January 21, 2006
Utah Legislation Requiring Women to be Informed About Pain of Unborn Children Moves to Floor Debate
Legislation in Utah that would require parental consent before a teen can have an abortion and would inform women considering abortions about the pain unborn children feel have both been cleared for debate on the State House floor. (The Utah Bill as introduced can be found in our January 14, 2006 Blog on this topic.) Source: Steven Ertelt LifeNews.com Editor. LifeNews.com. The complete story may be found here (last visited January 21, 2003, reo).
Virginia Legislators Reject Birth-Certificate Rules that Would Prevent Same-Sex Couples From Adopting Children
Virginia Legislators rejected a bill on Thursday that would have prevented gay and lesbian couples who adopt Virginia-born children to be listed on state-issued birth certificates. The bill would have allowed only married couples or an unmarried individual to be listed as parents on birth certificates issued to adoptive parents. The bill was apparently in response to a ruling in April by the Virginia Supreme Court that the state must issue birth certificates to same-sex couples who adopt children born in Virginia. Source: Tammie Smith, Times-Dispatch, Timesdispatch.com. The complete story may be found here (last visited January 21, 2003, reo). Download here a copy of the Virginia Supreme Court opinion that generated this legislation.pdf
Maryland Lower Court Says Ban on Gay Marriage Violates State Constitution
A Baltimore Maryland lower court judge agreed with nine gay couples Friday, that Maryland's law defining marriage as being only between a man and a woman violates that State's Constitution. The order was stayed pending an appeal, which was immediately filed by the state attorney general's office. In addition to the Maryland litigation, courts in Washington, New York, New Jersey, Connecticut and California are considering the same question. At least 13 states have adopted constitutional amendments outlawing gay marriage, 11 of which came in the form of ballot referendums during the 2004 election. Source: Kelly Brewington, Baltimore Sun, baltimoresun.com. The complete story may be found here (last visited January 21, 2003, reo). Download here a copy of the Maryland_lower court decision.pdf
Arizona Considering Bill Requiring Physicians to Notify Women Seeking Abortion that Fetus Can Feel Pain
On Wednesday, the Arizona House Health Committee voted 5-1 to approve a bill (HB 2254) that would require physicians to notify women who are seeking an abortion that after 20 weeks' gestation their fetus can feel pain. Physicians are exempted from the requirement if a women's life were in danger or if there were a serious risk of significant and irreversible damage of major bodily functions. If the legislation becomes law, a physician who refuses to comply with the regulation would have his or her license suspended or revoked. Source: kaisernetwork.org. The complete story may be found here (last visited January 21, 2003, reo). A copy of HB 2254 can be found here (last visited January 21, 2006 reo).
January 20, 2006
Case Law Development: United States Supreme Court Remands New Hampshire Parental Notification Statute for Narrower Remedy
In a narrow, unanimous decision authored by Justice Sandra Day O'Connor, the United States Supreme Court found that portions of a New Hampshire statute that required parental notification of abortion were "intolerably vague" but did not affirm the court of appeals decision declaring the entire statute unconstitutional. Instead the court remanded for consideration of narrower remedies.
The New Hampshire statute, like that in about 40 other states, required a physician to give at least 48 hours written notice to the parent or guardian of a minor seeking an abortion. Minors could petition judges to authorize the abortion without parental notification and no notice would be required for an abortion necessary to prevent the minor’s death if there is insufficient
time to provide notice. Unlike most states, however, the Act did not explicitly permit a physician to perform an abortion in a medical emergency without parental notification.
Justice O'Connor emphasizes in her opinion that "We do not revisit our abortion precedents today, but rather address a question of remedy." Thus, she presents the legal conclusions regarding the statute as well-settled principals:
First, "States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy" and second, "a State may not restrict access to abortions that are necessary, in appropriate medical judgment, for preservation of the life or health of the mother.” (internal quotations omitted) Given that the statute provides no exception for medical emergencies and finding that the judicial bypass procedure was no substitute, the question for the court was whether these constitutional infirmities required voiding the entire statute.
