Friday, December 8, 2006
When I want my students to explore one of the most difficult aspects of child representation, I ask them to consider the duty of confidentiality and the best interests of the child dilemma. The West Virginia Supreme Court recently addressed that very dilemma in an abuse and neglect case. The child who was the subject of that proceeding, a 15-year-old girl, had disclosed to the guardian ad litem that her mother's boyfriend had sexually molested her, but had requested that the guardian ad litem not disclose the information. The GAL honored that request, believing that her duty of confidentiality to her client demanded silence. Family services allowed the client's mother and boyfriend to have unsupervised visitation with her. Some months later, both a case worker and a foster care worker reported that the client had disclosed the prior sexual misconduct, and also disclosed that she had spoken to the GAL about the matter. The division of family services then moved to have the GAL removed because of her failure to report the earlier conversation with the client.
The circuit court denied the motion on the grounds of attorney-client confidentiality. The supreme court disagreed however. The court reasoned that the rules of professional conduct do apply to a GAL's represenation "because many aspects of a guardian ad litem's representation of a child in an abuse and neglect proceeding comprise duties that are performed by a lawyer on behalf of a client." However, rather than an absolute rule of confidentiality, the court analyzed the GAL's representation of a child under Rule 1.14 (Client under disability) and noted that a child's direction to an attorney must be given some degree of consideration but it is not binding as would be a competent adult client's direction. The court held that the GAL's dual role as representative of the child and representative of the court required balancing the confidentiality duty. It held "Where honoring the duty of confidentiality would result in the children'ss exposure to a high risk of probable harm, the guardian ad litem must make a disclosure to the presiding court in order to safeguard the best interests of the child." However, since the information had been disclosed, the court concluded that the trial court did not abuse its discretion in refusing to remove the GAL.
In re Christina W, Sissy W and Lisa W, 2006 W. Va. LEXIS 131 (November 29, 2006)
(Opinion on the web) (last visited December 5, 2006 bgf)
May a parent exercise a power of attorney to designate other family members to exercise that parent's visitation rights? The answer is not terribly clear under most state law, but under Idaho's statute providing for a power of attorney to delegate parental powers, the answer is much clearer according to the Idaho Supreme Court. That case involved a father who, while serving military duty in Iraq, had assigned his visitation rights to his parents. Mother argued that the Idaho statute should not be interpreted to allow such a designation, as it "contravenes the purpose of the power of attorney statute and removes from the courts the power to scrutinize such decisions prior to the designation." The Supreme Court of Idaho interpreted the statute according to its literal wording and found that it did indeed provide him authority to designate his visitation rights. The Idaho statute, expressly allows for parents to create temporary guardianships through execution of a power of attorney for a period of up to six months.
What makes this case easy for the court is the presence of the statute allowing appointment of a temporary guardian through the power of attorney. The statute is modeled on 5-104 of the Uniform Probate Code, which has been adopted by at least18 states. (See the National Center for State Court's listing or Cornell Law School's LII Uniform Probate Code locator) For states without such a statute, it would be unclear whether a parent would have the ability to designate a temporary guardian without a court order. Some states provide for the use of POAs for medical or educational purposes only. A 2002 student comment in the Journal of the AAML surveys this and other state guardianship provisions.
