October 27, 2006
Case Law Development: Meaning of "Legal Separation" under Immigration Law
The Fourth Circuit Court of Appeals was called upon to determine what constitutes a "legal separation" in a case involving deportation of a resident alien. The petitioner was subject to removal because he had been convicted of aggravated felonies. He sought to evade deportation by claiming that he automatically became a citizen as a consequence of his mother's naturalization when he was a minor. He had come to the United States from Ethiopia with his parents when he was 10 years old. His father had returned to Ethiopia later that same year, but his mother had remained in the United States and was naturalized in 1994 when the petitioner turned 17.
At the time of mother's naturalization, federal law provided that a child also becomes a citizen as a consequence of the naturalization of the parent having legal custody of the child when there has been a legal separation of the parents. 8 U.S.C. § 1432(a) (1999) (repealed 2000) The act did not define "legal separation." Here, the parents had apparently negotiated and signed a separation agreement at the time Husband returned to Ethiopia, though there were no witnesses to the agreement and it was not incorporated into a judicial decree until the couple's 2003 divorce.
The court of appeals affirmed the BIA interpretation that only judicially recognized marital separations are considered "legal" for the purposes of section 1432(a). Petitioner argued that because Maryland courts will enforce voluntary separation agreements as a species of contract, the BIA was required to recognize his parents as "legally separated" as of the purported date of their agreement. The court of appeals, over one dissent, held that federal law controlled the issue however. After reviewing federal law on the question, the court held that the BIA interpretation was not unreasonable and affirmed.
Afeta v. Gonzales, 2006 U.S. App. LEXIS (October 26, 2006)
Opinion on web (last visited October 28, 2006 bgf)
Georgia Man on Trial for Circumcision of Daughter
An immigrant from Africa has gone on trial on charges alleging he circumcised his 2-year-old daughter with a pair of scissors to avoid bringing shame on his family. It appears to be a groundbreaking prosecution for a case of female genital mutilation in the U.S., said Taina Bien-Aime, executive director of Equality Now, a New York-based human rights group that focuses on violence and discrimination against women and girls around the world. Khalid Adem could face 40 years in prison if convicted in Gwinnett County on the charges of aggravated battery and cruelty to children.
Read the New York Times story (last visited October 28, 2006 bgf)
India Passes Domestic Violence Legislation
A landmark new law seeking to protect women from domestic violence has come into effect in India. The law also bans harassment by way of dowry demands and gives sweeping powers to a magistrate to issue protection orders where needed. Punishment could range from a jail term of up to one year and/or a fine of up to 20,000 rupees ($450).
Every six hours, a young married woman is burned, beaten to death or driven to commit suicide, officials say. Overall, a crime against women is committed every three minutes in India, according to India's National Crime Records Bureau. Despite the scale of the problem, there had been no specific legislation to deal with actual abuse or the threat of abuse at home. Domestic violence, under the new law, includes "actual abuse or the threat of abuse whether physical, sexual, emotional or economic," a statement from the federal ministry of women and child development said.
Read the BBC News Report (last visited October 28, 2006 bgf)
Federal Judge's Nomination Stalled Due to Her Attendance at a Civil Commitment Ceremony
A Michigan judge whose nomination to the federal bench is stalled over her appearance at a lesbian commitment ceremony says she attended as a friend, not to give legal sanction. The nomination of Michigan Court of Appeals Judge Janet T. Neff to be a U.S. District Court judge is on hold because Sen. Sam Brownback, R-Kan., is not satisfied with her response to questions about her views on same-sex marriage, a spokesman for the senator said Thursday. Neff's status has been in limbo since last month, when Brownback placed his procedural hold -- using a technique that allows a lone senator to stall a nomination. Brownback wanted to know whether there was anything illegal or improper about the 2002 ceremony in Massachusetts and how Neff's actions might shape her judicial philosophy.
