Saturday, April 8, 2006
A South Carolina woman faces up to 10 years in prison for using drugs while she was pregnant that harmed her fetus. Tests showed that the male fetus was about 22 weeks along when the woman went into labor and the child was stillborn. South Carolina is one of the few remaining states that uses child-abuse laws to prosecute women who use drugs during pregnancy.
Regular readers may want to review this past Wednesday’s Blog where we reported the decision of New Mexico's Court of Appeals, which ruled that the state cannot prosecute a mother for child abuse because she used cocaine during her pregnancy. The New Mexico court justified its ruling on the basis that the New Mexico Legislature could not have intended for a viable fetus to be considered a human being in the context of the child abuse statute. The New Mexico defendant told authorities she used crack cocaine and alcohol prior to the birth of her daughter who had high levels of cocaine in her. Other jurisdictions with similar child abuse statutes have concluded that they do not apply to an unborn fetus. South Carolina News Source: John Chamblisss, The Post and Courier, Charleston.net. For the complete story, please click here (last visited April 8, 2006, reo).
New Jersey Court of Appeals Says Jury May Hear Claim Woman Did Not Receive Enough Information From Physician When Advising Abortion
A New Jersey Court of Appeals ruled Friday that a jury may hear a woman’s claim that her physician failed to provide enough information when advising her to end the pregnancy. Anti-abortion proponents claim the decision will allow a jury to decide when life begins. Other experts claim the ruling will have little impact on state laws on abortion. Source. Tom Hester, Star-Ledger, The Star Ledger, nj.com. For the complete story, please click here (last visited April 8, 2006, reo). A copy of the New Jersey Court of Appeals Opinion may be obtained by clicking here (last visited April 8, 2006, reo).
Swiss Court Says HIV-Positive Woman Must Give Authorities Names of Any Future Sex Partners – Receives Suspended Jail Sentence
A Swiss court imposed a three year jail sentence and then suspended it for one year on an HIV-positive woman. The woman was found to have had consensual unprotected sex, although none of her partners apparently became infected with HIV, and she informed the men of her HIV infection before having sex. The court also ordered her to notify the authorities of the names of her future sexual partners – even if she uses condoms with them. Source. Michael Carter, aidsmap.com. For the complete story, please click here (last visited April 8, 2006, reo).
An article written by Tresa Baldas in the National Law Journal surveying Paternity Fraud throughout the United States may be of interest to our readers. It can be found at Law.com. Source. Tresa Baldas, The National Law Journal, law.com. The article may be found by clicking here (last visited April 8, 2006, reo).
The British Court of Appeals has ordered that two children be removed from their biological mother and custody granted to her ex-lesbian partner. The ruling came after the biological mother had ignored a lower court ruling that gave joint custody of the two young girls to both women. Following the ruling, the biological mother fled from Cornwall rather than share custody with her ex-partner. Source. Peter Moore, 365Gay.com London Bureau, 365gay.com. For the complete story, please click here (last visited April 8, 2006, reo).
Friday, April 7, 2006
Case Law Development: Florida Supreme Court Upholds Constitutionality of Statute Requiring Physicians to Inform of Risks of Abortion
In a unanimous opinion that overturned two lower courts, the Florida Supreme Court has held that the ''Women's Right to Know Act'' which requires physicians to inform women of the probable gestational age of her fetus and the medical risks of the abortion or of carrying the fetus to term does not violate a woman's right to privacy, guaranteed under the Florida Constitution. "The termination of a pregnancy is unquestionably a medical procedure and we conclude that, as with any other medical procedure, the State may require physicians to obtain informed consent from a patient prior to terminating a pregnancy. This basic premise is without dispute in this litigation. No legitimate reason has been advanced to support a theory that physicians who perform these procedures should not have an obligation to notify their patients of the risks and alternatives to the procedure. Further, we do not view those patients requesting this medical procedure to be less concerned than patients having other medical treatments with regard to the risks and alternatives of that medical procedure, or such information as being less pertinent to an informed patient's decision to undergo or not undergo the procedure.''
Case Law Development: Florida Court of Appeals Explains Standards for Waiving Parental Notification Requirement
The Florida Court of Appeals reversed a trial court's order dismissing her petition for judicial waiver of parental notification of pregnancy by unpublished order and has now provided an an opinion to explain the decision. Florida's parental notification statute provides three exceptions justifying judicial waiver of the requirement: child abuse, maturity of the child, and best interests of the child.
The court explained that the trial court had applied an incorrect definition of "sufficiently mature." Citing decisions from a number of other states on the standard, the court stated, "The circuit court improperly held Doe to the standard of a fully-grown adult, quoting Webster's definition of a mature person as one "fully developed in body and mind." The statute does not require Doe to prove that she has the maturity of an adult....In determining whether a minor is "sufficiently mature," the court need only find that the minor has the necessary emotional development, intellect and understanding to make an informed decision regarding terminating her pregnancy. ... Factors which evidence sufficient maturity include, but are not limited to, the minor's physical age, her understanding of the medical risks associated with the procedure as well as emotional consequences, her consideration of options other than abortion, her future educational and life plans, her involvement in civic activities, any employment, her demeanor and her seeking advice or emotional support from an adult....The statutory term "sufficiently mature" does not require Doe to be self-sufficient."
