Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Monday, April 16, 2018

Seventh Circuit Holds ERISA Does Not Preempt Slayer Statute

From JD Supra, Holland & Knight:

The Employee Retirement Income Security Act of 1974, as amended (ERISA), pre-empts most state laws. However, there are certain types of state laws that are not pre-empted. Recently, the U.S. Court of Appeals for the Seventh Circuit in Laborers' Pension Fund v. Miscevic, 880 F.3d 927 (7th Cir. 2018), held that the Illinois slayer statute is one of those state statutes that is not pre-empted by ERISA. A slayer statute is a law that prevents an heir from receiving assets or other property from a decedent if that heir is responsible for the decedent's death.

In this case, a woman killed her husband. The husband was a participant in a union pension plan that provided survivor benefits to a surviving spouse or, if there were no surviving spouse, to a minor child. There was no dispute as to the facts. In a state criminal proceeding, the woman was found to be not guilty of killing her husband by reason of insanity. Her husband's pension fund, The Laborers' Pension Fund (the Fund), brought an interpleader action to determine the proper beneficiary of the husband's pension benefits because the couple had a minor child.

Read more here.

April 16, 2018 in Attorneys, Current Affairs, Domestic Violence, Jurisdiction, Property Division | Permalink | Comments (0)

Monday, February 5, 2018

Utah Step Closer to Changing Definition of Domestic Violence

From The Salt Lake Tribune:

After another record year of domestic violence in Utah, two bills aiming to shield victims from their abusers moved a step closer to being signed into law.

Eight members of the House Law Enforcement and Criminal Justice Committee on Friday listened to — and unanimously approved — Sen. Todd Weiler, R-Woods Cross, and Rep. Angela Romero, D-Salt Lake City, as they pitched SB27 and HB165, respectively.

The bills were inspired by the death of Memorez Rackley and her six-year-old son Jase. The two were killed June 6 in Sandy when a man Rackley had dated shot them in the middle of the street. The man, Jeremy Patterson, killed himself shortly after.

Read more here.


February 5, 2018 in Child Abuse, Domestic Violence | Permalink | Comments (0)

Thursday, June 8, 2017

Language Barriers in Domestic Abuse Cases

From The New York Times:

Arlet Macareno still gets choked up when telling the story about when the police arrived at her home in Staten Island nearly five years ago, responding to a 911 call from her niece, who found her lying at the bottom of the stairs.

Ms. Macareno, in an interview and a federal lawsuit, said she tried to tell the police that her husband had pushed her down, but instead of taking him to jail, the responding officers arrested her and carried her barefoot and badly bruised to the 120th Precinct station house.

She was charged with obstruction of governmental administration, according to the legal complaint, after pleading with the officers for an interpreter. The arresting officer said she had prevented him from writing his report, her lawyer said.

With little understanding of English or her rights, and in a hurry to return to her 7-year-old son, she pleaded guilty in criminal court to a lesser charge of disorderly conduct and was released.

“I knew I needed an interpreter and had a right to an interpreter,” she said. “I was denied the right to speak. I was denied to the right to express myself. I felt destroyed,” she said in Spanish during an interview.

Read more here.

June 8, 2017 in Domestic Violence | Permalink | Comments (0)

Friday, May 5, 2017

Warnings issued as firearms permit bill signed into law

From Chicago Tribune:

A controversial new law that allows domestic violence victims to carry a gun without a permit will create greater risk for police and provide a false sense of security for victims, detractors say.

House Bill 1071 passed the Senate 38-12, after the House voted 74-26 in favor of it. Gov. Eric Holcomb signed the bill into law last week.

The bill would enable domestic violence victims to carry a handgun, if they have an active protective order against their alleged abuser, without a permit for 60 days.

Sen. Aaron Freeman, R-Indianapolis, who sponsored the bill, said this legislation will lend victims an extra measure of protection.

Read more here.

May 5, 2017 in Domestic Violence | Permalink | Comments (0)

Saturday, November 5, 2016

Opening doors for women and children when domestic violence hits home

From The Guardian:

Homeless women need somewhere to live. Landlords need someone to manage their properties. Put the two together and the result is a solution to a significant social issue.

Melbourne’s Property Initiatives Real Estate manages apartments for investors and developers, and directs all profitstowards developing long-term housing for women and children in need.

Jeanette Large is the chief executive of the agency, which operates as a fixed trust under Women’s Property Initiatives (WIP), a not-for-profit company which develops and owns the properties. Large says most of the women housed have escaped family violence.

Indeed, the Australian Institute of Health and Welfare says one-third of the 520,000 people who sought help from Australian homelessness services between 2011 and 2014 did so because of domestic violence.

