Thursday, February 15, 2007
Case Law Development: Ohio Courts Continue to Split on Constitutionality of Applying Domestic Violence Statute to Cohabitants
The Ohio Courts of Appeals continue to disagree regarding the impact of Ohio's Defense of Marriage Amendment on criminal domestic violence statutes. See prior Family Law Prof Blog posts of June 13, 2006, and March 28, 2006.
This past week, the third appellate district joined the second district in holding that the criminal domestic violence statute is unconstitutional as applied to unmarried couples because the statute creates classifications based on the status of
a person as married or unmarried, and then protects the unmarried but cohabiting
persons as if they had the same legal status as a married couple.
State v. McKinney, 2007 Ohio 587; 2007 Ohio App. LEXIS 541 (February 12, 2007).
Opinion on the web (last visited February 14, 2007 bgf)
Just days earlier, the seventh appellate district came to the opposite conclusion, holding that "the criminal domestic violence statute, is predicated upon the factual determination of cohabitation, not the legal determination of marriage, and ... is not in conflict with the “Defense of Marriage” Amendment. The majority of appellate districts have come to this same conclusion.
State v. Carnes, 2007 Ohio 604; 2007 Ohio App. LEXIS 562 (February 8, 2007)
Opinion on the web (last visited February 14, 2007)
Tuesday, February 13, 2007
Ann M. Haralambie, Humility and Child Autonomy in Child Welfare and Custody Representation of Children, 28 Hamline J. Pub. L. & Pol'y 177 (2006). This article examines standards and models of representation for attorneys who represent children. The author urges consideration of a client-directed model of child representation. Link to Article on Westlaw (last visited 2-12-07 NVS)
Mark Ells, A Brief Analysis of Some Elements of a Proposed Model Juvenile Code, 28 Hamline J. Pub. L. & Pol'y 199 (2006). This article highlights four areas of Nebraska’s Proposed Model Juvenile Code: (1) a requirement that abused and neglected children be seen by the court; (2) a definition of child abuse that includes exposure to domestic violence; (3) a mandate for consultation with counsel for children interrogated as suspects; and (4) provision for multiple methods to structure treatment. Link to Article on Westlaw (last visited 2-12-07 NVS)
Nancy Chandler, Children's Advocacy Centers: Making a Difference One Child at a Time, 28 Hamline J. Pub..L. & Pol'y 315 (2006). This article examines provision of comprehensive and culturally competent multidisciplinary services for children through Children’s Advocacy Centers. Link to Article on Westlaw (last visited 2-12-07 NVS)
Larry Cunningham, A Question of Capacity: Towards a Comprehensive and Consistent Vision of Children and Their Status Under Law, 10 UC DAVIS J. JUV. L. & POL'Y 275 (2006). This article focuses on legal rules relating to children and the author urges lawmakers to make use of enhanced knowledge of child development in order to develop a view of childhood capacity that could be applied consistently across different areas of law. Link to Article on Westlaw (last visited 2-12-07 NVS)
Monday, February 12, 2007
The Dallas Morning News reports on efforts to obtain clemency on behalf of women who have killed their abusive spouses. The article reviews the past history of the clemency movement throughout the United States and in Texas in particular, noting that the movement has had little success and appears currently to be stalled.
Read article (last visited February 12, 2007 bgf)
Sunday, February 11, 2007
Case Law Development: Foster Parent's Privilege to Use Reasonable Physical Discipline Does Not Extend to Spanking that Leaves Extensive Bruising
The Arkansas Supreme Court finds that foster parents are “guardians” for purposes of the child abuse statute which permits “reasonable and moderate” physical punishment “for purposes of restraining or correcting the child.” The case involved a foster mother who had appealed the entry of her name on the state child-maltreatment registry, with the consequence that she would be thereafter ineligible to be a foster parent. While the court found that, despite the fact that foster parents are trained not to use physical discipline, the state statute’s exception for physical discipline extends to foster parents. However, in this case, the court agreed that the Department of Health and Human Services had not erred in refusing to remove the foster mother’s name from the registry since she had spanked a four-year-old child who suffered from cerebral palsy, used a walker for assistance, and was not potty-trained and left eight to ten straight-line bruises from the top of her knees, to the bottom of her buttocks, all of which were visible 27 hours later. The court concluded “we simply cannot say that such injuries constituted "minor temporary marks," nor were they the result of reasonable or moderate physical discipline.”
