Tuesday, March 27, 2007

Bill Would Deny Custody to Husbands Engaged in Polygamy

"A bill aimed at helping women leave polygamist husbands apparently will go no further this legislative session. HB 2325 would have denied husbands child custody if a court found “sufficient evidence” that they engaged in polygamy or child bigamy, an offense that includes married adults taking a child spouse and adults forcing children to enter plural marriages. Rep. David Lujan, D-Phoenix, said Monday that the bill, which won unanimous approval from the House Human Services Committee, won't take the next step and be heard by the Judiciary Committee. He said a second bill to provide funds for shelters helping women who leave polygamous marriages also won't advance.

“It's unfortunate that these aren't moving forward, but I'm going to continue pushing these because I feel they are important,” said Lujan, who also is the staff attorney for the Arizona chapter of Justice for Children, a national child advocacy group." By David Biscobing, Cronkite News Service, mhavedailynews Link to Article (last visited 3-27-07 NVS)

March 27, 2007 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Polygamy in New York

"She worked at the Red Lobster in Times Square and lived with her husband near Yankee Stadium. Yet one night, returning home from her job, Odine D. discovered that African custom, not American law, held sway over her marriage. A strange woman was sitting in the living room, and Ms. D.’s husband, a security guard born in Ghana, introduced her as his other wife. Devastated, Ms. D., a Guinean immigrant who insisted that her last name be withheld, said she protested: “I can’t live with the woman in my house — we have only two bedrooms.” Her husband cited Islamic precepts allowing a man to have up to four wives, and told her to get used to it. And she tried to obey.

Polygamy in America, outlawed in every state but rarely prosecuted, has long been associated with Mormon splinter groups out West, not immigrants in New York. But a fatal fire in a row house in the Bronx on March 7 revealed its presence here, in a world very different from the suburban Utah setting of “Big Love,” the HBO series about polygamists next door. The city’s mourning for the dead — a woman and nine children in two families from Mali — has been followed by a hushed double take at the domestic arrangements described by relatives: Moussa Magassa, the Mali-born American citizen who owned the house and was the father of five children who perished, had two wives in the home, on different floors. Both survived.

No one knows how prevalent polygamy is in New York. Those who practice it have cause to keep it secret: under immigration law, polygamy is grounds for exclusion from the United States." By Nina Bernstein, N.Y. Times Link to Article (last visited 3-27-07 NVS)

March 27, 2007 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Supreme Court Declines Grandparent Case

"A widowed father lost his bid Monday to have the Supreme Court decide whether grandparents should have court-ordered visits with his son. The justices refused to get involved in the dispute between Shane Fausey, a federal-prison guard in Pennsylvania, and his dead wife's mother. Cheryl Hiller won rulings in Pennsylvania courts giving her regular visits with Fausey's son, Kaelen, over the father's objection. Grandparents do not have to prove that being kept away would be harmful to their grandchildren in order to get court-ordered visitation, the Pennsylvania Supreme Court said. Fausey said the court ruling violated his constitutional right to make parenting decisions." AP, N.Y. Times Link to Article (last visited 3-27-07 NVS)

March 27, 2007 in Visitation | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 21, 2007

Case Law Development: Allegations of Wife's Attempted Murder of Husband Do Not State a Claim for Terminating His Maintenance Obligation

The Missouri Supreme Court affirms the dismissal of an ex-husband's petition to terminate maintenance based on his allegations that wife had sought to have him murdered.  The couple had agreed to a non-modifiable maintenance term in their divorce decree.  The Supreme Court noted that Missouri statutes provide that such an agreement, when found conscionable and incorporated into a divorce decree, binds the court:

A non-modification provision can cut both ways. No one can know which party will need more or deserve less as time passes. As with all contract terms, a non-modification provision is an agreed allocation of future risk, bargained for and for which consideration is exchanged. The Missouri legislature has seen fit to allow such a clause to be elevated from contractual to judicial status by incorporation into the dissolution decree. We are bound to respect the statute and to enforce these documents as agreed to and ordered.

