Saturday, April 15, 2006
An Indiana appeals court ruled Thursday in favor of allowing same-sex couples to jointly adopt children. In a 2-1 decision, the Indiana Court of Appeals ruled that Indiana law did not bar adoption of an infant girl by a lesbian couple. Prior to this decision, adoptions to unmarried couples were granted only if the child was the natural offspring of one partner or had already been adopted by one partner in the pair.
The majority wrote that the “primary question we must resolve is one of statutory interpretation, namely, whether the Indiana Adoption Act permits an unmarried couple—any unmarried couple, regardless of gender or sexual orientation—to file a joint petition for adoption.” After reviewing Indiana’s adoption statutes, it concluded that “It is apparent to us that in enacting [the adoption statutes], the legislature was requiring married persons to petition jointly . . .. But it does not follow that in placing this requirement upon a married couple, the legislature was simultaneous sly denying an unmarried couple the right to petition jointly. Indeed, . . . there is nothing in the Adoption Act that suggests that to have been the legislature’s intent.” Source. Christopher Curtis, PlanetOut Network, gay.com. For the complete news story, please click here (last visited April 15, 2006, reo). The Indiana Court of Appeals Opinion in this case may be obtained by clicking here (last visited April 15, 2006, reo).
Case Law Development: Arkansas Court Rules Defense May Not Question Child 6 About Being Sexually Assaulted When She was 4
The Arkansas Supreme Court ruled Thursday that a man accused of raping a 6-year-old cannot question the girl about her sexual assault by another man when she was 4. The defense had argued that it should be allowed to question question the girl about the earlier attack because she might have confused the two cases.
In making its ruling, the Arkansas Court wrote said that “In cases involving the rape of a minor, [it] has uniformly and consistently excluded evidence of the minor’s prior sexual activity, because in those cases the only two issues to be determined are the fact of the occurrence of the prohibited activity, and the age of the minor. Anything not pertaining to one of those two issues is not relevant in cases involving the rape of a minor.” Source. Doug Thompson, Arkansas News Bureau, arkansasnews.com. For the complete news story, please click here (last visited April 15, 2006, reo). The decision of the Arkansas Supreme Court decision can be found by clicking here (last visited April , 2006, reo).
Regular readers of this Blog may be interested in an article written by Anne Sutton of the Associated Press describing the debate Alaskan legislators are having over what benefits to provide to same-sex couples. The Alaska Supreme Court ruled in October that the state constitution obligated the state to offer benefits to same-sex couples, reopening a debate some thought was resolved eight years ago. Source. Anne Sutton, AP, dallasvoice.com. To access the article written by Ms. Sutton, please click here (last visited April 15, 2006, reo).
Although the issue of placing a Constitutional Amendment banning gay marriage on the ballot has not yet been approved by the Minnesota senate, debate continues to rage over the issue in that state. Readers of this Blog may find the audio discussion on Minnesota Public Radio that considers the “creative class” and asks whether a same-sex marriage ban would hurt Minnesota in attracting this “class” to its state. Source. Minneosta Public Radio. MinnesotaPublicRadio.org. The audio discussion may be found by clicking here (last visited April 16, 2006, reo).
Blog readers may find Nepali journalist Ms. Kamala Sarup’s article in the Los Angeles Chronicle regarding harm to women from early marriage of interest. She surveys the problem in South Asia and particularly Nepal. She writes that as a matter of basic human right, no person should be allowed to marry without full knowledge of its import. She says that a child cannot understand “the full social and physical import, and no child can understand the full social and physical import of marriage.” Source. Kamala Sarup, LAChronicle, losangeleschronicle.com. Ms. Sarup’s Commentary can be found by clicking here (last visited April 15, 2006, reo).
