Friday, March 31, 2006
Case Law Development: Alternating Custody Between Two States Every Two Weeks Not an Abuse of Discretion
Mother, while a junior in high school, became pregnant from a 21-year-old male. She signed a parenting agreement providing for joint custody while she was still a minor. When she later wanted to move to Wyoming, she sought to void the agreement on the ground of her minority when signing it. The court agreed and gave joint custody to Mother and Father, alternating every two weeks, but when the child entered kindergarten Father was to have primary physical custody. The Idaho Supreme Court upheld this custody decision, noting that:
"Doubtless the splitting of custody in the fashion done by the trial court creates issues. Uprooting a child every two weeks to travel and live in alternating locations with alternating people raises serious concerns as to the welfare of the child." However, as there was expert testimony from a mental health professional supporting the decision, the court fount that the trial court did not abuse its discretion."
Nor did the court agree with Mother that the court could not prospectively change custody when the child entered kindergarten. The court noted that a child entering school is a change in circumstances and commented: "Against the background of the parents sharing custody equally it is appealing to say that the trial court should have ordered a further hearing when time elapsed and school became imminent, necessitating that one parent's time with the child be expanded and the other's diminished. However, the trial court did not abuse its discretion in doing otherwise."
State v. Hart, 2006 Ida. LEXIS 41 (March 22, 2006)
Legislative Development: Michigan Reforms Evidence Law to Support Prosecution of Domestic Violence Cases
While prosecutors await the United States Supreme Court's decisions in Davis v. Washington, 05-5224, and Hammon v. Indiana, 05-5705, (arguments were heard last week) regarding the admissibility of 911 tapes in domestic violence cases, Michigan Governor Granholm has signed into law legislation that allows prosecutors to use evidence of a victim's past statements and a defendant's previous behavior in domestic violence cases. The domestic violence bills are Senate Bills 120 and 263 available at http://www.legislature.mi.gov
Clicke here for the Associated Press article on the legislation (last visited March 31, 2006 bgf)
A gay Maryland father who was forced to choose between custody of his son and living with his male partner has won court permission to reunite the household. On Monday, a Montgomery County judge ended the four-year-old cohabitation ban set in place by an Alexandria, Va., court. The 2002 ruling awarded custody to the father, contingent upon his partner moving out. The couple moved to Maryland, which is considered friendlier to same-sex couples.
Click here to read the Baltimore Sun article about the case, with commentary by family law Professor Jane Murphy of the University of Baltimore. (last visited March 31, 2006 bgf)
Massachusetts may be placing family court procedures on a collision course with the First Amendment. Last week, a Massachusetts family court judge issued an order restraining the distribution of a book entitled "Exposing the Corruption in the Massachusetts Family Courts." The author, Kevin Thompson, is a non-custodial parent who feels betrayed by a judicial system that he calls "anti-father." Thompson claims that his book is "banned" in the Boston sense of that word. But according to the order, which Thompson received by mail last Friday, impounding the book is necessary to protect the privacy interests of the minor child. In other words, the book includes information about Thompson's 4-year-old son, which violates a minor's privacy in a legal proceeding. Concern for a child's privacy, however, does not explain some of the circumstances surrounding the restraining order. For example, the issuing judge is also the subject of an entire section of Thompson's book: Chapter 17, "Judge Mary McCauley Manzi." Canon 3 of "The Code of Conduct for United States Judges" requires a judge to recuse him or herself when "impartiality might reasonably be questioned."
Click here to read the entire story by Wendy McElroy, FOX News (last visited March 31, 2006 bgf)
Case Law Development: Massachusetts Law Prohibits Marriage to Out-State Residents if Marriage Unavailable in their Home State
The Supreme Judicial Court of Massacusetts has affirmed a trial court's decision that it would not enjoin enforcement of a 1913 state law which prohibits marriage to out-of-state residents in Massachusetts if their union would not be permitted in their home state. The court agreed that judgment for the defendants should be entered against the plaintiffs who reside in Connecticut, Maine, New Hampshire, and Vermont because same-sex marriage is prohibited in those States. As to the New York and Rhode Island plaintiffs, the court directed that their cases should proceed in the Superior Court, on an expedited basis, for a determination whether same-sex marriage is prohibited in their states.
