire case files from your local circuit court, unless you teach in Connecticut, you are not likely to end up having the entire class working on the divorce of one of your student's family members! bgf
Case Law Development: Parent's Must Prove Best Interests of the Child to Terminate Voluntary Guardianships
Appellate courts in Missouri and Tennessee this week decided cases in which biological parents had voluntarily consented to have family members act as their children’s guardians and the parents are now asking the court to return the children. In both cases the courts held that the best interests of the child required keeping the guardianship in place, despite the fact that the parents were now able and willing to care for their children. The Tennessee case also examined the grounds for termination of parental rights when a parent has voluntarily transferred custody of a child to a relative.
The Missouri case involved a father who, during the last year of his wife's terminally illness, had his wife's mother take in his daughters (twin 9 year olds and 3 year old). He consented to a guardianship soon after his wife’s death so that the grandmother could act on the children’s behalf. Two years later, he asked the court to terminate the guardianship as he had recovered from his grief and was ready to have the children back. The court held that, to terminate a guardianship, the court must find not only that the parent was fit, able and willing to care for the children but that terminating the guardianship would be in their best interests. The court affirmed the trial court’s finding that, while father was fit, able and willing, continued guardianship with grandmother was in the children’s best interests.
Bailey v. Schnieders, 2005 Mo. App. LEXIS 1444 (October 4, 2005)
Opinion on the web at http://www.courts.mo.gov/courts/pubopinions.nsf/ccd96539c3fb13ce8625661f004bc7da/e153ffb2568e22648625708f005b5495?OpenDocument (last visited October 5, 2005 bgf)
The Tennessee case involved a mother who had given custody of her colicky newborn to her aunt while she “got her life together.” Aunt raised the child as her own and child had bonded with the aunt and thrived. Nearly 10 years later, Mother moved to regain custody. Aunt countered with a motion to terminate Mother’s parental rights. The appellate court affirmed the trial court’s finding that Mother had failed to prove a change in circumstances justifying modification of custody in the best interests of the child. It reversed the trial court’s termination of Mother’s parental rights, however, because there was not clear and convincing evidence of grounds for termination.
The the Matter of K.C., Jr., 2005 Tenn. App. LEXIS 636 (October 4, 2005)
Opinion on the web at http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/054/KCJrOpn.pdf (last visited October 5, 2005 bgf)
On the termination case, the appellate court found that the trial court erred in finding clear and convincing evidence establishing grounds for termination of Mother’s parental rights. The court found that while Mother had failed to pay child support, the court noted that the failure, given Mother’s poor work history and understanding of her obligations did not rise to the level of willfulness required by the law.
Aunt also argued the alternative ground of “persistence of conditions.” Mother argued that the language of the statute indicated that this provision should only apply when a child has been removed by the department of children’s services for abuse or neglect. The appellate court disagreed, holding that “persistence of conditions” grounds can be used to terminate parental rights even in a case where transfer of custody was voluntary, so long as that court order granting that transfer contained findings of abuse, neglect or dependency. While the court, in granting the transfer to Aunt, had made findings of neglect, the appellate court found that there was not clear and convincing evidence that mother’s current conditions were such that the child would be at risk of abuse or neglect if returned to mother. Nonetheless, the court emphasized that, while it was reversing the termination, it strongly affirmed the trial court’s decision that child remain with Aunt.
Case Law Development: Equitable Division of Property Requires Consideration of Multiple Factors
In a case involving Husband’s inherited land, the Supreme Court of South Dakota has emphasized the importance of a careful equitable balancing before any property is set aside as non-marital. During the course of the couple’s 26-year marriage, Husband was given 66 acres of land by his parents, as a lifetime distribution of their estate. Husband and Wife sold their home and built a home on the land. At divorce, the trial court determined that only 10 acres of the land was subject to division and set aside the rest as Husband’s non-marital property. The trial court considered the intent of the parents that the land be their son’s inheritance. The supreme court reversed on the basis that, given South Dakota's "all property" approach to division of property at divorce, the trial court erred when it did not consider a broad range of equitable factors required for property division.
Godfrey v. Godfrey, 2005 SD 101; 2005 S.D. LEXIS 163 (September 28, 2005)
Opinion on the web at http://www.sdjudicial.com/index.asp?category=opinions&nav=53101&year=2005&month=9&record=1465 (last visited October 4, 2005 bgf)
South Dakota legislation makes all property owned by either spouse subject to equitable division, but does not identify any factors to guide that discretion. The South Dakota Supreme Court had previously identified a list of seven factors the court must consider: “(1) the duration of the marriage; (2) the value of the property owned by the parties; (3) the ages of the parties; (4) the health of the parties; (5) the competency of the parties to earn a living; (6) the contribution of each party to the accumulation of the property; and (7) the income-producing capacity of the parties' assets.” The supreme court here held that the trial court erred in failing to consider these factors. In its own analysis, the supreme court concluded that all of the property should have been subject to division. The court emphasized the fact that the property had been deeded by the parents to both Husband and Wife and the Wife’s economic and non-economic contributions to management and improvement of the property.