Read the New York Times article (last visited October 28, 2006 bgf)
October 26, 2006
New Jersey Rules on Same-Sex "Marriage"
"New Jersey's highest court on Wednesday guaranteed gay couples the same rights as married heterosexuals, but left it up to state lawmakers to decide if such unions can be called marriage. "Times and attitudes have changed," the New Jersey Supreme Court said in a nuanced 90-page ruling certain to fuel America's culture wars ahead of November 7 elections, when eight states will vote on same-sex marriage laws. Advocates on both sides declared varying degrees of victory and disappointment on the latest twist in a battle that has divided the country over issues of gay culture and morality." Jon Hurdle, Reuters Link to Article (last visited 10-15-06 NVS)
Read the decision: Link to Decision (last visted 19-25-06 NVS)
For a chronology of same-sex marriage developments: Link to Chronology (last visited 10-25-06 NVS)
New In-vitro Fertilization Recommendations
"Medical groups representing U.S. fertility experts, alarmed by rising numbers of multiple births, on Tuesday advised limiting the number of embryos implanted in women undergoing in-vitro fertilization. The latest medical evidence "clearly indicates" that high pregnancy rates can be achieved even with fewer embryo transfers, Dr. Marc Fritz, chair of the American Society for Reproductive Medicine's practice committee, said in a statement. Some patients and clinics have opted for transferring several embryos during a single cycle in order to increase the odds of success but pregnancies involving two or more fetuses are at risk of complications including premature delivery, which increases a baby's odds of suffering medical and developmental problems.
The new recommendations to fertility specialists, which are not enforceable, call for transfer of no more than two embryos for women under age 35, and say the transfer of a single embryo should be considered." Reuters, Yahoo News Link to Article (last visited 10-25-06 NVS)
Whitney Houston Divorcing Bobby Brown
"After a tumultuous 14-year marriage marked by drug arrests and stints in rehab, Whitney Houston is divorcing Bobby Brown. The pop singer filed divorce papers in Orange County Superior Court this week, a month after filing for legal separation from Brown, Houston's publicist Nancy Seltzer said Tuesday. The couple lived in Alpharetta, Georgia." AP, CNN.com Link to Article (last visited 10-25-06 NVS)
Married Man On Trial for Killing Pregnant Mistress
"Less than a week after Lisa Eatmon's family threw a baby shower for the son she was going to name Jayden, her lifeless body was found floating in the Hudson River. The person who put her there, according to a Manhattan prosecutor, was the married man who got her pregnant and then resisted her requests for $30 a week in child support. "There will be no obituary for the baby boy who was never born," Manhattan Assistant District Attorney Joan Illuzzi-Orbon told jurors in her closing argument Monday morning. "There can only be a smidgen of justice in knowing that Lisa Eatmon's voice has been heard, with a guilty verdict against the defendant." Eatmon's on-and-off lover, Roscoe Glinton, faces up to 25 years in prison if convicted of second-degree murder for shooting the 33-year-old in the head and dumping her body in the river the morning of April 3, 2005." By Emanuella Grinberg, Court TV Link to Article (last visited 10-25-06 NVS)
Court Sides With Divorced Father on Circumscision Decision
"A judge has sided with a divorced father who did not want his 9-year-old son circumcised, in a case that has drawn attention from groups opposed to the surgical procedure. Cook County Circuit Judge Jordan Kaplan's ruling, issued Tuesday, said the boy can decide for himself about circumcision when he turns 18. Until then, there will be no circumcision, a surgery that removes the foreskin of the penis. The Associated Press is not naming the parents to protect the child's privacy. The father was born and raised in Poland; The mother is from Slovakia. Both now live in suburban Chicago. A 2003 divorce decree gave the boy's father the right to offer advice on medical decisions." AP, Cnn.com Link to Article (last visited 10-25-06 NVS)
Kirby Puckett's Remains Awarded to Children
"The cremated remains of Twins superstar Kirby Puckett have been awarded to his children by an Arizona judge, who also removed Puckett's friend and business associate, Brian Woods, as executor of his estate. The decision was made this week in Maricopa County (Ariz.) Superior Court by Judge Benjamin E. Vatz, who agreed that keeping the remains away had imposed emotional hardship on the Hall of Fame player's children, Catherine Puckett, 16, and Kirby Puckett Jr., 14.
Had Puckett "not wanted his remains to be in the home of" his children, "then he would have taken care to express that wish in writing," the judge ruled. By keeping Puckett's remains from his family, Woods had been "unreasonable" in considering the "clear wishes ... and the emotional needs and desires" of Puckett's children, the judge wrote.
