Saturday, October 22, 2005
As part of her ongoing efforts to protect Kansas children from sexual abuse, Kansas Governor Kathleen Sebelius has called for a strict ban on marriages involving anyone younger than 16. Current law (K.S.A. 23-106) allows anyone under 18 to marry with parental or judicial consent and sets no minimum marriage age. Based on research conducted by infozine.com, there are 37 states that put the minimum marriage age at 16, with varying requirements for marriage under that age. Eleven states do not allow anyone under the age of 16 to marry. Source. Infozine.com. For additional information, click here (last visited October 22, 2005, reo).
AUSTIN - A proposed ban on gay marriage probably will be the big ballot draw as Texans start casting early votes Monday for the Nov. 8 constitutional amendments election. Proposition 2 would define marriage as being only between one man and one woman. State law already bans same-sex marriage, but the amendment would cement that definition in the state constitution. Groups on both sides of the same-sex marriage ban are working to stir interest in the ballot issue. The Republican Party of Texas' leader is aggressively speaking out in favor of it, while gay rights groups are opposed to it. Source. Kelley Shannon, Associated Press, Star-Telegram.com. For additional information, click here (last visited October 22, 2005, reo).
The British government announced this week plans to give fathers up to six months’ paternity leave. Trade and Industry Secretary Alan Johnson said the Work and Families Bill will create a modern framework of employment rights. He maintains the bill will have a minimal impact on business despite concerns, especially from smaller firms. The plan, which will make it illegal for employers not to give staff 28 days holiday, is now going out to consultation. Meanwhile, some small business groups expressed concern that small businesses will suffer. A London small business owner said in the Timesonline that the paternity leave policy was “absolutely ridiculous. It is the nanny state gone berserk. If we lost one worker for six months it would raise all kinds of horrors for us. If two or three guys went on paternity leave at the same time it could put us out of business." Source. New&Star.com. For additional information, click here (last visited October 22, 2005, reo). For additional information, click here (last visited October 22, 2005, reo).
A new statewide poll done by The Arizona Republic indicates voter support for a state constitutional amendment to ban same-sex marriage, but the survey didn't touch on the most controversial part of the ballot measure: denying benefits to unmarried couples. The Republic poll of 600 Arizonans found that 57 percent are likely to back an initiative defining marriage as a union between a man and a woman if it makes the November 2006 ballot. Only 37 percent said they would vote against it; 6 percent were undecided. The poll, with a margin of error of about 4 percentage points, says the idea of a state constitutional ban on same-sex marriages is popular with voters when not linked to wording that may prohibit cities, towns and counties from giving legal status to unwed couples. Source. Chip Scutari, Arizona Republic, azcentral.com. For additional information, click here (last visited October 22, 2005, reo).
In a news release issued by the Wellesley Centers for Women, it was reported that African-American Women may be at an increased risk of experiencing domestic violence. Source. Asribe.com.; Wellesley Centers for Women.For additional information, click here (last visited October 22, 2005, reo).
Friday, October 21, 2005
Case Law Development: Allowing Indigent Parents An Opportunity to Prove Ineffective Assitance of Counsel in Termination Cases
Concerned that indigent parents, whose parental rights have been terminated, are not given a realistic opportunity to develop a record on appeal due to the tight filing deadlines, the Texas Court of Appeals has held that appellate courts should use the remedy of abatement of the appeal and remand for the purposes of a developing a record when necessary to insure an adequate review of the issue of ineffective assistance of counsel. As the court noted, "In a parental-rights termination case where the parent asserts on appeal the ineffective assistance of trial counsel, but nothing in the record indicates trial counsel's reasons or strategies for the complained-of conduct, the lack of a record is practically always fatal to the parent's appellate issue under current Texas law." However because appeal must be taken within 30 days of the termination order, most indigent parents are unable to secure appellate counsel in time to develop this record. Thus, the court held that abatement and remand to the trial court for a "meaningful opportunity to develop an evidentiary record to support their ineffective assistance of counsel claims" is necessary to protect the parent's constitutional interests.
A brief but strongly worded dissent by one judge objects to "the new procedure created out of whole cloth by the majority" and asks, without elaboration, "Is it effective assistance of counsel or is it now the appointment of effective counsel?" Obviously the issue of how far appellate courts should go to review the conduct of attorneys in termination cases has been a point of some disagreement among members of the court for some time.