Case Law Development: What Happens to Ownership of Fraudulently Transferred Assets?
Sometimes cases that have nothing to do with family law are nonetheless telling tales about how people behave in divorce. I can’t resist sharing this one: Once upon a time, an attorney, anticipating a divorce from his wife, sells a coin collection to his best friend for $30,000 (the collection is likely worth at least twice that). He executes a bill of sale and other documentation to evidence the sale.
Fast forward twenty years. Best friend has died. Elderly widow gets a call from a private investigator that attorney wants his coin collection back. When Wife says he can’t have the coins, he sues in replevin and conversion. The sale, he says, was a sham designed to hide the coins from his wife in the divorce. He testifies that Husband had never actually paid the $30,000. He also notes that he never actually carried out the sham because the divorce decree actually considered the value of his coin collection. Trial court grants replevin on the basis that title to the coins was never effectively transferred.
The Supreme Court of Illinois reverses, based on the trial court’s error in admitting testimony in violation of the Dead Man’s Act. The court also notes that, while replevin is a legal proceeding, equitable considerations (such as the scheming unethical tactics of Lawyer in his divorce) should be weighed. The court suggests that Lawyer’s testimony that he never actually carried out the sham is not supported merely by his indication that the divorce decree considered the value of his coin collection, as he still had a large collection after the “sale” and there was no evidence that the trial court actually knew about the sale. The court’s best guess, however, is that Lawyer wasn’t really trying to hid hide the coins so much as skew the valuation issue of the entire collection by producing current market value evidence through the bill of sale.
One must hope the trial court on remand agrees with the Supreme Court’s suggestions regarding its view of the evidence. Otherwise, the court will have removed one arrow from the quivers of family law attorneys trying to counsel their clients against hidinig assets during divorce.
Gunn v. Sobucki, 2005 Ill. LEXIS 979 (October 6, 2005)
Opinion on the web at http://www.state.il.us/court/Opinions/SupremeCourt/2005/October/Opinions/Html/99607.htm (last visited October 7, 2005 bgf)
October 7, 2005 | Permalink
October 6, 2005
Paternity: Is It Important to Know?
In Who Is The Baby's Daddy (And Why Is It Important For The Child To Know)?, Cynthia R. Mabry explores why some children do not know their father's identity, the importance of accurate parentage determinations to the children's well-being and establishment of their own identity, the essential role that fathers play in their children's life, and economic benefits that children gain from their father's involvement. She addresses how children's identity is developed through interaction with their father, and the relationship between race and culture that helps children of color to develop a sense of self. Link to Article Cynthia R. Mabry, Who Is The Baby's Daddy (And Why Is It Important For the Child To Know)? 34 U. Balt. L. Rev. 211 (2004). (last visited 10-05-05 NVS)
Paternity: Bargaining or Biology?
In Bargaining or Biology? The History and Future of Paternity Law and Parental Status, Katharine K. Baker describes the historical and contemporary explication of the paternity suit and identifies the disconnect between law and biological paternity by examining those cases in which the law rejects biology as a basis for paternity. She suggests that reliance on contract theory can reconcile much of the case law, constitutional doctrine, and contemporary mores. Katharine K. Baker, Bargaining or Biology? The History and Future of Paternity Law and Parental Status, 14 Cornell J.L. & Pub. Pol'y 1 (2004). Link to Article (last visited 10-05-05 NVS)
Russian Do-It-Yourself Paternity Kits
"Russian men who wonder if they are raising someone else's child will soon be able to conduct tests at home on "who the father is." If international patterns hold true, they will find the child is not theirs in one out of five cases. British company DNA Solutions, which will open its first office in Russia in St. Petersburg in about 10 days, is to provide DNA kits to customers so that they do the tests themselves. Marketing manager Daniell Leigh said DNA Solutions is the first company to offer such a service in Russia. "This will be the first company offering free DNA home testing kits that can be sent to individuals who can collect their own DNA samples from their home along with a relative and return these to us for analysis along with payment," Leigh said in a telephone interview from London. The company decided to open its office in Russia after experiencing a large demand from Russian nationals for DNA testing services over the last three years." By Irina Titova, The St. Petersburg Times Link to Article (last visited 10-5-05 NVS)
October 5, 2005
President Proclaims October National Domestic Violence Awareness Month
Condemning domestic violence as “a great evil and an offense against human dignity,” President Bush on September 30 proclaimed October National Domestic Violence Awareness Month, 2005. In the proclamation, the President cited an estimated 59 percent decline in violence in the home in the United States over the past decade. He noted historic levels of federal funding for Violence Against Women programs and praised victim support efforts by faith based and community organizations. He observed that in 2003 he announced the creation of the Family Justice Center Initiative. The centers bring together police officers, attorneys, counselors, doctors, victims' advocates, chaplains, and others so that domestic violence victims can more easily find the help and support they need. The Department of Justice has awarded over $20 million to support the creation of 15 Family Justice Centers across the country, and several of these centers have already opened. Click here for the complete proclamation (last visited October 5, 2005, REO).
