October 29, 2005
New Research Says Abortion Does Not Raise Depression Risk
New research challenges the idea that having an abortion raises a woman’s long-term risk of depression. The research involved data from an ongoing study of 1,247 women who aborted or delivered an unwanted first pregnancy between 1970 and 1992 and were between the ages of 14 and 21 at recruitment in 1979. The researchers conclude that, “under the present conditions of legal access to abortion, there is no credible evidence that choosing to terminate an unwanted first pregnancy puts women at higher risk of subsequent depression than does choosing to deliver an unwanted first pregnancy.” The one exception was women who gave birth prior to 1980, when they were still teenagers. Source. Salynn Boyles, FoxNews.com. For additional details, please click here (last visited October 29, 2005, reo).
Same-sex Partners Win Right to Benefits in Alaska – Governor Outraged
The Alaska Supreme Court on Friday ruled it is unconstitutional to bar benefits to the same-sex partners of public employees, a victory for gay-rights advocates in one of the first states to pass a constitutional ban on gay marriage. Overturning a lower-court ruling, the state high court said barring benefits for state and city employees' same-sex partners violates the Alaska Constitution's equal-protection clause. Governor Frank Murkowski was "outraged" by the ruling and directed the attorney general's office to find a way to overturn it, said his spokeswoman, Becky Hultberg. Source. Seattle Times, seattletime.nwsource.com. For the complete story, please click here (last visited October 29, 2005, reo).
New York Appeals Court Bars Mayor From Performing Same-Sex Marriages
A New York appeals court has upheld a decision Friday that bars a village mayor from performing same-sex marriages. The court said that New Paltz, New York mayor Jason West acted beyond his authority when he presided over two dozen same-sex marriages last year. The five judges unanimously agreed to uphold the lower-court ruling. The mayor's lawyer is promising an appeal. West has maintained he was upholding the gay couples' constitutional rights to equal protection, and thus his oath of office, by allowing them to wed. Source. Cbsnews.com. For the complete story, please click here (last visited October 29, 2005, reo).
Colorado Springs Cracks Down on Domestic Violence Offenders
This week, dozens of police officers are fanning out across Colorado Springs and El Pasco County, Colorado to track down errant domestic violence offenders. This is an annual October event conducted in conjunction with Domestic Violence Month. Colorado has some of the toughest domestic-violence laws in the nation, but police do not always have the resources to round up suspects. In El Paso County, 250 people have arrest warrants for domestic violence that were never served and an additional 500 have warrants for failing to appear in court or complete domestic violence classes. “Having that offender held accountable is good. Even if it’s late, at least they know this incident did not go unnoticed,” said El Paso County Sheriff’s Office Detective Jim Vidmar, part of the Domestic Violence Enhanced Response Team, a joint venture with Colorado Springs police. By Friday afternoon, police had arrested 22 people. Today is the final day of the warrant sweep. Source. R. Scott Rappold, Colorado Springs Gazette, Gazette.com. For the complete story, please click here (last visited October 29, 2005, reo).
October 28, 2005
Case Law Development: Collateral Estoppel Bars Consideration of Questionable Paternity in Setting Amount of Child Support
Mother gave birth to child four months after separating from Father. The couple remained separated but did not divorce. When child was eight years old, Father agreed to an order of child support, which also adjudicated him the biological father. Five years later, in response to a motion to increase child support, Father obtained a private genetic test which showed that he was likely not the biological father. On this basis, Father asked the trial court to disestablish his paternity. While the trial court declined to do so, it did set the amount of future child support at zero on the basis that Father was "probably not the biological "may not be the biological father of the minor child."
The Texas Court of Appeals (Houston) reversed, holding that the doctrine of collateral estoppel barred Father's relitigation of paternity and the consideration of this issue was error by the trial court. The court noted that Father could have raised the issue of his paternity in the first action for child support but chose not to. The court commented that allowing relitigation of paternity would "burden the courts and traumatize the child."
Judge Hudson dissented. Judge Hudson would have deferred to the discretion of the trial court in setting child support at zero and suggested, even more broadly, that "the welfare of children should not fall upon one who is merely a victim of fraud.... reliance upon the doctrines of collateral estoppel and res judicata seem inappropriate in the context of a parent-child relationship."
