December 3, 2005
South African Highest Court Rules For Gay Marriage
South Africa's highest court ruled in favor of gay marriage Thursday, a landmark decision that clears the way for the country to become the first to legalize same-sex unions on a continent where homosexuality remains largely taboo. The decision does not take immediate effect, however. The Constitutional Court, which decided it is unconstitutional to prohibit gays from marrying, gave Parliament a year to make the necessary legal changes. That disappointed gay rights activists. Canada, the Netherlands, Belgium and Spain are the only nations that now allow gay marriage nationwide. Source: Associated Press, chron.com. For more information, please click here (last visited December 3, 2005, reo).
New Hampshire Commission Sharply Divided over Gay Marriage
A study commission concluded Thursday in tumultuous fashion, with the minority accusing the majority of giving no meaningful consideration to extending legal recognition to gays and lesbians in New Hampshire. That happened because most commission members were lawmakers and activists opposed to gay marriage, according to a minority report by four of the 15 commission members and the one alternate member. “We in the minority believe that the majority report evidences nearly a complete failure to address the commission’s mandate,” said the minority report, which supported gay marriage or civil unions for same-sex couples. The majority report, first reported by The Associated Press last week, recommended against gay marriage or civil unions and recommended amending the New Hampshire Constitution to limit marriage to unions between one man and one woman. Source: Boston Herald.com. For more information, please click here (last visited December 3, 2005, reo).
Does Ohio’s Gay Marriage Ban Void Custody Agreements Between Same-Sex Couples?
Lawyers for an Ohio woman have told an Ohio trial court that her former partner is wrong to argue that Ohio’s year-old constitutional ban on same-sex marriage voids their child custody agreement. Denise, who is the birth mother of a nine-year-old boy, asked the court to void the agreement with Therese because, she says, the amendment makes it unconstitutional. “Both women agreed to share custody to protect their son against just this kind of separation,” said an attorney involved in the case, and the Ohio constitutional amendment pertains to relationships between two adults, not the relationship between a parent and her child. Source: Eric Resnick, gaypeopleschronicle.com. For more information, please click here (last visited December 3, 2005, reo).
Brad Pitt Moves to Adopt Jolie Children
Actor Brad Pitt has filed legal papers in Los Angeles to adopt the children of actress Angelina Jolie, news media reported on Friday. Life & Style magazine said Pitt, 41, has filed to become the legal adopted father of Jolie's two children, Maddox, 4, and Zahara, 10 months. They will go by the last name of Jolie-Pitt when the legal steps are completed, the magazine said, quoting a representative for Pitt. Jolie, 30, adopted Maddox from Cambodia and Zahara from Ethiopia. Source: Reuters, reuters.com. For more information, please click here (last visited December 3, 2005, reo).
Tenth Circuit Court of Appeals Hearing Challenge to Polygamy as Marriage Barrier
The Tenth Circuit Court of Appeals is being asked to allow three Utahns who want to unite as husband, wife and wife. They are challenging the ruling of U.S. District Judge Ted Stewart who rejected the argument that the prohibition on polygamy is an unconstitutional violation of religious and privacy rights and ruled that the state has an interest in protecting monogamous marriage. The judge said in his opinon that the 2003 decision by the Supreme Court in Lawrence v. Texas did not grant a right to plural marriage. In his brief to the Tenth Circuit, the lawyer for the appellants argues that the state does not regulate exploitative relationships between other couples, and if there were a compelling reason to promote responsible procreation, Utah would step into all family situations. He also argues that there are no sanctions against an unwed mother who rears children alone, and there is no statute barring parents from divorcing and raising their children in separate households. Furthermore, he says that the state does not restrict nor ban 'serial polygamists,' individuals who repeatedly marry, conceive children and divorce a series of spouses. Source: The Salt Lake Tribune, sltrib.com. For more information, please click here (last visited December 3, 2005, reo).
Eight Year $41 Million Child Abuse Prevention Strategy Has Little Impact on Abuse
An eight year $42 million dollar child abuse prevention strategy that researchers hoped would reduce child abuse and neglect by getting more community involvement has received mixed results. According to an Associated Press story, analysis and results released this past Wednesday showed that the experiment, tested in four cities across the nation had no significant impact on child re-abuse rates or the availability and quality of services for struggling parents. However, researchers at the University of Chicago found families that participated in the study showed modest gains in areas of reducing parental depression and stress, improvements in child safety and renewed trust in government agencies. It was hoped that by involving neighbors, relatives and others in the community, researchers believed they could reduce abuse, re-abuse and neglect and improve stability for children in foster care. The $41 million research project was funded by the Edna McConnell Clark Foundation and involved four pilot projects in high-risk communities in Cedar Rapids, Iowa ; St. Louis; Missouri, Louisville; Kentucky, and Jacksonville, Florida. Source: Associated Press, Murray State News, thenews.org. For more information, please click here (last visited December 3, 2005, reo).
