November 5, 2005
Does Polygamy Lower Public Esteem Of The Judiciary? Utah Court To Give Answer
The Utah Supreme Court heard arguments Wednesday on whether Judge Walter Steed is lowering public esteem for the judiciary and should be removed from the bench because he has three wives. Utah's Judicial Commission says the Hildale Justice Court judge is bringing his office into disrepute with his practice of polygamy - a violation of law by an official sworn to uphold it. Steed says he should remain a judge. "As long as I do my job, why shouldn't I?" he asked a crowd of reporters after the arguments. Describing himself as a fundamentalist Mormon, Steed said he has taken three wives as a religious practice and that his lifestyle has no effect on his fairness as a judge. He contends that other jurists who are breaking the law are not being disciplined. "Which is worse, a monogamist who doesn't monog or a polygamist who really polygs?" Steed asked. Steed and the three women were all adults when they married and he now has 32 children. Steed’s lawyer noted during oral argument of the case that the Utah Attorney General's Office and Washington County authorities have declined to prosecute the judge for bigamy and argued there should be no removal without criminal prosecution. He also said the description of what actions bring a judicial office into disrepute and what mental state amounts to "willful" conduct is vague. Parker said enforcement of the bigamy statute can be arbitrary and what is considered disreputable in one community might not be considered wrong in another community. Source. Pamela Manson, The Salt Lake Tribune, sltrb.com. Please click here for addition information (last visted November 5, 2005, reo).
Oregon Judge Upholds Gay Marriage Ban
A judge Friday upheld the gay marriage ban that was adopted by Oregon voters in 2004, sweeping aside arguments by gay rights supporters that the measure is flawed. In his ruling, Marion County Circuit Judge Joseph Guimond rejected opponents' arguments that Measure 36 contained too many changes that should have been voted on as separate amendments and that it was improperly submitted to voters. The ruling was the latest setback for gay rights backers in Oregon, where more than 3,000 marriage licenses were granted to same-sex couples in Multnomah County in the spring of 2004 before a judge halted the practice. Source. Brad Cain, Seattle Times, Seattletimes.nwsource.com.
Sex Game Or Angry Attack? Pennsylvania Jury Returns Verdict
On Friday afternoon, a Westmoreland County, Pennsylvania jury found in Ken Slaby's favor, awarding him $46,200 in his civil suit against an ex-lover. The 12 jurors had to decide if the glue episode was a sex game, or the revenge of a scorned woman. Slaby says his ex-lover, Gail O'Toole, was angry he had moved on after their break-up, so she waited until he fell asleep, then glued his penis to his stomach, his testicle to his leg, and glued his buttocks together. He also says she dumped nail polish all over his head, then suddenly booted him out of her Murrysville home -- forcing him to walk a mile to the nearest convenience store to get help. O'Toole served six months probation after a criminal proceeding. Source. WTAE-TV, thepittsburghchannel.com. Please click here for addition information (last visted November 5, 2005, reo).
Alberta Plans Law Allowing Child To Sue For Injuries Suffered In Womb
Groundbreaking legislation that would allow a child to sue its mother for injuries suffered in the womb is raising worries for insurance providers and the pro-choice lobby. Alberta Justice Minister Ron Stevens plans to introduce a bill later this month that would create an exception to current Canadian law. But he cautions the Alberta law will be narrowly restricted to cover children who were hurt in motor vehicle accidents, and the liability will be limited to the amount of the mother's insurance policy. The move stems from the case of Brooklynn Rewega, who was born with brain damage, blindness and cerebral palsy after her pregnant mother lost control of her car and crashed it. "If that accident had occurred and any other party was driving or was responsible, there would be a remedy for that child for injuries arising out of the accident," Stevens said Thursday. "What we are doing in the legislation that we will be bringing forward is providing a potential remedy for that child in those circumstances." Source. News from Canadian Press, Lorraine Turchansky, news.yahoo.com. Please click here for addition information (last visted November 5, 2005, reo).
Oklahoma Top Ten Most Wanted Delinquent Child Support Parents Owe $372,000
Ten of the most-wanted Oklahoma parents delinquent on child support collectively owe their children more than $372,000, the state of Oklahoma Department of Human Services officials said Thursday. The 10 parents are missing and have arrest warrants out for them. The Department officials hope that publicizing the names and amount owed will lead to tops from the public to help track them down. Source. Jennifer Mock, The Oklahoman, newsok.com. Please click here for addition information (last visted November 5, 2005, reo).
Britney Spears Kicks Kevin Out?
