Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Wednesday, December 13, 2006

More on jury trials in divorce actions

In the December 6 post on the use of juries in divorce actions,  I cited the ALR on the states that allow a jury trial right in any part.  Since then, the corrections have been rolling in. 

A Colorado attorney, Andrew Oh-Willeke, graciously pointed out that the ALR is not up to date on Colorado law on this issue, as the Colorado Dissolution of Marriage Act provides that "All issues raised by these proceedings shall be resolved by the court sitting without a jury." Section 14-10-107(6), Colorado Revised Statutes. He also notes recent case law applying that statute to conclude that "All issues raised or presented in a dissolution proceeding are to be resolved by the court in equity sitting without a jury." In re Marriage of Lewis, 66 P.3d 204, 205 (Colo. App. 2003)(opinion on the web). Attorney Oh-Willeke comments on this case and its impact on joinder of tort or contract claims with divorce actions in his blog posting

Illinois as well is listing in the ALR as allowing jury trials, but a reader has advised me that Illinois has not had jury trials in dissolution proceedings since at least 1977, citing 750 ILCS 5/103. 

Thanks for the updates!   


December 13, 2006 | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Caretaking does not Include Breadwinning in Proving De Facto Parent Status

The Massachusetts Supreme Court considers two questions of first impression in a case involving a custody dispute between a lesbian couple. The court concludes that an adult who is neither the biological nor the adoptive parent of a minor child may assert custody and support rights as a "de facto parent," but affirmed the trial court's finding that the second parent in this case had not proven sufficient facts to prove her status as de facto parent.  The non-biological parent was the primary breadwinner and was away from home with her employment a significant period of time.  She argued, however, that her economic contributions to the family should be considered as caretaking for proving de fact parent status.  The court disagreed, however, citing the ALI Principles of the Law of Family Dissolution, the court noted that "he notion of "caretaking" as the particular subset of parenting tasks having most directly to do with interacting with and on behalf of the child serves as a valuable tool for assessing the adult's bond with the child."  The court also rejects the invitation to recognize estoppel principles as creating parental rights where the party claiming such rights is neither the biological nor adoptive parent of the child and does not meet the criteria of a de facto parent.

A.H. v. M.P., 2006 Mass. LEXIS 692 (December 8, 2006)
Opinion on the web (last visited December 13, 2006 bgf)

December 13, 2006 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Kentucky Rejects Distinction between Enterprise and Personal Goodwill

In a case in which the value of wife's solo medical practice was the subject of considerable dispute, the Kentucky Court of Appeals refuses the invitation to join the majority of state that distinguish between enterprise goodwill and personal goodwill in valuing a business upon dissolution.  The court reviewed a number of cases from other jurisdicitons on either side of the issue and concluded that "After considering the issue and the facts of this case, we are not inclined to deviate from long-standing precedent by creating a wholesale change of law holding that "personal" and "enterprise" goodwill should be distinguished for purposes of property valuation in a divorce proceeding - even given that [Wife's] practice is a sole proprietorship. Issues of stare decisis aside, we believe that "[i]t would be inequitable to hold that the form of the business enterprise can defeat the community's interest in the professional goodwill. Such a result ignores the contribution made by the non-professional spouse to the success of the professional ...."  The court noted that the husband made a number of contributions directly to the wife's medical practice, including "training a number of administrative personnel and handling a number of financial aspects of the practice."

A dissenting judge found the arguments in favor of distinguishing between the two forms of goodwill, but agreed with the majority that that matter was for the Kentucky Supreme Court.

Gaskill v. Robbins, 2006 Ky. App. LEXIS 364 (December 8, 2006)
Opinion on the web (last visited December 13, 2006 bgf)

December 13, 2006 in Property Division | Permalink | Comments (1) | TrackBack (0)

Legal Scholarship Network Posts Conference Papers

Conference on Representing Children in Families: Children's Advocacy and Justice Ten Years after Fordham, which was hosted at the University Nevada Las Vegas January 11-14, 2006 are now available at SSRN.   

