Saturday, January 12, 2008
Some time ago, the editorial staff of Family Law Prof decided we would no longer cover celebrity family law problems as a routine matter. However, Professor Joanna Grossman has provided a lovely essay on the Britney Spears family law saga you may wish to share with your students. The essay, "Britney Spears: Why She Lost Visitation Rights, And What Her Case Teaches Us About Family Law" is available at FindLaw's Writ (last visited January 9, 2008 bgf)
A commissioned poll by an online divorce site (Divorce360.com) examines the reasons people divorce. The number one reason people gave for divorce is abuse. More than one in three (36%) divorced Americans cited either verbal or physical abuse as the main cause of divorce. Money, at 22%, is a distant second. Women are more than twice as likely as men (48% vs. 21%) to divorce because of verbal or physical abuse. Men, in turn, are more than twice as likely as women (22% vs. 11%) to cite sex as the cause for their failed marriage.
Read the Divorce360 report (last visited January 9, 2008 bgf)
Friday, January 11, 2008
A recent report by two research institutions, the Center for New York City Affairs at the New School and the Center for an Urban Future reports that the New York Family Court system has been “overwhelmed” by a flood of abuse and neglect cases in the last two years. The report “Against the Clock: The Struggle to Move Kids Into Permanent Homes,” notes that abuse and neglect allegation have increased by 150% in the past two years and that more children are spending longer periods in foster care. "Despite the Permanency Law of 2005 — which aimed to get children out of foster care faster — kids in New York City are staying in foster care longer. For children in foster care for the first time, the median length of stay before returning home rose from 8.2 months in fiscal year 2005 to 11.5 months in fiscal year 2007."
The Maine Supreme Court disagreed over whether a default judgment was appropriate for a father's failure to appear at a Magistrate's status conference. The majority affirmed the trial court's entry of default judgment awarding mother custody based on father's failure to appear at the status conference. The court noted that father's excuse that he was confused about the hearing was not credible. The dissent used the case as an opportunity to criticize the practice of Magistrate's scheduling of repeated status conferences, noting that the scheduling order in this case provided little notice regarding what issues would be determined at the hearing. The dissent commented:
This pre-trial conference scheduling order was not an aberration. It reflected a widespread practice of Family Law Magistrates scheduling repetitive pre-trial status conferences, requiring parties to appear at court, but without any specific objective to be achieved in the court appearance. In a November 2006 report, our Family Division Task Force expressed concern about "too many case management conferences at which little is accomplished." Family Division Task Force Report at 3 (2006). The Task Force noted that "some current scheduling practices indiscriminately promote numerous conferences in pre-and post-judgment family matters." The Task Force report also stated a goal "to reduce the number of magistrate events that do not address substantive issues.
The majority had agreed that there was cause for concern regarding magistrate practices, but concluded that:
While the scheduling of repetitive case management conferences could lead to confusion or frustration on the part of litigants, this matter is hardly a case study in injustice....While critical review of scheduling practices is generally a worthwhile undertaking, the instant matter is not a productive forum for this discussion.
Conrad v. Swan, 2008 ME 2 (January 8, 2008)
Opinion online (last visited January 10, 2008 bgf)
The California Court of Appeals has issused an unpublished opinion that is an excellent case study of the relationship between poverty and termination of parental rights. A presumed father's parental rights had been terminated because he was unable to provide a stable home for his children, even though he had been an involved, caring father and the child protective services had found no harm or threat of harm to them at any time. The court of appeals reversed the termination, holding that the trial court must find that a presumed father is unfit before terminating parental rights. The court commented:
DCFS may not bootstrap the fact that Gerardo was too poor to afford housing, which would not have served as a legitimate ground for removing the boys in the first place, to support findings of detriment, all of which flow directly from the circumstances of Gerardo's poverty and his concomitant willingness to leave his sons in his family's care while he stayed close, maintained familial ties and worked to raise rent money. This is particularly so when DCFS might have assisted Gerardo to obtain affordable housing, but made no effort to do so....It is not up to Gerardo to prove he is a fit parent. Rather, it is up to DCFS to satisfy its constitutional burden to establish, by clear and convincing evidence, that he is not.