The court distinguished its prior holding in Stenberg, where Nebraska's partial birth abortion law was struck fora similar failure to protect the health of the mother, on the basis that "the parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn." Justice O'Connor suggests that courts should prefer "to enjoin only the unconstitutional applications of a statute while leaving other applications in force" or to "sever its problematic portions while leaving the remainder intact" if that is consistent with legislative intent and does not require the court to engage in its own re-drafting of the statute. Accordingly, the court remanded to the trial court for a consideration of whether legislative intent would allow declaratory and injunctive remedies short of declaring the entire statute void.
Ayotte v. Planned Parenthood, 2006 U.S. LEXIS 912 (January 18, 2006)
Opinion available on the web (last visited January 19, 2006 bgf)
For news reports on the decision, see "Supreme Court sidesteps abortion issue" by Linda Greenhouse of the New York Times (reprinted in the St. Louis Post Dispatch) or the articles based on the Associated Press reports on upcoming state legislative battles on abortion (as reported here at CNN.com).
Case Law Development: North Carolina Court of Appeals Reverses Trial Court's Use of Tender Years Presumption
Some presumptions die hard. Despite the significant findings of fact weighing against giving custody to Mother, a North Carolina trial court based its split physical custody award of the 28-month-old child on its "personal notice of the natural bond that develops between infants and a mother, especially when the mother breast-feeds the infant" and the fact that "the Court believes and finds that by the very nature of the age and gender of the minor child (28-month-old female), as it relates to the [Father], that placement with the [Father] would be a negative aspect in the weighing of the positives and negatives."
The Court of Appeals reversed, chastizing the lower court that "It has been the law for 30 years that a court may not base a custody decision, as between parents, on any presumption in favor of either the mother or the father, but instead must focus only on the best interests of the child as determined from the actual evidence before the court."
Greer v. Greer, 2006 N.C. App. LEXIS 183 (January 17, 2006 bgf)
Case Law Development: Colorado Supreme Court Addresses Mens Rea Requirement in Stalking Cases
The Colorado Supreme Court disagreed with the court of appeals' interpretation of the mens rea requirement for the state harassment by stalking statute. The court of appeals had overturned the defendant's conviction in part because the trial court had not instructed the jury that a defendant must be aware that his or her conduct is practically certain to cause a reasonable person to suffer serious emotional distress. However, the Supreme Court concluded that the "knowingly" language in the statute does require that a defendant know his conduct could or did cause emotional distress but only must "knowingly" engage in the actions constituting harassment under the statute (following, contacting, etc.) The Supreme Court concluded that "the legislature recognized that the stalker in pursuing the victim may be oblivious to objective reality; he or she may not be aware that the repeated acts engaged in would cause a reasonable person to suffer severe emotional distress" and so limited the mens rea to the actions of the harassement only, with the requirement of proof of actual emotional distress being an independent element of the crime. The Supreme Court rejected defendant's claim that the statute is unconstitutionally vague or overbroad. The court concluded that "a reasonable person can understand what conduct is proscribed and the statute does not criminalize harmless acts or those protected by the First Amendment."
People v. Cross, 2006 Colo. LEXIS 30 (January 17, 2006)
Opinion available on the web (last visited January 19, 2006 bgf)
January 19, 2006
Marriage Linked to Money
"Marrying for money, it turns out, works. A study by an Ohio State University researcher shows that a person who marries - and stays married - accumulates nearly twice as much personal wealth as a person who is single or divorced. And for those who divorce, it's a bit more expensive than giving up half of everything they own. They lose, on average, three-fourths of their personal net worth.
