Saturday, May 13, 2006
A trial judge in Maine superior court has ruled that the Christian Civic League of Maine may not to run an ad urging their senators to vote for the Marriage Protection Amendment The judge ruled that under the state’s Bipartisan Reform Act a corporation cannot spend money within 60 days of a general election or 30 days of a primary on any broadcast ad identifying a political candidate. The League’s ad specifically mentions a Senator by name, who is running unopposed in a primary election this June. An appeal is expected. Source. Jessica Stollings, Family Law in Focus, family.org. To read the complete story, please click here (last visited May 13, 2006, reo).
The Wisconsin District II Court of Appeals ruled in favor of the mother of a teenager Wednesday in a case that pitted the teen and his paternal grandparents against her. The teen argued that his petition for a change in custody should be granted for the following reasons: (1) He was over the age of fourteen at the time his grandparents petitioned for guardianship for the following reasons: (2) He submitted an affidavit to the court nominating his grandparents as his preferred guardians. (3) In his affidavit, he catalogued many struggles he had in his relationship with his mother. (4) He told the court that he did not want to live with his mother. The teen argued that the court should apply a best interests test and allow his grandparents to act as his guardians.
In rejecting the teen’s claim, the court observed that “only if the Court finds unfitness or compelling circumstances, and best interests requiring someone other than the mother to be appointed a guardian, only then would the Court turn to the nomination" [of the grandparents as the teenager’s guardians]. Furthermore, the court said that it could not ignore “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000). It said that it would not employ any analysis that disregards the constitutionally protected right of the parent. Finally, it ruled that there was no clear showing of a need to disrupt the mother’s custody of her son fining that the teen and his grandparents had failed to prove the mother had done anything "such that a court would be compelled to override the constitutionally protected rights of a parent." News source. Brian Huber, GM Today Staff, gmtoday.com. To read the complete news story, please click here (last visited May 13, 2006, reo). A copy of the slip opinion in Martin v. Julie L.I., filed May 10, 2006, please click here (last visited May 13, 2006, reo).
Florida Appeals Court Says Man Exonerated of Aggravated Child Abuse Cannot be Retried on Lesser Child Abuse Charge
A Florida man who was exonerated of aggravated child abuse cannot be retried on a lesser charge of child abuse, an appeals court ruled Wednesday. The accused was released from prison in November after the Appeals court ruled there was insufficient evidence to support his conviction for aggravated child abuse. He had already served more than 51/2 years of a 30-year prison term. Following that ruling, the prosecutors filed a lesser charge of simple child abuse against the defendant. On appeal, the Florida Fourth District Court of Appeal held that because the lesser charge had not been put to the jury in his trial, it would be double jeopardy for the defendant to face that charge. News Source. Sun-sentinel.com. To read the complete news story, please click here (last visited May 13, 2006, reo). A copy of the slip opinion in Festa v. State, No. 4D06-279, filed May 10, 2006, can be found by clicking here (last visited May 13, 2005, reo).
Colombia's Supreme Court ruled this week that abortions can be allowed in certain limited cases, if incest or rape is involved or if the fetus is so deformed that it would be unable to live outside the mother's womb. Abortion rights activists hope that the decision toward less strict anti-abortion laws will encourage continued liberalization of the abortion issue in South America. Source. Toby Muse, AP, seattlepi.newsource.com. To read the complete story, please click here (last visited May 13, 2006, reo).
Friday, May 12, 2006
Researchers have increasingly noted the relationship between animal abuse and violence toward family members. The California Court of Appeals, in an unpublished opinion, affirmed a trial court's refusal to sever the trials of animal abuse and child sexual abuse claims, noting several proper inferences that could be drawn from one case to the other. These inferences included that the victim's observation of defendant's abuse of his dogs could provide evidence of the reluctance of the child victim to reveal the abuse and that the allegations of killing and maiming the dogs were strengthened by evidence that the incident followed the child's removal from defendant by a custodian to whom defendant feared the child might reveal the abuse.
People v. Lowell, 2006 Cal. App. Unpub. LEXIS 3863 (May 3, 2006) bgf
To read more about it:
For a recent student note on the subject, see Angela Campbell, The Admissibility of Evidence of Animal Abuse in Criminal Trials for Child and Domestic Abuse, 43 B.C. L. Rev 463 (2002).
See also Family Law Prof Post of April 26, 2006 on including protection of pets in domestic violence restraining orders.
A small child drowned in a swimming pool while under her stepfather's supervision. The Washington Court of Appeals determines that the doctrine of parental immunity protects stepparents as it does legal parents, so long as the stepparent stands in loco parentis to the child. Rejecting an invitation to abolish parental immunity altogether, the court noted that "the doctrine is grounded not on a need to preserve family tranquility or avoid fraud, but solely on the need for discretion in performing parental duties." Given that rationale, the court concluded, "It is difficult to see why a stepparent living with a child and performing parental duties does not require the same wide sphere of discretion as a legal parent. Indeed, the freedom and willingness of a stepparent to provide for the child may be more in need of protection, given that a stepparent's obligation to the child derives only from the circumstance of marriage."