"On behalf of the Puckett family, we are very pleased with the court's ruling," attorney Bridget Logstrom, representing Puckett's former wife, Tonya, and his children, said Tuesday. "The children are looking forward to bringing their father's remains home."" By Paul Levy, Star Tribune Link to Article (last visited 10-15-06 NVS)
October 25, 2006
Case Law Development: Courts May Not Enjoin Parents From Collecting on Child Support Arrearage Judgments
The Alabama Court of Appeals reversed a trial court's order in a child support modification case in which the trial court had set a repayment schedule for child support arrearages and had then ordered that mother could not pursue any other enforcement actions so long as father was making the court ordered payments. The court of appeals noted that such a restriction on the mother's private collection efforts was in error, especially given the paucity of the repayment schedule the court had ordered. As the court observed:
... the trial court determined that the father owed accrued arrearages in the amount of $45,141.51, plus interest.... if the father were able to make only monthly $100 installment payments to reduce the owed arrearages, he would be paying those installments for over 37 years; that computation does not include the additional interest that will accrue during the repayment period, and the father will therefore most likely never be able to retire the total amount of the arrearages during his lifetime. In addition, the trial court also modified the divorce judgment to relieve the father from maintaining a life-insurance policy to benefit the parties' children in the event of his death before they reach the age of majority.
The court reversed, directing the trial court to remove the restriction on mother's ability to seek to collect on the arrearage judgment through standard debt-collection processes.
Leopold v. Leopold, 2006 Ala. Civ. App. LEXIS 631 (October 20, 2006 bgf)
Case Law Development: Division of Debt Caused By One Partner Spouse's Criminal Conduct
Just in time for Halloween, the Michigan Court of Appeals decides a case in which the husband's arguments for assigning fault in the characterization of debt as marital sound like something an Edgar Allen Poe character would construct.
The case involved a division of debt owed to the insurance company due to husband's actions in burning down the marital home on the evening after Wife had left the home and announced her intention to get a divorce. The trial court allocated to Husband all of the $300,000 is restitution owed to the insurance company. Husband argued that Wife should split that debt with him because he had acted in response to her adulterous affair.
The court of appeals affirmed, in its unpublished opinion, concluding:
We agree with the trial court that it is difficult to take seriously defendant’s
contention that his wife’s affair so outraged him as to make his act of arson her fault when
indeed he had conducted numerous affairs himself during the course of the marriage. We find illogical, and distasteful, defendant’s attempts to characterize his conduct as different from his wife’s conduct for the reason that he never intended his affairs to end the marriage, while she did. We find puzzling defendant’s suggestion that the trial court should have, and this Court should now, consider the alternative scenario where defendant’s conduct resulted from being physically poisoned by his wife. In short, we find no error in the trial court’s assessment of fault in the breakdown of this marriage.
The court noted that "the courts of this state have not spoken specifically to the issue of whether an innocent spouse may be liable for criminal restitution debt incurred by the partner spouse during the course of the marriage, probably because such an illogical and unreasonable argument has not before been made."
Thanks to Jeanne Hannah, of the Updates in Michigan Family Law Blog, for highlighting this case!
League v League, 2006 Mich. App. LEXIS 3063 (October 19, 2006)
Opinion on the web (last visited October 24, 2006 bgf)
Case Law Development: Sufficiency of Evidence of Child's Objection to Adoption
When courts give older child the right to object to adoption, what evidence provides sufficient proof of an objection? The California Court of Appeals explored the difference between a child's objection and mere statements of preference in affriming termination of a mother's rights to her 16-year-old son.
California law permits the court to find termination of parental rights detrimental to a child if a child 12 years of age or older objects to termination of parental rights. The law requires the juvenile court to consider the child's wishes, to the extent that they are ascertainable, though the evidence need not be in the form of direct testimony at the parental rights termination hearing, as the child's wishes, attachment and feelings may also appear in an agency's reports.
In this case, the court concluded that the evidence was insufficient to demonstrate son's unequivocal objection to the termination of parental rights:
He instead repeatedly asserted his preference for adoption. [Son] testified he felt comfortable living with his aunt and uncle and had known them since he was a child. When asked if he wanted to be adopted, he replied "[y]es." In response to the question, "Would you want to be adopted if ... you couldn't ever see your mom again?" he replied no and stated he would like to see [Mother] again. ... He explained he was "okay" with the idea of living with his aunt and uncle until he was an adult because they made him feel safe. He further expressed wanting his sister to live with him and hoped she would be adopted by his relatives. Moreover, the Agency's reports showed that throughout the dependency, [Son] wanted to be adopted by his relatives. [He] described his caregivers as his second parents. When the social worker asked him where he wanted to live, he stated he wanted to live with his aunt and uncle. He further said he was willing to be adopted by them.
The court concluded that these statement were not objections but, instead, "the statements appear to reveal an internal conflict between his hope to be adopted and live in a stable and loving environment, and his hope to see [Mother] again." The court reaffirmed the standard of best interests of the child as ultimately governing the determination of whether a parent's rights should be terminated.