"Getting married for a few years and then getting divorced is clearly not the path to financial independence," said Jay Zagorsky, whose study divided married couples' assets so they could be compared with singles." By Associated Press, azcentral.com Link to Article (last visited 1-18-06 NVS)
"According to late news, celebrity couple Whitney Huston and Bobby Brown decided to end their marriage. Close friends of the couple claim that Bobby plans to file for divorce as soon as possible. The New York Daily News reports that singer Bobby Brown was spotted flirting with a group of ladies backstage at a concert." By Spotlightingnews Link to Article (last visited 1-18-06 NVS)
"Eminem’s granny thinks the rapper is making a huge mistake remarrying Kim Mathers, saying Mathers has brainwashed him. “Boy, has he made a big mistake,” Betty Kresin said, according to ContactMusic.com. “No pre-nup or nothing.” Perhaps Em should listen to his grandmother."By Sonia Mansfield, The Examiner Link to Article (last visited 1-18-06 NVS)
"David Hasselhoff's divorce is set to turn nasty. It was revealed, the 'Knight Rider' star filed for divorce from actress Pamela Bach, after 16 years of marriage, earlier this week. Bach has now reportedly filed papers seeking custody of their two daughters and is seeking spousal and child support, despite Hasselhoff stating the couple had reached an "amicable settlement"." By femalefirst.co.uk Link to Article (last visited 1-18-06 NVS)
"Cloaked inside dark SUVs with black-draped windows, a two-man paparazzi team begins "covert ops" on a recent Sunday morning. They're staking out the home of actress Kim Basinger, who they plan to follow to church. If all goes well, Basinger will be with 10-year-old Ireland - the daughter she and ex Alec Baldwin are viciously feuding over in court - and the "paps" will clandestinely snap gossip-grist mother-and-child as they walk from the church parking lot to pray. "We're 90 percent CIA and 10 percent photographer," says Arnold Cousart, 33, armed with a long-zoom-lensed Canon and clad in khaki sun hat, shades and a brown T-shirt declaring "Assume Nothing." His cell rings with tips from pals and paid spies, and a two-way radio cord dangles from his ear like a Secret Service agent. Cousart and Sergio Huapaya, his 32-year-old tattooed paparazzi partner, are ex-gang members and among the 200 celebrity photogs relentlessly prowling streets here to capture stars' everyday lives." By Norma Meyer, Mercedsearch.com Link to Article (last visited 1-18-06 NVS)
January 18, 2006
New Hampshire Proposal Would Put Teeth into Visitation Enforcement
A proposed bill in the New Hampshire Legislature is aimed at putting teeth into visitation enforcement. If passed, the bill would make it easier for a parent denied visitation to obtain a remedy. It provides for an expedited court hearing for motions to enforce parenting plans and if the judge determines there is no legitimate reason for blocking visitation, the Department of Health and Human Services would be notified of a possible case of child abuse and neglect. Source: Commentary by Kathleen Parker, Lowellsun.com. Please click here for the complete story (last visited January 18, 2006, reo). Download New_Hamshire_HB_1585_(2006)as_introduced..doc (reo).
Case Law Development: Massachusetts Court Rules Life Support for 11-Year-Old Beating Victim May Be Removed
The Massachusetts Supreme Judicial Court ruled yesterday that life-support systems for an 11-year-old girl can be removed, saying that the child, who has been in a vegetative state since an alleged beating by her adoptive mother and stepfather, should be able to “'pass away with dignity.” It rejected an appeal by her stepfather, who is alleged to have played a role in her beating and who faces potential murder charges if she dies. Source: Patricia Wen, Boston.com News. Please click here for the complete story (last visited January 18, 2006, reo). Download here in WORD the slip opinion by the Massachusetts Supreme Judicial Court, SJC-09629, filed January 17, 2006, Care_and_Protection_of_Sharlene_2006.doc
Chechen Leader Says Polygamy May Solve Diminishing Population
On Monday, Ramzan Kadyrov, Chechnya's acting Prime Minister, said that the number of women in Chechnya was 9 to 18 per cent higher than the number of men, and argued that polygamy was a practical way of replenishing the republic's war-ravaged population. Human rights group Memorial estimates that 75,000 Russian and Chechen civilians, mostly men, have died since 1994 when Chechnya became embroiled in a brutal on-off war of secession from Russia. Source: The New Zealand Herald, nzherald.co.nz. Please click here for the complete story (last visited January 18, 2006, reo).
Illinois Community Limits Size of Abortion-Protest Signs
The Granite City, Illinois council approved an ordinance Tuesday that restricts the size of protest signs during its major parades to nothing larger than a piece of letter-sized paper. The ordinance was apparently passed as a result of a November 19 scuffle involving protestors who displayed large photographs of aborted fetuses along the route of the city’s annual Christmas parade. Source: WQAD-TV, WQAD.com. Please click here for the complete story (last visited January 18, 2006, reo).
