January 14, 2006
Washington, D.C. City Council Far-Reaching Domestic-Partnership Ordinance Must be Approved by Congress
The 13-member Washington, D.C. City Council unanimously approved The Domestic Partnership Equality Act of 2005 January 6, which is one of the most comprehensive and far-reaching domestic-partnership ordinances in the nation. Under the ordinance, either partner can be held responsible for alimony and child support should the partnership dissolve. In addition, each partner is also responsible for debts the other has accrued under home mortgages and property holdings. Once signed by Washington’s mayor, the ordinance must go to the U.S. Congress for a 30-day review period where any member of the House or Senate can introduce a resolution of disapproval. Because the 30-day review period applies only to "legislative" days, it is estimated that it will take about three months to complete the review process, unless someone objects. Source: Stefen Styrsky, Gay City News, gaycitynews.com. For the complete story, please click here (last visited January 14, 2006, reo). Download Proposed D.C. Domestic Partnership Bill.pdf
Arkansas Supreme Court to Accept Friend-of-the-Court Briefs Ruling on whether Gays and Lesbians May Serve as Foster Parents
The Arkansas Supreme Court agreed Thursday to allow friend-of-the-court briefs from several national and state mental health, legal and gay rights organizations who support a suit to overturn the state ban on gays and lesbians serving as foster parents. A lower court had ruled in 2004 that the state regulation is unconstitutional saying the state Child Welfare Agency Review board had overstepped its authority by trying to regulate "public morality.'' Source: 365Gay.com Newscenter Staff, 365gay.com. For the complete story, please click here (last visited January 14, 2006, reo).
Tenth U.S. Circuit Court of Appeals Hears Challenge to Oklahoma Parental Notification Abortion Law
An Oklahoma law, which went into effect in May, requiring abortion practitioners to notify the parents of a minor teen before being able to perform an abortion was challenged in a lawsuit heard by a three-judge panel of the 10th U.S. Circuit Court of Appeals Wednesday. The challengers urged the panel to overturn the law, which requires abortion practitioners to notify in writing a parent or guardian of any minor seeking abortion at least 48 hours beforehand. The law also requires abortion practitioners to notify women considering an abortion of the risks and alternatives as well as provide information about the development of her unborn child. Source: Steven Ertelt, LifeNews.com Editor. For the complete story, please click here (last visited January 14, 2006, reo). Download Oklahoma_Minor_Notification_Statute.doc Download Oklahoma_General Notification_statute.doc
Utah to Consider Bill Requiring One Parent's Consent 24 hours before an Abortion Could be Performed on a Minor
Under a proposal introduced in Utah’s House of Representatives, doctors would be required to get at least one parent's permission 24 hours before performing an abortion on a minor. The bill provides an exception in an emergency or if a "medical condition exists that poses a significant threat of harm to the life or health of the minor." Source: Rebecca Walsh, The Salt Lake Tribune, sltrib.com. For the complete story, please click here (last visited January 14, 2006, reo). Download Utah_house_Bill_85.pdf
Pope Says Doctors Should Not Give Women Abortion Pill
Pope Benedict XVI said this week that doctors should not give women the abortion pill because it hides the "gravity" of taking a human life. He said that officials should "avoid introducing drugs that hide in some way the gravity of abortion, as a choice against life." Source: AP, Nicole Winfield, The Wichita Eagle, Kansas.com. Please click here for the complete story (last visited January 14, 2006, reo).