Britney Spears has reportedly kicked husband Kevin out of their home after a fight. It may seem that a parenthood and ambitions are driving Britney Spears and Kevin Federline for a split. While Britney Spears is overcoming the new mom's obstacles, Kevin Federline is not there with a helping hand. According to Life&Style, the new dad is partying rather spending time with his wife and son. Another point of mutual disappointment may be Britney's career. Source. Fashion Monitor, Toronto, Canada, Toronto-Fashion Monitor.com. Please click here for addition information (last visted November 5, 2005, reo).
Kentucky Accused Found Guilty of Attempting To Murder Ex-wife and Family Court Judge
A Boyle County, Kentucky Circuit jury found Ronnie Cornett guilty on two of three counts of attempted murder Friday night. The jury found that he had attempted to murder his ex-wife, Kathleen Cornett, and Family court Judge, Bruce Petrie. They acquitted him of attempting to murder one of the lawyers who represented Ms. Cornett. Cornett will be sentenced During the trial Cornett readily admitted to jurors that he spent two days preparing to gun down Kathleen Cornett, her attorney and Judge Petrie. Beginning on Nov. 30 at his West Virginia office and apartment, Cornett said he took all the needed steps to carry out his plan. Borrowing an idea he saw in a gun magazine, Cornett said he used his pocketknife to carve out a secret compartment in a stack of notebooks big enough to hold a pistol and extra ammo, which he would place in a folder he could carry into the Boyle County Courthouse for a hearing on Dec. 2. He also tesitified that when he arrived at the courthouse he had “95 percent abandoned the plan.” Source. Mr. Todd Kleffman, The Advocate Messenger, Danville, Ky. Please click here for addition information (last visted November 5, 2005, reo).
Was Minnesota Wife Murdered Because She Asked For Divorce?
A jury in St. Paul, Minnesota is pondering the question of whether a Minnesota wife was murdered by her husband when she asked for a divorce. Prosecutors allege that Gordon Weaver was so enraged that his wife wanted a divorce that he knocked her unconscious, doused her with flammable liquid and started their house on fire. Relying in part on a blood test performed by an outside laboratory, a medical examiner determined that Jean Weaver, 40, died of carbon monoxide poisoning due to the fire. But Gordon Weaver's defense attorney, Joseph Friedberg, said his client never meant to harm his wife and is only guilty of the lesser offense of manslaughter. The defense alleges that Gordon Weaver shoved his wife during a spat, causing her to fall and hit her head on a cement laundry basin. Believing his wife was dead, he then tried to burn down their house. The defense plans to call its own medical expert to testify that Jean Weaver died from the fall. Source. Shannon Prather, Pioneer Press, twincities.com. Please click here for addition information (last visted November 5, 2005, reo).
November 4, 2005
Case Law Development: Washington State Supreme Court Recognizes De Facto Parent Doctrine
The Washington Supreme Court has adopted the de facto parent doctrine in a case involving a same-sex couple who ended their relationship when the they had been raising together was five years old. The child had been conceived by artificial insemination and the birth mother had denied her former partner access to the child after the break up. The partner sued, asking for a determination of parentage under the UPA, or as a de facto parent, or, in the alternative, for third-party visitation rights. The Supreme Court of Washigton found no standing under the UPA. However, exercising its equitable power, the court established a common law claim of de facto parentage separate from the UPA and concluded that establishing this claim was not an unconstitutional infringement on the parental rights of fit biological parents. One judge dissented on the basis that the UPA provided the sole avenue for establishing paternity.
Carvin v. Britain, 2005 Wash. LEXIS 861 (November 3, 2005)
Opinion on the web at http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=756261MAJ (last visited November 4, 2005 bgf)
The majority opinion began by examining whether "the equitable power of our courts in domestic matters permits a remedy outside of the statutory scheme, or conversely, whether our state's relevant statutes provide the exclusive means of obtaining parental rights and responsibilities."
The court concluded that:
"A review of our state's jurisprudence in this area thus reveals the following:
(1) our legislature's certain and unwavering emphasis on the "best interests of the child" and on a child-centered approach to resolving custody and visitation disputes,
(2) the legislature's recent proclamation, supporting previous common law holdings, that the marital status of a child's parents shall have no bearing on the child's rights to a legally cognizable relationship with parents,
(3) our legislature's commitment to the principle that sex and gender roles do not serve as a proper basis for distinction between parenting parties, and
(4) the recognized and accepted role of the judicial branch of our government in resolving family law disputes, especially when the legislative enactments speak to an issue incompletely.
