June 17, 2006
Case Law Development: Colorado Common Law Allows 15-Year-Old to Marry
The statutory age of consent for marriage in Colorado is eighteen. However, the Colorado Court of Appeals ruled Thursday that a 15-year-old girl can enter a common law marriage in that state. Given the ruling, it may be possible for girls age 12 and boys 14 to marry. Such marriages were recognized by the English common law, which is recognized in Colorado.
In arriving at its decision, the court examined the Colorado statutes regarding at what age a party may marry. It observed that Colorado had adopted the Uniform Marriage Act (UMA), which reflects the legislative purposes of strengthening and preserving the integrity of marriage and safeguarding meaningful family relationships. The act provides procedures for the solemnization and registration of marriages. However, the “UMA provides that “[n]othing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one man and one woman”
The court stated that the legislature had not abrogated of modified the age at which a person may marry under the common law. It observed that courts in other jurisdictions have uniformly declared that the common law age of consent applies to common law marriages, even when statutes otherwise require parental or judicial approval for persons under a specified age, unless those statutes expressly modify or abrogate the common law. The common law marriage of a person is valid, regardless of whether the person has reached the age of competency as established by statute, if the person is competent under the common law.
The jurisdictions that recognize common law marriage are Alabama, Colorado, District of Columbia, Idaho, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah. Pennsylvania recently decided not to recognize common law marriages allegedly contracted after January 1, 2005. The slip opinion of the Colorado Court of Appeals in J.M.H. v. Rouse, filed June 15, may be found by clicking here (last visited June 17, 2006, reo).
Has the Wisconsin Statute of Limitations Run on 84-Year-Old Catholic Priest Who Allegedly Assaulted Three Girls in the 1960s?
The Wisconsin Court of Appeals is considering hearing the question of whether the criminal statute of limitations has run on an 84-year-old former Catholic priest who is alleged to have sexually assaulted three girls while a chaplain at a hospital in the 1960s. The defendant faces two counts of sexual intercourse with a child, four counts of indecent behavior with a child and one count of attempted indecent behavior with a child. If convicted, the former priest faces up to 80 years in prison. Source. Jennifer Woldt, wiscnews.com. For the complete story, please click here (last visited June 17, 2006, reo).
Florida Judge Denies Adoption Request of Foster Parents – Four Years of Litigation to Continue
A Florida judge rejected the adoption petition of the former foster parents of a 4-year-old boy this past Wednesday and the child was taken into custody of the county. This ruling is just the last in a legal action that has gone on since 2002. The court battle has been between the child’s second cousin and foster parents who cared for him as an infant. In June 2003, after the parental rights of the child’s biological parents were terminated, the foster parents were told they could adopt the child. However, in 2003 the foster parents adoption petition was rejected and in June of that year a trial judge ordered the child placed with his second cousin. Then, in June 2004, the 5th District Court of Appeal ruled that there should be an evidentiary hearing held by the trial judge and following that hearing, the child was returned to the foster parents. However, in the latest court proceeding, the trial judge once again denied the foster parents adoption petition. Another appeal is anticipated. Source. Deborah Circelli, news-journalonline.com. For the complete story, please click here (last visited June 17, 2006, reo).
Arkansas Supreme Court Hears Gay Foster Parent Dispute
On Thursday, the Arkansas Supreme Court heard arguments in a challenge to a lower court ruling that allows gay to become foster parents. The state attorney claimed that because Arkansas bans gay marriage, it should also ban homosexual couples from becoming foster parents. The attorney for the gay foster parents said such a ruling would be discriminatory. She also noted that there is a shortage of foster parents in the state and eliminating persons because of their sexual orientation will not protect the well-being of Arkansas children. A ruling is not expected for several weeks. Source. Todaysthv.com. For the complete story, please click here (last visited June 17, 2006, reo).
June 16, 2006
Case Law Development: Arkansas Supreme Court Holds Mandatory Reporter Law Vague
The Arkansas Supreme Court has overturned a jury verdict against a clinic in a child-abuse case. The ruling says that state law is vague on whether such institutions have to report suspected abuse. The case involved a three-year-old boy who was twice brought into a medical clinic to the same doctor, who suspected child abuse but was assured by the child's father that the abuse was at the hands of his ex-wife and that he would report it. The doctor did not hotline the abuse. When the child later died and his father was convicted, the estate of the child sued both the doctor and the clinic.
