Family Law Prof Blog

North Korean Refugees ending up in China as Sex Slaves

Many North Korean refugees who flee to China every year end up as sex slaves and China often sends them back for punishment, the U.S.ambassador for fighting international slavery said in Beijing on Friday. John Miller, the director of the U.S. State Department's Office to Monitor and Combat Trafficking in Persons, said he discussed North Korea in two days of talks with Chinese officials about the modern-day slave trade -- many of its victims women and girls forced into prostitution and marriage. A June report by Miller's office said "thousands" of North Koreans were subject to "debt bondage, commercial sexual exploitation, and/or forced labour" when they flee, most often to China. Source: Reuters, UK, Today Reuters.co.uk. For more information, please click here (last visited December 10, 2005, reo).

New York Appellate Court Ruling Preventing Same-Sex Marriage to be Appealed

An attorney representing five gay couples says he will appeal a New York appellate court ruling striking down same-sex marriage. The Court of Appeals Thursday sided with the City of New York, agreeing the state constitution does not permit same-sex marriage (see our Friday analysis). Susan Sommer, a lawyer for Lamda Legal, told The New York Sun that Lambda would appeal the decision. Source: United Press International, wpherald.com. For more information, please click here (last visited December 10, 2005, reo).

Canada, United States Agree to Joint Probe of Forced Marriage Allegations by Polygamist Group

U.S.and Canadian prosecutors agreed Thursday to co-operate in pursuing allegations of sexual exploitation by a polygamist group that has settlements in both countries. Utah attorney general Mark Shurtleff met with officials in British Columbia, who are under pressure to join the United States in a crackdown on the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). Men in the FLDS need three wives to enter highest realm of heaven, according to the group's teachings. Polygamy is illegal in both countries but still practiced by religious sects that broke away from the Mormon church, such as the FLDS, which is believed to have about 10,000 members in Utah, Arizona, Texas and British Columbia. Source: Allan Dowd, news.yahoo.com. For more information, please click here (last visited December 10, 2005, reo).

World Health Organization Releases Study on Domestic Violence

The first-ever World Health Organization (WHO) study on domestic violence released in November reveals that intimate partner violence is the most common form of violence in women’s lives - much more so than assault or rape by strangers or acquaintances. The study reports on the enormous toll physical and sexual violence by husbands and partners has on the health and well-being of women around the world and the extent to which partner violence is still largely hidden. The study is based on interviews with more than 24 000 women from rural and urban areas in 10 countries: Bangladesh, Brazil, Ethiopia, Japan, Namibia, Peru, Samoa, Serbia and Montenegro, Thailand, and the United Republic of Tanzania. The study finds that one quarter to one half of all women who had been physically assaulted by their partners said that they had suffered physical injuries as a direct result. The abused women were also twice as likely as non-abused women to have poor health and physical and mental problems, even if the violence occurred years before. This includes suicidal thoughts and attempts, mental distress, and physical symptoms like pain, dizziness and vaginal discharge. The study was carried out in collaboration with the London School of Hygiene and Tropical Medicine, PATH and national research institutions and women's organizations in the participating countries. Source: CrimProfBlog; World Health Organization, who.int. Please click here for more information regarding this study.  Please click here for the report.

Domestic Violence Program Organized in Nepal

A non-government organization of Nepal has organized a door-to-door program against domestic violence in different districts of Nepal. Nepal Scout (NS), with the assistance of United Nations Fund for Population Activities, organized the program in order to discuss the problem of domestic violence and create public awareness about it. About 15,000 scouts have been mobilized in 30,000 houses for the program in seven districts. Source: Xinhua, China View, chinaview.cn. For more information, please click here (last visited December 10, 2005, reo).

Colombia's Highest Court Rejects Case Calling for Legalization of Abortion on Technical Grounds

The highest court in Colombia, the Constitutional Court, has rejected a case brought to legalize abortion.  Lawyers had argued that international agreements required Colombia to legalize abortion in certain circumstances. However, the court did not rule on the case but rejected it as flawed, because  the complaint filed lacked sufficient arguments to allow for a ruling.  The rejection of the case, rather than a ruling against it has left the door open for another attempt to bring a case to the Columbian courts. Source: Lifesite.net. For more information, please click here (last visited December 10, 2005, reo).