In the Interest of K.K., L.M., M.M., AND T.K., 2005 Tex. App. LEXIS 8647 (October 19, 2005)
Opinion on the web at http://www.10thcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=6898 & dissent at http://www.10thcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=6903 (last visited October 20, 2005 bgf)
Case Law Development: Spending Patterns As Evidence Of Ability To Continue To Pay Alimony In Spite Of Income Reduction
The Michigan Court of Appeals affirmed a trial court's decision to lower but not eliminate Husband's alimony payment. Husband had lost his job and was near retirement. His income had been drastically reduced, near to the amount of alimony he was paying. On a motion to modify, he asked the court to eliminate the duty to pay alimony. The trial court held that cutting the alimony payment by about a third was justified. The appellate court affirmed, finding that, given husband's lavish spending habits, and his ability to draw on an IRA for additional income, there was ample "evidence of plaintiff's continued ability to pay, regardless of his age and reported income" to uphold the trial court's decision to reduce but not eliminate alimony. One dissenting judge would have found the trial court's decision clearly erroneous and inequitable.
Holmes v. Holmes, 2005 Mich. App. LEXIS 2480 (October 11, 2005)
Opinion on the web at http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20051011_C252528_57_252528.OPN.PDF (last visited October 20, 2005 bgf).
Thursday, October 20, 2005
The ABA Section on Family Law is presenting a teleseminar on assisted reproduction and alternative families on Tuesday, November 15, 2005 from noon until 1:30 p.m. EST. "Assisted reproduction and alternative families are becoming increasingly important in family law and litigation. The rise in the use of assisted reproductive technology (ART) by same-sex and different-sex unmarried couples or those in domestic partnerships, single-parent families, civil unions or post-divorce families brings new questions and issues to the family law attorney. This teleseminar will discuss what a lawyer needs to know when confronted with a case involving alternative families and ART." Presenters are Professor Charles P. Kindregan and Maureen McBrien. By ABA Section of Family Law Link for Information (last visited 10-19-05 NVS)
"In conjunction with Domestic Violence Awareness Month, the ABA Commission on Domestic Violence is proud to announce the release of our latest publication, “Tool for Attorneys to Screen for Domestic Violence.” This wonderful resource is for use by ALL attorneys who provide individual representation to enable them to identify if their client is a victim of domestic violence. The Tool contains suggested questions to integrate into interview questions, as well as guidance on how an attorney can provide support and resources to their clients who are victims of domestic violence." By the ABA Commission on Domestic Violence Link to Download Tool (last visited 10-19-05 NVS)
Wednesday, October 19, 2005
The Appellate Division of the New York Supreme Court heard arguments in three separate cases brought on behalf of gay couples denied marriage licenses on Monday. The judges are being asked to strike down a state law barring same-sex marriage. Lawyers for the gay couples argued that the State of New York is denying them their fundamental constitutional rights by denying them the licenses. The five-judge panel was told by lawyers for the gay couples that their clients were being unfairly denied marriage-related benefits ranging from health-care insurance to favorable home interest rates. Peter Schiff, senior counsel with the attorney general's office, told the judges that the plaintiffs wanted the courts to rewrite the definition of marriage. He said that job is best handled by the legislative branch of government. Source. Michael Hill, Associated Press Writer, Newsday.com. For the complete story, please click here (last visited October 19, 2005, reo).
A divided state appeals court ruled last Thursday that a man cannot sue a Manhattan hospital for malpractice in the death of his longtime partner, saying it could not provide tacit approval of same-sex marriages. The appeals court, in a 3-2 vote, decided that John Langan had no standing to sue the hospital despite the couple's 2000 civil union in Vermont. Attorneys for Langan claimed the civil union gave him standing as a spouse to sue the hospital under New York law. Any ruling favoring Langan would be "taken as judicial imprimatur of same-sex marriages and would constitute a usurpation of powers expressly reserved by our Constitution to the Legislature," the court ruled. Source. Foxnews.com. Click here for link to the source (last visited October 19, 2005, reo).
Bakersfield, California Police Net 66 Misdemeanor and 5 Felony Domestic Violence Suspects in Two-day Effort
Police in Bakersfield, California report making sixty-six misdemeanor and five felony arrests of domestic violence suspects in a two day period last week. The arrests came as a part of a crackdown on domestic violence by that city’s police force. Nearly 200 domestic violence suspects remain at large. Since January, there have been over 1,500 reported cases of domestic violence in Bakersfield, three of those cases resulted in death. Source: Bill Curtis, onebakerfieldonline.us. Click here for link to the source (last visited October 19, 2005, reo).
