Tuesday, October 31, 2006
"A German woman won a lawsuit against a "love witch" who failed to induce her ex-boyfriend to come back with rituals under the full moon designed to cast a spell over him, a Munich court said Monday. "The witch lost," said Munich district court spokeswoman Ingrid Kaps. The 'love witch' was ordered to return her 1,000 euro ($1,300) fee and pay "several hundred euros" in costs." By Reuters, Yahoo News Link to Article (last visited 10-30-06 NVS)
"Is it a phone call, a text message or simply time to make love? A new mobile phone available through Japan's NTT DoCoMo Inc. (9437.T) can ring to let would-be mothers know when they reach the most fertile part of their monthly reproductive cycles.By tapping in data on menstruation dates, the user can program the phone to alert her three days before ovulation and again on the day. The company warns that the calculations are based on average cycles.
The new phone comes after Japan's fertility rate -- the average number of children a woman bears in her lifetime -- fell to an all-time low of 1.25 in 2005, sparking worries about a shrinking population." By Reuters, Yahoo News Link to Article (last visited 10-30-06 NVS)
Editorial from N.Y. Times: "The rights and safety of Nicaragua’s women took a giant step backward last week when the country’s legislature passed a law criminalizing all abortions, with no exceptions. The previous law permitted an abortion if the mother’s life was in danger. Latin America has the world’s strictest laws on abortion. But that does not discourage it. Latin America also has the world’s highest abortion rates, averaging nearly one per woman over the course of her reproductive lifetime." By N.Y. Times Link to Article (last visited 10-30-06 NVS)
"AFCC is offering two outstanding training programs in December in collaboration with the University of Baltimore Center for Families, Children and the Courts in Baltimore, Maryland. Father Involvement: From Infant Overnights to Parental Alienation, presented by Dr. Marsha Kline Pruett, will take place December 4-5, 2006. Parenting Coordination: Working with High Conflict Families, presented by Dr. Robin M. Deutsch, will follow on December 6-7, 2006.
Father Involvement is a two day training for all professionals who work with separated or divorced parents and their children. This training will identify the impact of divorce on children and youth, present strategies to help children make healthy transitions and more. Dr. Kline Pruett is the Maconda Brown O’Connor Professor at Smith College and School of Social Work. She has trained professionals throughout the country, and served as commentator on radio and television news.
Parenting Coordination is a two day training for parenting coordinators, mediators, attorneys and mental health professionals who work with separating and divorcing families. Participants in this workshop will understand the psychological dynamics of high conflict families, identify the qualifications and abilities needed to be a parenting coordinator, and more. Dr. Deutsch is a psychologist and Director of Forensic Service of the Children and the Law Program at Massachusetts General Hospital and an Assistant Professor at Harvard Medical School.
Each training is eligible for 13 hours of continuing education for psychologists. The program brochure and registration from is posted on the AFCC Web site Link to Website. If you have any questions, please contact AFCC at Link to Contact or (608) 664-3750." By Dave Vigliotta, AFCC (last visited 10-30-06 NVS)
Monday, October 30, 2006
The Indiana Court of Appeals reversedd a trial court that had granted a name change, allowing mother to change her child's last name from her own to that of the child's stepfather, over the objection of father, who had never been married to mother but had been adjudicated father in a paternity action. The court reversed on the grounds that the trial court had erred in sequestering father as a witness during the name change proceeding. "Although an action to change a person's name is not an adversarial proceeding in the traditional sense, Father is a necessary party who had a right to participate in the proceeding. It is reversible error to extend the separation of witnesses to those who have a substantial interest in the subject matter."
In dicta, the court also noted that Indiana statutes provide a presumption in favor of a parent of a minor child who has been making support payments and fulfilling other duties in accordance with a decree and objects to the proposed name change of the child. Mother had argued that the presumption should not apply in this case because the child had never had Father's last name, but the court disagreed, noting that if the court found as a matter of fact that Father fulfilled the requirements of the statute, the presumption would apply.
In re Fetkavich, 2006 Ind. App. LEXIS 2152 (October 27, 2006)
Opinion on the web (last visited October 30, 2006 bgf)
The Supreme Court of Arkansas, interpreting its new rules of professional conduct regarding duties to prospective clients, has held that an attorney may be disqualified from representing a wife based on the husband's prior consultation with an attorney in the firm regarding possible representation in the case, even if no representation ensued. The new Arkansas rule, based on ABA Model Rule of Professional Responsibility Rule 1.18, bars an attorney from representing a client with adverse interests to those of a prospective client in a substantially related matter if the attorney "received information from the prospective client that could be significantly harmful to that person in the matter."