French Crack Bulgarian Baby-Smuggling Ring
French police have arrested five couples who allegedly bought babies from a Bulgarian smuggling ring. The children, all around 18 months old, had been purchased for up to 6,000 euros ($7,000), the BBC reported earlier this week. Police were alerted to the baby-smuggling scheme by a Bulgarian mother who reportedly regretted taking part in it. Source. ScienceDaily, sciencedaily.com. For more information, please click here (last visited December 3, 2005, reo).
December 2, 2005
Case Law Development: Dishonest, High Risk Investing of Spouse's Inheritance is Not Financial Misconduct
In order to justify awarding property upon divorce as compensation for financial misconduct, a spouse must prove more than mere high risk investing, but must prove affirmative misconduct. In this case, husband rigidly controlled all the family's finances, becoming irate if Wife sought access to accounts or financial information. He invested marital funds in high-risk day trading. When Wife received an inheritance, Husband insisted that she turn the funds over to him for investment, which she did. Despite her request that he invest the funds safely, he invested them as he did all other marital funds and lost most of the money. He did not tell her about the loss until the divorce.
The Ohio Court of Appeals held that the trial court erred in finding that this conduct justified a distributive award to Wife to compensate for the lost inheritance funds. The court noted that "although Husband's behavior was clearly irresponsible, bordering on dishonesty, his actions do not rise to the level of financial misconduct .... Financial misconduct requires more than dishonest behavior [but] requires a wrongdoing that interferes with a spouse's property rights and results in profit to the wrongdoer from the alleged misconduct or stems from an intentional act meant to defeat the other spouse's distribution of assets."
Bucalo v. Bucalo, 2005 Ohio 6319, 2005 Ohio App. LEXIS 5678 (November 30, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/9/2005/2005-ohio-6319.pdf (last visited December 1, 2005 bgf)
Case Law Development: Fraud as to Paternity of Child must be Raised within One Year of Divorce Decree
The Florida Court of Appeals provides a scholarly decision holding that Mother's failure to disclose in a divorce proceeding that the child born to the marriage was not the biological child of Father was intrinsic fraud which Father must raise within one year of the judgment or otherwise be barred by res judicata. The court reviewed the caselaw of other jurisdictions, collecting some of the most memorable quotes on the subject, and provided a careful analysis of the public policy choices, citing Professor Theresa Glennon's article, Expendable Children: Defining Belonging in a Broken World, 8 Duke J. Gender L. & Policy 269, 275(2001)).
Parker v. Parker, 2005 Fla. App. LEXIS 18804 (November 30, 2005)
Opinion on the web at http://www.4dca.org/opfrm.html (last visited December 1, 2005 bgf)
Case Law Development: Insurance Company's Duty to Protect Ex-Spouse as Beneficiary of Life Insurance
So just how does one insure that an ex-spouse complies with the divorce decree ordering them to retain a particular beneficiary on a life insurance policy? This Georgia case shows that even the most diligent efforts may not be enough... Wife sued her deceased ex-husband’s insurance company for promissory estoppel and breach of a duty to investigate after her husband changed the beneficiary on his life insurance weeks before his death. Under their divorce decree, Husband had agreed to keep Wife as the beneficiary in the policy. Wife had gone to considerable lengths to notify the insurance company of the divorce decree and secure their cooperation in seeing that the policy not be changed. The company, however, agreed only to send her duplicate notices of any defaults and to “consider the decree” if any change in the policy were sought. The Georgia Court of Appeals held that the promise to “consider” the decree was not one that would induce reasonable reliance by the wife and that, as a third party to the policy, the company had no independent duty to investigate whether she had any interest in the policy proceeds.
McReynolds v. The Prudential Insurance Company, 2005 Ga. App. LEXIS 1300 (November 23, 2005)
Case Law Development: Refinancing House does not Extinguish Divorce Obligation to Pay Mortgage
The Wyoming Supreme Court has held that refinancing a mortgage did not extinguish Husband’s obligation to pay half of the mortgage debt that existed at the time of the divorce as the decree did not specifically condition his obligation on Wife’s continued ownership of the house or maintenance of the original financing.
