Friday, June 30, 2006
Case Law Development: Indiana Supreme Court Joins States Allowing Child Support Credit for Social Security Disability Payments
The Indiana Supreme court, in a case of first impression, holds that a disabled parent is entitled to have Social Security disability benefits paid to a child because of that parent's disability credited against their child support obligations. The court contrasted its holding with that of its prior determination that Social Security retirement benefits paid to children as a result of a parent's retirement need not be credited to the parent's child support, finding that payments made on behalf of a Social Security disability recipient present a stronger case for allowing a credit than a retirement recipient. "Disability impacts a parent's earning capacity and, therefore, a child's standard of living, in a fundamentally different way than does retirement. The trial court is in the best position to assess the impact of retirement in any particular case."
Brown v. Brown, 2006 Ind. LEXIS 560 (June 29, 2006)
Opinion on the web (last visited June 30, 2006 bgf)
The infant's physician informed a children services agency that the infant sustained a skull fracture, that the mother's explanation was possible, but suspicious, that the mother waited until the day after the injury to seek medical attention, and that the physician felt comfortable sending the infant home with the mother. After consulting with her supervisors and the assistant attorney general, the caseworker interviewed the parents. Concluding that there was a substantial danger to the infant's safety, the caseworker took the infant into protective custody. At a state court hearing, the parents agreed that the infant should be placed in the temporary custody of the agency, which subsequently returned the infant to her parents. In the § 1983 action, the court determined that the district court erred in concluding that the state court's finding that the removal was justified precluded plaintiffs from seeking damages for the alleged violation of due process. The court held that defendants were entitled to qualified immunity because officers of reasonable competence could have disagreed as to whether there were emergency circumstances justifying the removal of the infant.
Gomes v. Wood, 2006 U.S. App. LEXIS 16104 (June 17, 2006)
Opinion on the web (last visited June 29, 2006 bgf)
Thursday, June 29, 2006
"The case of a poor mother from the Chinese countryside hired to breastfeed an affluent city-dweller's baby has stoked controversy over the ethics of the ancient practice of wet nursing. Professional wet nurses have appeared in major cities across China, the Beijing News reported Wednesday, fueled by rising incomes and a demand for healthy milk. China has been dogged by a number of health scares regarding bogus baby milk formula. In 2004, at least 13 babies died from malnutrition in the country's impoverished eastern province of Anhui after being fed fake baby milk." Reuters, Yahoo News Link to Article (last visited 6-28-06 NVS)
"Two dogs that survived Hurricane Katrina are at the centre of a custody battle between their old owners in New Orleans and their new ones in Florida. Master Tank and Nila were owned by Steven and Dorreen Couture of St. Bernard Parish. When Katrina destroyed their home last year, they had to evacuate and left the dogs at a local animal shelter. When the Coutures returned five weeks later, they learnt the dogs had been sent to a shelter near St. Petersburg, where they were put up for adoption. The Coutures came to Florida this week trying to get their dogs back, but the new owners have refused to return the animals." Reuters, Yahoo News Link to Article (last visited 6-28-06 NVS)
"Nick Nolte will probably opt to stay home the next time his kid throws a party.The Affliction star has reached a settlement with the parents of a teenage girl who said that she was date-raped during a party at the actor's Malibu home. The family sued Nolte on their now-18-year-old daughter's behalf in 2004, and the case was headed to trial after a judge refused to dismiss the lawsuit last month." By Natalie Finn, Yahoo News Link to Article (last visited 6-28-06 NVS)
"Oscar-winning actor Nicolas Cage has donated two million dollars to establish a fund for former child soldiers, Amnesty International announced. The money will be used for rehabilitation shelters, medical services and psychological and reintegration services for children forced to take part in armed conflicts world-wide, the human rights monitor said. "Nicolas has worked tirelessly to raise awareness about the horrors faced by child soldiers and other human rights tragedies," Amnesty USA's executive director Larry Cox. "We commend his efforts and appreciate his generosity."" AFP, Yahoo News Link to Article (last visited 6-18-06 NVS)
"Gene Simmons of the rock group Kiss has settled a defamation lawsuit brought against him by a former girlfriend who charged that he made her sound like a "sex-addicted nymphomaniac" during a documentary shown on VH1. The settlement, announced Wednesday, said the "amicable resolution" of Georgeann Walsh Ward's lawsuit over the way she was portrayed in the documentary "When Kiss Ruled the World" involved no payment of money to her." By Samuel Maull, AP, Yahoo News Link to Article (last visited 6-28-06 NVS)
