January 28, 2006
Legislative Development: State of Washington Extends Civil Rights Protection to Gays and Lesbians
The state of Washington passed a civil rights bill on Friday that extends protection to Gays and Lesbians. The measure, which was first introduced in 1977, adds “sexual orientation” to a state law that bans discrimination in housing, employment and insurance, making Washington the 17th state passing a law covering gays and lesbians. It is the seventh to protect transgender people. Source: Rachel La Corte APress Writer, abcnews.go.com. For the complete story, please click here (last visited January 28, 2006, reo).
Will State of Washington Now Approve Gay Marriage?
With the passage of a civil rights bill on Friday that extends protection to gays and lesbians, attention in the state of Washington is now on its Supreme Court where 19 same-sex couples are challenging a state law that bars them from marriage. They are contending that the state's Defense of Marriage Act (DOMA) violates the privileges and immunities clause of the state constitution, which they claim prohibits any law that grants benefits to one group that are not afforded to all. A decision in the case is expected at any time. Source: Lornet Turnbull, Seattle Times, SeattleTimes.nwsouce.com. For the complete story, please click here (last visited January 28, 2006, reo).
Egyptian Court Rules a Positive DNA Test Not Sufficient to Prove Popular Actor is Father of Child
An Egyptian family court judge ruled on Thursday that a positive DNA test was not enough to prove that a popular actor was the father of her baby girl. The court refused the mother’s request that the actor be recognized as the girl’s father, saying that while the test showed he was, the mother could not produce proof that they had had a secret, informal marriage. The paternity suit against the young TV star raised a scandal in Egypt, when the mother went public last year with her intention to bear a child as a single mother and would try to prove that the actor, who has also hosted religious programs directed to youth, was the father of a child now 15 months old. Source: AP, Khaleej Times Online, khaleejtimes.com. For the complete story, please click here (last visited January 28, 2006, reo).
Case Law Development: North Carolina Supreme Court Upholds Alienation of Affection’s Claim – Separation Does Not Trigger Running of Statute of Limitations
The issue in Mccutchen v. Mccutchen was whether the accrual of a cause of action for alienation of affections occurs as a matter of law on or before the date a married couple separates. The North Carolina Supreme Court held that the claim accrues whenever alienation is complete, regardless of the date of separation, and that the determination of when alienation occurs is generally a question of fact for the jury. The lower courts had held that the plaintiff's cause of action for alienation accrued by the date of their separation and was thus barred by the state statute of limitations. The court stated that North Carolina’s public policy, which within reason favors maintenance of the marriage, militates against the application of any procedural rule that forces a spouse to file any action which tends to sever the marital relation before that spouse is really desirous of pursuing such a course.
The record indicated that although the couple separated on 9 September 1998, the husband expressed his desire to return to the marriage multiple times between October 1999 and September 2000 and asked plaintiff not to take legal action during that time. The couple purchased a car together in May 1999, following the husband’s indication that he had broken off his relationship with defendant. Plaintiff and husband also maintained joint finances after their separation. Additionally, they participated in marriage counseling from July 1998 to February 2001. During their last counseling session, husband told plaintiff “he was not heading toward divorce.” In fact, husband did not file for divorce until more than a year after the date he was legally permitted to do so under state law. The slip opinion in McCutchen v. McCutchen, filed January 27, 2006, can be found here (last visited January 27, 2006, reo).
Utah House Approves Bill Requiring Parental Consent before Girl under 18 Can Have Abortion
The Utah House of Representatives approved a bill on Friday that would require a parent's consent before a girl under 18 years old can have an abortion. It also approved legislation that would require doctors to inform women seeking abortions after 20 weeks gestation that their fetuses can feel pain. Both bills now go to the State Senate for debate. Source: Rebecca Walsh, The Salt Lake Tribune, sltrib.com. For the complete story, please click here (last visited January 28, 2006, reo).
