Saturday, March 4, 2006
The Department of Defense has launched a program that it hopes will curb domestic violence among members of the military. Among the features of the program is one that will provide a victim of violence access to medical care and victim advocacy services without immediate command or law enforcement involvement. It is hoped that this will encourage victims to come forward who otherwise would not do so because of a fear that reporting violence would have immediate repercussions on the military career of the family member offender, and directly impact the family’s financial welfare. A National Domestic Violence Hotline was also created and is staffed 24 hours a day, every day. Counselors can provide crisis intervention, information, and referrals in 140 languages. Call 800-799-SAFE (7233), 800-787-3224 (TTY), or go to www.ndvh.org. Source: Lisa Burgess, Stars and Stripes, estripes.com. For the complete story, please click here (last visited March 4, 2006, reo).
Specialized domestic violence docket courts are expanding throughout the state of Connecticut. Currently, there are domestic violence docket courts in Bridgeport, Stamford, New Haven, Waterbury and Hartford. Last week, plans were announced to add courts to Norwalk, New Britain, and New London in April. Under the Connecticut plan, a specific judge is appointed to hear only domestic violence cases. A special prosecutor and victim’s advocate specialized in domestic violence cases is also be assigned as part of a team in the new docket court. It is believe that the new docket court will greatly improve the safety of domestic violence victims. Source: Patricia Gay, Weston Forum, acorn-online.com. For the complete story, please click here (last visited March 4, 2006, reo).
A Carson City, Nevada grandmother, mother, and the mother’s boyfriend, were charged this week with felony child abuse and child neglect. The grandmother allegedly starved and imprisoned a brother and sister over the past five years while they lived in her apartment. The mother and boyfriend allegedly did nothing to prevent the abuse. It is reported that the children have suffered irreversible health problems as a result of the deprivation. It is also reported that the boy's legs and feet were deformed due to the prolonged confinement in a bathroom in the family's apartment, and the girl was scarred from beatings she said her grandmother gave her. Source: Brendan Riley, AP, Las Vegas Sun, lasvegassun.com. For the complete story, please click here (last visited March 4, 2006, reo).
Michigan Representative Leslie Mortimer has introduced a bill in the Michigan Legislature that would amend that state’s Child Custody Act to create a presumption that parents who divorce maintain joint legal and physical custody of their minor children. Both would retain the legal right to authorize medical treatment, have access to school records and have physical custody of their children for alternating and substantially equal periods of time. Source: Time O’Brien, Detroit News, detnews.com. For the complete story, please click here (last visited March 4, 2006, reo).
The North Dakota Secretary on Wednesday approved for circulation an initiative by a Grand Forks man that would ensure that parents are not denied joint physical custody of their children unless they are termed unfit to raise children. He will need to secure 12,844 signatures by Aug. 8 in order to get his initiative on the ballot in this year's general election. Source: Lisa Gibson, Grand Forks Herald, grandforks.com. For the complete story, please click here (last visited March 4, 2006, reo).
It is believed that Actor Eddie Murphy’s wife will claim he breached their premarital agreement when he had an alleged encounter with a transvestite prostitute at a beach in 1997. Source: Starpulse.com For the complete story, please click here (last visited March 4, 2006, reo).
Case Law Development: Ohio Supreme Court Allows Wrongful Birth Lawsuit: Legislature Moves to Bar Such Actions
The Ohio Supreme Court ruled 4-3 in Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assoc., Inc.,that Parents of an unhealthy child born following negligent genetic counseling, or a negligent failure to diagnose a fetal defect or disease, may bring a medical malpractice action for the costs arising from the pregnancy and birth of the child. Parents may not, however, recover the cost of raising a disabled child. Meanwhile, the Ohio Senate last week voted to bar all "wrongful birth" lawsuits and both the House and Governor Bob Taft are expected to approve the measure within the next few weeks. Source: James Nash The Columbus Dispatch, columbusdispatch.com. For the complete story, please click here (last visited March 4, 2006, reo). The Ohio slip opinion may be downloaded here.pdf
Friday, March 3, 2006
Case Law Development: Payor Spouse May not Adjust Agreed Child Support Downward Simply Because In Excess of Guidelines
Husband and Wife had agreed in their divorce that Husband would pay child support, including an annual 5% increase, and that Husband would share all medical expenses with Wife. When Wife brought an action to enforce that agreement, Husband countered with a petition to reduce supprot. The trial court granted Husband's motion, basing the downward modification on the fact that the support was in excess of child support guidelines. The Florida Court of Appeals reversed, reaffirming its position that payor spouses may not rely solely on the guidelines for modification of an agreed-to, judicially adopted child support order without a showing of independent changed circumstances.
