May 20, 2006
California Billionaire Must Produce Records in Divorce Dispute – Lower Court Ruling Striking Down Privacy Statute Left Standing
This week the California Supreme Court rejected efforts by billionaire Ronald W. Burkle to keep 1,200 pages of documents involved in his divorce under seal. He had argued that the need for keeping them from the public was necessary in order to protect his children. On Wednesday, the California Supreme Court let stand a decision by a lower appeals court that had struck down a law that would have kept the records from public view.
In this dispute, the California Court of Appeals, Second District, had earlier considered a challenge to that state’s Family Code section 2024.6 by the Los Angeles Times. The statute required that a court, upon the request of a party to a divorce proceeding, seal any pleading that lists and provides the location or identifying information about the financial assets and liabilities of the parties. The Appeals Court concluded that section 2024.6 is unconstitutional on its face. It said that the First Amendment provides a right of access to court records in divorce proceedings. However, while the privacy interests protected by section 2024.6 may override the First Amendment right of access in an appropriate case, the statute was neither narrowly tailored to serve the privacy interest being protected nor is it the least restrictive means of protecting those privacy interests. Therefore, because there were less restrictive means existing to achieve the statutory objective, section 2024.6 operates as an undue burden on the First Amendment right of public access to court records. News Source. Peter Y. Hong, Jean Guccione and Carla Hall, Los Angeles Times, times.com.
Oklahoma Legislature Sends Parental Consent Abortion Bill to Governor
The Oklahoma Legislature approved an anti-abortion bill on Friday that includes a requirement that minors can obtain an abortion only with parental consent. The measure was approved 38-8 and send to Governor Brad Henry for consideration. He is expected to sign the bill. Source. Mick Hinton, Tulsaworld.com. The complete story can be found by clicking here (last visited May 20, 2006, reo).
Kansas Governor Vetoes Late-Term Abortion Bill
Kansas Governor Kathleen Sebelius vetoed a bill on Friday that would have required the state to collect more data on late-term abortions. The legislation would required that the state be provided information on the woman’s health, fetal abnormalities and the physician who authorized the abortion. Proponents of the legislation said more information was needed to be collected to understand why women seek late-term abortions and whether physicians are following state law. Opponents called the legislations an attempt to harass doctors and clinics. Source. Jim Sullinger, Kansas City Star, kansascity.com. The complete story can be found by clicking here (last visited May 20, 2006, reo).
Louisiana Seeks to Change Custody Law Regarding Evacuated Children
A Louisiana Senate committee approved legislation this week that that would fill holes in state laws to ensure child-custody cases involving evacuated children would be resolved in the state. Presently, Louisiana law requires that both parents agree to move a child out of state. Once the move occurs, courts in the child’s new state take control of the case after six months. The proposed legislation would extend from six to 12 months the period before the new state takes control of custody cases if the child was evacuated because of a declared emergency. Source. 2theadvocate.com. Please click here for the complete story (last visited May 20, 2006, reo).
Florida Bill Releasing Child Support Obligation Because of DNA Test Goes to Governor for Approval
Men in Florida who have been paying child support, but can show they are not the biological father of a child through a DNA test, may be relieved of their support obligation if Governor Jeb Bush signs a bill sent to him this week by the Florida Legislature. Florida law currently requires that once child support is established, the obligation continues until the child's 18th birthday, even if the obligor is not the biological father. Source. Stephen D. Price, Tallahassee.com. Please click here for the complete story (last visited May 20, 2006, reo).
Legislative Development: Kansas Law Limits Where Deadbeat Parents May Drive
When a child support obligor owes more than $500 in child support, under a bill signed into law Wednesday by Kansas Governor Sebelius, the individual will be limited in where a car may be driven. The new law provides that an obligor may drive only to or from work or school, or in case of a medical emergency. The bill originally would have revoked the license of these parents, however, legislators amended the proposal so the obligor could drive on a limited basis. Legislators felt that if the parent could not drive to work, money needed to pay child support could not be earned. Source. 49abcnews.com. Please click here for the complete story (last visited May 20, 2006, reo).
Commentary: “Time to Address Domestic Violence Abuses”
Readers of this Blog may find Phyllis Schlafly’s commentary in The Conservative Voice of interest. In her controversial article, Ms. Schlafly asserts that “VAWA money is used by anti-male feminists to train judges, prosecutors and the police in the feminist myths that domestic violence is a contagious epidemic, and that men are naturally batterers and women are naturally victims.” Source. Theconservativevoice.com. To read Ms. Schlafly’s commentary, please click here (last visited May 20, 2006, reo).
