March 21, 2006
Case Law Development: Use of Body Attachment Unconstitutional in Actions to Enforce Past Due Child Support if No Continuing Support Obligation Exists.
The Indiana Court of Appeals reversed a trial court's order of body attachment in a child support enforcement action. The case involved a father who was five years in arrears in child support and had resisted prior court efforts to compel his payments. Indiana statutes provide that a court may use body attachment pursuant to its contempt power in order to compel payment of child support. However the Indiana Supreme Court had held that, when a child was emancipated, there was no justification for using this tool merely to enforce an arrearage and to do so would violate the state constitution's prohibitions of imprisonment for debt. Here, the child in question had been adopted by stepfather, thus cutting off Father's future child support obligations. Thus, the court holds that, here too, the justification for using body attachment as a contempt tool to enforce the obligation to pay past due child support would be unconstitutional. The court did not appear to be suggesting that body attachment would be unconstitutional in all cases of child support enforcement, but only in those instances in which there is no longer a continuing duty of support and the enforcement action is for past due amounts only.
Foley v. Mannor, 2006 Ind. App. LEXIS 468 (March 17, 2006)
Opinion on the web (last visited March 21, 2006 bgf)
Case Law Developments: Counsel in TRP Not Ineffective for Failing to Investigate Effect of Adoption on Child's Tribal Rights and Benefits
The California Court of Appeals holds that a child's attorney in a termination of parental rights proceeding has not rendered ineffective assistance if the attorney does not investigate the effect of termination and adoption on the tribal identity and financial benefits that might flow from that decision. This case involved the termination of parental rights of a child who was a member of the Sycuan Band of the Kumeyaay Nation. The Nation was not made a party to the termination proceedings, though it did oppose the termation, favoring guardianship instead.
The child was eligible for certain tribal rights and benefits, including a monthly stipend of $1,500 to a trust, an increased monthly stipend after age 18, a free higher education, housing on reservation land, and lifetime medical and dental coverage. Counsel for the child argued that these benefits and their possible loss were irrelevant to the proceedings and that an investigation of this issue would also require testimony regarding the prospective adoptive family's financial ability, all of which he asserted would be entirely speculative.
The Court of Appeals agreed that Counsel did not render ineffective assistance in taking this approach, as even if termination of parental rights caused the child to lose her tribal benefits, "there is no statutory mechanism that permits the court to consider those interests when it selects the child's permanency plan... There is no general best interest exception to termination of parental rights under [the California statutes governing termination]." Since the court concluded that there were no facts that would fit the case within one of the statutory exceptions precluding termination of parental rights, counsel's decision was at worst harmless error.
A dissenting judge would have found counsel's obligation to include investigating the effect of termination on the child's tribal benefits.
In re Barbara R., 2006 Cal. App. LEXIS 384 (March 20, 2006)
Opinion on the web (last visited March 21, 2006 bgf)
Case Law Development: Improvement in Both Parent's Circumstances Not Change in Circumstances Justifying Modification of Custody
When very young parents continue to mature and further their education and employment situations, is there a "material change in circumstances" justifying modification of a child custody order? The Supreme Court of Wyoming holds that it is not. Here Mother was 16 and Father 19 when the child was born. Mother was given primary custody with liberal visitation to Father. Both parents had continued their education and obtained jobs. Father argued that he had progressed further than Mother and so custody should be modified. The Supreme Court of Wyoming held that, unless the difference between their improvements in their circumstances was substantially beyond what one might have contemplated at the time the original order was entered, there is not a material and substantial change in circumstances.
In the Matter of TMJ, 2006 WY 28; 2006 Wyo. LEXIS 32 (March 15, 2006) bgf
More Victims of Domestic Violence Eligible for Legal Services Assistance under VAWA 2006
The Legal Services Corporation has issued program guidance on the significant changes impacting both client eligibility for services and the use of LSC funds to support those services pursuant to the reauthorization of the Violence Against Women Act of 2006. The Act expands the scope of services that LSAC grantees can provide to victims of domestic violence, sexual assault, trafficking and certain other crimes, regardless of the immigration status of the victims.
