April 4, 2006
Case Law Development: Child's Preference and Sibling Bond Determine Who Is Awarded Physical Custody in Modification Action
The Iowa Appellate Court provides a tragic case study in custody modification. Mother and Father had been awarded joint custody of their two daughters. The parents were openly hostile to one another, Mother accused Father of sexual inproprieties with daughter, Father accused Mother of having no standards for the children. Out of the fray, the trial court found some facts that emerged clearly: the 14-year-old daughter was alienated from her father and did not want to live with him; she and her sister had "maintained a strong bond despite their parents' incessant in-fighting;" and that Mother "provides at least an equally nurturing environment for the children." Accordingly, the court affirmed the trial court's decision to grant physical custody of both children to Mother.
In re Marriage of Donovan, 2006 Iowa App. LEXIS 298 (March 29, 2006)
Opinion on the web (last visited April 4, 2006 bgf)
Case Law Development: Minnesota Supreme Court Holds that Crawford Does Not Prohibit Introducing into Evidence Hospital Sexual Assault Assessment of Three Year Old
The Minnesota Supreme Court has provided a clear and careful analysis of the application of Crawford v. Washington, 541 US 36 (2004) to a videotaped hospital examination of a three-year-old that was introduced into evidence in a sexual assault case. The trial court had held the child incompetent to testify, so the introduction of her statements was without an opportunity to cross examine her. The MInnesota Supreme Court concluded that the child's statements made during the medical assessments were not testimonial, so that admission of the statements at trial did not offend the defendant's Sixth Amendment right to confront the witnesses against him. The opinion provides an overview of Minnesota developments regarding the Crawford decision and emphasizes that whether statements should be regarded as testimonial depends on an analysis of a number of factors including: "(1) whether the declarant was a victim or an observer; (2) the declarant's purpose in speaking with the officer (e.g., to obtain assistance); [*11] (3) whether it was the police or the declarant who initiated the conversation; (4) the location where the statements were made (e.g., the declarant's home, a squad car, or the police station); (5) the declarant's emotional state when the statements were made; (6) the level of formality and structure of the conversation between the officer and declarant; (7) the officers' purpose in speaking with the declarant (e.g., to secure the scene, determine what happened, or collect evidence); and (8) if and how the statements were recorded."
State v. Scacchetti, 2006 Minn. LEXIS 157 (March 30, 2006)
Opinion on the web (last visited April 4, 2006 bgf)
Case Law Development: No Paternal Preference in Child Name Change Proceedings
The Kansas Court of Appeals reversed a trial court's decision to change a 2-year-old child's surname to that of Father in a paternity action. The court held that the trial court had failed to apply the proper legal standard of "best interest of the child and interest of the parents" and had, instead, applied a paternal preference presumption and had punished Mother for exercising her right to refuse to put Father's name on the birth certificate when he had refused to acknowledge paternity in the hospital. The Father had discontinued the relationship when he learned of the pregnancy and had provided only $50 in support in the two years since the child's birth. The child had used Mother's surname since birth, knew his name, had Social Security and medical records in that name, and had lived only with his mother and her parents since birth.
The court of appeals clarified prior caselaw that the trial court had suggested created a paternal preference. Rather, the court stated, "We embrace as consistent with Kansas law the authorities cited by Mother from other jurisdictions which reject any presumption for paternal surname. These authorities note that any tradition for a child to bear its paternal surname has become inappropriate in today's culture. .... Frankly, we believe that careful scrutiny of the district court's comments during the trial and from the bench reflect its view that children "should" have the names of their fathers, a view that is not consistent with Kansas law."
J.N.L.M. v. Miller, 2006 Kan. App. LEXIS 300 (March 31, 2006)
Opinion on the web (last visited April 4, 2006 bgf)
Case Law Development: Domestic Violence Protective Order Action Not Res Judicata As to Stalking Action
The Ohio Court of Appeals has held that a decision denying a petition for a restraining order based on domesic abuse is not res judicata as to a subsequent petition for stalking based on many of the same underlying facts. The court held that the separate statutes providing civil protection orders against stalking and domestic abuse "are separate tools in Ohio's comprehensive protection legislation and offer distinct forms of relief... A party is not precluded from seeking a [stalking civil protection order] in the general division of a court while an action is pending in the domestic relations division."
Irwin v. Murray, 2006 Ohio 1633; 2006 Ohio App. LEXIS 1531 (March 31, 2006)
Opinion on the web (last visited April 4, 2006)
Case Law Development: Attorney Judgment Shielded from Malpractice Liability
Family law clients may pressure attorneys to raise every conceivable argument available in pursuit of their case and attorneys are rightfully concerned when clients second guess their judgment not to raise a particular argument or defense. The Michigan Court of Appeals emphasizes in a decision this past week that an attorney is not liable for malpractice if he or she is exercising good faith strategic judgment. The case involved an attorney's failure to raise a statute of limitations defense in a child support action. The parent was subsequently arrested for non-payment of the ordered support and the trial judge in that action had sua sponte raised the statute of limitations issue and released the parent. Parent then sued his attorney, arguing that he would not have been arrested at all had the attorney raised the statute of limitations defense in the support action. Attorney argued that raising the statute of limitations defense was meritless because parent had made partial payments of support, which under Michigan law, serves to renew the child support obligation and thereby extend the statute of limitations. The trial court agreed and the court of appeals affirmed, noting that, simply because the judge in the criminal action had overlooked the exception to the statute of limitations, attorney had not duty to "forsee and exploit such an error." Moreover, the court of appeals emphasized that even assuming the statute of limitations defense would have properly barred the proceedings, attorney was not liable for malpractice. "By developing a strategy that a reasonable attorney could honestly believe was consistent with and well founded in state law, [attorney] acted in the best interests of this client."