Launched in April 2015, Large says the real estate agency was created to overcome the funding limitations of philanthropy. WIP has always depended on donations and government grants and needed to find a way to become more self-sustaining while continuing to grow.

Read more here.

November 5, 2016 in Divorce (grounds), Domestic Violence | Permalink | Comments (1)

Wednesday, October 26, 2016

Evansville groups giving domestic violence survivors a voice

From The Indiana Lawyer:

A shirt hanging on the wall of the Evansville YWCA reminds visitors: "Your safety, love and happiness matter." Another cautions: "Build your home with love, don't break your home with hate."

Domestic violence affects more than 10 million people a year in the U.S., but almost half of those incidents go unreported. Organizations such as the Evansville YWCA and Albion Fellows Bacon Center are hosting programs throughout October — domestic violence awareness month — to encourage reporting domestic abuse.

The clothes hanging in the YWCA lobby are part of the annual Clothesline Project, which spotlights domestic violence with a gallery of shirts designed by survivors to represent their personal experience. Many carry messages of hope for the next person who leaves an abuser.

"People just create the most beautiful piece of art to express their journey," said Erika Taylor, CEO of YWCA Evansville.

Some shirts' messages are simple, with phrases like "love should not hurt" painted inside hearts. Others carry a reminder to the person who painted them: "I have a voice, I am worthy ... I deserve love."

More than one in three women and one in four men in the U.S. say they were physically abused by an intimate partner at some point in their life, according to a national survey conducted by the Centers for Disease Control and Prevention. The survey results, published in 2010, also showed almost one in 10 women in the U.S. have been raped by an intimate partner.

While domestic violence is common, victims do not always report it. The Bureau of Justice Statistics estimates only 56.1 percent of domestic violence incidents in 2014 were reported to police. That rate improves, though not by much, when it's restricted to intimate partner violence, committed by current or ex-spouses, girlfriends or boyfriends.

Read more here.

October 26, 2016 in Domestic Violence | Permalink | Comments (2)

Sunday, September 11, 2016

Women’s Shelter Family Rescue Sees Miracles Daily

From The Huffington Post:

It came down to a matter of matching blinds.

Women, removed from shelters, lived in their cars, awaiting the opening of Family Rescue‘s Ridgeland Transitional Housing because the state objected to the fact that some window blinds did not match. After six long years of jumping through the state’s hoops and convincing private investors that Ridgeland and domestic violence was worth their money, Family Rescue found the only thing standing between 22 families in need of a home and the December elements was matching window blinds. So, housing center officials opened anyway, ready to face whatever fines the state would throw at them.

Read more here.

September 11, 2016 in Domestic Violence | Permalink | Comments (0)

Women’s Shelter Family Rescue Sees Miracles Daily

From The Huffington Post:

It came down to a matter of matching blinds.

Women, removed from shelters, lived in their cars, awaiting the opening of Family Rescue‘s Ridgeland Transitional Housing because the state objected to the fact that some window blinds did not match. After six long years of jumping through the state’s hoops and convincing private investors that Ridgeland and domestic violence was worth their money, Family Rescue found the only thing standing between 22 families in need of a home and the December elements was matching window blinds. So, housing center officials opened anyway, ready to face whatever fines the state would throw at them.

Read more here.

September 11, 2016 in Domestic Violence | Permalink | Comments (0)

Friday, September 2, 2016

China wants to stop domestic violence. But the legal system treats it as a lesser crime.

From The Washington Post:

In a courtroom in the Chinese heartland, a defense attorney made his final pitch.

That his client, Zhang Yazhou, killed his wife was not in question. At 5:25 in the evening on Feb. 21,  Zhang walked into his wife’s hospital room. They argued. He strangled her, digging his fingers deep into the flesh of her neck.

By the time nurses entered the room, Zhang was gone and Li Hongxia, just 24, was dead.

Since Zhang confessed on television and in court, the issue at hand was the sentence. Li’s family and their lawyer asked for the death penalty, which is common in China, describing a year of escalating abuse that culminated in a brutal murder.

Read more here.

September 2, 2016 in Domestic Violence, International, Resources - Domestic Violence | Permalink | Comments (0)

Friday, August 5, 2016

Child Maltreatment History Should Be a Bar to Being a Foster Parent

 From Youth Today:

It’s just common sense: An adult's past criminal history or history of child maltreatment is not to be balanced against the safety of a child. This is not to say a person with any criminal record should be barred as a foster parent, but certainly an applicant with a substantiated history of child maltreatment, no matter how far in the distant past, should be permanently barred.

