December 14, 2005
Actress Lindsay Lohan's Parents Divorce
The parents of actress Lindsay Lohan, age 19, ended their 20-year marriage Monday. Her parents had waged a public battle, with the mother suing for divorce and the father asking for a cut of his daughter's earnings in response to the divorce petition. Ms. Lohan has stared in such files as ''Parent Trap,'' ''Mean Girls,'' ''Confessions of a Teenage Drama Queen'' and ''Freaky Friday.'' Source: Chilcago Sun-Times, suntimes.com. For more information, please click here (last visited December 14, 2005, reo).
English Girl, Age 10, Gets Divorce Self-Help Book Published
A 10-year-old English schoolgirl who wrote a self-help guide to help her deal with her parents' divorce is to have her book published. The girl, Libby Rees, wrote a list of the things that helped her make sense of what was going on when her mother and father separated three and a half years ago. The result was a 60-page book called Help, Hope and Happiness, published by Aultbea Publishing, a publisher based in Scotland. Charles Faulkner, who runs Aultbea Publishing, said Libby was the youngest author they had signed up. Source: Same Jones, Guardian Unlimited, books.guardian.co. For more information, please click here (last visited December 14, 2005, reo).
Canadian Study Suggests Most Harm to a Child's Mental Health May Occur Years Before Divorce
The most harm to a child's mental health takes place in the years before parents split up, according to a University of Alberta study that suggests staying together for the sake of the kids is not always the right choice. "Perhaps we should pay more attention to what happens to kids in the period leading up to parental divorce rather than directing all our efforts to helping children after the event occurs," said Dr. Lisa Strohschein, from the U of A's Department of Sociology. "For example, levels of child antisocial behaviour actually drop following parental divorce for kids living in highly dysfunctional families." She found that kids whose parents eventually divorce displayed higher levels of anxiety/depression and antisocial behavior than kids whose parents stay married. She also found that, compared to parents who remain married, parents who divorce tend to be younger at initial interview and report higher levels of family dysfunction and depression, and lower levels of marital satisfaction. These characteristics, which put them at risk of divorce, are also associated with child mental health. Her work is published in the current edition of the Journal of Marriage and Family. Source: Medical News Today, nedicalnewstoday.com. For more information, please click here (last visited December 14, 2005, reo).
One in Four Pregnancies Terminated in Australia
The first national abortion figures for Australia show that more than 84,000 pregnancies are terminated each year, or one in four pregnancies. The 2003 figure shows the rate of abortion is less than the controversial figure of 100,000 used by Health Minister Tony Abbott. And young women aged 20-24 have more than one abortion for every two live births, according to the figures provided by the Australian Institute of Health and Welfare. Source: Clara Pirani and Patricia Karvelas, The Australian, theautralian.news.com. For more information, please click here (last visited December 14, 2005, reo).
December 13, 2005
Case Law Development: Decline in Value of Retirement Funds after Divorce Shared by Both Spouses
In a case in which Wife was represented but Husband was not, the divorce decree ordered Husband to pay Wife one-half his retirement account. No one effectively followed up on the order, (including Wife's attorney in part because "he had never done a QDRO before"). Five months later, when the retirement funds had dropped significantly in value, Wife brought a contempt action against Husband. The trial court ordered Husband to pay the value of the retirement funds as of the date of the divorce, but in ruling on the issue of attorney's fees, noted that both parties were equally at fault for the delay in the transfer and thus should split the attorney's fees.
The Alabama Court of Appeals reversed the trial court's decision on the amount to be paid out of the retirement funds. Holding that "when a divorce judgment awards a spouse a percentage share of a variable asset and the award is silent with respect to market fluctuations in the value of the asset before the time of distribution, the judgment is inherently ambiguous; if the spouses are equally responsible for the delay in distribution, each spouse assumes a proportionate share of any subsequent gains or losses in the asset until such time as the share is distributed, and that is true even if the judgment awards a spouse a percentage of the value of the asset on a specific date." Moreover, the appellate court reversed the trial court's award of attorneys fees because the court did not find husband in contempt.
