Friday, November 3, 2006
Case Law Development: Modification of Joint Custody in Relocation Case Does Not Require Proof of Changed Circumstances if Joint Custody Continues after Move
The California Court of Appeals has handed down a fascinating decision involving modification of joint child custody plans. The richness and complexity of the facts would make this a fine opinion to craft into a child custody problem for students. In terms of the legal developments, the majority and dissenting opinions' debate over the "changed circumstances" test in child custody modifications is extensive and well-written.
The case involves an unmarried mother and father whose relationship was, in the words of dissenting judge Bedsworth, "Byzantine in its complexity." The couple had an on-again, off-again relationship for over ten years after the child was born, despite the fact that Father was married to another woman for most of this time. Custody and paternity proceedings were filed when the child was five years old and a custody order entered over four years later. The custody order provided a 50/50 joint custody arrangement and ordered that neither parent could relocate out of the state without the other parent's permission or the permission of the court. A year later, mother moved to modify the parenting plan and for permission to move to Colorado, based on her allegations that she could no longer afford to live in California, her sister had offered her employment in Colorado, and father was "very controlling" and was abusing son in his sports workout sessions. Father argued that mother's request was in bad faith because his wife was expecting their first child and he believed mother wanted to move away in order to prevent son from bonding with his new half-sibling.
The court heard the custody issue de novo under a best interests standard, rather than applying a changed circumstances rule. It appointed an attorney for the child and a child custody evaluator. Father employed a psychological expert to evaluate son, but the expert was unwilling to testify (with father alleging that his reluctance was due to pressure from mother and child's attorney). The court refused to accept that expert's report into evidence, concluding that the expert had freely chosen not to testify. Finally, the court refused to hear the testimony of the 12-year-old son or interview him in chambers, stating that it had a policy against children testifying and that it had sufficient information from the custody evaluator and child's attorney.
The trial court modified the child custody judgment, granting mother's move-away request and establishing a new co-parenting plan for joint physical custody, with son living with mom in Colorado during the school year, Dad during the summers and on alternate Thanksgiving and spring breaks.
The court of appeals affirmed, noting that ordinarily the parent seeking to change custody would have to prove changed circumstances, but such a requirement did not apply here "because the court did not change custody. Although the court gave [mother] permission to relocate [son], the court
continued joint custody with a modified co-parenting arrangement." The court also found no error in the trial court's refusal to allow the child to testify.
The dissenting opinion is a lovely piece of writing in which Judge Bedsworth takes the majority to task for its conclusion that changed circumstances were not required in this case. Here is a small excerpt to give you a flavor of the opinion:
They [decide the changed circumstances rule does not apply] by concluding that a thousand-mile move is not a change in physical custody, but merely some kind of “modification of the coparenting arrangement.” ... In essence, they’ve said something akin to: “Your pet is still a golden retriever, only now instead of orange fur, big floppy ears and a long tail, it has silver scales, fins and gills and isn’t quite as huggable.” I am not yet willing to throw in the towel on something as important as finality of judgments, and would not allow what I believe is a reassessment of a final custody judgment in this case, absent a showing of significant changed circumstances.
Niko v. Foreman (October 30, 2006)
Opinion on the web (last visited November 3, 2006 bgf)
Case Law Development: UCCJEA Prohibits Court From Altering Custody of Foreign Decrees, Even in Relocation Cases
A second move-away case from the California Court of Appeals this past week involved the application fo the UCCJEA to enforcement of a French custody decree. The French decree gave custody of the child to mother, visitation rights to father, and enjoined mother from moving away with the child. However, mother did move with the couple's 14-year-old child from Fance to California, resulting in this action by father, requesting return of the child. The trial court ordered that the child be returned to France or else the father would obtain sole legal and physical custody. The court of appeals reversed, holding that as it violated the Uniform Child Custody Jurisdiction and Enforcement Act by changing custody, and by ordering that the mother not move away with the child.
