December 24, 2005
Arizona Ban on Polygamy Not Unconstitutional
In a pretrial hearing, a Mohave County, Arizona judge rejected a constitutional challenge to the State’s ban on polygamy. The case involved eight men who practice polygamy now facing sex charges involving girls younger than 18. The defense had argued religious freedom as a partial defense to the charges. Sources: Dave Hawkins/KGMN-FM, http://www.kgmn.net, Kingman Daily Miner, kingmandailyminer.com, KVOA4 Tucson, kvoa.com. For more information, please click here (last visited December 24, 2005, reo).
European Union Advisory Panel Says Physicians Should Not be Allowed to Avoid Performing Abortions
A European Union (EU) advisory panel has issued a policy statement arguing that physicians should not be allowed to avoid performing abortions, the Catholic Family & Human Rights Institute (C-Fam) reports. The EU Network of Independent Experts on Fundamental Rights released a 40-page opinion on the implications of a proposed treaty between Slovakia and the Holy See. Part of that treaty would ensure that Catholic hospitals and Catholic medical personnel in Slovakia would not be required to perform abortions, fertilizations, embryo experiments, sterilizations, and other procedures that would be incompatible with Catholic principles. The Network concluded that while such "conscience clauses" are not absolute, and must be balanced by the rights of people seeking treatment. The Network stated that the rights of medical personnel to follow their own consciences "should be regulated in order to ensure that, in circumstances where abortion is legal, no woman shall be deprived from having effective access to the medical service of abortion." Source: cwnews.com. For more information, please click here (last visited December 24, 2005, reo).
Fifth U.S. Circuit Court Clears Path for Louisiana to Sell Anti-Abortion License Plates
The Fifth Circuit United States Court of Appeals split 8-8 on whether to reconsider an earlier ruling by a three-judge panel that held the state can sell the license plates. Nine votes were needed to schedule a rehearing. The decision, dated this past Wednesday, places the 5th Circuit at odds with the Virginia-based 4th Circuit, which ruled in 2004 that South Carolina's "Choose Life" plates violated the First Amendment because they failed to give abortion rights supporters a similar forum to express their beliefs. Source: AP, KATC-TV News, katc.com. For more information, please click here (last visited December 24, 2005, reo).
Chinese Suspend Adoptions because of Baby-Trafficking Scandal
Chinese authorities have temporarily halted adoptions in some regions of Hunan province because of a continuing investigation of a baby-trafficking scandal, a senior Hunan official said. The official denied, however, that the scandal has prompted China to suspend all adoptions from Hunan, one of the main sources of Chinese children adopted by Canadians. A report last week by Children's Bridge, an international adoption service based in Ottawa, Canada, said that Hunan had dealt with the scandal "swiftly and ruthlessly" by suspending all foreign adoptions from Hunan until Chinese authorities have finished their investigation. Source: chinabroadcase.cn. For more information, please click here (last visited December 24, 2005, reo).
Romania Rejects U.S. Call to Allow Foreign Adoptions
Romania's prime minister on Thursday rejected U.S. calls to allow adoptions by foreigners of about 1,000 Romanian children. About 200 U.S.families and 800 European families had filed paperwork to adopt Romanian children before 2004, when Romania enacted legislation that effectively bans all foreign adoptions, except for close relatives of the child. The U.S. has asked Romania to exempt about 1,000 children from that ban. Source: AP, chron.com. For more information, please click here (last visited December 24, 2005, reo).
U.S. Senate Approves Measures to Assist Low-Income Families Receiving Child Support
The United States Senate on Wednesday adopted measures giving states greater flexibility and more financial incentives to pay current and former welfare recipients the full child support owed them. For low-income families, who must forfeit their child support checks to receive welfare, this was good news. Traditionally, the federal government has required states to return at least a portion of the child support check as payback for cash benefits received by families on public assistance. The measures still must be approved by the House of Representatives. Under the bill, states would be allowed to return all the child support monies owed to families formerly on assistance. States could also return all child support payments to families currently on public assistance, but would have to themselves reimburse the federal government in part for federal benefits paid these families. Source: Judith Davidoff, Capital Times, Madison.com. For more information, please click here (last visited December 24, 2005, reo).
