February 11, 2006
South Dakota House Votes to Ban Abortions
The South Dakota House approved a bill Thursday that would effectively ban almost all abortions in the state. The measure now goes to the state Senate. House Bill 1215, cleared the state House by a vote of 47 to 22 after a little more than an hour of debate. Proponents of the legislation contend that that the time is right to mount a challenge to Roe v. Wade and hope a challenge to this bill if it becomes law would achieve that result. Source: Melanie Hunter, CNSNews.com Senior Editor, cnsnews.com. For the complete story, please click here (last visited February 11, 2006, reo.) Download South_Dakota_HB_1215_as_introduced.pdf
Idaho Moves Closer to Constitutional Vote to Define Marriage as Union between Man and Woman
The Idaho Senate State Affairs Committee Friday morning voted 5-4 in favor of sending a bill to the floor that would define marriage as a union between a man and a woman. Proponents claim that Idaho’s current statutory law, which bans gay marriage, may still allow judges at some point to re-define marriage. Source: Thanh Tan, kbci2-tv, kbcitv.com. For the complete story, please click here (last visited February 11, 2006, reo.) The bill in the form it passed the Idaho House of Representatives may be found here.
New Jersey Lesbian Couple Seek to Have Names on Birth Certificate
A New Jersey lesbian couple are asking a Superior Court Judge to list both of their names on the birth certificate of a child born to one of them. The trial court has delayed a decision so it can hear additional arguments regarding the potential harm the couple and the child could face while pursuing adoption. The State Attorney General’s Office contends that the only way they both can obtain full parental rights is by adoption. The lawyer for the couple contends that adoption is expensive and lengthy, taking an estimated six to nine months to complete. He argues that New Jersey’s artificial insemination statute extends to same-sex partners; the Attorney General’s Office disagrees. The couple is registered as domestic partners in New York, and the registration is recognized by New Jersey. Source: Karen Sudol, Asbury Park Press, app.com. For the complete story, please click here (last visited February 11, 2006, reo.)
Chinese Mom Must Pay Dad for False Paternity
A Beijing, China court recently ordered a woman to pay 25,000 yuan (US $3,100) in compensation to her ex-husband for having a son by another man — and passing him off as her husband's son. The woman gave birth to a boy soon after she married her husband who believed he was the father. He didn't learn otherwise until last year when his wife filed for divorce. Source: ShanghaiDaily.com. For the complete story, please click here (last visited February 11, 2006, reo.)
Rare Birth Defect Increasing in Polygamous Community
A rare, severe birth defect is on the rise in an inbred polygamous community on the Arizona-Utah border. It is thought that the cause of the defect is intermarriage among close relatives who have two copies of a recessive gene for a debilitating condition called fumarase deficiency. The enzyme irregularity causes severe mental retardation, epileptic seizures and other effects that often leaves children unable to take care of themselves. Source: AP, azcentral.com. For the complete story, please click here (last visited February 11, 2006, reo.)
South Dakota Seeks to License Abortion Clinics
On Thursday, the South Dakota House Health Committee passed SB185, which would require abortion clinics in that state to be licensed and monitored. The bill has already passed by the State Senate. If it becomes law, the state South Dakota Health Department would license and inspect clinics to make sure they comply with all regulations. Abortion clinics would need at least one staff doctor who is licensed by the state Medical Board and licensing fees could reportedly be as high as $2,000. Source: Black Hills Pioneer, zwire.com. For the complete story, please click here (last visited February 11, 2006, reo.) Download South_Dakota_Abortion_Bill_185_as_introduced.pdf
February 10, 2006
Case Law Development: Alimony and Property Division May not Be Based on Entirety of Relationship but only the Marriage being Dissolved
In this case, the couple were married for 11 years, had three children, divorced, reconciled and cohabited for a number of years, and then remarried for another six years. At the time of their second divorce, their children were between the ages of 16 and 22 and the 20-year-old had a child. (I always wonder how common this situation is. I haven't found much research on the subject. Professor Howard Wineberg has reported that "Approximately 10 percent of all currently married couples in the United States have separated and reconciled" Wineberg and McCarthy, "Separtion and reconciliation in American marriages," 29 Journal of Divorce & Remarriage 131-46 (1993) and my students' anecdotal reports of these situations tend to run at a rate of about 1 out of 150 students.)
The trial court granted Wife the marital home, half of Husband's pension, and 12 years of non-modifiable maintenance. Husband appealed, arguing that the trial court had improperly relied on the total length of the parties' relationship rather than on the length of their second marriage only in making these awards. The Connecticut Court of Appeals agreed with Husband and reversed. The court reviewed Connecticut law on the status of cohabitants and concluded that the trial court clearly could not take the period of cohabitation into account as this would undermine Connecticut publicc policy, which makes "a clear distinction between marriage and mere cohabitation, even when that cohabitation was preceded by, or ultimately led to, a marital relationship.... parties who have made the formal commitment of marriage are afforded greater rights and protections than those who choose to reside together informally." As to the consideration of the first marriage, the court noted this issue was closer but ultimately concluded that the plain language of the statute, the principal of res judicata, and the guidance of the decisions of other states in "serial marriage cases" all supported the court's conclusion that the trial court erred in considering, as equitable factors, the prior marriage.
