Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Thursday, December 14, 2006

New Jersey Legislature Approves Civil Unions

The New Jersey Legislature voted this evening to allow civil unions between same-sex couples.  According to the New York Times article, Gov. Jon S. Corzine, who has supported civil unions, he would give the measure careful review but added, “I think we’re doing the right thing.” The Assembly approved the bill in a 56-to-19 vote; the Senate vote was 23-to-12. New Jersey would be the third state, after Vermont and Connecticut, to establish civil unions for gay and lesbian couples. Same-sex marriages are allowed only in Massachusetts, which has a residency requirement, although many gays and lesbians have married in Canada.

The legislation comes after the New Jersey Supreme Court decision of seven weeks ago (See October 26 Family Law Prof Blog posting) which required that the gay couples be given access to the same rights and benefits as married couples.


December 14, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Russian Teen Sues Over Evolution

"A Russian court on Wednesday held hearings in an unprecedented lawsuit brought by a 15-year-old student who says being taught the theory of evolution in school violates her rights and insults her religious beliefs." AP, Yahoo News Link to Article (last visited 12-13-06 NVS)

December 14, 2006 | Permalink | Comments (0) | TrackBack (0)

Child Workers in India

"Despite a government ban on child labor, Prabhu is one of tens of thousands of children in India who work in horrific conditions in often dangerous industries to support their poor families. Across the country, children stuff explosives into fireworks to be lit during religious festivals and extravagant wedding celebrations, or weave carpets, sew textiles and make everything from footballs to cricket bats to sulphur-tipped matchsticks. Around the town of Firozabad, about 230 km (140 miles) southeast of New Delhi and the hub of India's glassware industry, 50,000 child workers endure lives similar to Prabhu's laboring away in dozens of factories, rights groups estimate." By Palash Kumar, Reuters Link to Article (last visited 12-13-06 NVS)

December 14, 2006 | Permalink | Comments (0) | TrackBack (0)

Woman Denied Abortion Takes Poland to European Court of Human Rights

"When Tysiac, who suffers from an acute eye disease, found she was pregnant for a third time in 2000, she was told by a doctor that the pregnancy, if carried to term, could leave her blind. She asked for an abortion but approval was delayed until she had passed the 12-week limit for the procedure. After the birth of her third child, Tysiac's eyesight degenerated until she was almost totally blind, unable to care for her children. Now 36, she is registered as disabled.

Tysiac has taken Poland to the European Court of Human Rights saying her rights were violated. But even as she fights her case, a movement within overwhelmingly Roman Catholic Poland wants to make having an abortion more difficult." By Gabriela Baczynska, Reuters Link to Article (last visited 12-13-06 NVS)

December 14, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Women-Only Taxi Company in Iran

"Iran will launch a women-only taxi company in Tehran aimed at women who feel uncomfortable riding in close proximity with members of the opposite sex, a newspaper reported Saturday.

"The Ladies' Safe Trips" taxi company, due to open for business in the next few weeks, will be the first such private sector firm in the capital. Similar taxi lines have been operating in some provincial cities for several years. The company will only employ female drivers who will wear uniforms and must be married, the Tehran-e Emrouz newspaper said." Reuters Link to Article (last visited 12-13-06 NVS)

December 14, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 13, 2006

More on jury trials in divorce actions

In the December 6 post on the use of juries in divorce actions,  I cited the ALR on the states that allow a jury trial right in any part.  Since then, the corrections have been rolling in. 

A Colorado attorney, Andrew Oh-Willeke, graciously pointed out that the ALR is not up to date on Colorado law on this issue, as the Colorado Dissolution of Marriage Act provides that "All issues raised by these proceedings shall be resolved by the court sitting without a jury." Section 14-10-107(6), Colorado Revised Statutes. He also notes recent case law applying that statute to conclude that "All issues raised or presented in a dissolution proceeding are to be resolved by the court in equity sitting without a jury." In re Marriage of Lewis, 66 P.3d 204, 205 (Colo. App. 2003)(opinion on the web). Attorney Oh-Willeke comments on this case and its impact on joinder of tort or contract claims with divorce actions in his blog posting

Illinois as well is listing in the ALR as allowing jury trials, but a reader has advised me that Illinois has not had jury trials in dissolution proceedings since at least 1977, citing 750 ILCS 5/103. 

