June 24, 2006
European Court of Human Rights Spars Woman from Lashing Ordered by Iranian Authorities
The European Court of Human Rights unanimously ruled on Thursday that repatriating a woman from Turkey to Iran, where she is sentenced to receive 100 lashes, would violate her human rights and would constitute "inhuman treatment". The case involved three Iranian nationals: A.D., a man of Kurdish origin, his wife, P.S., of Azeri origin, and their daughter. All three are currently living in Turkey, where they had been granted a temporary residence permit.
A.D. and P.S. met in 1996 and decided to marry. However, the father and brother of P.S., both members of the Iranian intelligence service, strongly objected to the proposed marriage. Despite these objections, they married in September, at a Sunni ceremony, without the consent of the bride’s father, and therefore in breach of Shia sharia law.
Two days after the wedding the couple were arrested. At the request of the Shia religious authorities, P.S. was forced to undergo a virginity test and then released. On September 30 a judge of the Naghadeh islamic court declared the marriage null and void and fined each of the first two applicants 300,000 rials. At the hearing the judge also persuaded the father of P.S. to agree to a Shia wedding and they were remarried. However, the couple were subsequently informed that they had each been sentenced to 100 lashes for fornication, under Article 88 of the Criminal Code, the sentence falling into the category known as haad, meaning that it is irrevocable.
In April 1997 the husband was subjected to this punishment. However, as his wife was then pregnant, execution of her sentence was postponed, in the first instance until the birth of her daughter and then until October 1999, because of her fragile physical and mental health. On the latter date it was nevertheless decided that there would be no further stays of execution and that the sentence of 100 lashes would be carried out in two sessions of 50 lashes each. The couple fled from Iran to Turkey and sought temporary status of “asylum seekers” in that country. In 2003 Turkey informed them that it had rejected their applications for asylum seeker status and were free to return to Iran or make their way to a third country of their choice, failing which they ran the risk of deportation. The European Court of Human Rights held that allowing any of the parties to be deported to Iran would violate Article 3 of the Convention. For additional information regarding this case, please click here (last visited June 24, 2006, reo).
New York Judge Rules Woman’s Affair Excused Husband’s Adultery; Not Grounds for Divorce
A New York family court judge has dismissed a woman's divorce petition, holding that her husband's affair did not constitute the requisite "cruel and inhuman treatment" because the woman's own affair excused his adultery. The judge wrote that “[I]t is undisputed that the husband's relationship with another woman ... commenced after the wife's revelations of her own adultery. . . Further, despite her burden to lay bare her proof in defense of the husband's summary judgment motion, the wife's opposition papers make no reference to any physical or mental harm she allegedly sustained by virtue of the husband's acts." The court then dismissed her divorce petition. Source. Mark Fass, New York Law Journal, law.com. For the complete story, please click here (last visited June 24, 2006, reo).
Case Law Development: Massachusetts Says Spousal Privilege Does not apply to Grand Jury Proceedings
The Massachusetts Supreme Judicial Court ruled Thursday that based upon its reading of current Massachusetts statutes regarding grand jury proceedings, spouses can be compelled to testify against each other before a grand jury investigating a crime. In its opinion, it observed that “in weighing the damage to the marital relationship that would flow from requiring a spouse to testify before the grand jury, the Legislature could also consider that testimony before a grand jury is not public, the witness's spouse is not physically present, the witness would not be subject to cross-examination, and the outcome of the proceedings could result at most in an indictment based on probable cause, still requiring the Commonwealth at trial to prove the defendant's guilt beyond a reasonable doubt without the spouse's testimony.” It also observed that “establishing the appropriate nature and scope of a privilege protecting family relationships is not a simplistic or lopsided process that automatically favors those family relationships at any price. It is precisely because the balancing of these competing interests is so difficult and must take into account so many factors, and because reasonable minds would likely differ as to where the lines should be drawn, that we have normally left the creation and delineation of privileges to the Legislature.” A copy of the slip opinion in this case may be downloaded by clicking here.doc (reo)
Massachusetts Hearing Set to Determine Whether Rhode Island Bans Same-Sex Marriage
A hearing will be held in Suffolk Superior court in Boston next Monday to decide whether that state bans same-sex marriages where the couple seeking to be married are from the state of Rhode Island. The hearing is the result of a decision by the Massachusetts Supreme Judicial Court in March that held that Massachusetts could ban gay couples from outside the state from marrying if gay marriage was illegal in the applicants home states. In its decision, the court made it clear that Conecticut, New Hampshire, and Vermont all ban gays from marrying and persons from those state cannot marry in Massachusetts. However, it was not clear that gay marriage is banned in Rhode Island. Source. Dan Ring, masslive.com. For the complete story, please click here (last visited June 24, 2006, reo).
