Saturday, July 22, 2006
Case Law Development: Supreme Court of Canada Allows Effect of Spousal Misconduct to be Considered in Awarding Alimony
Canada's Divorce Act eliminates consideration of misconduct in awarding spousal support. The Supreme Court of Canada has now ruled that, although misconduct like adultery is not relevant in a divorce case, the consequences of that misconduct may be. In justifying this nuanced distinction, the court noted:
The 1985 Divorce Act eliminates misconduct, as such, as a relevant consideration when making an award for spousal support. Section 15.2(5) provides that in making an interim or final order for spousal support, “the court shall not take into consideration any misconduct of a spouse in relation to the marriage”. In addition, s. 17(6) instructs the court not to consider in a variation application any conduct that could not be considered in the making of the initial order. These provisions make it clear that misconduct should not creep back into the court’s deliberation as a relevant “condition” or “other circumstance” which the court is to consider under s. 15.2(4) in making or varying a spousal support order. There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. Those consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. On the contrary, 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 not a breach of “a duty”. It is simply one factor amongst others to be taken into account when considering a spousal support order.
The lesbian couple whose landmark lawsuit helped Massachusetts become the only state in America where same-sex couples can marry legally have split up, a spokeswoman said on Friday. Julie and Hillary Goodridge and six other gay and lesbian couples sued Massachusetts for the right to marry and won when the state's highest court ruled narrowly for them in 2003. Their suit helped spark a nationwide debate on gay marriage.
Read the Reuters story (last visited July 23, 2006 bgf)
Friday, July 21, 2006
Missouri no longer will block efforts by Kansas City lesbian Lisa Johnston — or other gays — to become licensed as foster parents, state officials said Tuesday. However, the Missouri Department of Social Services cautioned that just because gays may get licensed doesn’t automatically mean they will become foster parents. "We’re considering the biological parents’ preferences, and we’re also considering the abuse and neglect that occurred to the child and whether or not an alternative lifestyle environment would be confusing or add trauma to an already abused or neglected child,” said Deborah Scott, spokeswoman for the department.
The announcement came a month after state Attorney General Jay Nixon said he would not appeal a judge’s February decision allowing Johnston to be a foster parent. Nixon said he was dropping the appeal because Gov. Matt Blunt had just signed a law that repealed language outlawing homosexuality in Missouri.
Read the Kansas City Star Article (last visited July 20, 2006)bgf
A state judge has ruled that North Carolina's 201-year-old law barring unmarried couples from living together is unconstitutional. A lawsuit challenging the law was brought last year by the state chapter of the American Civil Liberties Union on behalf of a former Pender County sheriff's dispatcher. Deborah Hobbs, who had been living with her boyfriend, quit her job in 2004 after Sheriff Carson Smith demanded she marry her boyfriend or move out if she wanted to work for him.
Read the Fox News story (last visited July 20, 2006)bgf
Thursday, July 20, 2006
"Last-minute demands this week by Shas has delayed proposed divorce legislation that legal experts said would harm women's legal standing. The bill is now not expected to be considered by the Ministerial Law Committee until the Knesset's winter session, which begins after the High Holy Days. If the legislation becomes law, it give rabbinic courts continued jurisdiction over divorce cases. This would mean that any disputes about the monetary aspects of a divorce agreement reached in a rabbinic court that arose after giving the get (divorce writ) would be decided in the same rabbinic court. Neither side would have recourse to civil courts." By Matthew Wagner Jerusalem Post, Link to Article (last visited 6-19-06 NVS)
"Fighting people smugglers and drug runners is old hat for China's border police who now have a new duty -- defusing marital squabbles and other disputes. policy -- called "love the people, consolidate the borders" -- made perfect sense, as a happy populace that trusts the authorities helps make China's frontiers safer." Reuters, Yahoo News Link to Article (last visited 6-19-06 NVS)
"Khaled never thought a form of temporary marriage, described by some in Saudi Arabia as legal prostitution, would open the door to his happily-ever-after. The 25-year-old Saudi security guard opted to marry Zeinab, also a Saudi, through a "misyar" contract -- a kind of marriage-lite under which couples often live separately but get together regularly, sometimes just for sex. Khaled and Zeinab are among thousands of people who choose misyar in this ultraconservative Islamic kingdom where contact between unrelated men and women is forbidden and extramarital sex regarded as a grave sin." By Souhail Karam, Reuters, Yahoo News Link to Article (last visited 6-19-06 NVS)
"People with lower socio-economic status appear to age faster than their better-off counterparts, British researchers said on Thursday. They showed that the poor have shorter telomeres, the caps on chromosomes that prevent them from fraying, which makes them biologically older than people of the same age in higher social groups."Not only does social class affect health and age-related diseases, it seems to have an impact on the aging process itself," said Dr Tim Spector of St Thomas's Hospital in London." By Patricia Reaney, Reuters, Yahoo News Link to Article (last visited 6-19-06 NVS)
Wednesday, July 19, 2006
Case Law Development: New Jersey Supreme Court Decides Not to Decide Constitutional Right of Siblings to Visit One Another
The New Jersey Supreme Court vacated its grant of certification in a case in which the Law Guardian had asked the court to decide "whether the Division of Youth & Family Services or the courts have an affirmative duty to ensure that contact between siblings is maintained, even in a post-adoption context, when the siblings are in a separate home." While the court noted that "we cannot underestimate the value of nurturing and sustaining sibling relationships" it concluded that there was no case or controversy before them as the child in question was afforded ample and regular visitation with siblings who had been adopted into a different home. Rather, the court suggested that the topic was one the legislature should address:
The competing public policy concerns presented by the parties and amici curiae would benefit from legislative review. The state legislatures that have addressed the issue of sibling visitation after adoption have taken a variety of approaches. Thus, our Legislature may have an interest in addressing the issues discussed here. The Court expresses no opinion on the merits of the issues raised by the parties and amici curiae.