Dept. of Health and Human Services v. R.C., 2007 Ark. LEXIS 102 (February 8, 2007)
Opinion on the web (last visited February 11, 2007 bgf)
North Carolina Court must Decide Whether Child may Visit Mother who is in Prison for Having Murdered the Child's Father
The parents of a Raleigh, North Carolina man who was poisoned by his wife are trying to keep their granddaughter away from the her mother. An expert took the stand and presented the other side of the case. That expert was another psychologist with a different view. The psychologist thinks the court's ban on Clare Miller visiting her mother, Ann Miller Kontz, in prison has not been good for the child.
Read the article and see the video news report on ABC11TV (Last visited February 11, 2007 bgf)
The Italian government has approved a bill to grant legal rights to unmarried couples, including same-sex partners. The highly controversial move came after months of heated debate in the broad, ruling coalition and fierce opposition from the Vatican. If parliament passes the package, unmarried couples will get greater health and social welfare benefits. But partners will enjoy inheritance rights only if they have been living together for at least nine years. The bill, approved on Thursday evening, does not go as far as the civil unions now protected by law in some other European countries.
Read the BBC Article
(Last visited February 10, 2007 bgf)
The North Dakota Senate has passed a bill downgrades unmarried cohabitation from from a sex crime to fraud, and then only if the couple claims to be married. The bill was changed from an outright repeal of the state's anti-cohabitation law. The amended proposal would make the false representation of marital status a misdemeanor crime for a man and woman who live together. Cohabiting couples who do not falsely claim marriage would not be penalized. The proposal now goes to the state House.
Read the article in the New York Times
(Last visited February 11, 2007 bgf)
Among those states that still make cohabitation a crime are MIchigan, Florida, Mississippi, North Carolina, Virginia and West Virginia.
Friday, February 9, 2007
The Florida court again reaffirmed its holding that a failure to file with the putative father registry is not a basis for terminating a biological father's parental rights in an adoption proceeding. A concurring opinion by Judge Canady questions the completeness of the court's analysis in the several cases establishing this precedent, noting that the putatitve father act expressly provides that:
"An unmarried biological father who does not comply with [the act] is deemed to have waived and surrendered any rights in relation to the child, including the right to notice of any judicial proceeding in connection with the adoption of the child, and his consent to the adoption of the child is not required."
J.A. v. Heart of Adoptions, Inc. (February 7, 2007)
opinion on web (last visited February 9, 2007)
The February issue of Pediatrics summarizes recent reports on births in the US. Some findings:
- The recent teen pregnancy rate in the United States is at an all-time low.
- The rate of Caesarean deliveries is at an all-time high.
- The birth rates for mothers aged 30 and older rose in 2005 to levels not seen in nearly 40 years.
- A record number of unmarried women are having children. The total number of births to unmarried women rose by 4 percent, to 1,525,345, in 2005.
To read the news article from Health Day news
To read the full report, visit the National Center for Health Statistics.
(last visited February 9,2007 bgf)
Thursday, February 8, 2007
Our readers may be interested in the Op Ed piece by Professor Eugene Volokh in the LA TImes. Professor Volokh questions whether divorce courts violate the first amendment when they mandate or forbid certain kinds of speech by parents or order that condition custody or visitation on a person's speech.
Read the piece in the LA Times
(last visited February 7, 2007 bgf)
For your students who are writing papers on family law topics, now would be a good time to remind them of the Howard C. Schwab Family Law Essay Context. This annual contest, conducted by the ABA Section of Family Law, is open to law students and provides a possibility of publication of their essays in the Family Law Quarterly as well as a year's free membership.
Here are the rules.
