Saturday, November 26, 2005
Ninth Circuit Court of Appeals Hears Arguments on Honolulu’s Ban on Aerial Images of Aborted Fetuses
The Ninth Circuit Court of Appeals heard arguments this week on whether Honolulu's ban on flying pictures of aborted fetuses over crowded beaches amounts to illegal censorship. The case was brought by the Center for Bio-Ethical Reform, a group opposed to abortion. The attorney for the group claimed that the explicit images cannot be replaced by other forms of advertisement. The group already drives trucks around Honolulu with giant photos of first-term aborted fetuses. U.S. District Chief Judge David Ezra had earlier upheld the ban. The group argues the aerial ban not only violates its First Amendment rights of free speech but also prevents the group from reaching hundreds of thousands of beachgoers with their message. Jon Van Dyke, Honolulu’s special deputy counsel, said the group's name could be painted on a plane, but images are illegal because it constitutes advertising. He told the court that the proposed banners also would pollute Hawaii's natural beauty and make the island less appealing to tourists. Source: Alexandre Da Silva, Associated Press, azcentral.com. For more information, please click here (last visited November 26, 2005, reo).
The Indiana Supreme Court on Wednesday upheld a law that requires women seeking an abortion to get counseling about medical risks and alternatives, and to wait at least 18 hours after the session before going through with the procedure. The court ruled 4-1 that opponents of the law could not pursue their lawsuit, which argued that privacy is a core right under the state constitution that extends to women seeking to end their pregnancies. The court said such a challenge would fail because the law "does not impose a material burden on any right to privacy or abortion that may be provided or protected" under the state constitution. Source: Chicago Tribune, chicagotribune.com. For more information, please click here (last visited November 26, 2005, reo).
The first major abortion case since Chief Justice John G. Roberts Jr. joined the court last month comes before the justices next week. The case is Ayotte v. Planned Parenthood , No. 04-1144. and involves a New Hampshire law requiring teenagers to tell a parent before getting an abortion. While the law has an exception for girls who would die without the procedure, New Hampshire lawmakers omitted an exception for other non-life-threatening health problems because they felt it would render the law meaningless. The new law has never been enforced, because two federal courts have said the lack of a health exception made it unconstitutional. The Bush administration supports the New Hampshire law, telling the court in a friend-of-the-court brief that the case "may have direct relevance" to its defense of the federal law banning the late-term procedure that its opponents refer to as "partial-birth abortion" -- a law that has been struck down by lower federal courts in rulings that the administration has asked the Supreme Court to overturn. Source: Charles Lane, Washington Post Staff Writer, Washingtonpost.com. For more information, please click here (last visited November 26, 2005, reo).
The Supreme Court of Canada, in an 8-1 majority decision, decided earlier this month that a divorced parent who spends more time with his or her children should not necessarily be able to automatically pay less child support. The dispute centered on a separation agreement providing that the parents shared joint custody of their son. Initially, the child lived primarily with his mother while the boy's father had access to him on alternate weekends and Thursday nights. In 2000, when his father’s access was increased by more nights per month to accommodate his former wife's studies, an Ontario Family Court judge ruled the father’s child care payments should be reduced. On appeal, the Canadian Supreme Court disagreed with the lower court. It ruled that the family's entire financial context should be taken into account to ensure an adequate standard of living for both parental homes. Source: CTV.ca. For more information, please click here (last visited November 26, 2005, reo).
The Illinois Family Institute, a non profit group that bills itself as fostering an environment where families can flourish, has started a petition drive in Illinois to define marriage as a union only between a man and woman. Opponents to the petition call the effort narrow minded and based on bigotry. To get the same sex marriage issue placed on next November's ballot, supporters need to collect about 280,000 signatures by April 20th. Source: KSDK TV, KSDK NewsChannel5.com. For more information, please click here (last visited November 26, 2005, reo).