Canada’s Supreme Court Rules that Courts May Consider the Consequences of Spousal Misconduct When Deciding Support Award
Although Canada's 1985 Divorce Act eliminates misconduct, as such, as a relevant consideration when making an award for spousal support, the Supreme Court ruled that courts may distinguish between the emotional consequences of misconduct and the misconduct itself. It said in Leskum v. Leskum, filed June 21, that the consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. “On the contrary,” wrote the court, “they can be highly relevant to factors, such as a claimant spouse’s capacity to be self-sufficient, which must be considered when making a spousal support order. Failure to achieve self-sufficiency is . . . one factor amongst others to be taken into account when considering a spousal support order.” In this case, the husband’s affair had a devastating effect on the wife and she was unable to attain self-sufficiency. Therefore, the consequences of the misconduct were correctly considered by the lower court. The opinion of the Supreme Court of Canada may be found by clicking on this link (last visited June 24, 2006, reo).
June 23, 2006
Case Law Development: Appointment of GAL for parent in dependency action requires notice and hearing
The California Court of Appeals holds that a trial court's appointment of a guardian ad litem for a parent in a dependency proceeding requires due process protections. In this case, Mother's court appointed counsel had sought appointment of a GAL at a hearing for which Mother had not appeared. The sole basis for the appointment was counsel's statement that appointment of a GAL would assist him in representing Mother. Mother had not been given any notice that the attorney would be making this request and was provided no opportunity to contest the appointment. At a later date in the dependency action, both the attorney and GAL informed the court that a GAL was no longer needed and the court excused the GAL. The court of appeals found that the failure to provide notice and a hearing to Mother violated her right to due process. The court noted that appointment of a GAL transfers significant parenting rights and requies either parental consent or a hearing at which "the court or counsel must explain the purpose of a guardian ad litem, why counsel believes the appointment is necessary, and what authority the parent will cede to the guardian ad litem. The parent must be given the opportunity to respond. At a minimum, the court should make an inquiry sufficient to satisfy it that the parent is, or is not, competent; i.e., whether the parent understands the nature of the proceedings and can assist the attorney in protecting his/her rights."(citations omitted)
Nonetheless, the court found that appointment of a GAL without due process was not a structural error automatically requiring reversal. In this case, the court found the error was thus harmless beyond a reasonable doubt, concluding that both counsel and the GAL protected Mother's rights throughout the process and that the outcome would not have changed.
In re Enrique G. (June 19, 2006)
Opinion on the web (last visited June 21, 2006 bgf)
Case Law Development: Service of Process While Present in the State for Divorce Mediation Can Establish Personal Jurisdiction
The Washington Court of Appeals discusses the propriety of asserting personal jurisdiction on the basis of personal service of process on a divorce litigant while they are present in the state for a divorce mediation. The court rejected the approach of those states that require the defendant be warned that he might be served with process when entering the state for settlement negotiations and held that the Washington court properly had personal jurisdiction over husband on the basis of the personal service and the fact that the couple had owned Washington property during the course of the marriage (though they resided in Ohio).
