Saturday, August 30, 2008
Case Law Development: Phillipines Supreme Court finds husband's homosexuality insufficient to declare marriage void
The Phillipines Supreme Court's 3rd Division, in a twenty page decision, reversed a lower court's ruling declaring an eleven year opposite-sex marriage void because of the husband's homosexuality. The Supreme Court found the trial court erred by only considering the husband's alleged homosexuality rather than requiring proof that the husband concealed his sexual identity from the wife at the time of the marriage.
A report of the case in a Phillipines newspaper is available here (RR last visited August 30, 2008)
Friday, August 29, 2008
According to the Deseret News (Utah), Texas has dropped 56 additional cases involving children taken from their homes at the FLDS Yearning For Zion ranch, raising to 253 the total number of cases dismissed. One child has been returned to foster care. (visited by MIF 08-29-08)
"Kitzen and Jeni Branting -- Kitzen legally took Jeni's last name three years ago -- signed up for the domestic partnership registry in their home state of Washington, but Kitzen Branting said getting married under tribal law means more to her than state or federal recognition.
"They're my family and we're a pretty small tribe and I have a close connection to them," Branting said. She remembers summers spent at youth camps and performances of traditional Coquille dances. "They are my immediate people."
Once married, Jeni Branting, 27, who is not a Coquille, will have the same rights as any other tribal spouse, including health insurance and the right to attend tribal functions."
By abc News Link to Article (last visited 8-29-08 NVS)
Sunday, August 24, 2008
Advocates for Children and Youth (Maryland), reports here that "African-American children in Maryland are in out-of-home
placement at 5.3 times the rate of white children, more than 50 percent
higher than the national gap. African-American children are being
removed from their homes at 3.5 times the rate of white children. These
disparities exist despite no evidence of any difference in actual
A substantial body of research has demonstrated nationwide that African-American children and families are treated worse at every stage of the child welfare process than whites. African-Americans parents are the subject of a disproportionate number of unsubstantiated reports of child abuse and neglect, African-American children are removed at greater rates than white children, receive worse treatment and endure longer stays in foster care, and are adopted at lower rates than white children. Much of the earliest research is described in Dorothy Roberts' chilling, classic 2001 book, Shattered Bonds: The Color of Child Welfare.
For more recent state-by-state data, see Appendix 2 to this July 2007 U.S. Government Accounting Office report.
The Government Accounting Office submitted this July 31, 2008 testimony for a hearing in the U.S. House of Representatives, Committee on Ways and Means, Subcommittee on Income Security and Family Support.
The Center for the Study of Social Policy has been a leader in bringing attention to this issue via the Annie E. Casey Foundation-CSSP Alliance for Racial Equity in Child Welfare. See Robert Hill's 2007 report for CSSP synthesizing research on racial disproportionality in child welfare, and CSSP's fact sheet.
(all links last visited 08-24-08 MIF)
Saturday, August 23, 2008
Brooke Adams of the Salt Lake Tribune reports today that on Friday, August 22, Texas dropped 49 child abuse allegations involving children from the FLDS ranch. Texas now has asked for the dismissal of 150 cases, with 290 remaining pending. According to Adams, of the 440 children taken by the state from the Yearning for Zion ranch and later ordered returned by the state Supreme Court, one child has been returned to state custody. (last visited 08-23-08 MIF)
Wednesday, August 20, 2008
National Coalition for Child Protection Reform Releases "Due Process Agenda for Children and Families"
On August 11, 2008, The National Coalition for Child Protection Reform released "Civil Liberties Without Exception: NCCPR's Due Process Agenda for Children and Families". Setting forth sixteen recommendations, the report urges states to "enact . . . meaningful due process protections for families." NCCPR recommends elimination of the "secretive, insular" culture of child welfare in which most agency records and court hearings are shielded from the public. NCCPR's recommendations also include significant improvement in the screening of reports telephoned to child abuse and neglect hotlines and improved legal representation of parents in child welfare cases. (August 20, 2008 MIF)
Tuesday, August 19, 2008
The California Supreme Court has unamiously ruled medical personnel’s claims to First Amendment rights (based on religion and speech) must yield to the state’s anti-discrimination law in the provision of medical services, including fertility treatments. As stated by the court in its August 18, 2008 opinion:
Do the rights of religious freedom and free speech, as guaranteed in both the federal and the California Constitutions, exempt a medical clinic’s physicians from complying with the California Unruh Civil Rights Act’s prohibition against discrimination based on a person’s sexual orientation? Our answer is no.