May 19, 2006
Kansas to Aid Grandparents Raising Grandchildren
Grandparents raising grandchildren in Kansas would get a helping hand from the state under legislation that Gov. Kathleen Sebelius is expected to sign. The new aid is part of a wide-ranging bill upping what nursing care residents can keep from their Social Security checks and barring hunting and fishing licenses for parents behind in child support payments. Under the proposal, grandparents with legal custody of a grandchild would receive $200 a month, with a limit of $600 for three. To qualify, grandparents must be at least 50 years old with a household income of less than 130 percent of the federal poverty level, or $21,580 for a household of three. Such a program would allow more children from troubled families to be raised by grandparents rather than being placed in state custody and foster homes.
Read the Kansas City Star article on the legislation (last visited May 19, 2006 bgf)
Case Law Development: No Presumption of Undue Influence in Post Marital Agreements Absent Proof of Unfair Advantage
Wife file for divorce. The couple then decided to try to reconcile and, as part of their resolution, they drafted a post nuptial agreement to settle their financial affairs. Four years later when Wife again filed for divorce, she challenged the validity of the agreement that she contends is nothing more than a "pre-packaged divorce."
The California Court of Appeals affirmed the trial court's order finding the agreement valid and enforceable. Relying in part on precedent drawn from the trustee-beneficiary context, Wife argued that the agreement should have been presumed the product of undue influence because husbands and wives are in a fiduciary capacity toward one another. The court rejected this approach. It found the better analogy to be toward the fiduciary relationship of partners.
"the precedents construing statutory requirements applicable to transactions between trustees and their beneficiaries are not controlling in interspousal transactions. Interspousal transactions are expressly governed by Family Code section 721, which prohibits a spouse from taking "any unfair advantage of the other," and treats the fiduciary duties of spouses like those of business partners. The distinction between the two types of fiduciary relationship - trustee-beneficiary on the one hand, and spouses or business partners on the other - is entirely reasonable, because in the latter fiduciary duties run in both directions. Indeed, just as it would be patently irrational to presume undue influence in a contract between business partners, it would likewise be unreasonable to presume undue influence in a contract between spouses, unless one of the spouses has obtained an unfair advantage. For these reasons, we conclude that a contract between spouses that "advantages one spouse"..., and therefore raises a presumption the transaction was induced by undue influence, is a transaction in which one spouse obtains an unfair advantage over the other."
The court likewise rejected Wifes arguments that the agreement was based on fraud because husband did not provide wife with written information about the mergers in progress during the negotiation of the post-marital agreement. The court concluded that wife was aware of the negotiations and failed to investigate their significance or effect and thus was bound by the terms of the marital agreement.
In re Marriage of Burkle, 2006 Cal. App. LEXIS 732 (May 18, 2006)
Opinion on the web (last visited May 19, 2006 bgf)
Unmarried couples with children denied occupancy permits
Nearly forty years ago, a man named Loving challenged miscegenation laws that prohibited his marriage. Now, another Loving is finding himself in the midst of legal struggles over marriage. This time the law would require that he marry -- at least if he wants to live with his children and their mother in single-family housing. The community of Black Jack, Missouri, outside of St. Louis, voted to maintain its zoning restrictions that prohibit more than three people from living together in single-family housing unless they are related by "blood, marriage or adoption." On the basis of this law, Black Jack Missouri has denied occupancy permits to unmarried residents. Among them, Olivia Shelltrack and her partner of 13 years, Fondray Loving. The couple have three children, one from Shelltrack's previous relationship, and moved into their five-bedroom, three-bath home in January.
(This isn't the first time the St. Louis area's single-family zoning restrictions have been the subject of signficant legal scrutiny. In Association for Educational Development v. Hayward, 533 S.W.2d 579 (Mo. 1976) a house occupied by several lay members of the Opus Dei organization was the center of a debate over whether the rectory exception in the zoning ordinance should extend to cover their living arrangements. The Missouri Supreme Court held that the city was not required to allow a group of religiously motivated laymen to reside in a residential zone merely because it allowed a group of clergymen to reside there. Limiting the rectory exception in the zoning ordinance to persons who practiced religion as a regular vocation was not wholly arbitrary and provided fixed criteria for its application and thus did not deprive the residents of their first amendment rights.)