In the Interest of R.J.P., 2005 Tex. App. LEXIS 8792 (October 25, 2005)
Opinion on the web at http://www.14thcoa.courts.state.tx.us/opinions/case.asp?FilingID=85979 (last visited October 28, 2005 bgf)
Case Law Development: Alternating Year Custody Arrangement Not in Best Interest of 8-year-old Child
Upon parent's divorce, Mother was named domiciliary parent of their five-month-old child, with Father having specified visitation. Both parents re-married. Mother moved from the state to follow her new husband's job change. Upon Mother's second move, Father asked the court to modify custody to declare him the domiciliary parent.
The trial court, finding both parents to be competent, caring and effective, decided to order an "experimental" custody arrangement as an "equitable solution." The child's domicile was to change each July 1st, alternating between Mother and Father.
The Louisiana Court of Appeals held that Mother's move was not a material change in circumstances warranting the change in custody since the move did not locate her a substantially greater distance from Father than she had been before and there was no evidence that the child had been harmed by the move. Even were it a change of circumstances, the court held that the alternating year custody arrangement was not in the best interests of the child, given "the potential disruptive effect upon the child, the lack of stability, and the potential educational calamity of changing schools."
Colvin v. Colvin, 2005 La. App. LEXIS 2260 (October 26, 2005)
Case Law Development: Necessity of Detailed Findings of Fact in Custody Cases Where Abuse is Present
With trial courts hearing thousands of family law cases each year, the desire for efficiency in decision-making is understandable. However, the Missouri Court of Appeals has emphasized that, when those cases involve custody decisions, courts must explain their judgments adequetely.
In this case, the judge's failure to make specific findings of fact and conclusion of law required reversal of its decision to grant parents joint physical and legal custody of their child. The court found that, when parents do not agree on a parenting plan, a trial judge may not justify its custody decision with a statement that "each of the applicable and relevant factors in [the custody statute] were duly considered in accordance with the best interest of the child." Rather, the court must make findings of fact and conclusions of law regarding all the relevant statutory factors.
The trial judge's failure to do so in this case was even more so in error because Mother had presented substantial evidence of domestic violence include a police report and a protective order. Missouri statutes require judges to make specific findings whenever there is evidence of domestic violence presented in a custody action. If the court finds that abuse has occurred, even if only one incident and regardless of the custody arrangement ordered, the court must make specific findings showing that the custody arrangement protects the safety of the children and the victim of that abuse. If the court finds that a pattern of abuse has occurred, and it awards custody to the abuser, it must enter written findings of fact and conclusions of law justifying that decision.
The Missouri Court of Appeals remanded for the trial court to make the necessary findings in this case. (Mother had also raised an issue regarding judge's ex parte communication with Father, which the Court of Appeals directed that the trial court to either explain on the record why that communication did not reflect bias or to recuse itself).
Sewell-Davis v. Franklin, 2005 Mo. App. LEXIS 1556 (October 25, 2005)
Opinion on the web at http://www.courts.mo.gov/courts/pubopinions.nsf/ccd96539c3fb13ce8625661f004bc7da/a57a7042195450b4862570a4005ba0a8?OpenDocument (Last visited October 28, 2005 bgf)
Case Law Development: For Service by Publication to Give In Rem Jurisdiction to Divorce Court, Property Must Be Specifically Described
Teaching the somewhat dry and technical requirements of jurisdiction in the family law class can often be challenging against the backdrop of the more colorful cases the course provides. Often a good horror story can wake up the students to the importance of getting jurisdiction right. Here's a Missouri short story on in rem jurisdiction in divorce actions that, at least an attorney who gets it wrong, would be a tale of terror:
Husband and Wife separate, and after three years, Husband files for divorce. He serves Wife by publication. Court grants a default judgment of divorce and awards Husband title to property the couple had owned as tenants by the entirety.
Time passes. Husband dies, leaving his daughter (who is not Wife's daughter) as his heir. Wife reappears, discovers the default judgment and brings suit to quiet title to the land, asserting that Husband's failure to specifically describe the property in his service by publication rendered the divorce court without jurisdiction to adjudicate title to the property. Trial court agrees and grants Wife fee simple title to the property. The Court of Appeals affirms.
Assuming Husband was represented by counsel in the divorce action, one might presume attorney is checking with his insurance carrier.