December 13, 2006 | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Kansas Family Law Attorney Suspended Indefinitely

In a disciplinary case that appears to include nearly every major violation of the ethics rules possible in three different family law cases, including abandoning clients, settling cases without client authority, and diverting client funds,  the Supreme Court of Kansas indefinitely suspended the attorney.  A minority of the court would have disbarred the attorney, but the majority agreed with the hearing panel that the attorney's struggles with depression and cocaine addiction and his work on recovery over the previous year's time were mitigating factors. 

According to the ABA Commission on Lawyer's Assistance Programs, "while ten percent of the general population has problems with alcohol abuse, anywhere from fifteen to eighteen percent of the lawyer population battles the same problem." I have long wondered whether those numbers might be even higher for attorneys who practice in the emotionally stressful context of family law.  I would be very interested in hearing of any studies or programs addressing this issue among family law attorneys in particular.

In re Lampson, 2006 Kan. LEXIS 707 (December 8, 2006)
Opinion on the web (last visited December 13, 2006 bgf)

December 13, 2006 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Improper Factors in Calculating Maintenance

The Supreme Court of Connecticut has affirmed the court of appeals ruling in a case in which a couple were married for 11 years, lived together for a number of years and then remarried for six years.  (See Family Law Prof Blog post of February 10, 2006) The cour of appeals had found that the trial court, in fixing the term of the maintenance award, improperly took into consideration both the prior marriage and cohabitation and the fact that there were adult children with grandchildren residing in the house.
The court concludes that " 'length of the marriage' criterion prescribed in [statutes governing maintenance awards], as a matter of law, does not include prior marriages or cohabitation preceding the marriage." 

As to the issue of the maintenance order being a disguished child support order for the adult children and grandchild in the home, the court reviewed cases from a number of other jurisdictions on the issue.  The court noted that the need to care for minor children can property affect alimony because of the lesser income a custodial parent is able to earn while caring for a minor child, but even then, "an alimony award should address the needs of that parent, not the minor child, whose needs properly are addressed under a support order."  However, the court found no justification for considering the impact of an adult child or grandchild in the home in crafting alimony.

Loughlin v. Loughlin, 2006 Conn. LEXIS 463  (December 12, 2006)
Opinion on the web (last visited December 13, 2006 bgf)

December 13, 2006 in Maintenance (alimony) | Permalink | Comments (0) | TrackBack (0)

Court considers flexibility of fixed divorce agreements

The Missouri Supreme Court heard arguments today in a case in which a man claims he should no longer have to make payments to his ex-wife because she tried to hire a hit man to kill him.  The ex wife had not been charged with trying to have her ex husband, a St. Louis police captain, killed.  The maintenance agreement the couple had entered into was designated "nonmodifiable" and ex-husband had agreed to pay $2,425 a month in maintenance.  The trial court found the agreement could not be changed and dismissed the case. Arguments in the Missouri Supreme Court focused on crafting a public policy exception to the binding nature of maintenance agreements.

Read the AP article by Kelly Wiese (last visited December 13, 2006 bgf)

December 13, 2006 | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Parent of Child Who Has Been Abused May Not be the Monitor for Child's Supervised Visitation with the Abusive Parent.

The trial court allowed a father, who sexually abused his adopted son,  to return to the family home on weekends and designated the non-offending second parent as the monitor after finding that both parents had been participating in counseling and parenting classes.  The non-offending parent was employed full time and the offending parent had been a stay-at-home parent.

The court of appeals reversed, because it found that the offending parent's return to the family home under these circumstances could not meet the needs of monitored visitation.  It reasoned that even if the non-offending parent were able to arrange for another adult to monitor the visit while he was at work, "living together in the family residence will necessarily mean periods exist, even if somewhat brief (for example, when [non-offending parent] is asleep or showering), when the designated monitor will be unavailable. At least when the threat to the dependent child is the likely recurrence of sexual abuse, the concept of monitored visitation is fundamentally incompatible with around-the-clock in-home contact."

