October 20, 2006
Case Law Development: Massachusetts Court of Appeals Reaffirms Use of "Real Advantage" test in Relocation Cases
The Massachusetts court of appeals reversed a probate court's denial of a custodial mother's petition to relocate, finding that the court had given undue weight to the effect of the move of father's visistation and reaffirming that the "real advantage" test remains the standard by which relocations by custodial parents are to be measured.
The 'real advantage' test is grounded on the 'realization that after a divorce a child's subsequent relationship with both parents can never be the same as before the divorce . . . [and] that the child's quality of life and style of life are provided by the custodial parent.' . . . Although the best interests of the children always remain the paramount concern, '[b]ecause the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child's best interest requires that the interests of the custodial parent be taken into account.
Here, the court concluded that
On its face, the mother's case would seem to present a relatively straightforward application of real advantage principles: her marriage had dissolved; she had lost her three-day per week job with Fleet Bank that paid $ 70,000 plus bonuses; the house in which she and the child had lived in Newton was not available after July, 2005, on a month-to-month basis; and she could not afford to purchase a home in Newton that would enable the child to stay in the local school. The move to Old Saybrook offered her free lodging in an upscale community, the companionship of family, and readily available child-care assistance from family while she looked for and established herself in a suitable job. As of the time of trial, she had accepted a three-day per week job as a mortgage originator at a Sovereign Bank in Old Saybrook. These circumstances establish a "good reason" for the move to Connecticut, and the probate judge's determination to the contrary is clearly erroneous.... the findings and rulings concerning removal concentrated almost exclusively on the father's relationship with the child, and in particular the desirability of frequent, short visits with the father. While those findings cannot be considered erroneous, disruption in visitation with the noncustodial parent cannot be controlling or no removal petition would ever be allowed. It is clear from the probate judge's findings that undue -- in effect, dispositive -- weight was given to this criterion.
A dissenting judge would have given greater deference to the trial judge.
Cartledge v. Evans, 2006 Mass. App. LEXIS 1069 (October 19, 2006)
Opinion on web (last visited October 20, 2006 bgf)
Case Law Development: No Duty to Disclose Pending Sales Discussions of Property in Divorce Settlement
The New York Court of Appeals dismissed an action to set aside a divorce settlement in a high-dollar divorce between Actress Lora Kojovic and her husband Neal Goldman, who owned a minority share of an Internet information service Capital IQ. Wife signed a divorce settlement agreement in August 2004 that gave her nearly $1.5 million. However, about one month later, Standard & Poor's purchased her husband's company for $225 million, with his share being $18 million. Wife then brought an action to set aside the settlement agreement on the basis of fraud and unconscionability.
Wife argued that husband affirmatively misrepresented the liquidity of the company and the talks that were underway for purchase of the company. However, the court disagreed, finding that husband had disclosed the assets and that it was up to wife to inquire further. However, wife, who had been represented by counsel in negotiating the agreement, had acknowledged that she had the right to inquire further into the financial aspects but waived this right.
The court noted its "disdain for post-divorce claims of concealment" and found that "[T]he wife concedes, as she must, that the husband consistently and accurately disclosed the full extent of his minority interest in Capital IQ, an asset of speculative value at the time the settlement agreement was executed... That the wife now believes her husband privately harbored a more optimistic assessment of the potential value of his minority interest in that company, or even had additional information that he kept to himself, is irrelevant... wife has only herself to blame for her failure to inquire further. Such failure is not, however, a basis upon which to vacate the settlement."
"... given her professional background and the advice furnished by her counsel and accountant, [wife] should have been aware of the distinct possibility that Capital IQ would be sold," the panel held. "That she opted for an immediate and certain payout instead of the uncertainty of an eventual sale does not afford a basis for setting aside the agreement."
Kojovic v. Goldman, (NY App. Div. October 19, 2006)
Opinion on the web (last visited October 20, 2006 bgf)
October 19, 2006
Report Urges United Nations Member States to Take Domestic Violence More Seriously
"More than half the 192 member states of the United Nations have no laws to punish men who are violent against women, a U.N. report showed on Tuesday. The report, issued by Secretary-General Kofi Annan's office, found violence against women and girls was a global phenomenon that affects at least one in three females in rich and poor countries alike. It also said the United Nations itself had too many programs that overlapped and were uncoordinated and for years had no specific gender-oriented programs at all. "The curtain has finally been drawn from violence against women," U.N. Assistant Secretary-General Rachel Mayanja told a news conference. "It is a public issue, it is all our issue and therefore we have an obligation to act."