Italian Women March for Abortion Rights
Between 60,000 and 150,000 Italian women marched in Milan, Italy on Saturday, demanding that the Italian government maintain its liberal abortion laws. The women charged that the government was working with theVatican in an attempt to reverse a 1978 law, which makes abortion legal in Italy during the first trimester. Source: Feminist Daily News Wire, feminist.org. Please click here for the complete story (last visited January 18, 2006, reo).
January 17, 2006
Case Law Development: Non-Relatives Have Standing in Child Abuse and Neglect Actions
The Supreme Court of South Carolina has held that a Family Court errs in refusing a request for an evidentiary hearing, instead basing its permanency planning order on the file and pleadings, the arguments of counsel, and the GAL’s report. The case involved an infant who had been placed with a non-relative custodian. The custodian had cared for the child for nearly two years and sought to adopt the child. However, the family court ruled that custodian lacked standing to participate in the permanency hearing as she was not related to child, refused her request for an evidentiary hearing, and dismissed Custodian from the action. The Supreme Court noted that non-relatives could indeed have standing in abuse and neglect actions: "While Custodian may not stand on precisely the same footing as a parent or close relative, it is apparent from a reading of various statutes touching on the issue that the Legislature contemplated nonrelatives often may play a crucial and important role in the life and well-being of a child, particularly when parents or relatives turn away from the child.... A nonrelative such as Custodian who has a real, material, or substantial interest in the long-term custody and potential adoption of a child has standing to participate in a family court proceeding addressing those issues. Accordingly, we reject the notion Custodian somehow lacks standing to appear in this case or argue on behalf of Child simply because she is not related to Child by blood or marriage, or because she failed to comply with a treatment and placement plan"
Despite the trial court's error, the court affirmed the order of the family court because Custodian had appealed only the issue of the evidentiary hearing and had failed to appeal the ruling which dismissed her from the case.
Morris v. Monceaux, 2006 S.C. LEXIS 7 (January 9, 2006)
Opinion available on the web (last viisted January 17, 2006 bgf)
Thanks to law firm of Stevens and MacPhail's South Carolina Family Law Blog for highlighting this case.
Case Law Development: Delaware Supreme Court Affirms Trial Court's 2-2-3 Parenting Plan and Transfer of Medical Decision-making to Third Party
The Delaware Supreme Court affirms a trial court’s denial of Mother’s motion to modify custody in a case involving a 2-2-3 parenting plan and a transfer of medical decision-making to a health institution.
The trial court's original order, entered upon the parent's stipulation, provided that the couple's two children (7 and 9 years old) would spend alternate two days, plus the entire weekend with each parent, e.g., Monday and Tuesday with Father, Wednesday and Thursday with Mother, Friday through Sunday with Father, the following Monday and Tuesday with Mother, etc. The original order also required all family members to attend counseling. After counseling failed to improve parent's ability to communicate and cooperate with one another and continued disagreements over issues relating to the children's healthcare and extracurricular activities, mother moved for sole legal custody. Father answered, requesting the same.
The shared custody arrangement originally entered by the trial court is increasing appearing in parenting plans across the country as it gives exactly equal parenting time for both parents. However, as the testimony of three different experts in this case proved, the constant shifting of this custody arrangement is stressful for the children. Nonetheless, the trial court maintained the 2-2-3 schedule, but provided some greater clarity by ordering that Mother would always have Mondays and Tuesday and Father always would have Wednesdays and Thursdays, with parents alternating the weekend. The court gave great weight to the children’s wishes to continue the shared custody arrangement, and to the testimony of experts that the children were “thriving under the current shared arrangement,” so that the Supreme Court found no error.
The court also affirmed the trial court’s resolution of the primary issue over which the parents had been disagreeing: the health of their son. The parents could not agree on whether their son had asthma nor whether he should receive medication for a diagnosed behavioral disorder. Rather than grant medical decision-making custody to either parent, the trial court ordered that legal medical custody should remain joint, and that “all disputes over treatment will be submitted to the Alfred I. DuPont Institute doctors, whose recommendations shall be followed.” The Supreme Court upheld the trial court’s resolution: “Given the depth and intensity of the parents' disagreements, and the parents' inconsistent treatment of Hunter's medical issues, the Family Court's solution was orderly and logical….” The Supreme Court found no error in the trial court’s refusal to hear additional witnesses from Mother designed to prove her view of the child’s medical condition, given that the trial court had removed medical decision-making from either parent.
