August 25, 2006
Case Law Development: Division of Tribal Income
American Indians who enjoy sizable monthly payments from their tribe's casino profits may have to split the cash in a divorce — even when the former spouse isn't a tribal member, the Minnesota Court of Appeals has ruled. In a decision that may be a first in the nation, the court decided the $84,000 a Prior Lake woman received each month as a Shakopee Mdewakanton Sioux Community member is income, not a gift or an inheritance. Since the money is income, "any such payments received during the tribal member's marriage are marital property subject to division upon dissolution," the court concluded.
Case Law Development: Pennsylvania's Grandparent Visitation Statute Upheld
The Supreme Court of Pennsylvania has issued a thorough analysis of the constitutionality of its grandparent visitation statute, upholding the statute. The opinion proivdes a catalogue of the state court opinions regarding whether a finding of harm to the child is necessary before grandparents can be given visitation, concluding that it would join those states that do not require such a finding. A concurring opinion suggests that the time has come to analyze these cases from a child's rights perspective, providing a description of the historical development of children's rights and how that analysis should be applied in these cases. One justice dissenting, arguing that a showing of harm to the child should be required.
All in all, a fabulous case for summarizing the current state of the law of grandparent visitation and the underlying policies driving the different approaches.
Case Law Development: Credibility and Property Division
An unpublished opinion from the Michigan Court of Appeals provides a good example for students to see how the courts assess credibility and the impact of a determination that a party is attempting to hide assets or otherwise mislead the court.
There were many issues addressed in the case, but one of the most fascinating was the isssue of the court's authority to split Husband's interest in a business. Wife had added husband's business partners as necessary partners in the divorce, alleging that they had conspired with Husband to try to conceal marital assets. Husband claimed that the court was without jurisdiction to split the business (located in Arizona) because it was property of his partners. The court of appeals affirmed the trial court's finding that there was insufficient proof that the partners had any interest in the property.
There was no written agreement evidencing [partner's] ownership interest in
the business. His name was not included on the real estate deed, nor was it ever
included in any bank documents, nor any corporate documents on file with the
Arizona Corporations Commission. His name was never even identified on the
corporate books and records of the company. The transaction was not recorded
anywhere. The (business’) accountant . . . testified that he never met [partner].
There was no indication on [partner's] tax return that he had an ownership
interest in [the business]
Even if there had been partners, the court of appeals noted that the trial court properly refused to
ignore reality when defendant obfuscates his various property holdings through a maze of real or nonexistent entities. Although the trial court determined that plaintiff had not proven that a conspiracy existed, the trial court nonetheless had the authority to determine the extent of defendant's interest in various properties for the purpose of adjudicating a fair and equitable division of marital property.
Similarly, the trial court's determination to divide the income from Husband's sale of a business interest was influenced by the Husband's credibility. Husband claimed that the $28,000 he had received had been spent on marital debts. The court held that the Wife had met her bruden of proving that there was a sale and amounts were owed Husband as a result of the sale. Husband had the burden to prove that the money had been received and spent on marital debts. As he failed in that proof, the trial court treated the income as a marital asset.
To read more about the case, see the blog post and comments by Jeanne Hannah at her Michigan Family Law Blog (thanks Jeanne!)
Birry v. Birry, (August 24, 2006)
Opinion on the web (last visited August 25, 2006 bgf)
Case Law Development: Calculation of Child Support in Joint Custody Arrangements
The Iowa Court of Appeals upheld a trial court's award of child support in a case in which the parties had stipulated to "joint physical placement" and a "joint parenting plan" for their child. Father argued that the child support award treated him as though he were not the custodial parent, when he was a joint custodian according to the agreement. Under Iowa law, the child support obligation of parents who provide "joint physical care" of a child is calculated using the "offset method." "In the offset method each parent should be deemed the noncustodial parent on the guidelines chart for purposes of calculating the support each would owe the other. One child support obligation is offset against the other parent's child support obligation, rather than requiring a monthly exchange of child support payments."
However, the trial court had calculated support as though Mother had custody and Father had visitation. The appellate court that, even though the parties had termed their arrangement "joint custody", they did not in fact have joint physical care as actual overnight time with father was "approximately one-third of nights and an average of approximately one-third of the hours of a year." Thus it was proper to calculate child support as though mother were primary custodian.
