Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Wednesday, March 29, 2006

Law Profs Doubt Minnesota Supreme Court Will Overturn Marriage Ban

William Mitchell College of Law Professor Peter Knapp and University of Minnesota Professor Dale Carpenter both suggest that it is doubtful that the Minnesota Supreme Court will follow Massachusetts and declare that the state constitution allows gays to marry.  Their views and a general history of the same-sex marriage debate in Minnesota can be found in a written story and audio interviews on Tuesday's Minnesota Public Radio web site.   Source.  Elizabeth Tawwicki, For the complete story and audio interviews, please click here (last visited March 29, 2006, reo).

March 29, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 28, 2006

Case Law Development: Constitutionality of Applying Ohio's Criminal Domestic Violence Laws to Unmarried Couples

As reported in our news blog posting of March 26th, the Ohio Court of Appeals for the second appellate division has now framed up the issue of whether Ohio's Constitution prohibits charging unmarried individuals with domestic violence crimes when they batter their paramours.  Two other Ohio courts of appeals have held that the constitutional amendment that prohibits extending the benefits of marriage to unmarried couples was not intended to apply to criminal domestic violence laws.  (See case development posts of December 27th and December 16th of last year). Now the second appellate division has provided the contrary view. 

The court agreed with the general principal applied by its sister courts that statutes should be construed as consistent with the constitution if possible, but in this court's opinion, the court was not authorized to construe both the statute and the constitution so as to avoid a conflict. The court found the plain language of the Defense of Marriage amendment requires that "a legal status of a de facto marital relationship shall neither be created nor recognized in Ohio as having the same effect as the legal status of a de jure marital relationship."  The court was unwilling to accept an argument that some of the incidents extended to married couples (such as protection from domestic violence) were not intended to fall within the scope of the amendment, since the amendment itself is without these exceptions.  As the court noted, "It is tempting to speculate which of potential exceptions to this general principle would have found favor with a majority of the Ohioans who voted for the Defense of Marriage amendment, but this would be mere speculation. In our view, the second sentence was intended to avoid the prospect of the Ohio General Assembly, or the Ohio courts, establishing exceptions to its reach. In this connection, it is useful to remember that the Defense of Marriage amendment was proposed, and adopted, amidst concerns that the concept of traditional marriage was being eroded by judicial rulings, among other factors."

Applying this interpretation to the Ohio criminal domestic violence statute, the court concluded that the statute's protection of a "person living as a spouse," created exactly the sort of quasi-marital relationship that the Defense of Marriage amendment was designed to prohibit.

State v. Ward, 2006 Ohio 1407 (March 24, 2006)
Opinion on the web (last visited March 27, 2006 bgf)

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March 28, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Tenancies by the Entireties and Forfeiture Law

The Eighth Circuit Court of Appeals affirmed a final forfeiture order of a husband's seized property where Wife lacked the requisite ownership interest under Missouri law for her and her husband to have held a tenancy by the entirety in the forfeited property.  Wife had attempted to argue that Missouri's dissolution statutes, which provide for a deferred community property system, created a tenancy by the entirety interest, even though the property was only in Husband's name and even though the couple were not divorced or divorcing.  The Eighth circuit noted that the dissolution statute's treatment of property as marital or community property applied only for the purposes of a divorce proceeding and could have no effect outside that context.  For a couple to create a tenancy by the entireties in real estate, the couple would have to jointly title the property.   Thus, Wife's Eighth Amendment claim that the forfeiture constituted an excessive fine failed for lack of standing.

US v. Cochenour, 2006 U.S. App. LEXIS 7092 (8th Cir. March 22, 2006)
Opinion on the web (last visited March 24, 2006 bgf)

March 28, 2006 in Property Division | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Visitation Disputes under the International Child Abduction Remedies Act

The United States Court of Appeals for the Fourth Circuit affirmed a trial court's dismissal of visitation claims in a suit under the International Child Abduction Remedies Act.  The court held that the Act provides remedies only for violations of the Hague Convention on the Civil Aspects of International Child Abduction.  Since the treaty does not address visitation or access issues outside the context of wrongful removal or retention of a child, the federal courts have no jurisdiction under the act.  Rather, parties seeking to enforce visitation right should file suit in state courts.

A dissenting judge would have interpreted the act to cover these issues.

Cantor v. Cohen, 2006 U.S. App. LEXIS 6915 (4th Cir. March 21, 2006)
Opinion on the web (last visited March 26, 2006 bgf)

March 28, 2006 in Custody (parenting plans), International, Jurisdiction, Visitation | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Jurisdiction to Enforce Child Support Orders

The Ohio Court of Appeals traces issues of jurisdiction over child support orders in a case involving a Mother seeking to enforce child support orders from Puerto Rico in the Ohio courts. 