The case was based upon a doctor’s refusal to perform intrauterine insemination on the plaintiff, Guadalupe Benitez, because the doctor’s religious beliefs precluded her from performing the procedure on a lesbian, or perhaps on an unmarried woman.
North Coast Women’s Care Medical Group, Inc. v. Superior Court, (California Supreme Court, August 18, 2008)
Read the opinion online (last visited August 19, 2008 RR)
Saturday, August 16, 2008
The political parties are in the process of drafting their national party platforms for the 2008 election and, as expected, there is some attention to family law issues.
The draft 2008 Democratic National Platform is interesting both for what it says and what it does not say. A section on "fatherhood" states that "too many fathers are missing." The party supports "removing tax penalties on married families and expanding maternity and paternity benefits," as well as rewarding those "who are responsibly supporting their children by giving them a tax credit" and will "crack down on men who avoid child support payments" and "ensure that payments go directly to families instead of bureaucracies." (page 44 lines 34-44). There is a section on "empowering families" with an extensive discussion of policies on health care, employment, "work and family," and women. Of particular interest is a pledge to "expand the Family and Medical Leave Act" to "enable workers to take leave to care for an elderly parent, address domestic violence, or attend a parent-teacher conference," and to work with states to make leave paid rather than unpaid. (page 10 lines 31-35). In a subsection entitled "Choice" the platform provides: "The Democratic Party strongly and unequivocally supports Roe v. Wade and a woman's right to choose a safe and legal abortion, regardless of ability to pay, and we oppose any and all efforts to weaken or undermine that right." There is also strong support for "access to affordable family planning services and comprehensive age-appropriate sex education," and a mention of "caring adoption programs." (page 45 line 19-31). There is also this single line: "We oppose the Defense of Marriage Act and all attempts to use this issue to divide us." (page 47 lines 8-9).
The draft of the 2008 Democratic National Platform, in pdf format from CNN/TIME, is available here.
The Republican National Platform Committee is apparently still in progress - - - the committee is soliciting input for its 2008 platform here.
The draft of the 2008 Green Party Platform includes a section on youth, a call for equality regardless of sexual orientation and gender identity in civil marriage and child custody, a section on protecting abortion and contraception (specifically including the "morning after pill") and is available here.
The 2008 Constitution Party Platform calls for to the government to "secure and to safeguard the lives of the pre-born." The platform opposes "government funding of 'partner' benefits for unmarried individuals," "any legal recognition of homosexual unions," and "efforts to legalize adoption of children by homosexual singles or couples," and is available here.
(RR August 16, 2008)
A recent ninth circuit court of appeals opinion describes nicely the process by which immigrants can become eligible for lawful permanent residence based on marriage. Faculty may find it a useful outline to give to students interested in this aspect of family law.
The case involved a Board of Immigration Appeals (“BIA”) decision that denied a Russian immigrant her application for adjustment of status to conditional permanent alien and ordered her deported. The applicant had come to the US in 1998 on a K visa as the fiancée of U.S. citizen. The couple were married in February 1999 and soon thereafter the applicant filed an application to adjust her status to that of a lawful permanent resident. Two years later, she and her husband divorced, while she was still waiting to have an interview with the Immigration and Naturalization Service on her application. The INS subsequently denied her application because of her divorce and the BIA affirmed this decision, finding that the language “as a result of the marriage of the nonimmigrant” in the Immigration and Naturalization Act § 245(d) required that the applicant remain married during the entire period of her application. The court of appeals reversed, finding the phrase meant only that the adjustment of status could be based only on the marriage to the the original spouse-sponsor, not on any other basis; Thus the court held that "The purpose and context of § 245(d) also do not support the government’s reading of the statute that requires the automatic removal of immigrants whose marriages end in divorce while their application for adjustment of status languishes in the agency’s file cabinet."
