Saturday, January 7, 2006
Wisconsin Governor Jim Doyle vetoed a Republican-backed bill Friday that would have forced doctors to tell women seeking an abortion after their fifth month of pregnancy that the fetus could suffer pain. When a fetus can feel pain is debated in the medical community. The Democratic governor said that there is no evidence conclusively proving when a fetus can feel pain, and the state Legislature should not be allowed to decide what is a scientific fact. Source: channel3000.com. For more information, please click here (last visited January 7, 2006, reo). Wisconsin 2005 Senate Bill 138 can be found at this site (last visited January 7, 2006, reo).
Abortion would be illegal for most women in the state of Indiana, including victims of rape and incest, under a bill filed this past week in the Indiana House. The only exception allowed under House Bill 1096 would be for women whose health or life would be permanently impaired if a pregnancy continued. The bill would define life as beginning at conception and make it a felony to perform all other abortions. Anyone convicted would face up to eight years in prison. Passage of the bill in the Indiana House is expected, however, it remains unclear whether the measure will be approved in the Senate. Source: Mary Beth Schneider and Michele McNeil, USAToday.com. For the complete story, please click here (last visited January 7, 2006, reo). Indiana House Bill 1096 may be found at this site (last visited January 6, 2006, reo).
The father and stepmother of two young boys could face felony charges after it was discovered they left the children alone at their home in San Francisco while they rang in the new year in Las Vegas. Jacob Calero and Michelle De La Vega are being held on suspicion of two felony counts each of child endangerment. Police say the 9 year old and 5 year old boys spent two nights alone while their father and stepmother were in Las Vegas last weekend. Neighbors allegedly found the 5 year old child in the garage screaming for help. Bail for the two was set at $200,000. Source: kvbc.com. For additional information, please click here (last visited January 7, 2006, reo).
Georgia Legislature Considers Reducing Child Support Payments if Parent Spends More than 90 Days a Year With the Child
Parents who pay child support could see their payments reduced if they spend more than 90 days a year with their children under a bill filed Thursday for the 2006 session of the Georgia State Legislature. Senate Bill 382 would provide those parents with a 10 percent break. Parents who spend even more time with their children would see greater reductions. The measure is expected to be a sticking point in a bill that would put the finishing touches on a law passed last year that overhauls the way child support is figured. That law, which takes effect July 1, says that judges calculating child support must take into account both parents' income. It also gives parents who spend at least 100 days with their children a way to reduce payments. Source: Craig Schneider, The Atlanta Journal-Constitution, ajc.com. For more information regarding this legislation, please click here (last visited January 7, 2006, reo). Please click here to go to Georgia Senate Bill 382 (pre-file) (last visited January 7, 2006, reo).
Friday, January 6, 2006
Many states use marriage license fees to fund family violence prevention and intervention programs. The Texas legislature tried to raise funds at the end of marriage as well by increasing the filing fee for divorce actions by $30; however, the Texas Attorney General has held this increase to be an unconstitutional infringement on Texas open courts guarantees.
According to news reports, "The fee was part of sweeping legislation to overhaul the state's child and adult protective services agencies and would have generated an estimated $2.6 million annually. Abbott's ruling does not affect the other provisions of the legislation, Senate Bill 6. The state currently funds child-abuse protection programs through a $15 fee on marriage licenses."
The Attorney General's opinion is available on the web at http://www.oag.state.tx.us/opinions/ga/ga0387.pdf (last visited January 6, 2006 bgf)
President George W. Bush today signed into law H.R. 3402, the Department of Justice Appropriations Authorization Act, which includes re-authorization of the Violence Against Women Act (VAWA). House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.) was the sponsor of H.R. 3402. The legislation authorizes appropriations for the Department of Justice for fiscal years 2006 through 2009 and implements reforms to the Department’s grant programs, particularly relating to privacy and use of grant funds. Establishes an office to monitor grant expenditures and a privacy officer. Most importantly, the act reauthorizes for 2007-2011 core programs from the Violence Against Women Act of 1994 and 2000 and makes improvements to those grant programs to enhance the ability to combat domestic violence, dating violence, sexual assault and stalking. The STOP program, which provides state formula grants that help fund collaborative efforts between police and prosecutors and victim services providers is reauthorized and new grants are authorized to improve training for court officials and law enforcement.Information about H.R. 3402 is available at http://judiciary.house.gov/media/pdfs/DOJauthHousepass121705.pdf (Last visited January 6, 2006 bgf).