In his concurring opinion, Judge Spina interpreted the 1913 law to require that Massachusetts bar all same-sex marriages by out-of-state residents unless the state affirmatively allows such marriages.
Cote-Whitacre v. Department of Public Health, 2006 Mass. LEXIS 110 (March 30, 2006)
Opinion on the web (last visited March 31, 2006 bgf)
Thursday, March 30, 2006
"A life-size sculpture of a naked Britney Spears kneeling on a bearskin rug as she gives birth will be on display next month at Brooklyn's Capla Kesting Fine Art gallery. The sculpture is to appear next to a display case filled with materials from abortion opponents. It was created by Daniel Edwards, who said he never spoke to the 24-year-old pop star, and fashioned her face and figure from photographs. "I admire her. This is an idealized figure," Edwards said. "Everyone is coming at me with anger and venom, but I depicted her as she has depicted herself -- seductively. Suddenly, she's a mom."" By Verena Dobnik, Chicago Sun-Times Link to Article (last visited 3-29-06 NVS)
"David Hasselhoff has been ordered to stay away from his estranged wife. The judge has told the 'Baywatch' star not to go within 150 yards of Pamela Bach - unless he is on a court-ordered visit to see their two daughters." By femalefirst.co.uk Link to Article (last visited 3-29-06 NVS)
"A judge has ordered lawyers for Michael Jackson and ex-wife Debbie Rowe to submit copies of missing papers from their divorce file. Superior Court Judge Robert Schnider on Monday ordered Rowe’s lawyer, Marta Almli, to submit duplicate copies of Rowe’s 2001 motion to terminate her parental rights to her two children with Jackson, and an emergency motion filed more than two years later seeking temporary exclusive custody and visitation rights." By montgomeryadvertiser.com. Link to Article (last visited 3-29-06 NVS)
Wednesday, March 29, 2006
Missouri Appeals Court Rules State Cannot Use Previous Out-State Domestic-Violence Convictions to Increase Jail Time
A three-judge Missouri Court of Appeals (Western District) panel sitting in Kansas City has ruled that the state cannot use previous domestic-violence convictions in other states to support a sentence of life without parole for a Missouri offender. The decision reversed a lower court sentence of life without parole for a defendant who had two Illionois domestic-violence convictions before he killed his girlfriend.
The court reasoned that the plain language of a Missouri statute “defines prior and persistent domestic violence offenders as people who have committed domestic assault offenses. Likewise, the plain language of section 565.063.1(1) limits the definition of domestic assault offense to four different crimes under Missouri law. The statute does not mention any domestic violence crimes from other states, so the legislature is presumed to have intended to limit the definition of domestic assault offense to Missouri crimes. Therefore, the trial court erred in sentencing [[the defendant] as a prior and persistent domestic violence offender to life imprisonment without the possibility of probation or parole.” News Source: Joe Lambe, The Kansas City Star, kansascity.com. To read a copy of the news story written about this case, please click here (last visited March 29, 2006, reo) To read a copy of the slip opinion of this decision, please click here (last visited March 29, 2006, reo).
In an ongoing custody battle between relatives and the foster parents caring for a 4-year-old boy, Florida's 5th District Court of Appeals awarded custody to the foster parents on Monday. The child's cousin and her husband have been seeking to adopt the boy for more than 2 1/2 years. The case has generated wide-spread debate on whether the state's policy to favor blood relatives over foster parents helps or hurts children. Source: WFTV.com. For the complete story, please click here (last visited March 29, 2006, reo).
A Montgomery County, Maryland county judge ruled Monday that a gay father could cohabit with his gay partner and continue with custody of his teenage son. A Virginia court had ruled in 2002 that the father could not cohabit with his gay partner and continue with custody of the child. After the Virginia ruling, the father’s partner had moved out of the household and then both the partner and the father moved to Maryland. University of Baltimore law professor Jane Murphy is quoted by the Baltimore Sun as observing that "The rule as it has evolved in Maryland is that that kind of arrangement is not automatically ruled out. You would have to show a nexus between the father's living arrangement and harm to the child." Source: Andrea F. Siegel, Nia-Malika Henderson, Baltimore Sun, baltimoresun.com. For the complete story, please click here (last visited March 29, 2006, reo).