The court of appeals reversed, holding:
We agree that the trial court violated the UCCJEA by changing custody. We also
agree that the UCCJEA required limited enforcement of the visitation schedule but
prohibited the trial court from enforcing the other aspects of the visitation award,
including the order that [Mother] not move away with [Child]. This not only follows from
the language of the UCCJEA, but also avoids any conflict between enforcing custody and
enforcing visitation. Thus, we accord comity to the French decree to the extent -- but
only to the extent -- that the UCCJEA requires.... The trial court ... had no jurisdiction to enforce any visitation provisions other than the visitation schedule. If [Father] came to California, the trial court could have required [Child] to visit him according
to the schedule. It erred, however, by requiring that [Child] be returned to France.
Marriage of Paillier, (October 31, 2006)
Opinion on the web (last visited November 3, 2006 bgf)
Thursday, November 2, 2006
"Before Lucia Skwarek, a portfolio manager and mother in New York City, gets on a plane bound for business in Moscow or Milan, there are not only meetings, but play dates to schedule. When she is done wooing investors for her hedge fund and parsing a pile of e-mail messages, though, Ms. Skwarek looks forward to a little “me” time. “I can go home and deal with two screaming 6-year-old twins and a grumpy preteen,” she said. “Or I can go to the Four Seasons in Mexico City and drink Cognac in the bathtub.”" By Lisa W. Foderaro, N.Y. Times Link to Article (last visited 11-1-06 NVS)
"Online daters, disappointed by potential partners lying about their age, weight or marital status, are turning to professional matchmakers to find love. Rather than risk taking pot luck online, chief executives, entertainers and politicians are among those paying thousands of dollars to matchmakers to discreetly "headhunt" and vet the perfect partner. "In the old days you had your extended family, or in some societies an actual matchmaker, trying to find someone for you," said dating expert Mary Balfour."Nowadays people have a personal matchmaker in the same way they would have a personal trainer," she said at her Drawing Down the Moon agency in London's Adam and Eve Mews." Reuters, Yahoo News Link to Article (last visited 11-1-06 NVS)
"A woman accused of duct-taping her two children together and leaving them home alone has been charged with child abuse, the sheriff's office said. Agla Nadia Vincent, 25, was arrested Monday following a seven-month investigation into whether she left her two boys, then aged 2 and 3, taped to each other while she went to work, said Lt. Annie Smith of the Jacksonville Sheriff's Office." AP, CNN.com Link to Article (last visited 11-1-06 NVS)
"An Ethiopian immigrant was convicted Wednesday of the genital mutilation of his 2-year-old daughter and was sentenced to 10 years in prison in what was believed to be the first such criminal case in the United States. Khalid Adem, 30, was found guilty of aggravated battery and cruelty to children. Prosecutors said he used scissors to remove his daughter's clitoris in his family's Atlanta-area apartment in 2001. The child's mother, Fortunate Adem, said she did not discover it until more than a year later." AP, CNN.com Link to Article (last visited 11-1-06 NVS)
"There have always been great-grandparents. But because Americans are living longer and are healthier now than in previous generations, demographers say more people are likely to have at least one living great-grandparent, and to have that great-grandparent in their lives longer.
Kenneth W. Wachter, the chairman of the department of demography at the University of California, Berkeley, has estimated that by 2030, more than 70 percent of 8-year-olds will likely have a living great-grandparent. It is a phenomenon that Kevin Kinsella, the head of the Aging Studies branch of the United States Census Bureau, has referred to as a great-grandparent boom. “We know we’re living a lot longer than we used to,” Mr. Kinsella said. “It seems logical if people are living well into their 90s now, and there are centenarians, a lot of people are going to be great-grandparents.”" By Stephanie Rosenbloom, N.Y. Times Link to Article (last visited 11-2-06 NVS)
"The New Jersey Supreme Court granted gay couples the same rights as married couples this week, leaving it to the State Legislature whether to call their partnerships marriages or civil unions. But for Cynthia and Lucy Vandenberg, the landmark ruling is also about another M-word: money.