New Jersey Div. of Youth & Family Servs. v. S.S., 2006 N.J. LEXIS 1083 (July 18, 2006)
Opinion on Web
Two recent cases have addressed the parents in active military service who are faced with custody disputes.
In a case in which Mother sought to modify a custody award that had granted sole custody of her child to Father's mother while Father was deployed to Iraq, Father requested a stay of the proceedings, citing the Servicemembers Civil Relief Act, 50 U.S.C.A. App. § 501 et seq. (2003). However, Father did not comply with the documentation requirements of the Act. Thus, whether to grant a stay was entirely within the discretion of the court. Since mother had a superior right to custody over paternal grandmother, the Kansas Supreme Court held that there was no abuse of discretion in denying a stay of the action and granting temporary custody to mother.
In re Marriage of Bradley, 2006 Kan. LEXIS 478 (July 14, 2006)
Opinion on the web (last visited July 19, 2006) bgf
Jeanne Hannah's blog Updates in Michigan Family Law provides another case on the topic: The Michigan Court of Appeals issued an unpublished decision on July 18, 2006 remanding to the trial court and directing that court to comply with a Michigan statute that requires the court to return a child to a parent who has returned from active military duty. In addition, the COA reversed two prior court orders that changed custody from the custodial parent after she attempted to vest the maternal grandparent with guardianship upon her deployment rather than to allow the non-custodial father to care for the child in her absence. In Michigan, a trial court is limited by the recent amendment to MCL 722.27 in its authority to modify custody orders of deployed parents. If a custodial parent is deployed, and a motion for change of custody is filed during the time a parent is in active military duty, the court may not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child's placement that existed on the date the parent was called to active military duty. However, the court is authorized to enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child.
According to the statute, when the custodial parent returns from active military duty, the court must reinstate the custody order in effect immediately preceding that period of active military duty. Moreover, the Court may not hold the parent’s absence on account of active military duty against the parent in a best interest of the child determination in deciding a motion for change of custody filed by the other parent after the custodial parent returns from active military duty.
Holmes v. Coleman, (Michigan Ct. App. July 18, 2006)
Opinion on the web (last visited July 19, 2006) bgf
The US District Court for the Eastern District of Michigan firmly rejected a petition to enjoin a paternity prosecution on the grounds that requiring fathers to accept responsibility for children violates equal protection. Clearly, the petitioner's request did not sit well with the court:
"According to the pleadings, Dubay commenced a personal relationship with defendant Lauren Wells, dated her, engaged in intimate sexual relations, impregnated her, terminated his relationship, and sued her for bearing his child. If chivalry is not dead, its viability is gravely imperiled by the plaintiff in this case. But chivalry is not the issue here, nor does it provide a basis upon which to decide the legal and policy issues that Dubay seeks to advance through this litigation. Rather, the plaintiff contends that Michigan's paternity statutes are repugnant to the United States Constitution's Due Process and Equal Protection Clauses because he has no say, he argues, in the decision whether to beget and bear a child. Therefore, he insists, he ought not to be saddled with the financial responsibility of the child's support, and he should receive damages from the private and public defendants who are attempting to exact that toll from him. The plaintiff's claims have been rejected by every court that has considered similar matters, and with good reason."
Plaintiff had framed his case as a 1983 civil rights action and, as the court observed, "The fundamental flaw in Dubay's claim is that he fails to see that the State played no role in the conception or birth of the child in this case, or in the decisions that resulted in the birth of the child."
