May 2, 2006
Case Law Development: United States Supreme Court Narrows Probate Exception
The United States Supreme Court retained the probate exception to federal jurisdiction but confined it to its narrowest terms in Anne Nicole Smith's action battle over her inheritance. Justice Ginsburg, writing for the court, began by reviewing the domestic relations exception to federal court jurisdiction and the narrowing interpretation given that exception in Ankenbrandt v. Richards, 504 U.S. 689 (1992). Turning to the probate exception, the court took a similar narrowing approach. Describing the courts prior statements regarding the probate exception in Markham v. Allen, 326 U.S. 490 (1946) as "not a model of clear statement" and noting the expansive interpretation given to the doctrine by some lower federal courts, Justice Ginsburg interpreted the language of Markham in its narrowest terms. "This Court reads Markham's enigmatic words ... to proscribe "disturbing or affecting the possession of property in the custody of a state court." ... Though that reading renders the first-quoted passage in part redundant, redundancy in this context is preferable to incoherence. This Court therefore comprehends Markham's "interference" language as essentially a reiteration of the general principle that, when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res."
Justice Stevens would have gone further and simply abolished the probate exception. "Rather than preserving whatever vitality that the "exception" has retained as a result of the Markham dicta, I would provide the creature with a decent burial in a grave adjacent to the resting place of the Rooker-Feldman doctrine."
Marshall v. Marshall, 2006 U.S. LEXIS 3456 (May 1, 2006)
Opinion on the web (last visited May 2, 2006 bgf)
Case Law Development: Contempt for Violating Sealed Records Order in Divorce Action
The Louisiana Court of Appeals provides an interesting case study on the difficulties of controlling speech of divorcing spouses. In this case, wife had made allegations of abuse against husband in the divorce proceeding and was unable to prove the allegations. The divorce record was sealed and the court ordered that "each party shall refrain from making disparaging comments of any kind about each other to the minor children; and shall also refrain from harassing or annoying conduct directed at each other." When wife passed out copies of the divorce petition containing the allegations of abuse to fellow parishioners at church, the court held her in criminal contempt. Wife wrote letters to friends and family which described her ongoing disputes with her ex husband but did not repeat the allegations of abuse. The trial court once again held Wife in contempt; however, the court of appeals reversed, finding that the letters did not violate the court's order that Wife not repeat the allegations of abuse.
Arrington v. Arrington, 2006 La. App. LEXIS 971 (April 26, 2006)
Case Law Development: Retroactive Modification of Child Support to Account for Emancipation
The Arizona Court of Appeals holds that a trial court may not retroactively modify a child support order to alter the amount of arrearages accrued before notice of the petition to modify was given to the obligee parent. Moreover, while the court can modify an existing child support obligation to account for one child's emancipation, the earliest authorized effective date of the modification order is the filing date for the petition. The court distinguished a prior decision in which a child had married and the trial court termined support retroactive to the marriage as involving termination of the support obligation, which occurs automatically upon a child's marriage, rather than modification of child support. Here, while one child had become emancipated, there was another child owed support and an action to modify was necessary to determine the total support amount.
Guerra v. Bejarano, 2006 Ariz. App. LEXIS 58 (April 27, 2006)
Opinion on the web (last visited April 30, 2006 bgf)
Case Law Development: Standard of Review of Good Cause Deviation from Placement Preferences of the ICWA
The Kansas Court of Appeals adopts a "substantial abuse of discretion" standard for review of trial court decisions on a good cause deviation from the preference for placement with Native Americans in the Indian Child Welfare Act. The court reviewed the decisions of other states and concluded that "our standard of review of the good cause finding to deviate from the Indian Child Welfare Act's placement preferences is substantial abuse of discretion. Substantial discretion is abused when the district court fails to properly apply the ICWA factors in making its findings of fact rendering the findings clearly erroneous."
Turning to the trial court's decision in this case, the court noted taht the trial court had based its decision on two factors: "the unavailability of suitable families offered by the Tribe for placement" and the birth mother's preference as to the child's placement. Concluding that it was not an abuse of discretion to find that good cause existed to deviate from ICWA's placement preferences on theses bases, the Supreme Court affirmed the placement.
In re Adoption of B.G.J., 2006 Kan. LEXIS 22 (April 28, 2006)
Opinion on the web (last visited April 29, 2006 bgf)
Case Law Development: Domestic Violence and Friendly Parent Provisions in Child Custody Determinations
The Alaska Supreme Court holds that Alaska's statutory presumption against granting custody to a parent with a history of domestic violence should not have retroactive application and that a trial court did not abuse its discretion in placing a child in primary physical custody with father, despite evidence of prior domestic violence.