Michigan Supreme Court to Review Visitation Dispute Involving Challenge to 19th Century Law Forbidding Cohabitation
A Michigan ex-husband now living in California, who cannot exercise overnight visitation with his children when his girlfriend is present, is challenging the order made at the time of his divorce. The trial court had ordered that “neither parent was to have overnight visitation with the children when they had unrelated guests of the opposite sex stay overnight.” The ex-husband complies with the ruling by sometimes staying in a van outside the house. In an unpublished opinion by the Michigan Court of Appeals, (Muller v. Muller, issued October 27, 2005), it observed that “Plaintiff did not believe that the children should be exposed to the cohabitation of unmarried couples. The trial court found that defendant did not express a position one way or the other about the cohabitation of unmarried couples. Because only one party expressed an opinion on this issue, the trial court issued an order honoring that opinion. We are not persuaded that this constitutes an abuse of discretion or legal error. . . . We are not commenting on the morality of the situation, but we respect the cohabitation statute that remains in existence.” The matter is now before the Michigan Supreme Court for review. Source: Carol Hopkins, The Oakland Press, theoaklandpress.com. Please click here for the complete story (last visited January 14, 2006, reo). Download Muller_v. Muller (Unpublished).pdf
January 13, 2006
Case Law Development: QDROs and Surviving Spouse Benefits
In an extremely clear and well-written opinion, the 9th Circuit Court of Appeals holds that assignment of pension rights through a QDRO does not also assign surviving spouse benefits unless it specifically and clearly says so. The court comments that: "Without a doubt, the details required in a QDRO present a drafting morass for the lawyer. We recognize the concern expressed by courts and commentators that the failure of domestic relations lawyers to "navigate the treacherous shoals" of ERISA may harm potential beneficiaries. Metropolitan Life Ins. Co. v. Wheaton, 42 F.3d 1080 (7th Cir. 1994) (noting that "ideally, every domestic relations lawyer should be conversant with ERISA, but it is unrealistic to expect all of them to be")"
Hamilton v. Plumbers & Pipefitters National Pension Fund, 2006 U.S. App. LEXIS 517 (9th Circuit January 10, 2006)
Case Law Development: Scienter in Criminal Non-Support Actions
The Missouri Supreme Court reviewed the conviction of a Father for criminal non-support. Father challenged the conviction on the basis of the state's failure to prove that he knew of his court-ordered child support obligation. The court held that the state need not prove that Father was aware of a court order for child support, so long as he knew that he was the father of the children that was sufficient to satisfy the "knowingly" requirement of the act. "The purpose of the criminal nonsupport statute is to compel recalcitrant parents to fulfill their obligations of care and support; the purpose is not to enforce court-ordered child support obligations.... As such, in a prosecution under section 568.040, the existence of a child support order is merely evidence of what constitutes 'adequate support.'" Two judges dissented.
State v. Reed, 2006 Mo. LEXIS 14 (January 10, 2006)
January 12, 2006
Evaluation of Joint Custody Preferences
In Does Parental Autonomy Require Equal Custody at Divorce?, Prof. Margaret F. Brinig analyzes and evaluates the effect of state divorce laws that have been amended to strengthen "joint custody preference."
"After setting out the constitutional problem and describing the legislation in some detail, this article tests the effects of the change in the Oregon statutes. Policy-makers might well want to know how children fare under joint custody as opposed to other possible visitation arrangements. In other words, does the child's best interests, the hallmark of most current statutes, require joint custody? Policy-makers might also question whether the stronger legislative preference really increases joint custody awards. Does its requirement that mediation alternatives be suggested, and in some cases ordered, in fact increase the number of cases that are settled by mediation? Do judges sometimes prescribe mediation in cases that are inappropriate (such as those in which domestic violence orders have been entered)? Do children receive less child support under the new statutory scheme? Is there evidence that the process makes divorce less painful and less expensive? The broader goal here is to suggest that changes in family law, while often made, are seldom systematically assessed. Society needs such accountability, particularly when children are involved. This article shows how it might be done." Margaret F. Brinig, Does Parental Autonomy Require Equal Custody at Divorce?, 65 La. L. Rev. 1345, 1348 (2005). Link to Article (last visited 1-11-06 NVS)
Margaret Brinig recently accepted a chair at the law school at the University of Notre Dame. Link
January 11, 2006
California Court of Appeals Receives Friend-of-the-Court Briefs Representing More than 250 Groups Seeking End to Laws Denying Same-Sex Marriage
More than 250 religious and civil rights groups and individuals have filed eight friend-of-the-court briefs with the California state Court of Appeals urging an end to state laws that deny same-sex couples the right to marry. Among the groups that filed the papers Monday are the National Association for the Advancement of Colored People, the California Council of Churches, the Asian Pacific American Legal Center, La Raza Centro Legal, People for the American Way Foundation, and the Disability Rights Education and Defense Fund. Source: Josh Richman, The Argue, insidebayarea.com. For the details regarding this story, please click here (last visited January 11, 2006, reo
Child Abuse in Michigan Up 40% in Last Decade
The Detroit News reports that confirmed cases of abused and neglected children in Michigan have jumped 40 percent since 1995. In addition, the number of children who have entered foster care has increased 17 percent, according to the 2005 Kids Count in Michigan report released today (Wednesday). Source: Kim Kozlowski, The Detroit News, detnews.com. For the details regarding this story, please click here (last visited January 11, 2006, reo).
