March 8, 2006
European Court of Human Rights Denies British Woman’s Use of Embryos Without Partner’s Consent
The European Court of Human Rights ruled 5-2 Tuesday that a British woman could not use embryos created in 2001 with her fiancé because he had since withdrawn his consent. They also ruled unanimously that an embryo has no independent right to life and that the woman had not been discriminated against for being infertile. The woman, who was left infertile after cancer treatment, said that she was devastated by the ruling. She and her then fiancé had begun IVF treatment in 2001 after she was diagnosed with ovarian cancer. Six embryos were placed in storage before her ovaries were removed. Source: Alexandra Frean, Timesonline, Timesonline.com.uk. For the complete story, please click here (last visited March 8, 2006, reo). The Ruling by the European Court of Human Rights can be found here. Live interviews and analysis on NPR may be found here. (last visited March 8, 2006, reo).
Mexican Government to Compensate Woman Denied an Abortion after Rape
It is reported that Mexico’s government will offer a financial settlement to a woman who was raped at 13 and then denied an abortion in violation of Mexican law. "This is the most important legal victory for women in Mexico in a decade," said Luisa Cabal of the Center for Reproductive Rights, a New York-based rights group. "It is the first time a Latin American government has acknowledged that access to legal abortion is a human right." Source: Marion Lloyd, Houston Chronicle, chron.com. For the complete story, please click here (last visited March 8, 2006, reo).
Lesbian Couple Successful in Discrimination Lawsuit in Ireland
A lesbian couple, who were evicted from an Irish bar because they were kissing and hugging, won a discrimination lawsuit against the bar owner in that country. The Judge found that the conduct of the bar owner had violated section 19 of the Irish Intoxicating Liquor Act, 2003. The Equality Authority chief executive officer was quoted as saying that "The incident was traumatic for them yet they have come forward as valuable role models for the gay and lesbian community in challenging homophobia." Source: GCN.IC. For the complete story, please click here (last visited March 8, 2006, reo).
March 7, 2006
Case Law Development: Use of Contempt in Divorce Litigation
The Wisconsin Court of Appeals reversed a trial court's improper use of remedial civil contempt to cure a delinquent and dishonest response to a court order. The case involved a couple divorced in 1993 after a ten-year marriage. According to the court "the ensuing litigation-a bitter tangle of alleged fraud, misrepresentation, unfairness, contempt, public policy arguments, overtrial and garden-variety buyer's remorse-has worn on longer than the marriage that spawned it. In its painstaking attempt to undo this Gordian knot, the circuit court mistook remedial contempt for Alexander's sword. We commend the court for its efforts, but conclude nonetheless that its remedy cannot be sustained."
Husband had failed to provide Wife copies of his tax return as ordered by the court. When he finally produced the returns, they revealed that he had understated his income. The court ordered that he pay Wife $10,000 as remedial contempt. The court of appeals found that the contempt order could not have been for the purposes of coercing compliance, as Husband had already complied with the order to produce the taxes; nor could it properly be upheld as compensatory contempt as there was no proof that the failure to timely produce the returns damaged Wife in the amount of the contempt. Rather, the court was attempting to use remedial civil contempt for what was essentially criminal contempt.
Frisch v. Henrichs, 2006 Wisc. App. LEXIS 193 (March 1, 2006)
Opinion on the web (last visited March 6, 2006 bgf)
New York Matrimonial Commission Urges Legislature to Consider Adopting No-Fault Divorce
A Matrimonial Commission appointed by New York Chief Judge Judith S. Kaye, to study the legal problems of divorce in New York has issued a report with findings and recommendations for changes in New York divorce laws and practice. The changes include:
- more emphasis on mediation
- streamlined court procedures
- the hiring of social workers
- parent education
- sensitivity training
- and changes in terminology -- for example, “visitation” would become "parenting time."
There is one recommendation, though, that is highly controversial. The commission says it is time for the New York state legislature to enact "no fault divorce." From The Gotham Gazzette http://www.gothamgazette.com/article/law/20060307/13/1781
To read the report, http://www.courts.state.ny.us/reports/matrimonialcommissionreport.pdf (last visited December 7, 2006 bgf)
Case Law Development: Trial Courts May Not Prohibit Bankruptcy or Require Continued Military Service as Means of Enforcing Divsion of Pension
The Florida Court of Appeals reversed a trial court's order regarding Husband's military pension because the order contained language exceeding the trial court's power. For example, the order provided that husband could not merge his military pesnions with disability benefits, had to remain "an active member of the military until such time as his retirement benefits are fully vested," and could not declare bankruptcy. The appellate court noted that the court does not have the power to make these orders in a dissolution action. Moreover, the trial court's order suggested that payments due wife "shall be enforceable by contempt power of the Court" which the court of appeals noted would not be true as the division of the pension is a judgment dividing property, not an equitable order enforceable through contempt.