The Vandenbergs, who have been partners for 12 years, have been forced to open their checkbooks repeatedly over the years to pay thousands of dollars in taxes on health benefits and for legal transactions that married couples rarely face. There was the $1,500 to change their surnames, for instance, the $1,400 or so in taxes they paid annually for additional health benefits, and the $1,000 they spent so one could adopt the biological child of the other. “For all of this, you need to hire an attorney, or you find out the hard way,” said Lucy Vandenberg, 37, the director of the state’s Council on Affordable Housing.
Now they wonder how the court’s decision will affect their next child, a son Lucy is carrying. Will Cynthia Vandenberg have to pay to adopt him?" By Tina Kelley, N.Y. Times Link to Article (last visited 11-2-06 NVS)
Wednesday, November 1, 2006
Case Law Development: Filing Separate Civil Action to Enforce Temporary Orders During Pendency of Dissolution is Sanctionable Conduct
The California Court of Appeals affirmed a judgment of dismissal and sanctions against a wife who, while her marital dissolution proceeding was pending, brought a separate civil action against her husband and two accounting firms. The wife claimed her husband failed to make two interim monthly payments required under the terms of a stipulation and order in the dissolution proceeding, and further claimed his conduct constituted intentional infliction of emotional distress. The wife also sought a declaration that the husband and the accounting firms were required to provide her with tax returns and related documents she had previously sought in the dissolution proceeding. The trial court dismissed the complaint against both husband and the accounting firm.
The court of appeals concluded that wife's suit
is a textbook example of an improper attempt to wage "family law ... by other means ... ." When a dissolution proceeding is pending, neither party to that proceeding has the right to file a separate civil action to enforce an interim support order issued in the dissolution proceeding. The same rule applies to filing a purported tort action arising from conduct that relates to the interim support order and, but for the dissolution proceeding, would not have occurred.
The court was careful to note that while it is true that spouses may bring tort actions against one another, that principle "has no application when a dissolution proceeding is pending, and it certainly has no application when a spouse is attempting to enforce an interim order in a pending dissolution proceeding." The court commented that it need not "draw a line between spousal cases that might properly be brought in a separate civil action and those that may not' because wife's action here "clearly falls on the far side of any line that might conceivably be drawn."
After the trial court in the civil action sustained the husband's demurrer, the husband sought sanctions in the family law court. The family law court granted the husband's motion, ordering the wife to pay $ 32,950 to the husband as sanctions, and ordering the wife and her attorneys to pay that sum to the husband . The court of appeals also affirmed this order, holding that wife's attempts to bring the separate civil suit were so clearly without support given existing precedent that the suit was "specious and plainly not warranted by existing law." The court also rejected wife's argument that the family court could not sanction her for filing a frivolous action in another court, concluding that
the "conduct" precipitating the sanctions is the act of filing an action in a court where it clearly does not belong, in order to avoid litigating the matter before the family court judge who made the support order in the first place and who was thoroughly familiar with the parties and the issues. In this situation, it is difficult to see how the judge in the civil action would be in a better position than the family law judge to determine the propriety of sanctions for Ms. Burkle's forum-shopping conduct. Indeed, it seems to us the reverse is true.
Burkle v. Burkle, 2006 Cal. App. LEXIS 1694 (October 30, 2006)
Opinion on the web (last visited November 1, 2006 bgf)
An Associated Press story reports that Women may give up more than a husband by divorcing -- they may also lose some of their good health, according to a study by Iowa State University researchers. The study, spanning 10 years, focused on what happens to rural women's health after their marriage ends, compared with women who stay married, said Fred Lorenz, who co-authored the report. "'What we found was that the act of getting a divorce produced no immediate effects on (physical) health, but it did have effects on mental health. ''Ten years later, those effects on mental health led to effects in physical health.''
