January 24, 2006
Case Law Development: Allocation of Dependency Tax Exemptions
Just in time for tax preparation season, the Iowa Court of Appeals reverses a trial court's decision modifying a divorce decree to allocate the dependency exemptions to the non-custodial parent. The original decree was silent on the issue of exemptions, but under the state's child support guidelines those exemptions should ordinarily be allocated to the custodial parent (in this case, mother). Father moved to modify the decree and the trial court found that father, as the higher-earning parent, would benefit more from the tax exemptions than would mother.
The court of appeals reversed, finding no equitable reason to deviate from that rule that the custodial parent should receive the tax exemption. A concurring judge would have found that the original decree implicitely addressed the issue given the guidelines and that Father had shown no change in circumstances justifying an amendment.
In re Marriage of Wetherbee, 2006 Iowa App. LEXIS 53 (January 19, 2006)
Opinion available on the web (last visited January 22, 2006 bgf)
Case Law Development: Necessity of Specific Findings When Court Awards Custody to Parent Despite Domestic Violence
While upholding the trial court's custody decision, the Alabama Court of Appeals debated the need for its Supreme Court or legislature to require specific findings when a court grants custody to a parent despite evidence of that parent's domestic violence.
This case involved significant allegations of abuse by Father, including several instances of abuse toward Mother, an incident in which neighbors saw him strike Mother's six-month-old child in the mouth and several instances of cruelty to family pets. Mother, on the other hand, had suffered a nervous breakdown and been hospitalized (she alleged this was due to the abuse) and there was testimony that she had not kept the children clean. The trial court findings noted that there was evidence of "skirmishes" between the parents and between husband and his stepchild, but found there was no evidence the child at issue in this case had been abused. The court also noted that mother was unemployed, had four other children to care for and was "careless in her requirements concerning education and personal hygiene."
Given the significant deference Alabama court are required to give to ore tenus evidence, the Court of Appeals affirmed. The court concluded that, while the Alabama custody statute creates a rebuttable presumption against granting custody to the perpetrator of domestic violence, the trial court's order could have been based on the court's conclusion that no domestic violence had occurred or that, despite that violence, the child's best interest required custody with Father.
Three justices specially concurred, debating whether the Supreme Court or legislature should amend the rules regarding custody in domestic violence situations to require that trial courts make specific findings regarding the presence of domestic violence and the specific reasons for granting custody to the perpetrator of that violence.
Lamb v. Lamb, 2006 Ala. Civ. App. LEXIS 20 (January 20, 2006) bgf
Case Law Development: Governmental Immunity for Child Protection Actions
In two recent cases, courts have found immunity for state actors involved in child protection
The US Court of Appeals for the Eighth Circuit granted summary judgment for the county and officers on the basis of qualified immunity because the police and social services agency did not violate the plaintiff's constitutional rights when they temporarily removed her child from her custody. Mother was under investigation for drug trafficking. At one point, the police had impounded her car. When she went with her 7-year-old son to the police station to recover an impounded vehicle, the police believed she was under the influence of narcotics and took her son into protective custody. The police subsequently released the son before 72 hours had elapsed. The court noted that "In cases where the rights of the parent are balanced against the state's interest in protecting the child, the qualified immunity defense is difficult to overcome." In cases in which "a state official takes an action that would otherwise disrupt familial integrity he or she is entitled to qualified immunity if the action is properly founded upon a reasonable suspicion of child abuse." The court found that there was such reasonable suspicion in this case, so that immunity applied.
K.D. v. County of Crow Wing, 2006 U.S. App. LEXIS 1074 (January 18, 2006) Opinion available on the web (last visited January 22, 2006 bgf)
Likewise, the Kentucky Supreme Court affirmed a trial court's dismissal of a negligence claim against the state child protective services agency on the basis of governmental immunity. The case was brought after the state had removed a child from her mother on the basis of child abuse. The state was unable to identify the perpetrator and so returned the child to mother with services. The child then died after mother's boyfriend beat her. The negligence claim was based on allegations that the division did not conduct a thorough enough continuing investigation. The court concluded that the department's actions were discretionary in nature, and so were immune from suit. "Such investigations do have certain mandated statutory requirements as to who shall be interviewed, etc., but they also involve discretionary decisions by the case workers, just as in police investigations. After performing their ministerial duties, the case workers must determine what action, if any, should be taken to resolve each claim -- which in this case was to remove the child from a potentially dangerous environment -- which they did, even though they could not identify the perpetrator. All such discretionary functions are protected by the doctrine of governmental immunity and do not fall under the waiver outlined by the Board of Claims Act."
Stratton v. Kentucky, 2006 Ky. LEXIS 16 (January 19, 2006)
January 23, 2006
Tennessee Parents Lose Licenses
"More than 6,000 Tennessee parents who have refused to pay child support are losing their professional, recreational and drivers licenses under an annual license revocation program operated by the state Department of Human Services, according to a Wednesday release.