In re Marriage of Craze, 2006 Wash. App. LEXIS 1279 (June 19, 2006)
Opinion on the web (last visited June 22, 2006 bgf)
June 22, 2006
Fugitive Placed on "Most Wanted" List
"Police found bomb materials and ammunition in the bedroom of a man accused of killing his estranged wife and shooting a family court judge, according to court documents. The FBI on Tuesday added Darren Mack to its list of "Most Wanted" fugitives. Mack disappeared after the June 12 stabbing of his wife and shooting of Judge Chuck Weller, who was hit by sniper fire as he stood near his office window. Weller, who had been handling the couple's divorce case, survived the attack. Mack, 45, was charged the next day with murder in the death of Charla Mack, 39. ... Mack was a co-owner of Palace Jewelry & Loan Co. Inc., a pawn shop, until he turned over control in 2005 to his mother, a lawyer for the business said. Mack earned more than $500,000 a year and had a net worth of $9.4 million as recently as 2004, according to court documents." AP, CNN.com Link to Article (last visited 6-21-06 NVS)
Parents Steal From Piggy Banks
"One in four Australian parents regularly "borrow" money from their children's piggy banks to pay for anything from bread to luxury holidays, a survey said Wednesday. Mums are more than twice as likely to raid their children's savings than dad, with 35 percent of mothers confessing to the crime compared with 16 percent of fathers. But almost 9 out of 10 still believed they were setting a good example of financial management for their tiny tycoons. Fund management firm Bankwest surveyed almost 400 parents or guardians of children aged 17 or under." Rueters, Yahoo News Link to Article (last visited 6-21-06)
United Nations Calls for Global Effort to End Sexual Violence in War Zones
"A global effort is needed to tackle rape and other sexual violence in war zones, the United Nations said on Wednesday, calling responses to a worsening problem with tens of thousands of victims "grossly inadequate." An international conference in Brussels involving participants from more than 30 countries heard horrific reports of sexual abuses in war zones worldwide." By David Brunnstrom, Reuters, Yahoo News Link to Article (last visited 6-21-06 NVS)
"Ancestry.com is adding historic U.S. Census records to boost its archive of searchable names to 5 billion, making it what the company calls the most comprehensive genealogical database ever compiled. The Provo company was set to announce Thursday that it copied complete U.S. Census records from 1790 to 1930 — a Herculean effort that took a team of experts and workers a combined 6.6 million hours of labor." By Paul Foy, AP, Yahoo News Link to Article (last visited 6-21-06 NVS)
Stress and Infertility
"Women who are struggling to get pregnant could improve their chances of conceiving by having stress-reducing therapy sessions, scientists claimed yesterday. Researchers in the US found that rising levels of stress can lower a woman's fertility by disrupting her menstrual cycle, and in some cases prevent ovulation completely. But a pilot study of women who had not had a period for at least six months found that psychotherapy had a dramatic effect, lowering stress levels and restoring fertility in 80% of cases." Ian Sample, The Guardian Link to Article (last visited 6-21-06 NVS)
"Nicole Kidman, who celebrated her 39th birthday Tuesday, returned to Sydney, Australia, this week to celebrate her marriage to country star Keith Urban with family and friends. Kidman and Urban are reportedly staying in separate residences in the days before their wedding, which is expected to be a black-tie event involving a tight circle of their nearest and dearest. Guests have been told to keep Friday-to-Monday schedules free, as they will be given only 24 hours notice of the time and location, local media said." Chicago Sun-Times Link to Article (last visited 6-21-06)
June 21, 2006
Case Law Development: Supreme Court Twin Rulings Viewed as Important Advance in Fighting Domestic Violence
Twin rulings by the U.S. Supreme Court this week are being hailed as important advances in the fight against domestic violence. In Davis v. Washington, a recording of a conversation between the victim of domestic abuse and a 911 operator in which the operator ascertained the name of the boyfriend perpetrator was ruled admissible over claims it violated the Sixth Amendment Confrontation Clause. The Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” The Court held that statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. In this case, the 911 operator’s interrogation objectively indicated its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying. Therefore, the tape was admissible.
In a companion ruling, Hammon v. Indiana, 05-5705, the police responded to a domestic disturbance call. After first claiming nothing was wrong, the wife signed a statement asserting that her husband “Broke our Furnace & shoved me down on the floor into broken glass. Hit me in the chest and threw me down. Broke our lamps & phone. Tore up my van where I couldn’t leave the house. Attacked my daughter.” Although the wife was subpoenaed for trial, she failed to appear. As a part of the state’s case, the affidavit was admitted as evidence over the objection it did not allow the defense lawyer to cross examine the writer. The defendant was found guilty of domestic battery and violating his probation.