Read the entire story from the New York Times (last visited November 1, 2006 bgf)
Tuesday, October 31, 2006
"A German woman won a lawsuit against a "love witch" who failed to induce her ex-boyfriend to come back with rituals under the full moon designed to cast a spell over him, a Munich court said Monday. "The witch lost," said Munich district court spokeswoman Ingrid Kaps. The 'love witch' was ordered to return her 1,000 euro ($1,300) fee and pay "several hundred euros" in costs." By Reuters, Yahoo News Link to Article (last visited 10-30-06 NVS)
"Is it a phone call, a text message or simply time to make love? A new mobile phone available through Japan's NTT DoCoMo Inc. (9437.T) can ring to let would-be mothers know when they reach the most fertile part of their monthly reproductive cycles.By tapping in data on menstruation dates, the user can program the phone to alert her three days before ovulation and again on the day. The company warns that the calculations are based on average cycles.
The new phone comes after Japan's fertility rate -- the average number of children a woman bears in her lifetime -- fell to an all-time low of 1.25 in 2005, sparking worries about a shrinking population." By Reuters, Yahoo News Link to Article (last visited 10-30-06 NVS)
Editorial from N.Y. Times: "The rights and safety of Nicaragua’s women took a giant step backward last week when the country’s legislature passed a law criminalizing all abortions, with no exceptions. The previous law permitted an abortion if the mother’s life was in danger. Latin America has the world’s strictest laws on abortion. But that does not discourage it. Latin America also has the world’s highest abortion rates, averaging nearly one per woman over the course of her reproductive lifetime." By N.Y. Times Link to Article (last visited 10-30-06 NVS)
"AFCC is offering two outstanding training programs in December in collaboration with the University of Baltimore Center for Families, Children and the Courts in Baltimore, Maryland. Father Involvement: From Infant Overnights to Parental Alienation, presented by Dr. Marsha Kline Pruett, will take place December 4-5, 2006. Parenting Coordination: Working with High Conflict Families, presented by Dr. Robin M. Deutsch, will follow on December 6-7, 2006.
Father Involvement is a two day training for all professionals who work with separated or divorced parents and their children. This training will identify the impact of divorce on children and youth, present strategies to help children make healthy transitions and more. Dr. Kline Pruett is the Maconda Brown O’Connor Professor at Smith College and School of Social Work. She has trained professionals throughout the country, and served as commentator on radio and television news.
Parenting Coordination is a two day training for parenting coordinators, mediators, attorneys and mental health professionals who work with separating and divorcing families. Participants in this workshop will understand the psychological dynamics of high conflict families, identify the qualifications and abilities needed to be a parenting coordinator, and more. Dr. Deutsch is a psychologist and Director of Forensic Service of the Children and the Law Program at Massachusetts General Hospital and an Assistant Professor at Harvard Medical School.
Each training is eligible for 13 hours of continuing education for psychologists. The program brochure and registration from is posted on the AFCC Web site Link to Website. If you have any questions, please contact AFCC at Link to Contact or (608) 664-3750." By Dave Vigliotta, AFCC (last visited 10-30-06 NVS)
Monday, October 30, 2006
The Indiana Court of Appeals reversedd a trial court that had granted a name change, allowing mother to change her child's last name from her own to that of the child's stepfather, over the objection of father, who had never been married to mother but had been adjudicated father in a paternity action. The court reversed on the grounds that the trial court had erred in sequestering father as a witness during the name change proceeding. "Although an action to change a person's name is not an adversarial proceeding in the traditional sense, Father is a necessary party who had a right to participate in the proceeding. It is reversible error to extend the separation of witnesses to those who have a substantial interest in the subject matter."
In dicta, the court also noted that Indiana statutes provide a presumption in favor of a parent of a minor child who has been making support payments and fulfilling other duties in accordance with a decree and objects to the proposed name change of the child. Mother had argued that the presumption should not apply in this case because the child had never had Father's last name, but the court disagreed, noting that if the court found as a matter of fact that Father fulfilled the requirements of the statute, the presumption would apply.
In re Fetkavich, 2006 Ind. App. LEXIS 2152 (October 27, 2006)
Opinion on the web (last visited October 30, 2006 bgf)
The Supreme Court of Arkansas, interpreting its new rules of professional conduct regarding duties to prospective clients, has held that an attorney may be disqualified from representing a wife based on the husband's prior consultation with an attorney in the firm regarding possible representation in the case, even if no representation ensued. The new Arkansas rule, based on ABA Model Rule of Professional Responsibility Rule 1.18, bars an attorney from representing a client with adverse interests to those of a prospective client in a substantially related matter if the attorney "received information from the prospective client that could be significantly harmful to that person in the matter."