Friday, April 14, 2006
The Minnesota Court of Appeals in an unpublished opinion upheld a trial court's determination of child support arrearages extending back 13 years. The case involved a couple who had a child in 1988. In 1990, Mother obtained an order of protection against father for his acts of domestic abuse and also filed for child support. While the support action was served on Father, the court never issued the order. Father went to another state and had no more contact with Mother or Child. In 2003, the county filed a child support action against father which mother joined, and the district court gave it the same case number as the 1990 action. Father argued that the Minnesota Statute which allows liability for past support to be retroactive only 2 years before commencement of the action prohibited an arrearage award going back to 1990. The court disagreed and entered an order for $106,496. Father also argued that mother had abandoned her original 1990 action and that laches should bar the claim. The court rejected both arguments on the grounds that mother's failure to pursue the child support action was not voluntary in that "appellant's domestic abuse created a reasonable fear in respondent that constituted excusable neglect in pursuing her claim."
Ramsey County v. Taylor, 2006 Minn. App. Unpub. LEXIS 325 (April 11, 2006)
Opinion on the web (last visited April 13, 2006 bgf)
The Missouri Court of Appeals reversed an award of grandparent visitation that allowed grandmother four weeks of visitation during the summer and visitation whenever grandmother was in town if she gave seven days notice. While reaffirming that the grandparent visitation statute was constitutional in allowing grandparent visitation, the court reversed the visitation orderd in this case as "the visitation awarded here is not a minimal intrusion on the family relationship." To be constitutional, the court held, the visitation order "must still be only occasional, temporary visitation that is not commensurate with parental visitation and is only a minimal intrusion on the family relationship."
Bryan v. Garrison, 2006 Mo. App. LEXIS 430 (April 11, 2006)
Opinion on the web (last visited April 13, 2006 bgf)
Case Law Development: Statute Criminalizing Sex with Stepchildren of Opposite Sex but not Same Sex Ruled Unconstitutional
The Connecticut Court of Appeals struck down as unconstitutional a statute on sexual assault involving stepchildren because it seems to endorse gay relationships. The case involved a stepparent's sexual assault of his 17 year old stepdaughter. The court ruled that the state law barring a stepparent from having sex with a stepchild of the opposite sex who is over 16 years old violates equal protection rights because the state statute language does not prohibit the same relationship with a stepchild of the same sex. "Under [the statute], sexual intercourse between a stepfather and stepdaughter is prohibited, but sexual intercourse between a stepfather and stepson is not. We can conceive of no rational basis for that distinction."
The court initially overturned the conviction of the man because the prosecutor did not provide sufficient evidence that the victim was indeed father's stepchild. The testimony of both the defendant and the victim that she was Mother's child was insufficient. "Just as a person may suppose and confess to a marriage that in actuality is invalid, so too, may a person suppose and confess to equally invalid parentage." The court indicated that documentation or other direct proof of parentage would be required.
However, the court went on to address defendant's claim that the statute violated equal protection. The court found that "kindred persons engaged in homosexual relations are similarly situated to those engaged in heterosexual relations." The court then reviewed US Supreme Court and lower court cases addressing the issue of standard of review and concluded that "the United States Supreme Court has not recognized homosexuals as a suspect classification, nor has it deemed same sex relations a fundamental right." Thus the court applied a rational basis test.
In applying that test the court considered the state's proffered justification for the distinction: the prevention of genetic defects due to inbreeding. Since the statute prohibited sexual relations between persons who were not related by consanguinity, the court found that "the dangers of inbreeding are inapplicable, and hence irrelevant, to sexual intercourse between persons related by affinity or adoption." Accordingly, the prevention of genetic defects was rejected as a rational basis for the statute. The court noted that, although the state had provided no other justifications, it could conceive of other bases, including the societal decision that certain forms of sexual behavior are immoral unacceptable. Under this standard as well, however, the court found that there was not a basis for the distinction: "Certainly sexual intercourse between stepfather and stepson is as equally repugnant as that between stepfather and stepdaughter."
A dissenting judge found the additional step of declaring the statute unnecessary to the reversal. "As a reviewing court, our obligation is clearly to avoid unnecessary constitutional adjudication....Our supreme court expressly has instructed that appellate courts should avoid deciding constitutional issues where possible."
State v. John M., 2006 Conn. App. LEXIS 144 (April 11, 2006)
Opinion on the web (last visited April 13, 2006 bgf)
A Connecticut divorce attorney has been reprimanded for violation of Rule 4.4 of the Rules of Professional Conduct for humming "The Twilight Zone" theme song to imply a client's ex-wife -- seated at the same table during a post-judgment divorce proceeding -- is mentally unstable. The statewide grievance committee found the action in violation of the discipline rule that prohibits using "means that have no substantial purpose other than to embarrass, delay, or burden a third person." Reported in The Connecticut Law Tribune.
