Saturday, November 12, 2005
November is National Adoption Month and is celebrated across the United States to increase awareness of the 118,000 children in foster care waiting to find permanent, loving homes and to recognize those who step forward to bring these children into their families. On Nov. 19, National Adoption Day events will be held in cities throughout Arizona that will include finalizing the adoptions of many children leaving foster care. These and similar events in all 50 states will give children the chance to live with stable and loving families. They will also encourage other dedicated individuals to make a powerful difference in the life of a child. Source. The Arizona Republic, azcentral.com. For addition information, please click here (last visited November 12, 2005, reo).
A Senate panel led by Kansas Republican Sam Brownback has narrowly approved the Marriage Protection Amendment. The legislation would define marriage as a union between a man and a woman. In order to become part of the Constitution, it would have to be approved by two-thirds majorities in both houses of Congress and then ratified by at least 38 states. A similar effort led by President George W. Bush failed in both chambers of Congress last year. Source. KHBS/KHOG, Thehometownchannel.com. For addition information, please click here (last visited November 12, 2005, reo).
In 25 percent of Utah's domestic violence fatalities over three years, children either witnessed the deaths or were present in the home, according to a study released Thursday by the state Department of Health. In only one of those cases the child was referred to the Utah Division of Child and Family Services for support or counseling, according to the study. Of the 167 adult homicides in the state from 2000-2002, 53 -- or nearly a third -- of them were related to domestic violence, according to the study. Source. Debbie Hummel The Associated Press, Daily Herald, harktheherald.com. For addition information, please click here (last visited November 12, 2005, reo).
The Fathers4Justice Group in England has been accused in a program aired by ITV in that country of mounting a plot to black out British Television screens. The group was created in 2002 when a handful of men banded together after meeting through support groups and becoming disillusioned with their failure to change what they claim are fundamental inequalities in the family court system. They have climbed on ledges of Buckingham Palace and clambered up York Minster, Tower Bridge and the London Eye to capture headlines while dressed as fictional superheroes. One member of the group handcuffed himself to Margaret Hodge, the children's minister, last November. It took police 20 minutes to free the minister. The group accused the film makers of the documentary that suggested the plot of distorting the truth and said it would complain to ITV. Source. Paul Kelbie, The Independent, independent.co.uk. For addition information, please click here (last visited November 12, 2005, reo).
Norway's Directorate of Immigration reports that despite being illegal, there are an increasing number of men with multiple wives in Norway. The reason is that married men travel to countries where polygamy is legal and then add a wife. Norway is considering tightening its rules to discourage polygamy, although so far men have been allowed to bring their second wife into the country. Source. NRK (Norwegian Broadcasting), afterposten.no. For addition information, please click here (last visited November 12, 2005, reo).
Friday, November 11, 2005
Case Law Development: Grandparents as Third Party Beneficiary to Custody Agreement; Relocation Presumptions
Husband and Wife agreed in the settlement of their divorce, incorporated into the divorce decree, that the couple would have joint custody with primary custody vested in Mother. The agreement also provided that paternal grandmother would continue to babysit the child. Despite the primary custody provision of the decree, the couple shared custody of child roughly equally.
Four years later, when Mother indicated her intent to relocate, Father and Mother each filed petitions requesting sole custody of their daughter. The circuit court characterized Grandmother as a third-party beneficiary of the divorce decree, found that she was a necessary party to the litigation, and allowed her to intervene. The court further ruled that she had the right to enforce the provision of the settlement agreement stating that she would continue to babysit her granddaughter.
Arkansas law provides a presumption in favor of relocation of a custodial parent with primary custody. Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). The custodial parent does not have the obligation to prove a real advantage to the child and relocation alone is not a material change in circumstances sufficient to justify a change in custody. The trial court, however, found that this rule was inapplicable, based on the parent's pattern of sharing custody. The trial court ordered that the parent's informal agreement to share custody continue while Mother remained close enough to continue the agreement. However, the court ordered that, if Mother relocated in a way that would make the current arrangement unworkable, the decree would be modified to award custody of child to Father.