The 139-page report said only 89 countries have some legislation on domestic violence, but that in many cases the implementation of those laws was weak. "The study has laid out for us a number of actions that have to be taken to try and eliminate this scourge," Mayanja said, adding that the aim of the study was to spark action and not to "gather dust on a shelf."" By Michelle Nichols Reuters, Yahoo News Link to Article (last visited 10-18-06 NVS)
Slight Trend Toward Larger Families?
"Laura Bennett isn't bound by convention. Professionally, at age 42, she's pursuing a mid-career switch into big-time fashion design. At home, she's a mother of five -- with No. 6 due next month."It was nothing that we planned ahead of time," Bennett says. "It's more that we were enjoying all the kids. "We have a happy home. Why not have as many children as we can?"
It's barely a blip on the nation's demographic radar -- 11 percent of U.S. births in 2004 were to women who already had three children, up from 10 percent in 1995. But there seems to be a growing openness to having more than two children, in some case more than four." AP, CNN.com Link to Article (last visited 10-18-06 NVS)
Humans "Wired" To Connect With Others
"Carl Marci was jubilant. After a year in therapy, trying to decide whether to propose to his girlfriend, he had finally taken the plunge—and she had said yes! As Marci recounted the story to his shrink days later, his therapist appeared to share the triumph with him. And it wasn't just an act. Marci, a psychiatrist himself at Massachusetts General Hospital, had wired himself and his therapist to special equipment that records heart-rate variability and "skin conductivity"—two measures that, taken together, indicate the ebb and flow of emotional arousal. When he examined the data later, Marci was stunned. Lines on the two charts rose and fell in perfect unison, revealing that his therapist was truly sharing his excitement. "It's no accident that we speak of being on the same wavelength with someone," says Marci. "In a moment like that, you really are."" By Anne Underwood, Newsweek Link to Article (last visited 10-18-06 NVS)
Brain Research on Men and Women
"Women and men don't differ in overall intelligence, but the average male and female do see some things differently, and women also feel pain more intensely than men, researchers reported Tuesday at the annual meeting of the Society for Neuroscience. The findings were among intriguing new research presented to a throng of 30,000 brain scientists at the massive Georgia World Congress Center, which held a sea of people with doctorates in everything from psychology to biology." psycpor.com, New York Times Syndicate Link to Article (last visted 10-18-06 NVS)
Domestic Violence Awareness Month - History
"Domestic Violence Awareness Month evolved from the first Day of Unity observed in October, 1981 by the National Coalition Against Domestic Violence. The intent was to connect battered women’s advocates across the nation who were working to end violence against women and their children. The Day of Unity soon became a special week when a range of activities were conducted at the local, state, and national levels. These activities were as varied and diverse as the program sponsors but had common themes: mourning those who have died because of domestic violence, celebrating those who have survived, and connecting those who work to end violence. In October 1987, the first Domestic Violence Awareness Month was observed. That same year the first national toll-free hotline was begun. In 1989 the first Domestic Violence Awareness Month Commemorative Legislation was passed by the U.S. Congress. Such legislation has passed every year since with NCADV providing key leadership in this effort." National Coalition Against Dometic Violence Link to Webpage (last visited 10-18-06 NVS)
October 18, 2006
Case Law Development: Spousal Testimonial Privilege May Not Be Used After Divorce
The US District court for the Western District of Kentucky allowed a subpoena requesting an instant messaging record from Plaintiff's ex-wife, overruling plaintiff's claim that the record is privileged under spousal immunity law. The claim arises in a reverse discrimination suit centered around plaintiff's dismissal as a manager from a restaurant. The employer sought the instant messages to prove that it had an independent grounds for firing the plaintiff based on its fraternization policy.
Regarding the various privileges asserted, the court concludes:
As to the federal claims, this Court determines that no privilege is applicable. The anti-marital immunity does not apply because (a) it can only be asserted by the witness spouse [here, the ex wife]... (b) it only applies in federal criminal cases, and (c) it may not be asserted in a proceeding after the marriage has dissolved. The confidential communications privilege also does not apply, because all evidence before the Court shows that the instant message conversation took place after the dissolution of the marriage, and the privilege only shields communications made while the couple were married.
As to the Kentucky statutory claims, the Court finds that the privilege still does not apply. The privilege under Kentucky Rule 504(a) is not applicable, as the parties will not be married at the time ex-wife is to present evidence to the Court. The privilege under Kentucky Rule 504(b) does not apply because the parties were not married at the time the instant messages were sent. Thus, the instant messages are privileged with respect to neither the Kentucky nor federal claims.
