Family Law Prof Blog

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

Wednesday, February 8, 2006

Kansas Child Support Enforcement Legislation Seeks to Restrict Driving Privileges

A bill being proposed in the Kansas House would suspend the driver’s licenses of parents who fall more than $500 behind in their court-ordered child support payments. Another bill being discussed in the Kansas Senate would bar delinquent parents from buying hunting and fishing licenses and camping permits. It is reported that Kansas ranks 34th in the nation in the percentage of children receiving their due financial support. Source:  Dave Ranney, Scott Rothschild, Lawrence Journal-World, For the complete story, please click here (last visited February 8, 2006, reo).  Download Kansas_House_Bill_2706_suspending_driving_privileges.pdf  Download Kansas_Sentate_Bill_459_suspending_hunting_licenses.pdf

February 8, 2006 in Child Support Enforcement | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Kansas Supreme Court Slows Attorney General’s Abortion Investigation

The Kansas Supreme Court has temporarily slowed Kansas Attorney General Phil Kline’s investigation into charges of illegal abortions and child rape in that state.  On Friday, a unanimous court ruled that the names and personal information of 90 women and girls must be removed from the records he is seeking from two abortion clinics in order to protect their privacy rights.

The court indicated that the action of the Attorney General possibly infringed three federal constitutional rights.  First, The right to maintain the privacy regarding personal sexual matters.  Second, the constitutional right of a patient to make decisions vital to the patient’s health care without being impaired by unwarranted disclosures of that person’s health.  Third, the fundamental right of a pregnant woman to obtain a lawful abortion without government imposition of an undue burden on that right.

Justice Carol Beier, writing for the court, observed that “The type of information sought by the State here could hardly be more sensitive, or the potential harm to patient privacy posed by disclosure more substantial.”  However, she  agreed with the Attorney General that the state needs to pursue criminal investigations. However, the information may be disclosed “Only if the [trial judge] is satisfied that the attorney general is on firm legal ground can he permit the inquisition to continue and some version of the subpoenas to remain in effect. Then he also must enter a protective order that sets forth at least the following safeguards: (1) Petitioners' counsel must redact patient-identifying information from the files before they are delivered to the judge under seal; (2) the documents should be reviewed initially in camera by a lawyer and a physician or physicians appointed by the court, who can then advise the court if further redactions should be made to eliminate information unrelated to the legitimate purposes of the inquisition.”

“This review should also determine whether any of the files demonstrate nothing more than the existence of a reasonable medical debate about some aspect of the application of the criminal abortion and/or mandatory child abuse reporting statutes, which the attorney general's office has already acknowledged would not constitute a crime. If so, those files should be returned to petitioners; and (3) any remaining redacted files should be turned over to the attorney general.”

The Court also rejected holding the Attorney General in contempt, saying it was giving him “the benefit of the doubt,” although "the actions complained of here might well be characterized as criminal contempt in a different case." The court cautioned "all parties to resist any impulse to further publicize their respective legal positions, which may imperil the privacy of the patients and the law enforcement objectives at the heart of this proceeding." News Source:  Scott Rothschild, Lawrence Journal-World, For the complete news story, please click here (last visited February 8, 2006, reo).  The opinion, Alpha Medical Clinic and Beta Medical Clinic v. Anderson, filed February 3, 2006, may be found here.

February 8, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Minnesota Report Shows Cost-Effectiveness of Collecting Child Support Varies Widely

The cost-effectiveness of collecting child support varies widely, according the Minnesota legislative auditor's report that was issued Monday.  On average, for every dollar the state spends enforcing child-support payments, it retrieves $4.14. However, in Norman County, Minnesota officials retrieve $9.04 in child support per dollar spent. However, in neighboring Mahnomen County, officials retrieve only $1.66 for every dollar spent on collections.  The report also said that Mnnesota has the 15th least cost-effective program nationwide and had the second smallest caseload per child-support employee in the country in 2004. Source:  Rachel E. Stassen-Berger, Pioneer Press, For the complete story, please click here (last visited February 8, 2006, reo).