Legislative Development: Wisconsin Requires Police to Identify Primary Aggressor in Making Domestic Violence Arrests
Wisconsin Governor Jim Doyle signed into law legislation that clarifies Wisconsin's domestic violence laws. The new law requires that law enforcement officers identify and arrest only the "predominant aggressor" in a domestic abuse case. "Predominant aggressor" is used rather than the common term "primary aggressor" in order to make clear that the first person to strike is not necessarily the person who should be arrested. The law is intended to help law enforcement determine which party is the worst aggressor in the dispute, and avoid arresting the victim.
According to the Wisconsin Democratic Party press release on the legislation: " It is estimated that in some communities, as many as 40 percent of the domestic abuse cases involve the "dual arrest" of both parties involved. Despite the intent of current law, which requires the arrest of the "primary aggressor," victims are often arrested because they have inflicted physical harm on their attackers in self-defense. Arresting the victims in domestic abuse cases often discourages their future cooperation with law enforcement and their involvement in beneficial community services available to them."
The text of the legislation is available on the web (last visited January 6, 2006 bgf).
Thursday, January 5, 2006
"Sally Erickson and David Renzie thought they had the secret to marital bliss. But the eccentric list of demands outlined in their prenuptial agreement, which included mandatory backrubs and a $5 fee for nagging, still couldn't save their marriage.Now Erickson, 61, is suing Renzie, 62, for allegedly divorcing her in secret more than two years ago, according to Seminole County court records.Before saying 'I do' in 2001, the Florida couple agreed to a quirky prenuptial agreement. Erickson, a mental-health counselor, promised to cook breakfast a minimum of three times during the weekdays, and once on the weekends, according to the document.
"In return, Renzie will not wake Sally up on her 'off days,'" the document said.The agreement also required Renzie to rub Sally's back three times a week for five minutes. If Sally used the "F" word, she was sentenced one hour of yard work. Renzie had to pay $5 each time he complained, nagged or made "a fuss about Sally's expenditures ..."" By The Associated Press in The Times-Picayune Link to Article
"They're on, they're off, and apparently, they're off. Lawyers for Charlie Sheen and Denise Richards filed legal papers Wednesday asking a private judge to handle their divorce, Sheen's publicist said.
"They asked the court to go to a private arbitrator. They want to keep it private," publicist Stan Rosenfield said. He wouldn't comment further. Richards' publicist, Cheryl Maisel, also confirmed the filing but refused to elaborate. The papers, filed in Los Angeles Superior Court, requested that the case be taken out of court and assigned to retired commissioner Jill S. Robbins." By the Associated Press Link to Article (last visted 1-4-06 NVS)
Wednesday, January 4, 2006
Case Law Development: South Dakota Supreme Court Says Spanking Unruly Child May Constitute Child Abuse
Without ruling that spanking an unruly child with a belt goes beyond the boundaries of a state law allowing corporal punishment, the South Dakota Supreme Court has decided that a Huron woman went overboard in correcting her daughter. It observed that “While the spanking left no bruises on C.F., it did leave her with enough pain that she sat down in a guarded manner . . . some thirty to forty-five minutes after the strikes were administered.” The decision upheld an earlier ruling by Circuit Judge Jon Erickson, who said it was child abuse when the girl was struck several times on the buttocks with a belt. In 2002 the South Dakota House Judiciary Committee rejected a measure that would have made spanking a child abuse felony. Sources: usatoday.com., HSLDA.org. Please click here for current story (last visited January 4, 2006, reo). Please click here for 2002 story (last visited January 4, 2006, reo). The decision by the South Dakota Supreme Court, In the Interests of C.F., filed December 28, 2005, may be found here (last visited January 4, 2006, reo).
Additional information on this topic can be found at: Professor Barbara Glesner-Fines, Family Law Prof Blog, posted December 20, 2005, Case Law Development: “When is Spanking a Grounds for Termination of Parental Rights?”
A 3-year-old Florida boy died after his mother allegedly held him in a tub of scalding water as punishment on Christmas Day. The mother and the child’s grandmother allegedly failed to seek medical attention for his burns for a week with burns over 50 percent of his body. The child was pronounced dead a half-hour after receiving a 911 call last Sunday. It is not clear why the child was being punished. Source: Gary Taylor, Amy L. Edwards, Orland Sentinel, orlandosentinel.com. For the complete story, please click here (last visited January 4, 2006, reo).