Webb v. Webb, 2006 Ida. LEXIS 152 (November 29, 2006)
Opinion on the web (last visited December 4, 2006 bgf)
Thursday, December 7, 2006
"City health officials Tuesday backed off a plan that would have allowed New Yorkers to switch the sex on their birth certificates without undergoing sex-change surgery. Health Commissioner Thomas Frieden said the issue needed further study, in part to guarantee it wouldn't conflict with federal rules now being developed. Like most other cities and states, New York has long allowed people who have undergone sex-change surgery to get a new birth certificate reflecting the change. The city's Department of Health and Mental Hygiene had proposed in September that the policy be liberalized further to include people who had taken other steps short of surgery to irrevocably alter their gender identity. The new policy, for example, would have allowed birth record changes for people taking hormones to alter their appearance. The plan would have made the city the first in the country with such a policy, health officials said." Associate Press, N.Y.Times Link to Article (last visited 12-7-06 NVS)
"Mary Cheney, a daughter of Vice President Dick Cheney, is expecting a baby with her partner of 15 years, Heather Poe, Mr. Cheney’s office said Wednesday. Lea Anne McBride, a spokeswoman for Mr. Cheney, said the vice president and his wife, Lynne Cheney, were “looking forward with eager anticipation” to the baby’s birth, which is expected this spring and will bring to six the number of grandchildren the Cheneys have. Mr. Cheney’s office would not provide details about how Mary Cheney became pregnant or by whom, and Ms. Cheney did not respond to messages left at her office and with her book publisher, Simon & Schuster. The announcement of the pregnancy, which was first reported Wednesday by The Washington Post, and Ms. Cheney’s future status as a same-sex parent, prompted new debate over the administration’s opposition to gay marriage." By Jim Rutenberg, N.Y. Times Link to Article (last visited 12-7-06 NVS)
"An Indian tribe has given its consent to a lesbian 'marriage' in the eastern Indian state of Orissa. A priest belonging to the Kandha tribe led the ceremony between Wetka Polang, 30, and Melka Nilsa, 22, in Koraput district recently. Both the women are day labourers and now live together in Dandabadi village. Same-sex relationships are outlawed in India. The 145-year-old colonial Indian Penal Code clearly describes a same sex relationship as an "unnatural offence". Sociologists say that a community blessing a same-sex 'marriage' is unheard of in India." by Sanjaya Jena, BBC News Link to Article (last visited 12-7-06 NVS)
"In some parts of the world children can find themselves married before they've even become teenagers. As part of the BBC's Generation Next series, one such bride - Nigerian Sa'adiyya Shu'aibu Dambatta, who is now happily married to someone else - talks about her first marriage. "I was married off when I was just 12 years old - and very immature. No-one has asked me whether I liked the man or not. When it was time for the marriage, I just heard that I had been married to him. I was then taken to his house, but I did not stay. I suffered a lot. I would run away from the house at one o'clock or two o'clock in the night, and go to my parents." BBC News, Link to Article (last visited 12-71-6)
Wednesday, December 6, 2006
The Nevada Supreme Court addresses its rules of professional conduct that prohibit contingent fees in domestic relations matters in a case involving litigation over a 25-year-old divorce settlement. The agreement addressed alimony and community property distribution through a $600,000 promissory note in which Husband was to pay Wife for her half of the community property by paying up to $ 50,000 per year in principal and monthly interest-only payments, beginning at a rate of 6%. The increase in interest payments each year, based on annual adjustments according to the consumer price index, served as Wife's alimony. The note prohibited Husband from prepaying principal, and instead provided that Wife could demand up to $ 50,000 of principal annually. If Wife never demanded principal, interest would accrue indefinitely; if she requested the maximum every year, then the note would be fully paid in twelve years. 25 years later, with Husband having paid a total over over twice the original note amount and with monthly payments of $8,500, he brought a civil action to reform, rescind, or recover damages based on usury, unconscionability, and fraud.
Wife's attorneys offered her the choice of a $ 5,000 retainer with hourly billing or a one-third contingency fee. She insisted on a contingency arrangement. Ultimately, the firm negotiated a settlement for Wife of a $ 600,000 lump sum payment, an amount that was more than she had indicated she would be willing to settle and which entitled the firm to $ 200,000 fees.
In this action, seeking a writ to review the trial court's decision to enforce the contingent fee agreement, the Nevada Supreme Court found that the fee was indeed contingent and involved alimony, thus violating the rule of professional conduct. The court reviewed decisions from other states, some of which recognized exceptions to the contingent fee prohibition for collecting past due support, but concluded that in the context of this action, this was not an action for past due support but an action whose outcome would determine the amount of future alimony Wife would receive.
A dissenting judge would interpret the rule to permit such a contingency fee agreement and urged the court to modify its rule in the future.
Marquis & Aurbach v. Eighth Judicial Dist. Court, 122 Nev. Adv. Rep. 97 (November 30, 2006)
Opinion on web (last visited December 5, 2006 bgf)
Case Law Development: Michigan Court Lets Stand Parental Agreement that Future Child Support Shall Be Satisfied From Alimony
I regularly have students ask about parental agreements that waive child support and assure the students that parents may not bargain away their duty to support their children. But then I see cases like this one, in which the Supreme Court of Michigan over a strongly worded dissent denied appeal of a case in which the parents agreed that if the father was ordered to pay any child support in the future, the obligation must be satisfied entirely from the mother's alimony. The dissenting judge noted that "The 'deal' that the parents agreed on is unusual in the annals of divorce law in this state [and] may well be in violation of public policy."