The Arkansas Supreme Court said the clinic couldn't be held liable for a practitioner's failure to report the suspected abuse. The Supreme Court concluded that state law requires medical professionals, social workers and others to report child abuse, but said the law didn't say whether institutions like clinics were required to report it. While the statute does include "institutions" in the list of mandatory reporters, the court held that it was unclear whether that was meant to include medical clinics.
Because the court concluded that the clinic had no duty to report, it held that it also could not be held vicariously liable for the doctor's failure to report.
Cooper Clinic v. Barnes, Arkansas Supreme Court 05-1166 (June 15, 2006)
Opinion on the web (last visited June 16, 2006)
Case Law Development: Arbitration Awards must be Final Before Incorporating into Divorce Decrees
Husband and Wife had submitted certain issues to arbitration in their divorce proceeding. After the arbitration was completed but before the award had been delivered to the parties, the trial court issued its decree of divorce, approved the arbitration award made by the arbitrator. After the arbitration order was delivered to the parties over one month later, the husband filed an application to vacate the arbitration award, which the trial court denied.
On appeal, the Georgia Supreme Court noted that it was error for the trial judge to incorporate the arbitration award before it had been finalized by delivery to the parties. " A court cannot accept and incorporate into a divorce decree an incomplete and unenforceable settlement agreement... Similarly, a court cannot accept and incorporate into a divorce decree an incomplete and unenforceable arbitration award; such an award simply does not exist, in the same manner that an incomplete agreement does not exist.noted that the husband did not attempt to appeal or set aside the trial court's final order." (Citations omitted)
However, Husband's appeal of the trial court's order was untimely, as he had waited for the delivery of the arbitration award to him. The court held that the trial court's judgment was final on the date that it issued its divorce decree, and all matters in litigation in the action were final on that date, including those submitted for arbitration. The later purported arbitration award was of no effect and the time had past to appeal the trial court's order. Thus, Husband's petition to vacate the arbitration award should have been dismissed.
Ciraldo v. Ciraldo, 2006 Ga. LEXIS 400 (June 12, 2006)
Opinion on the web (last visited June 16, 2006)
Case Law Development: Attorneys Fees to Be Based on Relative Financial Ability not Success in Litigation
A Florida trial court denied attorney’s fees to wife in a child support modification and abatement action on the basis that she had received a substantial tax return the prior year and that her attorney had taken several “needless actions” in the litigation. The Florida Court of Appeals reversed, finding that the trial court erred in basing the fee decision on these factors and ignoring the gross disparity in income and resources between husband and wife. The court noted that the purpose of the fee-shifting statute in Florida family action statutes is “to ensure that both parties will have similar financial ability to obtain competent legal counsel. The primary factor in considering whether to award one party's fees is the financial resources of the parties. Other factors that may also be considered include the merits of the parties' respective positions, the duration of the litigation, whether the litigation is brought or maintained primarily to harass, or whether the defense is brought primarily to frustrate or stall.”
Here, the court of appeals noted that one need not be totally unable to afford attorneys fees in order to merit an award. Neither is success on issues necessary in order to be awarded attorneys fees. The court found that wife’s attorney had provided competent representation and had that there was no evidence of bad faith in any of the actions relied on by the trial court to deny fees.
Humerickhouse v. Humerickhouse, June 16, 2006.
Opinion on the web (last visited June 16, 2006)
June 15, 2006
Family Court Judge Shot in Reno
"As a family court judge in Reno, Chuck Weller decides who gets the children, who pays child support and who gets visitation rights. Because of that, a lot of people have it in for him.
