July 29, 2006
Papers to be Presented at Annual AALS Meeting of Family Law Section
The AALS Section on Family and Juvenile Law will meet at the AALS Annual Conference on Thursday, January 4, 2007, from 10:30 a.m. to 12:15 p.m. The session will feature presentations on “Hot Topics in Juvenile and Family Law.” Panel moderator is June Rose Carbone, Prof. & Assoc. Dean, Fac. Prof’l Dev., Santa Clara University School of Law (and The Edward A. Smith / Missouri Chair in Law, the Constitution and Society at University of Missouri-Kansas City School of Law, beginning in spring, 2007). Papers to be presented include:
- The New Uniform Representation of Children In abuse, Neglect, and Custody Proceedings Act: Bridging the Divide Between the Pragmatists and the Idealists – Barbara Atwood, Mary Anne Richey Professor, Arizona
- Still Partners? Examining the Consequences of Post-Separation and Post-Divorce Parenting - Theresa Glennon, Professor, Temple
- Resolving Family Conflicts: Implications of a Paradigm Shift – Jane Murphy, Professor, Baltimore, and Jana Singer, Professor, Maryland
- Multi-Tiered Marriage: Ideas and Influences from New York and Louisiana to the International Community – Joel Nichols, Assistant Professor, Pepperdine
Conference on Problem-Solving Courts
The Family Law & Social Policy Center of Syracuse University College of Law is having a one-day conference on The Impact of Problem-Solving Courts: Are They a Fair and Effective Response to Social Problems Affecting Families and Children? on Friday, October 20. Judge Len Edwards will be the keynote speaker.
Britain's High Court Favors Biological Mother in Lesbian Couple's Custody Battle
Britain's highest court has decided a child custody dispute between two lesbian former partners by ruling that the biological mother takes precedence. The two women, identified only as C.G. and C.W., had a 7-year relationship, and during that time C.G. bore two children conceived through artificial insemination. After a protracted legal battle, C.W. won an order from an appeals court for shared custody.
Read the story in the Guardian (last visited July 29, 2006)bgf
Celebrity Marriages and Divorces
For those of us who include celebrity divorces and marriages as case studies in our family law classes, here are some of the latest possibilities:
Pamela Anderson will marry Kid Rock in France. And California. And Michigan. And Tennessee. She said her nuptials with the rocker, whose real name is Bob Ritchie, will take place near St. Tropez, France. The former "Baywatch" star said the celebrations will also take her across the United States.
"We had to do Malibu, we've got to do Detroit, and we've got to do Nashville," she said.
Former Beatle Paul McCartney has filed for divorce from his second wife, Heather Mills McCartney, and she will in turn file counter claims in the case, her spokesman said on Saturday.
Prince's wife, Manuela Testolini Nelson, filed the petition to end their five-year union. People
Nasty Divorce Trials
A judge has granted a divorce to NFL star Michael Strahan and his wife Jean, ending a sordid six-week trial that included accusations of infidelity, infertility, domestic violence, hidden bedroom cameras, liposuction and lavish spending. Sports Illustrated.Com
(last visited July 29, 2006 bgf)
No Posthumous Divorce
Common Pleas Judge Carol Hanna refused a request by attorneys for murdered Blairsville dentist Dr. John J. Yelenic Jr. to grant a posthumous divorce. (See our May 23rd posting for more background)
Yelenic, 39, was found murdered in his home April 13, a day before he was to sign paperwork finalizing his divorce.
See the news story by Paul Peirce of the Pittsburgh TRIBUNE-REVIEW (last visited July 29, 2006 bgf)
July 28, 2006
Case Law Development: Michigan Supreme Court Denies Paternity Action to Father Listed on Birth Certificate and Acknowledgment of Paternity
The Michigan Supreme Court has ruled that a man lacked standing to bring a paternity action, even though he was listed as the father on a child's birth certificate and in an affidavit of parentage executed in the hospital and then helped raise the child for more than four years until he and Mother separated. Mother was married to another man when she became pregnant and concealed the pregnancy during the divorce. Michigan law provides standing to bring paternity actions only for children born out of wedlock or for whom a court has determined by clear and convincing evidence that the child is not issue of the marriage. In Mother's default judgment of divorce, the court stated that it appears that “no children were born of this marriage and none are expected.” The Michigan Supreme Court, in a 4-3 decision, held that the plaintiff did not have standing under the Paternity Act "because the default judgment is not clear and convincing evidence that the child was not an issue of the marriage."