December 23, 2005
Case Law Development: Domestic Relations TROs as QDROs and Constructive Trust Remedies
The United States District Court for the District of Kansas spells out very nicely what makes a domestic relations order a qualified domestic relations order under ERISA in a case in which wife had filed for divorce and obtained a temporary restraining order prohibiting, among other things, husband from changing his life insurance beneficiary. After husband was served with the order, he changed his life insurance beneficiary to name his father as primary beneficiary. He then died before the divorce was final.
In a three-way suit between husband's father, wife, and the insurance company, the court determined that ERISA preempted the decision as to whether husband's change of beneficiary was effective. The court found that "the TRO has a prohibited connection with the Plan because it interferes with the objective of ERISA for uniform administration."
To be exempt from preemption, the TRO would have had to qualify as a QDRO. The parties conceded that the "TRO did not contain all of the required information set forth in § 1056(d)(3)(C) and was not provided to the plan administrator. Therefore, the TRO is not exempt from preemption." Thus, the court granted summary judgment to husband's father on the issue of who was the beneficiary under the policy.
Wife then asked that the court impose a constructive trust on the insurance proceeds. The court looked to decisions of other circuit courts of appeals and held that "a district court has authority to impose a constructive trust on welfare plan benefits after they are released to the proper beneficiary under ERISA." The court then reviewed Kansas law regarding constructive trusts and concluded that the required elements were met. In particular the court found that husband's change of beneficiary in violation of the TRO was an actual or constructive fraud upon the court. The court thus granted the constructive trust to wife.
Donald. Irwin v. Principal Life Ins. Co., 2005 U.S. Dist. LEXIS 34077 (December 16, 2005)
December 22, 2005
Documentary on Child Marriage Wins Award
"A children's human rights documentary with focus on the practise of child marriage in India, has won the Best Documentary International award at a film festival in the United States."Child Marriage", a highly-acclaimed documentary on children's human rights, has received the Best Documentary International award at the New York International Film & Video Festival, 2005, trade sources said.Directed by debutant filmmaker Neeraj Kumar, the 82-minute documentary, which focusses on the the rampant practise of child marriage prevalent in several parts of India, has won the award for the Best Documentary in the International awards category." By newKerala.com Link to Article (last visted 12-21-05 NVS)
Teens and Substance Abuse
"Cigarette smoking is at its lowest level in a survey of teenagers and usage of illicit drugs has been declining, but continuing high rates of abuse of prescription painkillers remain a worry, the government reported Monday.The decline in drug use is "quite remarkable news," Dr. Nora Volkow, director of the National Institute on Drug Abuse, said in issuing the agency's annual survey of drug use by students in Grades 8, 10 and 12." By Randolph E. Schmid, Associated Press, Chicago Tribune. Link to Article (last visted 12-21-05 NVS)
Sir Elton John Weds
"Sir Elton John sealed his marriage to long-term partner David Furnish with a kiss today.
The couple celebrated Britain's first celebrity gay wedding in what was the star's most understated sartorial display since he stopped calling himself Reg Dwight. Sir Elton, 58, wore a morning suit and silver tie for the 20-minute ceremony while Furnish, 43, wore a similar outfit set off with a black tie. If Furnish looked unnervingly like an undertaker - and Sir Elton like the maitre d' of a rather grand hotel, albeit one with a taste for purple tinted glasses - then who is to criticise? Not only are they showbusiness royalty, but today is the first day for civil partnerships in England and as yet the rules of etiquette and dress codes have not been written down." By Valentine Low and Chris Millar, Evening Standard, 21 December 2005. Link to Article (last visited 12-21-05)
December 21, 2005
Toy Drive for Victims of Domestic Violence in Iowa
The Davenport Iowa Union of Professional Police and the Davenport Police Association held a toy drive for kids at a domestic violence shelter, hoping to brighten their holiday.It is reported that some didn't even get out of their car, buzzing through the line with a bag full of goodies. Others, walked a check right into the Mobile Police Unit. Source: whbf4 News, whbf.com. For more information, please click here (last visited December 21, 2005, reo).
Germany's Ruling Conservative Party Plans to Toughen Abortion Laws
Germany's governing Christian Democratic alliance (CDU/CSU) is planning to introduce tougher abortion laws in the coming year, affecting late-term abortions in the case of unborn disabled children. Source: irna.ir/en/news. For more information, please click here (last visited December 21, 2005, reo).
