Family Law Prof Blog

Custody of American Indian Child

This recent custody case involving an American Indian child is interesting because it highlights the high legal standard—beyond-a-reasonable-doubt—to terminate parental rights to an American Indian child.  The Nebraska court found that a drug addiction meets the standard, but the girl's mother was also non-American Indian….. 

From the Associated Press:

CARSON CITY, Nev.—The Nevada Supreme Court has upheld the termination of a mother's parental rights to a 4-year-old daughter who is part American Indian.

Justices ruled Thursday that terminating the rights of the girl's non-Indian mother, Dawn McKay, did not violate the federal Indian Child Welfare Act and Existing Indian Family Doctrine.

The law and doctrine require courts to use a beyond-a-reasonable-doubt standard before removing an Indian child from parents.

The court said the mother was found to be a chronic marijuana and methamphetamine user and the Nevada Division of Child and Family Service couldn't find the American Indian father.

Justices said the child had bonded with foster parents, who plan to adopt her and teach her Indian heritage.

MR

                                    

MR

Judge Delays Contoversial Abortion Survey

An Oklahoma judge has delayed a decision on the constitutionality of an Oklahoma law which would survey doctors performing abortions and then post facts relating to those abortions on a public website.

An Oklahoma judge Friday put off until Feb. 19 any decision about an anti-abortion law that critics have said is "like undressing a woman in public."

The law, which was to have gone into effect on Nov. 1, requires doctors performing abortions to ask the patient 37 questions -- from her age to her marital status and financial condition -- which would then be posted on a public website.

Supporters of the bill say the information is crucial to understanding why women have abortions. Opponents say the questions are invasive and the public posting of the answers could easily lead to women being identified in rural parts of the state, even though their names are not used.

Read the full story from ABC News here.

AC

Gift Giving Not Over Yet?

Now might be the best time for grandparents to give away parts of their estates, with the 45% estate tax lapsing soon and Congress’s lack of action.  However, Congress may impose a new estate tax that would apply retroactively to cover the gap period.  Nonetheless, some may choose to gamble and gift—speculating that no such retroactive tax will occur.  But, really, will Congress resist the temptation of an easy tax?

For further speculation, see here and here.

MR

 

Custody Battle Involving Quadriplegic Mother

A quadriplegic mother is fighting her ex-boyfriend in court to retain custody of their son. The ex-boyfriend claims she cannot be a competent mother because of her disability. It is a case that touches on important questions about the rights of the disabled.

Kaney O'Neill, 31, lost the use of her legs and much of the use of her arms 10 years ago when she fell from a balcony in Newport News, Va. Now, as she tries to raise her 5-month-old son, Aidan, she is locked in a court battle with her ex-boyfriend, David Trais, over custody rights.

That disability says little about ability to parent, said Tuleja, the disability advocate.

"Even if someone is helping a parent who has a disability, the parent can orchestrate so they remain central," she said, explaining that the child understands that the disabled parent is directing their upbringing. "It's the richest part of parenting…that psychological and emotional connection to the child."

While disability itself does not have much, if any, bearing on a parent's fitness, in O'Neill's case, other factors may be at work. O'Neill sustained her injuries when she was knocked off a balcony during Hurricane Floyd. The balcony was lower than regulations dictated, but she was found to be partially negligent, possibly owing to alcohol, according to the Virginia court ruling on her lawsuit against the housing company, meaning she could not collect damages from the housing company under Virginia law.

Experts say the incident itself does not bear on her ability to raise a child, or how a court will judge her.

"The fact that she was injured, perhaps doing something irresponsible, will weigh, but not greatly," said Caplan. "Courts can be relatively forgiving…if it's a single incident."

"She may have been in the past irresponsible in some way," said Allen. "Those kinds of things are way less extreme than things which parents are accused of every day which never lead to the loss of a child."

Read the full ABC News story here.

AC

Science Comes in Aid of Dating in Time For New Year's Eve

Before families are formed, there must be dating (sometimes unfortunately so).  Luckily, science can help us there too:

Striking the right balance between revealing too much and being too conservative in how much skin is on show has long been a dilemma for women when choosing the right outfit for a night out.

However, a study by experts at the University of Leeds has come to the rescue by calculating the exact proportion of the body that should be exposed for optimum allure.

Read about the optimal proportions here before going out this New Year's Eve. 