Read the LSAC Program Letter (last visited March 20, 2006 bgf)
Facts About Children in Poverty
The National Center for Children in Poverty of Columbia University has released a series of fact sheets about children in poverty. This fact sheet series describes general demographic characteristics of children in low-income families—their number and proportion, where they live and how often they move, their age distribution, race, and ethnicity, and their parent’s education, employment, marital status, and country of origin. It has been designed to provide comparable data for different age groups because young children are more likely to live in low-income families.
Fact sheets available here (last visited March 20, 2006 bgf)
March 20, 2006
Divorce put David List and his 2-year-old daughter on opposite sides of the Atlantic Ocean, and he worried that she would soon forget him.She hasn't, though. Mr. List's divorce agreement guaranteed him "virtual visitation" – the chance to talk with his daughter through an Internet video connection – and he and Ruby Rose, now 5, usually connect at least twice a week. The chats sustain them between their in-person visits, which come only a few times a year. "When she gets off the plane, I know what she had for dinner last night," said Mr. List, 49, of Santa Cruz, Calif. "She'll run right up to me and jump in my arms because I know exactly what she's all about."
Advocates of virtual visitation want states to spell out in their laws that judges can make it part of a divorce agreement. The benefits go beyond helping parents and children stay close, supporters argue. They say noncustodial parents are more likely to pay child support regularly if they can stay in touch, and electronic visits can help keep children from getting caught up in fights when bickering exes meet in person." By Ann Sanner, Associated Press, DallasNews.com Link to Article (last visited 3-19-06 NVS)
Putative Father Registry Deadlines
"Jeremiah Clayton Jones discovered that his former fiancée was pregnant just three weeks before the baby was due, when an adoption-agency lawyer called and asked if he would consent to have his baby adopted. "I said absolutely not," said Mr. Jones, a 23-year-old Arizona man who met his ex-fiancée at Pensacola Christian College in Florida. "It was an awkward moment, hearing for the first time that I would be a father, and then right away being told, 'We want to take your kid away.' But I knew that if I was having a baby, I wanted that baby." Mr. Jones has never seen his son, now 18 months old. Instead, he lost his parental rights because of his failure to file with a state registry for unwed fathers — something he learned of only after it was too late. Under Florida law, and that of other states, an unmarried father has no right to withhold consent for adoption unless he has registered with the state putative father registry before an adoption petition is filed. Mr. Jones missed the deadline.
Although one in every three American babies has unwed parents, birth fathers' rights remain an unsettled area, a delicate balancing act between the importance of biological ties and the undisrupted placement of babies whose mothers relinquish them for adoption." By Tamar Lewin, New York Times Link to Article (last visited 3-19-06 NVS). For related commentary see Updates in Michigan Family Law by Jeanne Hannah Traverse Link (last visited 3-19-06 NVS)
The national directory of putative father registries links to registry requirements for Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Louisiana, Minnesota, Missouri, Montana, Nebraska, New Mexico, New York, Ohio, Oklahoma, Oregon, Tennessee, Texas, Utah, and Wyoming.The registry is maintained by Erik L. Smith. Link to Webpage (last visited 3-19-06 NVS)
"Fathers" Challenge Registry
"Critics call it Florida's best-kept secret, a law that allows babies to be adopted without notifying unwed fathers.Now, two men are challenging rulings under a state law that stripped them of their parental rights because they weren't registered with a state data bank. A Marine sergeant contends his newborn son was fraudulently adopted while he was stationed overseas after his West Palm Beach girlfriend had another man sign the parental consent. She died less than two months later.In a similar case, an Arizona man once engaged to a Pensacola Christian College senior is seeking custody of their son, saying the woman's parents removed her from school because the two had premarital sex. She hid the pregnancy from her former fiance until 23 days before birth, court records show. The child was adopted even though the apparent father had filed a paternity case.In both instances, the men say they want to raise their children, but lost their parental rights for failing to sign up with a state data bank that notifies them when the mother consents to adoption." By John Cote, South Florida Sun-Sentinel Link to Article (last visited 3-19-06 NVS)