VanSickle v. McGraw, 2006 Alas. LEXIS 60 (April 28, 2006)
Opinion on the web (last visited April 30, 2006)
Mother lived in Michigan and Father in Alaska and the parents had shared custody of the child, with the child residing with each parent for about 3 months at a time. When the child was three years old, Mother filed an action in Michigan for primary custody. That action was dismissed for lack of jurisdiction and then Father filed an action in Alaska. The trial court placed primary physical custody with Father based on the statutory "friendly parent" provision and on the family and cultural ties of child in Alaska. The trial court found Mother's action in filing for primary custody in Michigan and in filing an unfounded police report against father indicated that she would be less likely to facilitate a relationship between her child and her ex-husband. The court also noted that the child's Tlingit heritage would be recognized more readily in Alaska than in Michigan and that child had extended family in Alaska but the only extended family in Michigan was of child's stepfather. Mother argued that the court should have considered Father's violence in an incident in which he drove a vehicle toward her while shouting obscenities. The court held that, because Mother failed to mention an incident of domestic violence in her trial brief, in her written closing argument at trial, or in her motion for reconsideration, Mother had not preserved the issue for appeal.
May 1, 2006
Migrant Women Face Hazards
"Swaddled in dirt in the inky night, the newborn trembled as a stranger struggled to snip her umbilical cord with nail clippers. A smuggler and other migrants had bolted when the baby's 18-year-old mother screamed with labor pains. But Lilia Ortiz couldn't just leave them in the harsh Arizona desert. Ortiz, 23, had walked two days straight to get this far. But she knew what it was like to struggle as a mother on her own. The two women are part of a new wave of migrants. A decade ago, illegal migration was dominated by men. Now more women are making the journey, risking rape and even death to support their families." By Julie Watson, AP, FindLaw, Link to Article (last visited 4-30-06 NVS)
Breastfeeding Mother Smothers Infant
"A woman accused of smothering her infant after she drunkenly fell asleep atop the 4-month-old while breastfeeding pleaded no contest Thursday to child neglect resulting in death.Lorinda Hawkins, 28, had been scheduled for trial next week. She could face up to 21 years in prison when sentenced July 11. Prosecutor John Jorgensen said he would recommend that she receive at least some prison time. "We just believe she should be held accountable for the neglect," he said." CNN.com Link to Article (last visited 4-30-06 NVS)
Men May Live as Long as Women?
"Men are catching up to women in the life expectancy game; the National Center for Health Statistics reports this month that the gap between them has shrunk to five years, the narrowest since 1946. If current trends continue, in 50 years men and women will live the same length of time." By Kate Zernike, New York Times Link to Article (last visited 4-30-06 NVS)
A Gene for Resilience?
"Over the last several decades, a small group of researchers has tried to understand how a minority of maltreated children exceed expectations. The grandfather of resilience theory is Norman Garmezy, who by the 1960's had begun asking why some children of schizophrenics fared better than others. In the 1970's, Ann Masten joined Garmezy at the University of Minnesota, and the two, along with others, started a project spanning more than two decades. They looked at a child's personality, among other things, imagining resilience as a function of temperament, will or intelligence. While children of average intelligence or above were more likely to exhibit resilience, the researchers noted that good relationships with adults can exert an effect that is as powerful, if not more, in mitigating the effects of adversity.
In recent years, biological science has proposed a new paradigm. The latest research shows that resilience can best be understood as an interplay between particular genes and environment — GxE, in the lingo of the field. Researchers are discovering that a particular variation of a gene can help promote resilience in the people who have it, acting as a buffer against the ruinous effects of adversity. In the absence of an adverse environment, however, the gene doesn't express itself in this way. It drops out of the psychological picture. "We now have well-replicated findings showing that genes play a major role in influencing people's responses to adverse environments," says Sir Michael Rutter, a leading British psychiatrist and longtime resilience expert. "But the genes don't do anything much on their own."" By Emily Bazelon, New York Times Link to Article (last visited 4-30-06 NVS)
Mothers Organize to Reduce Childhood Measles in Nepal
"LO MANTHANG, Nepal — As dusk descended on this medieval walled city and its dirt lanes filled with horses cantering home from the mountains, the piercing voice of a woman could be heard over the pounding hooves. "Come for the measles vaccination tomorrow!" Deki Gurung shouted to a neighbor."I know, I know, I got the invitation," the neighbor replied with a roll of her eyes as she peered over her balcony.