The Arkansas Court of Appeals reversed. As to Grandmother's rights, the appellate court found that the fact that Grandmother was mentioned in the divorce decree gave her no rights, either under contract or domestic-relations law. "Parents cannot elevate grandparents into a quasi-parental role by agreeing to name the grandparents as babysitters." Rather, the court noted that Grandmother's rights, if any, needed to be determined under provisions of the Arkansas Grandparent visitation statutes. The court held that she failed to satisfy the statutory requirements pertaining to grandparent visitation, and found that the trial court committed reversible error when it allowed her to intervene as a third-party plaintiff.
The court of appeals also found reversible error in the trial court's rejection of the presumption in favor of relocation. The appellate court noted that the parent had never formally sought court modification of the custody order, which had given Mother primary custody. "The parties cannot modify the divorce decree without permission from the court. Absent a subsequent modification, the language in the divorce decree is controlling. Thus, the circuit court had no basis for holding that the terms of the divorce decree had essentially been nullified by the parties' conduct." Thus, the Hollandsworth presumption should have been applied. The appellate court found that the trial court "ordered a prospective change of custody, citing relocation as the triggering event, thereby finding that appellant's relocation would constitute a material change in circumstances to justify a change in circumstances. Such a finding violates our supreme court's holding that relocation, by itself, does not constitute a material change in circumstances."
Hurtt v. Hurtt, 2005 Ark. App. LEXIS 772 (November 2, 2005)
Opinion on the web at http://courts.state.ar.us/opinions/2005b/20051102/ca041298.html (last visited November 10, 2005 bgf)
Case Law Development: Another Kind of Maintenance: Affidavits of Support from Individuals Sponsoring Immigrants
Divorce between nationals and immigrants present a wide array of complexities. Here is yet another one: the enforcement of an affidavit of support pursuant to the Immigration and Nationality Act (INA), 8 U.S.C. §1183a.
Wife, a Russian citizen, entered the United States on a fiancee visa. Shortly thereafter, she married Husband. Husband signed an Affidavit of Support, Form I-864, as part of the Wife's application for adjustment of status. He agreed to provide Wife whatever support was necessary to maintain her at an income that is at least 125% of the federal poverty guidelines, as consideration for Wife's application not being denied on the grounds that she was an immigrant likely to become a public charge. A little over a year later, the couple were divorced. In a separate action, Wife sued to recover from Husband under the affidavit of support. The court granted Wife's motion for summary judgment on liability and proceeded to trial on the issue of damages. The trial court determined that Husband should pay Wife a sum equal to 125% of the poverty level for a single person.
Husband argued that Wife should not recover under the Affidavit of Support because she failed to mitigate her damages when she did not request maintenance during the divorce proceedings and did not make a good faith effort to procure employment. The court rejected all these arguments. The court held that Wife was within her rights to enforce the Affidavit of Support in this Court; that her failure to request maintenance did not preclude this action, nor did it serve as any form of mitigation, as Husband would have had to pay either way: as maintenance or under his contractual duty pursuant to the Affidavit of Support.
Stump v. Stump, 2005 U.S. Dist. LEXIS 26022 (N.D. Ind. October 25, 2005)
November 11, 2005 | Permalink
Thursday, November 10, 2005
In Bad Science, Worse Policy: The Exclusion of Gay Men from Donor Pools, Professor John G. Culhane discusses the rationale behind excluding gay men from donating blood or sperm based on the assumption that there is a higher risk of "tainted" specimens. The Article presents the social implications of these policies, both on the GLBT community and on society as a whole. John G. Culhane, Bad Science, Worse Policy: The Exclusion of Gay Men From Donor Pools, 24 St. Louis U. Pub. L. Rev. 129 (2005). Link to Article (last visited 11-9-05 NVS)
Wednesday, November 9, 2005
Texans voted overwhelmingly to add a prohibition of same-sex marriage to their constitution on Tuesday, becoming the 19th U.S. state to do so. With about 550,000 votes counted, Proposition 2 was heading for ratification with 75.5 percent in favor. The outcome was expected even by opponents and continued a backlash to the movement for same-sex marriage that seemed to gain momentum when a Massachusetts court legalized gay unions in 2004. Source. Washingtonpost.com. Please click here for more information (last visited November 9, 2005, reo).