February 8, 2006 in Child Support Enforcement | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 7, 2006

Case Law Development: Failure to Inform Father of Possible Doubts as to Paternity Constitutes Fraud so as to Prevent Application of Paternity by Estoppel

The Pennsylvania Superior Court reversed a trial court's judgment of paternity in a case involving an unmarried man who had accepted his paramour's child as his own and paid support for about a year and a half, at which point, at the urging of his fiance' and friends, he obtained a DNA test and discovered that he was not the child's biological father.  The trial court held that he was estopped from denying paternity. 

On appeal, the court reversed, holding that, because Mother had never told the alleged father that she had been having sexual relations with another man during their seven-year-relationship, there was sufficient proof of fraud that the doctrine of paternity by estoppel should not apply. The court's observed that: "Clearly, Mother is holding all the cards here; only she knew that another man might be the biological father and only she could inform Gatti. The mother is the only one who knows who the possible fathers are, at least until a paternity test is done. Mother's failure to provide Gatti with the information that only she knew, and which she knew if she divulged would provide Gatti with a clear understanding of the matter, lulled him into believing he was the father. Mother concealed that which should have been disclosed, and Gatti acted accordingly. The trial court noted that Mother might have thought the child was most likely Gatti's rather than the other man she was having relations with. However, she was the one that knew she was having relations with someone else and never revealed it to Gatti. This constitutes fraud or at least misrepresentation..."

The dissent agreed with the trial court that these facts were insufficient grounds for fraud.

Gebler v. Gatti, 2006 PA Super 19; 2006 Pa. Super. LEXIS 47 (February 2, 2006)

February 7, 2006 in Paternity | Permalink | Comments (0) | TrackBack (0)

Case Law Development: No Immunity for Social Workers in Child Protection Cases if Fail to Meet Court Ordered Standards for Investigations

The United States Court of Appeals for the Eighth Circuit reversed the district court's finding that official immunity required a grant summary judgment for a Missouri social worker and her supervisor in a case arising from the death of plaintiffs' child in a foster home.  The court found that, while ordinarily social workers have broad discretion in how to investigate child abuse cases, the discretion of the workers in this case was constrained because the Missouri child protection agency was operating under a consent decree requiring, among other steps, home visits by social workers.  Since there was a factual dispute as to whether required visits were performed by defendant-social worker and since the failure to perform those visits would remove the protection of immunity, summary judgment was reversed and the case remanded for further proceedings.

Porter v. Williams, 2006 U.S. App. LEXIS 2818 (February 6, 2006)
Opinion on the web  (last visited February 7, 2006 bgf)

To read news reports on the decision, see the Kansas City Star report

February 7, 2006 in Child Abuse | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Appointment of Parental Coordinator to Resolve Grandparent Visitation Dispute Violates Parent's Right of Privacy

Family Courts are increasingly making use of parental coordinators and other professionals to assist in mediating ongoing disputes in family law cases.  However, the Florida Court of Appeals has provided a strong reminder that courts may not require cooperation with these professionals and processes unless the underlying dispute is grounded on legal rights.  In this case, the court reversed a trial court’s order appointing a parental coordinator and mandating that Father meet with the coordinator in order to resolve visitation dispute between him and his children’s maternal grandmother. The court found that, since grandmother had no right to visitation absent of showing of harm to the children, the orders appointing a parental coordinator violated Father’s constitutional right to privacy. 

Cranney v. Coronado, 2006 Fla. App. LEXIS 1094 (February 1, 2006)
Opinion available on the web (last visited February 6, 2006 bgf)

Continue reading

February 7, 2006 in Visitation | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Ohio Courts Uphold Constitutionality of Statutes Provided Expanded Relief from Paternity Judgments

The Ohio Supreme Court reversed a trial court's dismissal of an action for relief from paternity judgment.  The trial court had held that the Ohio statute allowing for such actions was unconstitutional because it infringed upon the exclusive authority of the Ohio Supreme Court to prescribe procedural rules for Ohio courts. The Supreme Court found that the statute established a substantive right, not a procedural right, and thus was not an unconstitutional infringement on judicial procedural authority.