It is evident that the UPA, especially when considered in the broader context of Washington's familial statutory scheme, was intended to supplement and clarify parentage actions and not to supplant the common law equity powers of our trial courts with regard to parentage, visitation, child custody, and support." (citations omitted)
Next, the court outlined the criteria necessary to establish standing as a de facto parent:
"(1) the natural or legal parent consented to and fostered the parent-like relationship,
(2) the petitioner and the child lived together in the same household,
(3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and
(4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature. ...
In addition, recognition of a de facto parent is "limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life."
Finally, the court noted that the biological parent's constitutional rights are not infringed by the de facto parent doctrine because the first of the four de facto parent standards ("natural or legal parent consented to and fostered the parent-like relationship,") incorporates the constitutionally requisite deference to the legal parent. As the court commented:
"The State is not interfering on behalf of a third party in an insular family unit but is enforcing the rights and obligations of parenthood that attach to de facto parents; a status that can be achieved only through the active encouragement of the biological or adoptive parent by affirmatively establishing a family unit with the de facto parent and child or children that accompany the family. In sum, we find that the rights and responsibilities which we recognize as attaching to de facto parents do not infringe on the fundamental liberty interests of the other legal parent in the family unit."
Case Law Development: Court Upholds Appointment of "Therapeutic Monitor" to Assist Parents in Custody Disputes
The New Jersey Appellate Court, while reversing a trial court's decision on custody and support issues, declined to review the court's appointment of a "therapeutic monitor" to resolve parenting time disputes. The role of the monitor (in this case a licensed social worker) appears to be an amalgam of mediator, investigator, guardian ad litem, and therapist. The duties of the monitor were outlined by the court as:
- assist the parties in resolving parenting disputes and creating a workable parenting plan.
- speak with other professionals (such as the child's therapists; school counselors; Guardian ad Litem; clergy; or attorneys for the parties) in order to fully address any dispute.
The parties were required to meet with the monitor together for at least two hours before filing any legal actions regarding parenting time disputes. The information that the therapeutic monitor acquires is not confidential. The court may require the monitor to report to the court and the parties on needs for therapy for any family member, the recalcitrance of either party, and a suggested parenting plan.
Rylick v. Rylick, New Jersey, #a0499-04 (November 1, 2005)
Opinion on the web at http://lawlibrary.rutgers.edu/courts/appellate/a0499-04.opn.html (last visited November 3, 2005 bgf)
Judge Splits Jurisdiction of Custody and Financial Issues Between Two States
Wife filed for divorce in New York, where case law would entitle her to an interest in her husband's medical degree. Husband filed for divorce and custody of the children where they live - Ohio - which has jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act. In an action brought by wife to enjoin husband's suit, the New York judge ruled that the two interests are not necessarily irreconcilable.
In New York, the medical degree would be considered marital property, under O'Brien v. O'Brien. But not so in Ohio. "The wife suggests that the husband's challenge to her request for custody is insincere," Drager wrote. "The husband does not - and cannot - dispute the fact that he has spent relatively little time with the children since he left the marital residence." However, under the Uniform Child-Custody Jurisdiction and Enforcement Act, the New York court does not have jurisdiction to resolve the custody dispute because "New York was not the home state of the children at or within six months prior to the commencement of the New York Action," according to Drager. Therefore, like Solomon, Drager decided to slice the prize in half. The child custody issue will remain in Ohio, but the remainder of the divorce proceeding, including the distribution of property, will be heard in New York.
For more information please click here (last visited November 3, 2005 bgf)
Case Law Development: Spousal Loss of Consortium Claim a Separate Action
The Supreme Court of Maine held, in a case of first impression, that a spousal loss of consortium claims is a separate and independent cause of action that need not be joined with the underlying negligence claim.
Parent v. Eastern Maine Medical Center, 2005 ME 112, 2005 Me. LEXIS 122 (October 26, 2005)
In this case, wife was mistakenly diagnosed with breast cancer. Soon after the error was discovered, she and husband divorced and the court awarded husband his loss of consortium claim. Wife filed a malpractice action, gave her ex-husband notice of the suit and her intent to settle her claim. He did not join the action. When husband later sought to bring his claim, the trial court granted the defendants summary judgment on the basis of res judicata.
The Maine Supreme Court reversed. After reviewing the basic nature of a loss of consortium claim under Maine law and the approaches taken by other states, the court concluded that the consortium claim is a separate and independent action which is not lost by failure to join in the underlying action. Two judges dissented, arguing that the better policy was to require joinder. Especially in the facts of this case, they commented, where “We should not approve [Husband’s] willful delay in asserting his consortium claim, which had the effect of delaying, complicating, and increasing the cost of this action and the separate divorce action.”