January 27, 2006
Legislative Development: Wisconsin Passes Internet Visitation Bill
The Wisconsin Legislature has codified provisions regarding electronic communications for visitation. As summarized by the Wisconsin Legislative Service, "This bill provides that, if the court grants periods of physical placement to both parents, the court may grant to a parent a reasonable amount of electronic communication at reasonable hours during the other parent’s periods of physical placement with the child. Electronic communication is defined as time during which a parent and his or her child communicate by using various types of communication tools, such as the telephone, electronic mail, instant messaging, and video conferencing or other wired or wireless technologies via the Internet. The basis for granting electronic communication is whether it is in the child’s best interest and whether equipment for providing electronic communication is reasonably available to both parents. Electronic communication may be used only to supplement, and not as a substitute or replacement for, the physical placement that a parent has with the child. The bill provides that a parenting plan that a party files with the court before a pretrial conference when legal custody or physical placement is contested must include any electronic communication a parent is requesting and must indicate whether equipment for providing electronic communication is reasonably available to both parents. The bill also provides that, if a parent is proposing to move with the child and the other parent objects to the move, the court may not use the availability of electronic communication as a factor in support of a modification of physical placement or a refusal to prohibit the parent from moving with the child."
To read more about it, see the entire summary of the bill from the Wisconsin Legislative Service.(last visited January 26, 2006 bgf)
Thanks to the Iowa Family Law Blog for highlighting this development.
Case Law Development: Florida Court of Appeals Denies Enforcement of Co-Parenting Agreement
The Florida Court of Appeals found no basis in law for upholding a parenting agreement between cohabitants. This action involved two women who, after they had lived together for eight years, entered into carefully drafted co-parenting agreements in regards to a child Mother would conceive through sperm donation. Two years later the couple executed another agreement regarding a second child born to Mother. Mother and her Partner agreed that Partner would have parental rights and obligations with respect to the children. When the children were five and seven years old, Mother moved to another city and did not give Partner access to the children. Partner filed a complaint against Mother for breach of contract, breach of fiduciary duty, residency and child support, and declaratory judgment. The trial court dismissed the action, noting that Partner and the children's guardian ad litem "made a compelling argument that it is in the best interests of the children to enforce the co-parenting agreements" but concluding that Florida law gave Partner no right to relief. The Florida Court of Appeals affirmed since, absent evidence of detriment to the child, courts have no authority to grant custody or to compel visitation by a person who is not a natural parent, and agreements providing for visitation by a non-parent are unenforceable.
Wakeman v. Dixon, 2006 Fla. App. LEXIS 659 (January 24, 2006)
Opinion available on the web (last visited January 25, 2006 bgf)
Case Law Development: Transfer of Property to Second Husband Requires Forfeiting $75,000 to First Husband
Wife's divorce decree contained a settlement agreement providing her ex-husband with an additional $75,000 judgment if, during his lifetime, she voluntarily or involuntarily sold, transferred, gifted, conveyed, or foreclosed upon the marital property granted to her. After wife remarried, she conveyed the property to herself and her new husband in joint tenancy. Ex-husband then borught this action to collect the $ 75,000 due under the divorce decree.
The district court held that the provision was a valid condition precedent in a contract, and not a void conditional judgment, and that the condition had been satisfied by the warranty deed. It therefore overruled Wife's motion to quash the garnishment, determined that $ 75,000 plus accrued interest from the time of the conveyance was due and owing in full, and directed the garnishee to pay into the court.
The Nebraska Supreme Court affirmed. While noting that ordinarily conditional judgments are void, the court stated that this rule does not extend to equity or to equitable relief. "Rather, where it is necessary and equitable to do so, a court of equitable jurisdiction may enter a conditional judgment and such judgment will not be deemed void simply by virtue of its conditional nature." Finding that the "$ 75,000 provision at issue in the instant case was the product of negotiations and agreement by the parties, and was found by the court to be part of a fair and reasonable settlement agreement" the court concluded that there was no basis for finding the judgment based on that agreement void. Further the court found the agreement unambiguous and that the transfer fulfilled the condition in the agreement.