Sir Elton John Rejects $10 Million for Exclusive Rights to Wedding
It has been reported that Sir Elton John has rejected an offer to the tune of $10 million from an unnamed media firm from the US, for exclusive rights and access to his wedding. Sir Elton John and his partner David Furnish are not interested in making it too public. Source: Evening Standard, whatistheword.com. For more information, please click here (last visited December 21, 2005, reo).
Measure Supporting Traditional Marriage Defeated in New Zealand
A marriage amendment bill stipulating that marriages may occur "only between one man and one woman" was defeated in a 73-47 vote in New Zealand 's Parliament. The Marriage Gender Clarification Amendment was presented by Gordon Copeland of the United Future Party. It was defeated at its first reading in early December. Chris Finlayson, a Catholic member of the National Party, said he supported marriage as a union between one man and one woman but called the proposed legislation ill-conceived. During a speech, he said there is "nothing to clarify because the law is clear." Finlayson said an appeals court ruling denying a same-sex marriage in New Zealand in the 1990s demonstrated that same-sex marriages are not permitted under the country's Marriage Act. He also noted that 2004 civil union legislation "further clarified the position." Copeland disagreed and said the defeat of his bill Dec. 7 leaves the door open to future legal challenges, citing court rulings in Canada, the United States and South Africa that have extended marriages to include same-sex couples. Source: Totalcatholic.com. For more information, please click here (last visited December 21, 2005, reo).
December 20, 2005
Case Law Development: Divorce Does not Preclude Claim for Personal Injury
The New York Court of Appeals holds that Interspousal personal injury tort claims and divorce claims are not part of the same transaction for res judicata purposes The court reversed the trial court, which had found that "the allegations in Wife's personal injury action were "virtually identical" to those in her counterclaim for divorce and arose out of the same transaction or series of transactions." The appellate division affirmed.
The highest court, however, disagreed, finding that the policy considerations in divorce cases argued against applying res judicata.
Xiao Yang Chen v. Fischer, 2005 N.Y. LEXIS 3344; 2005 NY Slip Op 9572 (December 15, 2005)
Opinion on the web at http://www.courts.state.ny.us/ctapps/decisions/dec05/152opn05.pdf (last visited December 19, 2005 bgf)
"It is apparent that personal injury tort actions and divorce actions do not constitute a convenient trial unit. The purposes behind the two are quite different. They seek different types of relief and require different types of proof. Moreover, a personal injury action is usually tried by a jury, in contrast to a matrimonial action, which is typically decided by a judge when the issue of fault is not contested. Further, personal injury attorneys are compensated by contingency fee, whereas matrimonial attorneys are prohibited from entering into fee arrangements that are contingent upon the granting of a divorce or a particular property settlement or distributive award."
"Significant policy considerations also support this conclusion. To require joinder of interspousal personal injury claims with the matrimonial action would complicate and prolong the divorce proceeding. This would be contrary to the goal of expediting these proceedings and minimizing the emotional damage to the parties and their families. Delaying resolution of vital matters such as child support and custody or the distribution of assets to await the outcome of a personal injury action could result in extreme hardship and injustice to the families involved, especially for victims of domestic violence. In addition, parties should be encouraged to stipulate to, rather than litigate, the issue of fault."
Case Law Development: Necessity Defense to Violation of Protective Orders
The Alaska Court of Appeals affirms a trial court's refusal to allow defendant to introduce evidence on a necessity defense in a criminal action for violation of a protective order. Father, against whom the order had been issued, violated the order by calling Mother. Father claimed that his call was prompted by Mother's earlier call in the middle of the night in which she made statements regarding their child that were worrisome and that he knew that Mother had a substance abuse problem. He did not call the police because he did not believe they would respond.
The court stated that "In the child custody context, we have previously held that illegal self-help remedies cannot be justified by the defense of necessity if the parent has failed to exhaust available legal remedies. The legislature has established judicial forums and procedures for resolving child custody disputes and obtaining and modifying domestic violence protective orders. It has specifically declared that once a protective order prohibiting communication is issued, the person subject to that order will not be excused from violating the order because the petitioner invited the communication."