The trial court had used the same presumption of receipt of confidential information it applies when using a former client conflicts analysis. The Supreme Court affirned, stating that the duty an attorney owes to a prospective client under Rule 1.18(b) is "coextensive with the duty an attorney owes to a former client" and "exists regardless of how brief the initial conference may have been and regardless of the fact that no client-attorney relationship ensued."
The court noted that in this case, husband's consultation with the attorney involved the same custody proceeding as in the later representation and that he had given the attorney a copy of his journal, told her about facts that were not in the journal, and "disclosed everything he knew and his concerns about the children and his former wife." The court concluded that "a lawyer who consults with a prospective client about a change-of-custody proceeding will necessarily become privy to information that could be used to the disadvantage of that person in the same proceeding." The fact that the husband had indicated in his testimony on the disqualification that he had not disclosed harmful information was not determinative, according to the court, because "a prospective client would not know whether the information disclosed during the consultation could be significantly harmful."
Sturdivant v. Sturdivant, 2006 Ark. LEXIS 536 (October 26, 2006)
Opinion on the web (last visited October 30, 2006 bgf)
Case Law Development: Reckless Domestic Violence Assault not a Categorical Crime of Violence for Purposes of Immigration Law
The United States Court of Appeals for the Ninth Circuit had to decide whether a misdemeanor domestic violence conviction under Arizona statutes constituted a "crime of domestic violence" under federal law subjecting a legally admitted resident alien to removal under 8 U.S.C.S. § 1227(a)(2)(E)(i). The court noted a recent inconsistency in its precedents regarding whether crimes of recklessness constituted categorical crimes of violence under immigration law. The court reviewed its own decisions and determined that it should join the other circuits that have restricted the category of crimes for which removal applies to crimes of violence involving specific intent. In this case, since the Arizona statute allowed conviction upon proof of reckless assault, the conviction was not a categorical crime of violence.
When a state statute of conviction does not define a categorical crime of violence, the court goes on ot apply a "modified categorical approach" in which it considers "whether any of a limited, specified set of documents--including "the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment" (sometimes termed "documents of conviction")--show the petitioner's conviction entailed an admission to, or proof of, the necessary elements of a crime of violence." In this case,
none of the documents ... demonstrated that [the alien's] conviction was based upon an admission, or any other proof, that he used force "intentionally" or "knowingly," as opposed to "recklessly." Accordingly, on the record now before us, we cannot conclude under the modified categorical approach that Fernandez-Ruiz committed a crime of violence or, by extension, a crime of domestic violence as defined by federal law.
The dissent took issue strongly with the rejection of recklessness as falling within the standards of categorical crimes of violence, arguing that:
Men do not beat their wives by accident. Blind to this truth, the majority ignores the realities of domestic violence and disregards congressional intent to hold that an Arizona domestic violence conviction is not a "crime of domestic violence" for purposes of a federal immigration law. The majority's hypertechnical analysis stretches the Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990), categorical approach to absurdity and misreads Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377, 160 L. Ed. 2d 271 (2004), as barring all crimes involving the reckless use of force from qualifying as "crimes of violence" under 18 U.S.C. § 16.
Fernandez-Ruiz v. Gonzales, 2006 U.S. App. LEXIS 26668 (9th Cir. October 26, 2006)
Opinion on web (last visited October 30, 2006 bgf)
The New York Times provides an interesting article on the use of the interracial marriage cases in arguing about same-sex marriage. "...people on both sides of the same-sex marriage issue say there are important lessons from the earlier debate over laws banning interracial marriages, about the reasoning in the Perez decision and about how, over two decades, that decision came to be accepted in the courts, in state legislatures and in the popular culture. Unsurprisingly, they differ about what those lessons are."
