Thursday, November 30, 2006
Two lesbians married in Massachusetts have filed for divorce in Rhode Island, setting up a legal conundrum for judges in a state where the laws are silent on the legality of same-sex marriage. Margaret Chambers and Cassandra Ormiston of Providence were married after the Massachusetts Supreme Judicial Court legalized same-sex marriage in 2003. They filed for divorce in Rhode Island on Oct. 23, citing irreconcilable differences, Chambers's attorney, Louis M. Pulner, said Wednesday. Ormiston declined to comment. Rhode Island Family Court Chief Judge Jeremiah S. Jeremiah Jr. has yet to decide whether his court has jurisdiction and said he thinks it is the first filing for a same-sex divorce in the state. A preliminary hearing was scheduled for Dec. 5." By Ray Henry, Associated Press, washingtonpost.com Link to Article (last visited 11-29-06 NVS)
"Conservative groups in New Jersey are pushing a proposal that would grant the rights of marriage -- but not the title -- to gays, siblings and others involved in domestic partnerships. The plan comes in reaction to a landmark Supreme Court ruling last month that said gay couples in New Jersey should have access to the same rights and benefits as married couples. Whether to call those rights marriages, civil unions or something else was left up to lawmakers. Under the conservatives' plan, rights would be available to gay couples, relatives and other twosomes who are not eligible to marry, said Len Deo, president of the New Jersey Family Policy Council. Unrelated opposite-sex couples, who can legally marry, would not be eligible for the designation." Associated Press, N.Y. Times Link to Article (last visited 11-19-06 NVS)
"Maryland's highest court is launching a project for live Webcasting of its sessions, hoping to be ready in time to broadcast arguments set for Dec. 4 in a high-profile case involving gay marriage. The first Webcast is tentatively scheduled for Thursday, giving the court a little time to solve problems that might develop before the gay marriage case is argued next week. The state is asking the high court to overturn a circuit court ruling that the Maryland law defining marriage as between one man and one woman is unconstitutional. ''It's all part of this outreach thing,'' Chief Judge Robert M. Bell of the Court of Appeals told The (Baltimore) Sun. ''Other courts have done it. I don't see why we shouldn't do it.''" Associated Press, N.Y. Times Link to Article (last visited 11-29-06 NVS)
Wednesday, November 29, 2006
Case Law Development: FPKPA Requires Virginia Must Enforce Custody Determination of Vermont Court in Civil Union Dissolution
Virginia has taken a step toward resolution of the on-going tension over whether Virginia would recognize a Vermont civil union between two women as providing a basis for custody rights in the non-biological parent-partner (See Family Law Prof Blog postings of August 7 and March 15) The Virginia court of appeals today unanimously accepted a ruling of the Vermont Supreme Court that conferred parental rights on both women. The court ruled that the trial court erred in failing to recognize that the Parental Kidnapping Prevention Act prevented its exercise of jurisdiction and required it to give full faith and credit to the custody and visitation orders of the Vermont court. Because biological mother filed papers in Vermont to dissolve the civil union in 2003, the appeals court said, the Vermont courts thereby gained sole jurisdiction over custody and visitation issues concerning the child born during their union.
Regarding the effect of the federal and state DOMA acts, the court concluded
Nothing in the wording or the legislative history of DOMA indicates that it was designed to affect the PKPA and related custody and visitation determinations. Simply put, DOMA allows a state to deny recognition to same-sex marriage entered into in another state. This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont. Rather, the only question before us is whether, considering the PKPA, Virginia can deny full faith and credit to the orders of the Vermont court regarding IMJ’s custody and visitation. It cannot. The law of Vermont granted the Vermont court jurisdiction to render those decisions. By filing her complaint in Vermont, Lisa invoked the jurisdiction of the Vermont court. She placed herself and the child before that court and laid before it the assertions and prayers that formed the bases of its orders. By operation of the PKPA, her choice of forum precluded the courts of this Commonwealth from entertaining countervailing assertions and prayers.