November 4, 2005 | Permalink
Case Law Development: Trial Court's Acceptance of Stipulation to One Count of Child Abuse and Neglect Action Does Not Permit Sua Sponte Dismissal of Alternative Counts
The Connecticut Supreme Court reviewed this case involving a nonverbal child with cerebral palsy who had been repeatedly sexually molested by her uncle while in his care. The parents knew of the uncle's prior history of sexually abusing children but continued to send the child to his home on weekends. The commissioner of children and families filed a child abuse and neglect action, alleging grounds of uncared for and of neglect.
The trial court presided over settlement discussion in which the parents agreed to an order of committment for the child and to comply with reunification plans, but would not admit that their conduct played a role in the sexual assault and thereby constituted neglect. The trial court then presided over the dispositional hearing at which, based on the stipulations of the parents in the pretrial conference, he entered an order of commitment for hte child and a reunification plan for the parents. He refused the Commissioner's request for an evidentiary hearing on the neglect charge, but sua sponte dismissed it without prejudice.
The commissioner's appeal was dismissed as moot because the Appellate court held that the commissioner had already obtained all the relief it sought (commitment of the child). The Connecticut Supreme Court reversed, holding that the commissioner was sufficiently aggreived by the failure to hold a hearing on the neglect petition, as failure to adjudicate the neglect allegation could affect adversely the course of future proceedings to protect the child. The Supreme Court refused to view the situation as analogous to a civil damages action in which judgment on one count renders alternative counts moot. Rather, the court noted that the failure to adjudicate the neglect allegation would likely delay, if not jeapordize, a future action for termination of parental rights should the reunification efforts fail.
The Supreme Court also noted that the trial court's action in conducting a pretrial settlement conference and then arriving at a judgment based on the discussions in that conference, with a factual hearing, was improper. "in the absence of both parties' consent, "when a judge engages in a pretrial settlement discussion in a court case, he should automatically disqualify himself from presiding in the case in order to eliminate any appearance of impropriety and to avoid subtle suspicions of prejudice or bias."
In re Allison G., 2005 Conn. LEXIS 455 (November 1, 2005)
Opinion on the web at http://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR276/276CR3.pdf (last visited November 3, 2005 bgf)
Case Law Development: Termination of Presumed Father's Parental Rights Does Not Provide Biological Father Right to Assert Untimely Paternity Petition
Texas statutes provide that, where a presumed father exists, an action brought to establish paternity in one other than the presumed father must be brought within four years of the child's birth. Where no presumed father exists, no such time limitation applies. In this case, the court had terminated the parental rights of Mother and Presumed Father (to whom Mother was married when child was born). Biological Father then brought an action to establish his paternity, which the trial court dismissed as being time barred, as it was brought after four years. Biological father argued that the four-year limitation was unconstitutional and should not apply to his situation because there no longer was a presumed father, given the prior termination order. The Texas Court of Appeals affirmed, but noted that the purpose of the limitation was "to limit the time in which to establish a parent-child relationship when there is a presumptive father so as to protect the family unit. Here, there was no longer a family unit to protect once the parental rights of [Presumed Father] and [Mother] were terminated.... Nevertheless, because [Presumed Father] remains [child's] presumptive father in spite of his parental rights having been terminated, the current law leaves a biological father... with no greater ability to establish a parent-child relationship or be appointed as conservator than any stranger to the relationship. These facts raise an issue inviting legislative review."
In the Interest of S.C.L., 2005 Tex. App. LEXIS 8934 (October 31, 2005)
Opinion on the web at http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05_06.ask+D+1519427 (last visited November 2, 2005 bgf)
November 3, 2005
Military Overseas Custody Issues
"CAMP RED CLOUD, South Korea — It often happens like this: A U.S. soldier stationed overseas meets and marries a non-U.S. citizen. They have a child, then a falling out. Who gets custody of that child hasn’t been settled — but one parent takes the child to live elsewhere without the other’s consent. Sometimes it might be the soldier’s home in the United States. Sometimes it’s the spouse’s home in her native land. Either way, the left-behind parent must navigate a maze of international and local legal procedures to have any chance at a parental relationship with the absent child.
U.S. military parents serving overseas are involved in numerous such child custody disputes and resulting parental abductions, according to the Washington, D.C.-based National Center for Missing and Exploited Children. Stars and Stripes contacted NCMEC — which works with the U.S. State Department on international cases — after learning of three incidents in recent months of U.S. military parents or spouses in South Korea taking children from the other parents in unresolved custody disputes. Unknown is how widespread the problem is throughout the entire U.S. military. Julia Alanen, NCMEC’s International Division director, said her organization is working about 1,350 parental abduction cases outside the United States but could provide no exact numbers on how many servicemembers are involved.