Wisconsin Appeals Court says City can Confine Persons with Tuberculosis in Jail until Treated for Contagious Disease
The Wisconsin 1st District Court of Appeals ruled Monday that a city can confine a person with tuberculosis in jail until that person receives treatment for the disease. The court agreed with an argument by the city of Milwaukee that the homeless individual was a danger to herself and the community because the bacterial infection can easily spread through the air. The court ordered the homeless person confined for nine months. Source: WISN-TV, Milwaukee, themilwaukeechannel.com. For the complete story, please click here (last visited March 29, 2006, reo).
William Mitchell College of Law Professor Peter Knapp and University of Minnesota Professor Dale Carpenter both suggest that it is doubtful that the Minnesota Supreme Court will follow Massachusetts and declare that the state constitution allows gays to marry. Their views and a general history of the same-sex marriage debate in Minnesota can be found in a written story and audio interviews on Tuesday's Minnesota Public Radio web site. Source. Elizabeth Tawwicki, Minnesota.publicradio.org. For the complete story and audio interviews, please click here (last visited March 29, 2006, reo).
Tuesday, March 28, 2006
Case Law Development: Constitutionality of Applying Ohio's Criminal Domestic Violence Laws to Unmarried Couples
As reported in our news blog posting of March 26th, the Ohio Court of Appeals for the second appellate division has now framed up the issue of whether Ohio's Constitution prohibits charging unmarried individuals with domestic violence crimes when they batter their paramours. Two other Ohio courts of appeals have held that the constitutional amendment that prohibits extending the benefits of marriage to unmarried couples was not intended to apply to criminal domestic violence laws. (See case development posts of December 27th and December 16th of last year). Now the second appellate division has provided the contrary view.
The court agreed with the general principal applied by its sister courts that statutes should be construed as consistent with the constitution if possible, but in this court's opinion, the court was not authorized to construe both the statute and the constitution so as to avoid a conflict. The court found the plain language of the Defense of Marriage amendment requires that "a legal status of a de facto marital relationship shall neither be created nor recognized in Ohio as having the same effect as the legal status of a de jure marital relationship." The court was unwilling to accept an argument that some of the incidents extended to married couples (such as protection from domestic violence) were not intended to fall within the scope of the amendment, since the amendment itself is without these exceptions. As the court noted, "It is tempting to speculate which of potential exceptions to this general principle would have found favor with a majority of the Ohioans who voted for the Defense of Marriage amendment, but this would be mere speculation. In our view, the second sentence was intended to avoid the prospect of the Ohio General Assembly, or the Ohio courts, establishing exceptions to its reach. In this connection, it is useful to remember that the Defense of Marriage amendment was proposed, and adopted, amidst concerns that the concept of traditional marriage was being eroded by judicial rulings, among other factors."
Applying this interpretation to the Ohio criminal domestic violence statute, the court concluded that the statute's protection of a "person living as a spouse," created exactly the sort of quasi-marital relationship that the Defense of Marriage amendment was designed to prohibit.
State v. Ward, 2006 Ohio 1407 (March 24, 2006)
Opinion on the web (last visited March 27, 2006 bgf)
The Eighth Circuit Court of Appeals affirmed a final forfeiture order of a husband's seized property where Wife lacked the requisite ownership interest under Missouri law for her and her husband to have held a tenancy by the entirety in the forfeited property. Wife had attempted to argue that Missouri's dissolution statutes, which provide for a deferred community property system, created a tenancy by the entirety interest, even though the property was only in Husband's name and even though the couple were not divorced or divorcing. The Eighth circuit noted that the dissolution statute's treatment of property as marital or community property applied only for the purposes of a divorce proceeding and could have no effect outside that context. For a couple to create a tenancy by the entireties in real estate, the couple would have to jointly title the property. Thus, Wife's Eighth Amendment claim that the forfeiture constituted an excessive fine failed for lack of standing.
US v. Cochenour, 2006 U.S. App. LEXIS 7092 (8th Cir. March 22, 2006)
Opinion on the web (last visited March 24, 2006 bgf)
The United States Court of Appeals for the Fourth Circuit affirmed a trial court's dismissal of visitation claims in a suit under the International Child Abduction Remedies Act. The court held that the Act provides remedies only for violations of the Hague Convention on the Civil Aspects of International Child Abduction. Since the treaty does not address visitation or access issues outside the context of wrongful removal or retention of a child, the federal courts have no jurisdiction under the act. Rather, parties seeking to enforce visitation right should file suit in state courts.
