Family Law Prof Blog

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

Tuesday, April 11, 2006

Case Law Development: It Takes a Judge To Decide Custody and Visitation Issues

The Florida Court of Appeals reversed a trial court's orders that a guardian ad litem, appointed for the parties' minor son in a dissolution proceeding, had the authority to make all decisions regarding visitation of the child with his parents.  The court emphasized the statutory language requiring that courts make these decisions and noted that courts may not delegate their statutory authority to determine visitation to guardian ad litems, attorneys, or experts.

Shugar v. Shugar, 2006 Fla. App. LEXIS 4856 (April 5, 2006)
Opinion on the web (last visited April 10, 2006 bgf)

April 11, 2006 in Custody (parenting plans), Visitation | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Trial Courts May Grant Alternating Year Custody Arrangements

The Delaware Supreme Court affirmed a trial court's decision to continue an alternating year placement of a child between parents in two states, denying Father's petition to modify the stipulated arrangement.  The opinion clarifies two important aspects of review of this type of case. 

First, Father had argued that the trial court erred in failing to consider six non-statutory factors developed by case law to be applied in shared custody cases.
The Father's first argument is that the Family Court failed to consider its own mandatory precedents, which require the consideration of six non-statutory factors in determining whether a shared placement arrangement is appropriate in a joint custody decree. Those factors are:
"(1) that the parents communicate effectively; (2) that the children need not make adjustments from one parent's home to the other's because the parents have a "uniform pattern of child rearing;" (3) that the parents are flexible; (4) that it would be beneficial for the children; (5) that the children are biologically and physically capable of making such a change; and (6) that there is uniformity in the children's education and religious upbringing."
The court held, however, that these non-statutory factors are always discretionary considerations - only statutory factors must be considered. 

Second, the court noted that these factors were inapplicable to the custody arrangement here, distinguishing alternating primary placement from shared placement.  The court affirmed the authority of the trial court to order custody alternating the child's primary residence on an annual basis. However, the court noted that a review of the case law from other states indicates that "such arrangements are unique and constitute an exception to the general preference for one continuous primary placement even when custody is joint."

Mundy v. Devon, 2006 Del. LEXIS 162 (April 6, 2006)
Opinion on the web (last visited April 10, 2006 bgf)

April 11, 2006 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Father seeks partial custody of baby conceived in assault

A child custody battle between a teenage girl and the man who sexually assaulted her could establish a precedent for how Vermont courts resolve parental disputes over children conceived as the result of sexual crimes.  The case centers on a baby boy born to a then-16-year-old woman in November 2004. Two months after the birth, the 37-year-old biological father pleaded guilty to sexual assault on a minor. Robert LeClair's victim was 15 at the time of conception, under the age of consent in Vermont. He did not serve jail time. Even as LeClair admitted culpability in the assault, he was pursuing partial custody of the child. In August 2005, a Windsor County family court judge denied the New Hampshire resident any custodial rights, and LeClair is challenging that ruling in the Vermont Supreme Court.

New report from The Barre Montpelier Times Argus, VT  (last visited April 10, 2006 bgf) 

April 11, 2006 in Child Abuse, Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Monday, April 10, 2006

Felony Abortion

"It was a sunny midafternoon in a shiny new global-economy mall in San Salvador, the capital city of El Salvador, and a young woman I was hoping to meet appeared to be getting cold feet. She had agreed to rendezvous with a go-between not far from the Payless shoe store and then come to a nearby hotel to talk to me. She was an hour late. Alone in the hotel lobby, I was feeling nervous; I was stood up the day before by another woman in a similar situation. I had been warned that interviewing anyone who had had an abortion in El Salvador would be difficult. The problem was not simply that in this very Catholic country a shy 24-year-old unmarried woman might feel shame telling her story to an older man. There was also the criminal stigma. And this was why I had come to El Salvador: Abortion is a serious felony here for everyone involved, including the woman who has the abortion. Some young women are now serving prison sentences, a few as long as 30 years.

More than a dozen countries have liberalized their abortion laws in recent years, including South Africa, Switzerland, Cambodia and Chad. In a handful of others, including Russia and the United States (or parts of it), the movement has been toward criminalizing more and different types of abortions. In South Dakota, the governor recently signed the most restrictive abortion bill since the Supreme Court ruled in 1973, in Roe v. Wade, that state laws prohibiting abortion were unconstitutional. The South Dakota law, which its backers acknowledge is designed to test Roe v. Wade in the courts, forbids abortion, including those cases in which the pregnancy is a result of rape or incest. Only if an abortion is necessary to save the life of the mother is the procedure permitted. A similar though less restrictive bill is now making its way through the Mississippi Legislature." By Jack Hitt, New York Times Link to Article (last visited 4-9-06 NVS)