Read the article, "Gay Marriage Through a Black White Prism" by Adam Liptak (last visited October 30, 2006 bgf)
Readers may be interested in an article by the Chief Justice of the Supreme Court of Georgia in the Washington Post today on The Case for Strengthening Marriage
Justice Leah Ward Sears comments:
I am not a law professor. But from where I sit as chief justice of the Supreme Court of Georgia, a family law that fails to encourage marriage ignores the fact that marriage has long been associated with an impressively broad array of positive outcomes for children and adults alike. Experts who contend that we need to move "beyond marriage" say they are only responding to the facts. But here is one major fact: High rates of family fragmentation hurt children.
Read the entire article (last visited October 30, 2006 bgf)
Friday, October 27, 2006
The Fourth Circuit Court of Appeals was called upon to determine what constitutes a "legal separation" in a case involving deportation of a resident alien. The petitioner was subject to removal because he had been convicted of aggravated felonies. He sought to evade deportation by claiming that he automatically became a citizen as a consequence of his mother's naturalization when he was a minor. He had come to the United States from Ethiopia with his parents when he was 10 years old. His father had returned to Ethiopia later that same year, but his mother had remained in the United States and was naturalized in 1994 when the petitioner turned 17.
At the time of mother's naturalization, federal law provided that a child also becomes a citizen as a consequence of the naturalization of the parent having legal custody of the child when there has been a legal separation of the parents. 8 U.S.C. § 1432(a) (1999) (repealed 2000) The act did not define "legal separation." Here, the parents had apparently negotiated and signed a separation agreement at the time Husband returned to Ethiopia, though there were no witnesses to the agreement and it was not incorporated into a judicial decree until the couple's 2003 divorce.
The court of appeals affirmed the BIA interpretation that only judicially recognized marital separations are considered "legal" for the purposes of section 1432(a). Petitioner argued that because Maryland courts will enforce voluntary separation agreements as a species of contract, the BIA was required to recognize his parents as "legally separated" as of the purported date of their agreement. The court of appeals, over one dissent, held that federal law controlled the issue however. After reviewing federal law on the question, the court held that the BIA interpretation was not unreasonable and affirmed.
Afeta v. Gonzales, 2006 U.S. App. LEXIS (October 26, 2006)
Opinion on web (last visited October 28, 2006 bgf)
An immigrant from Africa has gone on trial on charges alleging he circumcised his 2-year-old daughter with a pair of scissors to avoid bringing shame on his family. It appears to be a groundbreaking prosecution for a case of female genital mutilation in the U.S., said Taina Bien-Aime, executive director of Equality Now, a New York-based human rights group that focuses on violence and discrimination against women and girls around the world. Khalid Adem could face 40 years in prison if convicted in Gwinnett County on the charges of aggravated battery and cruelty to children.
Read the New York Times story (last visited October 28, 2006 bgf)
A landmark new law seeking to protect women from domestic violence has come into effect in India. The law also bans harassment by way of dowry demands and gives sweeping powers to a magistrate to issue protection orders where needed. Punishment could range from a jail term of up to one year and/or a fine of up to 20,000 rupees ($450).
Every six hours, a young married woman is burned, beaten to death or driven to commit suicide, officials say. Overall, a crime against women is committed every three minutes in India, according to India's National Crime Records Bureau. Despite the scale of the problem, there had been no specific legislation to deal with actual abuse or the threat of abuse at home. Domestic violence, under the new law, includes "actual abuse or the threat of abuse whether physical, sexual, emotional or economic," a statement from the federal ministry of women and child development said.
Read the BBC News Report (last visited October 28, 2006 bgf)
A Michigan judge whose nomination to the federal bench is stalled over her appearance at a lesbian commitment ceremony says she attended as a friend, not to give legal sanction. The nomination of Michigan Court of Appeals Judge Janet T. Neff to be a U.S. District Court judge is on hold because Sen. Sam Brownback, R-Kan., is not satisfied with her response to questions about her views on same-sex marriage, a spokesman for the senator said Thursday. Neff's status has been in limbo since last month, when Brownback placed his procedural hold -- using a technique that allows a lone senator to stall a nomination. Brownback wanted to know whether there was anything illegal or improper about the 2002 ceremony in Massachusetts and how Neff's actions might shape her judicial philosophy.