The court rejected husband's argument that a court may reconsider the conscionability of the agreement based on later events. It likewise found that waiver was inapplicable as the attempt to murder husband would not establish a "clear and unequivocal attempt to relinquish her contractual right to maintenance so long as [husband] is living."  Finally, the court rejected the application of the public policy doctrine which prohibits an individual from receiving death benefits when they have murdered their spouse.  Reasoning that wife would not benefit from the successful murder of husband, the court found these cases inapplicable.

Richardson v. Richardson, 2007 Mo. LEXIS 39 (March 20, 2007)
Opinion on web (last visited March 20, 2007 bgf)

March 21, 2007 in Maintenance (alimony) | Permalink | Comments (1) | TrackBack (0)

Case Law Development: Child Support for Ward of a Divorced Couple Is Not Terminated When Ex-husband Withdraws as Guardian

The Indiana Supreme Court reversed a trial court's modification of child support in a case involving a couple who had become guardians of Wife's grandson from a prior marriage. Ten years after the guardianship was established, the couple divorced.  The trial court incorporated into its decree the parties' settlement agreement, in which the couple agreed to share custody of the grandson and Husband agreed to pay Wife for some of the expenses of raising the grandson. 

After the dissolution, Husband remarried, withdrew as guardian, and sought modification of the decree's section about payments for the benefit of the grandson. The trial court granted modification, and the Court of Appeals affirmed. The Indiana Supreme Court concluded that termination of guardianship was not grounds for modifying the dissolution decree.

The court rejected Wife's argument that Husband was in loco parentis to the grandson, and thus obligated to obigated to pay child support as if he were the father, reasoning:

...it makes little sense to require child support from a person in loco parentis when that status is temporary in nature and essentially voluntary. The stand-in parent would effectively be able to choose whether or not he or she should be required to pay child support simply by choosing to continue or discontinue the relationship. It also seems unwise to create a layer of financial risk for adults who voluntarily provide financial and emotional support to children not their own. Lastly, it is difficult to imagine imposing parallel obligations on the institutions (like juvenile courts or universities) to which in loco parentis is commonly deployed.

The court did, however, find that there were no grounds for modifying the decree.  The court considered whether the agreed payments were best characterized as maintenance, child support, or disposition of property, but concluded that, regardless of the characterization, "the termination of guardianship has little practical effect" as there were no grounds for modifying the dissolution decree under any one of these theories.

In re Marriage of Snow, Indiana Supreme Court (March 13, 2007)
Opinion on web (Last visited March 20, 2007 bgf)

March 21, 2007 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Preference for De-Facto Parent Applies in Adoption Case rather than Placement with Relatives

The California Court of Appeals weighed the application of preferences for relatives versus caregivers in child protection cases in deciding whether a 10-year-old girl should be removed from the home of her de-facto parent and placed with her maternal aunt in Oregon.  The trial court had ordered the girl removed from her de-facto parent, placed her with her aunt with an adoption plan, and terminated the girl's parental rights.  Both the girl and her de facto parent appealed.  The court of appeals reversed, holding that the preference for placing children with relatives did not apply in this case because the child was already placed with the de-facto parent and no new placement was necessary.  While the de-facto parent had not yet been able to have the court designate her as a "prospective adoptive parent" (which provides more procedural protections), she intended to adopt the child, so that the caretaker preference standards should have been applied.  Aunt had argued that the caretaker preference could not come into play until after termination of parental rights, but the court of appeals concluded that the preference arose whenever adoption became the permanency plan.  The court concluded that the trial court had preferred placement with the aunt because it had misunderstood the impact of the relative placement and remanded for consideration of the de-facto parent's application "on a level playing field."

The case would make a fascinating case study, both for the careful legislative interpretation necessary to decide when each preference applies, and for consideration of the importance of timing and procedural posture in child protection cases. 

In re Lauren R., Cal. App. 4th District (March 19, 2007)
Opinion on web (last visited March 20, 2007 bgf)

March 21, 2007 in Adoption | Permalink | Comments (0) | TrackBack (0)

Monday, March 19, 2007

New Strategies for Gay Rights?

"Aronda Kirby and Digit Murphy were once married to men, received the tax breaks for married couples and were legally permitted to take family leave if their husbands or children got sick. Both women lost those protections when they came out as lesbians, divorced their husbands and set up a new household together with their six children.