A dissenting judge would have interpreted the act to cover these issues.
Cantor v. Cohen, 2006 U.S. App. LEXIS 6915 (4th Cir. March 21, 2006)
Opinion on the web (last visited March 26, 2006 bgf)
The Ohio Court of Appeals traces issues of jurisdiction over child support orders in a case involving a Mother seeking to enforce child support orders from Puerto Rico in the Ohio courts.
Mother had registered and sought to enforce an order of support and for arrearages issued by the court in Puerto Rico. The entire family had lived in Puerto Rico, where the original child support ordered had been issued in 1971. After the divorce, all the parties had moved to New York. The court noted that, at that point, New York had effectively obtained exclusive and continuing jurisdiction. Thus the Puerto Rican court was without jurisdiction to have issued an arrearage judgment at that time. However, Mother subsequently moved back to Puerto Rico with child. Thereafter, the court had jurisdiction to issue a new support order for the child's prospective care. The court held that, although Puerto Rico did not have jurisdiction to enforce the 1971 support order for arrears that accrued after New York obtained jurisdiction, it did have jurisdiction to enter a support order for the prospective care of the child.
Thus, the trial court's judgment regarding the registration of the Puerto Rico support order concerning the child's prospective care was affirmed. However, the trial court's order which enforced Puerto Rico's attempt to collect the arrears stemming from the 1971 order was vacated, and the case was remanded for recalculation of arrears that accrued from 1971 until 1976.
Cruz v. Cumba-Ortiz, 2006 Ohio 1362, 2006 Ohio App. LEXIS 1230 (March 23, 2006)
Case Law Development: In Testimony Regarding Vailidty of Marriage, New Jersey Court Limits Party's Ability to Invoke the Fifth Amendment Privilege against Self-Incrimination
The New Jersey Appellate Court reversed a trial courts order granting a judgment of divorce and dismissing Husband's claim for an annulment as the judge had suggested and then allowed wife to assert her 5th Amendment privilege against self-incrimination. The court held that, because Wife's testimony was also being given in support of her counterclaim for divorce, she had waived any protection afforded by the privilege. Moreover, there was no evidence that Wife actually faced potential criminal prosecution based on her testimony. Thus, the court held that Husband had been denied meaningful cross-examination on the issue of the validity of the marriage.
Attor v. Attor, 2006 N.J. Super. LEXIS 84 (March 24, 2006)
Opinion on the web (last visited March 28, 2006 bgf)
Case Law Development: Res Judicata Does not Bar Separate Civil Action to Divide Property Unaddressed by a Divorce Decree
The Arizona Supreme Court holds that a divorced spouse who claims to be a tenant in common with his or her former spouse may bring a separate civil action to obtain relief when a dissolution decree fails to mention or does not dispose of real property.
In this case, husband sued his former wife to recover his share of community property that he alleged she fraudulently induced him to transfer to her separate property trust. The trial court dismissed Husband's action on the basis that Husband should have brought a motion to reopen the divorce judgment. The court of appeals affirmed. However, the Arizona Supreme Court determined that the state's statutes dictated otherwise. Arizona statutes provide that "the community, joint tenancy and other property held in common for which no provision is made in the decree shall be from the date of the decree held by the parties as tenants in common ..." The court found that this language provided the legislative intent that claim preculsion principles should not bar a separate civil action, noting that California and Texas law come to the same conclusion.
Dressler v. Morrison, 2006 Ariz. LEXIS 42 (March 23, 2006)bgf
Monday, March 27, 2006
"When the Florida Legislature handed off child welfare to community-based groups in 2000 — a move designed to privatize the state system that cares for abused and neglected children — it was expected local nonprofit groups would replace the beleaguered state agency. That hasn't always happened. Instead, for-profit companies that stand to make millions on insider deals are wowing Wall Street with lucrative state contracts and profits.Providence Service Corporation, a publicly traded Arizona company, owns or manages three companies that have garnered more than $120 million in state child welfare contracts in at least 11 of Florida's 22 child welfare districts. One of its partners, Camelot Community Care, a nonprofit child social-service provider in Florida and five other states, has a nearly $100 million contract to provide child welfare in Southwest Florida, taking over responsibility from the Florida Department of Children & Families." By Jeff Cull & Amy Williams, news-press.com Link to Article (last visited 3-26-06 NVS)