February 4, 2006
South Carolina Solicitors Association Rejects Plan to Place Prosecutors in Every County To Concentrate on Criminal Domestic Violence Cases
The South Carolina Solicitors Association rejected State Attorney General Henry McMaster's plan to put a prosecutor in every county magistrate’s court to concentrate on criminal domestic violence cases. Unless the group changes its mind, the Attorney General is threatening to ask that the $2.2 million dollars, initially given to the state Commission on Prosecution Coordination, be placed under his control. He said that he will then hire lawyers to prosecute domestic violence criminal cases in these courts. Source: Rick Brundrett, Myrtle Beach Online, siliconvalley.com. For complete details about this story, please click here (last visited February 4, 2006, reo).
Illinois Bishop Says He Felt No Obligation to Tell Authorities About Alleged Sexual Abuse
Joliet, Illinois Bishop Joseph Imesch said during a deposition that has been released at the request of the Chicago Tribune and the Illinois Coalition Against Sexual Abuse that a priest he worked with in Michigan had confided that he sexually abused an altar boy. Bishop Imesch said he felt no obligation to tell authorities who were investigating the incident. The deposition is part of a lawsuit in which it is alleged that another priest, Rev. Edward Stefanich, sexually abused a man in the 1960s. The diocese had fought to keep the document sealed arguing that its release allows the case to be tried in the media before any ruling could be made on evidence. Source: Crystal Yednak, David Heinzmann, Chicago Tribune, chicagotribune.com. For complete details about this story, please click here (last visited February 4, 2006, reo).
Virginia Senate Passes Bill Requiring Clergy to Report Child Abuse
By a vote of 21-18, the Virginia Senate approved a bill this week requiring clergy to report child abuse. The bill has drawn opposition from the Virginia Assembly of Independent Baptists who contend that the legislation would essentially make ministers law-enforcement agents of the state and deter abusers from seeking pastoral counseling. The bill now moves to the House of Delegates where similar legislation has failed two years in a row in the House Courts of Justice Committee. However, it is thought that recent changes in the committee's membership may help improve the bill's chances this year. Source: AP, Wjla.com. For the complete story, please click here (last visited February 4, 2006, reo). Virginia State Senate Bill No. 253 may be found here.
Utah Bill Would Give Out-of-State Dads 20 days to Begin Paternity Proceedings
Legislation being considered by the Utah Legislature would set time limits for out-of-state, unmarried fathers to oppose their children's adoption. The proposal, which passed the Utah House Health and Human Services Committee Tuesday, would give out-of-state dads 20 days after learning a mother has come to Utah to begin paternity proceedings here. If the father doesn't discover the mother's whereabouts until after she has already consented to the adoption, he must follow the laws of the mother's home state to challenge the adoption. Source: Elizabeth Neff, Salt Lake Tribune, sltrib.com. For the complete story, please click here (last visited February 4, 2006, reo). A copy of the proposed bill, Utah HB 130, may be found here.
Michigan Man Falsely Convicted of Murder Owes $38,000 in Child Support
A Michigan man, Larry Souter, served 13 years in prison for a murder he did not commit. He stopped paying his ex-wife $100 dollars each week for child support when he went to prison in 1992. Now, with interest and penalties, Souter owes more than $13,000 in back child support. Souter was released from prison this year after his lawyer discovered evidence that would have helped clear him of the charge. Source: WLNS-TV News, wlns.com. For the complete story, please click here (last visited February 4, 2006, reo).
February 3, 2006
Case Law Development: Court may Strike Answer and Estop Father From Denying Income Amount as Sanction for Refusing to Comply with Discovery
The Texas Court of Appeals has dealt another blow against hard-ball litigation tactics. In a paternity case, Father stonewalled repeated orders to provide financial information in discovery for nearly a year when the court finally ordered that he comply with discovery or have his answer stricken. Father continued to refuse to provide the information and the court struck his answer and estopped him from denying that his income was less than $6,000 a month (the amount mother was claiming as his income). The court ordered that Father pay $1221 monthly child support and father appealed, arguing that the “death penalty” sanction of striking his answer and basing child support on an income he was estopped from denying constituted a denial of his due process. The court of appeals agreed with the trial court that the refusals to comply with discovery were Father’s fault and did not implicate his attorney. The court found that the sanction had a direct nexus to the misconduct and was not unjust or excessive.