Across the impoverished kingdom of Nepal, 50,000 mothers like Mrs. Gurung, most of them illiterate, are foot soldiers in one of the great unfolding public health triumphs of modern times: the global push to slash the number of children who die from complications of measles. Nepal's first national measles vaccination campaign last year cut by 90 percent the country's measles-related deaths, usually about 5,000 per year, the United Nations Children's Fund estimates." By Celia W. Dugger, New York Times Link to Article (last visited 4-30-06 NVS)
Women in Iran Allowed to Attend Games
"Female sports fans can attend games at Iran's stadiums for the first time in nearly three decades, after President Mahmoud Ahmadinejad unexpectedly lifted a ban last week that had prohibited women from entering stadiums. Senior clerics and conservative members of Parliament criticized the decision, saying that frequent hooliganism at sporting events made them inappropriate for women. But Mr. Ahmadinejad said women will promote better behavior." By Nazila Fathi, New York Times Link to Article (last visited 4-10-06 NVS)
"Women are getting paid as surrogate mothers to help Western couples with infertility problems. Is s1uch outsourcing a logical outgrowth of India's fast economic growth or an ethically troubling trend?" By Henry Chu, Toronto Star Link to Article (last visited 5-1-06 NVS)
April 30, 2006
Case Law Development: No Credits Against Child Support Arrearages for Social Security Retirement Benefits Paid to Children
The Court of Appeals of Hawai'i provides a thorough review of caselaw from across the United States regarding credits toward child support for social security dependent payments. The court reversed a trial court that had applied the social security retirement beneficiary payments paid to Father's childrens as a credit against Father's child support arrearages that had accrued before his retirement.
The court noted the majority of jurisdictions that hold that an obligor's social security disability and retirement benefits paid to dependents both may be credited against contemporaneous child support obligations. (See Family Law Prof blog postings of January 8 and November 18). The question in this case, however, was whether those payments could be used to satisfy arrearages. Reviewing decisions of other states on this question, the court agreed with the majority approach and declined to allow a credit to be applied to arrearages. The court noted that "the Social Security disability payments belong to the children. To allow any part of that money to be credited towards the obligor's arrearage which was due prior to his or her date of disability would be, in essence, requiring the children to purge the obligor of contempt."
Clark v. Clark, 2006 Haw. App. LEXIS 156 (April 19, 2006)
Opinion on the web (last visited April 29, 2006 bgf)
Case Law Development: Marital Communications Privilege Protects Even Marriages With Ongoing Domestic Abuse
The US District Court for the Middle District of Georgia explored the outer limits of the marital communication privilege in a criminal case in which the government sought the testimony of the defendant's wife. The 11th Circuit has held the marital communications privilege is not available when a married couple was permanently separated at the time of communication. However in this case, husband and wife were still married and living together. The government argued, however, that husband's urging that wife get a divorce and his severely and continual emotional, physical and sexual abuse of his wife should, as a matter of public policy, exempt the marriage from the protections of the privilege.
The district court recognized that there was authority for an exception to the privilege when a spouse commits abuse and then invokes the privilege to escape liability for that abuse, however here the criminal charges did not relate to the
domestic abuse. The court also noted the "dual participant" exception in which the privilege does not apply when both spouses are engaged in criminal activity. However, the court found no authority to support the government's requested exception, noting that, "For better or worse, it appears that abusive husbands who happen to be engaged in individual criminal activity still enjoy the marital communications privilege as it relates to those other activities in the vast majority of courts in the nation."
The district court concluded that "The Government's public policy argument has a certain appeal- that spouses engaged in criminal activities should not be able to use the marital communications privilege to block their innocent spouses from testifying to these crimes... As other courts have recognized, and this Court finds persuasive, the judiciary should be extremely hesitant to play any role in determining which marriages are worth protecting. ... The Court recognizes the wisdom in the Eleventh Circuit's differentiation between permanent separations and valid marriages... However, if any court is going to further weaken the marital communications privilege to include a "single participation exception," that court should be the Eleventh Circuit."
The court then reviewed each piece of requested testimony and determined that the privilege did not apply to most of the requested testimony as it was either an observation or was not made in circumstances indicating it was confidential.
