March 25, 2006
New York Guardians May Withdraw Life-Sustaining Medical Treatment
New York’s Court of Appeals, its highest court, ruled this week that guardians for the mentally retarded may make decisions to withhold or withdraw life-sustaining medical treatment for those they are caring for. In the case of In re M.B., et.al., the court also said that a March 2003 law granting such authority also applied to those who were appointed guardians for the mentally retarded before the law went into effect. The case involved a mentally retarded man who was diagnosed as being in a terminal vegativative state and a request from the guardian to remove life-sustaining treatment. By clicking here, you may download a copy of the slip opinion of the New York Court of Appeals guardianship decision in pdf format.pdf
Report Finds No Child-centered Reason to Prevent Gays and Lesbians from Becoming Adoptive Parents
The Evan B. Donaldson Adoption Institute Released a Report Friday that finds there that there is no child-centered reason to prevent gays and lesbians from becoming adoptive parents. The report examined the issues, laws and practices relating to gay and lesbian adoption and parenting, and considered the available studies spanning the last several decades. The Institute says that the effort represents "one of the broadest, most thorough reviews and analyses to date on gay/lesbian adoption and parenting." The report is a part of a larger, more detailed project that will be completed and released in several months. The Institute also says that the report is an overview designed to inform and “provide context for the often-fractious debate over gay/lesbian adoption currently taking place in our country; and, most important, to provide information that can be used to shape best practices that focus on providing boys and girls in the child welfare system with safe, committed and enduring families.” According to the Washington Post, the report was funded by the Gill Foundation and the Human Rights Campaign, both active in gay-rights causes. However, The Donaldson Institute's executive director, Adam Pertman, told the Washington Post that the financial sponsorship did not influence the report's findings. Sources. AP, David Crary, Washingtonpost.com. Jeanne Howard, Evan B. Donaldson Adoption Institute, adoptioninstitute.org. Please click here to read the Washington Post article. Please click here to take you directly to the Donaldson Adoption Institute Report. (last visited March 25, 2006, reo).
San Francisco Archbishop Says Adoption of Children by Same-Sex Households Conflicts with Catholic Teachings – Indicates Adoption Program must be “in Synch” with Church’s Views
San Francisco's archbishop, George Niederauer, while not barring placing minor children for adoption with same-sex couples, has indicated that this conflicts with Roman Catholic teachings on homosexuality. The archbishop has asked the social services arm of the Archdiocese of San Francisco to bring its adoption program ''fully in synch" with the church's views while continuing to find homes for hard-to-place youngsters. According to newspaper reports, a spokesman for the Archbishop stated that ''Our teaching on marriage and family life precludes these kinds of adoptions. 'We need to find another way to help this vulnerable population.” Source: AP, Lisa Leff, Boston Globe, boston.com. For the complete story, please click here (last visited March 25, 2006, reo).
Same-sex Marriage Battles Escalate Nation-wide
Our readers may find the survey article by Joan Biskupic written earlier this week in USAToday interesting and an excellent overview of the present status of the same-sex marriage battle throughout the United States. Source: Ms. Joan Biskupic, USAToday.com. Please click here to go to Ms. Biskupic’s article (last visited March 25, 2006, reo).
French Women Must be 18 to Marry
The French parliament has passed a law that now requires that French women be 18 years or older to consent to marry. This is the first change in the legal age for marriage in France since 1804, when the age of consent was set at 15 for women and 18 for men. The French standard is now consistent with other states that belong to the European Union. Source: Msmagazone.com. For the complete story, please click here (last visited March 25, 2006, reo).
March 24, 2006
Case Law Development: Ohio Justices Disagree on Sanctions for Procrastinating Family Lawyers
In nearly all states, attorneys in family law practice generate more disciplinary complaints than in other fields of law. While attorneys will argue that the high-emotional stakes of their cases are the cause of this higher complaint rate, all will agree that there are also attorneys practicing family law who simply aren't fulfilling their responsibilities. What to do with these attorneys?
Justices of the Ohio Supreme Court in two different opinions could not agree on the appropriate sanctions for attorneys who had taken money from clients in family law matters and then not carried out the representation. In both cases, the attorney's failure to cooperate with disciplinary authorities aggravated their sanctions and in both cases, dissenting justices argue that the sanctions imposed were too lenient.
In Dayton Bar Ass'n v. Stephan, 108 Ohio St. 3d 327; 2006 Ohio 1063; 2006 Ohio LEXIS 656, (March 22, 2006), the Supreme Court of Ohio issued a two-year suspension but stayed the entirety of the suspension on conditions of CLE requirements and supervision of the attoreny's practice management. The attorney had charged his divorce client an additional $350 to prepare a QDRO and then did not do so, requiring that she hire another attorney in order to avoid contempt for failing to prepare the document. Justices Moyer and O'Connor dissented, arguing that at least a portion of the suspension should be actually imposed rather than suspended.