In re G.S.R., Cal. App. Second Div. (January 8, 2008)
Opinion online (last visited January 10, 2008 bgf)
Thursday, January 10, 2008
The United States Supreme Court on Monday refused to review a Mississippi Supreme Court's decision affirming a $750,000 damages award for "alienation of affection." The plaintiff Johnny Fitch divorced his wife Sandra after she became pregnant and a paternity test confirmed his suspicions the child wasn't his. He then sued the real father under the alienation of affection statute only on the books in Mississippi and six other states.
The other states with similar statutes are Hawaii, Illinois, New Mexico, North Carolina, South Dakota and Utah.
Fitch v. Valentine, January 7, 2008
Mississippi Supreme Court opinion (January 25, 2006) online
The ABC News Report and video interview with the defendant, his wife and their attorney are available online, including some fascinating interviews with members the public about the underlying premise that a wife is the property of her husband. The Today Show also has a report and video interview online.
The Supreme Court of Wyoming, in a case of first impression, interprets its state paternity statute regarding the impact of a DNA test excluding paternity. The disputed provision reads: "If the scientific evidence resulting from the genetic tests conclusively shows that the defendant could not have been the father, the action shall be dismissed." In this case, father submitted a genetic test excluding his paternity but took no further action. Over a year later, the laboratory contacted the court to notify it that it had discovered an error in the testing -- it had switched samples. When it re-ran the test with the correct samples, defendant was established to have a 99.99% probability of paternity. The court then ordered additional genetic testing, which also pointed to defendant as father.
Father argued that the court lacked any authority to order further testing because the statute required the court to sua sponte dismiss the paternity action once the first test had been submitted excluding him as father. The court found otherwise:
The cases relied upon by RK do not, however, establish that the plain language of Wyo. Stat. Ann. § 14-2-111(f) mandates dismissal in the absence of an appropriate motion. The statute does not establish a timeframe for dismissal, nor does the statute require the district court to dismiss paternity cases on its own initiative. There was nothing to prevent RK from filing a motion to dismiss the paternity action, but RK did not file such a motion until after the court had received information undermining the reliability of the Test 1 results. Stated differently, at the time RK moved for dismissal, the genetic test had not "conclusively" established that RK was not the father. We also note that there is no requirement in the statute that dismissal be with prejudice. In the absence of a dismissal with prejudice, the State could have re-filed the action in August 1994 when the laboratory's error became known. In sum, RK asks this Court to read far more into the statute than is justified by its plain text. The court's failure to dismiss the action, sua sponte, did not violate the plain language of the statute. Accordingly, the paternity action was still pending at the time the laboratory revealed its mistake.
Father also argued that the trial court had applied the paternity statute in effect at the time of the decision rather than at the time the action was filed. The earlier statute had been more generous in the range of evidence permissible to rebut a paternity test. Thus, father argued, the trial court improperly excluded testimony of an expert witness. The Supreme Court agreed that the trial court erred in this exclusion but found it harmless error in the context of the two subsequent genetic tests establishing father's paternity.
RK v. State ex rel. Natrona County, 2008 WY 1 (January 8, 2008)
Opinion online (last visited January 9, 2008 bgf)
Case Law Development: Default Administrative Child Support Order Does not Establish Paternity Sufficient to Support Criminal Non-Support Action
The Supreme Court of Missouri has issued a number of decisions this past year relating to paternity -- requiring greater process to prove or disprove paternity. In its latest decision, the court concluded that the state's child support administrative system was not sufficient process to establish paternity when the order was by default. The court held that, the state failed in its burden to prove the duty to support one's child where there was no final judgment of paternity by a circuit court and, thus, no "legal process" that judicially determined defendant's parentage. In the absence of a circuit court judgment, defendant was not prevented from collaterally attacking the administrative order used to establish his obligation of support that, in turn, served as the basis for this criminal prosecution. Because the State failed to prove that the child had been legitimated by "legal process," the judgment was reversed, and the case was remanded.
State v. Salazar, 236 S.W.3d 644 (October 30, 2007)
Opinion online (last visited November 9, 2008 bgf)
Wednesday, January 9, 2008
The New Jersey Court of Appeals details a "classic palimony" case this week -- a thirty-year relationship between Rosemary Connell and Edward Diehl. Diehl had told Connell that they did not need to get married because they would simply tell everyone they were married, he would buy her a ring, and they would be together "always." They did so and few people knew that they were not legally married. Connell was disabled due to functional blindness, but contributed her disability checks and an inheritance to the family. Diehl made various investments in his own name, raised Connell's son (claiming him as a dependent on his taxes), and made estate plans leaving the majority of his estate to Connell. When the relationship soured, Connell was left destitute.