In the interests of J.D.N., 2006 Tex. App. LEXIS 742 (January 27, 2006)
Opinion available on the web (last visited February 2, 2006 bgf)
Case Law Development: 10th Circuit Court of Appeals Lifts Injunction Against Kansas Statute Requiring Reporting of Sexual Activity of Minors
As reported in the posting of February 1st, the US District Court is Kansas has been reviewing the constitutionality of the state statute requiring health care providers to report any evidence of sexual activity by their minor patients. In continuing developments in that case, the 10th Circuit Court of Appeals has vacated the preliminary injunction against enforcement of the statute. The case presented two main issues: whether the health care provider plaintiffs had standing to challenge the reporting statute and whether the district court abused its discretion in entering the preliminary injunction against enforcement of the statute in the context of minors' voluntary sexual activity with age-mates. The 10th Circuit concluded that plaintiffs do have standing, but found that the district court abused its discretion in granting the preliminary injunction.
Aid for Women v. Foulston, 2006 U.S. App. LEXIS 2366 (10th Cir. Ct. App. Jan. 27, 2006)
Opinion on the web (last visited February 2, 2006 bgf)
Physicians have standing because they have injury whether they follow the Attorney General's interpretation of the statute or not. If they follow the interpretation, they risk injury to their professional relationships with patients and violation of their professional norms of confidentiality; if they do not accept the interpretation, they risk prosecution for failing to report sexually active teens. The physicians also have jus tertii standing to assert the rights of their teenage patients as well, as they stand in a close relationship with those patients and the patients have genuine obstacles in bringing their own challenge: they would have to reveal the very private information that they would be seeking to protect by challenging the statute and as teenagers would be unlikely to have the sophistication, resources, or access to the courts to bring such a challenge.
On the preliminary injunction, the court of appeals rejected the use of the more liberal test for a preliminary injunction in which a lesser showing of liklihood of success may still support an injunction where other factors favor the injunction (the "fair ground for litigation" test). Rather, the court applied the traditional test for a preliminary injunction and concluded that the district court had abused its discretion in finding a substantial liklihood of success on the merits in the claims that the statute violated the privacy rights of minors. While recognizing that minors do have privacy rights, the court noted that there is Tenth Circuit precedent that indicates that minors may not have any privacy rights in their concededly criminal sexual conduct and that plaintiffs have not "clearly and unequivocally" shown that the balance between their privacy rights and the government's interests in requiring reporting would weigh in their favor. Moreover, the court found that the trial court had not adequately considered the other factors in a preliminary injunction analysis.
Accordingly the court vacated the preliminary injunction and remanded for additional proceedings. One judge dissented on the issue of vacating the preliminary injunction.
Case Development: Relocation Decisions Following Constested Custody Determinations Do Not Require Evidentiary Hearings
The California Supreme Court addressed the issue, "In a case where sole legal and sole physical custody of a child has been awarded to one parent after a contested custody dispute, and the custodial parent's subsequent decision to relocate with the child is opposed by the noncustodial parent, is the noncustodial parent entitled to an evidentiary hearing on the matter?" and held that it is not error to deny an evidentiary hearing.
The court rejected Mother's argument that, having been awarded sole physical and legal custody of her child, she had the absolute right to relocate. Nonetheless, the court did recognize that "even a parent with sole legal and sole physical custody may be restrained from changing a child's residence, if a court determines the change would be detrimental to the child's rights or welfare." The non-custodial parent must show that the changed circumstances of the the move will be a detriment to the child. Having made that prima facie showing, the court must then determine whether the move or a change in custody is in the best interests of the child.
In this case, Father was unable to establish through the hearing on the petition any detriment to the child or that the move was being proposed in bad faith. His offer of proof on the evidence he would introduce on best interests was insufficient to convince the trial court that a full evidentiary hearing was necessary. The Supreme Court held that the trial court's failure to conduct a full evidentiary hearing under these circumstances was not error.In re Brown, 2006 Cal. LEXIS 1895 (February 2, 2006)
February 2, 2006
Meth and Children
"With Tennessee restricting sales of medications that can be used to make methamphetamine, records show the number of children taken from parents caught making or using the illegal drug is down drastically, possibly by more than half.