In Erie-Huron Counties Joint Certified Griev. Comm. v. Huber, 108 Ohio St. 3d 338; 2006 Ohio 1066; 2006 Ohio LEXIS 662 (March 22, 2006) the lawyer was suspended for one year for misconduct in which he took retainers and did little or no work for three clients, made dishonest statements to clients during his representation, failed to provide requested information about malpractice-insurance coverage, and had been unwilling to refund fees to clients whose legal affairs he neglected. Two of the three cases were divorce actions. Justice Moyer again dissented, expressing dismay over the court's justifying its leniency because of the attorney's "long career in the legal profession." Justice Moyer ntoed "That is a new standard. I can only hope that this is the sole case in which it will be applied as the reason for such leniency. We should adopt the recommendation of the Board of Commissioners on Grievances and Discipline and issue an indefinite suspension to assure those who use the services of lawyers in Ohio that we are serious about our responsibility to appropriately sanction those lawyers who breach the rules of ethical conduct."
Case Law Development: Differential Burdens of Proof for Modification of Child Custody Orders
Louisiana provides two different standards for modfication of child custody orders. If the order is based on stipulation of the parties, a court may modify the order if there has been "a material change in circumstances since the original decree and ... the proposed modification is in the best interest of the child." If the custody award is a "considered decree" however, then what is known as the Bergeron rule applies and the party seeking modification must prove that "continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or [that there is] clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child." The Louisiana courts have held that even order based on the parties' agreement can be "considered decrees" if there is evidence that the court weighed the evidence in the case in approving the settlement or if the parties stipulate to the higher burden of proof in the agreement itself.
In this case, the Louisiana Court of Appeals determined that the Bergeron standard should not apply to a custody order based on the parties' settlement however, because the order had been entered into after trial had begun but before substantial evidence had been submitted and there was no evidence that the parties agreed to the higher burden of proof. The court concluded that imposing the higher burden in these cases would discourage settlement once trial had begun.
A dissent objected to the court granting the appellate writ.
Poole v. Poole, 41,220 (La. App. 2 Cir. 03/22/06), 2006 La. App. LEXIS 562 (March 22, 2006)
Opinion on the web (last visited March 24, 2006 bgf)
Excerpt from majority opinion:
"Certainly there is a need to limit protracted relitigation in custody matters. Some believe that the best way to do this is to impose the higher Bergeron standard after some evidence has been presented, and the parties then terminate the hearing and agree on custody. However, we find that imposing this higher standard will dissuade the parties from confecting settlement once the hearing has begun. Such settlement agreement contrasts to a judicially imposed, considered decree with which neither parent may completely agree and must be encouraged even after the litigation has begun for the best interests of the children instead of being deterred by the more difficult burden of Bergeron. Applying the Bergeron standard to a custody consent judgment in which some of the evidence has been presented, but not evaluated by the judge, would erode the definition of considered decree and the policy reasons for the rule as examined by the Bergeron court."
Case Law Development: Enforceability of Oral Divorce Settlements
The Tennessee Court of Appeals provides us with a case emphasizing how important it is for family law attorneys to be good contracts scholars. Here, husband and wife entered mediation of their divorce. The terms of the mediation agreement required that their agreement be reduced to writing to be effective. However, the agreement did not require that modifications to the agreement be in writing. So, when the mediator orally recited the terms of the parties' agreement into a tape recorded and recorded their agreement to those terms and when the parties later testified that they had indeed agreed to the terms, the court, citing Corbin on Contracts and the Restatement, concluded that an enforceable agreement had been created regardless of whether it was reduced to writing.
Unlike most contracts, however, settlement agreements in divorce mediation may be repudiated before judicial consideration of them, so long as there has been no detrimental reliance on the agreement. Here Husband argued that he had repudiated the agreement before the court entered a consent judgment based on the agreement. Wife argued that she had partially performed her side of the agreement, but the court of appeals noted that the trial court had taken no evidence on this issue and remanded for further proceedings.
Leslyn v. Ballew, 2006 Tenn. App. LEXIS 191 (March 22, 2006)
Opinion on the web (last visited March 14, 2006 bgf)
Case Law Development: Litigation Privilege Bars Invasion of Privacy Claim Against Witness in Family Law Proceeding
The litigation privilege protects litigants, attorneys and witnesses from liability for their statements in court proceedings. The doctrine is vital in family law litigation given its regular disclosure of a broad range of negative, private information about individuals. The California Court of Appeals has reaffirmed the strength of the privilege in this case involving a juvenile who sued the county and a supervisor of the county's victim witness program, alleging invasion of his state constitutional right to privacy, libel, and negligent infliction of emotional distress. The supervisor had written a letter that referred to a child molestation accusation against the juvenile, which was published in a family law proceeding concerning visitation rights regarding the juvenile's family members.