Janet Miller-Jenkins v. Lisa Miller-Jenkins (November 28, 2006)
Opinion on web (last visited November 28, 2006)
Tuesday, November 28, 2006
How are family law cases faring in the federal courts lately? Several recent decisions have helped clarify the boundaries of the Rooker-Feldman doctrine, whose power to keep family law cases out of the federal courts has clearly waned in recent years.
For example, the 11th Circuit Court of Appeals recently affirmed the dismissal of an action by Wife, seeking a declaration that her post-nuptial agreement was unconstitutional. The agreement contained a no-challenge clause providing that if Wife challenged in court any provision of the agreement (including custody or visitation of the childrne) she would forfeit the $ 1.5 million paid in consideration by her husband. Wife sued the state trial judge that had enforced the forfeiture when she sought to enforce and modify the agreement regarding custody, seeking a declaration that the judge could not enforce the agreement. The district court granted a motion to dismiss under the Rooker-Feldman doctrine. In affirming, the court held that the Rooker-Feldman doctrine applied because (1) the wife was a party in state court and had obtained a final judgment from the highest state court in which review could be sought; (2) the wife had a reasonable opportunity to raise her federal constitutional claims in the state-court proceedings; and (3) the issue before the federal district court was inextricably intertwined with the state-court decision because the wife's claims succeeded only to the extent that the federal district court determined that the state courts wrongly decided the issues. The court rejected Wife's argument that the United States Supreme Court had "interred" the Rooker-Feldman doctrine in Lance v. Dennis, 126 S. Ct. 1198 (2006), noting that the Court there had simply clarified the distinction between that doctrine and the general doctrine of preclusion. Morris v. Wroble, 2006 U.S. App. LEXIS 28581 (11th Cir. November 16, 2006)(unpublished).
The Seventh Circuit applied the same reasoning to affirm dismissal of an ex-wife's claims that her ex-husband, his attorney and their marriage counselor had deprived her of marital property and child custody by their misconduct in her divorce proceedings. Because the injuries were the result of the state court judgment, the court concluded that the Rooker-Feldman doctrine barred the district court from considering claims. Sielck v. Sielck, 2006 U.S. App. LEXIS 25159 (7th Circuit October 5, 2006).
In other cases, however, the courts have found the Rooker-Feldman doctrine did not preclude suits arising out of family law matters. The Fourth Circuit Court of Appeals wrestled with the doctrine in a case in which current and retired members of the armed forces whose retirement pay has been divided in state divorce proceedings, and an association representing such members, sued the Secretary of Defense. The plaintiffs claimed their due process and equal protection rights were violated by the Uniformed Services Former Spouses' Protection Act (Act), which allows states to divide military retirement pay upon divorce and establishes a payments mechanism implementing the division. The district court had dismissed the individual plaintiffs' claims for lack of subject matter jurisdiction, reasoning that these plaintiffs impermissibly sought appellate review of their underlying state court divorce decrees. While the court of appeals affirmed the dismissal on other grounds, they concluded that the district court had subject matter jurisdiction. The court reasoned that at least some of the plaintiffs
are not attempting to appeal unfavorable state court decisions. ... A federal court declaration that the Act is unconstitutional would invalidate the statutory basis for the federal payments mechanism and effectively prevent DFAS from continuing to transmit payments based on a state court decree. Such a declaration would not, however, amount to appellate reversal or modification of a valid state court decree entered in an individual plaintiff's divorce case. At bottom, an examination of the federal constitutional challenge presented here against the Act does not require scrutinizing and invalidating any individual state court judgment. Contrary to the view expressed in the concurring opinion, the test is not whether the relief sought in the federal suit "would certainly upset" the enforcement of a state court decree, but rather whether the relief would "reverse or modify" the state court decree.....The Rooker-Feldman doctrine, contracted as it has been by the Supreme Court's recent decisions, therefore did not deprive the district court of subject matter jurisdiction in this case.