Laffin v. Laffin, 2006 Mich. LEXIS 2788 (November 29, 2006)bgf
In most states, there is no right to a jury trial in dissolution actions. Only eleven states allow juries in any aspect of divorce litigation (Colorado, Georgia, Illinois, Louisiana, Maine, Nevada, New York, North Carolina, Tennessee, Texas and Wisconsin). Most of these limit the right to a jury to try issues regarding grounds or entitlement for divorce only. Texas provides jury trial rights most broadly, including even the right to a jury trial on questions regarding child custody. (For citations, see the annotation on the subject at 56 A.L.R.4th 955).
Accordingly, cases discussing evidentiary issues in divorce actions are a rarity. A recent Georgia Supreme Court decision demonstrates that, few evidentiary errors will be likely to be sufficiently egregious to rise above the harmless error standard. Husband had alleged numerous evidentiary errors in the divorce action, including, for example, allowing cross examination regarding husband's opinion as to fair alimony and property division, admitting an improperly authenticated document, and allowing witness testimony impeaching the testimony of the husband's lover before the lover testified. As to each, the supreme court found the error harmless. The court also rejected husband's appeal of the denial of a mistrial based on improper closing arguments due to a failure to object during that argument.
Moxley v. Moxley, 2006 Ga. LEXIS 987 (November 28, 2006)
Opinion on web (last visited December 4, 2006 bgf)
Case Law Development: Missouri Court Addresses Child's Preferences in Custody Modification Litigation
The Missouri Court of Appeals reviewed a custody modification case presenting some classic issues in custody litigation regarding a child's preferences and bonds with a sibling. The case involved a motion for change of custody of an 11-year-old son and 17-year-old daughter. For seven years, the parents had joint custody of the children, but Mother in this action sought sole custody, alleging that father was abusive to the children. Daughter, who was pregnant at the time of the custody modification, strongly objected to living with her father. The trial court modified the original custody order, continuing the joint custody but revised the parenting plan to provide that the children would live primarily with mother and restricting father's parenting time with daughter until he had completed counseling sessions. Father argued on appeal that there was no substantial change in circumstances had occurred with respect to the son so as to justify a modification. However, the court found that the son's strong bond to his sister coupled with her refusal to return to her father's home were sufficient evidence of changed circumstances. At the suggestion of the GAL, the court ascertained the wishes of both children regarding custody (both preferred living with mother) through in-chambers interviews with the children. Father argued that the court's refusal to allow Father's counsel to directly question the children during their interview in chambers was reversible error, but the court of appeals disagreed, noting that Father had not objected at that time and that the attorneys could have interviewed the children directly by calling them as witnesses. Father also alleged that the requirement that he complete anger management or counseling sessions was too vague, but the court found the condition clear, especially given that daughter was already in counseling and the order specified that completing family counseling with daughter would fulfill this requirement. The court reversed and remanded to the trial court for the trial court to fulfill the statutory requirements regarding specifying parenting time as to certain holidays and special occasions which the trial court had omitted from the plan.
In re Murphey, 2006 Mo. App. LEXIS 1830 (December 4, 2006)
Opinion on the web
Law professors are facing off in a Kansas Supreme Court case that could decide the parental rights of sperm donors. The suit argued on Monday before the court concerns a Shawnee County man who donated sperm to a friend. The woman underwent artificial insemination and delivered twins in May 2005. The man argues that he always intended to act as a father to the children. No agreement was put into writing, however, and a judge later decided the man had no rights as a father. Kansas law denies parental rights to sperm donors unless they have a written agreement with the mother specifying that they will act as father. The 1994 law was designed to protect children conceived through artificial insemination from frivolous custody disputes, as well as to safeguard donors from child support lawsuits.
