November 23, 2005
California Teacher Gets 1 Year In Jail For Having Sex With Three Students
Elizabeth Stow won't go to prison unless she breaks a tightly-constructed, 29-condition probation term of five years. She will, though, have to serve 364 days in jail, perform community service and pay restitution fines. Stow, 26, of Visalia, California was sentenced Friday after pleading no contest to a dozen counts of sex-related felony charges stemming from having sex with three underage students. Source. Luis Hernandez, Visalia Times-Delta, visaliatimesdelta.com. For more information, please click here (last visited November 23, 2005, reo).
Romanian Wife Seeks Divorce for Virtual Adultery
A Romanian woman demanded a divorce for virtual adultery after she caught her husband surfing the internet for porn. The woman, who has been married to her husband Ion for 23 years, told the court she couldn't go on because she felt cheated. She admitted Ion was a good husband, coming home on time and taking care of the family, but she says she couldn't accept being replaced by 'virtual lovers'. She said that "When I caught him watching porn movies and looking to pictures of naked women I knew I had to divorce.” He said he doesn't want to separate from his wife and the court decided to give the woman time to reconsider her demand, reported the 7 Plus newspaper. Source. Ananova, ananova.com. For more information, please click here (last visited November 23, 2005, reo).
Rutgers President and Wife Finalize Divorce
The president of Rutgers University, Richard L. McCormick, and his wife, Suzanne Lebssock, a history professor at Rutgers, have completed their divorce. He acknowledged in 2003 that he had an affair with a woman in the University of Washington's administration while he was president there. Papers filed with the court did not include the divorce settlement, which includes agreements on dividing their property and responsibility for their children. Source. The Associated Press, phillyburbs.com. For more information, please click here (last visited November 23, 2005, reo).
Proposed Rule Will Keep Foster Children Smoke-Free
The county Board of Supervisors in San Luisobispo, California is being asked to reach into foster homes and tell parents to cut back on smoking in order to protect the children in their care. The county Department of Social Services will ask the board today to join the growing list of state and local governments nationwide that are trying to limit smoking in foster homes. Under the proposed policy, foster parents could not allow children in their care to smoke, nor could they buy tobacco products for them. The ban extends to motor vehicles that the children ride in, which would have to be smoke-free for 12 hours before a young person got in. In the home, the resolution says, children should not get closer than 20 feet to secondhand smoke. Source. Bob Cuddy, The Tribune, SanLuisObispo.com. For more information, please click here (last visited November 23, 2005, reo).
November 22, 2005
Case Law Development: Role of Religious Practices in Change of Custody and Visitation Restrictions
The Alabama Supreme Court affirmed a trial court’s change of custody from Mother to Father based on the conduct of Mother’s new husband, providing an extraordinary discussion of the limits of a trial court's ability to consider religious practices and training when those practices alienate children from one parent.
After Mother had remarried and submitted herself to the religious views and control of her new husband, he moved the family from Alabama to rural Indiana and Mother and Stepfather acted in ways that the trial court found had alienated the children from not only their father but from both parent’s extended family. For example, Mother’s parents testified in favor of Father’s petition for change of custody. Mother claimed that the change in custody was improper, as the actions she and her husband had taken were grounded in their religious beliefs. The Supreme Court of Alabama held that “the trial court was not precluded from considering the effect on the child of [Stepfather and Mother's] parenting practices simply because those practices were based on religious beliefs.” Citing the ore tenus rule of deference to the trial court's findings, the court found that the trial court's order was based on the bests interests of the children.
The issue that split the court, however, was in the issue the majority concluded was not presented for review: the trial court’s restrictions on Mother’s religious instruction during visitation. The trial court ordered that : "The religious training of the child while in the home of the Mother for visitation shall be made by example, and not by any religious training which would otherwise be disparaging or critical of in any way the beliefs of the Father, and/or the way in which his household is conducted." The majority found that the order “when read fairly and objectively” merely prohibited Mother from disparaging Father in religious teaching and thus did not infringe on Mother’s free exercise. Thus, the court concluded “this case does not warrant the exercise of the Court's power to overlook [Mother's] failure to assert the ground, based on her reading of the order, in her petition for the writ of certiorari.
Justice Parker’s vigorous dissent provided a thorough review of the evidence presented in the case and argument regarding the important role of religious freedom in the upbringing of children. “The right to worship God according to the dictates of one's conscience is the most cherished star in our constitutional constellation. Thus, civil government can overreach in few ways more egregious than by invoking the law to restrict a mother from teaching her child the worship of God.”
