March 11, 2006
Case Law Development: Arkansas Supreme Court Rules Father Has No Rights to Child Born Without His Knowledge As He Failed to Adequately Protect His “Opportunity Interest”
The Arkansas Supreme Court, over the dissent of the Chief Justice, ruled Thursday in Escobedo v. Nickita that a biological father has no right to the custody of his biological daughter born out of wedlock because he failed to take “positive steps” to legitimate the child. It held that his "opportunity interest" in forming a relationship with his infant daughter was "adequately protected by his receipt of an adoption notice four business days before an adoption hearing regarding a child he did not know existed. He failed to adequately protect those interests.
The parties had a brief romantic relationship which resulted in an unprotected sexual encounter in March of 2004. The biological father, Mr. Escobedo, did not see or talk with the mother after this encounter, and did not know that the encounter had resulted in her pregnancy. A petition for adoption was filed on November 19, 2004, two weeks before the baby was born and almost a month before Mr. Escobedo knew that his encounter had resulted in a pregnancy and consequent birth.
Mr. Escobedo contended that once he found out he might be the father, due to the exclusion of the biological mother’s boyfriend as the father, he took positive steps to legitimate the child including paternity testing and registering with the Arkansas Putative Father Registry. However, the court found that his paternity petition was filed a month after the adoption petition and a week after the adoption hearing. His registry with the putative-father registry was still later. Consequently, the majority ruled that Mr. Escobedo had taken no significant steps to prepare for the custody of the child, which is required under Arkansas law.
In his dissent, Chief Justice Hannah said that under Lehr v. Robertson, 462 U.S. 248, 262 (1983), a putative father's attempt to establish a substantial relationship with his child determines the constitutional protection afforded the relationship. In this case, because of the short notice and the subsequent actions taken by the father following actual notice, Lehr provided him with constitutional protection. In Lehr the Court ruled that the State has an obligation to adequately protect an unwed father's "inchoate interest in assuming a responsible role in the future of his child." Escobedo v. Nikita, No. 05-315, Supreme Court of Arkansas. The Slip Opinion of the Arkansas Supreme Court can be found here (last visited March 11, 2006, reo)
Arizona House Approves Two Bills to Toughen Arizona Abortion Law
On Tuesday the Arizona House approved two bills 39-18 aimed at making Arizona's law tougher on abortions. HB2666 would require that consent forms signed by parents be notarized while HB2776 would spell out criteria, including a girl's age and experiences outside the home, that judges should consider when weighing whether to exempt a girl seeking an abortion from the consent requirement. Both bills were sent on to the Arizona Senate for consideration. Source: KVOA4-TV, kvoa.com. For the complete story, please click here (last visited March 11, 2006, reo).
Tennessee Senate Passes Abortion Ban Amendment; Sends Measure to the House
The Tennessee Senate by a vote of 24-9 passed a proposed abortion ban amendment to the State Constitution on Thursday. The proposed Amendment would read that "Nothing in Tennessee's constitution secures or protects the right to an abortion or funding of an abortion." The matter now goes to the Tennessee House. Source: NewsChannel5.com. For the complete story, please click here (last visited March 11, 2006, reo).
Proposed Abortion Legislation in Louisiana Distinguishable from South Dakota Ban
A Louisiana legislator has filed a bill in that state’s legislature this week that would ban abortions except when the mother's life is in danger and in rape and incest cases within 13 weeks of conception. Doctors found guilty of performing abortions in other situations would face up to 10 years in prison and fines of $100,000. A similar bill was passed in 1991 but ruled unconstitutional by the Fifth United States Circuit Court of Appeals. This bill is viewed as not as strict as the South Dakota bill signed into law last week that allows an abortion only to save a mother’s life. Source: Doug Simpson, AP, SunHerald.com. For the complete story, please click here (last visited March 11, 2006, reo).