Court to hear arguments today on Right-to-Die
The Supreme Court will hear arguments today (Wednesday) on a challenge brought by the Bush administration to Oregon’s "right to die" law. The law passed by a 51 percent majority of Oregon’s voters in 1994. An effort to repeal it in 1997 was rejected by 60 percent of the voters. The law permits dying persons to obtain lethal medication from their doctor. Since 1998 when the law took effect, 208 persons have used medication to end their lives. Most of them were dying of cancer. The case, Gonzales vs. Oregon , pits the state's traditional power to regulate the practice of medicine against the federal government's authority to regulate drugs. Source. Gina Holland, Associated Press Writer, Yahoo.com. Click here for the complete story (last visited October 5, 2005, REO).
October 5, 2005 | Permalink
Ohio counties arrest delinquent child support obligors
Parents delinquent in paying child support were locked up yesterday during the ninth annual Ohio statewide roundup. Nearly 40 counties participated in the sweep with teams pursuing wanted obligors throughout the state. According to the Ohio Department of Job and Family Services, more than 2,000 arrests have been made since “roundup day” began in 1997. If a parent fails to pay support for 26 out of 104 consecutive weeks, a fifth-degree felony charge can be made. Upon conviction, a delinquent obligor may spend up to a year in prison. Source: Christy Arnold, Cincinnati Enquirer, Cincinnati.com. Click here for the complete story (last visited October 5, 2005, REO).
Study claims cohabitation before marriage has heavy cost
OTTAWA, Ontario. According to a study released by the Ottawa based Vanier Institute of Family, "living together" comes with a heavy cost. The study, "Cohabitation and Marriage: How Are They Related?," authored by Anne-Marie Ambert, compiles results from hundreds of research papers that examined the social, emotional and financial effects of cohabitation and marriage on women, men, children and society. The study indicates that cohabitation by its nature is highly unstable, that it leads to higher divorce rates, and is detrimental to children both psychologically and physically. Source: Vanier Institute of Family. Click here for the complete story (last visited October 4, 2005, REO). Download vanier_report.pdf
Texans to vote on Marriage Constitutional Amendment November 8
Texans will vote on a number of proposed Constitutional Amendments November 8. Among them, a provision providing that marriage in Texas consists only of the union of one man and one woman and prohibiting the state or a political subdivision of the state from creating or recognizing any legal status identical or similar to marriage. If Proposition 2 is approved, Texas will join more than a dozen states that statutorily and constitutionally ban same-sex marriage. Massachusetts is the only state that allows such marriages, although Vermont and Connecticut have approved same-sex civil unions. No Nonsense in November, a coalition of groups that oppose the ban, has established offices in Austin, Houston, Dallas and San Antonio and selected campaign coordinators for 35 of the state's largest counties. Click here for the complete story (last visited October 5, 2005, REO). Download texas_legislative_council_pdf.
New Jersey Gay-marriage foes rally
With the New Jersey Supreme Court expected soon to consider the issue, gay-marriage foes took to the State House steps Monday and vowed to work to keep same-sex marriage illegal. But supporters of legalizing such unions also made their voices heard, contending gay couples deserve the same rights as anyone else. Source: Tom Hester Jr, The Times, nj.com. Click here for the complete story (last visited October 5, 2005, REO).
October 4, 2005
Case Law Development: Ongoing Duty of Disclosure of Financial Assets Extends Until Entry of Judgment of Dissolution
The Connecticut Supreme Court, in a 3-2 decision, holds that the parties have a continuing duty to disclose financial information until the time of judgment. Reversing the trial and appellate courts, the court found that Wife had proven fraud sufficient to reopen the judgment when Husband had repeatedly valued his interest in his company at $ 40,000, but failed to disclose an offer to purchase his company for $2.5 million dollars.
In a running subtext, the majority opinion spars with the dissent over whether the issue had been properly preserved for trial, the degree of deference to be given to the trial court’s findings, the necessity of due diligence in investigating facts, and the time at which the duty of disclosure ends.
