August 16, 2008
Political Platforms on Family Law Issues
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)
Case Law Development: K visa applicants may adjust immigration status even if they divorce
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)
August 15, 2008
Case Law Development: Paternity Acknowledgment and Child Support Order = Parent Status
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)
The Feral Child?
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!
August 10, 2008
Case Law Development: Standard for Granting Protective Order based on Threats
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)