In re Marriage of Reeves, 2006 Iowa App. LEXIS 997 (August 23, 2006)
Opinion on web (last visited August 25, 2006 bgf)
August 24, 2006
Child Visitation with Mothers in Prison
"The Tennessee Prison for Women has long recognized the need for mothers and their children to bond while the children are young. Each week, the prison sponsors a weekend visitation program that allows children between the ages of three months and five years (up to their 6th birthday) to spend a weekend with his/her inmate mother/grandmother. Through recent renovations, the Tennessee Prison for Women has established separate quarters away from the general inmate population for the child visitation program. Through the efforts of this program, infant and toddler children of qualifying inmates may be given the opportunity to bond with their incarcerated mothers during approved hours on the weekends.
An approved child visitation will allow only one child per visit, however a total of sixteen children may stay with their mothers in single cell units in the new visitation space dedicated for the program. The child and mother eat their meals in a more relaxed family setting within the unit. There is also space dedicated for activities designed to foster child development. Future plans include an outdoor recreation area that will have playground equipment and picnic tables." Tennessee.Gov, Department of Correction Link to Article (last visited 8-23-06 NVS)
Law Review Article: Supervised Visitation
In Defending Neutrality in Supervised Visitation to Preserve a Crucial Family Court Service, Nat Stern and Karen Oehme discuss the role of neutrality in the operation of supervised visitation centers. They favor neutral enforcement of rules even though enforcement might entail taking action in response to inappropriate parent behavior. Nat Stern and Karen Oehme, Defending Neutrality in Supervised Visitation to Preserve a Crucial Family Court Service, 35 Sw. U. L. Rev. 37 (2005). Link to Article on Westlaw (last visited 8-23-06 NVS)
Visitation Centers Lack Funding
"Many times when a marriage dissolves into shouting matches between parents, the children are caught in the crossfire. For the past three years warring parents have been ordered by judges to exchange their children at three safe sites around Pinellas County: St. Petersburg, Pinellas Park and Clearwater. The parents never see each other to avoid confrontations. But now the nonprofit agency that operates these "visitation centers" says it may have to close the St. Petersburg and Clearwater locations because it did not receive a two-year, $350,000 federal grant. The Justice Department received 95 proposals for $36-million but doled out only $13-million. Community Action Stops Abuse, or CASA, was notified last month it would not receive the grant, which it first won three years ago.
Unless the 29-year-old domestic violence agency can get additional funding, the two sites may have to close at the end of September, said Kris Nowland, CASA's director of youth education and support services. The result: Dozens of children will have to wait longer between parent visits. "We are sending out a plea to all of our supporters," Nowland said. "Parents were waiting up to six months prior to this grant. We're very fearful we'll have to go back to that."" By Melanie Ave, St. Petersburg Times Staff Writer Link to Article (last visted 8-23-06 NVS)
August Edition of AFCC e-Newsletter Available
Check out the August edition of the Association of Family and Conciliation Courts e-Newsletter featuring announcements, important developments, and new research. Link to online AFCC newsletter (last visited 8-24-06 NVS)
August 23, 2006
Teens Rally Supporting Polygamous Families
Calling their lives blessed, more than a dozen children and young adults from polygamist families in Utah spoke at a rally Saturday, calling for a change in state laws and the right to live the life and religion they choose.
Read the story in the New York Times (last visited Aug 21, 2006 bgf)
Anniversary of Welfare Reform Finds Many Mothers Left Behind
Eric Eckholm of the New York Times reports on the 10th anniversary of welfare reform laws and finds that
social workers and researchers are raising concerns about families that have not made the transition and often lead extraordinarily precarious lives. These include mothers who, so beleaguered by personal problems and parenting that they have not been able to keep jobs, continue to need counseling and cash. They also include another large group of poor mothers — one million by some estimates — who are neither working nor receiving benefits.
Need for New Courtroom Generates Proposal to Dismantle Family Court
Bill Murphy of the Houston Chronicle reports that a proposal to build a new $90 million Family Law Center has generated an alternative proposal by Commissioner Steve Radack: eliminate the family court and disperse the docket among the civil courts.
"While the caseloads in family courts are rising, caseloads in the local civil courts have declined enough for them to begin hearing divorce, custody and child support cases, Radack said. "The courts could serve the public better, faster," he said. "It can save millions of dollars a year." Also pushing the idea are critics who view the family courts as clubby fraternities where a lawyer's ties to a judge are more important than rules of procedure and evidence....On the other side are judges and lawyers who support the specialized courts because family judges have expertise in the nuances of family law, domestic violence and child support.