May 18, 2006
High Marriage Rates in Cyprus
"According to the Eurostat survey on families, Cyprus has the highest marriage rate among the EU25, at 7.2 per 1,000 inhabitants compared with an EU24 average of 4.8 per 1,000."Financial MIrror, Link to Article (last visited 5-17-06 NVS)
Divorce Rate Rises in Zanzibar
"Divorce is permitted in Islam as a last resort when all other avenues of dispute resolution have been exhausted. Normally, either partner has the right to seek divorce, although under Shariah, it is the man who concludes divorce or who issues the divorce certificate to the woman. In a bid to curb the rising divorce rate in Zanzibar, the Kadhi's court is now seeking the enactment of a divorce legislation to be applied concurrently with Islamic regulations governing divorce." Reuters Foundation, Link to Article (last visited 5-17-06 NVS)
Nicole Kidman and Keith Urban to Wed
"Tiring of the unstoppable gossip about her relationship with country singer Keith Urban, Nicole Kidman has finally made it clear the couple have decided to marry. "He's actually my fiance," Kidman said, after she and the fellow Australian attended a United Nations function in New York over the weekend." By Adam Harvey, The Advertiser Link to Article
High Divorce Rate in Czech Republic
"This week the European Union's Statistical Office, Eurostat, published a report on the state of the family in the 25 member states. From the survey, the Czech Republic comes across as average with one exception - the divorce rate - which was found to be higher than in all other EU members except Lithuania" By Pavla Horakova, Radio Praha, http://www.radio.cz/en/article/78959
Paul McCartney To Divorce
"Just like the song, Paul McCartney turns 64 next month. And apparently, he has the definitive answer as to whether Heather Mills McCartneywill need him or feed him on that day. No. The former Beatle and his 38-year-old wife announced Wednesday they'll separate, which churns up speculation as to what a divorce would cost McCartney, should it go that far.
"She could get a huge chunk of his wealth," said Patricia Hollings, a divorce specialist with the London legal firm Finers Stephens Innocent. Hollings said Mills McCartney's relatively young age and that they have a child, combined with McCartney's "staggering" wealth and celebrity status, have the potential to push the settlement into the stratosphere.
McCartney said on his Web site Wednesday he was upset over suggestions that Mills McCartney married him for his fortune, estimated to be $1.5 billion. The couple did not have a prenuptial agreement, Mills McCartney said in a 2002 Vanity Fair interview.
We repeat. Paul McCartney has $1.5 billion. And he got married without a pre-nup. That, friends, is love. That's trust. That's dumb." The Mercury News, Link to Article (last visited 5-17-06 NVS)
May 17, 2006
Georgia Judge’s Ruling Striking Down Voter-Approved Ban on Gay Marriage to be Appealed
A Georgia Superior Court judge ruled Tuesday that the state’s constitutional amendment banning same-sex marriage violated the single subject rules for ballot questions. The amendment had been approved by 76 percent of the state’s voters in November, 2004. Governor Sonny Perdue said Wednesday that he will call for a special election to propose another constitutional amendment to ban same-sex marriage if the appeal being brought by the state was not decided before August 14 by the state Supreme Court. Source. CNN.com. For the complete story, please click here (last visited May 17, 2006, reo).
Case Law Development: Supreme Court Rejects Hearing Gay Custody Dispute
On Monday, the Supreme Court denied a Writ of Certiorari in Breitain v. Carvin, 05-974 (May 15, 2006), a case involving a lesbian who sought to bar her former partner from visitation with a child the former partner had helped to raise. In 2005 the state of Washington's highest court said the former partner could pursue ties to the girl as a “de facto parent.” The girl was 6 when the relationship ended, she is now 11.
In the 2005 decision, the state court held that a common-law claim of de facto or psychological parentage exists such that the former partner can petition for shared parentage or visitation with the minor child. It said that “reason and common sense support recognizing the existence of de facto parents and according them the rights and responsibilities which attach to parents in this state. We adapt our common law today to fill the interstices that our current legislative enactment fails to cover in a manner consistent with our laws and stated legislative policy.”
In formulating a criteria to be applied upon remand, the Washington court relied primarily on a Wisconsin decision, H.S.H.-K., 533 N.W.2d 419 (1995) and held that a petition for co-parenting or visitation will not be entertained unless the petitioner proves the existence of the following: (1) the natural or legal parent consented to and fostered the parent-like relationship, (2) the petitioner and the child lived together in the same household, (3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature. The State of Washington Supreme Court opinion may be found at 122 P.3d 161 (Wash. 2005). News source: Gina Holland, Associated Press, boston.com. The complete news article regarding this case can be found by clicking here (last visited May 17, 2006, reo).
May 16, 2006
Case Law Development: Utah Supreme Court Holds Polygamy Ban Constitutional
The Utah Supreme Court today upheld the constitutionality of the ban on polygamous marriages. In upholding the conviction of Rodney Holm for felony bigamy and unlawful sexual conduct with a minor, the court concluded that "Holm’s behavior falls squarely within the realm of behavior criminalized by our State’s bigamy statute and that the protections enshrined in the federal constitution, as well as our state constitution, guaranteeing the free exercise of religion and conscience, due process, and freedom of association do not shield Holm’s polygamous practices from state prosecution." The Chief Justice provides a vigorous dissent on all issues.