Father Files Reverse Roe Claim in Michigan Federal Court
The Chicago Tribune reports that a Michigan man who claims he was tricked into fatherhood filed a lawsuit in Federal District Court in Chicago this week in an effort to establish a man's right to decide whether to have children. The man, who impregnated a woman out of wedlock, asserts that he has a constitutional freedom to "choose not to be a father" under the equal protection clause of the Constitution. Suffolk Law School Professor Charles Kindregan Jr., is quoted in the Tribune as stating that the action is a “lost cause," because the only way to enforce a man's right not to father a child after conception would be to compel the woman to have an abortion, and the courts will not compel a woman to have an abortion. Source: Judith Graham, Chicago Tribune, chicagotribune.com. For the complete story, please click here (last visited March 11, 2006, reo).
March 10, 2006
Case Law Development: When Does Spring Break Begin?
It's that time of year, when parents dispute visitation provisions regarding spring break. The Florida Court of Appeals has cleared up the calendar issue: in a case involving contempt for violation of a visitation order that provided that Father would have spring break visitation from "the time Leon County public schools close for the Spring recess until the morning the Leon County public schools reopen" the appellate court affirmed the trial court's decision that the clause was too ambiguous to uphold contempt. However, the court of appeals noted that the trial court erred in construing the clause to provide a five-day visitation period beginning on Monday and ending on Friday. Rather, spring break begins and ends on Monday morning when the school reopens.
Saunders v. Bassett, 2006 Fla. App. LEXIS 3203 (March 7, 2006)
Enjoy your spring break, whenver it begins (or began)! BGF
Case Law Development: Incompetent and Dishonest Family Law Practice
An Ohio Attorney has had his licensed suspended for two years for incompetent and dishonest representation in a number of cases. Worth bringing to the attention of the family law student is the fact that a number of the attorney's violations included telling a client to keep his children in violation of a court order to transfer the children to the other parent and sending other attorneys to hearings when those attorneys were not prepared to handle the case.
Muskingum County Certified Griev. Comm. v. Greenberger, 108 Ohio St. 3d 258; 2006 Ohio 790; 2006 Ohio LEXIS 540 (March 8, 2006)
Opinion on the web (last visited March 10, 2006 bgf)
Case Law Development: New Jersey Supreme Court Requires Appointed Counsel for Indigent Parents Facing Coercive Incarceration for Non-payment of Child Support
The New Jersey Supreme Court has joined a number of other states in concluding that, even when a court is pursuing civil child support enforcement proceedings, if an indigent litigant faces a risk of incarceration, he or she has a right to assigned counsel. The Court rejected the contention that a judge can adequately protect an indigent parent by conducting a "thorough and searching ability-to-pay hearing. However well intentioned and scrupulously fair a judge may be, when a litigant is threatened with the loss of his or her liberty, process is what matters." The court concluded that from now on in enforcement hearings, "parents facing potential incarceration must be advised of their right to appointed counsel if they are indigent and, on request and verification of indigency, must be afforded counsel. Otherwise incarceration may not be used as an option to coerce compliance with support orders."
In considering the practical implications of its ruling the court commented: "We realize that unless there is a funding source for the provision of counsel to indigent parents in [child support enforcement] proceedings, coercive incarceration will not be an available sanction. We will not use our authority to impress lawyers into service without promise of payment to remedy the constitutional defect in our system. The benefits and burdens of our constitutional system must be borne by society as a whole. In the past, the Legislature has acted responsibly to provide funding to assure the availability of constitutionally mandated counsel to the poor. We trust that the Legislature will address the current issue as well."
Pasqua v. Council, 2006 N.J. LEXIS 171 (March 8, 2006)
Opinion on the web (last visited March 9, 2006 bgf)
Case Law Developments: Acceptance of Child Support Requires Dismissal of Appeal Contesting Parentage
The Supreme Court of Delaware held that Mother's action to establish child support and acceptance of support payments from her partner required dismissal of the appeal from the trial court's award of joint custody. The disputing parents in this case are two women who, during the course of their nine-year relationship bore four children by artificial insemination from the same anonymous donor. One mother gave birth to triplets and several years later, the other mother had a daughter. The couple and the four children lived together until 2003, when the couple decided they could no longer live together. They agreed that the triplet's biological Mother would be the residential parent of the four minor children, with generous visitation for the biological Mother of the youngest daughter. After a few months, Mother of the youngest indicated that she would not abide by the agreement and took custody of the triplets.