Mother had registered and sought to enforce an order of support and for arrearages issued by the court in Puerto Rico. The entire family had lived in Puerto Rico, where the original child support ordered had been issued in 1971.  After the divorce, all the parties had moved to New York. The court noted that, at that point, New York had effectively obtained exclusive and continuing jurisdiction. Thus the Puerto Rican court was without jurisdiction to have issued an arrearage judgment at that time.  However, Mother subsequently moved back to Puerto Rico with child.  Thereafter, the court had jurisdiction to issue a new support order for the child's prospective care. The court held that, although Puerto Rico did not have jurisdiction to enforce the 1971 support order for arrears that accrued after New York obtained jurisdiction, it did have jurisdiction to enter a support order for the prospective care of the child. 

Thus, the trial court's judgment regarding the registration of the Puerto Rico support order concerning the child's prospective care was affirmed. However, the trial court's order which enforced Puerto Rico's attempt to collect the arrears stemming from the 1971 order was vacated, and the case was remanded for recalculation of arrears that accrued from 1971 until 1976.

Cruz v. Cumba-Ortiz, 2006 Ohio 1362, 2006 Ohio App. LEXIS 1230 (March 23, 2006)

March 28, 2006 in Jurisdiction | Permalink | Comments (3) | TrackBack (0)

Case Law Development: In Testimony Regarding Vailidty of Marriage, New Jersey Court Limits Party's Ability to Invoke the Fifth Amendment Privilege against Self-Incrimination

The New Jersey Appellate Court reversed a trial courts order granting a judgment of divorce and dismissing Husband's claim for an annulment as the judge had suggested and then allowed wife to assert her 5th Amendment privilege against self-incrimination.  The court held that, because Wife's testimony was also being given in support of her counterclaim for divorce, she had waived any protection afforded by the privilege.  Moreover, there was no evidence that Wife actually faced potential criminal prosecution based on her testimony.  Thus, the court held that Husband had been denied meaningful cross-examination on the issue of the validity of the marriage.

Attor v. Attor, 2006 N.J. Super. LEXIS 84 (March 24, 2006)
Opinion on the web (last visited March 28, 2006 bgf)

March 28, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Res Judicata Does not Bar Separate Civil Action to Divide Property Unaddressed by a Divorce Decree

The Arizona Supreme Court holds that a divorced spouse who claims to be a tenant in common with his or her former spouse may bring a separate civil action to obtain relief when a dissolution decree fails to mention or does not dispose of real property.

In this case, husband sued his former wife to recover his share of community property that he alleged she fraudulently induced him to transfer to her separate property trust. The trial court dismissed Husband's action on the basis that Husband should have brought a motion to reopen the divorce judgment. The court of appeals affirmed.  However, the Arizona Supreme Court determined that the state's statutes dictated otherwise.  Arizona statutes provide that "the community, joint tenancy and other property held in common for which no provision is made in the decree shall be from the date of the decree held by the parties as tenants in common ..."  The court found that this language provided the legislative intent that claim preculsion principles should not bar a separate civil action, noting that California and Texas law come to the same conclusion.

Dressler v. Morrison, 2006 Ariz. LEXIS 42 (March 23, 2006)bgf

March 28, 2006 in Property Division | Permalink | Comments (0) | TrackBack (0)

Monday, March 27, 2006

Cost of Privatizing Child Protection

"When the Florida Legislature handed off child welfare to community-based groups in 2000 — a move designed to privatize the state system that cares for abused and neglected children — it was expected local nonprofit groups would replace the beleaguered state agency. That hasn't always happened. Instead, for-profit companies that stand to make millions on insider deals are wowing Wall Street with lucrative state contracts and profits.Providence Service Corporation, a publicly traded Arizona company, owns or manages three companies that have garnered more than $120 million in state child welfare contracts in at least 11 of Florida's 22 child welfare districts. One of its partners, Camelot Community Care, a nonprofit child social-service provider in Florida and five other states, has a nearly $100 million contract to provide child welfare in Southwest Florida, taking over responsibility from the Florida Department of Children & Families." By Jeff Cull & Amy Williams, Link to Article (last visited 3-26-06 NVS)

March 27, 2006 in Child Abuse | Permalink | Comments (0) | TrackBack (0)

High Cost of Child Welfare Case

"A child welfare case involving the children of polygamist John Daniel Kingston has cost the state a bundle. The state Division of Child and Family Services spent an estimated $381,744 on the two year case involving Kingston and Heidi Mattingly. During the case, 10 of the couple's 11 children were placed in foster care. DCFS spokeswoman Carol Sisco said the case was unusual in its length, types of provided services and the number of children involved. Most of the money spent by DCFS paid for out-of-home care, including $215,000 for foster parents. Family preservation services, child protective service investigations and in-home supervised visits cost another $31,000. DCFS attributes another $135,000 to staff time for case workers and supervisors, as well as other indirect expenses, including some services provided to the family about six years ago. But the state's overall tab is likely much more. Associated Press, Daily Herald Link to Article (last visited 3-26-06 NVS)