Oglesby v. Oglesby, 2006 Fla. App. LEXIS 3041 (March 3, 2006)
Opinion on the web (last visited March 6, 2006 bgf)
Case Law Development: Remarriage and New Children not Changed Circumstances Justifying Custody Modification but Bonding with New Siblings May Be
The Alaska Supreme Court reversed a trial court's dismissal of a motion to modify custody in a case in which Mother was awarded primary custody with visitation schedule for preschooler, which was scheduled to become more limited when the child entered kindergarten. In the meantime, Father remarried and adopted two children. Trial court erred in not granting evidentiary hearing on father's motion to modify custody or visitation, because, while remarriage and new siblings are not a change in circumstances in the original bases for the custody order, the sibling bonding he alleges might provide a basis for a change in visitation at least. The court noted that "if a parent demonstrates a significant change relative to certain facts and circumstances that existed at the time of the prior custody order, but not others, the appropriate remedy is a limited modification focusing only on the changed facts and circumstances."
Robertson v. Phillips, 2006 Alas. LEXIS 32 (March 1, 2006) bgf
Case Law Developments: Dealing with Depreciation Deductions in Calculating Child Support
The Nebraska and Iowa courts have addressed the proper method to address depreciation deductions in calculating income from self-employment for child support purposes. In both cases, the court had dissallowed the entirety of depreciation deductions in calculating the income of the self-employed farmer fathers.
In Nebraska, the supreme court concluded that, so long as deductions do not represent artificial treatment of assets for the purpose of avoiding child support obligations, the court should include depreciation deductions in calculating income, using the straight-line depreciation method. Only after arriving at a child support amount based on this income may the court consider whether a deviation from the presumed child support amount is necesssary. In this case, the trial court had determined that Husband - a self-employed farmer - was entitled to a depreciation deduction, but it did not then use the straight-line method for calculating the deduction. Rather, the court used Husband's depreciation figures from his taxes, which used a declining-balance method, and then added back one-half of the depreciated amounts in order to arrive at Husband's income for child support purposes. The Nebraska Supreme Court reversed because the trial court had manipulated the amount of income in order to vary the support amount under the guidelines. Instead, the court required trial courts to follow a strict two-step process: "Deviations from the guidelines must take into consideration the best interests of the child, and in the event of a deviation, the trial court must state the amount of support that would have been required under the guidelines absent the deviation and include the reason for the deviation in the findings portion of the decree or order ..."
Gress v. Gress, 271 Neb. 122; 2006 Neb. LEXIS 33 (March 3, 2006)
Opinion on the web (last visited March 6, 2006 bgf)
The Iowa Court of Appeals addressed the same issues, affirming the trial court's decision to disregard husband's depreciation deductions in order to provide adequate child support.
In re Marriage of Ruth, 2006 Iowa App. LEXIS 178 (March 1, 2006)
Opinion on the web (last visited March 6, 2006 bgf)
March 6, 2006
Shackling of Prisoners Who Are Giving Birth
"Shawanna Nelson, a prisoner at the McPherson Unit in Newport, Ark., had been in labor for more than 12 hours when she arrived at Newport Hospital on Sept. 20, 2003. Ms. Nelson, whose legs were shackled together and who had been given nothing stronger than Tylenol all day, begged, according to court papers, to have the shackles removed. Though her doctor and two nurses joined in the request, her lawsuit says, the guard in charge of her refused. "She was shackled all through labor," said Ms. Nelson's lawyer, Cathleen V. Compton. "The doctor who was delivering the baby made them remove the shackles for the actual delivery at the very end."
Despite sporadic complaints and occasional lawsuits, the practice of shackling prisoners in labor continues to be relatively common, state legislators and a human rights group said. Only two states, California and Illinois, have laws forbidding the practice." By Adam Liptak, New York Times Link to Article
Adoption and Safe Families Act and Mothers in Prison
"Mothers in prison often have sentences long enough that they run afoul of a 1997 federal adoption law and they lose all parental rights--no letters, no phone calls, no birthday cards allowed. . . . In late 1996, Spruill began serving a five-year sentence in an Illinois prison for various property crimes that stemmed from drug abuse. One of her sons was placed in foster care. Another, born in prison, followed. But Spruill was determined to eventually reunite with her children, so she began rehabilitating herself, taking parenting-skills courses and undergoing substance-abuse treatment.Her efforts appeared to pay off. After two years, Spruill was released into a halfway home and she began the necessary court proceedings to get her kids back. There, however, she encountered the Adoption and Safe Families Act, a federal law passed in 1997 that requires states to move to sever a parent's right to a child after he or she has spent 15 months in foster care.