Georgian Parliament to Consider Procedures Making Foreign Adoptions More Difficult
The Georgian Parliament is preparing a new child adoption law that would make procedures more difficult for foreigners to adopt children but easier for Georgian citizens. The proposal is an effort intended to promote local adoptions. Under the proposal, foreigners will be able to adopt a child only if the ministry is unable to find a suitable family inside the country. According to 2005 statistical information, 75 percent of adopted children are taken out of the country. Source: Keti Sikharulidze, The Messenger, messenger.com. For the details regarding this story, please click here (last visited January 11, 2006, reo).
Canadian Woman Sues Chicago Priest for Child Support
A Canadian woman, Sandra Ring, has sued Jason Martin, a Roman Catholic priest, in a Canadian court seeking child support for a child born in 2004. According to the Chicago Tribune, the two were former childhood sweethearts and were reunited in Canada when in 2003 Ring, who was married to another man, sought counseling to deal with the loss of a daughter who died in childbirth. Their meeting rekindled their former relationship and subsequently Ms. Ring became pregnant. Martin later had a change of heart and was transferred from Canada to Chicago. Source: Manya A. Brachear, Chicago Tribune, chicagotribune.com. For the details regarding this story, please click here (last visited January 11, 2006, reo).
Michigan Attorney General’s Child Support Division Collects over $11.6 Million in 2005
The Michigan Attorney General’s Child Support Division has collected more than $11.6 million in 2005. Since creating the Division in 2003, it has collected $22,046,379.07 for 2,132 Michigan children and has arrested more than 1,600 non-paying, non-custodial parents across Michigan and the nation. When the division was created in 2003 by Attorney General Mike Cox, it was first of its kind in the nation. Collecting child support is a cooperative effort, with the Attorney General's office working together with the Office of Child Support in the Department of Human Services. That Office has also created cooperative prosecution agreements with most of the prosecuting attorneys in Michigan. Source: prnewswire. For additional information, please click here (last visited January 11, 2006, reo).
Arizona Couple Facing Murder Charges in Starvation Death of 7-Week-Old Child
A Prescott, Arizona couple face murder charges in the possible starvation death of their 7-week-old daughter. Sarah and Wendell Schaffer were booked Monday for investigation of second-degree murder in the death of the infant. According to an autopsy report, there were signs of both dehydration and malnutrition although the exact cause of death is pending the outcome of toxicology results. Source: AP, ArizonaCentral.com. For more information, please click here (last visited January 11, 2006, reo).
January 10, 2006
Case Law Development: Transfer of Assets to Children Removes them from Marital Estate
During their 23-year marriage, Wife was a homemaker and raised the couple's three children. Husband had a business investing in hotels. With divorce on the horizon, Husband transferred substantial portions of the hotel interests to trusts for the couple's three children, while maintaining control of those trusts and receiving the income from them. Wife argued that the value of these trusts should be included in the marital estate, though she did stipulate that the conveyances should not be set aside. The trial court found that these assets should be excluded from the marital estate as they were good faith estate planning devices. The trial court also awarded a majority of the marital assets to the husband, including the marital home, because he had been the source of these assets.
The Vermont Supreme Court affirmed the trial court's decision, giving great deference to the trial court's assessment of husband's motives in setting up the trusts and wife's claims of her expenses and desires regarding the trusts. A dissenting judge took strong objection to this approach, particularly to the decision to exclude the value of the trusts from marital income, fearing that the opinion creates an incentive for divorcing parents to transfer assets to children in order to exclude them from a marital estate. The opinion provides a stark contrast in characterizations of motives and values of property and would provide an excellent source for creating a problem for classroom discussion or an examination.
Kasser v. Kasser, 2006 VT 2, 2006 Vt. LEXIS 2 (January 6, 2006)
Opinion on the web at http://dol.state.vt.us/gopher_root3/supct/current/2003-065.op (last visited January 10, 2006 bgf)
Case Law Development: Terminating Reunification Services to One Parent Only
The California Court of Appeals clarified the trial court's authority to terminate reunification services in child abuse and neglect actions. In this case, the trial court had terminated father's reunification services at a 12-month review hearing, while at the same time extending reunification services to the child's mother to the 18-month review date. Father argued that this violated the trial court's statutory authority and was an abuse of discretion and a violation of his substantive due process.