Miller v. Jonesburg State Bank, 2005 Mo. App. LEXIS 1555 (October 25, 2005)
Opinion on the web at http://www.courts.mo.gov/courts/pubopinions.nsf/ccd96539c3fb13ce8625661f004bc7da/322cc63d5b8d1be2862570a4005308a5?OpenDocument (Last visited October 28, 2005 bgf)
Case Law Development: Change of Newborn's Name Requires Proof of Best Interests of Child
This case involved a paternity action filed two days after the child was born. Father asked that the child's last name be changed to his own. The evidence consisted of father's testimony regarding his desire that his son carry on his family name and the fact that son's middle name was that of his maternal grandfather. The Missouri Court of Appeals held that this sparse evidence was insufficient for Father to meet his burden of proving that a name change was in the best interests of the child.
C.R.F. v. B.M.F., 2005 Mo. App. LEXIS 1540 (October 25, 2005)
Opinion on the web at http://www.courts.mo.gov/courts/pubopinions.nsf/ccd96539c3fb13ce8625661f004bc7da/279a67cc2abac68f862570a4004a31cb?OpenDocument (last visited October 28, 2005 bgf)
October 27, 2005
Family Law Education Reform Project
"Family law and family law practice are constantly evolving in response to changes in families and the society and culture in which we live. This requires regular revisions in teaching, but changes in teaching tend to lag behind those in practice. The family law system has developed in dramatic fashion over the past two decades, while family law teaching has not. The family law system now incorporates a wide variety of dispute resolution procedures and is populated by professionals from multiple disciplines. Indeed, today's family practitioner works in a world where understanding the work of dispute resolution and mental health professionals may be as essential as knowledge of governing statutes and constitutional doctrine. The Family Law Education Reform Project is co-sponsored by the Association of Family and Conciliation Courts (AFCC) and Hofstra Law School. The goal of the project is to provide family law teachers the ideas, tools and materials they need to bring family law teaching in line with family law practice, and to help students become effective and reflective family law practitioners." From the Family Law Education Reform Project, Project Description Link to Project Description (last visited 10-26-05 NVS)
The draft report of the Family Law Education Reform Project has been posted for comment. Comments are being solicited until January 15, 2006. Review Draft Report (last visited 10-26-05 NVS)
October 26, 2005
Michigan Governor Granholm asks States to Return Child Support Violators for Prosecution
Michigan Governor Jennifer Granholm is asking authorities outside Michigan to return more than 100 people to that state to face charges of failing to pay child support. One of the latest is a man now in custody in Virginia who owes more than $26,700 in child support dating back to 1983. If he is returned to Michigan and is convicted as charged, he faces up to four years in prison and will have to make good on the unpaid support. The power to demand extradition of a fugitive who has fled from Michigan and taken refuge in another state is vested in the governor, according to the Uniform Criminal Extradition Act. Officials outside Michigan can issue a warrant delivering the fugitive to the custody of authorities in Michigan. Source. WDIV TV, Detroit, clickondetroit.com. For more information, please click here (last visited October 25, 2005, reo).
Irish Sex Abuse Report Criticizes Church and State Handling of Complaints – Government Concerned Over How Report is Released
The Irish Government has expressed concern over how a report on sex abuse in that country will be released. The report contains the details of the handling by Church and State authorities of allegations from more than 100 complainants against between 25 and 27 priests of the Ferns diocese dating back to the mid-1960s. Proportionally, the number of priests accused of sex abuse in Ferns is believed to be among the highest uncovered in any Catholic diocese world-wide. At least six priests are expected to be named in the report, with the remainder given coded names as allegations against them have not been proven in the courts. As of Tuesday, there were no plans to "black out" the names of those identified. The Oireachtas Committee on Health and Children is expected to be asked by the Government to examine the report and its recommendations. The report is expected to severely criticise Church authorities in Ferns over its handling of the complaints and is also expected to raise concerns about the response of church authorities outside Ferns. Source. The Irish Times, Ireland.com. For more information, please click here (last visited October 25, 2005, reo).
New Hampshire Panel Rejects Gay Marriage
A New Hampshire commission on same-sex unions dealt a series of defeats Monday to proponents of gay marriage. The panel voted to urge state lawmakers not to allow gays to marry, not to recognize out-of-state same-sex unions, and not to set up a domestic partner registry for couples who cannot legally marry. Source. Beverley Wang, Associated Press, abcnews.com. For more information, please click here (last visited October 25, 2005, reo).
