December 31, 2005
Texas Attorney General Says New Divorce Fee Unlawful
Attorney General Greg Abbott has ruled that a $30 fee that the Texas Legislature tacked on to newly filed divorce cases in 2005 is unconstitutional. The fees were earmarked for educational programs designed to combat child abuse and neglect. In an opinion issued Wednesday that has the force of law unless the Legislature or a court overturns it, Abbott ruled that the Family Protection Fee would have violated the Texas Constitution's guarantee of open access to the legal system. Source: John Moritz, Star-Telegram, star-telegram.com. For the complete story, please click here (last visited December 31, 2005, reo).
Michigan Law Makes Custody Change More Difficult if Parent in the Military
Military parents serving overseas are given greater protection from losing custody of their children because of their deployment under laws signed Wednesday by Michigan Governor Jennifer Granholm. The new laws prevent a court from changing a child's custody orders or placement while a parent is on active duty unless there is convincing evidence that such a change is in the best interest of the child. The legislation was developed when Army National Guard Spc. Joe McNeilly, of Grand Ledge, Michigan reported that he lost custody of his son after spending more than a year in Iraq. Source: South Bend Tribune, southbendtribune.com. For the complete story, please click here (last visited December 31, 2005, reo). Michigan House Bill 5100 and Michigan Senate Bill 714 may be found here.
Alaska Wins Right to Set Child Support In Dispute Over Tribal Sovereignty
The Alaska Supreme Court upheld a 2001 state Superior Court decision affirming the state's right to determine child support in a custody battle involving the Native village of Northway. The ruling is the latest decision in the ongoing tribal sovereignty issue over the jurisdiction of tribal courts. The state has long argued that the rights of tribes to govern their members was limited in scope. While the decision, gave some support to the state's view, it did not completely resolve the issue. The Supreme Court had ruled in 1999 that the Native village of Northway, as a federally recognized tribe, had jurisdiction over child custody cases. Source: R.A. Dillon, Fairbanks Daily News-Miner, news-miner.com. For the complete story, please click here (last visited December 31, 2005, reo). The Slip Opinion in this case, John v. Baker, may be found here.
Illinois `New Hire’ Program Assists With Increasing Child-Support Collections by 10%
Child-support collections in Illinois increased about 10 percent to slightly more than $1 billion in 2005, Governor Rod Blagojevich announced last Tuesday. There was also a nearly 57 percent boost in money collected through the governor's New Hire Initiative, which uses state-gathered employment records to find parents. Under the New Hire program, Illinois employers must report new hires to the Illinois Department of Employment Security within 20 days. Source: Chicago Tribune, chicagotribune.com. For the complete story, please click here (last visited December 31, 2005, reo).
Scotland Cardinal Condemns Same-Sex Weddings
The Scottish Daily Record reports that the leader of Scotland's Catholics will use his New Year message to condemn gay "weddings". Cardinal Keith O'Brien will claim that by allowing same-sex unions, ministers have "condoned and endorsed trends in society that are ruinous of family life". Civil unions between gay and lesbian couples became legal across the UK this month. O'Brien will also blast the recent move by the Scottish Parliament to make divorce easier. Source: Daily Record.co.uk. For the complete story, please click here (last visited December 31, 2005, reo).
Guatemala 3rd in Child Adoption
Adoption of 3,615 children by foreigners in 2005 put Guatemala in third place globally. in 2005 there were 3,615 cases, basically to US and European families and the country was only surpassed by China and Russia. Of that number, 3,441 children were adopted by US people, 17 by Italians, 16 by Israelis, 10 by Irish citizens and 8 by Belgians. Source: Prensa Latina, plenglish.com. For additional information, please click here (last visited December 31, 2005, reo).
December 30, 2005
Case Law Development: Privacy of Divorce Court Records Held Unconstitutional
In 2003, New Hampshire enacted legislation restricting public access to financial affidavits in domestic relations proceedings. The Associated Press filed a petition for declaratory and injunctive relief arguing that the act is unconstitutional as a prior restraint under both state and federal constituitons, as a violation of state constitutional guarantees of public access to court records and as a violation of separation of powers under the state constitution. The Supreme Court of New Hampshire agreed that the statute unconstitutionally restricts access to court documents.
While recognizing that New Hampshire's constitution establishes a strong presumption that court documents should be public record, the court noted that "not every type of court proceedings has historically been open to the public; nor does public access enhance the integrity or accountability of the judiciary in every situation." The court determined that there does exist, however, a general right of access to divorce proceedings.
The court then analyzed each section of the statute to determine its constitutionality. The court upheld the first portion of the statute, which makes financial affidavits automatically confidential, finding that the provision is "a reasonable restriction on the public’s right of access to court records, and is thus constitutional, so long as the financial affidavits retain their status as presumptively open and the public is afforded procedural safeguards required by the constitutional right of access."