In re Jane Doe, 2006 Fla. App. LEXIS 4860 (April 5, 2006)
Opinion on the web (last visited April 7, 2006 bgf)
Family Law casebooks nearly universally address the problem of a marriage with a defect in solemnization, providing those lovely cases in which students learn about laws that are "directory rather than mandatory." New Jersey court of appeals reminds us that no such leeway will be given to couples to try to marry without a license. The court held that a couple's marriage was void despite solemnization by an authorized cleric, as they failed to obtain license to marry and New Jersey statutes declare that any purported marriage performed without marriage license is "absolutely void." Various validating acts addressed marriages with defects in solemnization did not excuse absence of a license.
Yaghoubinejad v. Haghighi, 2006 N.J. Super. LEXIS 99 (April 4, 2006) bgf
Case Law Development: Finding of Abuse and Neglect for Purposes of Foster Home Placement Necessarily Includes Findings that Non-Custodial Parents are Unfit
The Surpeme Court of Ohio resolved a split in its circuits regarding necessary findings to support granting legal custody of a child to the state. The case involved a biological father and mother whose first two children were in their grandmother's legal custody and care. When mother had a third child, the court deemed that child neglected due to the mother's drug dependence and the child was placed in the temporary custody of the mother's relatives. Father sought custody and the trial court decided that the child should remain with the mother's relatives. The court of appeals reversed that decision because a finding was not made as to the father's unsuitability for custody purposes. The matter was certified due to a conflict with other appellate districts on the necessity of making such a finding prior to awarding legal custody of a neglected child.
The Ohio Supreme Court found that no such finding was required. "A juvenile court adjudication of abuse, neglect, or dependency is a determination about the care and condition of a child and implicitly involves a determination of the unsuitability of the child's custodial and/or noncustodial parents. It does not, however, permanently foreclose the right of either parent to regain custody, because it is not a termination of all residual parental rights, privileges, and responsibilities, and therefore a motion for a change of custody could be filed in a proper case in accordance with law. "
A dissenting judge objected to the decision as neglecting the constitutional rights of non-custodial parents. "I am concerned about the far-reaching impact of this case and the negative effect it will have on noncustodial parents seeking custody of their natural children. I do not believe that a parent should lose a custody battle to a nonparent absent a determination that the parent is unsuitable."
In re C.R., 108 Ohio St. 3d 369; 2006 Ohio 1191; 843 N.E.2d 1188; 2006 Ohio LEXIS 691 (March 29, 2006)
Opinion on the web (last visited April 6, 2006 bgf)
The Utah Court of Appeals clarified the application of its two-factor test for standing to challenge paternity in a divorce action. The court reversed a trial court's determination of paternity in the biological father of a child born to a married couple upon their divorce when the child was nearly 2 years old, even though the marital father had known about the uncertainty of his paternity when the child was born, he and mother had agreed to try to make their marriage work and that he would be treated as father, and the biological father had not attempted to support or substantially involve himself in the child's life for the first 16 months.
The court of appeals reversed, holding that the non-marital father should not have been given standing to intervene in the couple's divorce in order to contest paternity because allowing interventions in the circumstances of cases such as this would undermine marital stability by removing incentives for couples to attempt to preserve their marriages in the face of marital infidelitly and, more significantly, the intervention would be disruptive and was unnecessary.
The case provides a fascinating discussion of the competing rights of biological and marital fathers. Pearson v. Pearson, 2006 UT App 128, 2006 Utah App. LEXIS 130 (March 30, 2006)
Opinion on the web (last visited April 5, 2006 bgf)
Thursday, April 6, 2006
"The number of Canadian children in child care has jumped significantly during the past eight years, a study reveals. The findings, released Wednesday by Statistics Canada, show around 54 per cent of children aged between six months and five years were in child care in 2002-2003, up from 42 per cent in 1994-1995." By CTV.ca News Staff Link to Article (last visited 4-5-06 NVS)
"The more television 4-year-old children watch the more likely they are to become bullies later on in school, a U.S. study said. At the same time, children whose parents read to them, take them on outings and just generally pay attention to them are less likely to become bullies, said the report from the University of Washington. Bullying can now be added "to the list of potential negative consequences of excessive television viewing along with obesity, inattention and other types of aggression," said Frederick Zimmerman who led the research." PakTribune Link to Article (last visited 4-5-06 NVS)
"Nearly six months after a 7.6 earthquake devastated northwest Pakistan, international relief and development organisation World Vision has shifted its focus from relief to helping communities rebuild livelihoods, restart education and restore hope for their children. Programmes to restart livelihoods in on-farm and off-farm activities have been drafted with input from communities where World Vision plans to work. The organisation is working to establish 40 temporary schools, with the view to reconstruct 50 permanent schools in the Siran valley. . . .Children were disproportionately impacted in the earthquake that struck when many were in school. More than 19,000 were killed and 2.2 million affected. Some 3.5 million families were rendered homeless." Reuters Foundation AlertNet Link to Article (last visited 4-5-06 NVS)
"Rapper Eminem has filed for divorce for a second time from Kimberly Mathers, less than three months after the couple remarried, his publicist said on Wednesday.The Detroit rapper, whose real name is Marshall Mathers III, filed divorce papers in Macomb County, Michigan, in the latest twist to the couple's turbulent relationship." Reuters Link to Article (last visited 4-5-06 NVS)
Wednesday, April 5, 2006
California Supreme Court to Decide What Information Partners Must Tell Each Other About Past High-Risk Sexual Activity
What information marriage partners much provide each other regarding past high risk sexual activity is before the California Supreme Court. At a hearing scheduled for today (Wednesday), the court will hear arguments regarding the legal consequences of a woman's claim that her husband -- a healthy person, by all outward appearances and his own assurances -- infected her with HIV. The lawsuit will require the justices to “weigh health concerns against the right of sexual privacy a quarter century into the AIDS epidemic.” A written decision is not expected for several weeks. Source. Bob Egelko, San Franciso Chronicle, sfgate.com. For the complete story, please click here (last visited April 5, 2006, reo).