Now, with couples like Murphy and Kirby in mind, some gay rights advocates who previously fought for ''marriage or nothing'' are shifting strategies. Rather than fighting to legalize marriage for same-sex couples, they're lobbying for the protections marriage provides.

Those who follow the movement say bills taking that approach that were introduced this year in Rhode Island and Washington state could signal a broader change in tactics, although some gay marriage advocates fear it could undercut more than a decade of work." AP, N.Y. Times Link to Article (last visited 3-19-07 NVS)

March 19, 2007 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Criminal Intimate Abuse Declining?

"Criminal violence against intimate partners has dropped nearly two-thirds in recent years and has reached a record low, preliminary government figures show. Current and former spouses, as well as unmarried couples, have reported falling victim to criminal abuse far less than they did in the 1990s, according to the federal Bureau of Justice Statistics.

Domestic violence experts are quick to point out that the trend has not lessened the demand for shelters for victims, but they credit new laws, expanded services and better enforcement for a shift in public awareness. They say continued efforts to educate people are needed for more improvement." By Frank Greve and Anthony Lonetree, StarTribune.com Link to Article (last visited 3-19-07 NVS)

March 19, 2007 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Adopted Partner as Heir to Estate

"On an island liberally sprinkled with the affluent and well-connected members of such clans as Bush, du Pont, Rockefeller and Cabot, the Watson family occupies a special place. The family, descendants of Thomas J. Watson Sr., the founder of I.B.M., owns more than 300 acres worth nearly $20 million on the northern tip of this sea-splashed idyll 90 miles northeast of Portland. Over four decades, various Watsons summering here have flown helicopters and other aircraft; driven antique cars and collected scrimshaw. The family has held an annual square dance at their compound, Oak Hill.

Recently, though, the Watson name has surfaced in a different context, a most unusual lawsuit. It concerns Olive F. Watson, 59, granddaughter of the I.B.M. founder and daughter of Thomas J. Watson Jr., the company’s longtime chief executive; and Patricia Ann Spado, 59, her former lesbian partner of 14 years.

In 1991, Ms. Watson, then 43, adopted Ms. Spado, then 44, under a Maine law that allows one adult to adopt another. The reason, Ms. Spado has contended in court documents, was to allow Ms. Spado to qualify as an heir to Ms. Watson’s estate. But less than a year after the adoption, Ms. Watson and Ms. Spado broke up. Then in 2004, Ms. Watson’s mother died, leaving multimillion-dollar trusts established by her husband to be divided among their 18 grandchildren.

Re-enter Ms. Spado with a claim: Because she was adopted by Olive F. Watson, she said, she is technically Thomas J. Watson Jr.’s 19th grandchild and is therefore eligible for a share of the trusts." By Pam Belluck and Alison Leigh Cowan, N.Y. Times Link to Article (last visited 3-18-07 NVS)

March 19, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 15, 2007

Children of Illegal Immigrants

"They are the hidden side of the government's stepped-up efforts to track down and deport illegal immigrants: Toddlers stranded at day care centers or handed over to ill-equipped relatives. Siblings suddenly left in charge of younger brothers and sisters.

When illegal-immigrant parents are swept up in raids on homes and workplaces, the children are sometimes left behind -- a complication that underscores the difficulty in enforcing immigration laws against people who have put down roots and begun raising families in the U.S.

Three million American-born children have at least one parent who is an illegal immigrant; one in 10 American families has mixed immigration status, meaning at least one member is an immigrant here illegally, according to the Pew Center for Hispanic Research and the office of U.S. Rep. Jose Serrano. Children born in the U.S. are automatically American citizens and are not subject to deportation." A.P., N.Y. Times Link to Article (last visited 3-16-07 NVS)

March 15, 2007 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 13, 2007

Marine Gen. Pace Supports "Don't Ask, Don't Tell"

"The chairman of the Joint Chiefs of Staff, defended the "Don't Ask, Don't Tell" policy on moral grounds. In a newspaper interview on Monday, Marine Gen. Peter Pace likened homosexuality to adultery and said the military should not condone it by allowing gays to serve openly in the armed forces.