Zellmer v. Zellmer, 2006 Wash. App. LEXIS 817 (May 1, 2006)
Opinion on the web (last visited May 10, 2006 bgf)
Thursday, May 11, 2006
"The first Mother’s Day observance was a church service in 1908 requested by Anna Jarvis, of Philadelphia, to honor her deceased mother. Jarvis, at an early age, had heard her mother express hope that a day to commemorate all mothers would be established. Her mother had also expressed the sentiment that there were many days dedicated to men but none to mothers. Two years after her mother’s death, Jarvis and friends began a letter-writing campaign to declare a national Mother’s Day observance to honor mothers. In 1914, Congress passed legislation designating the second Sunday in May as Mother’s Day." U.S. Census Bureau Link to Article (Last visited 5-10-06 NVS)
"Women looking for a long-term relationship like men who like children _ and they can tell which guys might be interested in becoming fathers just by looking at their faces. Those are among the findings of a study of college students published Wednesday in a British scientific journal.
"This study suggests that women are picking up on facial cues that are perhaps related to paternal qualities," said James Roney, a University of California at Santa Barbara psychologist and lead author of the study. "The more they perceived the men as liking kids, the more likely they could see having a longer-term relationship." Experts said evolution has apparently programmed women to recognize men who might be interested in propagating the species by raising a family." By Don Babwin, Washtingonpost.com Link to Article (last visited 5-10-06 NVS)
"More than 100 teenagers held in detention during Hurricane Katrina endured horrific conditions in the storm's aftermath, including standing for hours in filthy floodwater, having nothing to eat and drink for three to five days, and being forced to consume the waters as a result, according to a report released here Tuesday.
The report was prepared by the Juvenile Justice Project of Louisiana, a group that has long advocated changes in the state's troubled juvenile system. It was based on interviews with more than 60 teenagers held at the Orleans Parish Prison during the storm, as well as with prison staff members. Youths who were interviewed described water rising in their darkened cells and a scramble onto top bunks to avoid it. They also said that when they were finally rescued — in some cases, after several days — they experienced dizziness and dehydration because of lack of food. One reported being "roped together" with plastic handcuffs as he and others were led out through neck-high water.
"There was food floating in the water and we tried to catch it and eat it; that's how hungry we were," said one 15-year-old identified as E. F. in the report." By Adam Nossiter, N.Y. Times Link to Article (last visited 5-10-06 NVS)
"Children tied to cribs and chairs, often cold, underfed and smeared with their own feces: Romania has tried over the last decade to erase those images of its orphanages seen around the world.But thousands of children in government-run institutions are still living in conditions that are little changed from a decade ago, investigators for Mental Disability Rights International found.
Writing in a report to be released today, just days before the European Union issues its final assessment on whether Romania has met human rights and other membership standards, researchers described an eerie silence in a ward where 65 abandoned children were housed, because "children who do not receive attention when they cry learn to stop crying." In an adult psychiatric hospital, investigators found some children wrapped head to toe in sheets used as full-body restraints. When the staff agreed to remove the sheet on a 17-year-old girl, the report states, "her skin came off with the sheet, leaving a raw open wound beneath it."
"It was the most horrible thing I've ever seen in 13 years of doing this work," said Eric Rosenthal, executive director of Mental Disability Rights International, a Washington-based group, and the co-author of the report." By Craig S. Smith, N.Y. Times Link to Article (last visited 5-10-06 NVS)
Wednesday, May 10, 2006
Absent major amendments, key Democratic members of the California Legislative Women's Caucus say they are opposed to Senate Bill 1015, which would restrict public access to financial records in California divorce cases. Some view the bill as a “favor to billionaire grocery store magnate and financier Ron Burkle, who has sought to shield records in his own divorce.” If passed, upon request of either party, the measure would require a trial judge to redact sensitive financial information including a spouse's net worth, annual salary and balances in bank, brokerage or other financial accounts. A judge also would be required to redact Social Security numbers and home addresses. Proponents argue that the legislation is needed “to preserve privacy and discourage identity theft.” Source. Jim Sanders, sacbee.com. Please click here to read the complete story (last visited May 10, 2006, reo).
Kentucky Court of Appeals Rules 2-1 that Inmate Awaiting Trial on Triple Murder Charges May Visit Children
In an unpublished opinion, the Kentucky Court of Appeals in a 2-1 ruling restored child-visitation rights to a Lexington, Kentucky man in prison for offering to kill a man and awaiting trial on triple murder charges. It said that the trial judge made several procedural errors when he denied the inmate visitation to his three children, ages 9, 12 and 14.