The trial court had used the same presumption of receipt of confidential information it applies when using a former client conflicts analysis. The Supreme Court affirned, stating that the duty an attorney owes to a prospective client under Rule 1.18(b) is "coextensive with the duty an attorney owes to a former client" and "exists regardless of how brief the initial conference may have been and regardless of the fact that no client-attorney relationship ensued."
The court noted that in this case, husband's consultation with the attorney involved the same custody proceeding as in the later representation and that he had given the attorney a copy of his journal, told her about facts that were not in the journal, and "disclosed everything he knew and his concerns about the children and his former wife." The court concluded that "a lawyer who consults with a prospective client about a change-of-custody proceeding will necessarily become privy to information that could be used to the disadvantage of that person in the same proceeding." The fact that the husband had indicated in his testimony on the disqualification that he had not disclosed harmful information was not determinative, according to the court, because "a prospective client would not know whether the information disclosed during the consultation could be significantly harmful."
Sturdivant v. Sturdivant, 2006 Ark. LEXIS 536 (October 26, 2006)
Opinion on the web (last visited October 30, 2006 bgf)
Case Law Development: Reckless Domestic Violence Assault not a Categorical Crime of Violence for Purposes of Immigration Law
The United States Court of Appeals for the Ninth Circuit had to decide whether a misdemeanor domestic violence conviction under Arizona statutes constituted a "crime of domestic violence" under federal law subjecting a legally admitted resident alien to removal under 8 U.S.C.S. § 1227(a)(2)(E)(i). The court noted a recent inconsistency in its precedents regarding whether crimes of recklessness constituted categorical crimes of violence under immigration law. The court reviewed its own decisions and determined that it should join the other circuits that have restricted the category of crimes for which removal applies to crimes of violence involving specific intent. In this case, since the Arizona statute allowed conviction upon proof of reckless assault, the conviction was not a categorical crime of violence.
When a state statute of conviction does not define a categorical crime of violence, the court goes on ot apply a "modified categorical approach" in which it considers "whether any of a limited, specified set of documents--including "the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment" (sometimes termed "documents of conviction")--show the petitioner's conviction entailed an admission to, or proof of, the necessary elements of a crime of violence." In this case,
none of the documents ... demonstrated that [the alien's] conviction was based upon an admission, or any other proof, that he used force "intentionally" or "knowingly," as opposed to "recklessly." Accordingly, on the record now before us, we cannot conclude under the modified categorical approach that Fernandez-Ruiz committed a crime of violence or, by extension, a crime of domestic violence as defined by federal law.
The dissent took issue strongly with the rejection of recklessness as falling within the standards of categorical crimes of violence, arguing that:
Men do not beat their wives by accident. Blind to this truth, the majority ignores the realities of domestic violence and disregards congressional intent to hold that an Arizona domestic violence conviction is not a "crime of domestic violence" for purposes of a federal immigration law. The majority's hypertechnical analysis stretches the Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990), categorical approach to absurdity and misreads Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377, 160 L. Ed. 2d 271 (2004), as barring all crimes involving the reckless use of force from qualifying as "crimes of violence" under 18 U.S.C. § 16.
Fernandez-Ruiz v. Gonzales, 2006 U.S. App. LEXIS 26668 (9th Cir. October 26, 2006)
Opinion on web (last visited October 30, 2006 bgf)
The New York Times provides an interesting article on the use of the interracial marriage cases in arguing about same-sex marriage. "...people on both sides of the same-sex marriage issue say there are important lessons from the earlier debate over laws banning interracial marriages, about the reasoning in the Perez decision and about how, over two decades, that decision came to be accepted in the courts, in state legislatures and in the popular culture. Unsurprisingly, they differ about what those lessons are."
Read the article, "Gay Marriage Through a Black White Prism" by Adam Liptak (last visited October 30, 2006 bgf)