November 15, 2005
Case Law Development: Parent may not Adopt Biological Child
Mother and Father had a child together in Texas. Soon after the child's birth, Father became violent toward Mother and Mother fled to her family in New York with the child, hiding her location from Father. Father undertook various efforts to locate his child and obtained an order for custody from a Texas court. When he did locate her, some years later, he learned that Mother had adopted her in New York, in an effort to terminate his parental rights. He brought an action for visitation in the New York court, asking that the adoption be vacated. The court of appeals held that the trial court erred in refusing to vacate the adoption, as biological parents may not adopt their children.
Matter of Zoe D.K. v. Kimberly R.P., 2005 NY Slip Op 8462; 2005 N.Y. App. Div. LEXIS 12491 (November 10, 2005)
Opinion on the web at http://www.courts.state.ny.us/reporter/3dseries/2005/2005_08461.htm (last visited November 14, 2005 bgf)
Case Law Development: Jurisdiction of TPR and Adoption Cases under UCCJA
The South Dakota Supreme Court held that termination of parental rights actions are in the nature of a custody proceeding governed by the UCCJA. In this case, Mother and Father lived in Colorado. Father had been convicted of sexual assault and was imprisoned and mother was incapable of caring for their two children due to her drug addiction and other issues. Both sets of grandparents were vying for custody of the children. The Colorado court granted custody to the maternal grandparents, who lived in South Dakota. When Father was released from prison, both he and his parents filed an action in the Colorado courts for custody and visitation. Soon thereafter, the maternal grandparents filed an action in South Dakota for adoption and termination of Father's rights.
The maternal grandparents argued that South Dakota had jurisdiction because it was the only state that could grant the adoption (Colorado had no jurisdiction over adoption because the children no longer lived there). However, the South Dakota Supreme Court disagreed, noting that termination of parental rights must occur before an adoption can take place. The court held that, under the UCCJA, Colorado had continuing and exclusive jurisdiction over the case because termination of parental rights is a custody proceeding. Thus, maternal grandparents would be required to file an action for termination in Colorado first, and then, if successful, bring the action for adoption in South Dakota.
In the Matter of Adoption of H.L.C. and B.A.C., 2005 S.D. 110; 2005 S.D. LEXIS 172 (November 2, 2005)
Opinion on the web at http://www.sdjudicial.com/index.asp?category=opinions&nav=53&year=2005&month=11&record=1474 (Last visited November 14, 2005 bgf)
November 14, 2005
Case Law Development: Fraud and Duress as Grounds for Avoiding Property Settlements
In number of recent cases, several state appellate courts have been asked to determine whether there existed grounds for fraud or duress sufficient to void a property judgment based on a settlement agreement. Unless brought soon after the judgment, courts generally treat these actions as equitable actions to void a contract, rather than actions to reopen a judgment. The cases demonstrate just how difficult it is to provide sufficient proof of fraud or duress to avoid a settlement agreement.
The California Court of Appeals found a sufficient basis for avoiding a marital settlement agrement (MSA) that had been incorporated into a default judgment of divorce. In this case, Husband used a document preparation service to prepare their property agreement. Wife relied on Husband’s representations that she could get no spousal support from him and signed the MSA. Wife later learned of her rights and sued to set aside the MSA and the default divorce judgment incorporating its terms. The court of appeals held that the trial court did not err in setting aside the MSA. Husband had failed to comply with mandatory disclosure obligations regarding value of community property, to wife’s detriment, and had affirmatively misled her regarding her legal rights to support. The court found that “The mistake as to spousal support prejudiced wife. Husband's gross monthly income was $ 10,000, more than seven times wife's gross monthly income of $ 1,400. Because of wife's mistake, she waived her right to receive spousal support.”
In re Manginelli, 2005 Cal. App. Unpub. LEXIS 9499 (Oct. 19, 2005)
Opinion on the web at http://www.courtinfo.ca.gov/opinions/nonpub/B177338.PDF (last visited November 13, 2005 bgf)
The Texas Court of Appeals was less receptive to similar arguments in a case in which Wife was represented by counsel and had entered into a mediated settlement agreement specifying the division of the marital estate. The agreement stated that it was binding and irrevocable. When the wife refused to sign the divorce decree, as required by the agreement, the husband moved to enforce the agreement. The wife filed no response to the motion to enforce, and the trial judge signed the divorce decree incorporating the terms of the agreement. On appeal, the wife contended that the settlement was obtained through intimidation and coercion and that she was not fully informed. The court found no merit in that assertion, observing that the wife did not allege that her attorney colluded in any effort to intimidate or coerce her. The mediated settlement agreement met all statutory requirements to be binding on the parties. To the extent that the wife sought to disturb the contents of the agreement on appeal, her issues were barred by statute and the language of the agreement.
