August 4, 2006
Embryo Selection Pondered
"The Government is pondering over a report suggesting that legal changes be made to enable parents to decide the sex of their progeny through embryo selection. Sex- selection, by analyzing an embryo's genetic make-up, is prohibited in New Zealand, Britain and most of Europe, but not in the States." By Medindia.com Link to Article (last visited 7-3-06 NVS)
Sex With Children a Civil Right?
"A man accused of sexually assaulting nine boys with physical or mental disabilities told a judge that having sex with children is a sacred ritual protected by civil rights laws. Phillip Distasio, who said he is the leader of a church called Arcadian Fields Ministries, represented himself at his pretrial hearing Wednesday. He is charged with 74 counts including rape, pandering obscenity to minors and corrupting another with drugs."I'm a pedophile. I've been a pedophile for 20 years," he said in Cuyahoga County Common Pleas Court Wednesday. "The only reason I'm charged with rape is that no one believes a child can consent to sex. The role of my ministry is to get these cases out of the courtrooms."" AP, FindLaw Link to Article (last visited 7-3-06 NVS)
Polygamist Gets 45 Days
"An Arizona judge has sentenced a polygamist to 45 days in county jail for having sex with a teenager he took as his third wife.The sentence disappointed authorities in Kingman, Arizona, who had hoped a harsher punishment for defendant Kelly Fischer would discourage others in the church from taking teenage wives." By Harriet Ryan, Court TV, CNN.com Link to Article (last visited 6-3-06 NVS)
August 3, 2006
Supreme Court of Canada Requires Disclosure of Increased Income by Child Support Obligors
The Supreme Court stopped short of ordering a duty to disclose salary increases automatically, but the judges signalled that paying parents should do so as a matter of course because children of divorce have a right to a share of an income hike. ''Parents have an obligation to support their children in a manner commensurate with their income and this obligation and the children's right to support exists independently of any statute or court order,'' wrote Justice Michel Bastarache. The unanimous decision, which could affect hundreds of thousands of families, will mean a ''huge change'' in the way the child support business is conducted in Canada, predicted lawyer Deidre Smith.
The Supreme Court of Canada sent a warning to divorced parents on Monday that they better come clean when their income goes up, or they could face sizable retroactive child support bills.
Lesbians Lose Battle in English Courts to Have Canadian Marriage Recognised
A lesbian couple who were married under Canadian law three years ago failed yesterday to have their union declared valid under the law of England and Wales. Sue Wilkinson, 52, and Celia Kitzinger, 49, from North Yorkshire, were married in Vancouver in 2003. In a ringing endorsement of traditional marriage, the senior family judge also dismissed a claim that English law was now incompatible with the couple's human rights. They were granted permission to appeal but ordered to pay £25,000 towards the Government's legal costs...
Continue reading the story by Joshua Rozenberg at
Leader of Southern California Marriage Fraud Scheme Pleads Guilty
A woman accused of running a sophisticated marriage scam that charged foreigners seeking citizenship up to $60,000 for a mate has pleaded guilty on conspiracy and visa fraud charges. Julie Tran, 50, entered the plea Friday and could face up to 15 years in prison and a $500,000 fine when she is scheduled to be sentenced Oct. 30, U.S. Immigration and Customs Enforcement said Monday. Prosecutors said Tran led the fraud ring that targeted Chinese and Vietnamese nationals and has been linked to as many as 75 sham marriages and the filing of more than 100 bogus visa petitions.
Read the story in the
Mercury News (last visited August 1, 2006 bgf)
August 2, 2006
Case Law Development: Massachusetts Supreme Court Denies Relocation of Parent who has Joint Custody of Child
The Massachusetts Supreme Court upholds a trial court's denial of a mother's relocation in a case in which the parents had joint physical and legal custody. Massachusetts provides that children may be removed from the commonwealth only with the consent of both parents or "upon cause shown," meaning a showing that removal is in the children's best interests.
The case is a prime example of the difficulties of relocation cases. Father and Mother shared roughly equal custody of their two children. Both had remarried. Father had moved to New Hampshire, about 17 miles away. "The mother objected privately but had little advance notice of the move and did not file suit to prevent it." Some weeks after father's notice to move, Mother gave notice of her intent to relocate with her new husband, his two children and their newborn, to New Hampshire, where mother's parents live. Father objected and each parent filed for sole custody.