SANTIAGO. The creation of family courts in Chile has sparked an avalanche of reports of domestic violence. In the first seven working days of the 60 family courts that opened throughout Chile, a total of 6,288 claims were filed, involving 6,765 charges. Of the claims, more than 20 percent involved domestic abuse. "In my opinion, a new page has been turned for families, and especially for women. This is the beginning of a new chapter of swifter, more humanised justice," National Women's Service Minister Cecilia Pérez told the Inter Press Service News Agency. Source: Carolina Avendaño, Inter Press Service News Agency, ispnews.net. Click here for link to the source for more complete information (last visited October 19, 2005, reo).
A vigil was held in Bridgeport, Connecticut Monday for the 26 men, women and children who were killed in Connecticut in domestic violence incidents last year. Some were stabbed or had their throats cut, while others were beaten, strangled or shot. One died from carbon monoxide poisoning. Their names were read aloud at an hour-long candlelight vigil outside City Hall Annex Monday night, hosted by the Center for Women and Families of Eastern Fairfield County in Bridgeport to increase awareness of domestic violence. Source. Aaron Leo, Connecticut Post, connpost.com. Click here for link to the source (last visited October 19, 2005, reo).
Tuesday, October 18, 2005
Case Law Development: Trial Court has Discretion to Appoint Receiver to Insure Availability of Funds to Pay Child Support
After Wife discovered that Husband had been molesting their 12-year-old daughter, she sought a divorce. Husband was convicted of child sexual assault and sent to prison. He sold his share of the family business to his siblings for $642,446.90 and gave his father power of attorney to manage the proceeds of that sale. The father paid over $250,000 in taxes and attorneys fees out of the proceeds. Wife asked the court for an injunction restraining further dissipation of the account so that there would be assets available to pay child support obligations. The court, on its own motion, appointed a receiver to manage the account and insure the support obligations were paid.
The California Court of Appeals affirmed the trial court's appointment of a receiver under these circumstances. The court noted that trial courts have the discretion to balance the hardships in appointing a receiver and may do so without a motion of either party. The court held that "In the instant case, the trial court's finding of fiscal manipulation amply justified the continued employment of a receiver and the placement of appellant's assets in court-blocked accounts."
In re Gillam, 2005 Cal. App. Unpub. LEXIS 9404 (October 17, 2005)
Opinion on the web at http://www.courtinfo.ca.gov/opinions/nonpub/F045590.PDF (Last visited October 18, 2005 bgf)
LOS ANGELES - The divorce trial of an executive with the Capital Group Cos., a firm with assets totaling more than $1 trillion, will be partially closed to the public, a judge ruled Monday. In its request, Los Angeles-based Capital Group cited a rarely used section of the California family code that says a courtroom can be closed to the public "in the interests of justice and the persons involved." The company's attorneys argued that certain information, such as executive pay levels, would damage the privately held company if revealed. Capital Group manages the American Fund group of mutual funds. The divorce trial of Timothy Armour, 45, and his wife, Nina Ritter began Monday. The company asked the judge to seal exhibits, transcripts and other materials so they won't become public during the trial.Source: Associated Press, The Mercury News, MercuryNews.com. For the complete story, click here (last visited October 19, 2005, reo).
A cadre of 30 child-support specialists in Dakota County,Minnesota spent October 5 filing financial judgments against parents who have fallen behind on child-support payments. The tradition — nicknamed "Judgment Day" by county workers — is revisited every three months when the specialists clear off their desks and focus exclusively on the time-consuming task of filing judgments through the district court. The workers completed 130 judgments, or about a fourth of the filings they will handle in a year. Banks and lenders treat judgments as outstanding debts that hurt a person's credit and ability to borrow money. Source: Frederick Melo, Pioneer Press, twincities.com .Click here for the complete story (last visited October 19, 2005, reo).
In 2004, the Michigan legislature amended its child support statute to provide that child support obligations may be retroactive only to the date of the filing of the paternity action, rather than to the date of the child's birth. Exceptions are provided in certain instances in which the defendant has caused a delay in the filing. The Michigan Court of Appeals has held that the statute should apply prospectively only because "the amended statutory scheme significantly impacts both children's substantive right to support by altering the extent of any potential award, and ... there is no express indication in the statutory language that the 2004 amendment should apply retroactively." Thus, Mother's actions for paternity and child support, filed before the effective date of the act, would be determined without reference to the limitations imposed by the amended statute.