Refugees in Sweden may be purposely abusing or neglecting their children to ensure that they receive care in that country and thereby avoid deportation, said news reports this week. The Swedish migration board said it had filed 13 reports of alleged child abuse concerning refugees with police. The cases concerned children in a larger group of more than 400 young asylum seekers who were found earlier this year to be suffering from a mysterious apathy phenomenon and dubbed "apathetic refugee children" in the media. Director general of the agency, Janna Valik, said: "We have just reported that these children are faring badly. The rest is up to the police to investigate." According to a government-commissioned report, more than 400 refugee children facing possible deportation from the Scandinavian country have fallen ill since 2003 and stopped eating, talking and moving. Source. News24.com. For more information, please click here (last visited November 26, 2005, reo).
A decision from the Washington Supreme Court is expected soon on the question of whether requiring marriage to be between a man and a woman violates the state Constitution's equal protection clause. Two lower courts ruled that it does. The court heard arguments last March on the issue and an opinion should be issued very soon. Constitutional amendments in 19 states now ban same-sex marriage. Source: United Press International, upi.com. For more information, please click here (last visited November 26, 2005, reo).
After months of speculation and denials, Jessica Simpson and Nick Lachey have announced that after three years their marriage is over. Simpson, 25, and Lachey, 32, became international stars after appearing in a reality show about their marriage. Source: Nick Papps, Herald Sun, heraldsun.news.com.For more information, please click here (last visited November 26, 2005, reo).
Friday, November 25, 2005
Thanksgiving weekend seems an appropriate time to review some of the recent case law developments regarding Grandparent visitation.
But first, some data:
In a unique national partnership, AARP, Child Welfare League of America, Children's Defense Fund, and Generations United have created fact sheets containing the most up-to-date state information related to grandfamilies, including:
• Census data on the number of grandparent caregivers
• A comprehensive list of kinship care family resources and services
• State foster care policies for kinship caregivers
• Information about key public benefits programs
• State kinship care laws
(With thanks to Professor Kim Dayton, editor of the Elder Law Prof Blog, for this link)(bgf).
Case Law Development: My Husband Made Me Do It not a Defense to Contempt for Failure to Provide Visitation
The Alabama Court of Appeals upheld a contempt conviction against Mother for failing to deliver her children to Grandparents for their court-ordered visitation. The court rejected Mother’s argument that she had merely passively acquiesced in her husband’s refusal to comply with the visitation order. L.A. v. R.H., 2005 Ala. Civ. App. LEXIS 670 (November 10, 2005)
It has been five years since the United States Supreme Court decided Troxel v. Granville, 530 U.S. 57 (2000) and states continue to refine their grandparent visitation statutes in light of that decision. As we noted in our October 11th post, Ohio recently upheld the constitutionality of its statute.
Now, the Colorado Supreme Court has granted cert to review the constitutionality of its grandparent visitation statute in a case in which the grandchild was adopted by the aunt and uncle after both parents had died. The magistrate in that proceeding granted grandparent's visitation. On the first appeal of the case, the court of appeals held the statute constitutional on its face and determined that the so-called "adoption exclusion” (which exempts grandparent visitation after a child has been placed for adoption) applies only when a child becomes available for adoption because the natural parents' rights have been legally terminated. Nonetheless, the court of appeals vacated the visitation order, remanding for consideration of whether the magistrate had given "special significance" to the parents' wishes, as constitutionally required.
The magistrate held a second hearing and reinstated the visitation order. On a second appeal, the appellate court once again reversed, holding that an adoptive parent is entitled to the same presumptions as biological parents when it comes to gp visitation. The Colorado Court of Appeals agreed with those jurisdictions that find that giving “special signficance" to parent’s decisions means that a court may not override parental decisions only for compelling reasons (parental unfitness or substantial harm to the children from denying visitation).