April 10, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Abortion Pills

"Two Chinese students needed urgent medical treatment after taking illegal abortion pills, says a Chinese doctor in Christchurch. Dr Colin Chin said the two students came to his clinic independently more than 18 months ago "bleeding and in pain" from incomplete abortions. One student admitted her parents sent her the pills from overseas, and the other woman would not say where she got them. Last week, the Ministry of Health's Medicines and Medical Devices Safety Authority (Medsafe) laid charges against importers of Chinese-manufactured contraception and abortion pills. They were being imported privately and advertised on a Chinese language website for the past 18 months. The accused are due to appear in court next month."By Deidre Mussen, stuff Link to Article (last visited 4-9-06 NVS)

April 10, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Abortion Timing

"A major symposium on abortion in Wellington has revealed that more than two-thirds of terminations in New Zealand are carried out on women who are more than 10 weeks pregnant - about twice the rate of comparable countries. In Britain, Europe and US, 30 per cent of abortions are performed on women eight weeks pregnant or less, while in New Zealand the figure is just 8 per cent." Link to Article (last visited 4-9-06 NVS)

April 10, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

South Dakota Abortion Petition Effort

Volunteers pushing to overturn the nation's most far-reaching abortion ban are surprised and delighted by the response as they circulate petitions to put the law up for a public vote. Even in the most conservative corners of this conservative state, both Republicans and Democrats - including some voters who say they oppose abortion - are eagerly signing the petition. In two weeks, volunteers have collected a third of the signatures they need to get a November referendum on the ban. Some voters dismiss the abortion-rights activists as out of touch with South Dakotan values. "People here have a sense of morals and ethics," said Darcy Patterson, 40. "I don't want to change the law."" Lost Angeles Times, HeraldNet Link to Article (last visited 4-9-06 NVS)

April 10, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Abortion Activism

"About 70 Right to Life Australia activists converged on St Columbus Church in bayside Elwood to mark the end of a 250km awareness march from Maffra, in the state's east.They were met by a group of about 10 vocal pro-choice campaigners who heckled them as they arrived, waving placards and chanting "not the church, not the state, women will decide their fate". A handful of police was on site to monitor the groups but the demonstration was peaceful." By Catherine Best, The Daily Telegraph Link to Article (last visted 4-9-06 NVS)

April 10, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Sunday, April 9, 2006

Connecticut Appeals Court Rules Stepchild Sexual Assault Statute Unconstitutional

The Connecticut state Appellate Court ruled Wednesday that a statute on sexual assault involving stepchildren is unconstitutional. The decision reversed the third-degree sexual assault conviction of a New Haven man.

The court was faced with an 1875 statute that prohibited sexual intercourse between a stepfather and stepdaughter, however, sexual intercourse between a stepfather and stepson is not covered. The court said that it could “conceive of no rational basis for that distinction. Indeed, it is very wide of any reasonable mark” and concluded that the statute violates the guarantees of equal protection under the 14th Amendment to the U.S. Constitution. The court found  Lawrence v. Texas, 539 U.S. 558 (2003), and a Kansas Supreme Court opinion, State v. Limon, 280 Kan.275, 122 P.3d 22 (2005), particularly helpful, observing that “like Lawrence, Limon presents a case in which statutory punishment for certain unlawful conduct did not apply equally to the conduct of homosexuals and heterosexuals alike.”  News Source: The Advocate, For the full story, please click here (last visited April 9, 2006, reo). The opinion of the Connecticut Court of Appeals can be found here (last visited April 9, 2006, reo)

April 9, 2006 in Child Abuse | Permalink | Comments (0) | TrackBack (0)

Minnesota Bishops Disappointed in Senate Handling of Marriage Issue

Minnesota's Catholic bishops expressed deep disappointment Friday that the full Minnesota Senate has not voted on a constitutional amendment limiting marriage to a man and one woman. Earlier in the week, a majority of a Senate committee rejected an amendment, which would ban same-sex marriage. Despite the committee action, the amendment is still expected to be presented to the full Senate in some fashion before the end of the session.  Source: For the full story, please click here (last visited April 9, 2006, reo).

April 9, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

President of U.S. Conference of Catholic Bishops Urges Federal Marriage Ban Legislation

On Monday, the president of the U.S. Conference of Catholic Bishops urged all Roman Catholics to oppose marriage between same-sex couples by supporting a federal constitutional amendment banning such relationships. He wrote in a letter made public that "Today there is a growing sense shared by many people, including a wide range of religious leaders, that a marriage protection amendment is the only federal-level action that ultimately will protect and preserve the institution of marriage." Source. Christoper Curtis, PlanetOut Network,   For the full story, please click here (last visited April 9, 2006, reo).

April 9, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Indonesian Film Triggers Polygamy Debate

An Indonesian film that portrays women in polygamist relationships as unhappy is stirring heated debate about polygamy, which some claim is widespread in the world's most Muslim populous country. Critics have applauded the film as “prying open the hushed subject.”  Source. For the full story, please click here (last visited April 9, 2006,reo).

April 9, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)