In re Ethan G., 2006 Cal. App. LEXIS 1922 (December 6, 2006)
Opinion on the web (last visited December 13, 2006 bgf)

December 13, 2006 in Child Abuse | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 12, 2006

New Orleans Baby Boom

"First came the storm. Then came the workers. Now comes the baby boom. In the latest twist to the demographic transformation of New Orleans since it was swamped by Hurricane Katrina last year, hundreds of babies are being born to Latino immigrant workers, both legal and illegal, who flocked to the city to toil on its reconstruction.

The throng of babies gurgling in the handful of operational maternity wards here has come as a big surprise — and a financial strain — to this historically black and white city, which before the hurricane had only a small Latino community and virtually no experience of illegal immigration." By Eduardo Porter, N.Y. Times Link to Article (last visited 12-11-06 NVS)

December 12, 2006 | Permalink | Comments (0) | TrackBack (0)

Abuse and Neglect Reports Increase in New York City

"In the year since a 7-year-old was found beaten to death in a rodent-infested room in her family's apartment, the city's child welfare agency has improved staffing, case tracking and coordination with other city agencies. At the same time, however, it has seen an extraordinary increase in the number of child abuse and neglect reports, the agency says in a progress report due for release Monday. The Administration for Children's Services has received about 64,000 reports of abuse and neglect this year -- up about 33 percent from last year.

''We've dealt with a challenge that I have never seen the like of anywhere in the country -- a huge explosion in the number of reports,'' agency Commissioner John Mattingly said. ''We've had to investigate every one of them.''" Associate Press, N.Y. Times Link to Article (last visited 12-11-06 NVS)

December 12, 2006 in Child Abuse | Permalink | Comments (0) | TrackBack (0)

Decision Making Input of Mothers Related to Well-being of Children

"Children are likely to be undernourished in households where women are denied a voice in family decisions like doctor visits, food expenditures and trips to see friends and relatives, says a report by the U.N. Children's Fund, UNICEF, released on Monday. Tracing the life cycle of women, the report said eliminating discrimination against women has a profound impact on the survival and well-being of boys and girls.

``When woman are empowered to lead full and productive lives, children and families prosper,'' said Ann Veneman, UNICEF's executive director in releasing the agency's flagship report, timed for its 60th anniversary." By Reuters, N.Y. Times Link to Article (last visited 12-11-06 NVS)

December 12, 2006 | Permalink | Comments (0) | TrackBack (0)

Parliment Declines to Revisit Same-Sex Marriage

"Parliament voted down a motion by the government of Prime Minister Stephen Harper to revisit the 2005 law that allows same-sex marriages."  By Christopher Mason, N.Y. Times Link to Article (last visited 12-11-06 NVS)

December 12, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Meta-Study on Paternity Confidence

"Here’s an unpleasant figure for a man to ponder: 10 percent of all children conceived in the context of a marriage (or a less formal heterosexual pairing) have been fathered by someone from outside the couple. “Dad” has been cuckolded. Or so many biologists and anthropologists have been saying for decades.

But in the June issue of Current Anthropology, Kermyt G. Anderson, a professor of anthropology at the University of Oklahoma, cast serious doubt on the 10 percent figure. Girlfriends and wives, it seems, are less worthy of distrust than many scientists have thought. “The upshot,” Anderson says, “is that you shouldn’t be worried, if you are pretty sure the kid is yours.”