The trial court denied Mother's requested relocation and ruled that the joint custody arrangement should continue. Among the factors the court considered where the special educational needs of the older child, which the judge found would be better served by continuing to attend the private school in Massachusetts, that allegations by the children that they had been abused by one of their stepsiblings weighed against increased time in the mother's household; that uprooting the children would be detrimental to their interests; that the move would cause a reduction of the father's parenting time that would not be in the children's interests; and that there was insufficient evidence of financial imperative to justify the mother's move to Bristol. The court rejected the GAL's recommendation in favor of the relocation.
The Supreme Court of Massachusetts held that the trial court's decision was not an abuse of discretion. The court cited a number of authorities from other states, and a number of law review articles on the subject, along with the ALI Principles. The court observed that:
Where physical custody is shared, the "best interest" calculus pertaining to removal is appreciably different from those situations that involve sole physical custody... Where physical custody is shared, a judge's willingness to elevate one parent's interest in relocating freely with the children is often diminished... No longer is the fortune of simply one custodial parent so tightly interwoven with that of the child; both parents have equal rights and respon-sibilities with respect to the children. The importance to the children of one parent's advantage in relocating outside the Commonwealth is greatly reduced.
Mason v. Coleman, 447 Mass. 177; 850 N.E.2d 513 (Modified Opinion July 27, 2006)
Opinion on web (last visited August 1, 2006 bgf)
Case Law Development: Third-Party Standing to Attack the Validity of Divorce
The Alabama Supreme Court has issued one of many opinions generated by an ex-Husband's suits and appeals regarding his 33-year marriage. Husband and Wife married in 1968. When Wife filed for divorce in 1999, Husband fought and appealed the divorce in Texas (including arguing that their marriage, though licensed and solemnized, was purely ecclesiastical, so that the trial court violated his Free Exercise and Establishment Clause rights under the First Amendment when it asserted jurisdiction over their marriage). Waite v. Waite, 150 S.W.3d 797 (Tex. App. 2004)(web opinion).
This action grows out of Husband's repeated attempts to have Wife's 1960 divorce to her first husband declared void, presumably to then invalidate his own marriage to her. His declaratory judgment actions alleged that she had not been a resident of the state for twelve months preceeding the divorce. In this opinion, the Alabama Supreme Court noted that third parties lack standing to attack a divorce decree unless it is void on its face. The court reviews the caselaw interpreting the requirements for establishing jurisdiction in divorce actions (caselaw developed in an age of migratory divorces) and concludes that, because first husband and Wife had submitted to the court's jurisdiction, Wife need only have alleged and proven domicile for the court to have jurisdiction. Because Wife had alleged and there was evidence to support her allegations that she was a resident of the state at the time of filing the action, the court concluded that the decree was not void on its face. Thus, the court held that Husband did not have standing to bring an independent challenge to the validity of the 1960 divorce decree.
Waite v. Waite, 2006 Ala. LEXIS 186 (July 28, 2006) bgf
Case Law Development: Home State of Children of Military Parents
The Missouri Court of Appeals provides an opinion reversing a default judgment of child custody and child support for lack of jurisdiction under the UCCJA that provides a fairly straightforward problem for students to observe the operation of the UCCJA.
Mother lived in Missouri. She entered the military in 1986 and has lived on military posts for most of the time since, but continued to maintain her domicile in Missouri. Mother's children were born in New York in 1995 and 1996. In 2002, Family visits grandparents in Missouri while Mother is on leave en route to new assignment in Virginia. In 2004, Mother and Father separate. Mother files for and obtains a full order of protection in Virginia against Father. Both continue to live in Virginia. In August of that year, Mother files for divorce in Missouri. Trial court grants a default judgment, granting Mother custody and ordering child support. The court of appeals reverses, on the basis of some fairly well-established principles of jurisdiction:
- UCCJA bases for jurisdiction are in preferential order
- Mothers legal "residency" in Missouri was not a basis for the home state determination, as home state is premised on the physical, not legal, residency of the children.
- Mother's significant connections with the state do not provide an alternative basis for jurisdiction, as the court must consider the children's connection with the state (which must be "equal or stronger than" those to the home state in order to provide an alternate basis for jurisdiction)
- Virginia had clearly not declined jurisdiction, as the issuance of the protective order demonstrated.
Miller v. Sumpter, 2006 Mo. App. LEXIS 1147 (July 31, 2006)
Opinion on the web (last visited August 1, 2006 bgf)
Case Law Development: Court May Consider Even Brief Periods of Incarceration in TPR Actions
The Colorado Supreme Court has held that a trial court did not improperly consider the effect of a parent's criminal conviction and resulting incarceration in a termination of parental rights case.