The statute in question provided a right to seek relief from a paternity judgment based on genetic testing, even though the judgment would not otherwise be subject to attack under Rule 60 of the Ohio rules of procedure.  The Ohio Supreme Court held the statute created a substantive right and did not unconstitutionally infringe on the court's rulemaking authority.  The court noted that the general assembly had enacted the statute to "make it less likely that a person would be forced to support a child that is not his." Thus, the court concluded, although the statute is "necessarily packaged in procedural wrapping, it is clear to us that the General Assembly intended to create a substantive right to address potential injustice."

State ex rel. Loyd v. Lovelady, 108 Ohio St. 3d 86; 2006 Ohio 161; 2006 Ohio LEXIS 218
(February 1, 2006)

February 7, 2006 in Paternity | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Cohabitation Required For Palimony Suit

The New Jersey Court of Appeals held that, no matter how long-term or committed a romantic relationship might be, without a period of cohabitation, neither party can state a claim for palimony.  The facts of the case involved an 70-year extramarital romantic relationship.  The parties had never lived together, largely because one or the other was married to another during most of that time. Near the end of defendant's life, plaintiff brought a suit to enforce his alleged promise of livetime support. The trial court dismissed plaintiff's case, finding that any promise of support made by defendant was unenforceable, because the parties had never cohabitated in a marital-type relationship. The court of appeals affirmed.

The court held that "In order to establish a prima facie case for palimony, a plaintiff must present competent evidence showing: (1) that the parties cohabitated; (2) in a marriage-type relationship; (3) that, during this period of cohabitation, defendant promised plaintiff that he/she would support him/her for life; and (4) that this promise was made in exchange for valid consideration."  The court reasoned that "Requiring cohabitation as an element of a palimony action ... provides a measure of advance notice and warning, to both parties to a relationship, and to their respective family members, that legal and financial consequences may result from that relationship. In this context, cohabitation requires the demonstrable act of setting up a household together. Thus, in contrast to an extramarital affair, even a long-term one, cohabitation announces to the ones most affected by the existence of the relationship, the innocent spouse and dependent children, that defendant has entered into a relationship that may result in significant and long-term impairment of family assets."

Levine v. Konvitz, 2006 N.J. Super. LEXIS 25 (February 6, 2006)bgf

February 7, 2006 in Cohabitation (live-ins) | Permalink | Comments (0) | TrackBack (0)

Monday, February 6, 2006

Child Beaten to Death

"Child welfare officials in New York have been feverishly reviewing cases and procedures in the weeks since 7-year-old Nixzmary Brown was tortured and beaten to death, despite numerous reports that she was at risk. But the reforms came too late for 4-year-old Quachaun Browne, who was horribly beaten to death this week, even though reports of trouble had brought caseworkers to the apartment that the boy shared with his siblings, his mother and her boyfriend, who has been charged with murdering the child.

The child welfare agency's commissioner came perilously close to rationalizing this child's death when he said that there was no evidence that caseworkers could have prevented this tragedy. At the same time, however, he said that the department should not have viewed reports of chronic neglect at this troubled home as isolated incidents." New York Times Editorial Link to Article (last visited 2-5-06 NVS)

February 6, 2006 in Child Abuse | Permalink | Comments (0) | TrackBack (0)

Debate on Family Preservation

"In the starkest terms, a child welfare worker who suspects a child is being neglected or abused by a parent has two choices, both fraught with risk.The worker can remove the child from the family — a traumatic act with lasting consequences — and turn to foster care, where the odds of the child's being mistreated are significant. Or the worker can leave the child with an impoverished or troubled family and provide support in the form of housekeeping help or drug treatment, and then visit frequently to monitor progress. Though debate has raged for decades about whether either option really keeps children safer, New York City started in 1999 to explicitly lean toward the second choice, "family preservation," as the effort is known, in all but cases where harm to the child was thought to be imminent." By Leslie Kaufman, New York Times Link to Article (last visited 2-5-06 NVS)

February 6, 2006 in Child Abuse | Permalink | Comments (0) | TrackBack (0)

Child Death

"Aleshia Smith's oldest daughter was living with a relative, but the two-bedroom apartment on Kossuth Avenue in the Bronx was still crowded with her five other children — and two cats. Then on a November afternoon she invited Jose Calderon, 18, a virtual stranger with a nice smile but a bad temper, to move in, friends and relatives said. A dark chronology was set in motion that would end this week with Ms. Smith's 4-year-old son, Quachaun Browne, dead and the couple in jail, Mr. Calderon charged with fatally beating the boy, Ms. Smith with doing nothing to stop him.

