May 6, 2006
Kansas Senate Sends Abortion Information Bill to Governor
The Kansas Senate approved a bill that requires doctors who perform abortions to provide state health officials detailed information about each late-term abortion and whether the fetus was abnormal. Opponents of the bill argued that it was an attempt to harass doctors and clinics while proponents claimit will provide Kansans with better data about abortions. The governor has not indicated whether she will sign the bill. Source. John Hanna, AP, Kansas City Star, KansasCity.com. Please click here for the complete story (last visited May 6, 2006, reo).
Telephone Survey Finds Support for Roe v. Wade Lowest in a Decade
According to a telephone survey of 1,016 adults conducted by the Harris poll, support for Roe v. Wade is at the lowest level in decades in the United States. The decision is supported by a 49% to 47% plurality, compared with 52% who favored the decision in 2005 and 57% in 1998. Source. Wall Street Journal Online, onlines.wsj.com. Please click here for the complete story and details about the Harris poll (last visited May 6, 2006, reo).
Utah Court of Appeals Rejects Common-Law Marriage Claim of Polygamist’s Wife
The Utah Court of Appeals refused to recognize the common law claim of a woman in a polygamous relation saying that she could not file a declaration of "unsolemnized marriage" after the death of her “husband” because he was legally married to another woman. It also noted that she did not file her petition within the one-year limit pursuant to Utah law. The woman and her late “husband” were married in June 1953 and later decided to embrace the practice of plural marriage. They divorced in 1961 so the “husband” could legally marry another woman. News Source. ABC4.com. Please click here for the complete news story (last visited May 6, 2006, reo). A copy of the Utah Court of Appeals decision may be found by clicking here (last visited May 6, 2006, reo).
Case Law Development: Ninth Circuit Says Gays Must Await Outcome of State Appeals before Asking Federal Court for Help
A three judge panel of the 9th United States Circuit Court of Appeals ruled this week that a gay California couple must await the outcome of pending litigation that is already challenging California's 's state law banning gay marriage before asking federal courts for help. The couple had challenged the constitutionality of the federal Defense of Marriage Act, which was signed by in 1966. The Act limits federal marriage benefits to traditional married couples -- a man and a woman. The court observed that it is "difficult to imagine an area more fraught with sensitive social policy considerations in which federal courts should not involve themselves if there is an alternative." A copy of the Ninth Circuit slip opinion in Smelt v. County of Orange may be found by clicking here (last visited May 6, 2006, reo).
May 5, 2006
Kansas Marine Fights for Child Custody
A Kansas soldier is fighting a battle to regain custody of the son he lost while he was away on active duty. The child custody case has made its way to the state Supreme Court. Last spring, Cpl Levi Bradley's marriage to his wife, Amber, fell apart. He was a Marine on active duty and spent some time in Iraq. He said his 2-year-old son, Tyler Allen, now lives with his estranged wife. Bradley thought that by invoking the Servicemembers Civil Relief Act -- which can assist active military personnel involved in lawsuits -- he wouldn't lose his son.
The case is Levi Adam Bradley v. Amber Bradley, No. 95,727.
To see the video report by KMBC's Micheal Mahoney (last visited 5/1/2006 bgf)
Case Law Development: Florida Rejects Habeas as Route to Raise Ineffective Assistance of Counsel in Termination of Parental Rights Actions
The Florida Court of Appeals holds that ineffective assistance of counsel claims in termination of parental rights proceedings may not be collaterally attacked through habeas corpus proceedings. The opinion thoroughly reviews the treatment of this issue by other states (see extended post below for a summary). The court comments that "The issue is difficult because it pits the protected interest in preserving the family and raising one's children against the manifest best interests of children and their need for permanency.... The very issue calls into play questions of procedure, time requirements, burdens of proof, and a balancing of interests." (internal quotations omitted)
The court concludes that the "liberty interest at stake in criminal cases is simply not equivalent to that involved in custody cases involving children." The court noted several differences between termination proceedings and criminal proceedings regarding the standard of proof, role of the judge, and the critical role of time in termination proceedings. The court also commented on the "perils inherent in the use of habeas corpus petitions, such as unlimited time to file the petition, the lack of any identified rules, the proper burden of proof, and the proper parties to such a petition" and concluded that "any attack on the effectiveness of counsel must come in the form of a direct appeal or a post-trial motion authorized by the rules."