In re Petition of R.A., 121 P.3d 295, 2005 Colo. App. LEXIS 525 (April 7, 2005)
cert. granted In re Adoption of C.A. v. R.A., 2005 Colo. LEXIS 889 (Colo. Oct. 3, 2005)
Court of Appeals Opinion on the web at http://www.courts.state.co.us/coa/opinion/2005/2005q2/04CA0503.pdf (last visited November 25, 2005 bgf)
What an eerie testament to the tragedy of domestic violence that three of the grandparent visitation cases in the past six months have involved denials of visitation to paternal grandparents based, in part, on their continued denial or defense of their son’s criminal violence against his wife.
In North Carolina, Maternal Grandparents had been granted custody of their grandchild after Father had arranged an attack on Mother, which resulted in her death and his incarceration. The court of appeals upheld the trial court’s dismissal of their petition to modify their visitation rights, concluding that they had failed to allege a substantial change in circumstances warranting modification. The opinion notes with concern that the Paternal Grandparents continued to deny their son’s role in killing Mother.
Adams v. Wiggins, 2005 N.C. App. LEXIS 2450 (November 15, 2005) Opinion on the web at http://www.aoc.state.nc.us/www/public/coa/opinions/2005/unpub/050099-1.htm (last visited November 25, 2005 bgf)
In Alabama, the appellate court held hat Grandparents had not proven clear and convincing evidence that the child would be substantially harmed by the denial of visitation in a case in which the Grandparents had intervened in Mother’s divorce against Father, brought after he had attempted her murder. Mother had denied visitation because the Grandparents continued to deny Father’s actions, for which he had been criminal convicted, and to blame Mother for Father’s incarceration. C.D.P. v. D.P., 2005 Ala. Civ. App. LEXIS 642 (October 28, 2005)
Finally, the New York Supreme Court Appellate Division (2d) found that the grandmother failed to show any basis for judicial intervention in a custody action in which Father had abducted the children and took them on a nine-month journey across the country until he was arrested in California. The court found that the grandmother attempted to minimize the traumatic impact the abduction had on the children and had engaged in inappropriate behavior, such as “renting a billboard on a busy public road to communicate with the grandchildren, and hiring a private investigator to "spy" on them and on the mother.”
Matter of Kenderes v. Norton, 2005 NY Slip Op 8120; 2005 N.Y. App. Div. LEXIS 11600 (October 31, 2005) Opinion on the web at http://www.courts.state.ny.us/reporter/3dseries/2005/2005_08090.htm (last visited November 25, 2005 bgf)
Georgia joins those states holding that no confidential relationship exists between persons who have agreed to marry. With that standard applied, the Georgia Supreme Court uphelp a prenuptial agreement in which, after 18 years of marriage and the birth of four children, Wife was entitled to $2900 per month in alimony for four years and Husband was entitled to all the assets with which he entered the marriage (approximately $8.5 million) and all assets accumulated during the marriage (another $14 million). The court held that, given no confidential relationship existed between the couple when they executed the agreement, Husband's failure to disclose his income was not fraud. Moreover, his threat not to go through with the marriage even though Wife was pregnant, did not amount to duress.
Mallen v. Mallen, 2005 Ga. LEXIS 815 (November 21, 2005)
Opinion on the web at http://www.gasupreme.us/pdf/s05f0982.pdf (Last visited November 25, 2005 bgf)
Case Law Development: Parents Regaining Custody after Voluntarily Placing Children With Grandparents
When parents voluntarily place their children in the care of Grandparents, they may find courts unwilling to disturb these arrangements at a later date.
For example, the Arkansas appellate court recently affirmed the grant of custody of the daughter to the grandmother and step-grandfather over the mother and step-father. The daughter had lived with the grandmother most of her life, was excelling, and did not want to change high schools. Mother had left daughter in Grandmother's care when daughter was four. When she took her daughter away at age 14, Grandmother filed for custody. The majority applied a best interest standard that provided very little deference to mother: "determining whether the child is to be better off with one party versus another is precisely what the court should decide. The natural-parent preference and the fitness of that parent are not the absolute determinants in custody-modification matters."