WEINSTEIN v. WEINSTEIN, 2005 Conn. LEXIS 348 (October 4, 2005)
Opinion on the web at http://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR275/275CR143.pdf (last visited October 4, 2005 bgf)
Husband owned an interest in a software company, which he valued at $40,000. The parties stipulated to, and the dissolution court adopted, this value and allocated the entire value of the business to Husband. Thereafter, Husband brought a motion for reconsideration of the property division and support obligations, arguing that the trial court’s decision would “strip him bare.” While the motion was pending, however, Husband and his partners were negotiating the sale of the business and received and rejected a $2.5 million offer to purchase (Husband’s share would have been $500,000). The trial court denied the motion to reconsider and entered judgment. Five months later, Husband and his partners sold the business for $6 million, with Husband receiving $ 1.45 million for his share.
Wife then sought to open and to vacate the judgment on the basis of fraud. The 3-judge majority of the court agreed that Husband’s knowledge of the sale offer and failure to disclose constituted a fraudulent concealment upon which Wife detrimentally relied. The court concluded that but for the concealment, the trial court would have issued a different judgment, so that the judgment must be vacated for fraud. the trial court apparently concluded that the defendant's duty to disclose ended at the conclusion of the evidence, not upon the date on which judgment was rendered.
The court emphasizes the continuing duty of financial disclosure in dissolution actions. “The principle of full and frank disclosure . . . is essential to our strong policy that the private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine.” The court noted that there is no “due diligence” element to fraud: "the requirement of diligence in discovering fraud is inconsistent with the requirement of full disclosure because it imposes on the innocent injured party the duty to discover that which the wrongdoer already is legally obligated to disclose."
In arguing that the duty of disclosure should extend to the entry of judgment, rather than merely to the end of trial as argued by the dissent, the court noted “It would defy logic and principles of fairness to allow the defendant to contest his financial ability to comply with the dissolution court's order by claiming financial hardship while simultaneously allowing him to withhold information expressly sought by the plaintiff as to the accurate value of and purchase offers for [the business].”
The dissent strongly disagreed at every point. Summarizing it’s analysis, the dissenting opinion states, “In closing, I note that the majority is able to reach its decision today only by systematically disregarding the amply supported facts found by the trial court, the strictures of our rules of practice, our well settled law regarding proof of fraud and our long-standing rule that we do not allow plaintiffs to advance claims on appeal that have not been fairly raised or preserved at trial. The majority's actions, in my view, are unwarranted even under the guise of "doing justice," which is the only motivation that I can charitably attribute to the majority opinion. The unfortunate irony is that it fails to accomplish even that goal.”
Case Law Development: Splitting Siblings in Custody Requires Affirmative Evidence
In this case a high-conflict divorce and child custody dispute resulted in the court granting primary custody of the 13 year old daughter to father and the 4 year old son to Mother. The Louisiana Court of Appeals reversed, holding that a custody order that splits children must support that decision with express findings that the arrangement is in the best interests of the children.
Teachers may find the case especially useful not so much for what it says as for the opportunities for speculation and discussion the case presents. The brevity of the opinion and the intriguing comments about the trial court decision make the opinion a fine Rorschach-test for students to explore their own biases. For example, in supporting its decision to reverse the custody award, the appellate court cited the testimony that daughter was very caring toward her little brother and took responsibility for him. Yet we know that divorce often places children in more adult roles. If keeping siblings together means that one will, in effect, be mothering the other, is this a justification for keeping the children together or a reason to separate their custody?
Sanders v. Sanders, 2005 La. App. LEXIS 2081 (September 23, 2005)
Opinion on the web at http://www.la-fcca.org/Opinions/PUB2005/2005-09/2005CU0803Sept2005.Pub.10.pdf (last visited October 1, 2005 bgf)
October 3, 2005
Moot Court Announcements
"The Moot Court Board of Albany Law School cordially invites you to participate in the Eighteenth Annual Domenick L. Gabrielli National Family law Moot Court Competition to be held in Albany, NY, February 23-25, 2006. By Moot Court Board of Albany law School. Link to Website (last visited 10-02-05, NVS)
Capital University Law School Moot Court Board in partnership with The National Center for Adoption Law & Policy, The National Council of Juvenile & Family Court Judges, The ABA Center on Children and the Law, The American Academy of Adoption Attorneys and the National Association of Counsel for Children proudly announces the first ever National Moot Court Competition in the area of child welfare and adoption law, March 10 & 11, 2006, Columbus, Ohio. From Capital University Law School Moot Court Board. Link to Website (last visited 10-02-05, NVS)
"Whittier Law School and the Center for Children's Rights are proud to announce the 11th annual National Juvenile Law Moot Court Competition." February 10-11, 2006. By Whittier Law School Link to Website (last visited 10-02-05, NVS)