The court did, however, certify the question to the Florida Supreme Court.
One dissenting judge would have permitted the use of habeas to review ineffective assistance of counsel claims in termination actions.
E.T. v. State & Dep't of Children & Families, 2006 Fla. App. LEXIS 6647
(May 3, 2006)
Opinion on the web (last visited May 6, 2006 bgf)
Outside of Florida, thirty-one states have addressed the issue of ineffective assistance of counsel in TPR proceedings. Of those, twenty seven states (Alabama, Alaska, California, Colorado, Connecticut, Georgia, Illinois, Indiana, Iowa, Kansas, Massachusetts, Michigan, Missouri, Montana, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Utah, and Virginia) have permitted the issue to be raised on direct appeal. Two states (Alabama, Wisconsin) have indicated the issue should be raised by post-trial motion, and only one state (California) has allowed the issue to be raised by habeas corpus petition. One state (Nevada) has disallowed a claim for ineffective assistance of counsel. Four states (North Dakota, Rhode Island, Tennessee, and Vermont) have declined to address the issue. And, fifteen states (Arizona, Arkansas, Delaware, Hawaii, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi, and Nebraska) have simply not addressed the issue.
Case Law Development: Marital Communications Privilege and Spousal Testimonial Privilege in Marriage Fraud Cases
Here's a good example for your students of the joint crime exception to the marital communications privilege and the spousal testimonial privilege. This case was a prosecution for marriage fraud involving a Moroccan man who paid $3000 to an American citizen to marry him for immigration purposes. Husband argued that wife's testimony against him and letters he had written here were improperly admitted because they were privileged. The Seventh Circuit Court of Appeals upheld the district court's denial of motions in limine because husband and wife were joint participants in the underlying marriage fraud. Likewise, as to wife's testimony against husband. Because the testimonial privilege is personal to the testifying spouse and because wife did not assert the privilege, husband had no right to assert the privilege on her behalf.
United States v. Darif, 2006 U.S. App. LEXIS 10946 (May 3, 2006)
May 4, 2006
Association of Family and Conciliation Courts Conference Registration
"AFCC’s 43rd Annual Conference, May 31-June 3, 2006 at the Westin Innisbrook Resort in Tampa Bay, Florida is fast approaching. . . . Juggling Conflicts, Crises and Clients in Family Court showcases more than 150 presenters from thirty states and a half-dozen countries and includes 60 sessions on research, mediation, child custody evaluation, parenting coordination, family law education and more." AFCC Link to Registration Information (last visited 5-3-06 NVS)
Link Between Childhood Trauma and Adult Health
"Childhood traumas are prevalent and can cause harm that lasts well into adulthood. There is a strong correlation between childhood trauma and serious adult health problems including tobacco use, substance abuse, obesity, cancer, heart disease, depression and a higher risk for unintended pregnancy. Those are key findings from the Adverse Childhood Experiences (ACE) study, according to principal investigators Robert Block, MD, FAAP, Vincent Felitti, MD and Robert Anda, MD. They briefed Congressional aides about their study and its implications for public policy at an April 18 event sponsored by the American Academy of Pediatrics and the Family Violence Prevention Fund (FVPF). The study makes a strong case for a greater focus on prevention and early intervention to protect children from harm caused by violence." Family Violence Prevention fund Link to Article (last visited 5-3-06 NVS)
Children Concieved Via Assisted Reproduction Are Well-Adjusted
"Children born as a result of assisted reproduction technologies are generally well adjusted, survey results suggest. However, children who lack a genetic link to one of the parents -- by reason of donor insemination or egg donation -- are unlikely to be told of the circumstances of their birth. On the other hand, most children born by in vitro fertilization (IVF) using egg and sperm from their actual parents are told. Dr. Susan Golombok, from the University of Cambridge, UK and associates previously reported that when children were approximately 4-1/2 years old, egg donation was associated with greater parental psychological well-being compared with donor insemination, IVF and adoption -- and none of the children exhibited psychological problems." Reuters Health, Medlineplus Link to Article (last visited 5-3-06 NVS)
Eminem's Soon-to-be Ex-wife Files Papers