As to the procedures by which access to records is obtained, however, the court concluded that the statute was unconstitutional because "it places the burden of proof upon the proponent of disclosure, rather than the proponent of nondisclosure ... it abrogates entirely the public right of access to a class of court records ... and it is not narrowly tailored to serve the allegedly compelling interest of the State in protecting its citizens from identity theft...."
Finally, the section of the statute making criminal disclosure of financial affidavits, the court held that the petitioners had failed to demonstrate that criminal sanctions were threatened and that sanctions were prior restraints under either state or federal constitutional law.
Having found the procedure for access to records unconstitutional, the court determined that this section was severable from the statute and that a party opposing disclosure of a financial affidavit must "demonstrate that there is a sufficiently compelling reason that would justify preventing public access to that document" and the court must "determine that no reasonable alternative to nondisclosure exists and use the least restrictive means available to accomplish the purposes sought to be achieved."
Associated Press v. State of New Hampshire, 2004-830 (December 30, 2005)
Opinion on the web at http://www.courts.state.nh.us/supreme/opinions/2005/assoc145.htm (last visited December 30, 2005 bgf)
Case Law Development: Juvenile Courts May Hold Multiple Permanency Hearings
In a case of first impression, the Arizona Court of Appeals holds that in a proceeding for termination of parental rights, the statutory scheme does not prohibit more than one permanency hearing. The children in this case were removed from the home and placed in foster care. The court held a permanency hearing within 12 months of their entry into foster care, as required by statute, at which time the court approved a reunification plan. Three months later, at a review hearing, the court found that the case plan should be changed to severance and adoption. The state filed a motion for termination of parental rights. Six months after the initial permanency hearing, the court held a pre-trial conference. Since Arizona Juvenile Court rules of procedure require termination trials to take place within 90 days of the permanency hearing, Mother requested that the motion for termination be dismissed. The court did so, but also designated the pretrial conference as a permanency hearing. The state re-filed the petition for termination and a trial was held two months later. Thus the trial was timely if the second permanency hearing was proper but out of time if not. The court held that nothing in the statutory scheme prohibited more than one permanency hearing and affirmed the juvenile court's order terminating Mother's parental rights.
Veronica T. v. Arizona Department of Economic Security, 2005 Ariz. App. LEXIS 170 (December 27, 2005) Opinion on the web at http://www.cofad1.state.az.us/opinionfiles/JV/JV050038.pdf (last visited December 29, 2005 bgf)
Case Law Development: Flexibility in Divorce Arbitration Procedures Permitted
Couples are increasingly turning to arbitration to decide issues in their divorce. In the past year, a number of state supreme courts have addressed the issues that arise in enforcement of arbitration awards.
This past week, for example, the Michigan Supreme Court upheld a divorce judgment based on an arbitrator's decision, reversing the court of appeals which had held that the arbitration was improper because it lacked a formal hearing and the parties had not entered into a separate written arbitration agreement.
The parties stipulated to the court's entry of a particularized order for binding arbitration. The order listed the issues for arbitration and delineated the arbitrator's powers and duties. Thus, the court held it sufficient to satisfy the statutory requirements of a written arbitration agreement, as no separate writing is required by statute. Regarding the hearing, the arbitrator had, with the agreement of the parties, conducted a "shuttle" hearing (keeping the parties in separate rooms and gathering evidence and argument from each separately, then issuing the award). The court held that this procedure did not violate the arbitration act. "[The Michigan Domestic Relations Arbitration Act] does not define the term "hear" or "hearing." Moreover, it sets no procedural requirements for arbitration. Rather, it specifically eschews them.... Plaintiff presents no convincing argument that the Legislature intended all DRAA hearings to approximate traditional court hearings. We know of none."
Miller v. Miller, 2005 Mich. LEXIS 2654 (December 28, 2005) Opinion on the web (last visited December 28, 2005 bgf)
December 30, 2005 | Permalink
December 29, 2005
Convicts Become Better Parents
"A number of programs around the United States offer parenting classes to convicts serving long sentences. The classes are designed to help inmates be better parents both while incarcerated and after they return to society. James Chambers, who is serving a 30-year prison sentence, is among the students. From member station KUOW, Andrea Smardon reports." By National Public Radio Listen to the Program (last visited 12-28-05 NVS)
Interstate Guardianship Disputes
"Lillian Glasser, by all accounts, never intended to spend her twilight years in Texas. Or her $25 million fortune. A lifelong New Jerseyan, Mrs. Glasser owned a million-dollar home and a second house in Highland Park, N.J., with her husband Ben, a doctor who died in 2002.