The Texas Attorney General's office reports that 2005 has been the agency's most successful year in tracking down delinquent parents and collecting more money for Texas children. Collections grew from $1.68 billion in 2004 to $1.86 billion dollars in 2005. Source. KVUE-TV, KVUE.com. Please click here for more information (last visited November 9, 2005, reo).
Two new hotlines are putting Chinese women in touch with their legal rights. The telephone helplines are backed by the All-China Women's Federation (ACWF) and opened in March this year on a limited trial operation. By the end of September, the two hotlines, which expanded across 31 provinces, autonomous regions and municipalities in August, had received more than 20,000 calls. The helpline has also opened on the Internet at www.12338.cn. Source. Zheng Yanyan (ChinaDaily), Chinadaily.com. Please click here for more information (last visited November 9, 2005, reo).
Agencies that serve children and families are sounding the alarm about a U.S. House of Representatives budget bill that could cut millions from state programs. The House could vote on the bill as early as Thursday. The effort to shave $54 billion in federal spending will hurt the most vulnerable, said Carol Kamin, president of the Children's Action Alliance. According to Representative J.D. Hayworth, R-Ariz., who voted in favor of the proposal in committee, the bill will not take money away from needy families, but will reduce funding that's used for the programs' administration costs. He cited a Government Accountability Office report that found that the federal government paid 88 percent of the cost of Child Support Enforcement, while states paid 12 percent. Source. Jahna Berry, Arizona Republic, azcentral.com. Please click here for more information (last visited November 9, 2005, reo).
MODEL and actress Liz Hurley will soon have her dreams of marrying boyfriend Arun Nayar come true -- Nayar`s divorce application against his ex-wife has been granted by the English courts. He is free to marry Liz, whom he has been dating for quite some time now. Nayar and former Italian model Valentina Pedroni’s divorce came through in end-October and Liz reportedly travelled to India last week to deliver the news to Nayar and his family. A British newspaper reported, on Sunday, that Nayar has paid around ₤700,000 to his ex-wife, to whom he was married for seven years. Source. Gg2.net. Please click here for more information (last visited November 9, 2005, reo).
Tuesday, November 8, 2005
Case Law Development: UCCJEA Jurisdiction When Child and Primary Custodial Parent Move to Another State
The Arkansas Supreme Court held that it had continuing and exclusive jurisdiction over a custody action even though Mother, who had been granted the sole authority to determine the children's residence, had moved to Oregon and had been living there for three years prior to Father's motion to modify. The children's connection with Arkansas were their court-ordered vacation-time visitation with Father and Father's family. The court reviewed a number of UCCJEA cases from other jurisdictions and found that 12 weeks annually of visitation with Father was sufficient connection for the court to retain jurisdiction.
West v. West, 2005 Ark LEXIS 662 (November 3, 2005)
Opinion on the web at http://courts.state.ar.us/opinions/2005b/20051103/04-393.html (last visited November 7, 2005 bgf)
Case Law Development: Cohabitation and Remarriage as Changed Circumstances Justifying Modification of Alimony
The Vermont supreme Court considered three consolidated cases in which the central issue was, "when does cohabitation or remarriage constitute a real, substantial, and unanticipated change of circumstances justifying a modification of spousal support?"
Unlike the majority of states, Vermont does not presume that maintenance will be reduced or terminated on remarriage of the recipient spouse. Rather, remarriage is simply one circumstance -- like cohabitation -- that can constitute a "real, substantial, and unanticipated change of circumstances."