Minnesota Viking Kevin Williams Gets Fine and 1 Year Probation in Domestic Dispute
Minnesota Viking defensive tackle Kevin Williams was placed on a year's probation and fined $1,000 after pleading guilty to disorderly conduct in a domestic dispute. Williams was also ordered to undergo counseling. Source. Minneapolis Star-Tribune, Associated Press. For more information, please click here (last visited October 25, 2005, reo).
Ontario to Vote on Adoption Records Bill
TORONTO -- A controversial bill to open up adoption records in Ontario could go to a final vote as early as today (Wednesday), but it won't be enacted for at least another 18 months if it passes. The law would open up adoption records, making it easier for adoptees and birth parents to find one another. Adoption records have been sealed in Ontario since 1927. Adult adoptees would be able to access their original birth certificate, which could include the names of their birth parents. Birth parents, meanwhile, would be able to see the birth certificate and current name of the child they gave up for adoption. Source. Canadian Press, Canada.com. For more information, please click here (last visited October 25, 2005, reo).
October 25, 2005
Case Law Development: Statute Providing Lesser Penalties for Sexual Relations with Opposite Sex Minor than Same Sex Minors Violates Equal Protection
The Kansas Supreme Court has held the state’s “Romeo and Juliet” law violates the equal protection under both the United States Constitution and the Kansas Constitution. The statute, which provides a lighter sentence for consensual sexual conduct when that conduct occurs between a child of 14 or 15 and an offender who is less than 19 and less than 4 years older than the victim, applies only if the victim and offender are opposite sex. Thus, if a same-sex young adult and child have consensual sexual relations, the offender is subject to dramatically more severe sanctions. Two of the three members of the Kansas Court of Appeals had upheld the statute. One judge found that the statute was rationally related to the significant government objective of preventing sexually transmitted diseases. The second found justifications as well in protecting the “sexual development of children” and discouraging “voluntary sexual behavior between young adults and children which deviates from traditional sexual mores” and protecting marriage and procreation. The Supreme Court concluded that not of these proferred justifications survived rational basis scrutiny after Lawrence v. Texas. Having concluded that the statute violated equal protection, the court concluded that the legislative intent behind the statute was furthered best by severing the words "and are members of the opposite sex" from the statute, rather than by voiding the entire statute.
State v. Limon, 2005 Kan. LEXIS 715 (October 21, 2005)
Opinion on the web at http://www.kscourts.org/kscases/supct/2005/20051021/85898.htm (last visited October 25, 2005 bgf)
October 25, 2005 | Permalink
Case Law Development: Attorney Liability for Assisting Divorce Clients in Fraudulent Transfers
When an attorney assists a spouse in fraudulently transferring community property, what liability, if any, may the attorney have to the defrauded spouse?
In addition to disciplinary sanction and civil actions for fraud or conversion, the Texas Court of Appeals has now added conspiracy to violate the Uniform Fraudulent Transfer Act to the list of possible consequences. The case represents a significant extension of liability under both UFTA and divorce law.
Chu v. Hong, 2005 Tex. App. LEXIS 8767 (October 20, 2005)
Opinion online at http://www.2ndcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=17016 (last visited October 24, 2005 bgf)
The court upheld a verdict against an attorney who assisted his client in cheating his wife out of her share of the family business, a donut shop. The court affirmed that the attorney could be liable for this conduct under the Texas Uniform Fraudulent Transfer Act (TUFTA), treating Wife as a “creditor” and Attorney as an “insider” under the act. Attorney was representing buyers of Husband and Wife’s donut shop. When Wife refused to go through with the sale, Attorney assisted Husband in preparing documents to show that he alone owned the shop so that he could complete the sale. Wife then filed for divorce from her husband and sued Attorney under TUFTA. In the consolidated action, the trial court granted the divorced, voided the sale of the shop and granted title to Wife, and entered judgment against Attorney on a jury verdict that included $1.5 million in punitive damages.
Judge Gardner dissented, arguing that a claim of “fraud on the community” within the divorce was the proper cause of action to remedy the fraud and that Attorney could be liable under that theory. The dissent objected to the extension of TUFTA to this case, however, arguing that “[Wife] could not become a "creditor" as a result of the fraudulent transfer because the donut shop was community property. The injury resulting from the fraudulent transfer was to the community estate, not to [Wife] personally.” Since Wife had no cause of action against Husband under the act, the dissent found it impossible to create liability for conspiring with Husband.