According to interviews with relatives, friends and neighbors, many details of this story are unique to this man and woman, their life stories and their circumstances, but other elements seem to crop up whenever a child dies at the hands of an adult: a mother on welfare struggling to care for more children than she can handle; a string of boyfriends who promise to stick to the straight and narrow, but never do; and finally, an ominous new presence in an already distressed home." By Timothy Williams, New York Times Link to Article (last visited 2-5-06 NVS)

February 6, 2006 in Child Abuse | Permalink | Comments (0) | TrackBack (0)

Children's Services and Domestic Violence

"Public Advocate Betsy Gotbaum released the findings of her two-year examination of domestic violence in the city Friday, along with recommendations for improvement. Gotbaum wants the domestic violence registry to be accessible to the Administration for Children’s Services.
She says it’s important to determine whether a potential adoptive or foster care parent has a history of violence. Gotbaum’s report, called “Opening the Door,” is aimed at better protecting victims of domestic violence and their families." By Rebecca spitz, NY1 News Link to Article (last visited 2-5-06)

February 6, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Sunday, February 5, 2006

Case Development: Home State Jurisdiction under the UCCJEA

The Supreme Court of Montana interpreted its version of the UCCJEA so as to emphasize the priority of home state jurisdiction in custody disputes.  The dispute involved Mother and children, who had lived in Arkansas from 2002 to May 2005.  They had then moved to Montana for the next three months. Father filed a petition for custody in August 2005.  Mother argued that Arkansas remained the children's home state, so that Montana did not have jursidiction.  The District Court accepted Father's interpretation of the statute that requires that the children live in the state "for at least 6 consecutive months immediately before the commencement of a child custody proceeding." Under their interpretation, since the children had not lived in any state for six consecutive months immediately before the custody suit was filed, there was no home state and jurisdiction should be determined by a hearing to determine whether the children had a significant connection with Montana existed and whether other factors favored Montana's assertion of initial jurisdiction.  Mother filed for a writ of prohibition, which the supreme court granted.

The Supreme Court held that "home state for purposes of determining initial jurisdiction under [Montana custody statutes} is not limited to the time period of '6 consecutive months immediately before the commencement of a child custody proceeding.' The applicable time period to determine 'home state' in such circumstances should be 'within 6 months before the commencement of the [child custody] proceeding.'...This interpretation promotes the priority of home state jurisdiction that the drafters of the UCCJEA specifically intended."

Stephens v. Fourth Judicial Dist. Court, 2006 MT 21 (January 31, 2006)
Opinion available on the web (last visited February 4, 2006 bgf)

February 5, 2006 in Jurisdiction | Permalink | Comments (1) | TrackBack (0)

Case Law Development: Probate Courts may Grant Guardianship to Grandparents only if Parent is Unfit

The Illinois Supreme Court reveiwed the legislative history of the probate guardianship statute in light of constitutional standards of Troxel v. Granville and concluded that, "to have standing to proceed on a petition for guardianship under the Probate Act, when the minor has a parent whose whereabouts are known, the petitioner must rebut the statutory presumption that the parent is willing and able to make and carry out day-to-day child care decisions concerning the minor." The case involved a petition for guardianship by Maternal grandparents after their daughter had died.  Father contended that due process required the probate court to incorporate the standing requirements of the Marriage Act, in which third parties have standing to bring custody actions only if they show that the child is not in the physical custody of one of his parents. 

The court noted that the court had agreed with father in precedent that pre-dated amendment of the probate code, but since those amendments had added probate standing requirements the court need no longer look to the Marriage act.  The court contrasted the probate code's requirements with that of the legislation in Troxel and found that the probate standing requirements were consistent with due process and gave sufficient protection to parents.  "By allowing a guardianship petition to proceed to a hearing on the merits over the wishes of a parent only when the parent has been established to be unwilling or unable to carry out day-to-day childcare decisions, the Probate Act respects the superior rights of parents while also insuring to protect the health, safety, and welfare of children."  The court also noted that while the probate statute's language is clear, the Illinois courts have tended to go beyond the language and apply a best interests standard instead.  The court declared "This court's cases refusing to apply section 11-7 as written are wrong and should no longer be followed. Section 11-7 means what it says: fit parents are entitled to custody."