Vermont had not previously addressed the effect of cohabitation as a changed circumstance in maintenance actions. The court concluded that cohabitation should be treated like remarriage in that it can constitute a change in circumstances if the obligor spouse can prove that it was unanticipated, and effects a real and substantial change in the financial circumstances of the obligee spouse. The court cautioned that to constitute changed circumstances, "cohabitation must approach the permanency of marriage."
Applying these standards to the cases before it, the court upheld the modifications in some and not in others, depending on the evidence of financial contribution from the new partner and its effect on the recipient spouse's financial condition. The court held in one case, in which wife's cohabitant partner was not actually contributing to household expenses, that this did not constituted changed circumstances. The court suggested that even cohabitation plus contribution would be insufficient unless the movant showed that this resulted in a actual improvement in the finances of the recipient spouse. One judge dissented from this holding and objected to the dicta, finding that the court's rule was inconsistent with the approach used by the majority of states and unduly restricted the trial court's discretion.
Miller v. Miller, 2005 VT 122, 2005 Vt. LEXIS 303 (November 4, 2005)
Opinion on the web at http://dol.state.vt.us/gopher_root3/supct/current/2004-187.op (last visited November 7. 2005 bgf)
Case Law Development: Necessity for Independent Counsel for Child in Dependency Actions; Admission of Expert Testimony and GAL Reports when Based on Hearsay
In a child dependency action, the Ohio Court of Appeals was called upon to address a number of procedural protections for both parent and child. In this proceeding, the court had appointed both a guardian ad litem and an attorney for the four children involved. In the dispositional hearing, t he guardian ad litem recommended that the children not live with father as that would not be in their best interests. Attorney for the children took the same position based on the wishes of the children. However, after Father violed an ex parte order and had a conversation with oldest daughter in the courthouse hallway, daughter indicated that she had changed her mind and wanted to live with Father.
Despite this change in position, and the attorney for the children's admission that she did not know how to advocate for oldest daughter given this change in preference, the trial court did not conduct an additional in camera interview of the daughter or appoint a separate attorney to represent her. The Court of Appeals held that the failure to interview daughter to ascertain whether separate counsel was required was reversable error. The concurring judge indicated that he believed that independent counsel was absolutely requiredd given the daughter's change in goals.
In a second issue, the court considered whether admission of the expert testimony of a psychological expert was error when the expert's conclusions were based on inadmissible hearsay statements of others. The court concluded that this was reversable error. The expert's testimony was based on reports from others that were not admitted into evidence, such as a social worker report containing statements made by the children to the foster parents, who then reported it to the social worker, who wrote it in the report.
In contrast, the court did not consider the court's admission of the guardian ad litem's testimony to be in error, even though it too contained otherwise inadmissibile hearsay statements. The court noted that "Ordinarily, a GAL's report is not considered evidence, but is merely submitted as additional information for the court's consideration, similar to a presentence investigation report in a criminal proceeding. So long as the GAL is available for cross examination by the parties, the court may consider the GAL's report irrespective of the hearsay contained in the report.
In re Sherman, 2005 Ohio 5888; 2005 Ohio App. LEXIS 5312 (November 7, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/3/2005/2005-ohio-5888.pdf (last visited November 8, 2005 bgf)
Monday, November 7, 2005
"Bedford Hills Correctional Facility in upstate New York houses the oldest prison nursery in the country. Pregnant inmates are given prenatal care and parenting classes. Some women are permitted to keep their babies with them in prison for up to 18 months, in an effort to create bonds between mother and child. Linda Wertheimer talks with some inmates, including one 18-year-old mother incarcerated for transporting drugs internationally." By Linda Wertheimer, National Public Radio, Weekend Edition, November 5, 2005 Link to Listen (last visted 11-06-05 NVS)
"Just as former partners have been more willing in recent years to remain friends so they can co-parent their children, more spouses-cum-colleagues are now willing to remain friends so they can stay at the company together. Good divorces are "growing by leaps and bounds," says family attorney Lee S. Rosen of Rosen Law Firm in Raleigh, N.C. Boomers and Gen Xers want none of the ugliness of their parents' War of the Roses-style splits. The shifting career climate -- in which the threat of a layoff has increased 49% since the 1970s, while the chance of losing health insurance has soared 150% -- is also making many more leery about starting a new business or switching companies or careers. Not to mention the fear and loathing that globalization is wreaking among the educated elite. Couple that with the gruesome expense of divorce -- and a deeper awareness of its poisonous emotional legacy, especially on children -- and it makes sense that many partners and co-workers, well versed in office politics, are attempting to finesse a "get along" breakup. . . .