The Indiana Supreme Court affirmed, concluding that the statement was admissible for state-law purposes as an excited utterance.
The Supreme Court did not agree with the lower court ruling and distinguished the situation in Hammond from that in Davis observing that in Hammond the circumstances were clear that the interrogation was part of an investigation into possibly criminal past conduct and there was no emergency in progress. The Court said that in cases like this one, where the statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were “initial inquiries” is immaterial and the Sixth Amendment applied.
However, the Court observed that “This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. . . . [W]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. We reiterate what we said in Crawford: that “the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds.” The Supreme Court slip opinion consolidating Davis v. Washington and Hammon v. Indiana, filed June 19, 2006, may be found by clicking here (last visited June 21, 2006, reo).
Supreme Court Agrees to Hear Second Abortion Case
On Monday the Supreme Court agreed to hear a government appeal that seeks to reinstate a federal ban on what opponents call partial-birth abortion in the case of Gonzales v. Planned Parenthood. The Court is now set to hear two partial birth abortion decisions this term: Gonzales v. Panned Parenthood, et. al. 05-1382, and Gonzales v. Carhart, 05-380, respectively decided by the 9th and 8th Circuit Courts of Appeal. The 8th Circuit partial-birth abortion ruling can be found by clicking here (last visited June 21, 2006 reo).
Case Law Development: Washington Court Rules that Effort to Deal with Child Needing Psychiatric Treatment Improper – Places Judges in Quandary
A ruling by the Washington Court of Appeals on Monday has placed juvenile judges in that state in a quandary in cases of seriously mentally ill children whose parents seek help from the state. The case involved a family that feared for their safety from a 13-year old child with a history of serious mental illness who had assaulted his mother. A juvenile-court judge had responded to their request for psychiatric help for the child by ordering the Department of Social and Health Services to take custody of the child. However, the Court of Appeals ruled that the handling of the case was improper because the normal steps that are followed to place a child in foster care had not been followed.
The court said that despite the plea from the family “none of the requirements or safeguards applicable to the establishment of dependency or the placement of children in foster care were fulfilled. The father was not given any notice of the proceeding or an opportunity to be heard. Neither parent was either represented by counsel or provided a meaningful hearing before an unbiased fact finder where competent evidence could be presented to establish parental unfitness. Yet these protections are required for a proper finding of dependency. The court's order removing G.A.H. from his home and placing him in foster care was made in the absence of the fundamental protections afforded families and children.” It concluced that the juvenile court had exceeded its authority and circumvented the proper role of the Department of Children and Family Services. DCFS had earlier determined that that out-of-home placement through the foster care system was neither appropriate nor necessary for the child. News source. Maureen O'Hagan, Seattle Times, seattletimes.nwsource.com. For the news story, please click here (last visited June 21, 2006, reo). The slip opinion in State of Washington v. G.A.H., filed June 19, can be found by clicking here (last visited June 21, 2006, reo).
June 20, 2006
Case Law Development: Judicial Determination that a Father is the Equitable Parent of a Child Precludes Paternity Actions against Other Fathers
A Michigan attorney was properly held liable for malpractice in failing to perfect an appeal of a child support order against a biological father because another man - the husband of the child's mother - had been already been adjudged to be the equitable parent. "Because a court determination that a man is the equitable father of a child is mutually exclusive of a determination that the child was born out of wedlock, an equitable parentage order precludes the mother from having standing to assert a paternity action regarding that child." Thus, had the support order been appealed, it would have surely been reversed, making the case for malpractice one readily proven.
Coble v. Green, 2006 Mich. App. LEXIS 1835 (June 15, 2006)
Opinion on the web (last visited June 18, 2006 bgf)
Case Law Development: Sale of Marital Home Under Market Value to Relatives Constitutes Contempt
The Ohio Court of Appeals upholds a trial court's finding of contempt against Wife, who under the terms of a separation agreement was required to pay Husband $ 14,800 from the proceeds of the sale of the marital home. Wife sold the home, appraised at $143,000, to her sister for $105,000 (which paid off the existing mortgage with no excess funds left to pay husband). The Ohio Court of Appeals found this sufficient evidence to uphold the trial court's finding that the sale was a fraudulent attempt to avoid paying the husband the $ 14,800, thus constituting contempt.