McElwain v. McElwain, 2005 WY 147, 2005 Wyo. LEXIS 173 (November 22, 2005)
Opinion on the web at http://courts.state.wy.us/2005opn/2005WY147.pdf (last visited November 30, 2005 bgfF)
Case Law Development: Assisting Both Spouses to Form a Family Limited Partnership In Spite of Marital Discord States a Claim for Breach of Attorney's Fiduciary Duty
Most state rules of professional conduct expressly prohibit representing both husband and wife in a divorce proceeding. This case from the South Carolina Court of Appeals provides notice that joint representation of couples in estate or tax planning may also be ethically risky if the attorney does not inquire as to whether there is family conflict, particularly where one spouse has significantly greater wealth or is controlling the planning process.
In this case, husband and wife weren't getting along and had failed in their attempts to use marital counseling to repair their relationship. During this period, Husband turned to Attorney, who had represented Husband substantially in the past, and began plans to set up a family limited partnership. Attorney represented both Husband and Wife but never inquired regarding family conflict, nor did he inform Wife of the ramifications of the family limited partnership in the event of a divorce (specifically that such a device can be used to "freeze out" a spouse from assets). The Court of Appeals reversed the trial court's grant of summary judgment, holding that these facts, while insufficient to state a claim for civil conspiracy or fraud, did state a claims for breach of fiduciary duty.
Smith v. Hastie, 2005 S.C. App. LEXIS 273 (November 28, 2005)
Opinion on the web at http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=4052 (last visited December 1, 2005 bgf)
Case Law Development: "Unconventional Custody" Arrangements Requires Express Findings
The Wyoming Supreme Court reversed a trial court's default divorce judgment, which among other things had split custody of the two children between the parents. The Court noted that the trial court failed to make any findings to support its property distribution and its custody determination. In particular, the court emphasized that "when the exercise of its discretion in custody matters involves splitting custody of children between parents or other unconventional custody approaches, the trial court must provide an explanation of its reasoning and place its findings on the record."
Noonan v. Anderson, 2005 WY 145, 2005 Wyo. LEXIS 175 (November 22, 2005)
Opinion on the web at http://courts.state.wy.us/2005opn/2005WY145.pdf (last visited November 30, 2005 bgf)
December 1, 2005
National Council of Juvenile and Family Court Judges: The Burgandy Book
"Since its founding in 1937 by a group of judges dedicated to improving the effectiveness of the nation's juvenile courts, the National Council of Juvenile and Family Court Judges (NCJFCJ) has pursued a mission to improve courts and systems practice and raise awareness of the core issues that touch the lives of many of our nation's children and families. Every day, our membership of more than 1,700 judges, referees, commissioners, masters and other juvenile and family law professionals confront a variety of juvenile and family related issues, including:
- Child abuse and neglect
- Adoption and foster care
- Juvenile delinquency
- Family violence
- Victims of juvenile offenders
- Alcohol and drug abuse
- Termination of parental rights
- Custody and visitation
- Minority issues"
By the National Council of Juvenile and Family Court Judges Link to Webpage (last visited 11-30-05 NVS)
"The National Council of Juvenile and Family Court Judges is pleased to announce the recent publication of A Guide for Effective Issuance and Enforcement of Protection Orders (aka the Burgundy Book). Produced by the NCJFCJ’s Family Violence Department, the Burgundy Book was developed to give communities and professionals precise tools and strategies they can implement to broaden the effectiveness of protection orders, both from a practical standpoint and from a philosophical perspective." By the National Council of Juvenile and Family Court Judges Link for Ordering Information (last visted 11-30-05 NVS)
Case Law Development: Probate Courts have Power to Order Guardians to Allow Grandparent Visitation
Do individuals appointed by a probate court as a guardians of a minor have the same constitutional rights to determine the upbringing of the child as would the child's parents? The Florida Court of Appeals held that they do not in a case in which the appointed guardians were maternal grandparents and the paternal grandparent had sought visitation. The probate court, relying on a series of Florida cases holding that state's Grandparent visitation statute unconstitutional, denied the petition on the grounds that the paternal grandparent had no "right" to visitation. Reviewing a century of case law from across the United States, the Court of Appeals reversed. The court held that, while the guardians are required to act in loco parentis, their appointment as guardians "did not bestow upon them the constitutional privacy interest that natural parents enjoy regarding the care and custody of their children." Thus, while the court would not have the power to order grandparent visitation without a showing of harm to the children were the order sought against the parents, the probate court had the power to order the guardians to allow grandparent visitation if it was in the best interests of the child.