Click here to read the story on Law.com (last visited April 13, 2006 bgf)
Thursday, April 13, 2006
"President George W. Bush recently turned his eyes to the national problem of child abuse. “Our nation has a responsibility to build a safe and nurturing society so that our young people can realize their full potential,” he said. “During National Child Abuse Prevention Month, we renew our commitment to preventing child abuse and rededicate ourselves to working together to ensure that all children can have a bright and hopeful future.”" By Adrea Miller, The Walton Tribune Link to Article
"A 15-year-old girl who says her father held her captive for more than a year and sexually abused her sent him a letter halfway through her ordeal begging for forgiveness. In the poignant and often misspelled letter, given to jurors Tuesday, the girl apologizes for "stealing lieng, backtalking and disobaying." The girl also wrote "I hope you don't hate me too much, but I understand if you do because you have put up with me for five years. I'm surprised you haven't got rid of me yet." The girl's 36-year-old father is currently on trial on 17 felony charges including child abuse, sexual abuse and kidnapping. The girl testified last week that her father began molesting her at the age of 8 and over the years progressed to regular sexual assaults." By Kim Smith, Arizona Daily Star Link to Article (last visited 4-12-06 NVS)
"Children and Family Development Minister Stan Hagen says the government plans to implement all 62 recommendations made by former judge Ted Hughes in his report on the province's child protection system. The recommendations, which were made public last Friday, include the appointment of an independent children's advocate." CBC News, cbc.ca Link to Article and View the Recommendations (last visited 4-12-06 NVS)
"The 6-month-old son of singer Britney Spears and husband Kevin Federline fell from a highchair, prompting social workers to visit the couple's Malibu home over the weekend, sources close to the situation said Tuesday. On Friday, Spears became concerned that her son, Sean Preston Federline, might have a head injury and took him to an emergency room, the sources said. That is when the Los Angeles County Department of Children and Family Services was notified.Martin Singer, Spears' attorney, said Tuesday that there was an automatic report by the hospital to child welfare officials, as required by state law, and "DCFS immediately responded and determined there was no problem and no reason to open a formal investigation. They determined that the parents weren't involved in the injury and nothing improper occurred within the home."" By Richard Winton, latimes.com Link to Article (last visited 4-12-06 NVS)
Wednesday, April 12, 2006
On Tuesday Arizona Governor Janet Napolitano vetoed a bill that would have required doctors to tell a women who is at least 20 weeks into her pregnancy that her unborn child "has the physical structures necessary to experience pain." In vetoing the bill, the Governor called the legislation "an unwarranted intrusion by politicians" into the doctor-patient relationship. "The Legislature should not attempt to substitute its judgment for that of trained physicians with respect to professional advice given to patients," she said. Source: Howard Fischer, Capitol Media Services, Arizona Star, azstarnet.com. For the complete story, please click here (last visited April 12, 2006, reo).
Case Law Development: New Hampshire Supreme Court Rules Judge Cannot Order Sale of Property to Settle Marital Debts
The New Hampshire Supreme Court ruled Tuesday that a trial judge could not force the sale of property when a couple divorce in order to pay their debts. The couple involved in the divorce were about $90,000 in debt when the trial judge ordered them to sell property they owned in Canada worth more than $50,000 in order to pay off the debt.