In re R.L.S., 2006 Ill. LEXIS 312  (February 2, 2006)
Opinion available on the web (last visited February 4, 2006 bgf)

February 5, 2006 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Case Development: Trial Court Jurisdiction to Dissolve Judgments Arising out of Divorce Actions

The Florida Court of Appealsaddressed issues of jurisdiction and laches in an action to enforce a judgment arising out of divorce.  The action by Husband was based on a money judgment he had obatined against wife in 1994 for $ 7810.66 for overpayment of support. In 2004, with the judgment having grown to $18,000 with interest, Husband re-recorded the judgment and began collection proceedings, including and action to garnish Wife's wages.  In response, Wife filed a motion to dissolve Husband's judgment based on laches.  The trial court granted the motion to dissolve the judgment.

The court of appeals reversed, holding that the trial court lacked jurisdiction to dissolve the judgment.  While agreeing that divorce courts have continuing jurisdiction to modify child support, child custody, and alimony provisions, as to all other judgments, the trial court loses jurisdiction over the case except to enforce the judgment  or to dissolve the judgment under the narrow ground provided by Florida rules of civil procedure. Since laches is not such a grounds, the court had no jurisdiction to dissolve Husband's action.  Moreover, the court commented that even if the court had jurisdiction and even if laches were an affirmative ground for dissolving a judgment, Wife had not proven laches as she had shown no evidentiary or financial prejudice.  That husband had waited over ten years to enforce the judgment, at a time when wife was less able to afford to pay, was insufficient proof of laches.

Baker v. Baker, 2006 Fla. App. LEXIS 1267  (February 3, 2006)
Opinion available on the web (last visited February 4, 2006 bgf)

February 5, 2006 in Jurisdiction | Permalink | Comments (0) | TrackBack (0)

Case Development: Aunts have no Standing to Be Awarded Custody

The Supreme Court of New Hampshire reversed a trial court's grant of custody to a paternal aunt after the parents had engaged in repeated custody disputes, violations of court orders and custody changes over a two-year period.  The court held that  "in the context of a custody determination, unless a third party is either a grandparent or stepparent who has established in loco parentis status, he or she may not obtain custody of the child over a biological or adoptive parent."  Since the aunt had no standing under New Hampshire statutes, it was error to award custody to her.  Two dissenting judges agreed in the result but disagreed with the majority's conclusion that even grandparents or stepparents might have a right of custody that could prevail over fit parents.

In re Jeffrey G, 2006 N.H. LEXIS 9  (January 27, 2006)

February 5, 2006 in Custody (parenting plans) | Permalink

Kentucky and Ohio Legislators File Abortion Bills Intended To Challenge Roe v. Wade

Legislators in Ohio and Kentucky have filed bills that are apparently intended to provoke court challenges that the proponents hope will lead to the Supreme Court reversing itself on Roe v. Wade.  Both proposals would make it a felony to perform an abortion or to provide abortion-inducing drugs.  Source:  Stephenie Steitzer, The Kentucky Post, The news story may be found here (last visited February 5, 2006, reo). A copy of Kentucky House Bill 489 as proposed may be found here (last visited February 5, 2006, reo).  A copy of Ohio House Bill 228 as introduced may be found here.

February 5, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Australian Government Plans Changes in Custody Laws – Dispute Resolution Centers to be Created

The Australian Government is planning to change its laws regarding custody of minor children.  If the changes are approved, before custody is awarded a parent, there would have to be proof of a meaningful relationship with the child or children involved in the dispute.  There will also have to be proof that the parent will provide for them financially and is willing to provide a home. The proposed changes also include setting up dispute resolution centers to deal with custody cases considered appropriate for informal negotiations. Source: The complete story may be found here (last visited February 5, 2006, reo).

February 5, 2006 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)