Anderson’s was a meta-study: he examined every paper or reference he could locate that touched on the topic. First he identified 22 studies, dating back to 1949, in which men with few or no doubts about their paternity learned that they weren’t related to one of “their” kids. These studies were mostly designed to explore genetically linked traits in fathers and children. Presumably, if you or your wife suspected you were unrelated to a child, you’d find an excuse not to take part in a genetic study like that, so Anderson determined that these men had high paternity confidence. Collectively in these studies, only 1.7 percent of men learned they were not the true fathers." By Christopher Shea, N.Y. Times Link to Article (last visited 12-11-06 NVS)

December 12, 2006 in Paternity | Permalink | Comments (0) | TrackBack (0)

Visitation Rights of Same-Sex Parent Considered by Minnesota Supreme Court

"Marilyn Johnson and Nancy SooHoo, like a growing number of gay and lesbian couples in Minnesota, became parents through international adoptions a decade ago. Now separated, they are embroiled in a child-visitation dispute that has reached the Minnesota Supreme Court. The court's decision could set a precedent in a new frontier in family law: determining the future visitation rights of nontraditional parents. SooHoo never legally adopted the children, but was granted visitation privileges in 2005. Johnson, who is the sole legal parent, appealed those privileges to the state's highest court." By Jean Hopfensperger, Star Tribune Link to Article (last visited 12-11-05 NVS)

December 12, 2006 in Visitation | Permalink | Comments (0) | TrackBack (0)

Friday, December 8, 2006

Case Law Development: Guardian Ad Litem's Duty of Confidentiality

When I want my students to explore one of the most difficult aspects of child representation, I ask them to consider the duty of confidentiality and the best interests of the child dilemma.  The West Virginia Supreme Court recently addressed that very dilemma in an abuse and neglect case.  The child who was the subject of that proceeding, a 15-year-old girl, had disclosed to the guardian ad litem that her mother's boyfriend had sexually molested her, but had requested that the guardian ad litem not disclose the information.  The GAL honored that request, believing that her duty of confidentiality to her client demanded silence.  Family services allowed the client's mother and boyfriend to have unsupervised visitation with her.  Some months later, both a case worker and a foster care worker reported that the client had disclosed the prior sexual misconduct, and also disclosed that she had spoken to the GAL about the matter.  The division of family services then moved to have the GAL removed because of her failure to report the earlier conversation with the client.

The circuit court denied the motion on the grounds of attorney-client confidentiality.  The supreme court disagreed however.  The court reasoned that the rules of professional conduct do apply to a GAL's represenation "because many aspects of a guardian ad litem's representation of a child in an abuse and neglect proceeding comprise duties that are performed by a lawyer on behalf of a client."   However, rather than an absolute rule of confidentiality, the court analyzed the GAL's representation of a child under Rule 1.14 (Client under disability) and noted that a child's direction to an attorney must be given some degree of consideration but it is not binding as would be a competent adult client's direction.  The court held that the GAL's dual role as representative of the child and representative of the court required balancing the confidentiality duty.  It held "Where honoring the duty of confidentiality would result in the children'ss exposure to a high risk of probable harm, the guardian ad litem must make a disclosure to the presiding court in order to safeguard the best interests of the child."  However, since the information had been disclosed, the court concluded that the trial court did not abuse its discretion in refusing to remove the GAL.

In re Christina W, Sissy W and Lisa W, 2006 W. Va. LEXIS 131 (November 29, 2006)
(Opinion on the web) (last visited December 5, 2006 bgf)

December 8, 2006 in Attorneys | Permalink | Comments (1) | TrackBack (0)

Case Law Development: Using a Power of Attorney to Assign Visitation Rights

May a parent exercise a power of attorney to designate other family members to exercise that parent's visitation rights?  The answer is not terribly clear under most state law, but under Idaho's statute providing for a power of attorney to delegate parental powers, the answer is much clearer according to the Idaho Supreme Court. That case involved a father who, while serving military duty in Iraq, had assigned his visitation rights to his parents.  Mother argued that the Idaho statute should not be interpreted to allow such a designation, as it "contravenes the purpose of the power of attorney statute and removes from the courts the power to scrutinize such decisions prior to the designation."  The Supreme Court of Idaho interpreted the statute according to its literal wording and found that it did indeed provide him authority to designate his visitation rights.  The Idaho statute, expressly allows for parents to create temporary guardianships through execution of a power of attorney for a period of up to six months. 