Carson v. Carson, 2005 Tex. App. LEXIS 9250 (Nov. 4, 2005)
Opinion on the web at http://www.3rdcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=14276 (last visited November 13, 2005 bgf)
Virginia also rejected claims that a marital settlement agreement was invalid in a case in which the purposes behind the agreement were disputed. Husband argued that he had agreed to transfer title to Wife for property previously held in tenancy by the entireties in order to protect those assets from a feared civil suit. Husband had been charged with assault on a nightclub waitress and feared she would bring a civil action based on the same incident. He contended that Wife had agreed to reconvey the property to Husband after the statute of limitations on the feared civil suit had passed. Wife argued that the agreement to transfer the property was a separation agreement. Husband argued that the agreement should be voided for fraud or unconscionability, but again, the fact that Husband was represented by counsel was critical to the court's rejection of that argument. Husband had consulted counsel concerning the agreement before signing it, and counsel advised him not to sign it. The court agreed with the trial court that the equitable defense of unclean hands and laches applied as well.
Dritselis v. Dritselis, 2005 Va. App. LEXIS 451 (November 8, 2005)
Opinion on the web at http://www.courts.state.va.us/opinions/opncavwp/0239053.pdf (last visited November 13, 2005 bgf)
The Gender Similarities Hypothesis
"The differences Model, which argues that males and females are vastly different psychologically, dominates the popular media. Here the author advances a very different view, the gender similarities hypothesis, which holds that males and females are similar on most, but not all, psychological variables. Results from a review of 46 meta-analyses support the gender similarities hypothesis. Gender differences can vary substantially in magnitude at different ages and depend on the context in which measurements occurs. Over inflated claims of gender differences carry substantial costs in areas such as the workplace and relationships." by Janet Shibley Hyde, University of Wisconsin. Link to Article (last visited 11-13-05 NVS)
"Mars-Venus sex differences appear to be as mythical as the Man in the Moon. A 2005 analysis of 46 meta-analyses that were conducted during the last two decades of the 20th century underscores that men and women are basically alike in terms of personality, cognitive ability and leadership. Psychologist Janet Shibley Hyde, PhD, of the University of Wisconsin in Madison, discovered that males and females from childhood to adulthood are more alike than different on most psychological variables, resulting in what she calls a gender similarities hypothesis. Using meta-analytical techniques that revolutionized the study of gender differences starting in the 1980s, she analyzed how prior research assessed the impact of gender on many psychological traits and abilities, including cognitive abilities, verbal and nonverbal communication, aggression, leadership, self-esteem, moral reasoning and motor behaviors.
Hyde observed that across the dozens of studies, consistent with the gender similarities hypothesis, gender differences had either no or a very small effect on most of the psychological variables examined. Only a few main differences appeared: Compared with women, men could throw farther, were more physically aggressive, masturbated more, and held more positive attitudes about sex in uncommitted relationships.
Furthermore, Hyde found that gender differences seem to depend on the context in which they were measured. In studies designed to eliminate gender norms, researchers demonstrated that gender roles and social context strongly determined a person's actions. For example, after participants in one experiment were told that they would not be identified as male or female, nor did they wear any identification, none conformed to stereotypes about their sex when given the chance to be aggressive. In fact, they did the opposite of what would be expected – women were more aggressive and men were more passive.