Buchanan v. Buchanan, 2005 Ala. Civ. App. LEXIS 736 (December 9, 2005)
For analysis of another interesting Alabama case on the division of retirement funds in divorce, visit fellow Alabama Family Law Blogger, Lee Borden's recent post.
Case Law Development: Calculating Time Spent With Parents
Fellow Tennessee family law blogger, Stephen Knight, turns our attention to the Tennessee Supreme Court's recent opinion on relocation standards in that state. Tennessee statutes require that, for purposes of determining relocation cases, the courts must determine whether the chidlren are spending "substantially equal intervals of time with the child." The Tennessee Supreme Court has held that, in calculating time spent with their child, the time should be calculated in units of a day, rather than smaller increments. In refusing Mother's petition to relocate, the trial court had calculated time actually spent with each parent in hours and had not credited to Mother any of the time children were in school as time spent with her. The court of appeals reversed and the Tennessee Supreme Court affirmed, finding that the mother was spending a greater amount of time with the child and so should be permitted to relocate with the child.
Kawatra v. Kawatra, 2005 Tenn. LEXIS 1052 (December 7, 2005)
Opinion on the web at http://www.tba2.org/tba_files/TSC/2005/kawatas120705.pdf (last visited December 11, 2005 bgf)
"The number of days to be credited to each parent should be based upon an examination of the residential schedule, additional time not reflected in the residential schedule, and adjustments for any violations to the residential schedule. To allocate a day for which both parents claim credit, the trial court should examine the hours that each parent actually spent with the child on that day, the activities in which each parent participated with the child, the resources that each parent expended on the child's behalf, and any other factor that the trial court considers to be relevant."
Case Law Development: Enforceability of Agreements Drafted During Mediation and Admissibility of Mediator Testimony
In a case that family court mediators in many jurisdictions might find surprising, the Tennessee Court of Appeals affirmed a trial court's enforcement of a handwritten agreement prepared during divorce mediation which addressed property division and spousal support issues but did not address child custody and support. Further, the appellate court found no prejudicial error in allowing the mediator to testify regarding Wife's capacity to participate in the mediation.
McMahan v. McMahan, 2005 Tenn. App. LEXIS 756 (December 5, 2005)
Opinion on the web at http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/054/McMahanjdOPN.pdf (last visited December 11, 2005 bgf)
After a seven-hour mediation in their divorce, Husband and Wife signed a five-page, handwritten mediation agreement containing 32 paragraphs pertaining to property division and spousal support. Before the parties and their counsel left the attorney's office, each page of the document was either signed or initialed by both Husband and Wife and by the mediator. Both parties' attorneys were present during the mediation. The handwritten agreement did not address child custody or support issues and included provisions regarding a marital dissolution agreement that was yet to be executed.
Husband's attorney then drafted the formal divorce agreement, which Wife refused to sign, arguing that the mediation agreement was not enforceable because of duress, lack of capacity, and that it was not intended to be an enforceable agreement. Husband then moved to enforce the agreement. The trial court held a hearing at which the mediator testified that Wife's mental condition did not appear impaired during the mediation. The court then enforced the agreement.
The Tennessee Court of Appeals affirmed the trial court judgment. Wife argued that a mediated agreement may not form the basis for a consent judgment when one of the parties has withdrawn their consent. The court agreed with that general principal, but held that the trial court "could, as it did, enforce a contract between the parties." The court further rejected Wife's argument that the written agreement was not a final binding contract because, as the terms in the handwritten document indicated, the parties intended a more formalized agreement would be drafted and executed. The appellate court agreed that "There is no doubt that the parties anticipated that a more formal document would be drafted and signed." but concluded that "This, however, does not mean that the validity of their agreement as to the 32 items was contingent upon this being done." Moreover, the court concluded that " The omission of child custody and maintenance provisions from the mediation agreement does not prove that the parties ddid not intend the mediation agreement to be a final resolution with respect to the 32 provisions included in the signed document.