Thanks for the updates!   


December 13, 2006 | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Caretaking does not Include Breadwinning in Proving De Facto Parent Status

The Massachusetts Supreme Court considers two questions of first impression in a case involving a custody dispute between a lesbian couple. The court concludes that an adult who is neither the biological nor the adoptive parent of a minor child may assert custody and support rights as a "de facto parent," but affirmed the trial court's finding that the second parent in this case had not proven sufficient facts to prove her status as de facto parent.  The non-biological parent was the primary breadwinner and was away from home with her employment a significant period of time.  She argued, however, that her economic contributions to the family should be considered as caretaking for proving de fact parent status.  The court disagreed, however, citing the ALI Principles of the Law of Family Dissolution, the court noted that "he notion of "caretaking" as the particular subset of parenting tasks having most directly to do with interacting with and on behalf of the child serves as a valuable tool for assessing the adult's bond with the child."  The court also rejects the invitation to recognize estoppel principles as creating parental rights where the party claiming such rights is neither the biological nor adoptive parent of the child and does not meet the criteria of a de facto parent.

A.H. v. M.P., 2006 Mass. LEXIS 692 (December 8, 2006)
Opinion on the web (last visited December 13, 2006 bgf)

December 13, 2006 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Kentucky Rejects Distinction between Enterprise and Personal Goodwill

In a case in which the value of wife's solo medical practice was the subject of considerable dispute, the Kentucky Court of Appeals refuses the invitation to join the majority of state that distinguish between enterprise goodwill and personal goodwill in valuing a business upon dissolution.  The court reviewed a number of cases from other jurisdicitons on either side of the issue and concluded that "After considering the issue and the facts of this case, we are not inclined to deviate from long-standing precedent by creating a wholesale change of law holding that "personal" and "enterprise" goodwill should be distinguished for purposes of property valuation in a divorce proceeding - even given that [Wife's] practice is a sole proprietorship. Issues of stare decisis aside, we believe that "[i]t would be inequitable to hold that the form of the business enterprise can defeat the community's interest in the professional goodwill. Such a result ignores the contribution made by the non-professional spouse to the success of the professional ...."  The court noted that the husband made a number of contributions directly to the wife's medical practice, including "training a number of administrative personnel and handling a number of financial aspects of the practice."

A dissenting judge found the arguments in favor of distinguishing between the two forms of goodwill, but agreed with the majority that that matter was for the Kentucky Supreme Court.

Gaskill v. Robbins, 2006 Ky. App. LEXIS 364 (December 8, 2006)
Opinion on the web (last visited December 13, 2006 bgf)

December 13, 2006 in Property Division | Permalink | Comments (1) | TrackBack (0)

Legal Scholarship Network Posts Conference Papers

Conference on Representing Children in Families: Children's Advocacy and Justice Ten Years after Fordham, which was hosted at the University Nevada Las Vegas January 11-14, 2006 are now available at SSRN.   

December 13, 2006 | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Kansas Family Law Attorney Suspended Indefinitely

In a disciplinary case that appears to include nearly every major violation of the ethics rules possible in three different family law cases, including abandoning clients, settling cases without client authority, and diverting client funds,  the Supreme Court of Kansas indefinitely suspended the attorney.  A minority of the court would have disbarred the attorney, but the majority agreed with the hearing panel that the attorney's struggles with depression and cocaine addiction and his work on recovery over the previous year's time were mitigating factors. 

According to the ABA Commission on Lawyer's Assistance Programs, "while ten percent of the general population has problems with alcohol abuse, anywhere from fifteen to eighteen percent of the lawyer population battles the same problem." I have long wondered whether those numbers might be even higher for attorneys who practice in the emotionally stressful context of family law.  I would be very interested in hearing of any studies or programs addressing this issue among family law attorneys in particular.