Poe v. Poe, 2006 Del. LEXIS 9 (January 10, 2006)
Opinion is available on the web (last visited January 17, 2006 bgf)
Case Law Development: Spouse's Death Deprives Family Court of Jurisdiction to Enter Divorce Decree
With the disposition of considerable property in the balance, The Hawaii Court of Appeals holds that Husband's death, which occurred after the court filed its decision and order but before the signing and filing of the decree of absolute divorce, terminated the Family Court's jurisdiction. The trial court had found that a Decree of Absolute Divorce is a mere formality to its Decision and Order filed before Husband's death and denied Wife's motion to dismiss the divorce and granted Husband's daughter's motion for a divorce decree
Both parties argued precedent from various states on the issue, but the Court of Appeals concluded that Hawaii statutes, construed in light of their legislative history disfavoring "hasty divorces", the court's discretion in fixing a date for a divorce decree is "limited to a one month period commencing the date of the entry of the decree. Consequently, it does not authorize courts to order the divorce decree to be effective prior to the date of its entry."
Camp v. Camp, 2006 Haw. App. LEXIS 3 (January 12, 2006)
Opinion on the web (last visited January 17, 2006 bgf)
Case Law Development: Factors in Transmutation of Inherited Funds into Marital Property
The Florida Court of Appeals decides whether Husband's inherited funds, which he brought into the short-term marriage and used to open a joint money-market account with Wife, thereby became marital property. The court concluded that the funds retained their separate character and reversed the trial court's division of the assets as marital property.
The case doesn't break any new ground, but does provide an excellent example for students of the multi-factor analysis of transmutation. This would be a good case for building a problem for class, as the court nicely marches through the factors in determining whether funds acquired prior to the marriage become marital assets and the prior Florida cases on the subject. The court analyzed
- title (the funds were placed in a joint money market account - for convenience only the court concluded);
- commingling of marital and nonmarital funds (the money market account had only the inherited funds and the fact that wife could transfer funds from the account to the joint checking account did not amount to commingling);
- control of the funds (while wife had authority to transfer funds from the money market, the court held this was not dispositive),
- the length of the marriage (that the marriage was less than two years was clearly a persuasive factor in this case), and
- the parties’ intent concerning the marital or nonmarital status of the funds (because the funds were not commingled, Wife had the burden to prove Husband's intent to make a gift of half of the inherited funds, which the court held she had failed to do).
Grieco v. Grieco, (January 13, 2006)
Opinion on the web at http://www.2dca.org/opinion/january%2013,%202006/2d04-3444.pdf (last visited January 16, 2006 bgf)
Case Law Development: Standard of Proof in International Child Abduction Cases
The United States Court of Appeals for the Fourth Circuit reversed a trial court's dismissal of a petition under the International Child Abduction Remedies Act because the trial court had applied the wrong standard of proof. Father had sued Mother under the act, seeking the return of his children to the United Kingdom. He alleged that Mother had violated the Hague Convention on Civil Aspects of Child Abduction by taking the couple’s children to live in the United States. The district court concluded that Father had failed to prove "beyond a reasonable doubt" that the children were "habitually resident" in the United Kingdom at the time of their removal. The court of appeals reversed and remanded for additional proceedings, holding that the court need only establish the children’s habitual residence by a preponderance of the evidence.
Humphrey v. Humphrey, 2006 U.S. App. LEXIS 522 (January 10, 2006)
Opinion available on the web at http://pacer.ca4.uscourts.gov/opinion.pdf/041036.P.pdf (last visited January 13, 2006 bgf)
January 16, 2006
According the Child Welfare League of America:
- "More than 1 million parents were incarcerated in prisons or local jails in 2000, affecting 2.3 million children.
- From 1991 to 2000, the number of mothers in prison grew by 87%, while the number of incarcerated fathers increased by 61%.
- Most fathers (57%) and mothers (54%) in state prisons say they have never had a visit from their children."
By Child Welfare League of America Link to Website (last visited 1-15-06 NVS)