The court said that the trial judge had improperly placed the burden of showing harm to the children on the inmate noncustodial parent, contrary to Kentucky law. It observed that “his status as an inmate in a penal institution alone does not make visitation with his child inappropriate.” It also said that there was “not a finding in the record that visitation would seriously endanger the child’s physical, mental, moral, or emotional health, and there is no evidence in the record to support such a finding.” Other errors committed by the trial judge included the use of letters and affidavits without placing them into evidence or allowing the inmate an opportunity to cross examine the authors. The Appeals’ court then ordered that the inmate be granted visitation. The dissent would have remanded the case for trial because “the possibility exists that it could be properly shown by clear and convincing evidence that visitation with the appellant in the prison setting, given his history of violence, brutality and lawlessness, could seriously endanger the mental, moral or emotional health of these children.” News Source. Brandon Ortiz, Herald-Leader, Kentucky.com. For the complete news story, please click here (last visited May 10, 2006, reo). A copy of the unpublished slip opinion, Meese v. Meade, can be obtained in PDF format by clicking here (last visited May 10, 2006, reo). A copy of the opinion may be downloaded in PDF format by clicking here.pdf
A Colorado woman is seeking $2.5 million from a businessman who she claims was involved in a polygamous marriage with her. She alleges that when she left a business that she and the other wives were working in that the man had agreed to pay her $2.5 million to settle her interest in the business. Attorneys for the man contend that the woman is attempting to extort money by threatening to have him prosecuted for polygamy. Source. AP, cbs4denver.com. Please click here to read the complete story (last visited May 10, 2006, reo).
It is estimated that there is $19 billion uncollected child support in the state of California. Last year, the state collected less than 50% of the child support owed. A proposal called “AB 2440,” if passed into law, would make any person or business entity in California that knowingly assists a person with unpaid child support to evade his or her responsibility jointly and severally liable for 10 times the value of the assistance provided, up to the total amount of the child support debt. “Under the bill, “knowingly assists” is defined to include: (1) helping to hide or transfer assets; (2) failing to timely file a new employee or independent contractor with the Employment Development Department (EDD); or (3) engaging in the paying of wages or other forms of compensation through payment of cash or via barter or trade.” Source. Californiachronicle.com. Please click here to read the complete story (last visited May 10, 2006, reo).
Opponents of gay marriage in Illinois submitted more than 345,000 signatures Monday to get an advisory referendum on the ballot this fall. Referendum supporters needed 283,111 valid signatures to get the question on the statewide ballot in November and submitted 345,199. Supporters had an original target of 500,000 signatures. Source. Anna Sanner, AP, Chicago Sun-Times, suntimes.com. Please click here to read the complete story (last visited May 10, 2006, reo).
Tuesday, May 9, 2006
Case Law Development: Laches May Bar Emancipation Arguments in Actions to Collect Child Support Arrearages
When can a parent argue emancipation to reduce child support arrearages? In this action, approximately seven years after his son turned 21, and was thus statutorily emancipated, Father sought to reduce his child support obligation or arrearage by arguing that his son had become emancipated at age 16, ten years earlier. The trial court determined that the child had become emancipated at age 18 and reduced Father's child support arrearages. Father appealed, arguing that the child was emancipated at 16, but was unable to establish that the child was self-supporting. The state child support agency argued that father should be barred from arguing that the child was emancipated at all because of the doctrine of laches.
The Indiana Court of Appeals concluded that, while the doctrine of laches generally does not apply to child support cases because Indiana courts will not penalize a child for his or her parent's delay in pursuing child support, the policy behind the rule did not apply in this case. Thus, the court held that the doctrine of laches could properly be considered in these circumstances. The court remanded to the trial court to conduct a hearing and determine if Father's contention that child was emancipated prior to the age of twenty-one is barred by laches.
Paternity of P.W.J., 2006 Ind. App. LEXIS 819 (May 5, 2006)
Opinion on the web (last visited May 8, 2006 bgf)
In a case testing the limits of juvenile court jurisdiction, maternal grandparents had filed a petition in juvenile court requesting custody of their grandchild, alleging the child's dependency due to the parents' drug use and incarceration. Parents then entered into a stipulated agreement with paternal grandparents, acknowledging that the parents were unable to care for the child and placing the child with paternal grandparents. The juvenile court determined, without holding a hearing, that the child was not dependent because he had been placed by the parents with the paternal grandparents.
On appeal, the Alabama Court of Appeals held that, "in cases such as the one now before us in which there are allegations that the child is dependent, and in which the only sworn testimony before the juvenile court tends to establish that the child is dependent, the juvenile court commits reversible error by concluding that the child is not dependent without at least conducting an evidentiary hearing and affording the parties the opportunity to present evidence as to whether the child is a "dependent child" within the meaning of [the juvenile code].... and there must be a dispositional hearing to determine who should be given custody."