In re Lampson, 2006 Kan. LEXIS 707 (December 8, 2006)
Opinion on the web (last visited December 13, 2006 bgf)

December 13, 2006 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Improper Factors in Calculating Maintenance

The Supreme Court of Connecticut has affirmed the court of appeals ruling in a case in which a couple were married for 11 years, lived together for a number of years and then remarried for six years.  (See Family Law Prof Blog post of February 10, 2006) The cour of appeals had found that the trial court, in fixing the term of the maintenance award, improperly took into consideration both the prior marriage and cohabitation and the fact that there were adult children with grandchildren residing in the house.
The court concludes that " 'length of the marriage' criterion prescribed in [statutes governing maintenance awards], as a matter of law, does not include prior marriages or cohabitation preceding the marriage." 

As to the issue of the maintenance order being a disguished child support order for the adult children and grandchild in the home, the court reviewed cases from a number of other jurisdictions on the issue.  The court noted that the need to care for minor children can property affect alimony because of the lesser income a custodial parent is able to earn while caring for a minor child, but even then, "an alimony award should address the needs of that parent, not the minor child, whose needs properly are addressed under a support order."  However, the court found no justification for considering the impact of an adult child or grandchild in the home in crafting alimony.

Loughlin v. Loughlin, 2006 Conn. LEXIS 463  (December 12, 2006)
Opinion on the web (last visited December 13, 2006 bgf)

December 13, 2006 in Maintenance (alimony) | Permalink | Comments (0) | TrackBack (0)

Court considers flexibility of fixed divorce agreements

The Missouri Supreme Court heard arguments today in a case in which a man claims he should no longer have to make payments to his ex-wife because she tried to hire a hit man to kill him.  The ex wife had not been charged with trying to have her ex husband, a St. Louis police captain, killed.  The maintenance agreement the couple had entered into was designated "nonmodifiable" and ex-husband had agreed to pay $2,425 a month in maintenance.  The trial court found the agreement could not be changed and dismissed the case. Arguments in the Missouri Supreme Court focused on crafting a public policy exception to the binding nature of maintenance agreements.

Read the AP article by Kelly Wiese (last visited December 13, 2006 bgf)

December 13, 2006 | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Parent of Child Who Has Been Abused May Not be the Monitor for Child's Supervised Visitation with the Abusive Parent.

The trial court allowed a father, who sexually abused his adopted son,  to return to the family home on weekends and designated the non-offending second parent as the monitor after finding that both parents had been participating in counseling and parenting classes.  The non-offending parent was employed full time and the offending parent had been a stay-at-home parent.

The court of appeals reversed, because it found that the offending parent's return to the family home under these circumstances could not meet the needs of monitored visitation.  It reasoned that even if the non-offending parent were able to arrange for another adult to monitor the visit while he was at work, "living together in the family residence will necessarily mean periods exist, even if somewhat brief (for example, when [non-offending parent] is asleep or showering), when the designated monitor will be unavailable. At least when the threat to the dependent child is the likely recurrence of sexual abuse, the concept of monitored visitation is fundamentally incompatible with around-the-clock in-home contact."

In re Ethan G., 2006 Cal. App. LEXIS 1922 (December 6, 2006)
Opinion on the web (last visited December 13, 2006 bgf)

December 13, 2006 in Child Abuse | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 12, 2006

New Orleans Baby Boom

"First came the storm. Then came the workers. Now comes the baby boom. In the latest twist to the demographic transformation of New Orleans since it was swamped by Hurricane Katrina last year, hundreds of babies are being born to Latino immigrant workers, both legal and illegal, who flocked to the city to toil on its reconstruction.