Approximately 7,000 licenses are in the process of being revoked from the state departments of Safety, Commerce & Insurance, Health, Education and the Tennessee Wildlife and Resources Agency. That figure includes parents who are having more than one license revoked, the release said." By The Jackson Sun Link to Article (last visited 1-22-06 NVS)
Fired for Cohabitation?
"Lawyers for a woman who quit working for Pender County after the sheriff told her to leave her live-in boyfriend, marry him or find a new job argued Tuesday that the courts should allow the lawsuit to move forward.Sheriff Carson Smith and representatives of State Attorney General Roy Cooper both argue that Debora Hobbs has no standing to sue them. Smith's lawyer argues that the sheriff was merely enforcing a 200-year-old state law that prohibits unmarried couples from living together. Cooper's counsel says the lawsuit lacks merit because challenges to a criminal statute have only been allowed when a criminal complaint has been filed or is threatened." By Associated Press, The Charlotte Observer Link to Article (last visted 1-22-06 NVS)
Walk-in DNA Testing in Scotland
"The first walk-in DNA clinic in Scotland has opened, offering paternity and maternity test results within a week. For £199, it offers accurate "peace of mind" results presented by trained counsellors.The Aberdeen clinic, one of a series across the UK, is the brainchild of Nichola Lawton and Kellie McLoughlin who graduated from university in Liverpool with degrees in medical science and established Sequence Biotechnologies.
They were concerned that people using one of the rapidly increasing number of internet companies for DNA tests were not receiving the counselling which they felt was vital in many cases.
"We realised that, when people just received a letter with a life-changing result in it, they found it hard to accept that result and have confidence in it," said Ms Lawton.
"At our clinics it is explained and shown to them by trained counsellors." By Graeme Smith, The Herald Link to Article (last visted 1-22-06 NVS)
Coroner Offers Paternity Testing
"The county coroner's office in Cleveland wants to get a side business going for living people. Cuyahoga County Coroner Elizabeth Balraj says money is tight in the county, so her agency will try to bring in extra revenue by offering DNA paternity tests. The tests will cost $350 each, and an ad now appears on the coroner's Web site." By The Associated Press, Link to Article (last visted 1-22-06 NVS)
See the Cuyahoga County Coroner's website Link to Website (last visited 1-22-06 NVS)
The World's Women 2005: Progress in Statistics
"Presenting a groundbreaking new United Nations study on the state of statistics on women, Under-Secretary-General for Economic and Social Affairs José Antonio Ocampo noted little advancement in national statistical capacity, particularly in the collection of sex-disaggregated data, in the last 30 years. Analysing statistics from 204 countries, The World’s Women 2005: Progress in Statistics focused on how gender sensitive national statistical systems around the world were, stated Mr. Ocampo. Joining him at the Headquarters launch this morning was the main author of the report, Mary Chamie, Chief of the Demographic and Social Statistics Branch, Department of Economic and Social Affairs, as well as Jeremiah Banda, Chief of the Branch’s Social and Housing Statistics Section. . . .
Turning to some of the report’s findings, she said that out of the 204 countries or areas covered, 26 did not conduct a census in the last 10 years (1995-2004). Forty-three per cent of Africa’s population was not included in the last round of population and housing censuses. Over 90 countries did not report their births, and roughly the same amount did not report their deaths, through a civil registration system that covered the nation. That meant that only 30 per cent of world’s population was residing in areas where births and deaths were registered, while 70 per cent was not.
She went on to say that 53 countries did not report their nation’s population by sex and age in the last 10 years; 66 countries did not report the enrolment of children in primary school by sex and age; 81 countries did not report economic activity by sex and age; 108 did not report unemployment by sex and age; and 152 countries did not report wages by major industry group and sex.
In addition, she mentioned the lack of concepts and methods in key areas such as violence against women, poverty, power and decision-making, and human rights. There were 38 countries that had national surveys, which included questions on violence against women. But as of yet, there was no international statistical system collecting the official national statistics in that area. “Therefore, what we see is an inadequate statistical capacity, with a lack of gender mainstreaming and insufficient concepts and methods”, she added." By United Nations, Department of Public Information Link to Press Release (last visited 1-22-06 NVS)
View The World's Women 2005: Progress in Statitstics Link to Report (last visited 1-22-05 NVS)
Case Law Development: Losing Custody When Mothers Flee with Children
Members of the Iowa Court of Appeals disagreed on how to evaluate evidence in a custody case involving unmarried parents.
The trial court had granted primary custody to Mother, based primarily on the fact that she had been the child's primary caretaker and would be able to spend more time with child than Father, whose 12-hour-a-day job as a construction manager would not allow him much time with child.
