February 15, 2007
Case Law Development: Use of Liens to Secure Divorce Judgments to Be Paid Over Time
The Iowa Supreme Court reviewed a property division in an unusual case involving a couple who, during their 10-year marriage, built up a business together with assets of over ten million dollars, but who kept all the business assets in wife's name to protect them from creditors. The trial court had ordered that wife be granted the business assets but that she make payments to her ex husband over a period of years, with each payment to become a judgment when due. The court granted husband an equitable lien on the company to secure these payments.
However, the Iowa Supreme Court found the trial court's approach to leave husband with too little protection. First, the court found that the trial court should have issued a judgement for the entire amount, with an allowance of periodic payments, so that a judgment lien would attach to the business's real property. Second, it found the trial court's refusal to assess interest on the judgment to be in error. Finally, it reversed the grant of the equitable lien, finding a combination of a judgment lien and a UCC lien to be the best combination of protections for the ex husband.
In re Keener, 2007 Iowa Sup. LEXIS 13 (February 9, 2007)
Opinion on web (last visited February 11, 2007 bgf)
Legislative Update: Bills to Allow Disestablishment of Paternity
Legislation is working its way through the Colorado legislature that would make it harder for Colorado to force people to pay child support to children DNA tests have proven aren't theirs. The text of the bill. See the CBS4Denver website for a news video on the bill.
According to the Kansas City Star, this week a bill was introduced into the MIssouri legislature allowing DNA evidence to disestablish paternity after the current one-year limitations period.
See this Time magazine article on the national movement to pass similar legislation.
(all links last visited February 15, 2007 bgf)
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)
February 13, 2007
Law Review Article: Representation of Children
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)
Law Review Article: Proposed Model Juvenile Code
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)
Law Review Article: Children's Advocacy Centers
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)
Law Review Article: Children and the Law
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)
February 12, 2007
Clemency Rare for Women Who Kill Abusive Men
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)
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)
Italian Government Approves Bill to Grant Legal Rights to Cohabitants
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)
North Dakota Decriminalizes Cohabitation Unless Fraudulent
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.