Adkins v. Rumsfeld, 464 F.3d 456 (4th Cir. September 18, 2006)
Most recently, the United States District Court for the District of Colorado denied motions to dismiss complaints by parents in child welfare proceedings against state social service agency workers claiming that the workers had acted to deprive the parents of contact with their children because of discrimination against the parent's fundamentalist Christian viewpoint. The opinion provides a straightforward explanation of the Rooker-Feldman doctrine, explaining that the action here is not barred because the parents do not seek to overturn the state court dependency action but to obtain damages for the constitutional violations they claim arose during that action. Starkey v. Boulder County Soc. Servs., 2006 U.S. Dist. LEXIS 84768 (D. Colo. November 21, 2006)
Similarly, in an unpublished opinion, the Third Circuit Court of Appeals held that the Rooker-Feldman doctrine did not apply to a 42 U.S.C.S. § 1983 suit complaining that father's rights were violated when he was ordered to undergo mental examination during state court custody dispute because father did not complain of injuries caused by the custody judgment or seek to overturn it. The court did dismiss the complaint for failure to state a claim, however, because the judge and the court-appointed evaluators were entiteld to judicial immunity and wife's attorney could not be said to be acting under color of state law. Shallow v. Rogers, 2006 U.S. App. LEXIS 26941 (3rd Circuit October 27, 2006).
(All web opinions last visited November 27, 2006 bgf)
"Gov. Mitt Romney filed a lawsuit Friday asking the state’s highest court to order the legislature to vote on a constitutional amendment banning same-sex marriage or to place it on the 2008 ballot if lawmakers do not take up the provision. The legislature voted 109 to 87 on Nov. 9 to recess a constitutional convention before the measure was taken up, which appeared to kill it. The convention was recessed until Jan. 2, the last day of the legislative session. More than 170,000 people have signed a petition asking the legislature to amend the state’s Constitution to prohibit same-sex marriage. Massachusetts is the only state that permits it.
Mr. Romney, a Republican who did not seek re-election but is considering running for president, announced plans to file the lawsuit at a rally of same-sex marriage opponents on Sunday. The next day he sent a letter to the 109 lawmakers who had voted to recess, saying they were “frustrating the democratic process and subverting the plain meaning of the Constitution” by refusing to vote. The lawsuit, filed by Mr. Romney, acting as a private citizen, and 10 other opponents of same-sex marriage, said the legislature had a “legal duty to act” on citizen petitions but had relied on procedural devices to “avoid a vote and evade its constitutional duties.” The legislature recessed before voting on the measure two other times this session."By Katie Zezima, N.Y. Times Link to Article (last visted 11-27-06 NVS)
"An HIV-positive man accused of knowingly exposing three women to the virus has been sentenced to nearly three years in prison. Robert Richardson II, 30, apologized at his sentencing Wednesday, but he argued that while his behavior was unethical, it wasn't criminal. Richardson was found guilty last month of four counts of HIV exposure involving three women, and he was found not guilty of exposing a fourth woman.