Read the New York Times article (last visited October 28, 2006 bgf)
Thursday, October 26, 2006
"New Jersey's highest court on Wednesday guaranteed gay couples the same rights as married heterosexuals, but left it up to state lawmakers to decide if such unions can be called marriage. "Times and attitudes have changed," the New Jersey Supreme Court said in a nuanced 90-page ruling certain to fuel America's culture wars ahead of November 7 elections, when eight states will vote on same-sex marriage laws. Advocates on both sides declared varying degrees of victory and disappointment on the latest twist in a battle that has divided the country over issues of gay culture and morality." Jon Hurdle, Reuters Link to Article (last visited 10-15-06 NVS)
Read the decision: Link to Decision (last visted 19-25-06 NVS)
For a chronology of same-sex marriage developments: Link to Chronology (last visited 10-25-06 NVS)
"Medical groups representing U.S. fertility experts, alarmed by rising numbers of multiple births, on Tuesday advised limiting the number of embryos implanted in women undergoing in-vitro fertilization. The latest medical evidence "clearly indicates" that high pregnancy rates can be achieved even with fewer embryo transfers, Dr. Marc Fritz, chair of the American Society for Reproductive Medicine's practice committee, said in a statement. Some patients and clinics have opted for transferring several embryos during a single cycle in order to increase the odds of success but pregnancies involving two or more fetuses are at risk of complications including premature delivery, which increases a baby's odds of suffering medical and developmental problems.
The new recommendations to fertility specialists, which are not enforceable, call for transfer of no more than two embryos for women under age 35, and say the transfer of a single embryo should be considered." Reuters, Yahoo News Link to Article (last visited 10-25-06 NVS)
"After a tumultuous 14-year marriage marked by drug arrests and stints in rehab, Whitney Houston is divorcing Bobby Brown. The pop singer filed divorce papers in Orange County Superior Court this week, a month after filing for legal separation from Brown, Houston's publicist Nancy Seltzer said Tuesday. The couple lived in Alpharetta, Georgia." AP, CNN.com Link to Article (last visited 10-25-06 NVS)
"Less than a week after Lisa Eatmon's family threw a baby shower for the son she was going to name Jayden, her lifeless body was found floating in the Hudson River. The person who put her there, according to a Manhattan prosecutor, was the married man who got her pregnant and then resisted her requests for $30 a week in child support. "There will be no obituary for the baby boy who was never born," Manhattan Assistant District Attorney Joan Illuzzi-Orbon told jurors in her closing argument Monday morning. "There can only be a smidgen of justice in knowing that Lisa Eatmon's voice has been heard, with a guilty verdict against the defendant." Eatmon's on-and-off lover, Roscoe Glinton, faces up to 25 years in prison if convicted of second-degree murder for shooting the 33-year-old in the head and dumping her body in the river the morning of April 3, 2005." By Emanuella Grinberg, Court TV Link to Article (last visited 10-25-06 NVS)
"A judge has sided with a divorced father who did not want his 9-year-old son circumcised, in a case that has drawn attention from groups opposed to the surgical procedure. Cook County Circuit Judge Jordan Kaplan's ruling, issued Tuesday, said the boy can decide for himself about circumcision when he turns 18. Until then, there will be no circumcision, a surgery that removes the foreskin of the penis. The Associated Press is not naming the parents to protect the child's privacy. The father was born and raised in Poland; The mother is from Slovakia. Both now live in suburban Chicago. A 2003 divorce decree gave the boy's father the right to offer advice on medical decisions." AP, Cnn.com Link to Article (last visited 10-25-06 NVS)
"The cremated remains of Twins superstar Kirby Puckett have been awarded to his children by an Arizona judge, who also removed Puckett's friend and business associate, Brian Woods, as executor of his estate. The decision was made this week in Maricopa County (Ariz.) Superior Court by Judge Benjamin E. Vatz, who agreed that keeping the remains away had imposed emotional hardship on the Hall of Fame player's children, Catherine Puckett, 16, and Kirby Puckett Jr., 14.
Had Puckett "not wanted his remains to be in the home of" his children, "then he would have taken care to express that wish in writing," the judge ruled. By keeping Puckett's remains from his family, Woods had been "unreasonable" in considering the "clear wishes ... and the emotional needs and desires" of Puckett's children, the judge wrote.
"On behalf of the Puckett family, we are very pleased with the court's ruling," attorney Bridget Logstrom, representing Puckett's former wife, Tonya, and his children, said Tuesday. "The children are looking forward to bringing their father's remains home."" By Paul Levy, Star Tribune Link to Article (last visited 10-15-06 NVS)