GOODEN v. RYAN'S RESTAURANT GROUP, 2006 U.S. Dist. LEXIS 74944 (October 12, 2006 bgf)
Battle over Stem Cell Research Generates Debate over Safety of Egg Donation
Ads claim that the egg donation procedure is hazardous to women have been released by opponents of a stem-cell research ballot initiative in Missouri, but experts say risks are greatly exaggerated.
For a report on both the ad campaign and expert opinions on the procedure, read the Kansas City Star article (last visited October 26, 2006 bgf)
Parents Spending More Time with Children
Researchers from the University of Maryland report that, despite the surge of women into the work force, mothers are spending at least as much time with their children today as they did 40 years ago, and the amount of child care and housework performed by fathers has sharply increased. The study was based on analysis of thousands of personal diaries. The study found that “women still do twice as much housework and child care as men” in two-parent families. But they said that total hours of work by mothers and fathers were roughly equal, when they counted paid and unpaid work. Using this measure, the researchers found “remarkable gender equality in total workloads,” averaging nearly 65 hours a week. The findings are set forth in a new book, “Changing Rhythms of American Family Life,” published by the Russell Sage Foundation and the American Sociological Association.
Read the New York Times Story (with helpful summary graphics)(last visited October 18, 2006 bgf)
Law Regulating Overseas Brides Slowing Process of International Marriages
The New York Times reports on the International Marriage Broker Regulation Act. Imbra is intended to give foreign women and the American government more information about the men who seek so-called mail-order brides. According to the Times, "Reports of violence in international marriages, some of them Internet matches, have increased in recent years. In 1998, fewer than 2,500 foreign women applied to become permanent residents under the Violence Against Women Act, which allows abused wives to apply for residence without the support of their husbands. In the fiscal year that ended in September, 9,500 applied. The new law has angered many men, who argue that there is no definitive evidence that violence is more likely to take place in an international marriage arranged over the Internet than in a domestic one. Unwilling or unable to find a spouse in the United States, some worry that the law could make it more difficult to find a wife abroad."
Read the entire article (last visited October 18, 2006 bgf)
October 17, 2006
Mother's Spend As Much Time With Children as 40 Years Ago
"Despite the surge of women into the work force, mothers are spending at least as much time with their children today as they did 40 years ago, and the amount of child care and housework performed by fathers has sharply increased, researchers say in a new study, based on analysis of thousands of personal diaries. “We might have expected mothers to curtail the time spent caring for their children, but they do not seem to have done so,” said one of the researchers, Suzanne M. Bianchi, chairwoman of the department of sociology at the University of Maryland. “They certainly did curtail the time they spent on housework.”
The researchers found that “women still do twice as much housework and child care as men” in two-parent families. But they said that total hours of work by mothers and fathers were roughly equal, when they counted paid and unpaid work. Using this measure, the researchers found “remarkable gender equality in total workloads,” averaging nearly 65 hours a week." By Robert Pear, N.Y. Times Link to Article (last visited 10-17-06 NVS)
Married Couples Now a Minority
"Married couples, whose numbers have been declining for decades as a proportion of American households, have finally slipped into a minority, according to an analysis of new census figures by The New York Times. The American Community Survey, released this month by the Census Bureau, found that 49.7 percent, or 55.2 million, of the nation’s 111.1 million households in 2005 were made up of married couples — with and without children — just shy of a majority and down from more than 52 percent five years earlier.
The numbers by no means suggests marriage is dead or necessarily that a tipping point has been reached. The total number of married couples is higher than ever, and most Americans eventually marry. But marriage has been facing more competition. A growing number of adults are spending more of their lives single or living unmarried with partners, and the potential social and economic implications are profound." By Sam Roberts, N.Y. Times Link to Article (last visited 10-17-06 NVS)
Same-Sex Marriage Ballot Questions
"The debate over same-sex marriage was a black-or-white proposition two years ago when voters in 11 states barred gay couples from marrying. But this year shades of gray are everywhere, as eight more states consider similar ballot measures. Some of the proposed bans are struggling in the polls, and the issue of same-sex marriage itself has largely failed to rouse conservative voters. In some cases, other issues, like the war in Iraq and ethics in Washington, have seized voters’ attention. But the biggest change, people on both sides of the issue say, is that supporters of same-sex marriage this year are likely to be as mobilized as the opponents." By Kirk Johnson, N.Y. Times Link to Article (last visited 10-17-06 NVS)