Colorado law provides that parental incarceration alone, is insufficient for termination of parental rights. However, the Colorado code requires a trial court to consider parental incarceration under two circumstances: "(1) if the parent is confined and not eligible for parole for at least six years after the date was adjudicated dependent or neglected; and (2) if the parent is confined and not eligible for parole for at least thirty-six months after the date a child, who is under the age of six when the petition is filed, is adjudicated dependent or neglected."
The question in this case was whether a court may consider periods of incarceration of less than thirty-six months. The Colorado Supreme Court concluded that "Because the primary and controlling issue in termination proceedings is the determination of what will best serve the interests and welfare of the child, a trial court may consider even a relatively short period of parental incarceration as a factor affecting parental fitness and the needs of a child who has been adjudicated dependent or neglected."
Part of the court's rationale for termination of father's rights in this case was that, while eligible, he had been denied parole because the parole board found him a danger to society. Thus father could not comply with the treatment plan, which was premised on his parole. The case provides an interesting comparison with the recent Wisconsin court case (see July 28th Family Law Prof post) addressing a similar issue.
In the interests of K.D., 2006 Colo. LEXIS 622 (July 31, 2006)
Opinion on the web (last visited August 1, 2006 bgf)
BYU and Catholic University Law Schools Sponsor Conference on Same Sex Marriage
Brigham Young University Law School and The Catholic University of America's law school are co-sponsoring a symposium addressing "What's the Harm? How Legalizing Same-Sex Marriage Harms Children, Families, Marriage and Society" September 15-16, 2006 at Brigham Young Law School. The political and social debate over the legalization of same sex marriage too frequently devolves to acrimonious and unsupported argument. In the debate over possible benefits of same-sex marriage, the potential harms are often overlooked if not considered "inappropriate" to discuss. "What's the harm?" is one of the most common rhetorical reasons given for supporting same-sex marriage. Presentations will be made by national scholars and professionals on the societal, individual, familial, and jurisprudential harm of legitimizing same sex marriage. For more information contact: Andrew Platt firstname.lastname@example.org or check out the conference website.
The topics and presenters include:
Session 1: How Legalizing Same-sex Marriage May Harm the Stability and Integrity of the Basic Social Institution of Marriage
Prof. Daniel Cere- McGill University
Prof. Matthew Holland- Brigham Young University
Dr. Allan Carlson- The Howard Center
Session 2: How Legalizing Same-sex Marriage Harm the Social Interests
in Channeling Safe Sex and Responsible Procreation
Prof. Scott FitzGibbon- Boston College
John Diggs, MD
Prof. Lynn D. Wardle- Brigham Young University
Prof. Richard N. Williams- Brigham Young University
Prof. Ed Gantt- Brigham Young University
Session 3: How Legalizing Same-sex Marriage May Harm the Social Interest in Fostering Optimal Childrearing and Healthy Human Development
Dr. Brenda Destro- Association of Adoption Professionals
Dr. Lili and Chris Anderson
Dr. Dean Byrd- Thrasher Research Fund
Mr. Louis DeSerres- Preserve Marriage
Session 4: How Legalizing Same-sex Marriage May Harm the Social
Interest in Protecting Persons Who Care and Provide for Dependent Family Members
Dr. Peter Wood- The King's College
Prof. Lynne Marie Kohm- Regent University
Adj. Prof. Camille Williams- Brigham Young University
Prof. David Dollahite- Brigham Young University
Session 5: How Legalizing Same-sex Marriage May Harm the Social Interest in Fostering Virtue, Democracy, Safe Education & Religious liberty
p>Prof. Seana Sugrue- Ave Maria University
Prof. Marianne Jennings- Arizona State University
Prof. Charles Russo- University of Dayton
Prof. Robert Destro- Catholic University of America School of Law
Session 6: How Legalizing Same-sex Marriage May Harm the Social Interests in Preserving the Constitutional Foundation and Social Order
Prof. Charles Reid- University of St. Thomas
Prof. Bryce Christensen- Southern Utah University
M. Stud. & former Prof. Monte Stewart- Marriage Law Foundation
August 1, 2006
Scholarships Available for AFCC’s Seventh International Symposium and Congress in Atlanta
"The Association of Family and Conciliation Courts (AFCC) is offering scholarships for two programs at the Sheraton Midtown Atlanta in Atlanta, Georgia. AFCC’s Symposium on Child Custody Evaluations, October 19-21, 2006 and the Congress on Parent Education and Access Programs, October 22-23, 2006 will focus on the latest issues for child custody evaluators, mental health professionals, parent educators, lawyers and others who work with families in conflict.