Three judges dissented, arguing that, in order to protect a parent's constitutional rights, the best interest of the child standard must be applied only after a finding that the biological parent is unfit. The dissent was especially concerned that parents would be unlikely to place children in the care of the grandparents when that would be in the children's best interests if the parents believe they may permanently lose custody.
Coffee v. Zolliecoffer, 2005 Ark. App. LEXIS 792 (November 9, 2005) Opinion on the web at
http://courts.state.ar.us/opinions/2005b/20051109/ca05-148.html (last visited November 25, 2005 bgf)
Thursday, November 24, 2005
"Nearly one-third of Americans live in urban areas. Although cities offer many social and economic opportunities, children in urban areas are more likely to live in low-income families than are rural or suburban children. Material hardship can have negative, long-term social, emotional, and developmental consequences for children; children in urban areas are disproportionately vulnerable. The majority of children in urban areas live in low-income families, and the percent has risen significantly since 2000. Currently,
- 51% of children in urban areas—8.9 million—live in low-income families—up from 48% in 2000.
- 29% of children in suburban areas—9.1 million—live in low-income families—up from 27% in 2000.
- 46% of children in rural areas—5.1 million—live in low-income families—up from 44% in 2000."
By National Center for Children in Poverty, Columbia University Mailman School of Public Health Link to Webpage (last visited 11-23-05 NVS)
"Some 38 million people in America are considered "food insecure" -- they have trouble finding the money to keep food on the table. NPR profiles families who have faced hunger in three different settings: rural, suburban and urban America." By National Public Radio Link to Webpage (last visited 11-23-05 NVS)
"More than 13 million families in 2004 were unable at times to buy the food they needed, according to the U.S. Department of Agriculture. Finances are so strained for 5 million of those families that one or more members goes hungry as a result." By National Public Radio. The website includes a U.S. map showing state with the highest percentage of children living in poverty. Link (last visited 11-23-05 NVS)
Wednesday, November 23, 2005
Backers of a proposed constitutional amendment to put a stop to gay marriage in Massachusetts said Tuesday they have gathered almost twice the number of signatures needed to put it on the ballot in 2008. Beyond the signatures, the proposal needs to be approved by two successive sessions of the state Legislature before it can be placed before voters. The Massachusetts Family Institute and its online counterpart, http://www.voteonmarriage.org, said they will submit over 120,000 signatures before Wednesday's 5 p.m. deadline. The measure needed the support of 65,825 registered voters. Source. Glen Johnson, Seattlepi.com. For more information, please click here (last visited November 23, 2005, reo).
A former Lutheran school music teacher has been sentenced to 32 years in prison for sexually abusing a young girl and taking pornographic pictures of her. Michael J. Solomon, 41, abused the girl, who was under the age of 11, for five years, according to a published report Monday in The Buffalo News. Solomon was convicted in August of 23 counts, including rape, criminal sexual act, course of sexual conduct against a child and use of a child in a sexual performance. Solomon taught at two Lutheran schools in Niagara County. Police said the victim was not one of Solomon's students. Source. AP New York, newsday.com. For more information, please click here (last visited November 23, 2005, reo).
A former teacher from West Gardiner, Maine will spend 18 months in prison for sexually abusing an eighth grade student. A judge has also ordered Richard Greenleaf Jr. to undergo counseling and to register as a sex offender for the next 10 years. Greenleaf began molesting the girl while she was attending Somerset Valley Middle School in Hartland. The Kennebec Journal” reported that the district attorney wanted to go to trial, but the victim did not want to testify. Source. New 8 WMTW TV, wmtw.com. For more information, please click here (last visited November 23, 2005, reo).
Sandra Beth Geisel Geisel pleaded guilty to one count of third-degree rape after she admitted having sex with a 16-year-old student. She was sentenced to 6 months in jail, and 10 year of probation. She is also being forced to complete in house alcohol and mental couseling. Source. Cbs6albany.com. For more information, please click here (last visited November 23, 2005, reo).