The throng of babies gurgling in the handful of operational maternity wards here has come as a big surprise — and a financial strain — to this historically black and white city, which before the hurricane had only a small Latino community and virtually no experience of illegal immigration." By Eduardo Porter, N.Y. Times Link to Article (last visited 12-11-06 NVS)

December 12, 2006 | Permalink | Comments (0) | TrackBack (0)

Abuse and Neglect Reports Increase in New York City

"In the year since a 7-year-old was found beaten to death in a rodent-infested room in her family's apartment, the city's child welfare agency has improved staffing, case tracking and coordination with other city agencies. At the same time, however, it has seen an extraordinary increase in the number of child abuse and neglect reports, the agency says in a progress report due for release Monday. The Administration for Children's Services has received about 64,000 reports of abuse and neglect this year -- up about 33 percent from last year.

''We've dealt with a challenge that I have never seen the like of anywhere in the country -- a huge explosion in the number of reports,'' agency Commissioner John Mattingly said. ''We've had to investigate every one of them.''" Associate Press, N.Y. Times Link to Article (last visited 12-11-06 NVS)

December 12, 2006 in Child Abuse | Permalink | Comments (0) | TrackBack (0)

Decision Making Input of Mothers Related to Well-being of Children

"Children are likely to be undernourished in households where women are denied a voice in family decisions like doctor visits, food expenditures and trips to see friends and relatives, says a report by the U.N. Children's Fund, UNICEF, released on Monday. Tracing the life cycle of women, the report said eliminating discrimination against women has a profound impact on the survival and well-being of boys and girls.

``When woman are empowered to lead full and productive lives, children and families prosper,'' said Ann Veneman, UNICEF's executive director in releasing the agency's flagship report, timed for its 60th anniversary." By Reuters, N.Y. Times Link to Article (last visited 12-11-06 NVS)

December 12, 2006 | Permalink | Comments (0) | TrackBack (0)

Parliment Declines to Revisit Same-Sex Marriage

"Parliament voted down a motion by the government of Prime Minister Stephen Harper to revisit the 2005 law that allows same-sex marriages."  By Christopher Mason, N.Y. Times Link to Article (last visited 12-11-06 NVS)

December 12, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Meta-Study on Paternity Confidence

"Here’s an unpleasant figure for a man to ponder: 10 percent of all children conceived in the context of a marriage (or a less formal heterosexual pairing) have been fathered by someone from outside the couple. “Dad” has been cuckolded. Or so many biologists and anthropologists have been saying for decades.

But in the June issue of Current Anthropology, Kermyt G. Anderson, a professor of anthropology at the University of Oklahoma, cast serious doubt on the 10 percent figure. Girlfriends and wives, it seems, are less worthy of distrust than many scientists have thought. “The upshot,” Anderson says, “is that you shouldn’t be worried, if you are pretty sure the kid is yours.”

Anderson’s was a meta-study: he examined every paper or reference he could locate that touched on the topic. First he identified 22 studies, dating back to 1949, in which men with few or no doubts about their paternity learned that they weren’t related to one of “their” kids. These studies were mostly designed to explore genetically linked traits in fathers and children. Presumably, if you or your wife suspected you were unrelated to a child, you’d find an excuse not to take part in a genetic study like that, so Anderson determined that these men had high paternity confidence. Collectively in these studies, only 1.7 percent of men learned they were not the true fathers." By Christopher Shea, N.Y. Times Link to Article (last visited 12-11-06 NVS)

December 12, 2006 in Paternity | Permalink | Comments (0) | TrackBack (0)

Visitation Rights of Same-Sex Parent Considered by Minnesota Supreme Court

"Marilyn Johnson and Nancy SooHoo, like a growing number of gay and lesbian couples in Minnesota, became parents through international adoptions a decade ago. Now separated, they are embroiled in a child-visitation dispute that has reached the Minnesota Supreme Court. The court's decision could set a precedent in a new frontier in family law: determining the future visitation rights of nontraditional parents. SooHoo never legally adopted the children, but was granted visitation privileges in 2005. Johnson, who is the sole legal parent, appealed those privileges to the state's highest court." By Jean Hopfensperger, Star Tribune Link to Article (last visited 12-11-05 NVS)

December 12, 2006 in Visitation | Permalink | Comments (0) | TrackBack (0)