Valerie Bertinelli and Eddie Van Halen seek Divorce

Valerie Bertinelli, 45, The former One Day at a Time actress, filed a petition to divorce Eddie Van Halen, 50,  in Los Angeles Superior Court Tuesday, even though the couple officially separated on Oct. 15, 2001. The couple were married in 1981 and have one child, age 14. Source: Gina Serpe, eonline.com. For more information, please click here (last visited December 10, 2005, reo).

Divorce Rumors of Britney Spears and Kevin Federline Apparently Wrong

Britney Spears has reportedly rekindled her romance with husband Kevin Federline - and has vowed to give their troubled marriage another chance. Source: uk-flava.com.  For more information, please click here (last visited December 10, 2005, reo).

Jessica Simpson Reportedly Hires Aniston’s Divorce Attorney

According to Us Weekly, Jessica Simpson has reportedly hired a high-powered divorce attorney to handle her split with husband Nick Lachey—just three weeks after they announced their separation. On Nov. 23, Simpson, 25, and Lachey, 32, announced their separation after three years of marriage. Source: Hollywood.com. For more information, please click here (last visited December 10, 2005, reo).

Case Law Development: New York Appellate Court Rejects Constitutional Claims for Same-Sex Marriage

The New York Court of Appeals in a split decision held that New York’s restriction of marriage to heterosexual couples does not deprive same-sex couples their rights of due process or equal protection.

The majority opinion scolded the trial court decision, which not only granted summary judgment on the constitutional issue but interpreted the marriage statute to extend to same sex couples and granted an injunction prohibiting the licensing authorities from denying marriage licenses to same-sex couples. The majority noted that the trial court had, “by redefining traditional marriage, usurped the Legislature's mandated role to make policy decisions as to which type of family unit works best for society and therefore should be encouraged with benefits and other preferences. It effectively dismantled the legislative construct and treats all intimate and dependent relationships as equal. This is an impermissible intrusion by the judiciary upon the legislative domain. The question of what statutory recognition, if any, same-sex couples should receive in New York is one that must be referred to the Legislature in accordance with its historical role.”

A concurring opinion focused on the necessity for framing the issue narrowly and precisely, not as whether the statute violates same-sex couple’s right to marry, but whether the Constitution grants same-sex couples a fundamental liberty interest in marriage.

One judge dissented, finding both the equal protection and due process arguments meritorious.

Hernandez v. Robles, 2005 NY Slip Op 9436, 2005 N.Y. App. Div. LEXIS 13892 (December 8, 2005) Opinion on the web at http://www.courts.state.ny.us/reporter/3dseries/2005/2005_25057.htm (last visited December 9, 2005 bgf)

Case Law Development: Personal Jursidiction under UIFSA Based on "Acts and Directives" of Non-resident Parent

The Ohio Court of Appeals interpreted its Uniform Interstate Family Support Act ("UIFSA") which allows a court to exercise personal jurisdiction over a non-resident parent when the children are present in the state as a result of the "acts and directives" of the non residential parent.

The court reviewed a number of cases from other jurisdictions intepreting this provision and concluded that "where there is a pattern of abuse or harassment, the resident parent will be considered to have fled as a result of the 'acts and directives' of the non residential parent and, as such, personal jurisdiction is appropriate under the UIFSA statute."  However, in this case, the trial court had not only ordered custody and support under the authority of that act, but also had granted a divorce and split the marital property.  The appellate court thus reversed and remanded, holding that UIFSA grants a trial court jurisdiction limited to the exact language of the act.  Thus “the trial court had no authority to grant a decree of divorce or to make a division of property.”

Sneed v. Sneed, 2005 Ohio 6413, 2005 Ohio App. LEXIS 5776 (December 5, 2005) Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/3/2005/2005-ohio-6413.pdf (last visited December 9, 2005 bgf)

Case Law Development: New York Rejects Judicial Exception to Indian Child Welfare Act for Children who are not part of an "Existing Indian Family"

In a matter of first impression, the New York Supreme Court, Appellate Division, concluded that it would not join those states that had adopted a judicial exception to the application of the Indian Child Welfare Act (ICWA).  That exception, adopted by seven states and rejected by fourteen, provides that the ICWA does not apply to a child who is not a member of an “existing Indian family” (EIF). The court’s analysis of the case provided a clear and scholarly summary of the history of the ICWA and its application, including the development of the EIF exception.  The opinion then analyzes the jurisdictional provisions of the act and the application of its substantive standards providing certain preferences in placement of Indian children with Indian families, absent good cause to do otherwise.  Faculty looking for a clear and concise summary of the ICWA would be well served by assigning this opinion.