This year’s Symposium features three exciting plenary debates, four pre-conference institutes and twenty workshops on topics including psychological testing, testifying and cross-examinations, interviewing skills, assessing domestic violence and more.The Congress features sessions on high conflict families, how to keep audiences engaged, non-traditional families and the role of technology in enhancing or replacing face-to-face educational programs.
A limited number of scholarships will be awarded and AFCC must receive all applications by August 15, 2006. The scholarship application, conference brochure, online registration and more can be found on the “AFCC Conferences” page on the AFCC Web site." By AFCC Link to AFCC Webpage (last visited 7-31-06 NVS)
"On a Friday afternoon this month, a jury in this hot, dusty city on the road to the Grand Canyon announced it had reached a verdict in the case of a 39-year-old building contractor accused of the statutory rape of a 16-year-old girl. It was clear from the reporters, lawyers and curious citizens in the first-floor courtroom that the accused, Kelly Fischer, was no ordinary defendant and the charges against him no ordinary statutory rape case. Fischer is a polygamist, and the young woman prosecutors call the victim is his third wife and mother of his child. His trial in Mohave County was the first prosecution in Arizona in decades stemming from plural marriage among the Fundamentalist Latter-day Saints (FLDS), a group that broke with the mainstream Mormon church in 1890 over the practice of polygamy." By Harriet Ryan, Court TV Link to Article (last visited 7-31-06 NVS)
Preacher's Wife Pulls Gun on Husband
"A preacher's wife was arrested after police say she pulled a gun on her husband because she allegedly was upset over text messages he had sent to a member of a church youth group. Tammy Estes surrendered to law officers at the Pentecostal Church of God in Newport after a brief standoff at the church Sunday evening. No one was injured. She was taken to the Jackson County Detention Center. She was expected to be arraigned Monday. Police say a church service had just begun when Estes pulled a gun on her husband, preacher Larry Estes, about 7 p.m. According to congregation members, she was upset over messages Larry Estes allegedly exchanged with a youth group member and she demanded he admit infidelity." Yahoo News Link to Article (last visited 7-31-06 NVS)
July 31, 2006
Case Law Development: Attorneys Fees in Custody Litigation - Alaska's Approach
The Alaska Supreme Court holds that a prevailing party in actions to enforce custody under Alaska's version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) shall be awarded actual reasonable attorney's fees and expenses. Alaska is the only state that has adopted general fee-shifting, allowing partial attorney's fees to the prevailing party as a matter of course in any case. However, the court here noted that the UCCJEA provides for an award of reasonable attorney's fees to a prevailing party, and concluded that "reasonable actual fees are intended rather than reasonable partial fees" (as would be the result under general Alaska court rule).
This case also raised the issue of recovery of attorneys fees by legal services attorneys. The prevailing party here was represented by Alaska Legal Services Corporation. Nonetheless, Alaska courts have been consistent in awarding attorneys fees even if the litigant is not personally responsible for fees to his or her attorney. The court found an argument that petitioner's counsel had violated legal services legal services funding restrictions (which prohibit requests for attorneys fees) to be irrelevant, noting that the remedy for any such violation is with the funder not the court.
Vazquez v. Campbell, 2006 Alas. LEXIS 115 (July 28, 2006) bgf
Case Law Developments: Attorneys Fees
The New York Appellate Division has concluded that a prenuptial agreement precluding either spouse from seeking legal fees from the other in the event of a divorce, while not invalid on its face, is against public policy in this case given the gross disparity in the couple's finances. The court announced that fee waiver provisions should be reviewed on a case-by-case basis.
If, upon such an inquiry, the court determines that enforcement of the provision would preclude the non-monied spouse from carrying on or defending a matrimonial action or proceeding as justice requires, the provision may be held unenforceable. Also relevant to such a determination is the conduct of the parties over the course of the matrimonial action. Such a determination is frequently best made at the conclusion of the action. However, because an attorney's fee is authorized when needed to carry on or defend an action, it may be necessary to make such a determination at an earlier point in the litigation.
Kessler v. Kessler, NY App Div (July 11, 2006)
Opinion on the web (last visited July 30, 2006 bgf)
July 30, 2006
Case Law Development: No Private Cause of Action for Failure to Report Suspected Child Abuse
The Georgia Court of Appeals reversed a trial court's denial of summary judgment to a psychologist, in a claim based on the psychologist's failure to report suspected child abuse. Mother and Father, following their divorce, sought postdivorce parent coordinating and, after Mother made allegations that Father had sexually abused their daughter, the coordinator referred the daughter to the defendant in this case for evaluation and therapy. The child's therapist did not report any suspected sexual abuse and, later, when the child's pediatrician made such a report, the Mother sued the therapist for medical malpractice on the basis of the therapist's failure to comply with Georgia's mandatory reporting statute.