While the opinion is, of course, important for its constitutional law analysis, Family Law Profs will also want to examine the statutory construction debate that precedes that analysis. Members of the court debated the scope of the term "purports to marry" in the bigamy statute. The defendant had argued that the term must be read narrowly to extend only to those situations in which one purports to create a legal marriage by obtaining a marriage license and claiming the legal benefits of marriage. The majority found no valid reason to accept such a limiting interpretation.
As to the constitutional claims, the court held that "the Utah Constitution offers no protection to polygamous behavior and, in fact, shows antipathy towards it by expressly prohibiting such behavior." Reviewing the history of the "irrevocable ordinance" banning polygamy in the constitution, the majority reaffirmed state court precedent regarding the meaning of the amendment. Likewise, under the US Constitution, the court distinguished the case from Lawrence v. Texas, noting that "this case implicates the public institution of marriage, an institution the law protects, and also involves a minor. In other words, this case presents the exact conduct identified by the Supreme Court in Lawrence as outside the scope
of its holding." In addressing each of the federal constitutional claims, the court provides a thorough review of the precedent on the issue. The opinion would be well worth careful reading for the majority opinion alone.
The dissention opinion of Chief Justice Christine Durham, however, adds even more significance to the case -- drawing the lines for future appeals to the US Supreme Court on the issue. Chief Justice Durham concluded that applying the bigamy law to marriages solemnized only in religious ceremonies, without obtaining marriage license, "oversteps lines protecting the free exercise of religion and the privacy of intimate, personal relationships between consenting adults."
Law Profs -- care to comment on the case? Click below to add your ideas on the case. Please note that your comments will not post immediately.
Case Law Development: North Dakota Holds Sex With Divorce Clients Constitutes Conflict of Interest Even if No Specific Rule Prohibits These Relationships
The North Dakota Supreme Court suspended an attorney for 90 days who had accepted about $20,000 from a mother he was representing in a custody action without providing accounting or billing statements and without determining what portion of the funds received were for fees not yet earned. The attorney also failed to maintain records of the cash payments from the mother and did not deposit the payments into a trust account. He also had begun a sexual relationship with the client during the representation.
The hearing panel had recommended a 30-day suspension for the fee violations, they did not recommend any sanction for the sexual relationship, as North Dakota Rules of Professional Conduct did not have a rule specifically prohibiting sexual relationships with clients (a new rule on the subject will take effect in August) and there was no proof that the sexual relationship affected the attorney's independent professional judgment.
The North Dakota Supreme Court agreed that there was clear evidence of violation of Rule 1.5 on fees, the court disagreed with the hearing panel's analysis of the propriety of the sexual relationship. Reviewing decisions from other courts, the court concluded that there was ample evidence of violation of the conflict of interest rule: "[Attorney] is an experienced lawyer who had to have known that the sexual relationship jeopardized the disposition of his client's custody case. The absence of a bright-line rule prohibiting sexual relationships with clients, and the lack of evidence of impaired representation, provide no excuse. The client's "motives" for becoming involved in the sexual relationship with [Attorney] are irrelevant. By engaging in a sexual relationship with his client during the course of the representation, [Attorney] placed his own interests above those of his client."
Disciplinary Board v. Chinquist, 2006 ND 107 (May 16, 2006)
Opinion on the web (last visited May 16, 2006 bgf)
Case Law Development: Expert Testimony on Battered Women May Be Introduced to Explain Woman's Death-bed Denial of Abuse in Prosecution for a 20-year-old Murder Charge.
The New Jersey Supreme Court affirmed the conviction of a man who had murdered his wife twenty years earlier. When interviewed by police in the hospital shortly before her death, the wife had denied that he had beaten and her husband had told her son to tell the police his mother had been hit by a car. Another child witness would not testify. As adults, the children came forward and provided evidence of the incident at the trial, along with wife's deathbed statements, and expert testimony concerning the common characteristics of battered women to explain the wife's denial of the incident.
The New Jersey Supreme court found that the twenty-year delay between the crime and the indictment did not violate defendant's due process rights. The court also reviewed the use of expert testimony in the case. The court commented that, "We have no doubt that the ramifications of a battering relationship is still a subject that is beyond the ken of the average juror." The court found the record sufficient to support the introduction of the expert's testimony regarding the phenomenon of battered women denying the source of their injuries. Noting that the courts did not have a model jury charge for the use of expert testimony concerning the characteristics of battered women and battered woman's syndrome, the court referred the matter to the Committee on Model Criminal Jury Charges for its consideration and development of a proposed model charge. One judge dissented on the admission of the expert testimony.
State v. Townsend, 2006 N.J. LEXIS 644 (May 15, 2006)
Opinion on the web (last visited May 16, 2006 bgf)