Pace was responding to a question from a Chicago Tribune about the policy that allows gays and lesbians to serve if they keep their sexual orientation private and don't engage in homosexual acts. The 1994 law also prohibits commanders from asking about a person's sexual orientation. Pace said he supports the policy.

``I believe homosexual acts between two individuals are immoral and that we should not condone immoral acts,'' Pace was quoted as saying in the newspaper interview. ``I do not believe the United States is well served by a policy that says it is OK to be immoral in any way.''" By KCBS Link to Article (last visited 3-13-07 NVS)

March 13, 2007 | Permalink | Comments (0) | TrackBack (0)

N.Y. Recognition of Marriages

"Lambda Legal announces today that the Supreme Court of New York, Westchester County has held that County Executive Spano is adhering to New York law in respecting out-of-state marriages of same-sex couples living in Westchester County.

“Today’s decision follows a long history of settled law in New York, namely that our state respects marriages that are validly entered into in other jurisdictions,” said Alphonso David, Staff Attorney at Lambda Legal and lead attorney on this case. “Our clients can now have peace of mind that their marriage is respected in Westchester, consistent with New York law.”" By Lambda Legal Link to Article (last visited 3-13-07 NVS)

March 13, 2007 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Thursday, March 8, 2007

Symposium on Non Marital Families

The Journal of Gender, Social Policy and the Law at American University, Washington College of Law presented a symposium titled "UNmarried . . . With Children: Evaluating Legal Constraints and Social Judgments"on February 12, 2007.  Podcasts of the symposium panels, including, in the third panel, a provocative critique by WCL Professor Nancy Polikoff on the push for same-sex marriage, can be found at the following links:

  • Welcome Remarks / Panel 1: Legally Establishing and Protecting the Non-marital Family (01:41:42)
  • Panel 2: Limited Access: Obstacles Non-Marital Families Must Overcome to Adopt or to Utilize Assisted Reproductive Technology (01:48:20)
  • Panel 3: Obtaining Public and Health Benefits for Non-Marital Families (01:58:14)
  • (Last visited March 6, 2007 bgf)

    March 8, 2007 in Cohabitation (live-ins) | Permalink | Comments (0) | TrackBack (0)

    Domestic Violence as Human Rights Violation Alleged

    In a matter described as "the first individual complaint brought by a victim of domestic violence against the United States for human rights violations," the Inter-American Commission on Human Rights held a hearing on March 2, 2007 in the case of Jessica Gonzales v. United States.  The case, brought by the unsuccessful appellee in Castle Rock v. Gonzales, 545 U.S. 748 (2005), was summarized in a public announcement issued prior to the hearing by one of Gonzales' lawyers, Caroline Bettinger-Lopez of Columbia Law School:

    In June 1999, Jessica Gonzales' estranged husband abducted her three daughters, in violation of a domestic violence restraining order. Ms. Gonzales called and met with the police repeatedly to report the abduction and restraining order violation. Unfortunately, her calls went unheeded.  Ten hours after her first call to the police, Ms. Gonzales' estranged husband arrived at the police station and opened fire. The police immediately shot and killed Mr. Gonzales, and then discovered the murdered bodies of the Gonzales children – Leslie, 7, Katheryn, 8, and Rebecca, 10 – in the back of his pickup truck.  Ms. Gonzales filed a lawsuit against the police, but in June 2005, the Supreme Court found that she had no constitutional right to police enforcement of her restraining order.  In December 2005, Ms. Gonzales filed a petition with the Inter-American Commission on Human Rights, alleging that the police’s actions and the Supreme Court’s decision violated her human rights.
    A webcast of the March 2, 2007 hearing is available at www.oas.org (video) or www.cidh.org (audio).  Documents related to Ms. Gonzales' case before the Inter-American Commission can be found at: http://www.law.columbia.edu/focusareas/clinics/humanrights#97614 and http://www.aclu.org/womensrights/violence/23287res20051230.html.
    Ms. Gonzales is represented by the Columbia Law School Human Rights Clinic and the American Civil Liberties Union (ACLU) Human Rights Program (HRP) and Women’s Rights Project (WRP).
    Thanks to Professor Matthew Fraidin for this post.  (BGF)

    March 8, 2007 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

    Age Divides Opinions on Gay Marriage

    The growing acceptance of same-sex marriage in California reflects generational differences more than changes in individual attitudes, according to a study released Thursday. Two political scientists who analyzed two decades worth of Field Polls on the subject found that age was the strongest factor influencing whether someone opposed gay unions, with people born in the 1970s and '80s more than twice as likely to support them as those born before 1940. ''Californians born in each decade tend to be more accepting of gay relationships and more willing to grant them legal recognition than those born the decade before,'' said the study's authors, Gregory Lewis of Georgia State University and Charles Gossett of California State Polytechnic University, Pomona.