A retrial began Monday in Akron, Ohio of a man who is accused of impregnating his 16-year-old stepdaughter through artificial insemination. Although he was convicted in 2002 of rape, sexual battery and child endangering and given a 20 years prison sentence, that conviction was ordered reconsidered by the United States Supreme Court in March 2004. In another decision, whose holding was viewed as applying to this case, the Court ruled that admitting a statement from a wife who refused to testify violated her husband’s Sixth Amendment right to confront a witness. During the criminal investigation, the Ohio man’s wife gave a statement to a detective but later refused to testify at trial. Source. Karen Farkas, The Plain Dealer, Cleveland.com. For the complete story, please click here (last visited April 5, 2006, reo).
New Mexico's Court of Appeals ruled Monday that the state cannot prosecute a mother for child abuse because she used cocaine during her pregnancy. The court justified its ruling on the basis that the New Mexico Legislature could not have intended for a viable fetus to be considered a human being in the context of the child abuse statute. The woman told authorities she used crack cocaine and alcohol prior to the birth of her daughter who had high levels of cocaine in her.
Other jurisdictions with similar child abuse statutes have concluded that they do not apply to an unborn fetus. See People v. Morabito, 580 N.Y.S.2d 843, 846-47 (N.Y. City Ct. 1992) (holding that mother could not be charged with criminal endangering the welfare of her child based upon prenatal acts of smoking cocaine); State v. Gray, 584 N.E.2d 710, 713 (Ohio 1992) (holding that mother may not be prosecuted criminally for child endangerment for prenatal substance abuse); Reinesto v. Superior Court of Ariz., 894 P.2d 733, 737 (Ariz. Ct. App. 1995) (holding that mother could not be prosecuted under child abuse statute for prenatal use of heroin); State v. Dunn, 916 P.2d 952, 956 (Wash. Ct. App. 1996) (dismissing charge of second degree criminal mistreatment of a child, holding that a fetus was not a child within the meaning of criminal mistreatment statute where mother continued to ingest cocaine while pregnant); State v. Deborah J.Z., 596 N.W.2d 490, 496 (Wis. Ct. App. 1999) (holding that fetus was not a human being for purposes of attempted first-degree intentional homicide and first-degree reckless injury statutes).An appeal to the state Supreme Court is expected. Source. AP, abqtrib.com. For the complete story, please click here (last visited April 5, 2006, reo). Download New Mexico child abuse ruling_in_pdf_format here.pdf reo.
The Arizona Senate approved a bill 17-13 Tuesday that requires doctors to tell women seeking abortions that their fetuses could experience pain even if the women receive pain medication. The bill had earlier passed the House and now goes to Governor Janet Napolitano, who since taking office in 2003 has vetoed several measures supported by abortion opponents. Supporters claimed the bill would help ensure that women could make informed decisions about their health. Critics claimed the bill is intended to erode abortion rights. Source: AP, Tucsoncitizen.com. For the complete story, please click here (last visited April 5, 2006, reo).
Ninth Circuit Federal Court of Appeals Hear Constitutional Challenge to California’s Ban on Same-Sex Marriages
A three-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments Tuesday on the constitutionality of California's statutes that ban same-sex marriages. The case was brought by two men who were denied permission to marry each other in Orange County, California. U.S. District Court Judge Gary Taylor had ruled against the couple last year. Source. David Kravets, AP, The Mercury News. For the complete story, please click here (last visited April 5, 2006, reo).
It is reported that hundreds of thousands of abortion opponents demonstrated in Bogota, Colombia on Sunday. The demonstration was apparently called by the pro-life movement in conjunction with Cardinal Pedro Rubiano, Archbishop of Bogota. A case before Bogota's Constitutional Court that is likely to be decided within a month will determine whether abortion should be legalized in that country. Source. John-Henry Westen, lifesite.net. For the complete story, please click here (last visited April 5, 2006, reo).