Snider v. Mashburn, 2005 Ala. LEXIS 205 (November 18, 2005) (bgf)
Case Law Development: Paternity and Child Support Actions Commenced After Mother's Death
In this case before the Arkansas Supreme Court, Mother died when her daughter was sixteen years old and the girl was then cared for by her Aunt. At Aunt's request, the state child support enforcement agency then brought a paternity and child support action against Father. After genetic testing, the trial court entered a paternity finding and ordered the payment of child support retroactive to Mother's death. The Arkansas Supreme Court affirmed, holding that Aunt's testimony in corroboration of the genetic testing evidence was appropriate. If a mother is alive, she is required to give corroborating testimony regarding access during the probable period of conception to make a prima facie case of paternity. However, the court noted, when the mother is deceased the statute requires only "corroborating testimony concerning the conception, birth, and history of the child" in order to state a prima facie case of paternity. Moreover, the court held that Father's laches defense had no merit because Aunt had taken steps as soon as she had custody of daughter to obtain support on her behalf and the trial court had ordered support retroactive only to Mother's death.
Watt v. Office of Child Support Enforcement, 2005 Ark. LEXIS 718 (November 17, 2005)
Opinion on the web at http://courts.state.ar.us/opinions/2005b/20051117/05-131.html (last visited November 21, 2005 bgf)
Case Law Development: Effect of Currency Exchange Rate on Modifications of Child Support
When an obligor parent is working abroad, how should changes in the exchange rate be taken into consideration in modifying child support. In this case, the Supreme Court of Alaska held that fluctuations in the exchange rate could not be considered additional “income” for purposes of modifying child support. Rather, the parent’s income should be converted to dollars and then used to calculate support. If the resulting change in amount meets the statutory presumption for changed circumstances, the court should modify the child support amount.
Hixson v. Sarkesian, 2005 Alas. LEXIS 159 (November 18, 2005)
Opinion on the web at http://www.state.ak.us/courts/ops/sp-5958.pdf (last visited November 21, 2005 bgf)
November 21, 2005
Uniting Children of Anonymous Sperm Donors
"Like most anonymous sperm donors, Donor 150 of the California Cryobank will probably never meet any of the offspring he fathered through sperm bank donations. There are at least four, according to the bank's records, and perhaps many more, since the dozens of women who have bought Donor 150's sperm are not required to report when they have a baby.
But two of his genetic daughters, born to different mothers and living in different states, have been e-mailing and talking on the phone regularly since learning of each other's existence last summer. They plan to meet over Thanksgiving.
The girls, Danielle Pagano, 16, and JoEllen Marsh, 15, connected through the Donor Sibling Registry, a Web site that is helping to open a new chapter in the oldest form of assisted reproductive technology. The three-year-old site allows parents and offspring to enter their contact information and search for others by sperm bank and donor number.
"The first time we were on the phone, it was awkward," Danielle said. "I was like, 'We'll get over it,' and she said, 'Yeah, we're sisters.' It was so weird to hear her say that. It was cool."
For children who often feel severed from half of their biological identity, finding a sibling - or in some cases, a dozen - can feel like coming home. It can also make them even more curious about the anonymous father whose genes they carry. The registry especially welcomes donors who want to shed their anonymity, but the vast majority of the site's 1,001 matches are between half-siblings." By Amy Harmon, New York Times Link to Article (last visited 11-20-05)
British Parents May Be Fined if Children Bully
"Parents of pupils who attack or threaten their classmates could be fined £1,000 under new school plans, the government has announced. Speaking ahead of anti-bullying week, schools minister Jacqui Smith warned parents that troublemakers "will not be tolerated". Pupils are encouraged to lobby their schools to adopt the government's Anti-Bullying Charter for Action.
Ministers plan to give teachers a "clear" right to use reasonable force to discipline children, and use reasonable force to restrain them if necessary. Ms Smith said: "Bullying should never be tolerated in our schools, no matter what its motivation. "Children must know what is right and what is wrong, and that there will be consequences for crossing the line."
The schools minister said the government is sending parents "a strong message that schools will not tolerate a failure to take responsibility for bullying behaviour". She added: "This will be backed up by court-imposed parenting orders and parenting classes, with fines of up to £1,000 if parents do not comply." By DeHavilland Link to Article (last visited 11-20-05 NVS)
Adoption: Many Express Interest But Few Follow Through?