The state Department of Children's Services provided records to The Associated Press showing that meth investigations forced the state to take custody of at least 268 children in 2005.
That's down from a department estimate of 750 children taken from their parents because of meth in 2004." By Bill Poovey, The Associate Press Link to Article (last visited 2-1-06 NVS)
Looking Younger Through Marriage
"Danish researchers say a happy marriage and plenty of money can take years off of a person's appearance. The study, conducted by the University of Southern Demark, found that a married woman with a high social status, who has not spent a lot of time in the sun, could look at least seven years younger than a woman who is single, of a low social class and has spent excessive time soaking up harmful rays, the Daily Mail reported." By United Press International Link to Article (last visited 2-1-06 NVS)
"In both the United States and Japan, divorce among older couples is on the rise. The American Association of Retired Persons detailed the phenomenon among American seniors in a study last year, and Japan's wave of "gray divorce" is expected to swell into a deluge, since Japanese women will soon be legally able to claim half of their husband's retirement pensions." By WTOP Link to Article (last visited 1-2-06 NVS)
February 1, 2006
Legislative Development: Ohio to Charge Interest on Unpaid Child Support
Ohio Governor Bob Taft is expected to sign a bill passed earlier by the state legislature that targets deadbeat parents by adding interest charges on unpaid child support. The bill speeds up the time it takes to get paternity tests on children. The bill allows unwed mothers to go directly to a juvenile court to get a genetic paternity test order, bypassing county child enforcement agencies. Source: Ohio News Network, onnnews.com. The story may be found here (last visited February 1, 2006, reo). A copy of the Ohio House Bill, HB 0136, may be found here (last visited February 1, 2006, reo).
Illinois Judge Says Father Owes $381,373 in Back Child Support
In a domestic dispute covering almost eight years, an Illinois father was ordered to pay a record $381,373 in back child support. In making the award, the trial judge criticized the father, Kerry Levin, for allegedly manipulating his income and obfuscating the facts regarding his finances. Mr. Levin is reported to have used nine different lawyers while litigating the matter. Source: Andrew Herrmann, Chicago Sun-Times, suntimes.com. For the complete story, please click here (last visited February 1, 2006, reo).
Kansas Federal Court Considers Whether Health Professionals and Educators Required to Report All Sexual Activity of Persons Under 16
A class action lawsuit began Monday in Federal District Court in Wichita, Kansas to determine whether a Kansas law that bars virtually all sexual activity by people younger than 16 requires health care professionals and educators to report such behavior to state authorities. The lawsuit was triggered by an opinion by Kansas Attorney General Phill Kline in 2003. The Attorney General’s efforts to obtain abortion clinic records is also being challenged in this action. Source: Jodi Rudoren, The New York Times, Austin American Statesman, statesman.com. A detailed story about this case can be found here (last visited February 1, 2006, reo).
Michigan Abortion Opponents Seek Signatures for November Ballot Proposal
Michigan organizers of a campaign opposing abortion in that state have begun to collect signatures for a November ballot proposal. The group called, "Michigan Citizens for Life," seeks to have a state constitutional amendment that defines a person as existing at the moment of conception. The American Civil Liberties Union is opposed to the initiative. Source: WLNS-TV 6, news, wlns.com. The story may be found by clicking here (last visited February 1, 2006, reo).
Wyoming Considering Law to Prosecute Mother’s of Newborn Children Who Test Positive for Exposure to Methamphetamine in the Womb
The Wyoming Legislature is expected next month to consider a new law that would expand the state's criminal child endangerment statute to allow prosecution of mothers whose newborns test positive for exposure to methamphetamine in the womb. It is also expected to consider another bill that would imposte an additional 20-year penalty on a defendant who is found guilty of murdering a pregnant woman. Source: Ben Neary, AP, Billings Gazette, billingsgazette.com. The story may be found by clicking here (last visited February 1, 2006, reo). Download Wyoming_House_Bill_HB0087_as_prepared_for_introduction..pdf
January 31, 2006
Case Law Development: Change in Custody Based on Custodial Parent's Disrespect for Law
The Arkansas Court of Appeals reversed a trial court’s denial of a change of custody and order of an increase in child support. After their divorce, Father had primary custody of their child and Mother had been ordered to pay $25 a week in child support (on earnings of $272). Mother alleged that Father had been physically and emotionally abusing the child and sought a change of custody. Father counterclaimed for a visitation schedule. The trial court found Mother’s claims were not supported and did not amount to a change in circumstances and sua sponte increased her child support to $63 a week.