What makes this case easy for the court is the presence of the statute allowing appointment of a temporary guardian through the power of attorney.  The statute is modeled on 5-104 of the Uniform Probate Code, which has been adopted by at least18 states. (See the National Center for State Court's listing or Cornell Law School's LII Uniform Probate Code locator)  For states without such a statute, it would be unclear whether a parent would have the ability to designate a temporary guardian without a court order.  Some states provide for the use of POAs for medical or educational purposes only.  A 2002 student comment in the Journal of the AAML surveys this and other state guardianship provisions.

Webb v. Webb, 2006 Ida. LEXIS 152 (November 29, 2006)
Opinion on the web (last visited December 4, 2006 bgf)

December 8, 2006 in Visitation | Permalink | Comments (0) | TrackBack (0)

Thursday, December 7, 2006

New York City Reconsiders Allowing People to Change the Sex on Their Birth Certificates

"City health officials Tuesday backed off a plan that would have allowed New Yorkers to switch the sex on their birth certificates without undergoing sex-change surgery. Health Commissioner Thomas Frieden said the issue needed further study, in part to guarantee it wouldn't conflict with federal rules now being developed. Like most other cities and states, New York has long allowed people who have undergone sex-change surgery to get a new birth certificate reflecting the change. The city's Department of Health and Mental Hygiene had proposed in September that the policy be liberalized further to include people who had taken other steps short of surgery to irrevocably alter their gender identity. The new policy, for example, would have allowed birth record changes for people taking hormones to alter their appearance. The plan would have made the city the first in the country with such a policy, health officials said." Associate Press, N.Y.Times Link to Article (last visited 12-7-06 NVS)

December 7, 2006 | Permalink | Comments (0) | TrackBack (0)

Mary Cheney Pregnant

"Mary Cheney, a daughter of Vice President Dick Cheney, is expecting a baby with her partner of 15 years, Heather Poe, Mr. Cheney’s office said Wednesday. Lea Anne McBride, a spokeswoman for Mr. Cheney, said the vice president and his wife, Lynne Cheney, were “looking forward with eager anticipation” to the baby’s birth, which is expected this spring and will bring to six the number of grandchildren the Cheneys have. Mr. Cheney’s office would not provide details about how Mary Cheney became pregnant or by whom, and Ms. Cheney did not respond to messages left at her office and with her book publisher, Simon & Schuster. The announcement of the pregnancy, which was first reported Wednesday by The Washington Post, and Ms. Cheney’s future status as a same-sex parent, prompted new debate over the administration’s opposition to gay marriage." By Jim Rutenberg, N.Y. Times Link to Article (last visited 12-7-06 NVS)

December 7, 2006 | Permalink | Comments (0) | TrackBack (0)

Indian Tribe Consents to Lesbian "Marriage"

"An Indian tribe has given its consent to a lesbian 'marriage' in the eastern Indian state of Orissa. A priest belonging to the Kandha tribe led the ceremony between Wetka Polang, 30, and Melka Nilsa, 22, in Koraput district recently. Both the women are day labourers and now live together in Dandabadi village. Same-sex relationships are outlawed in India. The 145-year-old colonial Indian Penal Code clearly describes a same sex relationship as an "unnatural offence". Sociologists say that a community blessing a same-sex 'marriage' is unheard of in India." by Sanjaya Jena, BBC News Link to Article (last visited 12-7-06 NVS)

December 7, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Interview With Child Bride

"In some parts of the world children can find themselves married before they've even become teenagers. As part of the BBC's Generation Next series, one such bride - Nigerian Sa'adiyya Shu'aibu Dambatta, who is now happily married to someone else - talks about her first marriage. "I was married off when I was just 12 years old - and very immature. No-one has asked me whether I liked the man or not. When it was time for the marriage, I just heard that I had been married to him. I was then taken to his house, but I did not stay. I suffered a lot. I would run away from the house at one o'clock or two o'clock in the night, and go to my parents." BBC News, Link to Article (last visited 12-71-6)

December 7, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)