Thursday, September 14, 2006
Case Law Development: California Domestic Partners must Register their Partnership to Benefit from Domestic Partner Act - No Putative Spouse Analogies Available
The California Court of Appeals reviewed a number of issues that arose in the context of an individual seeking to dissolve a domestic partnership who had not registered that partnership with the state. The court affirmed the trial court's dismissal of the petition for dissolution of a domestic partnership and found that other claims arising out of the relationship must be brought in a separate civil action.
The couple in this action acted as domestic partners and twice registered as domestic partners with the City and County of San Francisco before the effective date of the California Domestic Partner Act. The 2003 amendments to that acct provided that "Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses."
However, the couple here had never attempted to file the necessary declaration of domestic partnership with the Secretary of State pursuant to that statute. "Thus, when appellant's dissolution petition was filed, there was no valid domestic partnership to dissolve. Compliance with the provisions for formation of a valid domestic partnership is mandatory for two individuals seeking to obtain legal recognition of their union and receive the benefits afforded by the Domestic Partner Act in California. ....As with the provisions that govern entry into a valid marriage, without satisfaction of specified statutory requirements, no discretion exists to recognize a lawful domestic partnership."
While the court generally agreed with the petitioner that the Domestic Partner Act would be given retroactive application, it disagreed that plaintiff would be able to prevail under that theory because, "She essentially wants to receive the benefits of the amendments to the domestic partnership laws, but avoid the registration requirements and termination provisions of those same amendments."
Finally, the court rejected plaintiff's argument that she should be allowed to proceed with the dissolution action as a "putative" domestic partner.
We conclude that the putative spouse doctrine does not save appellant's dissolution action. The Domestic Partner Act seeks to create "substantial legal equality between domestic partners and spouses," but nothing in the statutory scheme includes within the enumerated rights granted to domestic partners any form of putative spouse recognition.
The court emphasized that "Despite the most recent amendments to the domestic partnership laws, domestic partners are not in all respects treated the same as spouses. While the Domestic Partner Act expanded the rights and responsibilities of registered domestic partners, "the Legislature has not created a 'marriage' by another name or granted domestic partners a status equivalent to married spouses. In fact, domestic partners do not receive a number of marital rights and benefits." The court went on to list the many benefits and responsibilities that are available to married couples that do not apply for domestic partners.
The court concluded that any right the plaintiff wished to assert under Marvin v. Marvin must be brought in a civil action and could not be brought in family court.
Velez v. Smith, 2006 Cal. App. LEXIS 1375 (September 12, 2006)
Opinion on web (last visited September 13, 2006 bgf)
Case Law Development: US District Court Upholds Required Newborn Medical Screening Tests Against "Right to Parent" Constitutional Challenge
The United States District Court for the District of Nebraska addressed an issue of the clash between parental religious views and protection of children's health in a case they framed in this way:
Loving parents want to delay the state-mandated testing of their newly born infants for metabolic diseases because of their sincere religious beliefs and because of their equally sincere and related concern for the health of their children. Just as committed to the well-being of newborns, the State of Nebraska refuses to accommodate the family. Nebraska fervently believes that such an accommodation would harm children.
The parents, who followed teachings of Scientology requiring a "silent birth" - insulating a child from pain for the first seven days - sought to delay having their newborn's blood drawn to conduct tests for metabolic disorders. Nebraska is one of the few states that do not allow an exemption for testing based upon religious grounds. While the district court judge granted a TRO that provided the couple the relief they requested, the possibility of future families facing the same issue led the court to consider the constitutional challenges to the Nebraska statute requiring newborn testing.
The plaintiffs challenged the testing on 1st, 4th and 14th amendment grounds. The court explored fully the plaintiff's argument that, when first amendment claims are coupled with 14th amendment substantive due process claims, the court should apply a strict scrutiny standard. The court rejected that reasoning and applied a rational basis test, concluding that the statute was rationally related to the legitimate government interest in protecting the health of children.