Massachusetts Gay Marriage Supporters File Lawsuit to Block Proposed Constitutional Amendment that would Outlaw Same-Sex Unions
Massachusetts Gay marriage supporters filed a lawsuit Tuesday in an effort to block a proposed constitutional amendment that would outlaw same-sex unions. The lawsuit challenges State Attorney General Tom Reilly's ruling that the ballot question would not violate the state constitution. Source: Steve LeBlanc, Associated Press, Yahoo News, yahoo.com. Please click here for more details (last visited January 4, 2006, reo).
A couple may seek court-ordered visitation with the 8-year-old daughter of a woman they helped raise, even though they are not related by blood or marriage to either the mother or child, the Pennsylvania Supreme Court ruled. A dissenting justice warned that the new interpretation of Pennsylvania's Grandparent Visitation Act may lead others to push for access to children to whom they are not related. Source: Mark Scolforo, AP, phillyburbs.com. For the complete story, please click here (last visited January 4, 2006, reo). The Pennsylvania Supreme Court decision, Peters v. Costello, decided December 30, 2005, may be found here (last visited January 4, 2006, reo).
Case Law Development: North Carolina Court of Appeals Upholds Denial of Attorney Fees in Pro Bono Divorce Case
A North Carolina woman who sought attorney fees despite being represented for free in a child support and custody case isn't entitled to have her legal bills paid, the state Court of Appeals ruled Tuesday. At a hearing on alimony and lawyer fees, the woman’s attorney said he had incurred costs of about $2,400 and asked that his client be given that amount. A lower court judge found that she wasn’t due any money from the courts since the lawyer had agreed to represent her for free. The trial court had found that the woman’s ex-husband earned $81,000 a year operating a hair salon while she earned $14,000 a year working at a beauty supply house and her expenses exceeded her income by about $1,000 a month. The dissent observed that the fact that the wife's legal services were provided pro bono was of no consequence in determining whether she is eligible for an award of attorney fees. He wrote that "The fact that wife could not pay her counsel's fees does not mean that the services provided by a sympathetic lawyer were without value." Source: WRAL.com. For the complete story, please click here (last visited January 4, 2006, reo). To read the full opinion of the North Carolina Court of Appeals in Patronelli v. Patronelli, filed January 3, 2006, please click here (last visited January 4, 2006, reo).
The Utah Court of Appeals affirmed a lower court judge's refusal to dismiss a sexual abuse allegation in a delinquency petition against a 13-year-old Ogden, Utah girl who became pregnant by her 12-year-old boyfriend. The appeals court on Friday ruled “with some reluctance” that the law's "rigorous protections" for younger minors include protecting them from each other. The decision leaves the teens in the position of each being both a victim and a perpetrator in the same offense. Source: AP, Daily Herald, heraldextra.com. For the complete story, please click here (last visited January 4, 2006, reo). To read the decision by the Utah Court of Appeals in the case of Z.C. v. State of Utah, filed December 30, 2005, please click here (last visited January 4, 2006, reo).
The American Civil Liberties Union filed a petition Monday with the Inter-American Commission on Human Rights (IACHR) on behalf of Jessica Gonzales, the mother of three girls killed by her estranged husband whose domestic violence protection claims were rejected by the United States Supreme Court. The petition, the first of its kind, asserts that domestic violence victims have the right to be protected by the state from the violent acts of their abusers. Source: infozine. For the complete story, please click here (last visited January 4, 2006, bgf).
Tuesday, January 3, 2006
The Hawai'i Supreme Court held that a father's challenges to that state's Uniform Parentage Act were "palpably without merit and long ago put to rest by well-settled precedent." Father had argued that the HUPA is unconstitutional because it violates his rights to privacy and equal protection, in that a mother has a right to an abortion but a father does not have an equivalent right to terminate his parentage upon discovering a pregnancy. He also argued that, as a full time student, the court's order of $50 a month child support violated his constitutional right to be free from compulsory service. In rejecting each of these arguments, the court noted that "each of these contentions has been determined to be frivolous or manifestly without merit by other courts."
The court concluded that an award of attorneys fees as sanction for a frivolous appeal was justified, noting, "The allegedly penurious father, unable to afford $ 50 per month to support his child, commanded his attorney to doggedly pursue an appeal with no chance of success, file numerous pointless motions, and force the state to expend large amounts of taxpayers' money to defend the child support regime from meritless attacks."
Child Support Enforcement Agency v. Doe, 2005 Haw. LEXIS 651 (December 27, 2005)
Opinion on the web at http://www.courts.state.hi.us/page_server/LegalReferences/73DFB8859867A628EAE7AB3DC5.html (last visited January 2, 2006 bgf)
In a classic case study of alimony in a long-term marriage, the Missouri Court of Appeals reversed a trial court’s decision to award limited, non-modifiable maintenance of $1000 a month, holding that the facts of the case could not justify such a limited award.