Strunk v. Chromy-Strunk, 270 Neb. 917, 2006 Neb. LEXIS 11 (January 20, 2006)
Opinion available on the web (last visited January 25, 2006 bgf)
Case Law Development: Prenatal Drug Exposure by Father Basis for Terminating Parental Rights
The Idaho Supreme Court affirmed termination of a father's parental rights based on abandonment in a case in which Father, a "chronic methamphetamine addict" had "endangered his unborn child by encouraging Baby Doe's mother to use drugs with [him] up to one month before his daughter's birth." The magistrate concluded that these actions "showed no regard whatsoever for the health and well-being of his unborn daughter" and the Supreme Court agreed. Despite Father's declaration that having a child had changed his life and he vowed to get straight and that the court could not conclude he had abandoned a child before he had even had a chance to parent the child, the court found that he failed to bond with their newborn in the three months of supervised visitation he was given immediately after the child's birth and up until he was incarcerated for drug violations and that it was in the child's best interest that Father's rights be terminated.
Casi Found., Inc. v. Doe (In re Doe), 2006 Ida. LEXIS 3 (January 24, 2006)
Opinion available on the web (last visited January 25, 2006 bgf)
Case Law Development: Attorney Advice to Violate Divorce Decree Results in Suspension
In another blow against hardball litigation tactics in divorce actions, a divorce attorney was given a two-year suspension for counseling Husband not to comply with the part of the divorce decree requiring that transfer certain documents and information to his former wife within 30 days. Rather the attorney had drafted deeds transferring the property to others and then, after her client was in contempt, drafted a deed transferring the property to wife, even though at that point her client no longer owned the property.
The Supreme Court of Nebraska, in affirming the recommendation of discipline, concluded "it is apparent that [Attorney] assisted her client, Ronnie, in an attempt to frustrate his divorce decree and that when that attempt failed, she engaged in a prolonged series of misleading transactions intended to extricate herself and Ronnie from the consequences of her actions. Not only was her conduct deceitful and prejudicial to the administration of justice, but it was a poor discharge of her ethical responsibility to Ronnie, who landed in jail as a result of [her] counsel." The court concluded that the attorneys' conduct involved dishonesty, fraud, deceit, or misrepresentation; that she counseled and assisted her client in conduct she knew to be illegal or fraudulent; and that she engaged in conduct prejudicial to the administration of justice.
State ex rel. Counsel for Discipline v. Horneber, 270 Neb. 951; 2006 Neb. LEXIS 13 (January 20, 2006)
Opinion available on the web (last visited January 25, 2006 bgf)
January 26, 2006
The Elizabeth Cady Stanton Pregnant and Parenting Student Services Act of 2005
"The roles of men and women are changing. Men are learning to be at home parents and women continue to try being superwoman and juggle family with work. As of late though, younger women have been juggling family and work with another aspect, school. The Elizabeth Cady Stanton Pregnant and Parenting Student Services Act of 2005 helps women attending school keep children close while finishing their education. The Elizabeth Cady Stanton Pregnant and Parenting Student Services Act is a proposed bill that would offer college institutions grant money to provide additional services to college parents." By Laura Burke, The Guardian Online Link to Article (last visited 1-25-06 NVS)
Marijuana and Morning Sickness
"A new Canadian study suggests smoking marijuana while pregnant is an effective way to combat morning sickness, though researchers note the findings are far from conclusive. Almost all of the B.C. women surveyed at the University of Victoria and University of British Columbia said smoking marijuana helped curb the nausea of pregnancy." By Tom Blackwell, National Post Link to Article (last visited 1-25-06 NVS)
More Couples Cohabit
"First comes love, then comes ... living together? With a majority of married couples living together before they say their vows, according to University of Pittsburgh sociologist Sambriddhi Kharel, the notion of a husband carrying his wife over the threshold of their new house has gone the way of powder-blue tuxes. Now, couples routinely live together, or co-habitate, in "trial" periods, which mark the new step between dating and marriage. . . .