On a motion for nonsuit, the trial court found that the letter was protected by the litigation privilege and dismissed all causes of action except the invasion of privacy cause of action. The California Court of Appeal reversed. The court concluded that the supervisor's letter was absolutely privileged and that the trial court should have dismissed the entire case. The letter constituted a communication because it was made in the context of a judicial proceeding, i.e., a pending family law case. The supervisor, who was the custodian of information relevant to the action, was a witness or participant in the family law proceeding. Finally, the letter furthered the objects of the litigation, since the information it conveyed had relevance to the visitation dispute. The court concluded that the trial court was correct that the privilege applied, but incorrect in its view that a privacy claim invoking the California Constitution could trump it. Reviewing the prior case law that had consistently held that the privilege barred all causes of action except malicious prosecution, including invasion of privacy, the court concluded that constitutional invasion of privacy was no different. "We find it unlikely that the Supreme Court would now find a "valid basis" for distinguishing between constitutional privacy violations and those rooted in statutory or case law. Indeed, recognition of such a distinction would allow a plaintiff to easily overcome the privilege on any privacy claim by simply inserting the adjective "constitutional" into his or her pleadings and jury instructions."
Jacob B. v. County of Shasta, 137 Cal. App. 4th 225; 2006 Cal. App. LEXIS 282 (March 1, 2006)
Opinion on the web (last visited March 22, 2006 bgf)
March 23, 2006
Minority Children in Foster Care
"A new report examining why so many minority children are ending up in foster care and what can be done to change that "is all about action," state Human Services Director Marianne Udow said Tuesday.The report from the Michigan Advisory Committee on the Overrepresentation of Children of Color in Welfare says that, not only are too many minority children ending up in foster care, but they fare worse than other children once they are under state supervision."For too many African-American children, there is a 'slippery slope' leading from children's protective services to juvenile detention - even prison," the report says." By Kathy Barks HOffman, Associated Press, LSJ.com Link to Article (last visited 3-22-06 NVS)
Study on Reunification
"A study of the relationship between the length of time children spent in foster care and the success of reunification showed a complex correlation between the two factors. Researchers examining the relationship between reunification and reentry in 33 Oklahoma counties found that reunification within the first 30 days was associated with low rates of reentry into foster care. However, reunification after 6 months was also related to low reentry rates. Reunifications that took place between 1 month and 6 months after the initial placement into foster care were associated with the highest rates of reentry into care." By Children's Bureau Express, U.S. Dept. of Health & Human Services, Administration for Children & Families, discussing "Balancing Reunification and Reentry Goals," by T. McDonald, S. Bryson, and J. Poertner published in the January 2006 issue of Children and Youth Services Review. Link (last visited 3-22-06 NVS)
Standards for Caseworker Visits
"Caseworker visits with children in foster care have been linked to permanency outcomes, safety, and well-being for the children in care. Most States have standards specifying how often caseworkers should visit children in foster care, as well as how the visiting time should be spent, but these standards are not consistent across States.
Two reports recently released by the Office of the Inspector General (OIG) in the U.S. Department of Health and Human Services documented which States have standards, what the standards stipulate, and how the States track visitation. The reports noted the following:
- Forty-two States and the District of Columbia had statewide written standards calling for caseworkers to visit children in foster care at least monthly.
- Twenty States were able to produce statewide reports of visits; of these 20 States, 7 indicated that fewer than half of the children in foster care were actually visited on a monthly basis in FY 2003.
- Forty States and the District of Columbia reported implementing statewide written standards for the content of caseworker visits with children in foster care.
The most common activities recommended by the visitation standards included building relationships and communication between the caseworker and child, as well as addressing the needs of the child.
- The OIG offers recommendations for improving visitation standards and the frequency, content, and tracking of actual visits.
One recommendation for States with limited or nonexistent capacity to record the frequency of caseworker visits and produce statewide reports is to implement an automated system, such as the Statewide Automated Child Welfare Information System (SACWIS), capable of tracking and producing reports of caseworker visits." By Children's Bureau Express, Administration for Children and Families, U.S. Dept. of Health & Human Services Link (last visited 3-22-06 NVS)
Be Alert for Signs of Child Abuse and Neglect
"The first step in helping abused or neglected children is learning to recognize the signs of child abuse and neglect. The presence of a single sign does not prove child abuse is occurring in a family; however, when these signs appear repeatedly or in combination you should take a closer look at the situation and consider the possibility of child abuse." By National Clearinghouse on Child Abuse and Neglect. Review the signs on the National Clearinghouse on Child Abuse and Neglect Information website: Link to Website (last visited 3-22-06 NVS)
March 22, 2006
Professors Debate Whether New York Should Adopt “No Fault” Divorce
New York is the only state in the country that doesn't allow no-fault divorces. While Chief Judge Judith Kaye recently proposed that the state permit them, the legislature has been slow to turn the option into law and its skepticism has support. Our readers may enjoy the ongoing on-line debate that began Monday on this issue between Wharton Assistant Professor of Business and Public Policy, Justin Wolfers, and University of Pennsylvania Jules F. and Frances L. Landry Professor of Law, Professor Katherine S. Spaht. The debate over whether New York should allow “no-fault” divorces occurred at the Paul M.Herbert Law Center of Louisiana State University. Source: legalaffaires.org. Please click here to go to the debate (last visited March 22, 2006, reo).