Loughlin v. Loughlin, 2006 Conn. App. LEXIS 58 (February 7, 2006)
Opinion on the web (last visited February 10, 2006 bgf)
Case Law Development: Attempted Remarriage Before Dissolution of First Marriage Does Not Terminate Termporary Orders
This case makes for a good variation on the void marriage problems we typically teach in family law. Here, Husband and Wife were married for over 13 years. Husband filed for divorce and the court issued temporary orders requiring Husband to pay maintenance to Wife. While the divorce was still pending, Wife, who had a significant alcohol problem, remarried in Nevada.
Husband asked the court to grant the divorce and to enter the judgment nunc pro tunc, arguing that a nunc pro tunc judgment dissolving the as of a date prior to her remarriage would render her most recent marriage valid and he would be relieved of the obligation to pay temporary spousal support. Husband also argued that Wife's remarriage, even though void, triggered the statutory provision that terminates support orders upon "death or remarriage." California statutes, like the majority of states (See November 8 Family Law Prof Blog post), terminates support orders as a matter of law upon remarriage. The trial court denied Husband's motions and the California Court of Appeals affirmed.
The court reasoned that "Since remarriage is a legal impossibility in California prior to dissolution of the existing marriage, it is reasonable to conclude that the Legislature never expected or intended that 'remarriage,' within the meaning of [the statute terminating support] would encompass an attempted remarriage prior to dissolution of the first marriage....Our conclusion is consistent with principles of common sense and justice. Application of [the statute] prior to dissolution would deprive the trial court of the discretion so necessary at this unsettled stage of the proceedings. It may be that a spouse's attempt to remarry prior to dissolution would warrant termination of temporary support where the conduct was evidence of a real change of circumstances. The court has discretion to terminate support in that case. But where the attempted remarriage is due to a lapse in judgment on the part of the supported spouse and where the supported spouse actually has no means of support, no funds to prosecute the litigation, and no control over the marital property that has yet to be divided, the attempted "remarriage" does not diminish the supported spouse's need for support pending trial. Automatic termination of the temporary support order in that situation would be manifestly unjust and would conflict with the purposes for which temporary spousal support is intended."
In re Campbell, 2006 Cal. App. LEXIS 155 (February 7, 2006)
Opinion on the web (last visited February 10, 2006 bgf)
Case Development: California Court Upholds Constitutionality of Best Interests Test as Sole Criterion for Terminating Guardianships
As discussed in prior Family Law Prof Blog case law developments, many state laws allow courts to deny terminating a minor guardianship and returning the child to the biological parents where such a change would not be in the best interest of the child. The California Court of Appeals has upheld the constitutionality of this standard, citing a number of United State Supreme Court decisions in paternity cases for the principal that parents in these cases have fewer constitutional rights than parents in an intact family.
In this case, minor's parents had placed their daughter with Aunt and Uncle while they resolved violence and alcohol issues. Seeking to terminate the guardianship, the parents argued that the law's use of the minor's best interest as the sole criterion for termination of the guardianship violated their constitutional rights as fit parents to have the sole care, custody and control of their child.
The California Court of Appeals disagreed, upholding the trial court's dismissal of parent's petition to terminate the guardianship. The court concluded that "Here, although the parents had a biological link to the minor, they relinquished their day-to-day parental relationship with her when mother voluntarily placed the minor with the uncle and aunt because the parents were unable to provide adequate care for her. Then, the parents did not oppose having the uncle and aunt named to be the minor's guardians. Because the parents were no longer participating in the day-to-day parenting of the minor, they were not entitled to the constitutional protection afforded to parents who are acting in that role."
Guardianship of L.V., 2006 Cal. App. LEXIS 154 (February 7, 2006)
Opinion available on the web (last visited February 10, 2006)
February 9, 2006
EU and Divorce
"IF YOU speak only English but have chosen to live in Corfu and become increasingly fed up with your Italian spouse, you will more than likely find yourself getting a divorce in a Greek court. Legislation governing separation and divorce in each EU member state may come as a shock to couples because each country has its own, different laws. Yet under European regulations, if a couple comes to divorce, the laws of their country of origin may not be available to them. Furthermore, their “own” law may still be wrongly applied at great expense and in a completely different language by the country in which they are now resident. And what about unmarried couples? For them, in many countries, there is no hope.