Supreme Court to Hear Domestic Violence Cases
"THE Supreme Court is scheduled to hear oral arguments today in two cases that may make domestic violence cases all but impossible to prosecute. The cases, Davis v. Washington and Hammon v. Indiana, raise the question of whether statements made to 911 operators can be admitted in prosecutions if those who made the calls refuse to appear in court. Such evidence has become crucial in bringing domestic abusers to justice." By Michael Rips & Amy Lester, Op-Ed Contributors, New York Times Link to Article (last visited 3-20-06 NVS)
Social Workers in Danger
"In six years as a social worker with the state's Child Protective Services, Holly Jones has been cursed, chased by dogs and run out of houses by angry parents.Threats are a daily part of the job for caseworkers who investigate accusations of child abuse and neglect and often remove children from their homes. But the killing of a social worker in South Texas last week has prompted Ms. Jones and her colleagues to re-evaluate the steps they take to keep safe and has raised questions about what the state can do to better protect them."We don't have weapons, we don't have training in self-defense, we didn't go through a police academy and we're dealing with the same people they are," Ms. Jones said. . . . A study released last week by the National Association of Social Workers found that 55 percent of 5,000 licensed social workers surveyed said they faced safety issues on the job. Sixty-eight percent of them said their employers had not adequately addressed their concerns. A survey in 2002 of 800 workers found 19 percent had been victims of violence and 63 percent had been threatened." By the Associated Press, New York Times Link to Article (last visited 3-20-06 NVS)
March 19, 2006
Innocent Spouse Tax Issue Looms Large for IRS
"A recent report to Congress by the National Taxpayer Advocate, an IRS unit designed to help taxpayers resolve problems with the agency, warned that the innocent-spouse issue is one of the 21 most-serious problems encountered by taxpayers. Of the nearly 50,000 claims received by the IRS in 2005, only 21 percent were allowed in full and 8 percent were partially allowed, according to the report. An additional 29 percent were rejected in full, and the rest were screened out as "non-qualifying" for various reasons."
Tom Herman, Wall Street Journal
Read the article as reported in the Pittsburgh Post Gazette (last visited March 17, 2006 bgf)
Commentary: Does Wisconsin Marriage Amendment Aim To Marginalize?
A column written by Jim and Mary Jean Smith that appears in the March 20 edition of the Pioneer Press may be of interest to our readers. On November 7, Wisconsin residents will vote on a referendum to amend the state constitution to say: "Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state." The couple, who have served as co-pastors in Catholic churches in Wisconsin and Alaska, suggest that if passed, the amendment will marginalize some citizens. Source: Jim Smith, Mary Jean Smith, Pioneer Press, twincities.com. Please click here to read the Smiths’ commentary on this issue (last visited March 19, 2006, reo).
Tennessee Supreme Court To Decide Whether Proposed Anti-Gay Amendment to State Constitution Should Remain on Ballot
The Tennessee Supreme Court has agreed to hear whether a proposed anti-gay marriage amendment to that state’s Constitution should be pulled from the November ballot. Last month, a lower court judge ruled that the matter should remain. The issue before the court is whether voters were given an appropriate legally required notice about the amendment. Oral arguments are scheduled for June with a decision expected several weeks after that. Same-sex marriages in Tennessee are contrary to existing law, however, the opponents of gay marriage want strengthen that ban by amending the state constitution. Source: Sheila Burke, Tennessean.com. For the complete story, please click here (last visited March 19, 2006, reo).
College Campuses Fertile Ground For Finding Egg Donors
USA Today reported in Wednesday’s edition that fertility clinics and brokers are “bidding up prices for eggs sold by cash-strapped college women with top test scores and picture-perfect looks.” According to the report, advertisements are being run in campus newspapers and on websites on a daily basis. Although the average gg donor in a state like Arizona receives between $2,500 and $3,500, an advertisement in a California student newspaper offered $10,000. Source. Jim Hopkins, USA Today, usatoday.com. For the complete story, please click here (last visited March 19, 2006, reo).