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 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)
Collaborative Law in New York
"Chief Judge Judith S. Kaye, in her annual address on the judiciary, announced plans to create a new family law center in New York City that is intended to make divorce faster and cheaper for couples who want amicable settlements.
New York, which does not have no-fault divorce, is notorious for judicial delays that turn even the least fraught divorces into expensive, acrimonious affairs. Judge Kaye, who has long championed overhauling state divorce laws, repeated her call for no-fault divorce in her speech on Monday, but that idea has stalled in the Legislature in the past.
The planned Collaborative Family Law Center, which will serve all five boroughs, does not require legislative approval, and it will serve as a pilot project on alternative approaches to divorce when it opens in Manhattan this year.
“Too much money, too much delay, too much agony,” Judge Kaye said in her speech, describing the state’s divorce laws. “We anticipate that spouses who choose this approach will find that the financial and emotional cost of divorce is reduced for everyone involved — surely a step in the right direction,” she added." By Danny Hakim, N.Y. Times Link to Article (last visited 3-1-07 NVS)
February 28, 2007
Hawaii Legislature Sidlines Civil Union Legislation
The New York Times reports that Hawaii lawmakers effectively killed a proposal to create civil unions for gay couples by declining to vote on the legislation. More than 100 people packed the House Judiciary Committee hearing Tuesday, many waving pink signs reading, ''Civil Unions. Equal protection, justice for all.'' At least 400 people submitted extensive written or oral testimony. After five hours of testimony, though, the committee declined to vote. Representatives offered little explanation to the public, but it was a sign that the bill lacked enough support to become law.
Read the New York Times article (last visited February 28, 2007 bgf)
Mothers with Children Face Most Severe Discrimination
BBC News reports a major study of discrimination in the UK which reports that a partnered mother with a child aged under 11 is 45% less likely to be in work than a partnered man. The report suggests women with young children face more discrimination in the workplace than disabled people or those from ethnic minorities. It cites a survey of 122 recruitment agencies that revealed more than 70% of them had been asked by clients to avoid hiring pregnant women or those of childbearing age.
Read the BBC News Report (last visited February 28, 2007 bgf)
February 27, 2007
Supreme Court Argument on Right of Parents to Represent Children in Court in IDEA Cases
The Supreme Court will be hearing arguments in Winkelman v. Parma School District today, to determine whether parents who are not lawyers can represent their children in federal court in disputes under the Individuals with Disabilities Education Act. Circuits have split on the issue.
Read the opinion from the 6th Circuit Court of Appeals
Read the Legal Times article on the case (last visited February 27, 2007 bgf)
February 26, 2007
Case Law Development: The Costs of Divorce
The Missouri Court of Appeals decided a case involving a divorce from a 27-year marriage in which maintenance, division of property and attorneys fees were disputed. The court affirmed the trial court's decision to award maintenance to wife, who had been a homemaker for most of the marriage and who had health problems and few job skills, and to award her a portion of the husband's retirement account, as well as the decision to award attorneys fees.
That the trial court's decisions were upheld is not particularly surprising given the high degree of deference given to trial courts on these issues and the fact that Missouri allows marital fault to impact these decisions.
What is striking about the case from a teaching perspective are the numbers:
Wife stayed at home for most of the marriage and never had earned more than $2000 a year.
At the time of trial, Husband had a monthly income of $3900, working as a machinest.
The couple had arrived at a settlement agreement and divided most of their marital property and debts. After the trial court divided the retirement account, the total property Wife received under the judgment was $9908. The total value of the property awarded to Husband, less the marital debt, came to $14,341. The trial court ordered Husband to pay modifiable maintenance to Wife in the amount of $550 per month.
Each party incurred about $3000 in attorneys fees for the dissolution action. For the appeal, Wife was awarded $6000 attorneys fees for her representation on appeal; Husband paid $18,000 for his representation on appeal.