Wickham v. Lepley, 2006 Mich. App. LEXIS 905 (March 30, 2006)
Opinion on the web (last visited April 4, 2006)
Case Law Development: Concurrent Jurisdiction of State Court and Bankruptcy Court over Divorce
The US District Court for the Eastern District of Michigan unravelled a jurisdictional knot in a ccase involving a receiver appointed by the state court to oversee sale of a marital home as part of a divorce judgment. The divorce decree also provided that if either party filed for bankruptcy, and that if it was determined that any obligation owed to the other party was dischargeable, then the unpaid amount would be automatically converted to non-dischargeable domestic support.
Husband thereafter filed a bankruptcy petition. The receiver moved for fees in the state court action, which the court granted, finding that these were non-dischargeable debts in the nature of domestic support. The court also ordered that Husband direct his disability check to the receiver to pay for child support arrearages. Husband then filed a motion in the bankruptcy action asking the court to find that the receiver was in contempt for violating the automatic stay.
The district court affirmed the bankruptcy court's denial of that motion. The court emphasized that the state court has concurrent jurisdiction regarding determinations of dischargeability pursuant to 11 U.S.C. § 523(a)(5), and that collection of child support from property that is not property of the estate is excepted from the automatic stay pursuant to 11 U.S.C. § 362(b)(2)(B). Moreover, the court emphasized that, even if the state court was wrong in its determination of non-dischargeability, the Rooker Feldman doctrine prohibited the district court's review of that determination:
"Regardless of whether the state court's ruling that found the receiver's fees non-dischargeable because they were in the nature of support was correct or not, the state court had jurisdiction to make that decision. An erroneous interpretation of the law does not divest a court of jurisdiction to make the erroneous decision. Therefore, because the state court had concurrent jurisdiction over areas of domestic support, the Rooker-Feldman doctrine bars collateral attack or appellate review of state court decisions, even if erroneous. If Appellant wishes to appeal the state court decision granting non-dischargeable status to the receiver's fees, he must do so in the state court system."
In re Moxon, 2006 U.S. Dist. LEXIS 14893 (E.D. Mich. March 30, 2006)(bgf)
April 3, 2006
Some Battered Immigrants Can Self-Petition
"Generally, U.S. citizens (USC) and Lawful Permanent Residents (LPRs) file an immigrant visa petition with the U.S. Citizenship and Immigration Services (USCIS) on behalf of a spouse or child, so that these family members may emigrate to or remain in the United States. USCIS Form I-130, Petition for Alien Relative is filed by the USC/LPR, the petitioner, on behalf of the family member who is the beneficiary. The petitioner controls when or if the petition is filed. Unfortunately, some U.S. citizens and LPRs misuse their control of this process to abuse their family members, or by threatening to report them to the USCIS. As a result, most battered immigrants are afraid to report the abuse to the police or other authorities.
Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of United States citizens or lawful permanent residents (LPR) may self-petition to obtain lawful permanent residency. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser's assistance or knowledge, in order to seek safety and independence from the abuser. Victims of domestic violence should know that help is available to them through the National Domestic Violence Hotline on 1-800-799-7233 or 1-800-787-3224 [TDD] for information about shelters, mental health care, legal advice and other types of assistance, including information about self-petitioning for immigration status." By U.S. Citizenship and Immigration Services Link to Website (last visited 4-2-06 NVS)
Immigration Policy and Domestic Violence Shelters
"Sen. Dick Durbin, D-Ill., repeatedly questioned whether proposed amendments to criminalize aiding illegal immigrants would create problems for a shelter for victims of domestic abuse, which takes in women and children regardless of their legal status. One of several amendments proposed by Sens. John Kyl, R-Ariz., and John Cornyn, R-Texas, would have required anyone who provides humanitarian assistance to illegal immigrants to register first with the federal government."You'd be asking every religious organization, humanitarian organization, every employee, every volunteer to be certified by the Department of Homeland Security before they can serve soup at a domestic abuse shelter," Durbin suggested." By Patricia Zapor, Tidings Online Link to Article (last visited 4-2-06 NVS)
Center for Immigrant Domestic Violence Victims
"I came from a war-torn country," says Kebede, 37. "I had my son in a refugee camp. I left my country at a young age. And so I know how it feels to be no place where you fit.Two years ago Kebede started Going Home Inc., a center for single immigrant mothers, most of whom -- like her -- have left physically abusive husbands. Most speak little English, have little money, no job history and have been ostracized by their communities for divorcing.Last year she rented a spartan two-room office that she shares with Americorps at the Franklin Housing Cooperative in Minneapolis. She badgered corporate friends for cleaning contracts. She trained the women. She wrote their résumés. If they didn't have work clothes, she took them shopping. She often drives them to work. So far she has gotten 23 women into full-time jobs, is working with three now and has 20 more on a waiting list." By Kay Miller, StarTribune.com Link to Article (last visited 4-2-06 NVS)
Police Deparment Doesn't Call Immigration if Domestic Violence Victims Report Crimes
"As Mount Vernon District Station’s Domestic Violence Officer, McKeon will often revisit a victim of domestic violence a week after the arrest was made. At this point, scratches or bruises that were fresh and indistinct when the initial photographs were taken have become dramatic evidence of the crimes committed by abusers.