"The real Mrs. Slim Shady is standing up--in divorce court. Kim Mathers, soon to be Eminem's ex-wife for the second time, filed a response Wednesday in a Detroit court to the divorce proceedings her husband began in early April. Though the new paperwork provides no insight as to why the couple is re-divorcing after being remarried for three months, it does highlight what Mathers wants out of the deal. According to court documents, she is seeking financial support, attorney fees and joint legal custody of the pair's 10-year-old daughter, Hailie Jade Scott." By Y!Music, Link to Article (last visited 5-3-06 NVS)
Anna Nicole Smith Supreme Court Victory
"The Supreme Court ruled Monday that one-time stripper and Playboy magazine Playmate Anna Nicole Smith could pursue part of her late husband's oil fortune. Justices gave new legal impetus to Smith's bid to collect millions of dollars from the estate of J. Howard Marshall II. Her late husband's estate has been estimated at as much as $1.6 billion. . . ."This is a victory for the federal courts over state courts more than it is a victory for Smith," said CBS News legal analyst Andrew Cohen. "The ruling does give her an opportunity to vindicate her rights — but it doesn't guarantee that victory. What it does guarantee is that the federal courts can sometimes get involved in probate cases like this." But Smith's case had brought unusual drama to the normally sedate high court." By CBS News Link to Article (last visited 5-3-06 NVS)
See also Family Law Prof Case Law Development Post of May 2
May 3, 2006
Federal Court Declares Unconstitutional Missouri Law Cutting Adoption Subsidies
For Andrea Euer, a federal court ruling issued Monday means she'll no longer lose sleep wondering if her adoptive mother would be forced to return her to foster care to make ends meet. Andrea, 14, of O'Fallon, is among about 2,000 children adopted from foster care in Missouri whose parents stood to lose support checks of at least $225 a month under budget cuts proposed last year by Gov. Matt Blunt. But those cuts, and the law that authorized them, were ruled unconstitutional Monday by U.S. District Court Judge Scott O. Wright of Kansas City, who said the subsidy cuts wrongly severed contracts signed between the state and parents at the time of adoption, while purporting to save the state money that probably would never materialize.... John Amman, a law professor at St. Louis University who helped argue the case, described the ruling as an unqualified victory. He said other states should be warned that cutting subsidies poses severe legal perils.
"We do hope that this sends a message to the rest of the country," he said.
Read the St. Louis Post Dispatch article by Matt Frank (last visited May 2, 2006)
The case is E.C., J.L., J.C., T.G., B.G., & A.G. v. Sherman, 2006 U.S. Dist. LEXIS 27506 (May 9, 2006)
To read a copy of the order itself, Download permanent_injunction.pdf (bgf)
Florida Legislature Considers Bill to Allow Paternity Challenge at Any Time during Minority – Relieves Obligor of Support Obligation
The Florida House passed a bill last week 96-17 that allows a child support obligor, who discovers at any point during a child’s minority that he is not the biological father, to be relieved of a support obligation. Current Florida law, which is similar to that in many other states, allows the paternity of a child to be challenged only in the first two years of a child's life. Opponents of the measure argue that the legislation disregards the well-being of a child and promotes family instability. The measure now moves to the Florida Senate. Source. Paige St. John, Tallahassee Democrat, Tallahassee.com. To read the complete story, please click here (last visited May 3, 2006, reo).
Michigan Woman, Age 26, Has Three Husbands Simultaneously; May Have Married at Least 12 times
Michigan police claim that a Detroit woman swindled three men to whom she was married simultaneously and may have wed at least 12 men at one time or another. The woman, age 26, was scheduled to appear in court on Wednesday to determine whether she would face trial on felony polygamy charges, even as investigations continued into how many husbands she has had. The case is unusual because in polygamy cases, it is usually the man who is married to several women. Source. AP, mlive.com. To read the complete story, please click here (last visited May 3, 2006, reo).
China Won’t Relax One-Child Policy
China has indicated that there are no plans to relax its coercive population control policies. Its “one child" policy was introduced in the 1970s with the government pressuring couples to have only one child. Exceptions are made in some cases: of ethnic minorities or rural inhabitants, who may have a second child if their firstborn is a girl. The policy provides financial incentives and punitive fines for those who follow, or fail to follow it. The United States government claims that the policy also has been enforced by forced abortion and sterilization. Source. CNSNews.com. To read the complete story, please click here (last visited May 3, 2006, reo).