Jurors said they were appalled by how he deceived the women by telling them his health problems were from a heart condition. Richardson said he didn't lie, and that he did have a "HAART" condition -- short for Highly Active Anti-Retroviral Therapy, the name he used for his HIV-treatment drug regimen." CNN.com Link to Article (last visited 11-27-06 NVS)
"More American women than ever are putting motherhood before matrimony. New data released by the Centers for Disease Control show that nearly four in 10 U.S. babies were born outside of marriage in 2005—a new high. These unwed moms aren't all teens—last year teen pregnancies fell to their lowest levels in 65 years. Some—like 44-year-old Mary Lee MacKichan, who used a gay friend as a sperm donor—are professional, older women who want to have babies before their biological clocks run out, but most are low-income twentysomethings. (Unwed births among 30- to 44-year-olds are up 17 percent since 1991; among those 25 to 29, they're up 30 percent.) And some 40 percent of those moms aren't going it alone—they're cohabiting, at least for a while. That's creating a major shift in what a generation of children are coming to call a family." By Debra Rosenberg and Pat Wingert, Newsweek, MSNBC Link to Article (last visited 11-27-06 NVS)
Monday, November 27, 2006
Robyn Dixon of the LA Times reports on the rise of orphans in Africa as a result on AIDS. In 1990, nine years after the AIDS virus was identified, the infection rate among adults was less than 1%. Since then, the infection rate in Southern Africa now is more than 15%. The statistics have been repeated so often they cease to shock, even as they soar: 25 million people have died worldwide. Forty million are living with HIV, the virus that causes acquired immune deficiency syndrome, and as many as 14.5 million children have been orphaned by the disease, according to UNAIDS. The report includes a video on AIDs orphans in Swaziland: where half of all kids are projected to be orphans in 10-15 years.
Read the article (last visited November 27, 2006 bgf)
The BBC reports that Spain's prime minister has launched a campaign against domestic violence in Europe, calling it one of the worst forms of human rights violations. Jose Luis Rodriguez Zapatero was speaking to hundreds of delegates from the Council of Europe's member states. According to the Council, almost a quarter of women in Europe have suffered physical or sexual attack. Mr Zapatero said there could be no room for such abuse and that women must not feel abandoned by society.
Read the entire article (last visited November 27, 2006 bgf)
Tuesday, November 21, 2006
"“Some of usare becoming the men we wanted to marry,” Gloria Steinem proclaimed 25 years ago. She meant, of course, that women in large numbers were seizing the places in higher education and the professions that had formerly been closed to them, becoming the doctors, lawyers and executives that they once hoped only to wed. Over the past generation, the liberal notion of egalitarian marriage — in which wives are in every sense their husbands’ peers — has gone from pie-in-the-sky ideal to unremarkable reality. But this apparently progressive shift has been shadowed by another development: America’s growing gap between rich and poor. Even as husbands and wives have moved closer together on measures of education and income, the divide between well-educated, well-paid couples and their less-privileged counterparts has widened, raising an awkward possibility: are we achieving more egalitarian marriages at the cost of a more egalitarian society?" By Annie Murphy Paul, N.Y. Times Link to Article (last visited 11-20-06 NVS)
"Hundreds of Ethiopians took to the streets of Addis Ababa on Saturday calling for a retrial of an Ethiopian jailed in the United States for circumcising his daughter. In what was believed to be the first such case in the United States, a Georgia judge sentenced Khalid Adem to 10 years in prison this month for removing his two-year-old daughter's clitoris with scissors in 2001. The jailing has fuelled a passionate debate across Africa, with some approving the punishment but others opposing it." By Reuters, N.Y. Times Link to Website (last visited 11-20-06 NVS)
"Parliament on Tuesday voted resoundingly to legalize same-sex marriages in South Africa, making the nation the first in Africa and the fifth in the world to remove legal barriers to them, according to advocates. The nation’s highest court ruled last December that South Africa’s marriage statute violated the Constitution’s guarantee of equal rights. The court gave the government a year to alter the legal definition of marriage. That left the government with three choices: legalize same-sex marriages, let the court change the law by fiat or alter the Constitution, which prohibits discrimination on the basis of sexual orientation.