Iowa Fathers Rights Group Seeks Through Legislation More Time with Children
An Iowa father’s rights group has submitted a bill to the Iowa legislature that if adopted would require that state’s courts to presume that joint physical care is in the best interest of a child unless physical or emotional harm would come to the child because of the new arrangement. Opponents of the proposal, including the Iowa Bar Association and the Iowa Coalition Against Domestic Violence, allege that the bill, if passed, would make women and children more susceptible to violence. They also allege that the bill is unnecessary because the existing law works. Finally, they claim that the child's best interests a child can only be considered on an individual case basis instead of imposing a one-size fits all standard. Source: Jens Manuel Krogstad, WCFCourrier.com. Please click here for the story (last visited March 22, 2006 (reo).
Commentary: How Can a Man Protect His Paternity Rights When Mother Wants to Place the Child for Adoption?
The New York Times ran a story in its Sunday, March 19 edition entitled “Unwed Fathers Fight for Babies Placed for Adoption by Mothers.” (See our analysis of March 20 about the story.) In part in response to that article, readers may find Michigan family law attorney Jeanne Hannah’s views of the father’s registry statutes in various states of interest. Source: Jeanne Hannah, Updates in Michigan Law, typepad.com. For Ms. Hannah’s views on state registry provisions, please click here (last visited March 20, 2006, reo).
Ohio Judge Terminates Parental Rights of Couple Who Caged Children
On Tuesday, a Huron County, Ohio judge terminated the parental rights to 11 adopted children of a couple who allegedly placed some of the youngsters in wood and wires cases for sleeping and for punishment. The trial judge “cited the adoptive mother's testimony during a custody hearing earlier this month and her comments to reporters as among his reasons for terminating her and her husband's parental rights.” Source: Steve Murphy, Toledo Blade, toledoblade.com. For the complete story, please click here (last visited March 22, 2006, reo).
Connecticut Court Hears Challenge to Marriage Laws
Connecticut's marriage laws were challenged in Superior Court in that state Tuesday. The Attorney General asserted that it was reasonable for the state to create civil unions but that gays and lesbians did not have a fundamental right to marry. The attorney for the challengers charged that the law “is nothing less than the government's announcement that these are second-class citizens.'' However the trial court judge rules, the matter is expected to be appealed to Connecticut's Supreme Court. Source: AP, Cara Rubinsky, guardian.co.uk. Please click here for the complete story (last visited March 22, 2006, reo).
March 21, 2006
Case Law Developments: Default Judgment in Custody Action Not Appropriate Sanction for Failure to Comply With Discovery
The Iowa Court of Appeals reversed the use of default judgment that resulted in Father having no visitation with his children as a sanction for failure to comply with discovery. While the court noted that Father, who was represented by counsel in the proceedings, did indeed neglect the comply with court orders, his actions were not so willful and in bad faith as to justify the use of default on such a critical issue as child custody and visitation.
In re Marriage of Windschitl, 2006 Iowa App. LEXIS 236 (March 15, 2006)
Opinion on the web (last visited March 21, 2006 bgf)
Case Law Development: Familial Preference in Child Protection Placements
The Nevada Supreme Court granted a writ of mandamus to review a tragic case involving a child's placement upon removal from her Mother for abuse and neglect. The court had placed the child with a foster family, rather than with the child's grandmother, without affording grandmother an opportunity to be heard on the matter. This necessitated Grandmother's filing a separate guardianship proceeding, which the district court then denied because the child had already bonded with the foster family.
The Nevada Supreme Court found that the court had erred in denying the guardianship petition because "the district court failed to ensure that [Grandmother] was involved in and notified of any plan for [Child's] temporary or permanent placement before the petition was filed and thereafter failed to give [Grandmother] the benefit of the familial preference for placement." Examining United States Supreme Court cases and precedent from other states regarding the relative rights of foster parents and family members, the court concluded that "in denying [Grandmother's] visitation petition, the district court gave improper weight to the foster parents' wishes when determining [the child's] best interest."
Matter of Guardianship of N.S., 122 Nev. Adv. Rep. 27, 2006 Nev. LEXIS 31 (March 16, 2006)
Opinion on the web (last visited March 21, 2006 bgf)