During their twenty-two-year marriage, Wife, at Husband’s insistence, did not work outside the home. Without any assistance from Husband, she cares for the household and raised the children. She also acted as Husband’s bookkeeper for his profitable trucking business (for which Husband did not pay her because it caused her to accumulate Social Security) and doted on her husband (to the point that the court notes that she bathed him and gave him regular pedicures). After a two-year affair with a co-worker, husband filed for divorce. The trial court awarded the vast majority of the assets to Husband and awarded Wife $1000 a month nonmodifiable maintenance for two years. Wife appealed only the maintenance.
The Court of Appeals held that $1000 a month was insufficient given the facts and suggested an award of twice that to be more appropriate. Husband and Wife had maintained a relatively high standard of living during the marriage. Wife’s expenses after divorce exceeded her income by approximately $4000 a month.
Limited duration maintenance was inappropriate as “there was virtually no evidence that Wife would be able to find appropriate employment or acquire sufficient education or training within two years…. Wife has a high-school education; however, the expert witness, hired by Husband, testified that though Wife could read at the high-school level, her spelling and arithmetic were at the eighth-grade level.” Wife was currently working two part-time jobs, but the trial court had imputed earnings to her based on a full-time job. The appellate court found this inappropriate, as she had never held a full-time wage-earning job. “The limitation on her earnings was at Husband's insistence as he felt she should be home with the children. …. In short, at forty-five years of age and being out of the workforce for twenty years, Wife has no viable work history.”
The court noted the strict division of roles in the marriage as an additional factor favoring maintenance of a larger amount and unlimited duration. “It was also admitted by Husband that he did not participate in any household chores, that Wife virtually did any and all household and childcare chores. On the other hand, Husband used his twenty-plus years during the marriage to build and maintain his business acumen, free from the responsibilities of caring for the household. He had no health issues and was able to produce substantial income.”
As to making the award non-modifiable, the court commented, “we are unable to conclude that there are no circumstances under which a non-modifiable order would be authorized; however, we perceive that they would be exceedingly rare.”
Van Shannon v. Shannon v. Shannon, 2005 Mo. App. LEXIS 1952 (December 30, 2005)
The Michigan Court of Appeals decided two cases this past week regarding conduct that violates a protective order. Both cases involve the same divorced couple and the same protective order, but two separate violations of that order. The court in each case held that the conduct complained of did indeed violate the order.
In the first case, Father was convicted of criminal contempt after leaving a message for his children on Mother's answering machine. The protective order, issued after Mother alleged that Father had threatened, beaten and stalked Mother after their divorce, prohibited Father from contacting Mother, but did allow him telephone contact with the children though only at prearranged times. Father had called twice, leaving a message for the children on the answer machine one time and asking Mother to put the children on the phone another. The Michigan Court of Appeals held that the order was clear enough to support a contempt conviction for these phone calls.
Ottevaere v. Tweddle, 2005 Mich. App. LEXIS 3216 (December 20, 2005)
Opinion on the Web at http://www.michbar.org/opinions/appeals/2005/122005/29889.pdf (last visited January 2, 2006 bgf)
Father was also convicted of criminal contempt for driving by Mother's house. The house was on a dead-end street and Mother's fiance and her son both saw Father driving slowly by the house with his car window rolled down. Father argued that the protective order only prohibited him from statutory stalking, "so the court was required to find beyond a reasonable doubt that he committed a course of conduct involving two or more instances of harassment before it could hold him in contempt." The court rejected this argument, holding that "the court originally granted the PPO because it found that petitioner had established a course of harassing conduct by respondent. Therefore, any further violation, including respondent’s arrival at petitioner’s home, would merely add to the established series and continue the harassment, contrary to both the statute, MCL 750.411h, and the very plain language of the PPO.
Ottevaere v. Tweddle, 2005 Mich. App. LEXIS 3196 (December 20, 2005)
Opinion on the web at http://www.michbar.org/opinions/appeals/2005/122005/29926.pdf (last visited January 2, 2006 bgf)
Thanks to Michigan Attorney Jeanne Hannah for highlighting these cases on her blog.
Monday, January 2, 2006
"The 2006 State of the World's Children report focuses on excluded and invisible children who have no access to essential services, protection and participation.The complete text, charts, graphs, maps, tables, photographs and the index are available in PDF, both as one single file and in parts." By Unicef Link to Report (last visted 1-1-06 NVS)