Saucier v. State, 2005 Alas. App. LEXIS 137 (Dec 14 2005)
Opinion on the web at http://touchngo.com/ap/html/ap-1335.htm (last visited December 19, 2005 bgf)
Case Law Development: When is Spanking a Grounds for Termination of Parental Rights?
The Texas Court of Appeals concluded that "infrequent spankings of a child that leave "marks" or visible bruises 24 hours after the spanking" did not provide clear and convincing evidence of a parent's endangerment of the child to justify termination of parental rights. The court's opinion explores the propriety of corporal punishment, noting that it is "an increasingly controversial subject." The court cites a variety of cases from other jurisdictions and statistical reports on the declining frequency of corporal punishment, citing Deana Pollard, Banning Child Corporal Punishment, 77 TUL. L. REV. 575, 582 (2003). The court also cited studies regarding the prevalence of corporal punishment and suggestions that this may be an effective discipline tool. The court concluded that it is "not a court's function to determine whether parents measure up to an ideal, but to determine whether the child's welfare has been compromised." The court held that the evidence in this case was "both legally and factually insufficient to support a termination of parental rights."
In the Interest of J.A.J., 2005 Tex. App. LEXIS 10331 (December 13, 2005)
Opinion on the web at http://www.14thcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=81549 (Last visited December 19, 2005 bgf)
December 19, 2005
Custody Struggles Increase Over Holidays
"It's one of the most litigious times of the year for warring ex-spouses.The holidays can be stressful for even the most traditional families, but throw in an uncooperative ex-spouse or a bum custody plan and, evidence shows, December can mean a rush to family court. Court officials and some lawyers say that child custody fights tend to heat up or reappear when school starts or takes long breaks -- and some parents can become unhappy, uncertain or unhinged at how much time they'll have with their children. The holiday school break is no different. . . . Napa Superior Court Commissioner Michael Williams said he's seen it all before."What happens is people come in on Dec. 20 because they don't know where the child is going to be on Dec. 25," he said. In cases where squabbling parties wait until the last minute to request a change in their custody arrangements -- and if they're too much at odds to go hash things out at mediation -- Williams says he's often forced to make Solomon-like orders." By David Ryan, Napa Valley Register Link to Article (last visited 12-18-05 NVS)
Comment on Child Custody Evaluation Model Standards
The AFCC Task Force on Child Custody Evaluation Model Standards invites comments on the latest version of the Draft Model Standards through January 8, 2006. The Draft Model Standards cover the following topics:
- Training, education, & competency issues
- Knowledge of law
- Record keeping and release of information
- Communication with litigants, attorneys, and courts
- Data gathering
- Use of formal assessment instruments
- Team approach to evaluation
- Role conflict and dual role issues
- Interviewing children
- Observational - interactional assessment
- Use of collateral source information
- Data interpretation and acknowledgment of limits
You can review the Draft Model Standards and comment on them through the AFCC website. Link to Website (last visited 12-18-05 NVS)
December 18, 2005
Case Law Development: Denying Termination of Parental Rights after a Finding of Parental Unfitness
The Supreme Judicial Court of Maine, in a 5-2 decision, reversed a trial court's determination that a Mother's parental rights should not be terminated even though it had found the Mother unfit. The trial court had found Mother unfit based on her "inability to identify men who present a risk of harm to herself and the children." Nonetheless, the court found that Mother had a strong bond with her two young children and that the children appeared to be doing well in the current situation of living with a foster family and visiting with Mother on weekends. Given that Maine has no open adoption, if Mother's parental rights were terminated and the foster parents were to adopt the children, the children would have no right to continued contact with Mother. Thus, the trial court had concluded that the current "equalibrium" was in the best interests of the children.
The supreme court held that the Maine statutes emphasize the importance of permanency and announced a new standard in applying the termination statute: "when a court applies the factors set forth in [the termination statute] to determine the best interest of a child for whom the court is considering the alternative of long-term foster care, it must address whether a compelling reason supports its conclusion that long-term foster care will serve the child's best interest over both the short and long-term." The court remanded to the trial court to consider its decision in light of this standard.
Dissenting justices would have left the enunciation of such a standard to the legislature.
In re Thomas H., 2005 ME 123 (December 14, 2005)
Opinion on the web at http://www.courts.state.me.us/opinions/2005%20documents/05me123th.htm (last visited December 17, 2005 bgf)