"Nestled in a cradle at Moscow's Hospital Number Two, the three-week-old baby girl has no name -- or much of a future. Born to an HIV-positive mother, she was abandoned at birth and is now destined to grow up in an orphanage.In fact, the infant has a fair chance of perfect health, since two-thirds of children born of HIV-positive mothers are not themselves infected, although it will take doctors 18 months to make a definite diagnosis, said Yulia Vlastnaya, head of the hospital's child service. Even so, the nameless, big-eyed baby has already been condemned to a childhood shut away from society. And "as is the case for all children kept in institutions," that in turn means slower development, Vlastnaya said." By Adele Brard, AFP, Yahoo News Link to Article (last visited 6-28-06 NVS)
"Pregnant pop princess Britney Spears is baring nearly all on the cover of Harper's Bazaar magazine. The singer of "... Baby, One More Time" posed in the buff for the cover of the August issue; there's also a photo spread inside." AP, Yahoo News Link to Article (last visited 6-28-06 NVS)
Wednesday, June 28, 2006
Regular readers of this Blog may be interested in the commentary on no fault divorce and making an award of spousal support that appears in the Toronto Star and is authored by University of Toronto law professor Martha Shaffer. Professor Shaffer analyzes last week’s decision by the Canadian Supreme Court in Leskum v. Leskum, a no fault divorce action in which Ms. Leskum remained unable to work some eight years after the marriage because of depression caused by her ex-husband's adultery. The Supreme Court indicated that a trial judge could consider the consequences of the husband's conduct (the depression) on the wife when awarding spousal support. Professor Shaffer suggests that the decision is not all that ground breaking, rather, “the court could have carefully analyzed Leskun's situation to show how she was entitled to ongoing spousal support irrespective of Mr. Leskun's affair. Unfortunately, it did not. The result is a judgment that may be prone to misinterpretation.” Source. Martha Shaffer, Toronto Star, thestar.com. To read Professor Shaffer's commentary, please click here (last visited June 28, 2006).
A decision in Britain Tuesday has apparently ended the automatic ban on identifying children involved in family court cases, even after proceedings have ended. The Court of Appeal ruled that Simon Clayton, who spent more than three years in dispute with his former wife Aneta over contact with their daughter, Estelle, 10, should have the right to talk openly about his case. The court said that judges will balance whether any entitlement to anonymity should outweigh the right to freedom of expression. However, publicity will not be allowed where it could harm or cause distress to a child. Source. Frances Gibb, Times On Line, timesonline.co.uk. For the complete story, please click here (last visited June 28, 2006).
A Massachusetts Superior Court judge heard arguments Tuesday that a gay couple should be allowed to marry in that state because Rhode Island law does not explicitly ban same-sex marriage. The couple were denied a marriage license in 2004, however, the Massachusetts Supreme Court ruled in March that a 1913 state law bars they from marrying in Massachusetts if they live in states where their marriage is banned. A majority of the justices said the statute would not bar a marriage if Massachusetts Rhode Island does not ban them. Source. Brian MacQuarrie, Boston Globe, boston.com. For the complete story, please click here (last visited June 28, 2006).
Tuesday, June 27, 2006
Case Law Development: No Need for Independent Counsel for Children in TPR Action if Children Do Not Consistently Disagree with GAL Recommendations
The Ohio Court of Appeals held that when the children who are the subject of a juvenile court proceeding to terminate parental rights do not express a consistent wish for placement contrary to the recommendation of their guardian ad litem, it is not necessary for the trial court to appoint independent counsel for the children. The court noted that courts should conduct an in-camera, recorded, interview with the child to determine whether independent counsel is needed whenever a child's wishes are in conflict with the child's GAL's recommendation. Courts should take into account "the maturity of the child and the possibility of the child's guardian ad litem (GAL) being appointed to represent the child." Because the magistrate in this case complied with these requirements and because the children were inconsistent in their expressed desire to live with their mother, the court of appeals found no error in refusing to appoint separate counsel for them.
In re Graham, 2006 Ohio 3170 (June 23, 2006)
Opinion on the web (last visited June 26, 2006 bgf)
Case Law Development: Police Interference with Parent's Visitation Rights Did Not Violate Parent's Substantive or Procedural Due Process
The United States Court of Appeals for the Ninth Circuit examines the constitutional interests at stake when police act in visitation disputes. The case involved an ongoing custody and visitation dispute. Father had sole custody of the son and Mother had visitation rights. Police were regularly called upon to intervene when the parent's transferred the child. In this case, Father came to pick up son from Mother and Mother insisted that she had a week of additional visitation time. Father then called the police to assist in retrieving his son. Mother alleged that Father knew the police officer that was called and that he and the officer had conspired to deprive her of visitation. The district court found sufficient factual questions regarding this alleged conspiracy to deny defendant's motion for summary judgment.
In reversing the district court, the court of appeals acknowledged that Mother had a liberty interest in her visitation with her son, but held that the officer's acted reasonably in interpreting the custody order and the deprivation of one week of visitation did not rise to the level of a federal constitutional violation.