Dubay v. Wells, U.S. Dist. Ct. E.D. Mich. (July 17, 2006)
Opinion on the web (last visited July 19, 2006) bgf
Case Law Development: Juvenile's Right of Privacy Not Infringed by Required Drug Testing While in Group Home
The California Court of Appeals answers the following questions regarding rights of juveniles, "Do the statutory provisions broadly empowering the juvenile court to make any reasonable order for the care and supervision of a dependent child include the authority to order a child who acknowledges a prior drug-abuse problem to submit to a drug test if the staff of the group home in which she resides believes she is under the influence of drugs? If the juvenile court is statutorily authorized to order a dependent child to submit to drug testing, is that authority consistent with the child’s fundamental right of privacy protected by article 1, section 1 of the California Constitution? We conclude the answer to both questions is yes."
In re Carment M., Coming Under the Juvenile Court Law, 2006 Cal. App. LEXIS 1086 (July 18, 2006)Opinion on the web (last visited July 19, 2006 bgf)
Monday, July 17, 2006
"A teenage girl reunited with her father last year after a decade in foster care is suing Los Angeles County for taking so long to bring them together. County supervisors had said in September that the reunion of Melinda Smith, now 17, and father Thomas Marion Smith was the result of a "groundbreaking effort," and congratulated county agencies for locating the father. But the lawsuit alleges that the Department of Children and Family Services failed to use "due diligence" to locate Thomas Smith. It claims the agency never notified Smith, who had continued making child support payments, that his daughter was in foster care and never gave him a chance to claim her." AP, FindLaw, Link to Article (last visited 7-17-06 NVS)
"A forensic psychiatrist is to testify for a third day at the second murder trial of Andrea Yates, who is accused of drowning her children in the bathtub. Dr. Park Dietz, testifying for the prosecution during its rebuttal phase, resumes the stand Monday. He evaluated Yates more than four months after she drowned her five children in the bathtub in 2001, and he has told jurors that she knew killing them was wrong. Dietz testified Thursday and Friday, when court was in session half a day." AP,CNN.com Link to Article (last visited 6-17-06 NVS)
"A woman who called 911 to get "the cutest cop I've seen" sent back to her home got a date all right -- a court date.The same sheriff's deputy arrested her on charges of misuse of the emergency dispatch system." AP, CNN.com Link to Article (last visited 6-17-06 NVS)
"The New York state Advisory Committee on Judicial Ethics has ruled that it is permissible for judges to pack a pistol beneath their robes while on the bench. "From an ethical standpoint, there is no prohibition ... barring you from carrying a firearm while performing your duties on the bench," the committee said in a decision published in this week's New York Law Journal. Judges would have to comply with existing laws to bring a gun into court." CNN.com Link to Article (last visited 6-17-06 NVS)
"A group of Indian villagers presided over the marriage of two donkeys at an ancient Hindu temple in southern India in a bid to promote world peace. The wedding took place Sunday evening in the Sri Thirumoola Natha Swamy Temple in Tamil Nadu state, the United News of India news agency reported Monday." AFP, Yahoo News, Link to Article (last visited 6-17-06 NVS)
Supporters of banning gay marriage won two major court rulings Friday, with a federal appeals court reinstating Nebraska's voter-approved ban on same-sex marriage and the Tennessee Supreme Court ruling that voters should have a say on the issue.
The United States Court of Appeals for the Eighth Circuit held that Nebraska's ban on same-sex marriage, which prohibits the state from recognizing same-sex domestic partnerships as well, does not violate Equal Protection nor does in constitute an illegal bill of attainder. The petitioners, relying heavily on the Supreme Court's analysis in Romer v. Evans, argued that strict scrutiny was required because the constitutional amendment put same-sex couples in the position of being unable to access the political process to secure rights to a broad range of government benefits and rights. The court of appeals rejected this novel argument and, finding that same-sex couples are not a protected class, applied rational basis scrutiny to the constitutional amendment. At that level of scrutiny, the court found the amendment rationally related to the state's interest in steering procreation into marriage. The court likewise rejected the bill of attainder argument, finding that the amendment did not rise to the level of punishment required to be a bill of attainder.
Citizens for Equal Protection v. Bruning, (July 14, 2006)(opinion on web)(last visited July 16, 2006 bgf)
The Tennessee case was an effort by the ACLU to enjoin the Secretary of State from placing a proposed amendment to the Tennessee Constitution on the November 7, 2006 ballot for a ratification vote. The Supreme Court affirmed the lower court’s decision dismissing the complaint on the basis that the ACLU lacked standing to bring the suit.
ACLU v. Darnell, (July 12, 2006)(opinion on web)(last visited July 16, 2006 bgf)
Sunday, July 16, 2006
The Rochester Democrat and Chronicle reports that a transgender Rochester man must provide medical evidence to justify his request to change his first name from Sarah to Evan, a local judge has ruled. Allowing Sarah Rockefeller to change his name without evidence "would be fraught with danger of deception and confusion and contrary to the public interest," State Supreme Court Justice William P. Polito said in his ruling. Instead, the judge suggested that the plaintiff simply use the name Evan without a formal name change. (read the entire article)(last visited July 16, 2006) bgf