While noting that a trial court's discretion to terminate reunification services at an earlier stage is extremely limited, the court found that a trial court may terminate reunification services to a parent at the 12-month review and that it may do so without immediately setting the case for a termination of parental rights hearing. Moreover, the court found that "when reunification efforts continue for one parent after the 12-month review hearing, a court has the discretion to offer services to the nonreunifying parent, and in many cases may choose to do so. However, there is a secondary rationale for limiting services to the nonreunifying parent. The Legislature has recognized that in some circumstances, it may be fruitless to provide reunification services.... In such a case, the general rule favoring reunification services is replaced by a legislative assumption that offering services would be an unwise use of governmental resources.... Under these circumstances, the termination of reunification services to one parent is rationally related to the legitimate government interest in focusing government resources on the parent who has consistently visited the child, made significant progress in resolving problems, and demonstrated the capacity and ability both to complete the treatment plan and provide for the child's needs."
In re Alanna A., 2005 Cal. App. LEXIS 2028 (January 9, 2006)
Opinion on the web at http://www.courtinfo.ca.gov/opinions/documents/D046690.PDF (last visited January 10, 2006 bgf)
Case Law Development: Characterization of Deferred Compensation as Mere Expectancy
Husband worked for a petroleum company until 1999. After he left the company, he continued to receive payments between 2000 and 2004 and expected, but was not guaranteed, additional payments in the future. Wife contended that these payments were akin to a royalty that should be treated as marital property, with the right to any future payments to be divided as marital property. While conceding that there was evidence to support her position, the Wyoming Supreme Court deferred to the finding of the trial court, which was persuaded by Husband's evidence that these payments were "mere expectancies" and treated the past payments as income for the purposes of calculating child support but refused to divide any future payments.
Dunham v. Dunham, 2006 WY 1; 2006 Wyo. LEXIS 1 (January 4, 2006)
Opinion on the web at http://courts.state.wy.us/2006opn/2006WY1.pdf (last visited January 10, 2006 bgf)
Case Law Development: Extraordinary Circumstances Justifying Payment of Life Insurance Proceeds to Deceased Parents rather than Only to Spouse
In a carefully analyzed opinion that reviews much of the law regarding payment of life insurance policies, the United States District Court for the District of Massachusetts decides that, where a life insurance policy creates a "permissive hierarchy" for payment in the absence of a designated beneficiary, the insurer may deviate from that hierarchy in extraordinary circumstances. Here, the the terms of the policy create a "permissive hierarchy" requiring payment of the death benefit to the spouse, children, parents, or siblings of the participant, in that order, or to the estate. The court found that in this case extraordinary circumstances existed to deviate from the hierarchy in that the decedent and wife had been married only two years, that they had just completed their divorce hearing when husband committed suicide, that their divorce settlement severed all economic ties between them, and that nothing except the passage of time had remained to make their divorce final. The court concluded that "Marriage, even a failed marriage, is hardly a technicality, and the Court gives substantial weight to the fact that Doris was Darren's spouse at his death. But there was nothing left to this marriage other than its legal status." Under these circumstances, the court found that the insurer should split the life insurance benefits between the spouse and the decedent's parents.
The Court conceded that "The Court's decision is informed in large part by equitable considerations as to the actual, as opposed to legal, status of the marriage. Relying upon such considerations places the Court on the brink, if not over the edge, of a very slippery slope. Clearly the Court would not find it appropriate or desirable to delve into the details of the marital or parental relationships, or otherwise to ascertain who was more "deserving" of the proceeds in any broader sense. Nonetheless, in some circumstances, there might be other equitable factors- for example, reasonable reliance by the spouse of the existence of the policy, or potential financial hardship - that might be appropriate to consider in order to avoid a harsh result. In any event, it is sufficient for present purposes to ob-serve that the decision rests on relatively objective factors, such as the short duration of the marriage, its imminent demise, and the agreement between the parties, and that no further inquiry is necessary."
The case is an excellent primer on how life insurance beneficiaries are determined in the absence of a designation and the variations in policies and federal law on the matter.
Forcier v. Forcier, 2005 U.S. Dis. LEXIS 38104 (December 28, 2005)(bgf)
January 9, 2006
A Surrogate's Story
"I began my research, and to my surprise I felt more kinship when I visited online surrogacy sites. I could see that the surrogates were deeply proud of what they were doing. They valued their families and wanted to give other couples the same chance. Even more selflessly, they risked the disapproval of family and friends to do so. So, rather impulsively -- I didn't expect anyone to respond and hadn't even discussed it with Jerry -- I posted an ad on surromomsonline.com." By Lisa Baker, New York Times, featured in the StarTribune Link to Article (last visited 1-8-06 NVS)