Choin v. Mukasey, (U.S. 9th Cir. Ct. App., August 12, 2008)
Read the opinion online (Last visited August 15, 2008 bgf)
Friday, August 15, 2008
The New Hampshire Supreme Court, interpreting the word "parent" in its custody statute, found that a trial court erred in dismissing a man's petition for parental rights and responsibilities of the six-year-old child he had helped raise since birth, despite the fact that the DNA testing ordered at mother's request showed that he was not the biological father. The man had signed an acknowledgment of paternity at the hospital when the child was born and later had a child support order entered against him. The New Hampshire Court held that this was sufficient to make his a parent entitled to bring an action for parenting time.
In the Matter of J.B. and J.G., (New Hampshire Sup. Ct. August 6, 2008)
Read the opinion online (last visited August 14, 2008 bgf)
From FEMINIST PHILOSOPHERS BLOG:
"The Feral Child is an object of fascination for many theorists. The very idea of one raises speculations about what the human being apart from civilization would be like. But the actuality can be horrible, tragic, sickening. Florida’s St. Petersburg Times recently published a long story on a child who seems to have had little social contact for the first five or six years of her life."
Feminist Philosophers Blog also provided this link to more on the story, including audio and other links: here (last visited August 11, 2008 RR).
Thanks Feminist Philosophers!
Sunday, August 10, 2008
The Ohio Court of Appeals reversed the grant of a protective order based on repeated communications during a divorce. Husband's communications threatened no actual physical harm. The trial court found that, while the statements would not cause imminent fear of physical harm for most people, given the "eggshell skull" rule, wife's subjective fear was sufficient. The court of appeals held that "trial court in this case erred in applying a solely subjective test to the question whether appellee met her burden of proof of a fear of imminent serious physical harm." Rather the court clarified that the standards for protective order require proof of:
Imminent fear -- fear of harm in the future is insufficient.
Actual fear -- there must be an actual subjective fear of physical harm
Reasonable fear -- this is an objective test, based on a reasonable person test, not an eggshell skull rule. The court explained...
While a phrase such as "I'll get you" or severe physical and verbal intimidation may be sufficient to implicitly present a threat of force, necessitating an inquiry into whether the petitioner reasonably feared imminent serious physical harm, the "threat" [in this case] was a threat to take legal action, and was not an explicit or implied threat of physical "violence, compulsion or constraint." ... Similarly, a threat that things "could get really, really bad for everybody involved" if the parties go back to court over visitation with their children has been determined not to be a threat of force sufficient to constitute domestic violence.
Fleckner v. Fleckner, 2008 Ohio 4000 (Ohio App. August 7, 2008)
Read the opinion online (last visited August 8, 2008 bgf)
Saturday, August 9, 2008
The Missouri Bar Family Law Conference this week hosted a session explaining Missouri's new Supreme Court rule on unbundling of legal services. The rule provides for express approval of attorney provisions of limited task representation and provides, in the comments, a helpful form for obtaining the client's informed consent to the limited representation. The rule, the product of a multi-year process examining unbundling, is not limited to family law representation, but many task forces and commentators have suggested that family law is the area of practice in which unbundling will have the greatest impact, especially, as an adjunct to mediation.
Read the Missouri Supreme Court's order amending Rule 1.2 (July 1, 2008) (last visited August 8, 2008 bgf)
Faculty may also find helpful the hour free video on Expanding Your Practice by Offering Limited Scope Legal Services: A "Hands On" Family Law Workshop produced by the Practicing Law Institute.
Thursday, August 7, 2008
The Eleventh Circuit has upheld Florida's statute allowing a student to be excused from reciting the Pledge of Allegiance ONLY with a "written request" from the student's parent. In Frazier v. Winn, the three judge panel reversed the district judge who had held the statute unconstitutional under the classic First Amendment case of West Virginia State Board of Education v. Barnette (1943). The Eleventh Circuit stated:
"We see the statute before us now as largely a parental-rights statute. As such, this case is different from Barnette. . . . The state, in restricting the student's freedom of speech, advances the protection of the constitutional rights of parents."
That the statute applied to all students - - - from kindergarten to the last year of high school - - - did not seem to trouble the court.
Frazier v. Winn, (11th Cir. July 28, 2008)
Read the opinion online (last visited August 7, 2008)(RR)