Simmons v. Simmons, 2006 Fla. App. LEXIS 2771 March 1, 2006
Opinion on the web (last visited March 3, 2006 bgf)
Case Law Development: Lump Sum Personal Injury Award not Income for Purposes of Calculating Child Support
In an action to modify child support, the trial court denied mother's request that the court allocate to Father's income a portion of the $2,364,500 lump sum settlement of the personal injury lawsuit he had filed after having become disabled from dentistry after an accident in a store. The California Court of Appeal affirmed the trial court's order. The court held that the entirety of an unallocated, lump sum personal injury settlement or award is not income for purposes of calculating child support. Recognizing that that portion of a personal injury award that is intended to be compensation for loss of income and loss of earning capacity may be considered as income. However, the court recognized the fact-driven nature of the trial court's findings as to the purpose of the award and the allocation between that designed to compensate for earnings and that portion designed to compensate for pain and suffering. Thus, the decision is "best left to the discretion of the trial court, considering all the evidence before it." Here, the court noted that "any attempt to allocate the father's recovery among all the elements of his damages would have been pure speculation.... The mother offered to the trial court from the personal injury proceedings only the father's expert testimony on loss of profits and loss of net income. This presented such an incomplete picture of the father's total damages, that anything other than an arbitrary apportionment would have been impossible."
In re Marriage of Heiner, 2006 Cal. App. LEXIS 263 (February 27, 2006)
Thursday, March 2, 2006
"Belligerence among brothers and sisters can lead to violence later in dating relationships, according to a new study of Florida college students. “Perpetrating sibling violence had the greatest impact on perpetrating dating violence,” says lead author Virginia J. Noland, Ph.D., of the University of Florida. “Parents should know that sibling violence is not without consequences and sometimes the consequences are severe.”The findings appear in the American Journal of Health Behavior.
Noland and colleagues asked the students about both physical assault and psychological aggression involving parents, siblings or dating partners. Three-fourths of the students said a brother or sister had pushed or shoved them or that they had done so to a sibling." By Aaron Levin, Science Writer, Health Behavior News Service, Center For the Advancement of Health Link to Article (last visited 3-1-06 NVS)
"From infancy until he reached the threshold of manhood, the beatings Daniel W. Smith received at his older brother's hands were qualitatively different from routine sibling rivalry. Rarely did he and his brother just shove each other in the back of the family car over who was crowding whom, or wrestle over a toy firetruck. Instead, Mr. Smith said in an interview, his brother, Sean, would grip him in a headlock or stranglehold and punch him repeatedly.
"Fighting back just made it worse, so I'd just take it and wait for it to be over," said Mr. Smith, who was 18 months younger than his brother. "What was I going to do? Where was I going to go? I was 10 years old." To speak only of helplessness and intimidation, however, is to oversimplify a complex bond. "We played kickball with neighborhood kids, and we'd go off exploring in the woods together as if he were any other friend," said Mr. Smith, who is now 34 and a writing instructor at San Francisco State University. (Sean died of a heart attack three years ago.)"But there was always tension," he said, "because at any moment things could go sour." By Katy Butler, New York Times Link to Article (last visited 3-1-06 NVS)
"More than 300,000 divorced dads will have their maintenance bills slashed under the biggest reform of the child support system in almost 20 years. The $850 million overhaul will take more than two years to complete and will affect 1.1 million separated mothers and fathers.
At its heart is a new formula to calculate child support, which will give equal weight to the incomes of both parents for the first time. There are about 680,000 non-custodial parents in Australia – mostly fathers. About 55 per cent can expect to pay less support." By Jason Frenkel and Michael Harvey, Herald Sun Link to Article (last visited 3-1-06 NVS)
Wednesday, March 1, 2006
The Missouri Supreme Court ruled Tuesday that the state’s 24-hour waiting period before women can have an abortion is constitutional. It also upheld a requirement that doctors mention any "physical, psychological or situational" risk factor associated with an abortion.