The court noted the prudential considerations supporting this holding: "In so holding, we are mindful that this case arises in the intersection of several fields of law where federal courts have shown the greatest hesitation in creating new federal mandates. We will not disregard this justifiable caution lightly. Substantive due process vindicates those interests which are fundamental and, contrary to [Mother’s] theory, may not to be used as a font of tort law to be superimposed upon whatever systems may already be administered by the States.... If every custody dispute, including ones only concerning a weekend or even an hour of visitation, can give rise to a federal claim necessitating federal interpretation of a state custody order, federal courts could rapidly become de facto family courts. Such a result is not permitted by Supreme Court jurisprudence."
The court noted the fact-specific nature of its holding: "We need not hold that visitation rights will never give rise to a substantive due process claim.... We need not reach the question whether interference with a lengthy visitation period or repeated interference with shorter periods may give rise to a cognizable substantive due process claim. We need not decide here whether interference that affects the existence of visitation rights altogether, rather than discrete instances of visitation, might give rise to a viable claim. Nor need we reach the question whether custodial parents may bring suit. "
As to the procedural due process analysis, the court concluded that no pre-deprivation hearing was required in enforcing this visitation order, as Mother could have sought to have the order clarified at an earlier time and the state's interest in promptly enforcing these orders was significant.
Justice Silverman wrote separately to note his disagreement over the court's statement that “'a single instance of visitation, of a single week in duration', is not a fundamental right.... Even though a non-custodial parent may have visitation “only” every other weekend, to some parents that weekend is the moon and the stars." However, under the circumstances of this case, given the reasonableness of the police officer's actions, he agreed that the district court should be reversed.
Brittain v. Hansen, 9th Circuit No. 03-57012 (June 22, 2006)
Opinion on the web (last visited June 26, 2006 bgf)
Case Law Development: Death of Biological Parent Severs Step-parent/Step-child Relationship for Purposes of Adoption Statute
After her father died and shortly after she turned 18 years old, Daughter consented to her adoption by Stepmother. Daughter's biological mother objected. The probate court granted the adoption and the Alabama Court of Appeals reversed. Alabama adoption statutes authorize adult adoption of persons related by blood or affinity. The court noted that Daughter's affinity relationship with her father's wife was extinguished upon the death of the her father. Thus, the court held that "Daughter, at the time of the purported adoption, was not a "stepchild by marriage" of the stepmother" under Alabama statutes.
In a concurring opinion, Judge Murdock noted that the biological parent's constitutional rights were implicated by allowing an adoption in this instance based solely on the consent of the Daughter. "The fundamental nature of the parent-child relationship and the importance of the family in our society, however, belie the notion that a child, merely by turning 19 years of age, can, without the consent of his or her parent, unilaterally sever the parent-child relationship."
Justice Bryan's concurring opinion provided some additional guidance for Stepmother and Daughter: "...most assuredly no court order or the lack of a formalized judgment of adoption can deter the nonlegal relationship of love and affection between the daughter and the stepmother. Moreover, the daughter and the stepmother may accomplish many of the results they may be attempting to achieve through adoption by other legal avenues, such as utilizing wills, living wills, powers of attorney, trust agreements, and various other legal mechanisms."
Hays v. Hays, 2006 Ala. Civ. App. LEXIS 352 (June 23, 2006) bgf
Monday, June 26, 2006
"A jury convicted a 79-year-old woman of malice murder and three related counts for shooting her ex-boyfriend in the head during a jealous rage. After deliberating for approximately three hours, the eight-woman, four-man jury rejected Lena Driskell's claim that she was insane when she shot Herman Winslow, the man she said bought her a car, took her on innumerable trips and threw her a birthday party during their 14-month relationship." By Bo Rossner, Court TV, Link to Article (last visited 6-25-06 NVS)
"Women should be given choice over where they give birth to allow labor to be as normal as possible, according to proposals from Britain's health guidance watchdog on Friday. The National Institute for Health and Clinical Excellence (NICE) said women should be allowed to decide whether they want to give birth at home, in hospital or at specialist midwife units and given more information to help them make that decision." Reuters, Yahoo News, Link to Article (last visited 6-25-06 NVS)
"The U.S. population is on target to hit 300 million this fall and it's a good bet the milestone baby — or immigrant — will be Hispanic. No one will know for sure because the date and time will be just an estimate. But Latinos — immigrants and those born in this country — are driving the population growth. They accounted for almost half the increase last year, more than any other ethnic or racial group. White non-Hispanics, who make up about two-thirds of the population, accounted for less than one-fifth of the increase." By Stephen Ohlemacher, AP, Yahoo News Link to Article (last visited 6-25-06 NVS)