"More women say they are interested in adopting children but fewer are taking steps to adopt, a study shows. About 18 million women expressed an interest in adoption in 2002, a 38 percent increase from 13 million in 1995, said the National Adoption Day Coalition's study, released yesterday. The "mystique" of adoption has dissipated, said Maxine Baker, coalition co-chairwoman. The coalition promotes adoption, especially of the 119,000 children in foster care who are in need of adoptive families.
Government and private groups across the nation have done a good job raising awareness about the benefits and joys of adoptions, said Ms. Baker, an adoptive mother of two and president and chief executive of the Freddie Mac Foundation. Now it's time for the "call to action," moving from talking about "the concept" of adoption to "how to do" it, she said.
The coalition's study, conducted by researchers with the Urban Institute, compares data from the 1995 and 2002 National Surveys of Family Growth (NSFG). It found that of the 18 million women interested in adoption, Protestants and blacks were the most interested, with more than a third of each group saying they had considered it. . . .
However, between 1995 and 2002, the number of women who took steps to adopt declined significantly. In 1995, 16 percent, or 2.1 million, of women who expressed an interest in adoption started the process by contacting someone -- an agency, lawyer or other adoption source -- about adopting. In 2002, 10 percent, or 1.9 million women, took such action." By Cheryl Wetzstein, The Washington Times Link to Article (last visited 11-20-05 NVS)
November 20, 2005
Case Law Development: Garnishment of Debts to Collect Child Support Arrearages
A Missouri couple provide us a fine example of the uses and limits of garnishment as a tool to collect child support. When Husband and Wife divorced, the divorce decree awarded the marital house to Wife, and the sum of $ 18,500.00 to Husband to be a judgment and a lien against the house with interest at nine percent per year. The execution of the judgment and payment of the interest was to be stayed for a period of eleven years from the date of the decree; or until the youngest living child attained age eighteen, married or otherwise became emancipated; or until Wife remarried, whichever event occurred first.
Husband did not pay his child support and Wife obtained a judgment against him of over $14,000. When Husband paid no money, Wife garnished his checking account. The couple then executed an agreement that Husband would pay an additional $ 300.00 per month toward the amount he owed Wife, and she would release the garnishment on his checking account. Husband began to make payments toward his arrearages.
Wife then began the process of refinancing the marital house. When the refinancing was completed, the lender paid a title company $ 18,500.00 to satisfy the judgment lien against the property given to Husband by the original divorce decree. Wife then began an action to garnish the funds being held by the title company to satisfy the remaining arrearages. Husband moved to quash the garnish. The trial court denied the motion and the funds were distributed.
Husband argued that, under the doctrine of waiver by acquiescence, Wife had no claim to immediate recovery of the arrearages because of her agreement to remove the prior garnishment. The Missouri Court of Appeals rejected this argument, holding that "Without more, acceptance of an amount less than owed or a delay in demanding child support payments does not rise to the level of waiver by acquiescence." Because the couple's agreement releasing the prior garnishment did not prohibit any future garnishments, nor did it waive Wife's right to demand the full outstanding amount due at any time, the court held that Wife retained her right to enforce the full amount of the judgment.
However, the Court did agree with Husband that the garnishment was improper because execution of a garnishment may not be had on a debt not yet due. Since Husband had no right to demand payment from Wife before one of the three conditions of the dissolution decree occurred, the court held that the trial court should have granted Husband's motion to quash the garnishment.
Murray v. Murray, 2005 Mo. App. LEXIS 1674 (November 15, 2005)
Opinion on the web at http://www.courts.mo.gov/courts/pubopinions.nsf/6c38d75d12b7d96c8625661f004bc89e/417794deaf9e6c7e862570b50069bd71?OpenDocument (Last visited November 17, 2005 bgf).
Case Law Development: Attorney Malpractice for Failure to Secure Obligations in Divorce Settlement
The U.S. Third Circuit Court of Appeals provides a cautionary tale regarding the costs of failing to follow-through after the divorce decree. Attorney represented Wife in a divorce, in which Husband eventually agreed to pay Wife a total of $143,000 in four installments. As part of the divorce settlement approved by the court, Husband agreed to provide his 401(k) Plan as security and take out an insurance policy naming Wife as beneficiary in an amount sufficient to cover his obligations. To secure the debt through Husband's 401(k) Plan, Wife needed to obtain either a Qualified Domestic Relations Order ("QDRO") or a survivors annuity. Attorney advised Wife to enter into the divorce settlement, although it contained neither of these and despite his knowledge that Wife might not ever legally qualify for a QDRO. He then took no steps to insure either of these security devices were put into place. When Husband died before the obligations were paid and Wife was unsuccessful in recovering either the 401(k) or insurance funds, Wife sued Attorney for malpractice and was awarded nearly $300,000 in damages. The Third Circuit Court of Appeals upheld the award.