In resolving the dispute, the trial court awarded both mothers joint custody, finding that the mother of the youngest daughter was a de facto parent to the triplets. The triplet's biological mother filed for child support and also appealed the trial court's action. The court of appeals determined that it need not reach the issue of whether Delaware recognized de facto parent status because the acceptance of benefits doctrine required dismissal of the appeal. "The "acceptance of the benefits" doctrine provides that an appeal from a judgment is prohibited when the appellant has voluntarily accepted benefits from that judgment."
Smith v. Smith, 2006 Del. LEXIS 113 (March 7, 2006)
Opinion on the web (last visited March 8, 2006 bgf)
Case Law Development: Tribal Court Has Jurisdiction over Child Dependency Case Even if Court Has Not Been Approved through Department of the Interior
The California Court of Appeals affirmed the transfer of a juvenile dependency proceeding to a tribal court pursuant to the Indian Child Welfare Act, even thought the Secretary of the United States Department of the Interior had not approved its tribal court. The court noted that Section 1911(b) of the ICWA creates "concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation: on petition of either parent or the tribe, state-court proceedings for foster care placement or termination of parental rights are to be transferred to the tribal court, except in cases of 'good cause,' objection by either parent, or declination of jurisdiction by the tribal court." The Department argued that 25 U.S.C. 1918 required the tribal court of obtain approval of the Department in order to assume jurisdiction over child custody cases, however, the court noted that the procedure contemplated by that statute was necessarily only if the tribal court sought to assert exclusive jurisdiction over these cases.
In re M.A., Coming Under the Juvenile Court Law, 2006 Cal. App. LEXIS 317 (March 9, 2006)
Opinion on the web (last visited March 9, 2006 bgf)
Case Law Development: Expert Testimony that Child Support Exceeds Average Cost of Child Rearing Not Basis for Downward Adjustment in Support
Father, who was originally ordered to pay over $8,000 a month child support based the parties' stipulation and on his annual income of over $540,000, moved to decrease his child support. The Arkansas trial court agreed that his decrease in income to about $475,000 was a basis for adjusting downward his child support, but only in proportion to that change in income. The court found that Father had not met his burden of proof that further downward adjustment was warranted based on the testimony of Father's economist expert. The expert used a consumer expenditure survey published by the United States Department of Labor and concluded that the cost of raising two children from 2004 until the time that the youngest child reached majority will range between $18,000.00 and $ 22,000.00 per year. The Arkansas Court of Appeals affirmed the trial court's decision to reject further downward adjustment. Further, the court reversed the adjustment that the trial court did provide because, even with Husband's decrease in income, the amount of child support he would pay under Arkansas child support calculation chart was about the same as that ordered in the original decree. While Father characterized his financial position as "dire" the court of appeals noted that he was able to afford a $70,000 engagement ring for his fiance and to donate $4,000 a month to charity.
Morehouse v. Lawson, 2006 Ark. App. LEXIS 200 (March 8, 2006)
Opinion on the web (last visited March 9, 2006 bgf)
March 9, 2006
Proposal to Require Prenuptial Agreement
"A proposed ballot measure would require couples to have a prenuptial agreement before marriage, limit child support payments after divorces and eliminate any penalty for a parent who refused to make them.The initiative's author, Roland Riemers of Emerado, has filed numerous state Supreme Court appeals stemming from his two divorces." By Dale Wetzel, Associated Press Writer Link to Article (last visited 3-8-06 NVS)
Wedding Dress Scam on EBay
"Blakely Smith dreamed of getting married in a Monique Lhuillier wedding gown -- the kind she'd always loved when she saw them on pop stars such as Pink in People magazine.Now she's out $2,400 to an eBay scammer, and thinking maybe she should get married in a courthouse. She wanted to tell her tale of wedding-dress-lust, clouded judgment, and wedding-dream-lost in hopes that others may avoid the pain she feels.EBay says Smith made at least two textbook mistakes en route to being scammed. What may make her case most remarkable, though, is how it ended -- in a bizarre e-mail exchange with her anonymous scammer." By Jeff Gelles, Chicago Tribune Link to Article (last visited 3-8-06 NVS)
Uma Thurman and Andre Balazs Split
"It's over for Uma Thurman and hotelier Andre Balazs, according to a statement issued by the Kill Bill actress. Speculation about the couple's breakup began at the Oscars, when Thurman turned up at the ceremony alone. The news was confirmed in a statement from Thurman's publicist Robert Garlock, who accompanied the star to an Oscar party. "Unfortunately, it is true," the statement read. "But we remain close friends."" By Todd Peterson, People Link to Article (last visited 3-8-06 NVS)
Teri Hatcher Convicts Abuser
"TERI HATCHER, the star of Desperate Housewives, has revealed that she was sexually abused by her uncle as a child — and that she told no one about it for more than 30 years, until another of his victims committed suicide. Ms Hatcher, 41, told Vanity Fair magazine that she had finally gone to the authorities in 2002, after reading a newspaper clipping about the suicide of Sarah Van Cleemput. Her agreement to testify resulted in the abuser’s conviction." By Chris Ayres, The Times Link to Article (last visited 3-8-06 NVS)
Angelina Jolie Wants Open Marriage?