(last visited February 7, 2007 bgf)
Case Law Development: Marriage Amendment Precludes Extension of Public Employee Benefits to Same Sex Partners
The Michigan Court of Appeals this past week held that the state's marriage amendment did not permit public employers, such as public universities and governmental entities, to extend benefits such as healthcare insurance to same-sex domestic partners.
The court qualified its decision by pointing out that it was not ruling on "the lifestyle or personal living decisions of individual citizens" nor could it consider "the effect of the amendment on employee recruitment, retention and morale, and marketplace competitiveness." Rather, the court noted that it was simply engaged in interpreting the language of the amendment, which, it observed was a matter of first impression given the amendments "relatively unique phraseology" relating to "similar unions."
In reversing the trial court, the Court of Appeals concluded that:
By officially recognizing a same-sex union through the vehicle of a domestic partnership
agreement, public employers give same-sex domestic couples similar status to that of married couples. Contrary to plaintiffs’ argument, a publicly recognized domestic partnership need not mirror a marriage in every respect in order to run afoul of article 1, section 25, as the amendment plainly precludes recognition of a “similar union for any purpose.”
National Pride at Work, Inc v Governor, (February 1, 2007)
(Last visited February 7, 2007 bgf)
Thanks to Jeanne Hannah for flagging the case. See her discussion of the case at the Updates on Michigan Family Law Blog.
If you teach domestic violence, you may be interested in viewing the video and transcripts of ABC News Primetime story of a domestic case in California. The attorney husband in the case was convicted of torture after his wife had gone to authorities to confess that she was plotting to kill him and that she had molested their four children. The detectives found the story incredible and investigated further, leading to the arrest of the husband for domestic violence.
Go to the ABC News Website to view the program transcript and video excerpt
(last visited February 7, 2006 bgf)
Wednesday, February 7, 2007
"The Justice Department is completing rules to allow the collection of DNA from most people arrested or detained by federal authorities, a vast expansion of DNA gathering that will include hundreds of thousands of illegal immigrants, by far the largest group affected.
The new forensic DNA sampling was authorized by Congress in a little-noticed amendment to a January 2006 renewal of the Violence Against Women Act, which provides protections and assistance for victims of sexual crimes. The amendment permits DNA collecting from anyone under criminal arrest by federal authorities, and also from illegal immigrants detained by federal agents.
Over the last year, the Justice Department has been conducting an internal review and consulting with other agencies to prepare regulations to carry out the law." By Julia Preston, N.Y. Times Link to Article (last visited 2-7-07 NVS)
"Connecticut legislators have introduced a bill that would ban smoking in cars when a minor is present. This legislation, the brainchild of 9-year-old Justin Kvadas from East Hartford, is ostensibly being written to protect young children from exposure to the alleged dangers of secondhand smoke." By Gary Nolan, N.Y. Times Link to Article (last visited 2-7-07 NVS)
"If people want to choose their baby’s sex before pregnancy, should doctors help? Some parents would love the chance to decide, while others wouldn’t dream of meddling with nature. The medical world is also divided. Professional groups say sex selection is allowable in certain situations, but differ as to which ones. Meanwhile, it’s not illegal, and some doctors are already cashing in on the demand. There are several ways to pick a baby’s sex before a woman becomes pregnant, or at least to shift the odds." By Denise Grady, N.Y. Times Link to Article (last visited 2-7-07 NVS)
"Proponents of same-sex marriage have introduced a ballot measure that would require heterosexual couples to have a child within three years or have their marriages annulled.
The Washington Defense of Marriage Alliance acknowledged on its Web site that the initiative was ''absurd'' but hoped the idea prompts ''discussion about the many misguided assumptions'' underlying a state Supreme Court ruling that upheld a ban on same-sex marriage. The measure would require couples to prove they can have children to get a marriage license. Couples who do not have children within three years could have their marriages annulled. All other marriages would be defined as ''unrecognized,'' making those couples ineligible for marriage benefits.
The paperwork for the measure was submitted last month. Supporters must gather at least 224,800 signatures by July 6 to put it on the November ballot." A.P., N.Y. Times Link to Article (last visited 2-7-07 NVS)