Winters v. Patel, 2005 U.S. App. LEXIS 24552 (3rd Cir. November 14, 2005)
Opinion on the web at http://www.ca3.uscourts.gov/opinarch/041753np.pdf (last visited November 17, 2005 bgf)
Case Law Development: Heightened Pleading Standard for Grandparent Visitation Petitions
The New Jersey Appellate court held that grandparents seeking visitation must meet a heightened pleading standard for their petition to survive a motion to dismiss. Grandparent petitions must have a “clear and specific allegation of concrete harm to the children. Mere general and conclusory allegations of harm … are insufficient.” Moreover, the court held that a court need not provide plaintiffs with an opportunity for discovery to meet this heightened pleading standard since, if the type of harm required to be pled “generally rests on the existence of an unusually close relationship between the grandparent and the child, or on traumatic circumstances such as a parent's death, it should not be necessary for the grandparent seeking visitation to obtain discovery in order to be able to plead specific facts to support his or her claim of harm to the children. Those facts should already be within the grandparent's knowledge.”
Daniels v. Daniels, 2005 N.J. Super. LEXIS 338 (November 16, 2005)
Opinion on the web at http://lawlibrary.rutgers.edu/courts/appellate/a7123-03.opn.html (last visited November 18, 2005 bgf)
New Hampshire Judges May Be Required to Make Detailed Findings in Custody Cases
Under a bill under consideration by the New Hampshire Legislature, Judges would be required to explain in writing what evidence they used in making child custody decisions. The House Children and Family Law Committee voted unanimously to support the amended bill last week after months of deliberations and heated exchanges between father's rights groups and advocates for children and domestic abuse victims. The decision must be based on a preponderance of the evidence and be in writing. The legislation will go to the House floor in January, and if it passes, will move on to the Senate. Source. Associated Press, seacoastonline.com. For more information, please click here (last visited November 20, 2005, reo).
Wyoming Child Abuse Deaths Well Above National Average
Wyoming children are dying from abuse and neglect at a much greater rate than in surrounding states, according to a new state report. For calendar year 2003, the latest statistical figures available, the report states that Wyoming saw eight child fatalities from neglect or abuse, equating to a rate of 6.61 deaths per 100,000 children. That far exceeds the national average that year of 2 child deaths per 100,000. The state report draws child fatality figures from Child Maltreatment 2003, a report prepared by the U.S. Department of Health and Human Services. The federal report shows that for 2003, only West Virginia with 7.67 child deaths per 100,000 children had a higher child fatality rate than Wyoming. Source. Ben Neary, Associated Press, Billingsgazette.com. For more information, please click here (last visited November 20, 2005, reo).
Arkansas Appeals Gay Foster Parent Ruling
An Arkansas law banning foster parents from having adult "homosexuals" living in their households is now under review by a state appellate court, where the state filed written briefs Thursday. Judge Timothy Fox ruled last December that the Child Welfare Agency Review Board did not have the authority to lay down moral regulations, but could only dictate matters that affected the "health, safety and/or welfare" of the children in the foster system. Based on trial testimony, Judge Fox concluded that the gay men and lesbians who might be expected to pass the standard foster parenting investigation would pose no danger to a child's health, safety or welfare. Consequently, the board exceeded its mandate under state law, and the provision was illegal. Source. Ann Rostow, PlanetOut Network, Gay.com. For more information, please click here (last visited November 20, 2005, reo).
Adoptions Finalized For 103 New Jersey Foster Children
On Saturday 79 families finalized adoption of 103 children as New Jersey's Division of Youth and Family Services celebrated the sixth National Adoption Day. Child advocates are trying to draw attention to the many children in foster care needing a permanent home. In the Garden State, that figure is about 2,000, said James Davy, commissioner of the Department of Human Services, which oversees DYFS. While most of those children are in foster homes with the adoption processes under way, about 350 have no current prospects of growing up in a family. Source. Bonnie Pfister, AP writer, Newsday.com. For more information, please click here (last visited November 20, 2005, reo).