Baby Boy C. v Tohono O'odham Nation, 2005 NY Slip Op 9259; 2005 N.Y. App. Div. LEXIS 13717 (December 6, 2005) Opinion on the web at http://www.courts.state.ny.us/reporter/3dseries/2005/2005_09259.htm (last visited December 9, 2005 bgf)

The facts of this case involved the Tohono O’odham Tribe’s request to intervene in an adoption proceeding.  The Mother of the child in this proceeding was one-half Native American Indian and a registered member of the Tohono O'odham Nation tribe. Father is Caucasian and Jewish. However, since her adolescence, Mother had rejected any connections to her tribal heritage.  Both Mother and Father had executed extrajudicial consents to the termination of their parental rights and the adoption of the child by adoptive (non-Indian) parents in New York. Based on these consents, an Arizona court terminated Mother and Father’s parental rights.  Though the Tribe had notice of the proceedings, it did not appear.  The adoptive parents took the child to New York and began adoption proceedings.

The trial court found that the Tribe had no right to intervene in the proceeding under the ICWA because the EIF exception applied in this case.  Moreover, following the reasoning of the California appellate courts, the trial court found that this exception was necessary to preserve the constitutionality of the ICWA, which would otherwise violate the due process and equal protection rights of children who have no cultural or familial links to an Indian family. 

The appellate court disagreed, concluding that the EIF exception directly conflicts with the express language and purpose of ICWA, as well as the rationale of the United States Supreme Court's decision in Mississippi Band of Choctaw Indians v Holyfield, 490 U.S. 30 (1989)  which found that the ICWA protects not only the interests of Indian children, but also the interests of the tribes themselves in preserving their ties to Indian children.

As to the constitutionality of the ICWA without the IEF exception, the court concluded that cases finding ICWA unconstitutional were based on a fundamental right of potentially adoptive children in a stable home environment that the court did not believe existed as a matter of law.  Likewise, the court rejected the argument that the ICWA is based on a suspect classification of the race of the child and is, rather, concerned with the rights of a sovereign nation to determine its membership. Thus, applying  a rational basis examination, the court found that the ICWA was rationally related to the stated goals of preserving tribal interests.

Finally, as a practical matter, the court concluded that the EIF exception was truly unnecessary because the ICWA itself contains a "good cause" exception, which “provides state courts with the flexibility to deviate from the placement preferences in circumstances where the interests of the parent or child outweigh the tribe's interest in the strict application of those preferences.”

Good News for Divorcing Families

Robert E. Emery, David Sbarra, and Tara Grover describe longitudinal research on the effectiveness of mediation including improved relationships twelve years after participation. Robert E. Emery, David Sbarra, Tara Grover, Divorce Mediation: Research and Reflections, 43 Fam. Ct. Rev. 22 (2005). Link to Article (last visited 12-7-05 NVS)

Marsha Kline Pruett, Glendessa M. Insabella, & Katherine Gustafson discuss successful intervention with parents of children aged six and under. Participating families became less likely to require court services. Marsha Kline Pruett, Glendessa M. Insabella, & Katherine Gustafson, The Collaborative Divorce Project: A Court-Based Intervention for Separating Parents with Young Children, 43 Fam. Ct. Rev. 38 (2005). Link to Article (last visited 12-7-05 NVS)

Indiana To Use PrePaid Credit Cards For Child Support

The state of Indiana will soon pay child support payments to recipients through the use of prepaid MasterCard or Visa branded cards, officials announced Monday. A Request for Proposal (RFP) informational meeting was scheduled for Monday  with potential vendors of the new plan. The Indiana Department of Workforce Development (IDWD) is soliciting proposals from vendors on behalf of its unemployment insurance program, and on behalf of the Department of Child Services for child support payments and other programs. Under the new system, the vendor chosen by the state will issue the cards directly to the recipients. The timetable for the new plan calls for implementation in the Spring of 2006. The winning vendor will also be required to develop an extensive education and awareness plan to help make recipients aware of the changes. The State of Indiana will also promote the new plan through its public information and marketing programs. Source: InsideIndianaBusiness.com Report. For more information, please click here (last visited December 7, 2005, reo).