The dissenting opinions had strong words for the majority:
In this case, the majority again evidences a rigid adherence to wooden
strictures such as the presumption of legitimacy even where, as here, the purposes
of the presumption are not served. The majority has exhibited a consistent pattern
of ruling against putative fathers who seek to exercise their due process rights with
respect to children they claim as their own. (dissent by Kelly, J.)
In adopting defendant’s position that the divorce judgment was insufficient
to establish that her child was born out of wedlock, the majority renders a default
judgment in this case meaningless; it condones and encourages gamesmanship by
a party to a child custody proceeding; and it allows a party to prevail, in significant
part, because of that party’s own delinquency in failing to participate in an earlier
judicial proceeding. (dissent by Markman, J.)
Barnes v. Jeudevine, 2006 Mich. LEXIS 1460 (July 26, 2006)
Opinion on the web
For news reports including a video interview with the father, see WWMT.com Digital Channel 3 (last visited July 27, 2006 bgf)
Case Law Development: Parent Whose Rights Have Been Terminated May Not Sue For Custody as a Nonparent
The Ohio Supreme Court has held that a natural parent who lost permanent custody of a child does not have standing to file a petition for custody of that child as a nonparent. The mother in this case had her child permanently placed with the state agency in 1997. In 2003, after mother had substantially improved her circumstances and learned that her daughter had not been adopted and had not adjusted well to foster care, sought to restore her parental rights. According to the court, however, a parent whose parental rights with respect to the child have been terminated may not request modification of a termination of parental rights.
In re McBride, 110 Ohio St. 3d 19 (July 19, 2006)
Opinion on the web (last visited July 27, 2006 bgf)
Judge to reconsider granting child custody to registered sex offender
An Oklahoma county judge has been asked to reconsider awarding custody of a woman's two boys to her ex-husband -- a registered sex offender. Associate District Judge Michael DeBerry ruled last month that frequent moves by the boys' mother, Joni May Nelson, showed instability and that the home of the father, Dustin Mitchell Seymour, 'is the more fit and proper custodial placement for the minor children.' Seymour, 27, was charged in August 2004 with three counts of second-degree rape and one count of interfering with an officer. The charges came after Nelson said she found a videotape in his pickup that showed him having sexual intercourse with a 14-year-old girl. Nelson called police and Seymour was arrested. Nelson's motion to reconsider will be heard by DeBerry on Monday. Nelson, 27, also was ordered to pay $237.50 per month in child support. Her attorney, Phillip M. Andre, says DeBerry's ruling apparently went against a state statute that says it should be presumed to not be in the best interest of a child for a sex offender to have guardianship or custody. Seymour and Nelson divorced Oct. 6, 2004. The next month, Seymour married the alleged rape victim in Colorado, according to the marriage license. They now have a child and are living in a camper-trailer until they buy a home, his attorney, Kenneth Farley said.
Read the story from the AP Wire Service at TulsaWorld.com (last visited July 27, 2006 bgf)
Maryland Supreme Court to Hear Challenge to Same-Sex Marriage Ban
Maryland's highest court has agreed to hear a challenge to the ruling by a circuit court judge in January that the state law banning same-sex marriages is unconstitutional. In a brief order dated Wednesday and issued Thursday, the Court of Appeals granted a motion to bypass the Court of Special Appeals and put the case on the docket for arguments in December. That means there will be no action on the politically explosive issue until after the November election. Baltimore Circuit Judge M. Brooke Murdock struck down the law defining marriage as between one man and one woman on Jan. 20 but stayed the effect of her ruling while it was being appealed by the state.
Read the story on NBC4.com (last visited July 27, 2006) bgf
Judge Decides that Parents May Choose Non-traditional Cancer Treatment for Child
In a follow up to our July 13th posting on a Virginia teenager's request to be permitted to use alternative medicine to treat his cancer, a Circuit judge suspended an earlier ruling forcing him to undergo traditional treatment. Attorneys representing the Cherrix family said the eventual outcome of the case could have broad implications for the decision-making powers of parents in Virginia.
Reat the story by Shaun Bishop in the Richmond Times-Dispatch (last visited Jul 27, 2006) bgf
Case Law Development: Incarceration Insufficient Basis for Termination of Parental Rights
The Wisconsin Supreme Court reversed a trial court court's termination of a mother's parental rights holding that the trial court had acted "solely due to Mother's status as an incarcerated person without regard for her actual parenting activities or the condition of her son in violation of Wis. Stat. § 48.415(2) and the mother's substantive due process rights." The 4-2 decision turned on the fact that Mother had been told that a condition of getting her son back would be to find safe and suitable housing within 12 months, which would have been impossible since she was still incarcerated during that time. The court ruled that conditions of return must be tailored to each individual case and that the nature of the parent's conviction and length of sentence can and should be among the considerations for parental unfitness, but not the only factor. Other factors cited include the likelihood that the child will be adopted, the child's age and health, the relationship between the parent and the child, the parent's level of cooperation, and the best interests of the child.