Today there are more than 1.2 million husband-and-wife teams running companies together, according to the National Federation of Independent Business. And a quarter of family businesses experience a divorce. Across the corporate landscape, one study found that 10% of couples who divorce continue working together. That's not surprising given the frequency of workplace romances, with nearly 60% of workers admitting to having had an office relationship, up from 46% two years ago. Babette Chandrasoma, a human resources manager in Austin, Tex., of Eden Prairie (Minn.)-based hearing-aid manufacturer Starkey, met both her current and former husbands at work. In fact, her ex works in a cubicle 20 feet away. "We went through a phase where he would get a letter from a lawyer and would want to talk about things at work," says Chandrasoma, who shares custody of her 11-year-old daughter with him. "We had to make a deal that we wouldn't talk about our personal business at the office."" By BusinessWeek online Link to Article )last visited 11-06-05 NVS)
"Interracial relationships and marriages are becoming more common in the United States, according to a new Cornell University study. The number of interracial marriages involving whites, blacks and Hispanics each year in the United States has jumped tenfold since the 1960s, but the older individuals are, the less likely they are to partner with someone of a different race, finds the new study. . . ."We think that’s because relationships are more likely to be interracial the more recently they were formed, so younger people are more likely to have interracial relationships. This trend reflects the increasing acceptance of interracial relationships in today’s society," said Kara Joyner, assistant professor of policy analysis and management at Cornell and co-author of a study on interracial relationships in a recent issue of the American Sociological Review (Vol. 70:4).
Although more young adults are dating and cohabiting with someone of a different race, the study found that interracial relationships are considerably less likely than same-race relationships to lead to marriage, though this trend has weakened in recent years. To explore the changing patterns of interracial sexual relationships during the transition to adulthood, Joyner and her co-author, Grace Kao, associate professor of sociology at the University of Pennsylvania, analyzed data from the National Longitudinal Study of Adolescent Health and the National Health and Social Life Survey, some of the first nationally representative surveys to collect information on sexual relationships. "Studying trends in interracial sexual relationships is important because intimate relationships between different racial groups are viewed as an indicator of the social and geographic distance between racial groups, and a barometer of race relations," said Joyner. Unlike other studies, which typically look at marriage or cohabitation and sometimes at current dating relationships, this study looked at trends in these relationships over a 10-year period.
The researchers found that among 18- to 25-year-olds in 1990 and in 2000, interracial sexual involvement became increasingly common, with the greatest increase seen in cohabitating relationships, followed by dating relationships and then marriages. Yet, interracial relationships declined with age within these two periods. In 1990, for example, about 14 percent of 18- to 19-year-olds, 12 percent of 20- to 21-year-olds and 7 percent of 34- to 35-year-olds were involved in interracial relationships. Roughly 10 years later, 20 percent of 18- to 19-year-olds and 16 percent of 24- to 25-year-olds were in an interracial relationship. (Information on 34- to 35-year-olds was not available for this period.) By By Susan S. Lang. Cornell University. Link to Article (last visited 11-6-05 NVS)
Sunday, November 6, 2005
Same sex marriage may re-emerge as an issue for the Idaho Legislature in 2006. Some lawmakers are talking about re-introducing a proposed measure to write a ban on gay marriage into the state constitution. Two years in a row, similar efforts have failed. Source. KPVI-TV, Pocatello–Idaho Falls, kpvi.com. Please click here for additional information (last visited November 6, 2005, reo).