Japan Urged to Sign 1980 Hague Convention on Civil Aspects of International Child Abduction

Experts and parents urged Japan to signed the 1980 Hague Convention on Civil Aspects of International Child Abduction at a forum in Tokyo last week. They argued that the Convention will protect children from International custody battles. The convention, so far ratified by 75 countries, says any child removed from country by a parent without the other parent's permission must be returned, and the custody resolved in the original country. Satoshi Watanabe, a law professor at Kyoto's Ritsumeikan University, said Japan should be cautious in accepting the Hague Convention because the Japanese legal system works on very different assumptions from those underlying the international agreement. Source: Mainichi Daily News, mdn.mainchi-msn.co.jp/national/news. For more information, please click here (last visited December 7, 2005, reo).

Gay Couples in Britain Begin Registering for Civil Partnerships

From Brighton to Birmingham and beyond, gay and lesbian couples began registering Monday for the first ceremonies later this month permitting a form of same-sex marriage in Britain.  As a new law permitting what are called civil partnerships came into effect, at least 1,200 couples scheduled ceremonies set to take place between Dec. 19 in Northern Ireland and Dec. 21 in England and Wales. Source: San Francisco Chronicle, sfgate.com.  For more information, please click here (last visited December 7, 2005, reo).

Wisconsin Panel Approves Amendment Prohibiting Gay Marriage and Civil Unions

A split Senate committee of the Wisconsin Legislature approved an amendment that would prohibit gay marriage and civil unions, clearing the way for a vote by the full body. The Senate Judiciary, Corrections and Privacy Committee voted 3-2 along party lines with all Republicans supporting the amendment, according to votes tallied Monday.  Source: Associated Press, St. Paul Pioneer Press, twincities.com. For more information, please click here (last visited December 7, 2005, reo).

Is Michael Jackson Biological Father of Son Michael Junior and Daughter Paris?

Michael Jackson’s ex-wife, Debbie Rowe - who was married to the singer from 1996 until 1999 - is quoted in Ireland's Sunday World newspaper as saying: "Michael knows the truth - that he is not the natural father of Prince Michael Jr and Paris. He has to come clean" She added: "I have no information whatsoever about the identity of the semen donor for either child as such (semen) was obtained anonymously from a semen bank under an agreement of confidentiality" Source: FemaleFirstco.uk. Mr. Jackson’s representatives are yet to comment on the claim. For more information, please click here (last visited December 7, 2005, reo).

Bassett Expecting Twins From Surrogate

People Magazine is reporting that the 47-year-old star of How Stella Got Her Groove Back and What’s Love Got to Do With It, Angela Bassett, and her husband, actor Courtney B. Vance, are expecting twins via a surrogate.  The babies are due in a couple months.  Source: K.C. Baker, PeopleNews, people.aol.com. For more information, please click here (last visited December 7, 2005, reo).

Case Law Development: Consecutive Discipline Appropriate for Family Law Magistrate's Sexual Assault of Petitioners

The West Virginia Supreme Court censured a magistrate judge, imposing four one-year suspensions and fines totaling $20,000, in a case in which the magistrate judge had sexually assaulted women, two of whom had come to the court for protective orders in domestic violence cases.   In justifying the consecutive imposition of separate sanctions for each of the four violations, the court expressed its outrage at the magistrate's conduct: "Imagine going to a magistrate's office to fill out a domestic violence petition after being beaten so badly that you required medical attention and then having the magistrate grab you and engage in revolting and inappropriate sexual contact. Such conduct cannot and will not be tolerated by this Court." 

In re Toler, 2005 W. Va. LEXIS 177 (December 2, 2005)
Opinion on the web at http://www.state.wv.us/wvsca/docs/fall05/31797.htm (last visited December 5, 2005 bgf)