Read the story in the Houston Chronicle (last visited August 21, 2006 bgf)
August 22, 2006
Law Review Article: Same-Sex and Polygamous Marriage
"The political expediency of not associating same-sex marriage with polygamous marriage explains the silence of those at the front of the political fray. It does not fully explain why academic philosophers and legal theorists have maintained a similar silence about the "other" marriage bar. The principle reason appears to be a conviction that same-sex marriages and polygamous marriages are substantially disanalogous. While same-sex marriages challenge the traditional gender structure of marriage, polygamy is more likely to exaggerate the gender hierarchy within marriage and is thus incompatible with a liberal democracy that values women's equality. Same-sex marriage advocates thus routinely dismiss the issue of polygamous marriage as irrelevant to the question of whether the bar to same-sex marriage should be lifted. In particular, they insist that polygamous marriages are sufficiently socially dangerous that extending marriage rights to same-sex couples will not put us on a slippery slope toward recognizing polygamous marriages.
Despite all this, the refusal to regard the marriage bar to polygamy as a significant political issue bears closer scrutiny. In what follows, this Article will be arguing that more careful attention to the historical practice of polygamy strengthens the case for same-sex marriage; and attention to the similarities between the social issues at stake in the antipolygamy campaign and the same-sex marriage campaign can productively complicate our sense of what the fundamental issues are in the same-sex marriage debate. Finally, this Article will suggest that it is not altogether clear that legal recognition of polygamous marriage is incompatible with a liberal, democratic, and egalitarian society. The proper response to same-sex marriage opponents' reductio argument may instead be, "And indeed, why not also polygamy?" Cheshire Calhoun, Who's Afraid of Polygamous Marriage? Lessons For Same-Sex Marriage Advocacy from the History of Polygamy, 42 San Diego L. Rev. 1023 (2005).Link to Article on Westlaw (last visited 8-21-06 NVS)
Law Review Article: Child Brides and Polygamist Marriages in Texas
"The legislature voided certain underage marriages in Texas because of reports "that a polygamist cult in Texas had some parents regularly consenting to marriage of their [fourteen-] and [fifteen-]year-old children." In response, the stated purpose of H.B. 3006 was "to help protect Texas communities and Texas women and children" by regulation of "those activities associated with the practice of bigamy and polygamy." To prevent cult members from perverting Texas marriage laws, the legislature, among other changes, raised the minimum marriage age to sixteen, meaning parents may no longer consent to the marriage of children fifteen years old or younger. The question raised by these legislative changes, which were enacted to prevent an abrogation of the marriage relationship, is whether they are compatible with the public policy favoring marriage in Texas and the constitutionally-protected rights of young Texans and their parents." Rosanne Piatt, Overcorrecting the Purported Problem of Taking Child Brides in Polygamist Marriages: The Texas Legislature Unconstitutionally Voids All Marriages by Texans Younder Than Sixteen and Criminalizes Parental Consent, 37 St. Mary's L. J. 753 (2006).
Link to Article on Westlaw (last visited 6-21-06 NVS)
Film on Polygamy by Indonesian Filmmaker
"Nia Dinata is, without much doubt, Indonesia's most talented new filmmaker: Packed screenings of her latest movie on polygamy at Cannes attest to that. More art house than Hollywood, her success springs from a fearless drive to address issues of the day with poignancy, and touches of humor. In "Love for Share," viewers can also detect something else, an authenticity bred of experience. For Dinata, 36, a movie that showed the behind the scenes anguish of polygamous marriages, most particularly for women, was an obvious thing to do. As more conservative strands of Islam take hold in Indonesia, polygamy is on the rise, flaunted in public by princesses and politicians. Dinata grasped the moment to show what she calls the sadness and denials behind the smiles of wives who say they accept being one of a crowd. When she was 18, just starting her freshman year at college in the United States, she was unexpectedly called home: Her father was taking a second wife." By Jane Perlez, International Herald Tribune Link to Article (last visited 8-21-06 NVS)
Daughters of Polygamists Rally in Support
"Calling their lives blessed, more than a dozen young women and girls from polygamist families in Utah spoke at a rally Saturday, calling for a change in state laws and the right to live their life and religion. "Because of our beliefs, many of our people have been incarcerated and had their basic human rights stripped of them, namely life, liberty and the pursuit of happiness," said a 19-year-old identified only as Tyler. "I didn't come here today to ask for your permission to live my beliefs. I shouldn't have to."
Polygamy is banned in the Utah Constitution and is a felony offense. The rally was unusual because those who practice polygamy typically try to live under the radar.It drew about 250 supporters to City Hall, said Mary Batchelor, co-founder of Principle Voices of Polygamy, which helped organize the event. The youths, ages 10 to 20, belong to various religious sects, as well as families that practice polygamy independent of religious affiliation. They said they spoke voluntarily. They gave only their first names, saying they were protecting the privacy of their parents." AP, CNN.com Link to Article (last visited 8-21-06 NVS)