"Too little, too late," is what a state attorney told her. After waging a legal battle for almost a year, she surrendered her parental rights in 2000 so that her sons' foster parents could adopt them." By Ann Farmer, Women'sENews Link to Article (last visited 3-5-06 NVS)
World Bank Report on Child Malnutrition
"Nutrition education programs for parents would do a better job than large and politically popular feeding programs in fighting the rampant malnutrition that is stunting the development of more than 100 million children worldwide, a new World Bank report says, finding that a lack of food is usually not the main cause of child malnutrition.Children are irreversibly damaged by malnutrition by age 2, long before they begin primary school. The World Bank report contends that aid efforts must concentrate on the brief window of opportunity before that age. And in areas not hit by famine or other crises, the report says, efforts must focus more on teaching mothers to properly feed and care for babies and toddlers than on school meal programs." By Celia W. Dugger, New York Times Link to Article (last visted 3-5-06 NVS)
"A new report calls for more funding to combat malnutrition, but warns efforts should be targeted to pregnant women and children under two. It warns that trying to improve nutrition in children later in life is too late, too expensive and ineffective." By The World Bank Link to Report (last visited 3-5-06 NVS)
March 5, 2006
Case Law Development: Colorado Considers Noncustodian’s Right to Make Religious Decisions for Minor Child
In a case of first impression for Colorado, a three-judge Court of Appeals’ panel considered the nature and extent of a noncustodial parent’s right to make decisions about a child's religious upbringing. After extensively reviewing decisions from throughout the country, it concluded that lower court orders recommending restricting the noncustodial parent’s right to take a child to her church, unless she supports the religion chosen by custodial father for the child, are unconstitutional. It held that absent a clear showing of substantial harm to the child, a parent who does not have decision making authority with respect to religion, nevertheless retains a constitutional right to educate the child in that parent’s religion.
The court also ruled that “harm to the child from conflicting religious instructions or practices, which would justify such a limitation, should not be simply assumed or surmised; it must be demonstrated in detail.” Furthermore, a court must find a compelling state interest in the form of avoiding substantial emotional or physical harm to the child in order to restrict the child from attending the noncustodial parent’s church services. (McSoud v. McSoud, Filed February 9, 2006, reo). You may download in pdf format the Slip Opinion of this case by clicking here.pdf
Illinois House Bill Would Mandate that Department of Children and Family Services Notify Police About Potential Instances of Child Neglect or Abuse
The Illinois House passed a bill 114-0 that would mandate that the state Department of Children and Family Services notify police about potential instances of child neglect or abuse. Under House Bill 5219, telephone calls made to the Department’s hotline would have to be reported promptly to local police. The Department apparently opposed portions of the bill and in particular the provision regarding the hotline notification. The bill now goes to the Illinois Senate. Source: pjstar.com. Please click here to read the complete story (last visited March 5, 2006, reo).
Iowa Child Abuse Cases Reach All Time High
Despite Iowa’s revamping its child welfare system and adding new laws aimed at preventing abuse, the state reports that individual cases of child abuse are at an all time high. While advocates for children say that there have been improvement in some areas of the law, they claim it is not enough. Confirmed cases of child abuse jumped about two percent from 2004 to 2005 and have increased sixty percent since 1999. Source: WHOtv.com. Please click here to read the complete story (last visited March 5, 2006, reo).
Pennsylvania Legislature Rejects Removing Adultery from Alimony Consideration
Two Pennsylvania legislators, Senators Linda Short and Brad Hutto, were reportedly unsuccessful last week in their effort to amend Pennsylvania law to remove adultery from consideration as a factor in awarding alimony. Under their proposal, family court judges could excuse marital misconduct “as grounds to deny alimony once a temporary hearing has been held on a divorce proceeding — a much earlier point in the process.” The proposal was voted down in the state senate by a vote of 26-16. Supporters of the proposal argued that spouses involved in a divorce action may “string out” court proceedings in order to “catch” their partner in adultery. “Then, the partner — usually the man — can then use the misconduct to deny alimony.” Source: Roddie Burris, centredaily.com. Please click here to read the complete story (last visited March 5, 2006, reo).