Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, July 25, 2006

Case Law Development: Washington Supreme Court Upholds Ban on Same-Sex Marriage

The long-awaited decision of the Washington State Supreme Court appeared today and the court split 5-4, upholding the state's 1998 Defense of Marriage Act, which limits marriage to opposite-sex couples.  The court reversed the lower courts, which had held that the act violated the state constitution and its Equal Rights Amendment.

The majority opinion, authored by Judge Barbara Madsen, begins by noting that, while constitutional precedent and deference to the legislature dictated the outcome, "We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington." 

The court examined the history and nature of Washington state's constitutional privileges and immunities clause and its relationship with the state's equal rights amendment, but in the final analysis, concluded that the privileges and immunities analysis in this context should mirror that of the federal constitution.  The court applied a rationale basis test to the privileges and immunities clause analysis and concluded that for both that analysis and for substantive due process "DOMA is constitutional because the legislature was entitledto believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents." The court rejected the privacy analysis Finally, the majority concluded that "DOMA does not violate the state constitution’s equal rights amendment because that provision prohibits laws that render benefits to or restrict or deny rights of one sex. DOMA treats both sexes the same; neither a man nor a woman may marry a person of the same sex."

The majority opinion spends a number of words on criticisms of the analysis and rhetoric of the dissenting opinions as improper to the judicial role, particularly the opinion of Judge Mary Fairhurst, which saw the case as an example of blatant bigotry.  At the same time expressed considerable support for the political agenda of the plaintiffs.

... The plaintiffs and their amici have clearly demonstrated that many day-to-day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples, unlike married couples who automatically have the advantages and rights provided to them in a myriad of laws and policies.... the plaintiffs expressly requested that this court not consider whether denial of statutory rights and obligations to same-sex couples that apply to married couples violates the state or federal constitution. Thus, our opinion does not address those issues. There may be “more just and humane" ways to further the State’s interests,  but the State has met its burden in demonstrating that DOMA meets the minimum scrutiny required by the constitution. However, given the clear hardship faced by same sex couples evidenced in this lawsuit, the legislature may want to reexamine the impact of the marriage laws on all citizens of this state."

Anderson v. King County, (July 26, 2006)
Opinions on the web:
Concurrence by Alexander, CJ
Concurrence by J.M. Johnson, J.
Dissent by Bridge, J
Dissent by Chambers, J
Dissent by Fairhurst

For reports on local reactions, see the article by Tracy Johnson and Phuong Cat Le of the Seattle Post Intelligencer   or commentary on the decision in the context of Washington's "meretricious relationship" doctrine, which provides considerable protection for unmarried cohabitants, see Jeanne Hannah's Updates in Michigan Family Law blog. For background on the plaintiffs and the suit, see the ACLU press release on the case and the LAMBDA website.

(all last visited July 26, 2006 bgf)

July 25, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Sunday, July 23, 2006

Case Law Development: Child Support First-Family Preference Does Not Violate Equal Protection

The Kentucky child support statutes, like those of most states, provides a preference for prior-born children when calculating child support.  In this case of first impression, the Kentucky Court of Appeals holds that this preference does not violate equal protection. 

We agree with [other state] courts that the state's interest in seeing that prior-born children are provided for is a rational basis for the provision at issue in KRS 403.212(2)(g)(4). Clearly, the intention of the statute is not to deny financial resources to later-born children, but rather to make sure prior-born children are being supported. While in some cases application of the statute may result in later-born children having access to fewer financial resources than prior-born children, "[e]qual protection does not require there to be a perfect fit between means and ends."

Kimbrough v. Commonwealth ex rel Shantrece Laniece Belmar, 2006 Ky. App. LEXIS 226 (July 21, 2006)
Opinion on the web (last visited July 24, 2006 bgf)

July 23, 2006 | Permalink | Comments (0) | TrackBack (0)

Case Law Development: North Dakota Supreme Court Addresses Extension of Protective Orders

In its second review growing out of a domestic violence protective order, the Supreme Court of North Dakota holds that:

While the statute governing issuance of domestic violence protection orders speaks of "amending" an existing protection order, that term permits the court to extend the term of an order. 

An order can be extended even after it expires if the request for the extension is filed before the expiration of the order.

A stipulated order can be extended beyond its agreed upon time limit.

The court also concluded that the trial court did not err in taking judicial notice of evidence of domestic violence from the couple's divorce action, and further noted that even if this were error, it would be harmless as the court had ample independent evidence of the danger to petitioner to support the protective order and its extension.

Frisk v. Frisk, 2006 ND 165 (July 21, 2006)
Opinion on web (last visited July 23, 2006 bgf)

July 23, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Nunc Pro Tunc Orders Cannot Change Date of Divorce If No Error

Husband and Wife filed a joint petition for divorce on September 2nd.  On September 3rd, Wife remarried.  The judge in the divorce action signed the divorce decree about three weeks later.  Ten years later, when Wife filed for divorce from her second husband, he discovered that she was still legally married to her first husband when they wed and counterclaimed for annulment.  Wife then filed a motion to amend the prior divorce decree to reflect at September 2nd divorce date.  In order to legitimatize her second marriage, and relying on the good faith belief of all the parties involved at the time that the divorce was effective, the trial court granted the motion. 

On appeal, the Supreme Court of Nevada reversed, holding that "Because a nunc pro tunc order can only reflect that which was actually done, we conclude that the district court cannot use a nunc pro tunc order to change the date of a divorce decree to a date before the date when the matter was adjudicated."  The court commented that, "Although the divorce petition ... was uncontested and jointly filed, the divorce decree is nevertheless a decision adjudicating the parties' rights and liabilities.... The district court's decision to approve a petition for divorce is not equivalent to the exercise of a clerical duty that the court may later amend at its discretion."