March 27, 2006 in Child Abuse | Permalink | Comments (0) | TrackBack (0)

Law Review Article -- Justice Denied: Delays in Resolving Child Protection Cases in New York

"This article examines the delays experienced in the Family Courts in New York City. As this article will demonstrate, the disruptions in processing cases in New York result in cases languishing on the docket for many years. Even more shocking, cases routinely take several years to complete the appellate process. Some of the resulting harm to children is obvious; some of the harm, as we will explain below, is less obvious, but equally damaging. No one, we suspect, would defend these delays as justified. Yet they have become such a familiar part of the child welfare landscape that they are routinely accepted.

We believe it is imperative for the state to demonstrate its commitment to children's well-being by, at a minimum, ensuring that court matters are not postponed merely because of inadequate resources or bureaucratic failure to administer resources effectively. We further believe that this demonstration should precede any serious calls for accelerating the time for termination of parental rights. Until the state  [*548]  proves itself willing to invest in children and their families, it ought not be authorized to destroy familial ties by involuntarily terminating parental rights." Martin Guggenheim & Christine Gottlieb, Justice Denied: Delays in Resolving Child Protection Cases in New York, 12 Va. J. Soc. Pol'y & L. 546, 546 (2005). Link to Article (last visited 3-26-06 NVS)

March 27, 2006 in Child Abuse | Permalink | Comments (0) | TrackBack (0)

Sunday, March 26, 2006

Daughter May Not Sue Dad For Child Support Mom Didn’t Seek

In a case of first impression in that state, the Pennsylvania Supreme Court ruled last week that the adult daughter of a failed marriage as a third party cannot sue her father to enforce a child support provision from her parents' property settlement agreement that would benefit her directly. However, the justices split over the issue of whether the result should be based on contract law or public policy gounds.  Asher Hawkins of the The Legal Intelligencer has provided an initial analysis of the decision on the website.  Source:  Asher Hawkins, Legal Inteligencer,  Asher Hawkins analysis of this case may be found here (last visited March 26, 2006, reo). 

Wheamei Jenq Chen v. Chen, 2006 Pa. LEXIS 253 (March 20, 2006)

You may download a PDF copy of the slip opinion of the Pennsylvania child_support_ruling here.pdf

March 26, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Ohio Appeals Court Says Prosecutors Cannot Charge Some Unmarried Persons Because of Conflict with Constitutional Amendment Banning Gay Marriage

Despite four contrary decisions by other district courts of appeal, the Ohio Second District Court of Appeals ruled Friday that its domestic violence law does not apply to a person living as a spouse because to do so is contrary to the Defense of Marriage Amendment approved by its voters in 2004.  The court affirmed a lower court ruling that had dismissed a domestic violence charge against an Ohio woman who allegedly assaulted her live-in boyfriend.  The decision is expected to be appealed to the Ohio Supreme Court.  Source:  Amelia Robinson, Dayton Daily News, Please click here for the full story (last visited March 26, 2006, reo).  The slip opinion in this case should be posted on this site within a day or so.

March 26, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Commentary: A Man’s Right To Choose

Our readers may find Sunday’s survey article in the Boston Globe by staff writer Drake Bennett on the reproductive rights of men and women timely and interesting.  Source:  Drake Bennett, The Boston Globe, To access the article by Mr. Bennett, please click here (last visited March 26, 2006).

March 26, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Referendum Effort To Challenge Abortion Law to Begin in South Dakota

Planned Parenthood is expected to shortly announce a petition drive in South Dakota asking that its citizens reject an abortion law that has been characterized as the most restrictive in the nation and is a direct challenge to Roe v. Wade.  An audio discussion between the various interested South Dakota parties moderated by Mike Pesca on March 24 can be heard on NPR.  Source: To access the NPR audio program, please click here (last visited March 26, 2006, reo).

March 26, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Philippine Supreme Court Says Deception is Basis for Annulment

The Philippine Supreme Court granted an annulment of a 10-year marriage after finding that the wife's "paranoid jealousy" made her psychologically incapable of performing the basic obligation of marriage. The court gave weight to a psychologist who testified that the woman was a pathological liar who continued with her deception even after the consummation of her marriage. In its opinion the court observed that "Any sort of deception between spouses, no matter the gravity, is always disquieting. Deceit to the depth and breadth, dark and irrational as in modern noir tale, dims any trace of certitude on the guilty spouse's capability to fulfill the marital obligations even more." Source:  Sun Star, Manila, For the complete story, please click here (last visited March 26, 2006, reo).

March 26, 2006 in Annulment | Permalink | Comments (0) | TrackBack (0)