Finally, Hyde's 2005 report looked into the developmental course of possible gender differences – how any apparent gap may open or close over time. The analysis presented evidence that gender differences fluctuate with age, growing smaller or larger at different times in the life span. This fluctuation indicates again that any differences are not stable." By APA Online, American Psychological Association. Link to Article (last visited 11-13-05 NVS)
November 13, 2005
Case Law Development: Ordering Child's Surname in Paternity Actions
The Iowa Court of Appeals held that the state paternity statute implicitely gives a trial court jurisdiction to order that a child be given Father's surname. The court noted that, technically, these actions do not involve a name "change" simply because Mother has given the child a name on the birth certificant. "When a parent unilaterally chooses a child's name, the other parent may request the court to examine the name issue--as the mother does not have the absolute right to name the child because of custody due to birth. Consequently, she should gain no advantage from her unilateral act in naming the child." (internal quotations omitted). The court ordered that the 14-month-old child should be given Father's surname as Mother was planning on remarrying and changing her name.
Montgomery v. Wells, 2005 Iowa App. LEXIS 1335 (November 9, 2005)
Opinion on the web at http://www.judicial.state.ia.us/appeals/opinions/20051109/04-1853.asp (last visited November 11, 2005 bgf)
Case Law Development: Exceptional Circumstances Supporting Award of Custody to Grandmother over Biological Father
In a tragic case, the Maryland Court of Special Appeals reversed the trial court's award of sole custody of three children (ages 11, 10 and 9) to the 72-year-old grandmother after their Mother was murdered. For some time, Father and Mother had had joint custody, however, before her death, Mother was attempting to secure sole custody of the children as Father was suffering from AIDS and his health was deteriorating.
The trial court found that Father's poor health did not make him unfit to care for the children. Nonetheless, the court found that there were "exceptional circumstances" supporting the custody award to Grandmother, including the fact that Grandmother had been the before- and after-school caregiver for the children since they were small, that they went to live with Grandmother immediately after Mother's death, and that Grandmother's house was near to their school. The court of appeals reversed and remanded for further findings. Specifically, the court directed that, in order to find exceptional circumstances, the court must conclude that giving custody to the parent would be "significantly detrimental" to the child. Further, should the court find exceptional circumstances under this test, the court must evaluate the best interests of the child in light of the following factors, among others:
 length of time the child has been away from the bio-logical parent,
 the age of the child when care was assumed by the third party,
 the possible emotional effect on the child of a change of custody,
 the period of time which elapsed before the parent sought to reclaim the child,
 the nature and strength of the ties between the child and the third party custodian,
 the inten-sity and genuineness of the parent's desire to have the child, and
 the stability and certainty as to the child's future in the custody of the parent.
B.G. v. M.R., 2005 Md. App. LEXIS 281 (November 7, 2005)
Opinion on the web at http://www.courts.state.md.us/opinions/cosa/2005/1761s04.pdf (Last visited November 11, 2005 bgf)
Case Law Development: Consideration of VA Disability Benefits in Marital Property Awards and Maintenance
In an opinion providing an exhaustive review of cases from across the United States, the Illinois Court of Appeals held that a trial court may consider accumulated veterans disability benefits as a consideration in dividing marital property and in determining maintenance awards. The court reviewed the case law interpreting 38 U.S.C.A. § 5301(a)(1) (2004), which prohibits the assignment or attachment of present or anticipated veteran's disability benefit payments. The court acknowledged that, given this statute, state trial courts may not divide present or anticipated VA disability benefits as a marital asset.
In this case, the trial court awarded a slightly larger share of the marital estate to Wife, in part because Husband's separate property included $28,000 in disability benefits Husband had accumulated and which had been deposited in the couple's bank account. The federal statute prohibiting attachment of present and future disability payments, however, "did not preclude the trial court from acknowledging the existence of such funds as being available to [Husband] as nonmarital property.
Husband also argued that the trial court erred in denying his request for maintenance from Wife in that, here too, the trial court took into account Husband's VA disability benefits. The court of appeals held that consideration of disability payments in determining need for maintenance was not error.
Wojick v. Wojick, 2005 Ill. App. LEXIS 1098 (November 4, 2005).