"Remember the old Angelina Jolie? The sultry actress that shocked fans and people in general with her bi-sexual confessions and wild limousine escapades with then hubby Billy Bob Thornton? That gal may be back with a bit of a wedding shock and a report says if she marries new lover Brad Pitt she wants an 'open marriage.'The report suggests that Jolie would like to be able to sleep with Brad, and also have the option to have sex with men and women alike outside of the 'marriage.'" By Susan Hatch, The National Ledger Link to Article (last visted 3-8-06 NVS)
Attorneys for Celebrities Give Advice
"Hoping to help stem the tide of this epidemic, writer/attorney Wendy Jaffe set out to write “The Divorce Lawyers’ Guide to Staying Married” . In order to pinpoint the primary causes of divorce and how best to avoid them, Jaffe conducted in-depth interviews with 100 of America’s top divorce attorneys, including several who can count among their clients some of America’s biggest names. Her impressive list includes, among others: Eleanor Breitel Alter (who represented Mia Farrow in her divorce from Woody Allen) Irwin Buter (repped Viacom’s Les Moonves), Bruce Clemens (Brad Pitt), Robert Nachshin (Barry Bonds, author Terry McMillan), Sorrell Trope (Nicolas Cage, Rosanne Barr) and Dennis Wasser (Tom Cruise, Alec Baldwin). Jaffe’s father, prominent Beverly Hills attorney Daniel J. Jaffe—whose renowned firm has represented Nicole Brown Simpson (in her divorce from O.J.), and the wives of media mogul Rupert Murdoch and director James Cameron—wrote the foreword to the book.
The attorneys’ consensus was that two-thirds of divorces are entirely avoidable if couples learn to identify and treat the key symptoms of divorce. Jaffe outlines how to diagnose and treat these symptoms, involving everything from low-sex marriages, infidelity, addiction, abuse, workaholics and “kidaholics”, blended families, dealing with exes and in-laws, the “Clone Syndrome” and its impact on second marriages—to even the most basic of issues, such as unrealistic expectations and poor communication." By Bonus Books Press Center Link to Article (last visited 3-8-06 NVS)
March 8, 2006
Hawaiian House Repeals Abortion Residency Rule – Sends Bill to Senate
Hawaiian House Bill 1242 repeals the state’s residency requirement for women seeking abortions and allows the procedure to be performed in clinics and physicians' offices outside of a hospital. It has passed the state House of Representatives and has been sent to the state Senate for consideration. It is viewed by some as promoting abortion and others as bringing Hawaiian law up-to-date. Some opponents argue it will make Hawaii “a haven for women seeking abortions and lead to unsafe procedures performed without proper medical supervision.” Source: B.J. Reyes, Honolulu Star Bulletin, starbulletin.com. Please click here for the complete story (last visited March 8, 2006, reo).