Russum v. Russum, February 20, 2007
Opinion on the web (last visited February 26, 2007 bgf)
Case Law Development: Joint Physical Custody in Domestic Abuse Cases
The Iowa Supreme Court's analyzed the effect of domestic abuse on child custody decision-making, noting that "Because domestic abuse reflects the ability of the parties to listen to one another and respect one another’s opinions and feelings, the existence of domestic abuse is a significant factor in determining whether joint physical care is appropriate." The court then went on to explain the legal status of the parents when it rejects a joint physical care arrangement:
When joint physical care is not warranted, the court must choose one parent to be the primary caretaker, awarding the other parent visitation rights.... Under this arrangement, the parent with primary physical care has the responsibility to maintain a residence for the child and has the sole right to make decisions concerning the child’s routine care.... The noncaretaker parent is relegated to the role of hosting the child for visits on a schedule determined by the court to be in the best interest of the child. Visitation time varies widely and can even approach an amount almost equal to the time spent with the caretaker parent. .... Thus, the main distinction between joint physical care and primary physical care with liberal visitation rights is the joint decision making on routine matters required when parents share physical care.
The case is interesting for the court's recognition that conduct need not result in broken bones, noting that in this case Father's "personal disagreements with [Mother's] decisions soon led him to behave in a way that not only alienated [her], but ultimately caused her to fear for her safety.... While his desperate efforts to learn why his wife had left him are understandable, we cannot ignore the fact that eventually his actions reflected not the attempts of a husband trying to save his marriage, but the bitterness of a man who had been rejected and who resented his former partner." Finding this, the court concluded that the trial court had not erred in find that the father would be unable to cooperate in joint physical case.
In re Marriage of Hynick, February 16, 2007
Opinion on the web (last visited February 26, 2007 bgf)
Read the commentary of Iowa Attorney Alexander Rhoads at Iowa Family Law Blog
Amicus Briefs in Grandparent Visitation Case Before Supreme Court
In other developments on Grandparent Visitation, you can read the amicus briefs filed for and against writ of certiorari in the Pennsylvania Grandparent Visitation case Fausey v. Hiller (See Family Law Prof Blog post of August 25, 2006). The briefs are posted at Howard Basham's blog How Appealing (last visited February 26, 2007 bgf)
Case Law Development: Grandparent Visitation Statute Upheld
Grandparent visitation cases seem to be taking center stage once again. Recently, the New York Court of Appeals unanimously upheld a constitutional challenge to New York’s grandparent visitation law. The court distinguished the New York law from the Washington law struck down Troxel v Granville, noting that the New York statute gave parents the presumption that they were acting the in their children's best interest. The Court noted that:
. . . courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one. And while ...the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. "It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement" ...
While this presumption creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost four until he was seven, grandmother was his surrogate, live-in mother. The court then properly went on to consider all of the many circumstances bearing upon whether it was in the child's best interest for his relationship with grandmother to continue — e.g., the reasonableness of father's objections to grandmother's access to the child, her caregiving skills and attitude toward father, the law guardian's assessment, the child's wishes — before making a judgment granting visitation.
The court concluded that the New York statute "does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild." First, the court must find standing based on death or equitable circumstances; and if the court concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild.
Matter of E.S. v. P.D. (February 15, 2007)
Opinion from Legal Information Institute
Case Law Development: De Facto Parent Doctrine Rejected by Utah Supreme Court
The Utah Supreme Court has held that individuals who have no biological or legal relationship with a child have no standing to seek visitation. Reversing the district court's decision that a former domestic partner could assert a claim to visitation under the common law doctrine of in loco parentis, the court held that Utah's doctrine of in loco parentis does not independently grant standing to individuals to seek visitation after the in loco parentis relationship has ended.
The couple in the dispute had entered into a civil union in Vermont and, after one bore a child conceived through artificial insemination, they were both obtain co-guardianship of the child and raised the child together until their relationship dissolved two years later. The court emphasized the temporary nature of the in loco parentis doctrine, concluding that it may be terminated by either the legal parent, the parent standing in loco parentis, or the child. The court further refused to expand the doctrine to recognize a new doctrine of de-facto or psychological parent, finding that a legislative task beyond the competence or power of the judiciary and in conflict with legislative policy.
Chief Justice Durham dissented, emphasizing that there had been no legislative pronouncements at all on the issue of surrogate parent standing to seek visitation or custody and finding the extension of such a doctrine to be an appropriate exercise of the court's power to adapt the common law to changing social realities.
Jones v. Barlow, Utah (February 16, 2007)
Opinion on web (last visited February 26, 2007 bgf)