The court had no difficulty in finding the prerequisites for a palimony suit here. On the question of damages, the court recited the elements for determination of a lump-sum palimony award: "First, the judge was required to determine the reasonable future support Diehl promised to provide. That amount is to be calculated on a weekly or monthly basis. Second, the judge was required to determine the duration of future support. Third, the judge was required to reduce that period of annual future support to a present value lump sum."
The court of appeals reversed the trial court's determination of damages noting several errors:
First, the trial court had based the damages on Diehl's life expectancy rather than Connell's.
Second, the trial court did not explain its findings regarding the amount of Connell's support expenses and deducted from the damages, the value of Connell's food stamps. The court of appeals noted that any palimony award "should provide her with her minimal needs and prevent the necessity of her seeking public welfare."
Finally, as to the division of property, the trial court erred by concluding that no division of property could be made in a palimony suit. While equitable division is not proper, the trial court may divide property based on a theory of joint venture. Specifically, regarding the family home (which was in Diehl's name only but towards which Connell had contributed her $70,000 inheritance), the court of appeals directed the trial court to consider whether the facts supported a finding of a joint venture regarding that house. "If the judge finds that a joint venture existed, he must partition the home. If he concludes otherwise, a mere return of Connell's investment is not equitable. The judge must determine the present value of $ 70,000 as though it had been invested in some reasonable manner, such as certificates of deposit. Alternatively, he may determine its present value based on the appreciation in the value of the family home since it was remodeled. Otherwise, Diehl will have enjoyed the use of Connell's money without recompense. This rationale applies equally to division of the personal property in the family home. At the very least, Connell is entitled to the return of personal property she purchased with her inheritance."
Connell v. Diehl, (January 8, 2008)
Opinion online (last visited January 9, 2008 bgf)
Tuesday, January 8, 2008
Case Law Development: Divorce Litigant's Threats to Kill Judge and Attorneys Not Protected by Attorney-Client Privilege
This case is a window on the divorce attorney's worst nightmare - the client who threatens violence in retaliation for divorce. A divorce attorney heard her client make repeated threats to kill the judges and opposing counsel. The content of the statements is detailed in the opinion. She tape recorded one of these phone messages and called the police. This case would be provide a useful "how would you handle it?" class discussion.
In the subsequent criminal action for threatening a judge, the trial court ruled that "because Defendant did not make the threats to his attorney for the purpose of facilitating the rendition of professional legal services said statements were not covered by the attorney-client privilege." The Utah Court of Appeal's affirmed on the alternative ground of waiver, finding that because client's defense counsel stipulated to admission of the divorce attorney's testimony and the tape recorded conversation, defendant had waived the attorney-client privilege.
(The central issue in the case was whether the threats need to have been communicated to the judge in order to violate the statute. The court holds that they do not.)
Utah v. Jeffrey K. Johnson, 2008 UT App (January 4, 2008)
Opinion will be available at the Utah Court website (last visited January 8, 2008 bgf)
Case Law Development: Temporary Custody Change During Parent's Deployment Becomes Permanent Custody Change
Mother and Father had a joint custody arrangement regarding their child from ages 2 to 10, with child living primarily with Mother in New York with her husband and their child and having substantial visitation with Father in Virginia. When Mother was deployed to Iraq in 2004, Mother sought to have their nine-year-old child live with her husband and son. Father moved for a change of custody. While that action was stayed pursuant to the Service Members Civil Relief Act, the court awarded Father temporary custody. Diffin v. Towne, 787 N.Y.S.2d 677 (N.Y. Fam. Ct. 2004).
When Mother returned from Iraq, the court concluded after trial that primary physical custody should be transferred to Father. While noting that Mother's deployment was not, in itself, a change in circumstances, the fact that the child had adjusted well to living with Father, and that Mother had since divorced, were all factors that made a change in custody in the best interests of the child. Finding no abuse of discretion in this ruling, the New York Supreme Court, Appellate Division affirmed.