“We see numerous cases involving U.S. servicemen and women residing abroad,” she said. “Unfortunately, I suspect that actual numbers are much higher, particularly involving countries whose officials are unaware of our resources and/or lack their own.”" By Seth Robson, Stars and Stripes Pacific edition. Link to Article (last visited 11-02-05 NVS)
Divorced Parents Disagree About Burial of Son Slain in Iraq
"A judge in a bitter dispute between divorced parents over where to bury a son killed in Iraq sided with the soldier's father Tuesday. Army Staff Sgt. Jason Hendrix should remain buried in his father's home state of Oklahoma, despite his mother's claim that he wanted to be laid to rest in California, Superior Court Judge Robert B. Yonts Jr. ruled. The case highlighted a little-known Pentagon policy that says if a slain soldier is unmarried and has no children which was the case with Hendrix custody is granted to the eldest next of kin. Hendrix's father, Russell Hendrix, is 48; his mother, Renee Amick, 45." By By Kim Curtis Associated Press Writer, The Associated Press Link to Article (last visited 11-2-05 NVS)
November 2, 2005
Case Law Developments: Voluntary Overpayments of Child Support Need not Be Credited Toward Later Failures to Pay
Father's child support obligation was reduced to $68 per week when his youngest child came to live with him. When the child returned to live with Mother full time, Father resumed his prior child support payments of $180 per week, but did not obtain a formal modification of the support award. Some time later, Father refused to pay any further child support. He was held in contempt and was ordered to pay the child support arrears for the period during which he did not pay. Father argued that he should have been given a credit for his prior period of voluntary overpayments. The Appellate Court of Connecticut held that it was not error for the trial court to refuse to credit father the overpayments.
Lawrence v. Lawrence, 2005 Conn. App. LEXIS 453 (November 1, 2005)
Opinion on the web at http://www.jud.state.ct.us/external/supapp/Cases/AROap/ap92/92AP4.pdf (last visited November 2, 2005 bgf)
Utah Supreme Court to Decide Status of Polygamous Judge
The Utah Supreme Court will hear arguments today (Wednesday) in the case of Walter Steed, who has served as a Justice Court judge in the tiny southern Utah border town of Hildale. Utah's Judicial Conduct Commission issued an order seeking Steed's removal from the bench in February, after a 14-month investigation determined Steed is a polygamist and as such had violated Utah's bigamy law. Bigamy is a third-degree felony in Utah punishable by up to five years in prison and fines up to $5,000. Source. Jennifer Dobner, San Diego Union-Tribune, signonSanDiego.com. For more information, please click here (last visited November 2, 2005, reo).
Child Custody Battle Between Actors Turns Ugly
Actors Alec Baldwin and ex-wife Kim Basinger traded personal jabs through their attorneys Monday, with each claiming amid a custody dispute that the other has serious emotional problems. Baldwin lawyer Vicki Greene argued in a court hearing Monday that Basinger had tainted 10-year-old Ireland's view of her father. Basinger's attorney, Neal Hersh, dismissed the claim and said Baldwin was the problem. "We believe that Mr. Baldwin has severe emotional problems," Hersh said. Source. ABC13 TV, abc13.com news. For more information, please click here (last visited November 2, 2005, reo).
Federal Appeals Court Asked to Uphold Ruling Striking Down Nebraska Marriage Amendment
Two advocacy groups asked a federal appeals court on Tuesday to uphold a ruling that invalidated an amendment to the Nebraska constitution banning same-sex marriage. Lambda Legal and the American Civil Liberties Union filed a brief with the Eighth U.S. Circuit Court of Appeals, asking that it uphold the ruling by U.S. district judge Joseph Bataillon. The Nebraska amendment that was struck down made gay people into political outcasts, making it impossible for same-sex couples even to lobby for basic domestic-partnership protections," said Tamara Lange, a lawyer with the ACLU's Lesbian and Gay Rights Project. "Our Constitution makes it very clear that all Americans are entitled to participate in our democracy. This law denied lesbian and gay Nebraskans an equal shot in the political process. That's not how our democracy works." Bataillon ruled in May that the measure was too broad and deprived gays and lesbians of participation in the political process, among other things. Seventy percent of Nebraska voters approved the amendment in 2000. In briefs submitted earlier, Nebraska attorney general Jon Bruning argued that the ban should be restored because it "does not violate any person's freedom of expression or association.” Advocate.com. For more information, please click here (last visited November 2, 2005, reo).