Case Law Development: Supreme Court Rejects Review of Ohio Decision Favoring Grandparents
The Supreme Court refused Monday to consider an appeal in a case involving an Ohio father who asked that the Court strike down Ohio visitation laws on the grounds that they interfere with a parents' right to raise a family free from government interference. Certiorari denied, March 6, 2006, 05-871. The father, who had never married the girl’s mother, won custody of the child but refused to allow her to see her maternal grandparents. The Ohio Supreme Court ruled that the girl should be allowed to maintain contact with the grandparents who had raised her until she was 5 years old.
The father, Brian S. Collier, shared a relationship with the mother that produced a daughter in 1997. They never married, and following the child’s birth, the child’s mother was designated as her residential parent and the father received supervised visitation with the child twice a week. From her birth, the child resided with her mother at the home of her maternal grandparents. The child’s mother was suffering from cancer, and the grandparents cared for her and their granddaughter until the mother’s death in 1999. Following their daughter’s death, the grandparents were granted temporary legal custody of the child. The father later filed for legal custody and in 2002 an Ohio Juvenile Court designated him as the residential parent. On July 31, 2002, he removed the child from her grandparent’s home, where she had lived for the previous five years, and refused to permit any further visitation her and her grandparents.
A juvenile court judge found that visitation with the grandparents was in the child’s best interests, but refused to allow it on the theory that Troxel v. Granville 530 U.S. 57 (2000), requires courts to find “overwhelmingly clear circumstances” that support forcing visitation for the benefit of the child over the opposition of the parent. It said there was insufficient proof in the record to find overwhelmingly clear circumstances for overruling the wishes of the child’s father.
The Ohio Supreme Court disagreed with the trial judge’s theory. It observed that “The plurality [in Troxell] stated that the problem was not that the trial court intervened into the private realm of the family, but that when it did, `it gave no special weight at all’ to the mother’s determination of her daughters’ best interests. The plurality stated that if a fit parent’s decision regarding nonparental visitation becomes subject to judicial review, `the court must accord at least some special weight to the parent’s own determination.’ However, the plurality explicitly declined to “define * * * the precise scope of the parental due process right in the visitation context.”
The Ohio Supreme Court observed that Ohio’s statutes are more narrowly drawn and capable of a more narrow construction than the Washington statute in Troxel. It held that courts are, of course, obligated to afford some special weight to the wishes of parents of minor children when considering petitions for nonparental visitation made pursuant to R.C. 3109.11 or 3109.12. However, “Ohio’s nonparental-visitation statutes not only allow the trial court to afford parental decisions the requisite special weight, but they also allow the court to take into to consideration the best interest of the child and balance that interest against the parent’s desires. Further, while Troxel states that there is a presumption that fit parents act in the best interest of their children, nothing in Troxel indicates that this presumption is irrefutable. The trial court’s analysis of the best interests of a child need not end once a parent has articulated his or her wishes. By stating in Troxel that a trial court must accord at least some special weight to the parent’s wishes, the United States Supreme Court plurality did not declare that factor to be the sole determinant of the child’s best interest. Moreover, nothing in Troxel suggests that a parent’s wishes should be placed before a child’s best interest. The state has a compelling interest in protecting a child’s best interest.”
The Ohio Supreme Court held that the trial court properly placed the burden of proving that visitation would be in the best interest of the minor child on the grandparents, thereby honoring the traditional presumption that a fit parent acts in the best interest of his or her child. However, the trial court misinterpreted Troxel as requiring courts to find “overwhelmingly clear circumstances” to support forcing visitation for the benefit of the child over the opposition of the parent. “Troxel did not articulate such a standard.” Harold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, certiorari denied, March 6, 2006 (reo). Download here Ohio decision, Harold_v_Collier_grandparent_visitation.pdf
Legislative Development: South Dakota Governor Signs Bill Banning Abortions
South Dakota’s Governor Mike Rounds signed into law March 6 a state statute that outlaws all abortions in that state except for those performed to save a mother's life. Physicians who perform an abortion contrary to the statute could receive up to a $5,000 fines and a prison sentence. It is the most sweeping abortion ban in the nation and sets up a direct challenge to Row v. Wade. Source: Robert Marus, ABP News.com. For the complete story, please click here (last visited March 8, 2006, reo).