United States v. Harrison, 2006 U.S. Dist. LEXIS 23556 (April 26, 2006) bgf
Kentucky Inspector General Investigating whether Children Inappropriately Removed from Families to Increase State Foster-Care Adoptions and Federal Financial Bonuses
The Kentucky Office of Inspector General is investigating whether children whose mothers are domestic-violence victims, and others are being inappropriately removed from their families to increase state foster-care adoptions and federal financial bonuses. The matter is also under review by the Cabinet for Health and Family Services, by various grass-roots organizations and, most recently, by Gov. Ernie Fletcher. Source. Valarie Honeycutt Spears, Louisville Herald-Leader, Kentucky.com. To read the complete story, please click here (last visited April 30, 2006, reo).
Catholic Church Ends Adoption Services in Massachusetts
It is reported that the Catholic Charities of Boston is ending its adoption program in Massachusetts for good. Its says that it will not renew a contract with the state social services department because it would be required to follow state anti-discrimination laws that says the agency could not refuse to work with same-sex couples. Source. Eyewitnessnewstv.com. To read the complete story, please click here (last visited April 30, 2006, reo).
Israel’s National Insurance Institute Allegedly Secretly Canceling Child Support Debts for Husbands Who Refuse to Give Wives a Divorce
It is claimed that Israel's National Insurance Institute (NII) is secretly canceling child support debts, at the request of the rabbinic courts administration, in cases where husbands are refusing to agree to a divorce sought by their wives. Proponents of the procedure claim that the procedure encourages men who will not agree to a divorce to change their minds. Opponents charge that the system amounts to a surrender to a husband’s extortion. Under Jewish law, only husbands can grant their wives a divorce, or get. Source. Ruth Sinai, Haaretz Corresondent, haaretzdaily.com To read the complete story, please click here (last visited April 30, 2006, reo).
Missouri Killing Spree Triggers Review of Child Support Files for Errors
Missouri child support workers are beginning a review of about 400 files in St. Louis to determine if an error in the amount owed by Herbert L. Chalmers, who murdered four women last week before taking his own life, is more widespread. Missouri officials acknowledged that a data entry error led to a mistake in calculating Chambers’ child support obligation, however, they said, he had many opportunities to correct the error. Source. Robert Patrick, St. Louis Post-Dispatch, stltoday.com. To read the complete story, please click here (last visited April 30, 2006, reo).
Commentary: “Catch-22 Condoms: If Catholics Use them, They’re Sinning, If They Don’t, They could Die”
Regular readers of this Blog may find Toronto Sun columnist Marianne Meed Ward’s critical overview the Catholic Church’s policy regarding the use of condoms of interest. She writes that “The explosion of AIDS, particularly in Africa where social mores tolerate male promiscuity but demand female availability to husbands. It's a death sentence for monogamous wives, who are infected by their husbands. Add to that the special burden of being a devout Catholic wife: You're not allowed to use a condom to deter an AIDS infection, because the by-product of condoms is pregnancy prevention. And pregnancy prevention is considered "intrinsically evil" according to the Catholic catechism.” She finds that there is dissent on the application of this policy coming from various high-ranking Church officials. Source. Marianne Meed Ward, Torontosun.com. To read Ms. Ward’s commentary, please click here (last visited April 30, 2006, reo).
Arkansas Court Rules Sex Abuse Case May Proceed When Alleged Abuse Occurred 8 Years Earlier
This case rose from alleged sexual abuse suffered by a minor child between November 1, 1995, and December 31, 1997. On February 2, 2003, the child turned eighteen and in August 2003 she reported the alleged abuse to the Sheriff’s Department. The action was dismissed by the trial judge because the alleged sexual abuse had occurred more than three years before the criminal information was filed on October 8, 2004, and because Ark. Code Ann. § 5-1-109(h)(8) (Supp. 2003) no longer provided that the statute of limitations on a violation of section 5-14-108 commenced to run on the victim’s eighteenth birthday.
The Arkansas Supreme Court reversed the trial judge’s ruling and reasoned that because the alleged criminal acts occurred between 1995 and 1997 when section 5-14-108 applied, the criminal action could be filed within three years of the act or acts, or within three years of the alleged victim’s birthday on February 2, 2003, when she turned eighteen. The action was filed October 8, 2004, well within three years from the alleged victim’s birthday. The slip opinion of the Arkansas Supreme Court in PDF format can be found by clicking here (last visited April 30, 2006, reo).