    Read the rest of the New York Times story

    March 8, 2007 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

    Proposed Legislation in Nigeria Severely Curtails Rights

    "Homosexual acts between consenting adults are already illegal in Nigeria under a penal code that dates to the colonial period. This new legislation would impose five-year sentences on same-sex couples who have wedding ceremonies — as well as on those who perform such services and on all who attend. The bill’s vague and dangerous prohibition on any public or private show of a “same sex amorous relationship” — which could be construed to cover having dinner with someone of the same sex — would open any known or suspected gay man or lesbian to the threat of arrest at almost any time.

    The bill also criminalizes all political organizing on behalf of gay rights. And in a country with a dauntingly high rate of H.I.V. and AIDS, the ban on holding any meetings related to gay rights could make it impossible for medical workers to counsel homosexuals on safe sex practices." N.Y.Times Editorial Link to Editorial (last visited 3-8-07 NVS)

    March 8, 2007 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

    Tuesday, March 6, 2007

    Law Review Article: Child Support Policy

    Vicky Barham, Rose Anne Devllin and Jie Yang, Public Policies and Private Decisions: the Effect of Child Support Measures on Marriage and Divorce, 35 J. LEGAL STUD. 441 (2006). The authors use data from the Survey of Labour and Income Dynamics (Canada 1993-98) to establish an empirical link between child support policy and the decision to marry or divorce.

    Li nk To Westlaw (last visited 3-6-07 NVS)

    March 6, 2007 | Permalink | Comments (0) | TrackBack (0)

    Law Review Article: Parental Rights of Same-sex Parents

    Linda S. Anderson, Protecting Parent-child Relationships: Determining Parental Rights of Same-sex Parents Consistently Despite Varying Recognition of Their Relationship, 5 PIERCE L. REV. 1 (2006). This article considers how states can retain the right to recognize or prohibit civil unions or same-sex marriages while also bringing predictability with respect to parental rights and responsibilities. The author proposes changes to the Uniform Parentage Act and state statutes that would place focus on the parent-child relationship rather than on the relationship of the parents.

    Link to Westlaw (last visited 3-6-07 NVS)

    March 6, 2007 | Permalink | Comments (0) | TrackBack (0)

    Friday, March 2, 2007

    North Dakota Decriminalizes Cohabitation

    Unmarried couples who live together in North Dakota will no longer be considered criminals after the House agreed Thursday to repeal the law that has been on books since statehood.

    Read the New York Times article (last visited March 2, 2007 bgf)

    March 2, 2007 in Cohabitation (live-ins) | Permalink | Comments (0) | TrackBack (0)

    Thursday, March 1, 2007

    Collaborative Law Websites

    "Because it ends a marriage, divorce can be a painful experience. But there is no denying that divorce is also a new beginning. Recognizing this, many individuals have sought a more constructive way of divorcing. For them, Collaborative Practice (Collaborative Law and Collaborative Divorce) has been the answer. It promotes respect, places the needs of children first and keeps control of the process with the spouses." By International Academy of Collaborative Professionals (IACP) Link to Website

    "Separating or divorcing is never easy. But when couples and their advocates take a less adversarial approach, the entire family benefits. Collaborative practice (often called collaborative law) helps families resolve divorce issues with dignity and respect. In the collaborative process, husbands, wives, their attorneys, and any other collaborative professionals working with the family, agree to resolve all issues of their case without contentious court proceedings. They plan together to craft an agreement. They make thoughtful decisions that can actually work for the entire family." By Collaborative Law Institute of Minnesota Link to Website

    (Last visited 3-1-07 NVS)

    March 1, 2007 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)