Supreme Court Refuses to Review Damage Award In Activists Abortion Protestors Case
The Supreme Court refused on Monday to review a case involving use by abortion protesters of "wanted" posters to identify clinic doctors. The 12 activist defendants and two anti-abortion groups were sued under a racketeering law and the 1994 Freedom of Access to Clinic Entrances Act, which makes it illegal to incite violence and threaten abortion doctors.
An Oregon jury awarded several doctors and clinics $108 million in punitive damages, however, the amount was reduced by the Federal Ninth Circuit Court of Appeals. The defendants had asked the Supreme Court to further reduce the award. General background of this case may be found by clicking here (last visited May 3, 2006, reo). The Ninth Circuit Court of Appeals Opinion, Planned Parenthood v. American Coalition of Life Activists, may be obtained by clicking here (last visited May 3, 2006, reo).
Wisconsin Man Whose Daughter was Allegedly for Sale for $10,000 to Stand Trial
A Wisconsin judge has ruled that a man who allegedly attempted to sell his 18-month-old daughter should stand trial. A woman testified at the man’s preliminary hearing Tuesday that he allegedly told her that he would sell his daughter for $10,000. Source. WBAY-TV, Green Bay, wbay.com. To read the complete story, please click here (last visited May 3, 2006, reo).
Survey Article: “Custody Disputes Involving Frozen Embryos are Increasing; Law Remains Unclear”
Readers of this Blog may find John Crawford’s survey of the issues surrounding frozen embryos and which party obtains custody of them when a couple divorce of interest. Source. John Crawford, The Times, nj.com. To read the article by Mr. Crawford, please click here (last visited May 3, 2006, reo).
May 2, 2006
Case Law Development: New Hampshire Supreme Court Addresses Rehabilitative Maintenance Preference, Extended Payments of Property Settlements and Division of Moral Obligations that are not Legal Debts
The New Hampshire Supreme Court reviewed a divorce action with a spectrum of economic issues worth noting. The couple in the case had been married 13 years and had four children. Husband owns a dental practice with his father. Wife earned a law degree early in the marriage but, by agreement between the couple, she remained at home as homemaker and primary caretaker of the children.
One issue related to the choice of rehabilitative rather than permanent maintenance. The trial court awarded wife $3000 a month alimony for three years, based on the amount of time required for her to prepare herself (in terms of mental health and education and job placement) to return to the job market. Wife argued that she should have been awarded permanent alimony, given the couple's agreement that she stay home with the children, the fact that the children would still be school aged in three years, and her current depression and anxiety. The Supreme Court affirmed the alimony order, noting that rehabilitative alimony is the preferred approach and should only be rejected where "a supported spouse suffers from ill health and is not capable of establishing an individual source of income, or where the supported spouse in a long-term marriage lacks the requi-site job skills to independently ap-proximate the standard of living established during the marriage." Neither situation existed in these facts. Moreover, the court noted, Wife could petition for extension of the alimony if at the end of three years she was still not in a position to meet her reasonable needs.
A second issue concerned the division of property. The court divided the marital estate of $ 2.9 million and awarded 55 percent to Wife. The trial court then ordered that Husband be permitted to pay her the outstanding share of the property settlement over a period of 23 years. The Supreme Court found such an extended payment schedule to be an abuse of discretion. The court did observe that case law from other jurisdictions supported extended payment schedules where there were substantial nonliquid marital assets and a lump-sum cash payment would create a serious financial hardship for the obligor. The court further commented that "We acknowledge the frustration and inconvenience that may occur when one former spouse must sell part of his or her assets to make the payments required by a divorce judgment. It is an inevitable result of virtually every property division, however, that a former spouse who is required to turn over assets to the other at the termination of the marriage has fewer assets after the division than before.... Accordingly, we hold that the trial court unsustainably exercised its discretion by allowing the respondent to pay a substantial portion of the petitioner's share of the marital estate over a twenty-three year period."
Finally the court held that the trial court had abused its discretion in ordering reimbursement to Husband's parents of contributions they made to certain marital property. The court cited the general rule that courts may not divide mere "moral" obligations but only legal debts. The court concluded that if Husband reimbursed his parents for their contributions, "he would be doing so gratuitously and not as a result of an enforceable legal obligation. Accordingly, the trial court unsustainably exercised its discretion in ordering such a reimbursement and reducing the marital estate by $ 275,000."
Harvey v. Harvey, 2006 N.H. LEXIS 49 (April 26, 2006)
Opinion on the web (last visited May 1, 2006 bgf)