Planned Parenthood had challenged the statute that creates an informed consent requirement, including a 24-hour waiting period before elective abortions may be performed in Missouri. Any person who knowingly violates or fails to abide by the statute is guilty of a class A misdemeanor. Health care practitioners who violate the statute may also may face disciplinary action to their licenses to practice. Planned Parenthood argued that the statute is unconstitutionally vague and that its 24-hour waiting provision violates rights of liberty and privacy under the state constitution.
In rejecting the challenge, a unanimous court said that the statute imposes no further duty on physicians than already was imposed at common law. According to the court, the statute merely codifies the physician's duty to obtain informed consent from a patient prior to an abortion and creates criminal or disciplinary liability if the physician knowingly fails to fulfill that duty. It said that liability “does not extend beyond the physician's actual expertise.” It requires a physician to warn his or her patient about only those factors the physician knows may affect the patient's medical condition and imposes criminal liability or license discipline only for risks the individual physician “knew he or she should have discussed with the patient but did not.”
The court also said that the 24-hour waiting provision does not violate the Missouri constitution. It stated that there is no reason “to construe the language in the Missouri constitution more broadly than the corresponding language of the federal constitution, and the United States Supreme Court already has determined that such a waiting provision does not violate the federal constitution. Planned Parenthood v. Casey, 505 U.S. 833, 887 (1992).” You may download here the slip opinion in the Missouri_abortion_case.htm (reo).
The Wisconsin State Assembly voted 62-31 to place a constitutional amendment on the November 2006 ballot that would amend the state constitution to prohibit same-sex marriages. The amendment reads: "Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state." Source: UPI, The Washington Times, washtimes.com. For the complete story, please click here (last visited March 1, 2006, reo).
Arizona's three Roman Catholic bishops have announced their support for amending that state’s constitution to ban same-sex marriage. The proposed ballot initiative is called the ‘‘Protect Marriage Amendment'', and would define marriage as a union between one man and one woman and prohibit state and local governments from granting marriage-like legal status to unmarried people. Source: 365Gay.com. For the complete story, please click here (last visited March 1, 2006, reo).
The Supreme Court in Scheidler v. National Organization for Women, Inc., ruled Tuesday that the federal Hobbs Act Statute could not be used to prevent demonstrations by anti-abortion protestors at abortion clinics. The unanimous 8-0 ruling ends a case that was initiated in 1991 by health care clinics that perform abortions and a pro-choice national nonprofit organization that supports the legal availability of abortions, the National Organization For Women. The case was kept alive by the 7th U.S. Court of Appeals, which held in 2003 that that the laws could be used despite the Supreme Court decision that had lifted an injunction on pro-life defendants in the suit. In the present case, Justice Breyer, writing for the court, ruled that the Hobbs Act only covered threats of violence related to extortion and robbery.
The Hobbs Act says that an individual commits a federal crime if he or she “obstructs, delays, or affects commerce” by (1) “robbery,” (2) “extortion,” or (3) “commit[ting] or threaten[ing] physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section. The dispute here concerned the meaning of the words, “in furtherance of a plan or purpose to do anything in violation of this section.” If the phrase is construed as referring to violence committed pursuant to plans or purposes that affect interstate commerce through robbery or extortion, the statute governs only a limited subset of violent behavior, namely, behavior connected with robbery and extortion. However, if the language is construed to refer to any violence committed pursuant to those plans or purposes that affect interstate commerce, it governs a broad range of human activity, namely, all violent actions against persons or property that affect interstate commerce.
The Court held that that physical violence unrelated to robbery or extortion falls outside the scope of the Hobbs Act. This language, as construed by the Court, means that behavior that obstructs, delays, or affects commerce is a “violation” of the statute only if that behavior also involves robbery or extortion (or related attempts or conspiracies).
In rejecting the theory that the protests were a kind of “extortion,” the Court noted that in Scheidler v. National Organization for Women, Inc., 537 U. S. 393 (2003) (NOW II), it stated that the Hobbs Act defines “extortion” as necessarily including the improper “obtaining of property from another.” It said that the claimed “property” consisted of “a woman’s right to seek medical services from a clinic, the right of the doctors, nurses or other clinic staff to perform their jobs, and the right of the clinics to provide medical services free from wrongful threats, violence, coercion and fear.” It declared that “[w]hatever the outer boundaries may be, the effort to characterize [the protestors] actions . . . as an “obtaining of property from” respondents is well beyond them.” It held in NOW II that “because [the protestors] did not “obtain” property from respondents, [the protestors] “did not commit extortion” as defined by the Hobbs Act. It also found that the state extortion law violations, and other extortion-related violations, were flawed for the same reason and must also be set aside. (reo). You may download here the Supreme Court_abortion_opinion.pdf
Tuesday, February 28, 2006
Case Law Development: Court May Assert Jurisdiction to Award Child Support for Disabled Child Over 18 Years Old
The Ohio Court of Appeals resolved a jurisdictional challenge to a trial court's child support order in a case in which Mother sued for divorce and child support for the couple's child who, although over 18 years of age, had Downs Syndrome and was unable to be self-supporting. Father argued that because the court had not asserted jurisdiction over the child while still under age 18, the court lacked jurisdiction to award child support.