S. v. R.E.T. & S., 2005 Fla. App. LEXIS 18762 (November 30, 2005)
Opinion on the web at http://www.2dca.org/opinion/November%2030,%202005/2D04-4973.pdf (last visited December 1, 2005 bgf)
Case Law Development: Power of Courts to Amend Divorce Decrees in Contempt Actions
After Father, who had custody of daughter, moved to terminate Mother’s visitation, the court ordered the entire family into counseling and ordered that parents split the costs of therapy. When Mother failed to pay her share of the counseling bills, Father moved for contempt. Father presented a claim for over $6,000 in unreimbursed medical expenses, a number of which were for medical expenses other than psychological counseling. The trial court did not find Mother in contempt, but did find an arrearage owed to Father for one half of unreimbursed medical expenses. Mother then failed to pay the ordered arrearage and the court then found Mother in contempt and ordered her jailed until she paid three monthly installments.
The Connecticut Court of Appeals reversed the arrearage order, holding that the scope of a court’s authority in a contempt proceeding is limited to determining whether an order has been violated. “A motion for contempt addresses only whether a party has violated a particular court order. It does not address what that particular court order should be…. Accordingly, the court improperly ordered payment of medical expenses other than those provided for in the initial… order.” The court reversed the judgment and remanded for a recalculation limiting the order to expenses associated with therapy sessions.
Kalinowski v. Kropelnicki, 2005 Conn. App. LEXIS 489 (November 22, 2005)
Opinion on the web at http://www.jud.state.ct.us/external/supapp/Cases/AROap/ap92/92ap36.pdf (last visited November 30, 2005 bgf)
November 30, 2005
Officials Arrest 11 in California Involved in Using Phony Weddings to Obtain Citizenship
Calling it one of the biggest operations of its kind in the country, federal authorities Tuesday arrested 11 men and women in L.A. County, Orange County and the Bay Area for operating an alleged phony marriage scheme that targeted Asians seeking U.S. citizenship. Authorities said the document ring, which charged Chinese and Vietnamese nationals up to $60,000 to marry American citizens to obtain green cards, was unusually sophisticated. The couples produced fake wedding photographs, joint tax returns and even love letters. Marriage fraud is not a new phenomenon," said Virginia Kice, a spokeswoman for U.S. Immigration and Customs Enforcement whose office is in Orange County, "but clearly this scheme was one of the most ambitious and creative we've ever encountered." Source: Anna Gorman and David Reyes, Los Angeles Times, latimes.com. For more information, please click here (last visited December 1, 2005, reo.)
Gallup Poll Says Americans Favor Parental Involvement in Teen Abortion Decisions
According to a Gallup poll released yesterday, most U.S. adults think parents should not just be notified, but should have to give their permission, before a minor daughter has an abortion. For more than a decade, Gallup has found roughly 7 in 10 Americans favoring laws that require women under 18 to receive parental consent for any abortion. The latest poll, conducted Nov. 11-13, finds 69% in favor and 28% opposed to such laws. Source: Lydia Saad, Gallup News Service, poll.gallup.com. For more information, please click here (last visited December 1, 2005, reo.)
Marriage of 13-Year-Old Daughter to 14-Year-Old-Boy Sends Father on Crusade to Change Georgia Law
Brandon Balch has launched a crusade to change Georgia law after learning that his 13-year-old daughter got married in Georgia to a 14-year-old boy. Georgia law allows minors to marry without parental consent if the bride-to-be is pregnant. A similar statue in Florida gives a judge discretion to issue a marriage license to minors without parental consent if the couple is expecting a child. Balch and his sister, Sharon Cline, have spent the last 18 months writing letters to lawmakers in both states urging them for tougher requirements before minors can wed. If he had known of his daughter's plan to marry, Balch would have appeared in court and opposed the marriage, he said. When his 13-year-old daughter got married, she was living with Balch's ex-wife in Alabama. ''Most states require the consent of parents,'' he said. ``At no time did they live together and function as a married couple. They both lived with their mothers, neither could work or drive.'' Source. Jennifer Lebovich, The Miami Herald, herald.com. For more information, please click here (last visited December 1, 2005, reo.)
English PM Orders Abolition of Child Support Agency
English Prime Minister Tony Blair has ordered the break-up of the failing Child Support Agency, saying that it is not suited to the task of collecting child maintenance from reluctant fathers. The Prime Minister told MPs yesterday that it was extremely difficult for one agency to assess claims, arbitrate in disputes and collect the cash, suggesting that at least one of these functions would be hived off to another organisation. The CSA, which costs £330 million a year to run, has been plagued with problems since it was set up ten years ago. More than one million calls to its helpline went unanswered last year and £1.7 billion in payments from estranged fathers are overdue. Figures released yesterday indicated that the agency collected £1.85 for every £1 spend on administration. Source: Rosemary Bennett, Depty Political Editor, TIMESONLINE, timesonline.co.uk. For more information, please click here (last visited December 1, 2005, reo.)