October 25, 2005 | Permalink
Case Law Development: Dismissal of Domestic Violence Petition Required if No Hearing within 30 Days
In a 3-2 opinion, the Supreme Court of New Hampshire has held that the failure to hold a hearing within 30 days of filing a domestic violence petition requires the dismissal of the action. The police had assisted petitioner in filing for a protective order after respondent had threatened her life and that of their 10-year-old son. When the matter came for a hearing (13 days after the petition was filed) the judge realized he had formerly represented the respondent and recused himself. A new hearing was scheduled for 21 days later but the defendant requested a longer hearing, requiring resetting the hearing for a date 60 days after the original petition was filed. Defendant then moved to dismiss the petition because of the failure to hold a timely hearing.
Both the majority and dissenting judges agreed that the statutory requirement was clear and was not met by the court in this case. Both also agreed that the statute provided no clear remedy for the failure to comply with the deadlines for hearings. The majority opinion, relying on legislative history and analogizing to the strict application of hearing timelines in juvenile cases, found that the purpose of the domestic violence legislation was to balance the rights of defendants against the protection of victims of domestic violence. The dissent found that the clear and overriding purpose of the legislation, as stated in the statute itself, was to protect victims and that the defendant’s rights were neither mentioned in the statutory statements of purpose nor prejudiced in this case such that dismissal of the petition would be necessary or appropriate.
McCarthy v. Wheeler, 2005 N.H. LEXIS 153 (October 18, 2005)
Opinion on the web at http://www.courts.state.nh.us/supreme/opinions/2005/mccar110.htm (last visited October 22, 2005 bgf)
Case Law Development: Child Support Orders Against Incarcerated Parents Appropriate
The Family Court of New York determined that a parent who is incarcerated at the time child support proceedings are commenced and who is likely to remain in prison until the child has reached the age of majority may nonetheless be assessed child support. The court found that setting child support at zero would reward the parent for his wrongdoing and deprive the child of possible support should the parent come into some money or become eligible for employment. Also, the court noted that, although New York statutes provide that the accrual of child support for parents with incomes below the poverty line should be capped at $500, that cap need not apply when the parent’s poverty is due to their incarceration for crime. Finally, the court rejected parent’s argument that the child support order should be set aside “because of the unrealized expectations and emotional distress it will cause the Mother and child.”(!)
Janet E. v. Antonio B., 2005 NY Slip Op 25434; 2005 N.Y. Misc. LEXIS 2265 (October 18, 2005) bgf
Case Law Development: Claimed Biological Father's Right to Bring Paternity Action if Not Presumed Father
The Court of Appeals of California determined that there is no violation of a claimed biological father’s constitutional rights if he is denied the right to bring a paternity action for a child born within 300 days of the mother's divorce from another man. The child in this case was conceived while Mother was married but separated from Husband, was born after Mother's divorce, and was being raised by Mother and her ex-husband. The claimed biological father brought a paternity action, which the trial court moved to quash on the grounds that he was not a presumed father under the paternity code. Biological father argued that applying the statutory paternity presumptions and standing requirements to deprive him of the opportunity to establish his paternity would violate a liberty interest protected by the United States Constitution.
The court reviewed thoroughly the case law on the subject, noting considerable uncertainty in the issue of when a claimed biological father may have a constitutional right to bring a paternity action even though not a presumed father. The court commented that, “The uncertainty likely will continue in the near future because the so-called nuclear family, on which many of our paternity laws are based, now resembles more of an electron field.” Summarizing the status of the law to date, the court concluded that, while biological fathers who have developed an existing relationship with a child have a protected liberty interest, the interest asserted by the claimed biological father here was merely an "opportunity interest," which is not constitutionally protected except, perhaps, in the rare situations in which marital parents are either dead or have relinquished an interest in the child by placing the child for adoption by third persons.
Lisa I. v. Superior Court, 2005 Cal. App. LEXIS 1632 (October 18, 2005)
Opinion on the web at http://www.courtinfo.ca.gov/opinions/documents/B182219.PDF (last visited October 22, 2005 bgf)