July 26, 2006
Yates Found Not Guilty By Reason of Insanity
"In a dramatic turnaround from her first murder trial, Andrea Yates was found not guilty by reason of insanity Wednesday in the drowning of her children in the bathtub. The 42-year-old woman will be committed to a state mental hospital and held until she is no longer deemed a threat. If she had been convicted of murder, she would have been sentenced to life in prison. Yates stared wide-eyed as the verdict was read, then bowed her head and wept quietly. Her relatives also shed tears, and the children's father, Rusty Yates, muttered, "Wow!" as he, too, cried." By Angela K. Brown, AP, Yahoo News Link to Article (last visited 6-26-06 NVS)
Yates' Jurors Comment
Some jurors in Andrea Yates' capital murder retrial struggled with the wording of the verdict during deliberations, wanting to find her both guilty of drowning her children and insane, the panel foreman said. The jury found her innocent by reason of insanity Wednesday, after nearly 13 hours spent deliberating over three days.
"There were certain of us that would rather it have said 'guilty, but insane,'" jury foreman Todd Frank said after the verdict was announced. "We had discussed that at length as being an affirmative defense, but it still didn't sit well with everyone." By Paul J. Weber, AP, Star-Telegram.com Link to Article (last visited 7-26-06 NVS)
Case Law Development: Collusive Divorce May be Vacated for Fraud
This is just a fascinating case from Oklahoma that's been sitting on my desktop for weeks now. The case involves a request to vacate a divorce decree on the grounds of fraud.
The dissent summarizes the case nicely:
The parties were dealing with a problem common to many middle-class Americans: How do couples preserve their marital assets in the face of a catastrophic illness? Their solution was to obtain a divorce in which Husband received virtually all the marital property, thereby qualifying Wife for government assistance when her progressive illness caused her health to deteriorate to the point that she needed nursing home care. Husband promised to care for her in the home until that time. Only after Husband allegedly breached his promise of care did Wife move to set aside the decree.
The majority found that the "The statutory ground of incompatibility does not permit the court to dissolve a marriage merely because its termination is desired by one or both parties.... Incompatibility must be established "by proof, objective in its character, of causes to which marital disharmony is attributed [and cannot be] bottomed on a mere subterfuge or after-thought [without] a substantial foundation." Thus, the court concluded:
The parties here colluded to misrepresent incompatibility as a ground for divorce (when they actually intended to continue cohabitating) and, in turn, used the sham divorce to deceive public agencies concerning Wife's eligibility for public benefits. It not only offends public policy for parties to obtain a divorce on a concocted ground, but it also offends public policy to use such a divorce for financial gain. Rather than leave the parties where we find them, we believe equity and justice require they be returned to the state of matrimony.
The dissent would have reversed the trial court's judgment vacating the divorce.
Thinking this case couldn't be that unique, I've looked around for other recent cases presenting similar issues but have found none. Indeed, the Oklahoma court relied primarily on precedent dating from the first half of the 1900s. I can't help but think there are plenty of couples out there contemplating divorce though they plan on continuing to live together. This case leads me to revise my lesson plan on divorce to include a discussion of collusive divorce - not as a historical artifact of fault-based divorce - but as a current strategy by couples.
Vandervort v. Vandervort, 2006 OK CIV APP 34 (April 13, 2006) bgf
Part of Suit Challenging DOMA Survives Motion to Dismiss
The United States District Court for the Northern District of Oklahoma has held that at least some of the challenges brought by same-sex couples to the Defense of Marriage Act will survive a motion to dismiss.
The court that none of the couples had standing to challenge Section 2 of the act, which provides that no state be required to give effect to a public act or judicial proceeding of another State "that is treated as a marriage under the laws of such other State" that a lesbian couple who had a civil union in Vermont and also had been married in Canada. Even the couple who had established a civil union in Vermont and were legally married in Canada lacked standing. The court relied heavily on the reasoning of Smelt v. County of Orange, 447 F.3d 673, 683 (9th Cir. 2006) and concluded that they did not have standing to challenge Section 2 of DOMA because a civil union is not a marriage. Their Canadian marriage did not give standing because "the word "State" in Section 2 of DOMA (like use of the word "State" in the Full Faith and Credit Clause) was not intended to include foreign countries but instead was intended only to include states within the United States."