But to the consternation of Mrs. Glasser and the New Jersey authorities, Texas now has a major grip on her life and her money - a consequence of a family feud and anomalies in probate practices from state to state. After coming to Texas last February to visit her daughter, Mrs. Glasser, now 85 and afflicted with Parkinson's disease and Alzheimer's, fell subject to the Bexar County Probate Court in San Antonio. Placed under Texas guardianship after her daughter attested that her mother resided there, Mrs. Glasser is largely confined to a gated apartment complex in Alamo Heights, a small city surrounded by San Antonio, under 24-hour care and forbidden to return to New Jersey while a storm of litigation swirls around her.
Beyond the personal drama, the case highlights the checkerboard practices of local probate courts, which govern the transfer of property from people who die or are declared incompetent. The courts are not federally regulated, but in response to a growing number of interstate disputes, the National Conference of Commissioners on Uniform State Laws is drafting nationwide probate standards similar to those in the field of child custody." By Ralph Blumenthall, New York Times Link to Article (last visited 12-28-05 NVS)
December 28, 2005
Texas Attorney General says Deficit Reduction Act of 2005 Will Slash Millions of Dollars from Texas Child Support Program
Texas Attorney General Greg Abbott says that the Deficit Reduction act of 2005, which passed the Senate on Wednesday by a 51-50 vote, contains provisions that slash hundreds of millions of dollars to run the Texas child support program. Minor alterations will send it back to the House — which originally passed the bill 212-206 — for final approval. The bill precludes the use of incentive payments states receive for exemplary child support performance as a match to obtain additional federal funds. Texas officials claim that the Bill will cost Texas more than $200 million between October 2007 and August 2010, which translates into a possible $2 billion drop in child support collections over that four-year period. Source: Seguin Gazette-Enterprise, seguingazette.com. For the complete story, please click here (last visited December 27, 2005, reo).
Proposed District of Columbia Domestic Partnership Bill Covers Unmarried Heterosexual Couples and Gays
A domestic partnership bill that the District of Columbia Council is expected to pass on final reading January 4 is likely to add fuel to a longstanding debate among social scientists and conservative religious groups that involves heterosexual couples as much as gays, according to advocates on both sides of the issue. The bill, which provides domestic partnership benefits to gays and unmarried heterosexual couples, is opposed by some groups who claim such measures account for the decline of the number of people marrying. Councilmember Phil Mendelson, who introduced the Domestic Partnership measure, disagrees. He says that the bill is not a marriage bill and does not provide many of the benefits of marriage. He contends the bill will not compete with the benefits of marriage. Source: Lou Chibbaro, Jr., Washingtonblade.com. For the complete story, please click here (last visited December 27, 2005, reo).
Battle Over Mississippi's Only Abortion Clinic Continues
Mississippi's only abortion clinic is waiting to hear whether it will be granted a new state certification to continue performing its full range of procedures. The requirement to meet higher standards came after an aggressive push by anti-abortion advocates, who are trying to shut down the clinic. Earlier this year, a federal judge knocked down a recently enacted state law that would have barred early second-trimester abortions at the clinic. The law would have prevented abortions after 13 weeks' gestation, except in places with ambulatory surgical center standards. The clinic said it was ineligible for such a license in the state. Gov. Haley Barbour urged lawmakers to pass another law after the judge's injunction. That law, which took effect July 1, made the clinic eligible to apply for a license to meet those ambulatory surgical standards. Unless the clinic gains the certification, it will be illegal for the clinic to perform abortions beyond the first trimester. Source: Julie Goodman, The Clarion Ledger, clarionledger.com. For the complete story, please click here (last visited December 27, 2005, reo).
December 27, 2005
Case Law Development: Another Opinion on the Constitutionality of Ohio's Domestic Violence Statutes
The Eighth District Ohio Court of Appeals has joined the 12th district in upholding the constitutionality of the state's domestic violence assault laws. The court held that the state's constitutional amendment providing that "the state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage" is designed merely to prohibit the creation of domestic partnerships and other marriage substitutes and was not intended to have an effect on domestic violence statutes. (See the December 12th post on Ohio's 12th district court of appeals opinion in State v. Carswell).
State v. Burk, 2005 Ohio 6727; 2005 Ohio App. LEXIS 6078 (December 20, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-6727.pdf (last visited December 26, 2005 bgf)
See also news items on the opinion, reporting that further appeals are expected.