Matter of Diffin v. Towne, 2008 NY Slip Op 21 (January 3, 2008)
Opinion online (last visited January 8, 2008 bgf)
For more information on the Service Members Civil Relief Act, see the ABA Family Law Section guide by Mark E. Sullivan, A Judge's Guide to the Service Members Civil Relief Act
Case Law Development: What is Proper Documentation of College Enrollment for Purposes of Post-Majority Child Support
Missouri is one of the few states that requires post-majority child support for children attending college. The statutory scheme has been amended a number of times in recent years to provide more detailed requirements regarding notice of enrollment to the obligor parent, minimum credit hour enrollments, and the like.
In a case of first impression, the Missouri Court of Appeals has interpreted one of those statutory requirements: that the child provide each parent with a "transcript or similar official document." The court held that a print out of courses, credits and grades from a college's web-based system, while not an "official transcript" sufficiently met the meaning of "transcript" in the statute to require Mother to pay child support.
Waddington v. Cox, Mo. App. January 2, 2008
Opinion online (last visited January 8, 2008 bgf)
For a chart comparing state approaches to post-majority support for college students, see the National Conference of State Legislatures' 2005 Summary
A Jackson County Missouri judge has given custody of adoptive Baby Max to a man who claimed that his obesity was the reason he had been denied custody previously in the adoption case. Gary Stocklaufer and his wife, Cindy, had sought adoption of the child of Mr. Stocklaufer's cousin after bringing the baby to Missouri. However, the court had removed Baby Max from the Stocklaufers and placed him with another couple for six months, who also have been trying to adopt him.
Stocklaufer had claimed that the judge had denied his opportunity to adopt the child because he was obese, weighing 550 pounds. Mr. Stocklaufer has recently lost over 200 pounds after undergoing gastric bypass surgery. However, in ruling that custody of Baby Max be returned to Mr. and Mrs. Stocklaufer, the judge said the prior removal of the child had nothing to do with Mr. Stocklaufer's weight but was because the couple did not follow proper procedures when moving the child into Missouri from another state.
Monday, January 7, 2008
The confusion between the status of attorney for the child and guardian ad litem was the target of appeal in Marriage of Anderson, an Iowa Court of Appeals decision. In this case, Mother requested appointment of a guardian ad litem in a custody case. However, the trial court's response was to appoint an attorney under the Iowa statute allowing appointment of an attorney for the child. The court then rejected the attorney's report and request to testify, finding that the attorney had not been appointed as a guardian ad litem.
Read In Re Marriage of Anderson (Iowa Court of Appeals, Dec. 28, 2007) (Last visited January 7, 2008 bgf)
The case is a fine example of the continuing debate regarding the role of attorney representatives for children. The Standards of Practice for Lawyers Representing Children in Custody Cases require that a judge appointing a lawyer for a child specify whether the attorney is a “Child’s Attorney” or a “Best Interests Attorney.” The ABA’s Standards of Practice for Attorneys Who Represent Children in Abuse and Neglect Cases, while recognizing the hybrid attorney/guardian ad litem role for lawyers under certain circumstances, expresses a clear preference for the attorney for the child model. Based in part on these standards, the National Conference of Commissioners on Uniform State Laws is preparing a Uniform Representation of Children in Abuse and Neglect and Custody Proceedings Act. Professor Atwood's fine article exploring the policy choices in the uniform act can be accessed from her SSRN page: Atwood, Barbara Ann, "The New Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act: Bridging the Divide Between Pragmatism and Idealism" . Family Law Quarterly, 2007 Available at SSRN: http://ssrn.com/abstract=938211
For tables reflecting a 51-state analysis of the standards of representation of children in adoption and guardianship, see 41 Family Law Quarterly (Summer 2007) article "Hearing Children's Voices and Interests in Adoption and Guardianship Proceedings" of the American Bar Association Child Custody and Adoption Pro Bono Project.
- Appendix A—Appointment Provisions in Adoption Cases
- Appendix B—Appointment Provisions for Guardianship Cases
(last visited Jan 7, 2008 bgf)
According to a report from UNICEF, despite the international community's commitment to gender equality, the lives of millions of women and girls throughout the world are plagued by discrimination, disempowerment, and poverty. The report outlines the status of women in the household, employment, and politics and government. The authors argue that, when women are empowered to live full and productive lives, children prosper (referred to in the report as "The Double Dividend" of gender equality).
Read the full United Nations report (in pdf format) (last visited Jan. 7, 2008 bgf)