The court rejected the plaintiff's 14th amendment claim that the statute interfered with their fundamental right to marry in one paragraph, concluding:
the precedents of the Supreme Court recognize that the right of a parent to parent and the right of a child to safety are of equal value; that "strict scrutiny" does not apply; and that the statute is rationally related to the legitimate governmental objective of protecting children from death or serious injury.
Spiering v. Heineman, 2006 U.S. Dist. LEXIS 65046 (D. Neb. Sept. 12, 2006)
Wednesday, September 13, 2006
The upcoming 2007 American Association of Law Schools Annual Meeting will have several sessions of interest to family law professors:
Friday, January 5, 2007 10:15 a.m. - 12:15 p.m.
Emerging Issues in Assisted Conception: Advances and Confusion in Family Law
Joint Program of the Association of American Law Schools and the American Society for Reproductive Medicine
- Moderator: Judith F. Daar, Whittier Law School
- Speakers: Marcelle I. Cedars, M.D., Professor, Department of Obstetrics, Gynecology & Reproductive Sciences, University of California,San Francisco, San Francisco, California
- Janet L. Dolgin, Hofstra University School of Law
- John A. Robertson, The University of Texas School of Law
Thursday January 4, 2007 Section on Family and Juvenile Law
Hot Topics in Family and Juvenile Law
- Moderator: June Rose Carbone, Santa Clara University School of Law
- The New Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act: Bridging the Divide Between the Pragmatists and the Idealists by Barbara Ann Atwood, The University of Arizona James E. Rogers College of Law;
- Still Partners? Examining the Consequences of Post-Separation and Post-Divorce Parenting by Theresa Glennon, Temple University James E. Beasley School of Law;
- Resolving Family Conflicts: Implications of a Paradigm Shift by Jane C. Murphy, University of Baltimore School of Law and Jana B. Singer, University of Maryland School of Law;
- Multi-Tiered Marriage: Ideas and Influences from New York and Louisiana to the International Community by Joel A. Nichols, Pepperdine University School of Law
- Business Meeting at the Program Conclusion.
Friday Januaryy 5 8:30 - 10:15 a.m.
Mediation and the Elderly
Section on Aging and the Law
- Moderator: Susan N. Gary, University of Oregon School of Law
- Speakers: Carol Bensinger Liebman, Columbia University School of Law
- Lela Porter Love, Yeshiva University Benjamin N. Cardozo School of Law
- Kate Mewhinney, Wake Forest University School of Law
- Mary F. Radford, Georgia State University College of Law
- Ellen Waldman, Thomas Jefferson School of Law
Looking ahead, June 20-22, 2007 the Workshop on Family Law: Bridging the Gap Between Social Science and Law will be held in Vancouver, British Columbia.
See you there! BGF
In order of appearance, some family law conferences that are coming up include:
- The American Bar Association Family Law Section will be holding its fall CLE conference October 25 - 28, 2006 at the Eldorado Hotel in Santa Fe, New Mexico. Plenary Sessions include: Efficient Divorce Practice in the 21st Century: Using Financial Advisors With Any Budget; Phoenix Rising: Rebirth of a Family Law Practice; and The Art of Persuasion.
- The Association of Family and Conciliation Courts will hold a Symposia on Child Custody Evaluation and on Parent Education and Access on October 19-21 and 22-23, 2006. Both will be held in Atlanta Georgia.
- The National Association of Counsel for Children will hold its 29th National Children's Law Conference - The Specialized Practice of Juvenile Law: Model Practice in Model Offices at
Seelbach Hilton, Louisville, KY on October 12-15, 2006
- The AFCC 44th Annual Conference will be held May 30-June 2, 2007 in Washington, DC (see the call for papers)
- Think global: the International Society of Family Law will be holding its 13th World Conference in Vienna, Austria on 22 - 26 July 2008 (See the call for papers)
If you know of other national conferences of interest to family law professors, send me the information for posting. BGF
This past weekend, family law faculty and mental health professionals gathered in Connecticut to begin work on a series of curriculum modules to help fill the gaps in family law education identified by the Family Law Education Reform project (see post from October 27, 2005 for more information on that report). The workshop was co-sponsored by the Association of Family and Conciliation Courts and Hofstra University. The first set of curriculum modules will cover working with clients; alternative dispute resolution in family law; child development/family systems; and working with experts. Each module will be developed by an interdisciplinary team of family law faculty and other professionals with expertise in the field.