The court held that summary judgment should have been granted to the therapist. Rejecting the cases from other jurisdictions suggesting that a private cause of action based on reporting statutes should be available, the concluded that "there may well be a moral duty to report child abuse, if it is reasonably suspected. The legal duty to report, however, is imposed in Georgia by statute, and ... this statute does not give rise to a private cause of action for damages."
McGarrah v. Posig, 2006 Ga. App. LEXIS 954 (July 28, 2006) bgf
Case Law Development: Father's Consent Necessary to Adopt Child Born to Common Law Marriage
In a case presenting interesting possible intersections between the adoption code and common law marriage doctrine, the Alabama Court of Appeals held that an aunt and uncle seeking to adopt their nephew had failed to prove that they had obtained the consent of the child's father to the adoption. The child had been removed from the parents as an infant. The child's paternal aunt and uncle took custody of the child and obtained a default judgment terminating mother's parental rights. In their adoption action, they argued that father's consent to the adoption was unnecessary because he had failed to timely register in the putative father registry. However, father claimed he and mother were married. The court noted that registration as a putative father is necessary only if a child is born out of wedlock, so that if indeed father was married to mother, his consent to the adoption would be required. In a footnote, the court comments that, because common law marriages in Alabama are co-equal with ceremonial marriages, "if the father and the mother, as the father contends, were married by either means, and the child was born "during the marriage," not only would Alabama's paternity law deem the child to have been born to the father, but Alabama's Adoption Code would also classify the father as a "presumed father" whose consent to a proposed adoption of the child would be necessary."
S.J.S. & J. v. B.R. & S., 2006 Ala. Civ. App. LEXIS 457 (July 28, 2006) bgf
Case Law Development: Fraudulent Inducement Tort as Part of Divorce Action
The Tennessee Court of Appeals upholds a trial court's damages judgment in a divorce action based on Wife's claim of fraudulent inducement. The trial court found that Husband had convinced Wife to loan him over $200,000 of her separate funds by telling her that he expected an inheritance from his great-grandfather's will (a man of substantial wealth), even though he knew that he was not expected to receive the millions of dollars he claimed were to be paid to him. The trial judge found Husband's denial of these representations incredible.
The court of appeals affirmed, noting that husband and wife are in a confidential relationship so that lesser evidence of undue influence is required than in arms-length transactions. The court also rejected Husband's argument that his grandfather's will was a matter of public record and that Wife should have investigated his claim.
Houghland v. Houghland, 2006 Tenn. App. LEXIS 496 (July 26, 2006)
Opinion on the web (last visited July 29, 2006 bgf)
Case Law Development: Splitting Pensions Means Splitting Risk and Reward
The Indiana Court of Appeals provides a concise and well-written opinion on valuation of pensions that I especially like because of the lesson one can impart to students about the importance of learning from precedent when drafting settlement agreements.
Indiana courts have previously held that "absent express language stating otherwise, a settlement agreement dividing a pension plan implicitly contemplates that both parties will share all of the rewards and risks associated with an investment plan." In this case, the divorcing couple entered into an agreement that stated:
wife is awarded one-half of the value in the husband's 401(k) and one-half of the value in the husband's pension plan as of this date and that the Court should enter a Qualified Domestic Relations Order (prepared by wife's attorney) to convey wife's interest in husband's pension and 401(k) plan. This Court retains jurisdiction to amend the Qualified Domestic Relations Order as may become necessary.
As of the date of this agreement, one-half of husband's pension would have been $80,700.64. But the actual division of the pension was considerably delayed, so that at the date of the division of the pension, one-half its value would be $90,711.13. Husband argued that the settlement agreement dictated the prior amount; Wife argued that the language was ambiguous regarding subsequent increases or decreases in value so that the latter sum was the proper allocation in light of prior precedent.
The court agreed with Wife and concluded that "the best interpretation of the provision in question, as gleaned from the words employed in that provision and elsewhere in the Property Settlement, and consistent with [prior case law], is that [Wife] was entitled to an amount equal to one-half of the amount in [Husband's] pension fund as of March 7, 2003, plus any appreciation in value of that amount as of the date the QDRO became effective, or November 24, 2003.
Shorter v. Shorter, 2006 Ind. App. LEXIS 1462 (July 28, 2006)
Opinion on the web (last visited July 29, 2006 bgf)