Police think one of them, Darren Roy Mack, was so mad that he shot Weller in the chest as the judge stood near a third-floor courthouse window Monday." CNN.com Link to Article (last visited 6-14-06 NVS)
Nanny Sues Camera Manufacturer
"A nanny who was arrested after police viewed hidden camera recordings that appeared to show her shaking a 5-month-old baby filed a lawsuit against the device's manufacturer. Claudia Muro, 32, alleged that the camera footage, which was broadcast on television around the country, was distorted and wrongfully led to her arrest in October 2003." CNN.com Link to Article (last visited 6-14-06 NVS)
Sale of Wedding Tiara
"The wedding tiara of Britain's late Princess Margaret sold at an auction for 926,400 pounds (1.354 million euros, 1.697 million dollars)." AFP, Yahoo News Link to Article
Sex Workers and World Cup
"Sex workers in Berlin have reportedly gone into extra time at the World Cup and are doing double shifts to cash in."Berlin's hookers are groaning - all brothels are creaking at the seams," mass daily Bild reported. "In some establishments the girls already have to put in double shifts owing to the World Cup," the paper added, saying clients were virtually queuing up to get in to the host nation's 'Freudenhauser' (literally, joy houses)." By Chris Wright, AFP, Yahoo News Link to Article (last visited 6-14-06 NVS)
Children Buy Mature-rated Games
"The Federal Trade Commission on Wednesday told lawmakers it supports the video game industry's self-regulation of violent content but said too many U.S. children are still able to buy Mature-rated games in stores. The U.S. video game industry, with revenue rivaling Hollywood box office sales, is at the center of a cultural war over racy and violent content in some titles." By Peter Kaplan, Reuters, Yahoo News Link to Article (last visited 6-14-06 NVS)
Young Man Kills Parents of Girfriend
"A young man accused of killing his 14-year-old girlfriend's parents and running off with her pleaded guilty Wednesday to murder in a deal that spared him from the death penalty. David G. Ludwig, 19, was sentenced to life in prison without parole for shooting Michael F. and Cathryn L. Borden inside their Lititz home in November after they demanded he break off his relationship with their daughter, Kara." By Mark Scolforo, AP, Yahoo News Link to Article (last visited 6-14-06 NVS)
June 14, 2006
Case Law Development: Maine Health and Human Services Improperly Made End-of-Life decision for Child in Foster Care Absent Hearing to Air Parental Objections
In a unanimous ruling, the Main Supreme Court ruled that the Maine Department of Health and Human Services should not have made an end-of-life decision for a baby boy in foster care without a court hearing to air the parents' objections. The agency had placed the child in a foster home and obtained a “do-not-resuscitate” order based on the opinion of doctors who concluded the child was brain injured and would not recover. The injuries were allegedly suffered when the child was shaken by his father.
The court said that due process requires that parents be afforded the same procedural protections before approval of a do-not-resuscitate order (DNR) for their child as they are afforded prior to the termination of their parental rights. When either or both parents, whose parental rights have not been terminated, object to a DNR for their child who is in the Department's custody, “the court must provide reasonable notice for a hearing, hold the hearing, and determine, by clear and convincing evidence, whether it is in the best interest of the child to give the Department the authority to issue a DNR. As part of its assessment, the court should, at a minimum, consider: (1) the child's quality of life, including whether the child is in a persistent vegetative state; (2) what life‑sustaining treatment would be necessary; (3) the degree of pain the life‑sustaining treatment or the withholding of life-sustaining treatment would cause the child; (4) the long-term prognosis for the child; (5) the opinions of medical experts in regard to the foregoing considerations; and (6) the benefit or detriment to the child if the parents participate in the decision making.” A copy of the Maine Supreme Court opinion In Re Matthew W. may be obtained by clicking here (last visited June 14, 2006, reo).
Ohio Abortion Proposal Unlikely to Become Law
After a full day’s hearing and with 60 people yet to testify, the chairman of the Ohio House Health Committee ended debate on a proposed abortion ban bill and said that he does not expect to hold a second hearing this year. According to its supporters, the proposal would have given the Supreme Court the chance to overturn Rode v. Wade. Source. Jim Siegel, The Columbus Dispatch, columbusdispatch.com. For the complete story, please click here (last visited June 14, 2006, reo).
Polygamous Marriages Show Small Decline In Morocco
The Moroccan Justice Ministry has announced that the number of polygamous marriages in that country dropped from 904 in 2004 to 841 in 2005. The drop was attributed to the introduction of family law in that country in 2004, which made it more difficult for a man to marry several wives. Under the law, a man is allowed to marry up to four women, but must now obtain his first wife’s consent before marrying another. Source. Asharq Al-Awsat, aawsat.com. For the complete story, please click here (last visited June 14, 2006, reo).
Commentary: “Worried About Marriage Protection: From What?”
Regular readers of the Blog may find the commentary by Professor William N. Eskridge Jr. and Darren R. Spedale in the Houston Chronicle of interest. In their commentary, they review the status of marriage in the United States and contend that those who want to “really protect traditional marriage should roll back no-fault divorce or cohabitation, which can be done by ordinary legislation.” Using Norway, Denmark, and Sweden as examples, they argue that gay marriage will not undermine marriage. Eskridge and Spedale are authors of "Gay Marriage: For Better or For Worse? What We've Learned from the Evidence" (www.gaymarriagebook.com). Eskridge is a professor at Yale Law School specializing in statutory interpretation. Spedale, an attorney in New York, spent two years in Denmark researching same-sex marriage rights. Source: Eskridge and Spedale, Houston Chronicle, chron.com. To read their commentary, please click here (last visited June 14, 2006, reo).