In 2005 The Mount Vernon District Police Station dealt with 1,768 cases of domestic violence. McKeon appeared in court for 71 of these. 53 of them resulted in a conviction. This 74% conviction rate is a significant improvement over the 30% rate she estimates there would be without the influence of an officer with expertise in building cases against domestic offenders. "Another major part of the program," she says, "is to get with non-English speaking victims," who often "don’t understand court processes and their rights." She says that many domestic abusers take advantage of undocumented immigrants by telling them that if they go to the police, they will be deported. This is not true, she says. "We don’t call immigration if victims report crimes. That’s an important thing we want the community to know."" By John Teschner/Gazette, The Connection Newspapers Link to Article (last visited 4-2-06 NVS)
April 2, 2006
South Dakota Indian Leader Proposes Building Abortion Clinic on Tribal Land
The leader of one of South Dakota’s American Indian tribes is proposing to circumvent recent legislation in that state banning abortions by establishing a Planned Parenthood-type abortion clinic on an Indian reservation. Cecelia Fire Thunder, a former nurse who is the first female president in the history of the Oglala Sioux Tribe, says that “An Indian reservation is a sovereign nation, and we're going to take it as far as we can to exercise our sovereignty. As Indian women, we fight many battles. This is just another battle we have to fight." She attributes the decision to propose an abortion clinic on tribal land to the new law’s insistence on prohibiting abortions for women who have become pregnant as the result of rape. Source. Stephanie Desmon, Baltimore Sun, sfgate.com. For the complete story, please click here (last visited April 2, 2006, reo).
Mississippi Lawmakers Cannot Agree on Bill Banning Abortions
Despite extending the deadline to act on a law that would have banned most abortions in Mississippi, lawmakers in that state were unable to reach agreement on the bill’s final language. The issue is expected to be taken up in the January 2007 session. Sources. Gudrun Schultz, lifesite.net; civilliberty.about.com. Information about this story may be found here (last visited April 2, 2006, reo). Additional information about this story may be found here (last visited April 2, 2006, reo).
South Dakota Court is Unsympathetic to Obligor Claiming Perjury and Refusing to Produce Work Records
The South Dakota Supreme Court had little sympathy for a child support obligor who claimed that his ex-wife and a lawyer appointed as a referee in a child-support hearing should be jailed for perjury. In a unanimous opinion, the court ruled that the obligor failed to prove that his ex-wife and a lawyer appointed as a referee in a child-support hearing had perjured themselves. It also ruled that the obligor must pay $562 a month in child support. This figure was arrived at when the obligor refused to turn over employment records to the appointed referee and the referee then went to the state Labor Department records, which indicated that the obligor’s wages averaged about $2,700 a month. It is reported that since the obligor’s 1999 divorce, there have been 52 motions filed in the case, most by the obligor. Source. AP, Joe Kafka, AberdeenNews.com. For the complete story, please click here (last visited April 2, 2006, reo). Please_click_here_for_South_Dakota_perjury_slip_opinion.pdf
Commentary: Religious Discrimination in Child Custody Settlements
Do judges discriminate because of religion when making child custody determinations? According to Austin Cline there is “an astonishing pattern of systematic religious bias by family court judges.” His views and his analysis of an article written by UCLA law professor Eugene Volokh on this issue may be of interest to our readers and may be found on the Civil Liberties Blog. Source. Austin Cline, civilliberty.about. For Mr. Cline’s commentary, please click here (last visited April 2, 2006, reo).
Minnesota State Senate to Consider Gay Marriage Amendment to State Constitution
The Minnesota Senate Judiciary Committee will finally hear a bill proposing a gay marriage amendment this coming Tuesday. Democrats believe they have enough votes to kill any amendment on the Senate Floor – Republicans want a vote on the measure. One of the tactics being used by the proponents of the Amendment involves introduction of eight separate marriage amendment bills -- six of them introduced on one day last week.. Even if the first bill is defeated in the Senate Judiciary Committee, there are several bills remaining to be considered. Meanwhile, proponents and opponents of gay marriage continue to demonstrate daily. Source. Wcco.com. For the complete story, please click here (last visited April 2, 2006, reo).