Under the proposal approved by Parliament, heterosexual and same-sex couples could register marriages or civil partnerships. In a concession to critics, the law also would allow civil officers to refuse to marry same-sex couples if such marriages conflicted with their conscience."By Sharon LaFraniere, N.Y. Times Link to Article (last visited 11-20-06 NVS)
"A lesbian couple in South Jersey won court approval this week to have both of their names listed as parents on the birth certificate of their newborn, and the attorney general’s office said it will no longer oppose such applications. The decision, in Family Court in Burlington County, stems from an Oct. 25 ruling by the New Jersey Supreme Court holding that same-sex couples are entitled to the same legal rights and protections as heterosexual couples. The court gave the Legislature 180 days either to bring gay couples within the state’s marriage laws or establish a parallel system of civil unions." By Laura Mansnerus, N.Y. Times Link to Article (last visited 11-20-06 NVS)
"Mexico's ruling conservative party is considering filing a legal challenge to Mexico City's new law recognizing gay civil unions, saying it violates a clause in the country's constitution protecting the family, legislators said Friday.The law was published in the city's official gazette on Thursday, making it the first such law in the history of the conservative, predominantly Roman Catholic country. It will take effect 120 days from that date. City assemblyman Miguel Angel Errasti said his National Action Party -- the party of President Vicente Fox and President-elect Felipe Calderon -- is determining whether the new law can be challenged on constitutional grounds." Associated Press, N.Y.Times Link to Article (last visited 11-20-06 NVS)
Monday, November 20, 2006
10th Circuit Hears Arguments on Oklahoma's Law Refusing Recognition of Adoptions by Same Sex Parents
The 10th Circuit Court of Appeals heard arguments this past week examining the constitutionality of the Oklahoma Adoption Invalidation Law. The Act, passed in 2004, would ban state officials from recognizing a same-sex adoption. Same-sex couples anywhere with legally adopted children would lose their status as parents when inside Oklahoma. The United States District Court for the Western District of Oklahoma struck down the law in May, finding that the law "By its refusal to recognize and give effect to a valid judgment, from another court of competent jurisdiction, which established their status as parents of their respective children, the Amendment violates the Full Faith and Credit Clause of the United States Constitution, the Equal Protection Clause and substantive due process rights."
Finstuen v. Edmondson, 2006 U.S. Dist. LEXIS 32122 (May 19, 2006)
According to the BBC News service, a new report by children's rights director for England, Dr Roger Morgan, says that adopted children want more information about their birth family and why they were adopted. Accordindg to the report, these adopted children feel badly informed about the process. Dr Morgan is calling for them to be given more support. He surveyed 208 adopted children, aged from six to 22.
Read the BBC Report (last visited November 20, 2006 bgf)
A major new report on adoption was released this last week. The Evan B. Donaldson Adoption Institute issued a report devoted to birth mothers, whom it described as ''the least understood and most stigmatized participants'' in the adoption process. The report focuses on U.S. mothers who voluntarily place infants for adoption -- an estimated 13,000 to 14,000 such adoptions occur annually. Most of this country's roughly 135,000 adoptions each year are from foster care; the next biggest category is overseas adoptions. The report urges that mothers deciding to place their infants for adoption deserve better counseling, more time to change their minds, and more support in trying to keep track of the children they relinquish.
Read the full report (last visited November 20, 2006 bgf)
November is National Adoption month. The week of thanksgiving was established as National Adoption Week in 1976 by then-President Gerald Ford. In 1995, President Bill Clinton expanded the period of observance from one week in November to the entire month. A number of states lawmakers have also made separate declarations for their state and around the country, celebrations, public education events and news stories have focused their attention on adoption.
Read this year's presidential proclamation (last visited November 20, 2006 bgf)
Thursday, November 16, 2006
"A court ruling which ordered a gynecologist to pay child support for up to 18 years as compensation for botching a contraceptive implant was condemned by the German media as scandalous on Wednesday. The Karlsruhe-based federal appeals court ruled on Tuesday that the doctor must pay his former patient, now a mother of a three-year-old boy, 600 euros ($769) a month because she became pregnant after he implanted her with a contraceptive device. "A child as a case for damages -- this perverse idea has now been confirmed by one of Germany's highest courts," conservative Die Welt daily newspaper wrote in an editorial on Wednesday." Reuters, Yahoo News Link to Article (last visited 11-15-06 NVS)