The Kansas City Star reports that:
Family law experts have lined up on both sides of the case. Linda Henry Elrod, a family law professor at Washburn University, filed a legal brief in which she sided with the donor. Elrod argues that to require a man to have a written agreement before he has parental rights over his biological children is to violate his constitutional rights. The law, she wrote, “cannot take away a constitutional right to be a parent” without due process. But 21 other family law experts across the country filed a brief supporting the woman. They argued that the Kansas law in effect protects the interests of children created through sperm donation, as well as the mothers and the donors, by requiring any agreements to be set down in writing. One of those professors, Nancy Polikoff, a family law professor at American University, said “biology is not enough” to give the man parental rights. The law assumes the mother (and any husband or partner she might have) will have custody when it comes to children of sperm donors. Without the Kansas law, she said, women could face custody battles from donors, or donors could find themselves being asked to support a child they never intended to know. Both professors agreed that the case, the first of its kind in Kansas, is blazing new legal territory. “It’s the Wild West out there,” Elrod said. “The advances in technology are just way ahead of where the law is.”
December 4, 2006 bgf
Tuesday, December 5, 2006
"Life in a government-run shelter for illegal immigrant children might not sound very inviting, but for 16-year-old Sandra it's a vast improvement from what she left behind in Guatemala. For starters, she has enough to eat and nobody beats her. She even gets to study, a luxury she hasn't had since leaving school in third grade. She's been on her own since she was 10, when she fled an abusive home in Guatemala. She was picked up by U.S. immigration authorities two months ago while trying to enter the country illegally through the Arizona desert. She's among two dozen children at the shelter in Fullerton, about 35 miles southeast of Los Angeles. ''I feel more protected here than I've ever felt. It's like I'm a young girl again,'' said Sandra, whose last name could not be disclosed because she is a minor in government custody." Associated Press, N.Y. Times Link to Article (last visited 12-4-06 NVS)
"A look at America's immigration courts shows a system where many children lack legal representation, where frustrated judges find themselves explaining the law to 12-year-olds, often through a translator, and where the government itself has no real measure of the problem. Though some new efforts are beginning to address the issue, advocates worry about child trafficking, smuggling or abuse that may go unnoticed because children don't know how to ask for help. In immigration court, the government treats detained children like immigrant adults, giving them a phone list of volunteer lawyers. Often, no call is made." Associated Press, N.Y. Times Link to Article (last visited 12-4-06 NVS)
"Until recently, many children who did not conform to gender norms in their clothing or behavior and identified intensely with the opposite sex were steered to psychoanalysis or behavior modification. But as advocates gain ground for what they call gender-identity rights, evidenced most recently by New York City’s decision to let people alter the sex listed on their birth certificates, a major change is taking place among schools and families. Children as young as 5 who display predispositions to dress like the opposite sex are being supported by a growing number of young parents, educators and mental health professionals." By Patricia Leigh Brown, N.Y. Times Link to Article (last visited 12-4-06 NVS)
"A woman who delivered a stillborn child claims in a lawsuit that a hospital released the wrong body to a funeral home for cremation and took more than a month to inform her of the mix-up. Jordan Engelhardt, of Flint, said in a lawsuit filed in Oakland County Circuit Court that she learned last January that an urn of ashes on the mantel of her home did not contain the remains of her son, Maxxwell Sebastian Engelhardt. Engelhardt said she and her husband received a call from an employee of North Oakland Medical Center informing her of the mixup. It came while Sebastian's twin sister, was hospitalized. Both babies were premature." By Associated Press, N. Y. Times, Link to Article (last visited 12-4-06 NVS)
Monday, December 4, 2006
My students are sometimes frustrated by the large degree of deference given to trial courts in custody and visitation matters, leading to an attitude that "no case is predictible." To counter this perception, I like to share cases in which discretion is limited by the facts alone. The North Dakota Supreme Court provides one such case in which it holds that a trial court erred in determining that no change in circumstances justified modification of a visitation schedule. Mother and Father had lived in the same town when visitation was established, but Mother and the child moved to a distant town thereafter. That same month Father was diagnosed with a serious disease requiring a twelve-month-long course of weekly treatments. He received treatments on Fridays, resulting in his exhaustion. He requested that Wife be required to assist in getting the child to him for his twice-a-month visitation, as driving to her home to pick up his child became physically difficult as well as more expensive and time-consuming.
On this record, the court concluded that "the change in circumstances since the original decree is material as a matter of law."
Ibach v. Zacher, 2006 ND 244 (November 28, 2006)
Opinion on web (last visited December 4, 2006 bgf)