Case Law Development: Antenuptial Agreements Valid at Execution are Enforceable at Divorce unless Spouse is Stripped of All Marital Interests
The Supreme Court of Massachusetts explained the application of its two-part test for enforcement of antenuptial agreements in a case in which Wife had agreed to waive alimony and nearly all rights to assets acquired during the marriage, even though she had substantially less earning capacity than husband and had been a full-time mother and homemaker for most of the marraige. The court found the agreement valid at the time of execution because, measured at the time the parties were marrying, the agreemend was fair and reasonable, Wife's had been represented by counsel and there was no evidence of fraud. In the "second-look" at the agreement at the time of the divorce, the court held that "An agreement, even a one-sided agreement that leaves the contesting party with considerably fewer assets and imposes a far different lifestyle after divorce than she had during the marriage, is fair and reasonable unless the contesting party is essentially stripped of substantially all marital interests." (internal quotations removed) The court emphasizes that "Where there is no evidence that either party engaged in fraud, failed to disclose assets fully and fairly, or in some other way took unfair advantage of the confidential and emotional relationship of the other when the agreement was executed, an agreement will be valid unless its terms essentially vitiate the very status of marriage."
2 judges dissented, finding the Wife's waiver of alimony to be unfair and unreasonable.
Austin v. Austin, 2005 Mass. LEXIS 727 (December 21, 2005)
Opinion avaiable on the web (last visited December 26, 2005 bgf)
Case Law Development: Dissolution Court has Exclusive Jurisdiction to Interpret and Enforce Property Settlement
The Supreme Court of Indiana reinforced the exclusive jurisdiction of a dissolution court in holding that a civil trial court had no jurisdiction to decide an action involving enforcement of a property settlement agreement that had been incorporated into a dissolution decree. Under that agreement, Husband assigned to Wifer a promissory note and mortgage, payable on the sale of certain real property. After the sale, Husband paid Wife $ 23,000. Wife then filed an action in the trial court, contending that she was entitled to $ 103,000. Husband moved for lack of jurisdiction. THe trial court and court of appeals both found that jurisdiction was proper, holding that the parties' settlement agreement unambiguously assigned a promissory note and mortgage to Wife and the dissolution court did not have exclusive jurisdiction to enforce that agreement.
The Supreme Court of Indiana disagreed and reversed. The court found that the opinion required interpretation and, thus, was within the dissolution court's exclusive jurisdiciton. The court conceded that Wife was asking only for "clarification and enforcement--not modification--of the property settlement agreement. But even under these circumstances, we believe the interests of judicial efficiency and comity are best served by requiring litigants to seek clarification and enforcement of property settlement agreements in the dissolution court."
The dissenting judge viewed the case as on in which Wife's claim "was simply a suit to collect on the note that was assigned to her in the divorce proceedings and therefore [she] was free to seek enforcement of the note in any court of competent jurisdiction. Because she also sought foreclosure of a mortgage, she was required to proceed in a court of the county where the real estate is located."
Fackler v. Powell, 2005 Ind. LEXIS 1130 (December 20, 2005)
Opinion on the web at http://www.in.gov/judiciary/opinions/pdf/12200501fsj.pdf (last visited December 26, 2005 bgf)
December 26, 2005
Compensating AIDS Infected Libyan Children
"The Bulgarian government has announced reaching an agreement with Libya to establish a special fund for helping the families of the AIDS infected Libyan children, in what seems to be an introduction for a comprehensive settlement for the five Bulgarian nurses and the Palestinian doctor case, who are sentenced to death in a case where they are accused of infecting these children with AIDS." By ArabicNews.com Link to Article (last visted 12-25-05 NVS)
Play Centres for Tsunami Children
"A sea of smiling faces greets us as we enter the Kaluthavalai children's centre near Batticaloa in eastern Sri Lanka. The play centre, which was set up by Swiss non-governmental organisation Terre des hommes, is trying to help children come to terms with the tsunami."
- "Over the last year, Terre des hommes has set up 20 play centres for 4,500 children in eastern Sri Lanka.
- There are more than 100 local instructors working in these centres.
- Children aged 5-18 attend the centres, which after school.
- Funding comes from Swiss Solidarity and ECHO, the European Commission's humanitarian aid programme."
By SwissInfo Link to Article (last visited 12-25-05 NVS)
Ex-Foster Children Learn About Home Ownership
"Anita Alston sleeps on an air mattress because she can't afford a bed yet. Just up the road, Katrina Lawson is using bed sheets for curtains until she can buy the real thing.Both women in their 20s have learned plenty about working hard and saving money since moving into their first homes last month. As former foster children -- two of the roughly 20,000 each year who ''age out" of the system without ever having a permanent home -- they didn't need another lesson in doing without.
''The only thing I was ever concerned about was food and a roof over my head for me and my daughter," said Lawson, a native of Peoria, Ill., who moved to Atlanta in 2000 after living with four foster families since she was 7. Alston, 23, and Lawson, 24, are the first two in the nation to buy homes through a new program geared toward teaching former and current foster children the financial skills most young adults learn from parents, siblings, or family friends." By Doug Gross, Associated Press, The Boston Globe. Link to Article (last visited 12-25-05 NVS)