The appellate court upheld the trial court's child support order, holding that the child, "as one undisputedly unable to support himself due to his mental retardation, was properly found by the trial court as never having reached the "age of majority" as defined in Ohio statutes. The court interprets that statute in light of common law precedent going back to Kent Commentaries on American Law as establishing "the notion that mentally or physically disabled children should be excepted from a strictly age-based emancipation rule."
Wiczynski v. Wiczynski, 2006 Ohio 867; 2006 Ohio App. LEXIS 773 (February 24, 2006)
In the present case, although the record is clear that the child and her parents do not have significant contacts with the state of Florida, nevertheless, pursuant to [*11] the analysis applied in Yurgel and Lamon, Florida is the state where the initial custody order was entered at a time when all parties resided in the state; it was the state where the custody modification was entered, and where the modification order was reversed. Moreover, the only reason the child was in the state of The Florida Court of Appeals takes a march through the UCCJEA in a case in whioh Mother lived in Massachusetts, Father and Child lived in Tennessee, but the original custody order was rendered in Florida and Florida had retained jurisdiction over the action. The case provides a relatively clear factual pattern for teaching application of the UCCJEA provisions regarding competing jurisdictional bases.
The sequence of events in the case are:
2000 - Florida - judgment of dissolution gave Wife primary residential custody of Child. Father files a petition for modification of custody and to relocate Child with him to Tennessee.
2002 - Florida court grants Mother permission to move with the child to Massachusetts.
2004 - Florida grants Father's petition for modification of custody. Mother appeals but sends child to live with Father in Tennessee.
2005 - Florida Court of Appeals reverses judgment of modification. Father responds by filing suit in Tennessee for order granting him custody. Father argues that Tennessee has become the child's home state because she had been residing with him there for the prior year, during the pendency of the appeal in Florida.
The story from there on is a series of conflicting orders in both the Tennessee and Florida trial courts.
The Florida Court of Appeals sorts out the matter by noting that, while the Tennessee court was looking to provisions of the UCCJEA providing jurisdiction to modify a custody determination based on Tennessee having become the child's home state, the trial court had overlooked the enforcement provisions of the act providing that, because Florida had retained continuing jurisdiction to enforce its orders, Tennessee could not exercise jurisdiction to modify the custody order unless Florida had terminated or stayed its own proceeding.
Staats v. McKinnon, 2006 Fla. App. LEXIS 2677 (February 27, 2006)
Monday, February 27, 2006
Case Law Development: Threats of Remote Harm Insufficient to Support Domestic Violence Restraining Order
The North Dakota Supreme Court has clarified the standard for issuance of a domestic violence restraining order in a case in which Husband said he would burn the family home down if he did not get to keep it in a divorce action. With no physical violence involved in the incident or a past pattern of physical violence, the court found that this threat did not create a fear of an "imminent threat," which is what is required by the statute. Particularly since Wife stayed in the home after Husband made the threat and did not attempt to leave, the court found there was inadequate evidence of fear of imminent harm. The court concluded that the trial court had issued the injunction to prevent a possibility of domestic violence rather than an imminent threat and remote possibilities are insufficient to sustain an order.
Ficklin v. Ficklin, 2006 ND 40 (February 23, 2006)
Opinion on the web (Last visited February 26, 2006 bgf)
The Family Law Education Reform Project is co-sponsored by the Association of Family and Conciliation Courts (AFCC) and Hofstra Law School Center for Children, Families and the Law. The final report has been endorsed by organizations including the National Council of Juvenile and Family Court Judges, the Section of Dispute Resolution of the American Bar Association, the International Academy of Collaborative Professionals. Link to Draft Report (last visited 2-26-06 NVS)