Nationally, an estimated 12 million people, more than 15,000 of which live in Pittsburgh, have made the same decision, according to the 2004 U.S. Census Bureau American Community Survey. And for those baby boomers who think they broke all the rules, the census also shows the number of unmarried couples living together increased tenfold between 1960 and 2000." By Rochelle Hentges, Pittsburgh Trib p.m. Link to Article (last visited 1-25-06 NVS)
Child Protection Reforms
"New York City announced reforms this week following the death of a 7-year-old girl allegedly killed by her stepfather. Some experts are voicing concerns about the city's emphasis on keeping families together. Cindy Rodriguez of member station WNYC reports." By Cindy Rodriguez, National Public Radio Listen to the Program (last visted 1-26-05 NVS)
January 25, 2006
Legislative Development: Virginia Legislators Place Proposal to Ban Gay Marriage on November Ballot
Final approval was given by the Virginia Legislature today (Wednesday) on a proposed constitutional amendment that would ban Gay marriage in that state. The 28-11 vote in the State Senate cleared the way for the proposed amendment to be placed on the November ballot. If approved, Virginia will join 18 other states that already have constitutional amendments banning Gay marriage. Source: Bob Lewis, AP, Washingtonpost.com. For the complete story, please click here (last visited January 25, 2006, reo). Download Virginia_State_Senate_Bill_of_January_24_2006_No. 526, by clicking here (reo).doc
Russia, U.S. Officials Break Up Illegal Child Adoption Ring
Russian and American authorities have broken up a network that illegally gathered confidential information on children and sold it to adoption agencies. According to Russian authorities, the group was effectively engaged in trafficking in children. The number of Russian adoptions has dropped from 14,000 to about 7,000 annually since the early 1990s, while the number of foreign adoptions rose from 1,400 to 9,000. U.S. families account for half of those. Source: KYIVPost.com. For more information on this story, please click here (last visited January 25, 2006, reo).
United Kingdom Parents Have No Right To Know if Children Under 16 Are Advised On Abortion
A United Kingdom parent of five children lost her legal fight Monday for a parent's right to know if girls under 16 are being advised on abortion. Judge Mr. Justice Silber, sitting in London, ruled that parents had no right to know unless the child decided otherwise. He said to force a girl to tell her parents “may lead her to make a decision that she later regrets or seek the assistance of an unofficial abortionist”. Source: DailyRecord.co.uk. For more information on this story, please click here (last visited January 25, 2006, reo).
Debate on Gay Marriage Begins In Idaho
For a third time in three sessions the Idaho Legislature will debate whether voters should decide whether to ban gay marriages. The proposal has failed to pass out of the state legislative assembly on the previous two occasions. Source: Thanh Tan, dbci2-TV, bbcitv.com. For more information on this story, please click here (last visited January 25, 2006, reo).
Grandmother Granted Visitation by Missouri Judge of Child Cut from Daughter’s Womb
A grandmother who found her pregnant daughter dead, her womb slashed open and the baby gone, has been given the right to spend more time with the child by a Missouri judge. Under the four-page visitation plan the grandmother will be able to visit the child one full weekend each month, on various holidays and on extra days in the summer. However, she has been ordered to not discuss any of the events or circumstances concerning the death and demise of the child’s natural mother with the child. That decision is left up to the child’s father. Prosecutors are seeking the death penalty against the woman who is accused of strangling the mother with a rope and using a kitchen knife to perform a crude Caesarean section. Source: The Kansas City Star, kansascity.com. For more information on this story, please click here (last visited January 25, 2006, reo).
January 24, 2006
Case Law Development: California Court of Appeals Holds Laws Sealing Financial Records in Divorce Actions Unconstitutional
The California Court of Appeals has held unconstitutional a section of the Family Code that requires a court, upon the request of a party to a divorce proceeding, to seal any pleading that lists and provides the location or identifying information about the financial assets and liabilities of the parties. The court found the provision violates the First Amendment, which provides a right of access to court records in divorce proceedings. The court noted that there may be instances in which the privacy interests of divorcing parties may override the First Amendment right of access, but the statute was not narrowly tailored to serve those interests and less restrictive means were available. Because the statute places an undue burden on the First Amendment right of public access to court records, the court found it unconstitutional on its face.
Burkle v. Burkle, 2006 Cal. App. LEXIS 51 (January 20, 2006)
Opinion available on the web (last visited January 22, 2006 bgf)
(See also the December 30, 2005 Family Law Prof post on a similar decision by the New Hampshire Supreme Court)