A concurring justice agreed that the trial court's finding should be reversed but argued that the case was merely a custody dispute between grandparents, beyond the juridiction of the juvenile court, and that there was no basis for concluding that the state needed to take jurisdiction over the child. Accordingly, the dissenting judge would remand with directions to dismiss the action.
The case contains lengthy excerpts from the stipulated judgment and the affidavits of the parties and would make a good basis for a class problem.
Ex parte W.H., Jr., and K.H., 2006 Ala. Civ. App. LEXIS 236 (May 5, 2006) bgf
Case Law Development: Effect of Bankruptcy Discharge on State Court Judgements to Enforce Non-Discharged Debts
The United States Court of Appeals for the Fifth Circuit was called upon to revisit what it characterized as the “ceaseless litigation” involved following a couple’s divorce in 1993. The case addresses the issue of discharge of debt in bankruptcy but also provides yet another example of how difficult and contentious efforts to enforce obligations under divorce judgments can be.
After their 1993 divorce action, Husband filed bankruptcy and had discharged certain property settlement obligations but was unsuccessful in discharging his alimony debt. Wife then brought several state court contempt actions to enforce the obligations under the divorce proceeding. In one of these actions, she obtained a state court judgment for contempt ordering that Husband pay the discharged property settlement (the court being unaware of the bankruptcy discharge at that point), the alimony arrearages of over $96,000, damages for failure to pay alimony (primarily Wife’s lost equity in property that was foreclosed when she was unable to pay her mortgage), and attorneys fees in enforcing the obligations.
Husband then brought an action in bankruptcy court to reopen the bankruptcy and requested the court to void the state court judgments. The bankruptcy court ruled that Husband's prior bankruptcy discharge caused all of Wife's claims, except for the claim for non-discharged alimony, to be barred by res judicata. The decision was affirmed by the district court.
The court of appeals, rejected the bankruptcy court’s use of res judicata to resolve the dispute and focused instead solely on the questions of focus instead on the requirements of section 524(a)(1) of the Bankruptcy Act regarding whether the state court judgments were for debts that had been discharged by the bankruptcy action. Thus, the court pointed out that the state court’s original judgment for non-payment of the property settlement was clearly an attempt to enforce a discharged debt and was void.
As to the judgment for attorney’s fees, the court of appeals noted that reasonable attorneys' fees incurred in collecting support obligations should be treated as support obligations while attorney’s fees related to discharged debts should be considered discharged debt. Wife’s award of attorneys’ fees related to efforts to enforce both discharged and non-discharged debt. The district court had held that, because of this, the entire judgment of attorneys' fees was void under the equitable doctrine of unclean hands. The court of appeals disapproved this use of the unclean hands doctrine, noting that this equitable doctrine may not be used by a federal court to void a state court judgment. Rather, the court held that the state court judgment for fees was void to the extent that those attorneys' fees were incurred in enforcing discharged debt and remanded for a determination of what portion of the attorneys’ fees related to that debt.
As to the damages for foreclosure of Wife’s property, the court noted that because the foreclosure occurred before Husband had filed for bankruptcy, they were “claims” in the bankruptcy and were discharged along with Husband’s other debts. As to losses of other property, the court remanded for a factual determination of how much of that award was for pre-petition and post-petition claims.
In re Egleston, 2006 U.S. App. LEXIS 11296 (May 5, 2006)
Opinion on the web (last visited May 8, 2006 bgf)
Monday, May 8, 2006
"Ever since her 5-year-old brought home a book from kindergarten that depicted a gay family, Tonia Parker has felt that her parenting has been under attack in the only state that allows same-sex marriage. She and her husband, David, did not want to discuss sexual orientation yet with their son, and were shocked that the book was included in a "diversity book bag" last year. David Parker subsequently got arrested for refusing to leave a Lexington school after officials refused to meet his demand that he be notified when homosexuality was discussed in his son's class. Now the Parkers and another couple have sued the school district in federal court, claiming Lexington officials violated their parental rights to teach morals to their own children." CNN.com Link to Article (last visited 5-7-06 NVS)
"The same court that made Massachusetts the first state to legalize gay marriage is now mulling whether citizens have the right to get around its ruling by amending the state constitution to define marriage as the union of one man and one woman. The Supreme Judicial Court, which cleared the way for gay marriages with its landmark ruling in 2003, heard arguments Thursday on a referendum proposed for the state ballot in 2008. Supporters of same-sex marriages are trying to block the proposal that would ban future marriages for gay couples. They say the state constitution bars any citizen-initiated amendment that seeks to reverse a judicial ruling." By Denise Lavoie, Associate Press Writer, FindLaw Link to Article (last visited 5-7-06 NVS)