Thursday, August 30, 2007

Case Law Development: Maine Supreme Court rules Lesbian Couple may Adopt

The Maine Supreme Judicial Court ruled unanimously today that state law does not preclude unmarried couples from jointly petitioning to adopt a child.  The case involved a lesbian couple who had petitioned to adopt a 10-year-old girl and her 6-year-old brother, for whom the couple had been foster parents since 2001.

The court decided the case solely as a matter of statutory construction, reasoning that if it read the statute to prohibit joint petitions by unmarried persons, the statute would still clearly allow successive petitions by unmarried persons, leading to the same end result.  "With this in mind, construing section 9-301 as prohibiting a joint petition by unmarried persons elevates form over substance to an illogical degree."  In terms of reading the statute to effectuate the purposes of adoption law, the court noted that joint petitions serve the best interests of children in a variety of ways, by insuring continuity of care should one parent die, by enabling access to  broader range of benefits from two parents rather than one, and "Most importantly, a joint adoption affords the adopted children the love, nurturing, and support of not one, but two parents."

Adoption of MA  (Maine Supreme Court August 30, 2007)
Opinion online (last visited August 30, 2007 bgf)

In related news, see the Rocky Mountain News story on the first same-sex Colorado couple to adopt after the passage of legislation permitting unmarried couples to adopt.

August 30, 2007 in Adoption | Permalink | Comments (0) | TrackBack (0)

Iowa district court declares same-sex marriage ban legislation unconstitutional

Just as many of us are getting to impediments to marriage in our syllabus this semester (and many a candidate is getting to Iowa for votes), a Polk county Iowa district court judge has ruled that Iowa's statute prohibiting same-sex marriage violates due process and equal protection, having no rational relationship to a legitimate government objective.  The 62-page decision on a motion for summary judgment has many advantages as a pedagogical tool for examining the subject of same-sex marriage. First, the court addresses the admissibility of testimony of many experts, demonstrating the underlying empirical assertions that are advanced in the argument.  Second, the trial court format of separately numbered findings of fact and conclusions of law makes it easy to pinpoint specific issues for discussion. 

Alexander Rhoads, of Babich, Goldman, Cashatt & Renzo, P.C., who edits the Iowa Family Law Blog and alerted us to the story notes that "An appeal is expected.  Under Iowa's appellate rules, the defendant, the Polk County Recorder (who issues marriage licenses under Iowa law) has a right of direct appeal to the Iowa Supreme Court, which may retain the case or refer it to Iowa's only other appellate court, the Iowa Court of Appeals."  According to the Chicago Tribune, the county immediately filed a motion for a stay from the trial judge, which is likely to be heard next week.
Varnum v. Brien (August 30, 2007)
Decision available online (last visited August 30, 2007 bgf)

August 30, 2007 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 28, 2007

Custody Arguments

"A judge hearing arguments in a custody case over a 4-year-old Cuban girl criticized state officials Monday for saying she would be irreparably damaged simply by being taken from her foster family and returned to her father in her communist home country.

Cuban farmer Rafael Izquierdo is fighting his daughter's wealthy foster parents for custody. He allowed the girl's mother to take her to the U.S., but the woman later attempted suicide and allowed the state to take custody of the child.

Rebecca Kapusta, an attorney for Florida's Department of Children & Families, argued that the girl should be allowed to remain with former baseball agent Joe Cubas and his wife, and that the Cuban-American couple be allowed to begin adoption proceedings.

''Our experts have told the father to remove this young girl at this young age would result in permanent injury and she would never recover,'' Kapusta told Miami-Dade Circuit Judge Jeri B. Cohen.

Cohen responded, ''What you're trying to do is say that if a father wants to remove his child from placement ... that if a father does that or a mother, that constitutes prospective abuse? I have never seen anything like this in all of my years of doing dependency.''"

AP N.Y. Times Link to Article (last visited 8-28-07 NVS)

August 28, 2007 | Permalink | Comments (0) | TrackBack (0)

Who is Family?

"Inside the sprawling Rochester Athletic Club on the fringe of the city is a unique community gathering place called "The Neighborhood."
It features an ersatz town square with a miniature golf course, an artificial ice rink, a gym and a "cafe in the park." Building facades are painted on the walls to make the giant room look like an idyllic small town village. The slogan is: "Where families grow together."

But there's trouble in the neighborhood, and it's over what constitutes a "family," and who gets to decide.

A district judge in Olmsted County is now considering whether a precedent-setting discrimination lawsuit against the club and owner John Remick will proceed or be dismissed.

If allowed to continue, the suit will determine whether the club must give a lesbian couple and their 11-year-old child a family membership.

The family membership would save them about $500 per year."

By Jon Tevlin, Star Tribune Link to Article (last visited 8-28-07 NVS)

August 28, 2007 | Permalink | Comments (0) | TrackBack (0)

End of Summer Divorce?

"As summer draws to a close, it's time for the last few days of vacation, time for the kids to head back to school — and for many couples, time for a divorce.

Though no official statistics are available, divorce lawyers who spoke with ABC News said more people decide to split up at the end of the summer or after the Christmas holidays than during other times of the year."

By Scott Michels, ABC News Link to Article (last visited 8-28-07 NVS)

August 28, 2007 | Permalink | Comments (0) | TrackBack (0)