Carolina Academic Press (CAP) is beginning a series of comparative law texts called the “Contextual Approach Series” (CAS) and is looking for U.S. law professors in a variety of subject areas to serve as lead authors for entries in the series.
The goal of the CAS is to create a series of interesting, student-friendly, self-contained, accessible comparative law books that—using co-authors from the U.S. and two other countries—clearly and concisely explain how law works in practice around the world in different subject areas. The books will be paperbound and roughly 200 pages.
As the title of the series suggests, each book will be based on a set of case or problem facts raising prototypical, universal legal issues in the particular subject area. This contextual approach is intended to bring comparative law to life and make it digestible and understandable to law students by giving them a foundation to attach the law to. The three co-authors will explore and analyze issues raised by the problem facts from the perspective of their respective legal systems in side-by-side country-specific sections.
The U.S. author will serve as the lead author and will enlist, with the editor’s help, the two non-U.S. authors. The U.S. author has primary responsibility for supervising, editing, and integrating the contributions of the non-U.S. authors. This will require learning the relevant law of the two non-U.S. countries. In selecting countries for study, one goal is to choose legal systems that are representative of major world regions, legal traditions or both.
Prospective authors should possess the following attributes: (1) expertise in the relevant subject matter from a U.S. perspective; (2) excellent writing and composition skills; (3) dependability and reliability; (4) an eye for detail in consistency of organizational structure, style, formatting, and citation style; and (5) the time and resources to pursue the project to completion on deadline (roughly 18 months from signing of contract).
A lack of experience or background in comparative law is not a bar if you possess the above qualifications and an interest in studying and learning about other legal systems. The non-U.S. co-authors are expected to provide the primary expertise regarding foreign law. I
All subjects are open to consideration, although we are particularly interested early on in first-year courses and core upper-level courses. If you have an interest in becoming an author in this series, please send a preliminary inquiry to Professor Andrew McClurg at email@example.com that includes: (1) the subject area you would be interested in writing about; (2) a c.v.; and (3) any early ideas you might have regarding a set of problem facts and candidates for the two non-U.S. countries (and co-authors in those countries).
Tuesday, September 12, 2006
"With polls showing that Wisconsin could become the first state in the nation where voters reject a proposed amendment banning same-sex marriage Focus on the Family, one of the country's most anti-gay organizations, has entered that battleground. The proposed amendment to the state constitution would bar same-sex marriage, civil unions and possibly be used to deny partner benefits. The Colorado Springs-based FOF has filed papers with the state Elections Board last week to create a referendum committee. The filing will allow it to use the millions of dollars it collects nationally in the fight in Wisconsin." Bu 365Gay.com Newscenter Staff Link to Article (last visited 9-11-06 NVS)
"A woman who learned six weeks before her wedding that her fiance was cheating on her is turning her would-be reception into a charity benefit."I'm really just trying to turn it around and make something positive out of it," said Kyle Paxman."AP, boston.com news Link to Article (last visited 9-1-06 NVS)
"A fairy story ended behind bars for a Japanese couple Monday, when they were jailed for staging an elaborate fake royal wedding to defraud guests. Yasuyuki Kitano and Harumi Sakamoto, both in their 40s, invited hundreds of guests, including Japanese celebrities, to a wedding reception in 2003, saying that Kitano was a member of a defunct branch of the imperial family. Guests at Japanese weddings traditionally bring with them gifts of at least 30,000 yen ($260) in cash." Reuters, Yahoo News Link to Article (last visited 9-11-06 NVS)