In re Christopher L, 2006 Cal. App. LEXIS 1608 (October 16, 2006)
Opinion on the web (last visited October 24, 2006 bgf)
October 24, 2006
Prisoners Fall in Love Through Peephole
"Two prisoners in an Ivory Coast jail who courted and fell in love through a peephole in an iron door have been released for a few hours to get married, one of their jailers said Friday. Roland Guy Bouabre, serving a 3-year sentence for stealing a bicycle, courted Emilie Yobouet, who was given a one-year sentence for kidnapping a child, while he was delivering groceries for her to cook. He would take the groceries to the iron door and then a guard would deliver them. "You can find love in all kinds of places -- even prison," Daloa prison guard Norbert Bah told Reuters by telephone." Reuters, Yahoo News Link to Article (last visited 10-23-06 NVS)
Man With Amnesia Finds Family
"A man with amnesia who had been searching for his identity for more than a month was finally recognized by family and friends in Washington state when he appeared on a television news report asking for help. Denver police confirmed Sunday that the 40-year-old man is Jeffrey Alan Ingram of Olympia, Wash. He had left his home Sept. 6 to visit his mother in Slave Lake, Alberta, but never made a scheduled stop that evening at his fiancee's mother's house in Bellingham, Wash., according to the Thurston County, Wash., sheriff's office. Ingram said he found himself in Denver on Sept. 10 and walked around for six hours asking people for help. He ended up at a hospital where police spokeswoman Virginia Quinones said Ingram was diagnosed with dissociative fugue, a type of amnesia. He still has no memory, police said. During the weekend, Ingram appeared on several news shows pleading: "If anybody recognizes me, knows who I am, please let somebody know."" AP, Yahoo Link to Article (Last visited 10-24-06 NVS)
Father Pulls Gun on Son's Football Coach
"The father of a young football player pulled a gun on his son's coach because he didn't think the boy was getting enough playing time, Philadelphia police said on Monday. Wayne Derkotch, 40, was charged with aggravated assault after getting in a fight with the coach over the amount of time the boy was getting on the field at a game for 6- and 7-year-olds on Sunday morning, said police spokesman Officer Raul Malveiro. "There was a physical altercation about what child should play or not play and then he pulled the gun," Malveiro said." Reuters, Yahoo News Link to Article (last visited 10-23-06 NVS)
Man Charged with Bestiality
"A man accused of having sex with the family dog has been charged under the state's new animal cruelty law, which makes bestiality a felony, a prosecutor said. Michael Patrick McPhail, 26, of nearby Spanaway, pleaded not guilty Thursday to one count of first-degree animal cruelty in Pierce County Superior Court. Assistant Pierce County Prosecutor Karen Watson said McPhail was the first person in Pierce County to be charged with the new bestiality offense." AP, Yahoo.com Link to Article (last visited 10-23-06 NVS)
Family Child-Care Providers Want Contracts
"It's hard for parents looking to hire a loving, responsible person to care for their young ones to think of this as a legal and business transaction. But a transaction is exactly what it is, as evidenced by the now-routine employment contracts used even among family child-care providers -- those who take children into their homes. The warm and fuzzy part of the relationship is usually covered in a separate "policy" or "philosophy" statement, said Tom Copeland, an attorney and director of the Redleaf National Institute, a St. Paul-based resource agency for providers. The contract, on the other hand, is all about down payments, holidays off, vacations and termination notices -- that is, everything to do with the providers' time and the parents' money, Copeland said." By H.J. Cummins, Star Tribune Link to Article (Last visited 10-23-06 NVS)
Families Coping With Children's Mental Health Issues
"At least six million American children have difficulties that are diagnosed as serious mental disorders, according to government surveys — a number that has tripled since the early 1990’s. Most are treated with psychiatric medications and therapy. The children sometimes attend special schools. But while these measures can help, they often do not help enough, and the families of such children are left on their own to sort through a cacophony of conflicting advice. The illness, and sometimes the treatment, can strain marriages, jobs, finances. Parents must monitor medications, navigate therapy sessions, arrange special school services. Some families must switch neighborhoods or schools to escape unhealthy situations or to find support and services. Some keep friends and relatives away. Parents can feel guilt, anger, helplessness. Siblings can feel neglected, resentful or pressure to be problem-free themselves."By Pam Belluck, N.Y. Times Link to Article (last visited 10-23-06 NVS)