McCleese v. Clemmons, 2006 Ohio 3011; 2006 Ohio App. LEXIS 2882 (June 15, 2006) bgf
Case Law Development: Kentucky Supreme Court Upholds Paternity Fraud Verdict
The Supreme Court of Kentucky split on whether to uphold a trial court’s judgment against a mother for fraudulent misrepresentation of her husband’s paternity of their 13-year-old daughter. Wife had been having an affair when daughter was conceived, but convinced Husband that she had been faithful. When daughter was 13, Wife disclosed to Husband that the child was the product of an extramarital affair with a former boyfriend, which she had confirmed when her former boyfriend underwent a DNA paternity test. Husband then obtained a termination of child support obligations from the circuit court and sued Wife for fraudulent misrepresentation of the paternity of the child to him. The jury found Wife guilty of fraud and awarded Husband $ 54,720.26 in damages (representing the prior five years of child support). The Court of Appeals reversed the jury verdict. The Supreme Court upheld the jury verdict, finding that this was “nothing more than ordinary fraud.” The court distinguished cases involving excess child support payments made by judicial error in which courts had determined that restitution of the excess payments is inappropriate unless there exists an accumulation of benefits not consumed for support. The court opined that “Such considerations are appropriate in those cases because the spouses are the parents of the child receiving support. However, in the case of fraud and misrepresentation of expenses to the spouse, the court has ordered restitution, albeit with considerations to limit the rate of payment in order to prevent detriment to the child(ren) supported.”
Two dissenting judges would have affirmed the court of appeals to protect children from opening the doors to easily to paternity challenges. As dissenting Chief Justice Lambert commented, “Although we live in a Jerry Springer world, some secrets need to be kept. … As a matter of policy, this Court should address these issues from the perspective of the child, and not the mother and her former husband. Their pecuniary interest should be entirely secondary. I fear the effect of the majority opinion will be to create an "open season" on the paternity of children in Kentucky…. Although Mr. Denzik had to pay support for a child that was ultimately determined not to be his biological offspring, he received the intangible value of thirteen years of fatherhood of a child to whom he appears to have been devoted. We should not put a price on the value of relationships between parents and children, and certainly not incentivize the destruction of these relationships.”
Denzik v. Candy Denzik, 2004-SC-1131-DG, 2006 Ky. LEXIS 166 (June 15, 2006)
Opinion on the web (last visited June 18, 2006 bgf)
Case Law Development: Same Sex Partner Is Not De Facto Custodian By Virtue of Providing Primary Financial Support for Partner's Child
After the breakup of their 8-year relationship, a woman sought custody or visitation her lesbian partner's daughter, born during the relationship. The Kentucky Supreme Court held that one who is not a parent but who has nevertheless participated substantially in the support and rearing of a child for a significant period of time has no standing to claim a right of custody or visitation upon discontinuance of the cohabitational relationship with the parent unless they can qualify as a de facto custodian of the child under Kentucky statutes. That statute defines "de facto custodian" as "a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of . . . one (1) year or more if the child is three (3) years of age." After hearing the evidence, the trial court held that even though petitioner was the primary financial supporter of the child, her partner had been the child's primary caregiver. The Kentucky Supreme Court affirmed, commenting:"We are not unaware of the recent decision of the Supreme Court of Washington, Carvin v. Britain, 122 P.3d 161 (Wash. 2005, cert. denied, __ U.S. ___ (2006) where that court took an expansive view of its common law and equitable powers with respect to allowing standing to seek custody in circumstances not dissimilar to those presented here. Notably, however, there was no de facto custodian statute available for the presentation of the applicant's claims. As such, if the applicant was to be heard at all, it was upon non-statutory grounds. In this case, [Kentucky statutes] are controlling. Despite her significant relationship to the child, [petitioner] was not the child's parent and the child was in the custody of her only parent. Thus, [petitioner's] only avenue for obtaining standing to claim custody was to prove that she was a de facto custodian and in this respect, her proof failed." B.F. v. T.D., 2006 Ky. LEXIS 162 (June 15, 2006) Opinion on the web (last visited June 17, 2006 bgf)