McLaren v. Miller, 2005 Mich. App. LEXIS 2528 (October 14, 2005)
Opinion on the web at http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20051013_C260868_26_260868.OPN.PDF
(last visited October 17, 2005 bgf)
Case Law Development: Child Support Calculations - Extra Income, Past Support and the Application of Equitable Defenses
The Supreme Court of Iowa clarified a number of issues relating to setting the amount of current and past due child support.
First, the court confirmed that extra income (such as income from bonuses, overtime, or second jobs) may be included in determining child support if it is reasonably expected to be received in the future. If extra income is uncertain or speculative, or if it is an anomaly, it is excluded. In this case, Mother presented evidence that in the year prior to the action, Father had earned income from a second job. The court held that this evidence was sufficient to then shift the burden of proof to Father to establish that it should be excluded from gross income as uncertain and speculative. “The recipient of extra income is in the best position to present the underlying circumstances to the court, which makes it fair to place the burden on the recipient to show the extra income should be excluded or considered in some other manner.”
The court also considered arguments regarding past child support. Since Mother had waited six years to bring the paternity action, Father argued that she was barred by doctrines of estoppel, waiver, and laches. The court denied all these defenses. As to estoppel and waiver, the court found that Mother’s failure to pursue the paternity action alone was insufficient to establish these defenses. The court held that, to establish estoppel or waiver, the obligor parent must provide “some kind of affirmative act, inconsistent with the intention to collect child support.” As to the laches claim, the court found that Father was unable to establish by clear and convincing evidence that Mother had unreasonably delayed asserting her right to collect back child support and that he was prejudiced by the delay. In considering the reason for Mother’s delay in bringing the action, the court found that Mother, as a single mother of three children making about $18,000 a year, she simply could not afford an attorney. While she did contact the state Child Support Recovery Unit, they did not assist her, nor did they inform her that the county attorney might be able to pursue an action on her behalf. She was finally able to bring the action when she had the opportunity to purchase prepaid legal insurance through her employment. Delay in bringing an action may be reasonable when "lack of funds precludes a party from retaining a lawyer to pursue a claim.” Nor was the court convinced that Father’s claim that he spent the money he would have paid in child support constituted prejudice caused by Mother’s delay.
Finally, the court analyzed the method by which courts determine the amount of back child support. The Iowa statutes allow courts to determine past support based on whatever "the court deems appropriate for the past support and maintenance of the child" rather than relying on the uniform child support guidelines. Nonetheless, the court suggested that one should begin with the amount of support that would have been paid under the guidelines if no delay had occurred. The court may then consider the financial burden on the obligor parent of the amount thus determined, and the circumstances of whether the Father was aware of his alleged paternity at an earlier date.
Markey v. Carney, 2005 Iowa Sup. LEXIS 139 (October 14, 2005) Opinion on the web at http://www.judicial.state.ia.us/supreme/opinions/20051014/04-0519.asp (last visited October 17, 2005 bgf)
Monday, October 17, 2005
"AFCC is the Association of Family and Conciliation Courts - an interdisciplinary and international association of professionals dedicated to the resolution of family conflict. . . . For more than 40 years, AFCC and its members have served as a catalyst for generating major reforms. Dispute resolution processes such as child custody mediation, parenting coordination, and divorce education are just a few of the innovative ideas developed by AFCC members. AFCC developed Models Standards of Practice for Family and Divorce Mediators, Child Custody Evaluators and Parenting Coordinators. Task forces and special projects address the ongoing challenges faced by AFCC members and the families they serve. AFCC actively disseminates its members’ innovations and ideas. The ripple effect can be seen in courts and communities throughout the world." By AFCC Link to Page (last visited 10-16-05 NVS)
"The AFCC 43 rd Annual Conference, originally scheduled for New Orleans, will be relocated to the Westin Innisbrook Resort in Tampa Bay, Florida. The conference will take place over the original dates, May 31-June 3, 2006.
The proposal deadline has been extended until October 31, 2005. If you are interested presenting a conference workshop you may access the Call for Presenters on the home page of the AFCC Web site." By AFCC Link to AFCC Website (last visited 10-16-05 NVS)