Finally, the court found no reversible error in the decision to admit the mediator's testimony. Tennessee's rules regarding mediation provide that court certified mediators shall preserve confidentiality and that conduct or statements made during mediation are inadmissible to prove liablity. However, here, the court found "The mediator in this case was careful not to testify to statements or assertive conduct made by Wife. She did not disclose confidential information or attempt to prove liability via conduct or statements made in the course of the mediation.
Case Law Development: Instability of Household and Sexual Immorality as Basis for Change in Custody
The Supreme Court of Arkansas affirmed a change of primary residential custody from Mother to Father. The trial court had found a change in circumstances justifying the custody order based on Mother's unmarried cohabitation. The Supreme Court of Arkansas noted that, while moral misconduct is not irrelevant, it would look beyond this single factor to determine whether the custody change was warranted. It found that basis in the fact that Mother had moved several times: "not only has [Father] remarried and developed a stable family life, but [Mother] has, during the same time period, moved frequently and has been unable to establish a regular schedule and routine for her daughter. [Father], on the other hand, has maintained a stable environment that has been enhanced by his remarriage."
Dissenting judge Betty C. Dickey paints a much different picture. She notes that Father had paid no child support and "has shown little interest in [his child] until after her mother sought court-ordered child support." She further notes that Father's behavior was of no higher morality than Mothers. Regarding the instability of residence used by her colleagues to support the change in custody, she note that this approach "failed to recognize that [Mother's] unstable environment was a direct result of [Father's] lack of participation and the court's failure to require it. ... [Father] did not financially participate in [his child's] care, forcing [Mother] to depend on the charity of her family and friends for financial help and living expenses."
Alphin v. Alphin, 2005 Ark. LEXIS 757 (December 8, 2005)
Opinion on the web at http://courts.state.ar.us/opinions/2005b/20051208/05-285.html (last visited December 11, 2005 bgf)
December 12, 2005
Child Abuse & Neglect User Manual Series
"The Child Abuse and Neglect User Manual Series provides guidance on identifying, preventing, and effectively responding to child maltreatment." By the U.S. Dept. of Health and Human Services Administration for Children & Families, National Clearinghouse on Child Abuse & Neglect Information. Link to Series (last visited 12-11-05 NVS)
Print, download, or order free copies of the following publications:
- A Coordinated Response to Child Abuse & Neglect: The Foundation for Practice
- Child Protection in Families Experiencing Domestic Violence
- Child Protection Services: A Guide for Caseworkers
- The Role of Educators in Preventing and Responding to Child Abuse and Neglect
- Supervising Child Protective Services Caseworkers
December 11, 2005
Group to Challenge Colombia’s Abortion Ban
Days after Colombia's highest court rejected a case challenging the country's complete prohibition on abortion, an international women's rights group says it will file another suit on Monday. Monica Roa, a Bogota lawyer who works for Women's Link Worldwide, said that "the problems continue to exist, women die and we have to find a solution." Roa had sought to legalize abortion when a mother's life is in danger, when the fetus is expected to die from abnormalities or when the pregnancy is the result of rape. A lawsuit was rejected Wednesday by the nine-member Constitutional Court on technical grounds had claimed that Colombia's complete ban on abortion violated its obligations to international human rights treaties ensuring a woman's right to life and health. Source: Juan Forero, New York Times, Bradenton.com. For more information, please click here (last visited December 11, 2005, reo).