McClintock v. McClintock, 122 Nev. Adv. Rep. 73 (July 20, 2006)
Opinion on web (last visited July 23, 2006 bgf)

July 23, 2006 in Divorce (grounds) | Permalink | Comments (2) | TrackBack (0)

Case Law Development: Patient's Identification of Assailant Not Admissible Hearsay under Medical Diagnosis Exception

The Minnesota Supreme Court has been at the front lines recently in deciding cases regarding admissibility of hearsay statements in child abuse and domestic violence actions.  The court now holds that a trial court erred in adopting a categorical rule of admissibility for statements of identification by domestic abuse victims under the medical diagnosis exception, as there was insufficient evidence that identification of the perpetrator is relevant to medical diagnosis:

We are not able to determine, by judicial notice or general knowledge, whether the notion that the identification of the perpetrator of domestic violence is reasonably pertinent to medical diagnosis and treatment is generally accepted in the medical profession. To this extent, the medical exception to the hearsay rules depends, in the first instance, on the views of the medical profession, not on the views of the courts. We can speculate that the medical profession may have evolved to recognize the importance of treating the whole person of a victim of domestic violence, including the emotional and psychological effects of past violence and the potential of future violence. But we can do no more than speculate. The record before us contains no medical expert testimony on the scope of the customary treatment of a victim of domestic violence or whether the identity of the domestic abuser is reasonably pertinent to that treatment.... We conclude that the categorical rule of admissibility that the state urges us to adopt is too broad. It ignores variables such as the seriousness of the assault, the frequency of the abuse against the victim, the type of domestic relationship, or the presence or absence of emotional or psychological harm. These variables can affect the pertinence of a statement of identification to medical diagnosis or treatment.

However, the court was careful to limit its holding:

We do not foreclose the possibility that we might in the future adopt a properly limited categorical rule of admissibility under the medical exception to hearsay for statements of identification by victims of domestic violence. Nothing in this decision should be interpreted as preventing or discouraging hospitals from conducting routine screening for domestic abuse for any or all patients. And we do not suggest that accusations by victims of domestic abuse are unreliable. We only hold that where, as here, there is an insufficient evidentiary foundation to establish that the identity of the person who caused an injury was reasonably pertinent to the medical diagnosis or treatment of that injury, the statement of identity is not admissible under Rule 803(4).

The court found that because the victim's statements were admissible under the residual exception, the district court's error in was harmless.

State v. Robinson, 2006 Minn. LEXIS 439 (July 20, 2006)
Opinion on the web (last visited July 23, 2006 bgf)

July 23, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Juvenile Court Has No Jurisdiction over Missing Child

After a Mother had four other children removed due to severe child abuse (including the death of one of her children), Mother gave birth to a fifth child and reported that she had given the child to his father, whose whereabouts she did not knwo.  The state brought proceedings to bring this fifth child under court jurisdiction, denied Mother family reunification services, identified long-term foster care as a permanent plan, and ordered permanent placement services for the child if he were ever found.  On appeal, the California Court of Appeals reversed, holding that in the absence of any evidence regarding the child's whereabouts, the state had failed to establish jurisdiction.  The court suggested that the trial court should have simply waited until the child was found to hold the jurisdicitonal and dispositional hearings.  The court remanded with instructions that the juvenile court maintain the protective custody warrant issued for Baby Boy M. in full force and effect and set the case for periodic review hearings.

In re Baby Boy M, (Cal. Ct. App. July 19, 2006)
Opinion on web (Last visited July 23, 2006)

July 23, 2006 in Child Abuse | Permalink | Comments (1) | TrackBack (0)

Case Law Development: Child Support May be Shared by Psychological and Biological Fathers

The New Jersey Court of Appeals reviewed a trial court's decision to order child support for a 15-year-old girl from both "her biological father, who was unknown to her until these proceedings, and the man she called Dad for almost ten years." In reviewing the appeal by the biological father, the court held that the biological father was properly ordered to submit to genetic testing, as daughter's relationship with her psychological father had already deteriorated and she sought to determine her biological father. The court further held that equitable estoppel did not make the psychological father solely responsible for the daughter's support, since biological parents have the primary support obligation absent exceptional circumstances. Here, the court found that while biological father had the primary support obligation, it was proper for him to share the obligation with the psychological father because the biological father could not pay the entire amount of support.

J.R. v. L.R., 2006 N.J. Super. LEXIS 198 (July 17, 2006)
Opinion on the web (last visited July 23, 2006 bgf)

July 23, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Laches Defense Unavailable in Child Support Actions

California Family Code section 4502(c) applies retroactively and bars a parent from relying on laches to defend an action to enforce a child support order.   The California Supreme Court holds that the terms of the Family Code itself dictate retroactive application. Moreover, an exception to retroactive application of laws that create new duties does not apply to the laches defense as "Assertion of a laches defense seeks an equitable act of grace to relieve the burden of an existing obligation. Elimination of the defense does not create a new duty."

Moreover, the court rejected the due process challenge to retroactive application, holding that this application advances a compelling state interest.  "Unquestionably, the availability of laches impaired the ability of a parent to collect child support. Eliminating the defense necessarily advances the state’s interest in securing payment of all child support obligations. Moreover, to the extent obligor parents benefit from their efforts to evade support obligations through the use of the defense, section 4502(c) cures this “ rank injustice of the former law.”

In re the Marriage of Fellows, 2006 Cal. LEXIS 8764 (July 20, 2006)
Opinion on the web (last visited July 23, 2006 bgf)

July 23, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)