The court did find sufficient evidence of standing for this couple to survive a motion to dismiss in regards to the challenge the definitional section of DOMA. The court rejected the argument that same-sex couples were no more harmed in that their civil union could not be recognized as marriage than would any other legal relationship, such as a business partnership. The court commented: "It seems to ignore common sense and to elevate form over substance to equate these two types of legal relationships for purposes of analyzing the injury suffered as a result of the federal definition of marriage."
The court granted dismissals on the Full Faith and Credit Clause and Privileges and Immunities Clause challenges but found that the challenges to Section 3 based on the Equal Protection Clause and Substantive Due Process Clause are sufficient to survive a motion to dismiss. "The Court concludes that such challenges are more appropriately decided at the summary judgment stage, because they may involve specific factual findings related to the purpose and justifications for the law."
Baldwin v. Oklahoma ex rel. Edmondson, 2006 U.S. Dist. LEXIS 49829 (July 20, 2006) bgf
More than Biological Connection Required for Parent to Inherit from Child?
What is a father? Today, a judge in Hudson County is expected to issue his legal opinion on fatherhood in the case of a Staten Island man trying to claim half of his late daughter's inheritance. The case involves a New Jersey law that divides the estate of someone who dies without a will between the person's parents if there are no children or other descendants. The attorney for the deceased woman's mother believes the judge's ruling will break legal ground in defining and interpreting parental inheritance. The legal case hinges on whether the Staten Island man, Ruben Martinez, should still be considered the woman's legal parent even though he admits in court papers that he was not very involved in his daughter's upbringing and did not pay child support.
Read more of the article by Rudy Larini from New Jersey's Star-Ledger (last visited July 25, 2006 bgf)
July 25, 2006
Seventh International Symposium on Child Custody Evaluations: Great Debates in Child Custody Evaluation
The Association of Family and Conciliation Courts is hosting the Seventh International Symposium on Child Custody Evaluations: Great Debates in Child Custody Evaluation on October 19 - 21, 2006 in Atlanta.
"The development of AFCC's Model Standards of Practice for Child Custody Evaluation has sparked widespread and intense debate about the child custody evaluation process. The 2006 Sumposium will tackle the issues head on and feature three exciting debates:
- Are AFCC's Model Standards a Help or a Hindrance?
- Are Full Child Custody Evaluations a Realistic Option?
- To Recommend or NOt to Recommend? Is that the Question?"
Link to Conference Brochure (last visited 7-24-06 NVS)
Seventh International Congress on Parent Education and Access Programs
The Association of Family and Conciliation Courts is hosting the Seventh International Congress on Parent Education and Access Programs: Parenting After Separation and Divorce: Emerging Issues for Educators on October 22 - 23, 2006 in Atlanta.
"Whether it is new research on child development or advances in technology, effective educational programs for separated and divorcing parents are dynamic and constantly changing. Now is the time to take a fresh look at your program and to learn and network with the leaders in the field. This is a great opportunity to exchange ideas and share perspectives with experienced providers. The conference will help participants examine challenging questions, including:
- Can technology enhance or replace face-to-face educational programs?
- What are the latest research findings about children in separating and divorcing families?
- What can programs offer for nontraditional families?
- How can administrators assure quality?"
Link to Conference Brochure (last visited 7-24-06 NVS)
Man Convicted of Killing Family Seventeen Years Ago
"A jury convicted a man Friday of killing his father, stepmother and two stepsisters 17 years ago inside their church parsonage home so he could attend some high school prom events. The St. Joseph County jury found Jeffrey Pelley, now 34, guilty on four counts of murder after deliberating more than 25 hours since Wednesday. Pelley faces up to 260 years in prison when he is sentenced September 15." CNN.com Link to Article (last visited 7-24-06 NVS)
Mother Seeks Return of Children
"To make the letter look right, Marie needed a computer, so one day in March she walked to a public library. There she composed at the keyboard, but the writing didn’t go well. She had the first of her five children at 13, spent part of her teenage years in a group home and part in the home of her crack-addicted mother and never reached high school. “You know,” she told me later, “the way I sound sometimes doesn’t sound like it’s supposed to.” But she wasn’t leaving that library without the letter she needed. College students were studying nearby, and Marie, who is 29, interrupted one of the girls. To this stranger, she confided her situation. And soon, with the girl’s help, she began again.“To whom it may concern,” she typed, “I am writing to you to appeal for the return of my children.” Marie (I am using her middle name, as well as the middle names of her children, to protect their privacy) lost her kids, all of them boys, to the State of Connecticut more than a year ago." By Daniel Bergner, N.Y. Times Magazine Link to Article (last visited 7-24-06 NVS)