Cages for Children? Ohio Social Workers Find Disagreement in Custody Battle
Two Ohio licensed social workers disagreed during custody proceedings this past week about the disorders plaguing 11 adopted children who were removed from an Ohio home where some of them were kept in cages - and on whether the wood-and-wire enclosures helped or harmed the youngsters. One worker stated that the youngsters needed to be enclosed to prevent them from hurting themselves, urinating on walls and floors, and destroying household items. She stated that she felt there was a safety issue and didn’t believe the cages were going to be a long-term solution. Before the parents build the cages, the children repeatedly tore up mattresses, ate parts of them, and urninated on the remains. However, a second social worker disagreed testifying that caging was never appropriate and had a tremendous negative psychological effect upon the children. According to him, enclosures should be used only under intense supervision in residential treatment facilities with severe behavioral problems that require immediate attention. The court has the matter under advisement. Source: Steve Murphy, Toledo Blade, toledoblade.com. For more information, please click here (last visited December 11, 2005, reo).
Ohio Child Support Payments go Electronic
Ohio child support payments currently being issued in the form of a paper check are going to be issued electronically in the near future. The statewide e-Disbursement program began as a pilot project in 2004 and is now in the process of being phased in as a mandatory enrollment program over the next several months. Child support recipients will choose between direct deposit into their account at a bank or other institution or the Ohio e-QuickPay debit MasterCard system. With direct deposit, the child support payments will go directly into the recipient's checking or savings account. With e-QuickPay, the recipient will receive a debit card. The program is estimated to save Ohio about $2.5 million per year. Source: Centralohio.com. For more information, please click here (last visited December 11, 2005, reo).
Iowa Judge Rules Lutheran Father Gets More Time with his Amish Child
An Iowa trial judge ruled this week that Dieter Erdelt, 67, should be given additional visitation with his 21-month old child born to Edna Schrock, 30, an Amish woman with whom he had an affair while working at his landscaping business. Edna Schrock had requested a reduced amount of visitation, citing concerns about the differences in culture her daughter will be exposed to. In a hearing, Edna Schrock said once Rachel left with Erdelt the girl would likely see televisions, radios and telephones --- things members of the Amish abstain from using. The judge rejected a request for joint physical custody. The case is expected to be appealed to the Iowa Supreme Court. Source: Jessica Miller, Courier Staff Writer, WCFCourier.com. For more information, please click here (last visited December 11, 2005, reo).
Arkansas Study Says Domestic Violence Carries Dramatic Implications in the Workplace
The results of a recent Arkansas study say that domestic violence carries dramatic implications in the workplace. The University of Arkansas researchers found that individuals who have been abused by intimate partners miss work for health-related reasons and are tardy more often than other employees. It also showed that 20% of threats and 72% of stalking incidents occur at work, potentially putting other employees, and even customers, at risk. The study also showed that employees abused by an intimate partner are exhausted more frequently and have more difficulty concentrating at work than employees who aren't abused by an intimate partner. Females who said they had been victimized in the previous 12 months reported that they had been distracted, missed work, and were often tardy. Source: Karen E. Klein, news.yahoo.com. For more information, please click here (last visited December 11, 2005, reo).
Doctor’s Plan to Use Nanny To Gather Evidence for Divorce Backfires
A nanny to the stars hired by anti-aging guru Dr. Nicholas Perricone says her job was to secretly gather evidence that his wife was crazy. The evidence was apparently to be used during a divorce proceeding. However, the scheme backfired when the nanny bonded with Madeleine Perricone and later testified for her during the couple's divorce trial. Source: Brad Hamilton, New York Post Online Edition, nypost.com. For more information, please click here (last visited December 11, 2005, reo).
Football Star Jerry Rice Embroiled in Arizona Paternity Action
Retired San Francisco 49er wide receiver Jerry Rice was in an Arizona courtroom this past week as the plaintiff in a paternity trial to determine child support for a child he fathered out of wedlock in 2002. Rice apparently agrees that he fathered the chid and the disagreement is about child support and fees. Source: Michael Kiefer, The Arizona Republic. For more information, please click here (last visited December 11, 2005, reo).