The court of appeals did not question the trial court’s findings regarding Mother’s allegations of abuse but nonetheless found error in the trial court’s refusal to change custody based on Father’s relationship with legal authority. Father had a series of criminal convictions for passing bad checks, driving on a suspended license, failing to pay fines in those cases as well as a contempt citation for failing to pay attorney’s fees ordered by the divorce decree. “This evidence of repeated lawbreaking, together with the confrontational and disrespectful character of several remarks made by appellee as he testified at trial, leads us reluctantly to the conclusion that appellee has lost the willingness and ability to act as a proper role model for his seven-year-old son, and to teach him the need to afford due respect to the law and to others.” Mother, on the other hand, had been paying twice the amount of child support ordered so that her child would have what he needed and had remarried and her husband was supportive of her request for custody. Thus, the court of appeals held that mother should be granted custody.
Inmon v. Heinley, 2006 Ark. App. LEXIS 71 (January 25, 2006)
Opinion available on the web (last visited January 30, 2006 bgf)
Case Law Development: Unmarried Cohabitants Do Not Qualify as "Spouses" under Insurance Contract
The Alaska Supreme Court holds that an insurance company need not extend benefits to an unmarried cohabitant of an insured under a benefits provision for "spouses" and that this policy does not violate the Alaska Human Rights Act's prohibition of marital status discrimination. The couple in this case had been married for 13 years, had divorced, Husband had remarried and divorced and then the couple had reunited but had not remarried. They had been living together for several years when Husband was hit by a car. He and Wife sought to collect under the insurance policy. The court found that the language of the policy, extending benefits only to "spouses" was unambiguous and, even under a "reasonable expectations" interpretation could not extended to unmarried cohabitants.
Husband also relied on the court's decision University of Alaska v. Tumeo, 933 P.2d 1147 (Alaska 1997), in which the court held that the University of Alaska violated the Human Righst Act by denying benefits to domestic partners while granting those benefits to married individuals. However, the court noted that the Alaska legislature had amended the Human Rights Act to allow differential benefits for married and unmarried individuals after that decision, so there was no discrimination by the insurance company here.
Cole v. State Farm Ins. Co., 2006 Alas. LEXIS 10 (January 27, 2006)
Opinion available on the web (last visited January 30, 2006 bgf)
January 31, 2006 | Permalink
Case Law Development: Mere Offers of Financial Support Insufficient to Entitle Putative Fathers to Notice of Adoption
The Supreme court of North Carolina holds that a putative father need not consent to the adoption of his biological child if he has not provided actual financial support for the child, notwithstanding that he has made offers of support to the mother who has declined the support.
The court reasoned that the bright line rule was consistent with legislative intent and the public policy to ensure prompt placement of children in permanent homes. The court suggested that the rule does not give mothers the power to thwart the rights of putative fathers, as the father
need only provide support for the child (by, for example, opening a trust fund for the child's benefit) not to the child's mother.
In re Anderson, 2006 N.C. LEXIS 5 (January 27, 2006)
Opinion available on the web (last visited January 30, 2006)
Case Law Development: Accrual of Alienation of Affection Claims
The Supreme Court of North Carolina holds that an alienation of affection claim does not accrue until the alienation is complete. The trial court had granted summary judgment to the defendant on the basis that, as a matter of law, the cause of action must accrue no later than the date of separation. However, the supreme court found such a rule inconsistent with the underlying theory of the cause of action and with public policy of encouraging reconciliation. In this case the couple were married in 1968 and had three children together. Husband began an affair and the couple separated in 1998 however, they continued in marriage counseling and to maintain joint purchases and finances until February 2001. Thus, the court held there was a factual question regarding the date of alienation, reversing the trial court's grant of summary judgment.
McCutchen v. McCutchen, 2006 N.C. LEXIS 2 (January 27, 2006)
Opinion available on the web (last visited January 30, 2006 bgf)
January 31, 2006 | Permalink