Opinion on the web at http://www.state.il.us/court/Opinions/AppellateCourt/2005/2ndDistrict/November/Html/2041076.htm (Last visited November 12, 2005 bgf)
Anti-Abortion Counseling Services Allowed to Join in Challenge to South Dakota Abortion Law
U.S. District Judge Karen Schreier recently granted a motion to allow the Alpha Center of Sioux Falls and the Black Hills Crisis Pregnancy Center of Rapid City to intervene in the federal lawsuit. Both organizations could be helped or harmed by the outcome of the case, and both have different interests than the main parties in the lawsuit, the judge said. The measure passed by the 2005 Legislature would force doctors to tell women that abortions end human lives and may later cause serious psychological problems for women who have abortions. Doctors who refused could be jailed for 30 days and fined $200. Planned Parenthood of Minnesota, North Dakota and South Dakota challenged the measure as an unconstitutional violation of free speech, arguing it would require doctors to tell patients about ideology rather than medical facts. In late June, Schreier issued a preliminary injunction prohibiting the state from enforcing the law while the lawsuit is pending. Source. Chet Brokaw, Associated Press, AberdeenNews.com. Please click here for additional information (last visited November 13, 2005, reo).
Florida Court Says Teen Can Have Abortion without Parental Notification
In a split decision, a Florida appeals court on Thursday ruled that a 17 year-old girl could have an abortion without notifying her parents. The decision reverses a lower court ruling made last month that the girl’s parents had to be notified. The parental notification law in Florida went into effect on June 30 after the state legislature approved the measure. Under the measure, abortion practitioners must make sure parents are informed. However, if the girl considering the abortion doesn't want her parents to know, a judge can approve a bypass, which is required by the Supreme Court for potential abuse cases. In this case, the majority concluded that the teen was old enough to determine on her own if it was in her best interest to tell her parents. Source. Steven Ertelt, lifenews.com, Associated Press. Please click here for additional information (last visited November 13, 2005, reo).
Statistics on American Abortions
Using research gathered from the Alan Guttmacher Institute, Pew Research Center for the People & the Press; and Associated Press, the Cleveland Plain Dealer provided the following statistical information regarding abortions in the United States: One in four pregnancies is terminated by abortion. Half of pregnancies are unintended. Half of unintended pregnancies are ended by abortion. One-third of women will have an abortion by age 45, at current abortion rates. Six in 10 women who have an abortion are already mothers. More than nine in 10 women at risk of unintended pregnancy use contraceptives. Nearly half of unintended pregnancies occur among the small percentage of sexually active women who don't use contraceptives. Six in 10 women who have an abortion want to get pregnant in the future. The Plain Dealer, Clevland.com. Please click here for additional information (last visited November 13, 2005, reo).
Turkey: Conference Focuses On Domestic Violence
Istanbul, 12 Nov. (AKI) - The issue of domestic violence - one of Turkey's most hidden and sensitive problems – was debated at an international conference, ‘No to Domestic Violence! Conference 2005, Good Practices’, on Friday and Saturday in Istanbul. The conference was organized by daily Hürriyet, the United Nations Population Fund, CNN-Turk and the Contemporary Education Foundation, with the collaboration and support of the Istanbul Governor’s Office. Women's rights are one of the critical areas where the pace of reform is slowing and substantial improvements are still needed, according to a report published by the European Commission Wednesday. Turkey began official entry negotiations with the European Union in October, but must meet stringent political, economic and human rights criteria if it is to succeed. Source. Adnki.com. Please click here for additional information (last visited November 13, 2005, reo).
Russian Commission Proposes Tightening Adoption Rules
Russia's interdepartmental commission for child adoption has proposed the abolishment of the independent adoption system through which children are adopted via unaccredited organizations, Russian human rights commissioner Vladimir Lukin said Friday following a commission meeting. The commission considers this system counterproductive and thinks it "opens up strong possibilities of various kinds of manipulation", he said. Three foreign agencies have already had their accreditation removed "because they did not meet the raised criteria that have now been developed", he said. Source. En.rian.ru.com Please click here for additional information (last visited November 13, 2005, reo).
Ukraine Temporarily Suspends Foreign Adoption of Children
The Ukrainian Education and Science Ministry’s center of children adoption has temporarily stopped receiving documents from U.S., Italian, Spanish, German, French and Canadian citizens who want to adopt Ukrainian children. The center’s director, Yevgenia Chernyshova, quoted by ITAR-TASS news agency, said the reason was the lack of information on the fate of children adopted earlier by citizens of those countries. She added that adoptions would be resumed in each of the countries separately when the information appeared. Foreigners have adopted 12,000 Ukrainian children over the last 15 years. Information on 75 percent of those children is unavailable, the head of the Ukrainian Security Service said this summer. Source. Mosnews.com. Please click here for additional information (last visited November 13, 2005, reo).