The majority reversed this decision because Mother had taken son and moved to Oregon without informing Father for some months. "While [Mother] was undeniably [child's] primary caretaker when the parties lived together, she remained his primary caretaker after that point only because she absconded with him. We conclude her decision to conceal her whereabouts from Michael and to deprive him of access to the child for several months overrides any preference she should receive in the physical care determination based on her role as primary caretaker." The majority was also concerned regarding Mother's ongoing struggle with substance abuse, though the trial court had found that there was no evidence that Mother had not properly cared for son.
The dissent would have afforded greater deference to the trial court's decision, particularly to the evidence that Mother had fled with the child, at least in part, because of Father's physical violence toward her. The dissent was also concerned that the court of appeals had not considered the evidence presented to the trial court by experts that a change in custody to father could present attachment problems for the child.
The case presents yet another example of the extent to which the child custody balance sometimes turns on subtle preferences and assumptions regarding the needs of children and the ability of parents to meet those needs.
Mitchell v. Lane, 2006 Iowa App. LEXIS 48 (January 19, 2006)
Opinion available on the web (last visited January 22, 2006
January 22, 2006
Case Law Development: Iowa Supreme Court Ends Grandparent Visitation Rights Despite Judgment Based on Mother’s Original Agreement Allowing Visitation
On Friday, the Iowa Supreme Court ruled that grandparents have no right to visitation with grandchildren over a mother's objections, even though she had earlier agreed in a hearing to allow her children’s grandparents such a right. She had never appealed the judgment incorporating that order.
The dispute began when following their son’s divorce, Wanda and Jim Spiker filed a petition for grandparent visitation under Iowa law. Their son had apparently stopped seeing the children and their daughter-in-law, Sherry, stopped allowing the children to visit them. In the course of the litigation, Sherry entered into a stipulated agreement providing that Wanda and Jim would be allowed visitation with the children. However, they could not agree as to the length or time of the visitation, so they left that issue for the court to decide. Following a hearing, the court granted Wanda and Jim visitation with the children on the first weekend of every month beginning September 2001. Sherry did not appeal.
Visitation occurred as ordered for almost a year when Sherry began withholding one of the children from visits. By 2004, Sherry refused to allow Wanda and Jim to visit either child. In February 2004, Wanda and Jim initiated contempt proceedings against Sherry for refusing to allow visitation with the children pursuant to the stipulated agreement. She asserted that the grandparent visitation statute was unconstitutional and that enforcement of the visitation order would violate her due process rights.
The trial court held a hearing on the issue and issued an order finding Sherry in contempt of court. Sherry then filed a motion to enlarge or amend the order, arguing that enforcement of the visitation order would violate her due process right to raise her children without undue interference by the State. She also argued that the stipulation agreement she entered into was unenforceable and did not validly waive her constitutional rights. The court denied the motion. Sherry did not appeal.
In April, 2004, Sherry filed another challenge to the order, arguing that the decree providing the grandparents with visitation was unconstitutional. This time the court granted Sherry’s motion for summary judgment and vacated the visitation order. Wanda and Jim appeal.
The Iowa Court affirmed the trial court’s decision. In doing so it accepted the view that res judicata does not apply to orders concerning custody and visitation--that a court always has jurisdiction to modify such a decree. It held that Res judicata does not bar Sherry’s petition to modify or vacate the visitation order because the change in the law recognizing the unconstitutionality of Iowa law is a substantial change in circumstances justifying modification of the order. It said that giving continued effect to the visitation order is unjust because it constitutes a continuing violation of Sherry’s constitutional right as a mother to make decisions regarding her children’s well-being absent a showing of harm to them or her unfitness. The fact that the order was based on a stipulation of the parties does not alter this result. News Source: press-citizen.org.
Spiker v. Spiker, 2006 Iowa Sup. LEXIS 7 (January 20, 2006) A copy of the Slip Opinion of the Iowa Supreme Court may be found here (last visited January 22, 2006, reo).
Legislative Development: New York Strengthens Megan's Law
Legislation that expands and strengthens New York Megan's Law by lengthening the amount of time sex offenders remain on the State's Sex Offender Registry was signed into law by Governor George E. Pataki this past week. Without this legislation being enacted, Level 1 and Level 2 sex offenders, who have been on the State's Sex Offender Registry for 10 years, would be removed from the registry as of Saturday, January 21. The new law requires that Level 3 sex offenders remain on the Sex Offender Registry for life; that Level 2 sex offenders remain on Registry for life, but could petition a court to be removed from the Registry after 30 years; and that Level 1 sex offenders would remain on the Registry for 20 years. News source: northcountrygazette.org. Please click here for additional information (last visited January 22, 2006, reo). Download here New_York_Assembly_Bill_9472 --_Senate_Bill_6409.doc