June 13, 2006
Case Law Development: Another Ohio Appellate Court Holds Domestic Violence Statute Unconstitutional under Ohio's Defense of Marriage Amendment
Yet another Ohio Court of Appeals court has held that the Ohio Defense of Marriage Amendment makes it unconstitutional to hold an individual criminally liable under the domestic violence act when their victim is not their spouse. Some excerpts from the opinion:
"We conclude that the "person living as a spouse" provision of R.C. 2919.25 does violate the Defense of Marriage Amendment. We note that this court is required to apply the law. The voters of the State of Ohio voted in favor of a new constitutional amendment, which created adverse ramifications and unintended consequences in many unexpected areas of the law. We are not inclined to reconcile the language of the statute with politically correct standards, in effect, defining public policy. This court is duty-bound to apply the law. Public policy is the prerogative of the legislature. We also note that after our decision today, heterosexual cohabitants are not left unprotected. An appropriate remedy may be sought by filing assault or other charges against the offender in accordance with chapter 2903 of the Revised Code.
Because today's decision is in conflict with State v. Newell, 5th Dist. No. 2004CA00264, 2005 Ohio 2848; State v. Carswell, 12th Dist. No. CA2005-04-047, 2005 Ohio 6547; State v. Burk, 8th Dist. No. 86162, 2005 Ohio 6727; State v. Rexroad, 7th Dist. Nos. 05-CO-36, 05-CO-52, 2005 Ohio 6790; State v. Nixon, 9th Dist. No. 22667, 2006 Ohio 72; and State v. Rodgers, 10th Dist. No. 05P446, 2006 Ohio 1528, we certify the record of this case to the Ohio Supreme Court for review [**19] and final determination on the following question: Does the legislature's use of the term "person living as a spouse" to define "a family or household member" under R.C. 2919.25, "create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage" in violation of the Defense of Marriage Amendment, Section 11, Article XV of the Ohio Constitution?"
State v. Logsdon, 2006 Ohio 2938 (June 12, 2006) bgf
Case Development: Attorneys have no Property Interest in their Family Court Appointment Practice
Attorneys who had established a specialty practice representing individuals before the Family Court Division of the District of Columbia Superior Court, including volunteering as court appointed attorneys, sued the court, judges and officies of the DC Public Defender Service arguing that their property interest "taken" by District of Columbia Superior Court Administrative Order, which established panels of lawyers who were eligible for appointment to represent indigent parties in family court matters. The order established panels of qualified attorneys for representation of indigent clients in four types of cases: (1) juveniles alleged to be delinquent or in need of supervision, (2) minor children needing guardians ad litem in neglect and termination proceedings, (3) parents and caretakers in neglect and termination proceedings, and (4) children needing special education advocates.
The district court dismissed the attorneys' claims for money damages but did not dismiss their claims for injunctive and declaratory relief. The United States Court of Appeals for the District of Columbia reversed and remanded with directions to dismiss the Fifth Amendment claims.
The court of appeals held that the attorneys asserted no property interest that was protected by the Fifth Amendment, as they had no guaranteed entitlement to compensated appointments prior to the order. "There never has been a statute or rule, or even a practice, securing to attorneys a right to compensated Family Court Division of the District of Columbia Superior Court appointments. And a lawyer's inability to make a living as a family court practitioner without such appointments does not remotely create an entitlement." The court also noted that the defendant judges were entitled to judicial immunity with respect to their role in the panel selection process.
Roth v. King, June 9, 2006
Opinion on the web (last visited June 13, 2006 bgf)
Case Law Development: Off Duty Police Officer Not Mandated Reporter of Child Abuse
The California Court of Appeals has held that if a police officer is off duty and at home and receives information from a minor acquaintance regarding the minor's sexual relationship with an adult, the officer has not received that information in the scope of his employment or in his professional capacity and therefore does not have a duty under the mandatory reporting statute to report the suspected child abuse involved. Thus, the court concluded that the city could not properly terminate his employment for failure to report the suspected abuse.
Pinto v. City of Visalia, 139 Cal. App. 4th 1170 (May 25, 2006)
Opinion on the web (last visited June 13, 2006 bgf)