MR

Madoff Losses Not "Mutual Mistake" in Divorce Settlement

Business Week reports on an unsuccessful argument that a divorce settlement might be rescinded for mutual mistake relating to the Madoff scam.

A judge says a prominent New York City lawyer can't recover money he paid in a divorce agreement when he believed he and his ex-wife had millions of dollars invested with Bernard Madoff.

Steven Simkin says he gave Laura Blank $6.6 million as her share of marital assets in July 2006 after more than 30 years of marriage. The figure included $2.7 million that was half the value of Simkin's Madoff account.

But the account with Bernard L. Madoff Investment Securities was empty. Madoff later admitted cheating thousands of investors and was imprisoned.

A Manhattan Supreme Court justice ruled Blank didn't have to "shoulder her share" of the Madoff losses and threw out the case.

Read the story here.

AC

Hanna: "Rethinking Consent in a 'Big Love' Way"

Cheryl Hanna (Vermont Law School) has posted Rethinking Consent in a 'Big Love' Way, Michigan Journal of Gender & Law (forthcoming), on SSRN.  Here is the abstract:

This paper is a working draft of an article that will be published in the MIchigan Jornal of Gender and Law as part of their symposium Rhetoric & Relevance: An Investigation into the Present & Future of Feminist Legal Theory. In it, I explore the problem of categorical exclusions to the consent doctrine in private intimate relationships through the lens of the HBO series Big Love, which is about modern polygamy. There remains the normative question both after Lawrence v. Texas and in feminist legal theory of under what circumstances individuals should be able to consent to activity that takes place within the context of a private, intimate relationship. These tensions between individual autonomy and state interests are beautifully explored in Big Love. Drawing on themes presented in the series, this paper asks if there is any principled way to make the distinction among those relationships in which there is some physical or psychological harm inflicted and those in which the state has proscribed a relationship because of some moral or social harm it allegedly causes. There are four case studies presented to prompt readers to try to answer the question of when consent should be a defense to otherwise proscribed activity. I conclude that the future of feminist legal theory depends on its ability to remain ambivalent about the tensions presented in the consent doctrine as applied to contexts such as polygamy, prostitution, sadomasochistic sex, obscenity, and domestic violence. Big Love seeks to persuade us to accept ambivalence and to be open to changing our minds because of the complicated nature of women’s (and men’s) lives; feminist legal theory ought to persuade us to do the same.

MR

Guggenheim: "Texas Polygamy and Child Welfare"

Martin Guggenheim (NYU School of Law) has published "Texas Polygamy and Child Welfare," 46 Hous. L. Rev. 759-816 (2009).  The abstract from SSRN:

This article explains why the child welfare process was used in the 2008 San Angelo, Texas raid on the FLDS community which resulted in the removal of more than 400 children from their families. It argues that the criminal justice system, not the child welfare system, should be the preferred means by which state officials attempt to prevent the practice of polygamy. The criminal justice system contains many more time honored protections of civil liberties than the child welfare system. In addition, using the child welfare system contains one additional danger: the contamination and expansion of child welfare law to permit coercive intervention, authorizing state officials to remove children from families based on notions of morality. The article suggests that the ultimate danger of the San Angelo raid is that child welfare interventions will become too much about the (mis)behavior of parents, with a particular emphasis on conduct that is criminal or "immoral," and too little about what should always remain the central inquiry: whether children are in danger.

AC

Husband Intentionally Infects Wife with HIV

From Sky News:

An HIV-positive man has confessed to injecting his blood into his sleeping wife and infecting her with the virus that can cause Aids, reports have said.

It is believed the man wanted to give her the disease so she would start having sex with him again, New Zealand's Sunday Star-Times said.

Court documents detailed how the man, 35, twice pricked his 33-year-old wife with a sewing needle laced with his infected blood.

The husband is now facing jail time, probably without conjugal visits.  To read more, see here.

MR

 

Domestic Violence Peaks During Holidays

Unfortunately, the holiday season is not all cheer:

A recent study by researchers at the University of California at Berkeley and UC San Diego documented police calls about partner violence, taking note of particular holidays. They found a 22-percent increase on Thanksgiving; a 17-percent increase on Christmas; a 32-percent spike on New Year's Eve; and a 28-percent hike on the Fourth of July, among other holidays.

Read the full article here, and blog commentary here.

MR