Leading lawyers gathered recently in London for a conference — The Impact of European Legislation on Domestic Family Law — to address the issue because within the next few weeks the European Union will issue a Green Paper to stimulate debate on the harmonisation of family law across member states." By Marilyn Stowe, The Times Link to Article (last visited 2-8-06 NVS)
Marriage Week USA
"For seven days, the entire nation will celebrate and recognize couples bonded in matrimony during Marriage Week USA. According to a press release, the purpose of Marriage Week is to celebrate the importance of marriage in our communities." By Jill Hunt, TheSpectrum Link to Article (last visited 2-8-06 NVS)
Married for 60 Years Without Meeting Spouse
"75-year old Narayani was widowed on Saturday after 60 years of marriage to a man she never met.Shankar Lal Suman, who died on February 4 in Bachheri village, was married to Narayani of Kudayatha nearly 60 years ago." Madhya Pradesh, newKerala.com Link to Article
Dating Site Offers Marriage Wellness Service
"Couples who pay to find one another on a popular U.S. dating site can now pay even more for help when their relationship hits a rocky patch. Monday, EHarmony.com rolled out a service in which couples fill out 310-item online questionnaires concerning communication, romance, sex and other topics. They then receive a computer-processed marriage profile that points out strengths and possible problem areas, The Los Angeles Times reports." By UPI, M&C News Link to Article
Winners Marry Without Prior Meeting
"When Craig first met Rebecca he turned up in a top-hat and tails. She arrived for their first date by horse and carriage, dressed in ivory and with her father on her arm. Among the first words the couple exchanged were "I do". Craig Cooper, 30, and Rebecca Duffy, 28,were the winners of a radio station competition in Birmingham in which the prize was marrying a total stranger. Far from being a crass publicity stunt, organisers said, this was a noble attempt to boost the failing institution of marriage." By Arifa Akbar, The Independent Link to Article (last visited 2-8-06 NVS)
February 8, 2006
Idaho House Approves Constitutional Amendment Banning Gay Marriage
In a 53-17 vote on Monday, the Idaho House of Representatives approved a proposed constitutional amendment that would ban gay marriage in that state. If the measure passes the state Senate, Idahoans would get to vote on whether to amend the constitution in November. Source: AP, Thanh Tan, KBCI2-TV, kbcitv.com. Please click here for the full story (last visited February 8, 2006, reo). The text of the proposed State Constitutional Amendment may be found here.
Briefs Filed with New York’s Highest Court Challenge Ban on Gay Marriage
In legal briefs filed with New York State's highest court on Tuesday, the appellants argue that limiting marriage to opposite-sex couples is unconstitutional under New York’s constitution. Oral arguments are scheduled for later this year. An intermediate New York court ruled 4-1 that gays could not marry in that state. Source: 365gay.com. Please click here for the full story (last visited February 8, 2006, reo).
South Dakota Lawmakers Endorse Amendment to State Constitution Prohibiting Abortions
The South Dakota Senate State Affairs Committee unanimously endorsed a proposed constitutional amendment that would make it clear that South Dakota’s Constitution does not grant a right to an abortion. If approved by the state legislature, the amendment would be put to a public vote in the November election. If the provision becomes a part of the State Constitution, and the U.S. Supreme Court overturned Roe v. Wade, it is believed that no South Dakota court could find any right to abortion in the state constitution. Source: AP, AberdeenNews.com. For the complete story, please click here (last visited February 8, 2006, reo).
Britain to Fund Safe Abortion Services in Developing Countries in Defiance of US Policy
Great Britain has announced a program to fund safe abortion services in developing countries over the next two years, according to London’s Guardian newspaper. Plans are to provide about $4.5 million dollars over two years. The decision is in apparent defiance of US policy put in place in 2001 that requires any organizations applying for U.S. funds to sign an undertaking not to counsel women on abortion or provide abortion services. Source: Chinaview.cn. For the complete story, please click here (last visited February 8, 2006, reo).
New York County Program Offers Alternative to Abortion
Nassau County, New York Executive Thomas R. Suozzi announced Tuesday a $3 million proposal to reduce abortions. The county program, if approved, would issue grants for the next three years to groups that promote adoption, provide housing for single mothers, encourage abstinence and provide information about other birth-control measures. Source: Bruce Lambert, The New York Times, nytimes.com. For the complete story, please click here (last visited February 8, 2006, reo).
Fetal Pain Bills Gaining Increased Acceptance by State Legislatures
According to a February 7 story in USA Today, fetal pain bills are increasingly gaining attention and acceptance in the nation’s state legislatures. The bills generally require doctors to tell a woman whose fetus is at 20 weeks or more gestational age that her fetus could feel pain during an abortion. USA Today reports that fetal pain bills were introduced in 19 states in 2005, and were passed by legislatures in Arkansas, Georgia, Minnesota and Wisconsin (Wisconsin’s bill was vetoed by the governor). So far this year, bills have been passed by House members in Utahand Indiana and have been introduced in Arizona, Iowa, Missouri and Oklahoma. Source: Joan Biskupic, USA Today, azcentral.com. For the complete story, please click here (last visited February 8, 2006, reo).