Other jurisdictions have ruled similarly because such an order would require creditors to intervene if they were to be repaid. In Arneson v. Arneson, 227 P.2d 1016, 1017-18 (Wash.1951), the husband appealed a divorce decree requiring him to sell his land and use the proceeds to pay taxes, mortgages, attorney’s fees and “all other encumbrances” on it. The court reversed and vacated the decree saying that “[s]ince the [Washintgon] divorce act nowhere provides for it, the [trial] court has no power to compel a liquidation for the benefit of creditors as an incident to a divorce decree.” In Beran v. Beran, No. WD-03-070, 2004 WL 1087197, at *3, *8 (Ohio Ct. App. May 14, 2004), the court affirmed a trial court decision to reject ordering a husband to pay his one-half share of marital credit card debt using proceeds from the sale of the marital residence. In Lee v. Lee, 649 P.2d 997, 1003 (Ariz. 1982), the court stated that “there is nothing in the Arizona dissolution statutes which grants such power to a trial court.” It reasoned that “we believe it is sound policy to adopt a rule which will not require creditors to intervene in contested dissolution actions in order to litigate their claims. To do otherwise would be to turn a dissolution action into a creditor’s proceeding.” News source. Boston.com. For the news story about his decision, please click here (last visited April 12, 2006, reo). A copy of the New Hampshire slip opinion can be found here (last visited April 12, 2006, reo).
The Idaho House passed a bill Monday that requires women seeking an abortion to wait 24 hours before being allowed to undergo the procedure. The “informed consent bill” also requires doctors to distribute information about potential complications from abortion to women seeking one. The bill, already approved by the Idaho Senate, now goes to Governor Dirk Kempthorne for consideration. Source: KIFI-TV, Idaho Falls, localnews8.com For the complete story, please click here (last visited April 12, 2006, reo).
A proposed constitutional amendment to ban same-sex marriage will go on the Virginai November 7 ballot without the signature of Governor Timothy M. Kaine. Under Virginia law, a governor is given to power to veto or amend the language of a proposed amendment. The Governor’s action is said to send a message that he is opposed to the provision. Source: Pamela Stallsmith, Richmond Times-Dispatch, timesdispatch.com. For the complete story, please click here (last visited April 12, 2006, reo).
An Illinois sperm donor whose sperm was used to artificially impregnate his former girlfriend is being sued for child support. The in-vitro fertilization of the woman led to the birth of twin daughters. Both 45, the couple met on a dating web site and had a relationship for about 15 months. He claims he had no intention of doing anything more than provide his girlfriend with semen she needed to conceive, although he allowed his name to be put on the birth certificates. Her attorney claims he has “concocted” a story to extricate himself from having to pay child support. His lawyer claims it is a case of “involuntary parentage.” Source: Steve Patterson, Chicago Sun Times, suntimes.com. For the complete story, please click here (last visited April 12, 2006, reo).
Tuesday, April 11, 2006
The Texas Supreme Court reversed a trial court's grant of generous grandparent visitation in a case in which Mother had objected to her mother-in-law's visitation with the child after Father had died. The trial court had rejected Mother's claims that the statute was unconstitutional and awarded her mother-in-law "possession" of the child for one weekend a month, two weeks in the summer, four days during Christmas vacation, and alternating Thanksgiving weekends, as well as access through weekly telephone calls. The Texas Supreme Court found the situation in this case to be "virtually the same" as the facts of Troxel v. Granville, 530 U.S. 57 (2000). "In this case (as in Troxel) there was no evidence that the child's mother was unfit, no evidence that the boy's health or emotional well-being would suffer if the court deferred to her decisions, and no evidence that she intended to exclude [Grandmother's] access completely."
In re Mays-Hooper, 2006 Tex. LEXIS 256 (April 7, 2006)
Opinion on the web (last visited April 11, 2006 bgf)
The Florida Court of Appeals reversed an order adjudicating a child dependent based the 12-year-old child's exposure to small quantities of marijuana and residual amounts of cocaine in several areas of the child's house. The court emphasized that findings of dependency must be based on evidence that a parent's behavior creates an "imminent risk of being abused or neglected as those terms are defined by statute." The court observed that, "Exposing a child to controlled substances constitutes “harm” in only two situations: (1) when a mother’s use of a controlled substance during her pregnancy demonstrably adversely affects the child; or (2) when a parent’s “continued chronic and severe use of a controlled substance” demonstrably adversely affects the child. Absent such evidence, the trial court’s adjudication of dependency based on this ground must be reversed."
The court also rejected the proffered basis for the dependency that the child was at risk of being left alone when Father was arrested. The court noted that the mere fact that a child has been left alone is insufficient proof of neglect.
J.B. v. Department of Children and Families, 2006 Fla. App. LEXIS 5063 (April 7, 2006)
Opinion on the web (last visited April 11, 2006 bgf)