Foster care agencies have a legitimate reason to inquire about a prospective foster parent’s criminal and child maltreatment history, be it an inquiry, arrest, charge or conviction. Why? Quite simply, the agency seeks to maximize child safety.

In addition, a good background check helps identify a superior applicant while simultaneously reducing the agency’s potential liability. In many states, the agency responsible for approving foster parent licenses is permitted to waive or not even take into account an applicant's child maltreatment or criminal history if the offense happened many years ago or if the agency's internal risk analysis indicates no cause for concern.

Read more here.

August 5, 2016 in Adoption, Child Abuse, Domestic Violence, Termination of Parental Rights | Permalink | Comments (0)

Saturday, June 11, 2016

Domestic abuse: Violence amid a life of luxury

Dodging Domestic Abuse in the Suburbs:

From BBC News:

When Lisa McAdams began her decade-long relationship with the man who abused her, she had a successful career and enough savings for a home deposit. She walked away a single parent, carrying debts that took a decade to reconcile.

"I was lucky he hit me", Ms McAdams confesses bluntly.

There's a bitter irony behind this statement. The physical assaults provided clear evidence of the abuse she was suffering. The mental and economic attacks were savage, but covert and subtle.

"The poverty pushes you into leaving, and then it is singularly the hardest bit to climb out of," she says.

Surviving on welfare was a far cry from the seemingly charmed life she had led, waving to celebrity neighbours as she spun the wheel of a luxury car through the gates of a lavish compound.

But amid the trappings of security, she was anything but safe.

Read more here.

June 11, 2016 in Domestic Violence | Permalink | Comments (0)

Wednesday, June 1, 2016

Colorado Domestic Violence Survivors and Teen Parents Have Less Hurdles for Childcare Assistance

From the Denver Post:

Under Colorado House Bill 1227, teenagers and victims of domestic violence will have one less barrier to applying for assistance for day care. The current law requires anyone requesting for assistance to pay for childcare to apply for child support within 30 days of the application. The new law exempts teenagers and victims of domestic violence from child support enforcement requirements.

Read more here.

June 1, 2016 in Child Support (establishing), Domestic Violence | Permalink | Comments (0)

Monday, April 11, 2016

Experts Say Domestic Violence More Complex Than People Think

From Ventura County Star:

Domestic violence was thrust into the forefront of the Jane Laut trial, which concluded last week when jurors found the Oxnard woman guilty of first-degree murder for killing her husband, Dave, at their Oxnard home in 2009.

During the trial, the 58-year old woman claimed she was raped, beaten and emotionally abused by her husband during their 29-year marriage. She said she acted in self-defense and shot him after he threatened her, their dogs and son, Michael.

Dave Laut's family said her claims of abuse were complete lies and an excuse for murder.

Jurors who talked to The Star said even if she was battered by her husband, the abuse did not justify her killing him.

One juror said Jane Laut's family "would have supported her" and "murder wasn't the way out."


Experts in domestic abuse and battered woman syndrome, however, said the psychological distress victims undergo is complicated by various factors that keep a woman from leaving an abusive partner.

"You have to understand that there is an addictive quality to these relationships," said Mindy Puopolo, associate professor of psychology at California Lutheran University. "These relationships provide an emotional equilibrium where the violence becomes the norm."

Puopolo, who runs Cal Lutheran's Intimate Partner Violence Program, said victims were often raised in abusive environments and "can't tolerate a loving relationship without violence."


Read more here.

April 11, 2016 in Domestic Violence | Permalink | Comments (0)

Sunday, April 3, 2016

South Carolina State Court: Domestic Violence Law Unfair to Gay Couples

From ABC News:

A law that perhaps unintentionally failed to protect domestic violence victims in same-sex relationships appears to be unconstitutional, and now South Carolina's high court is trying to decide what to do.

The court was asked on Wednesday to weigh in after a woman tried to get a protective order against her former fiancée, also a woman, and was denied. The state's domestic violence law defines "household members" as a spouse, former spouse, people with a child in common, or specifically men and women who are or have lived together — but not unmarried same-sex couples.

The issue has come up in at least one other state since the U.S. Supreme Court's decision last summer legalizing gay marriage nationwide. Earlier this month, the Ohio Supreme Court adopted the use of gender-neutral references in family court cases, a ruling that covers divorce, child support and domestic violence. Other states, such as California and Massachusetts, proactively changed the language in their laws, according to Beth Littrell, a senior attorney with Lambda Legal.

South Carolina Chief Justice Costa Pleicones said the handling of domestic violence situations isn't as clear as the gay marriage ruling from the higher court case.

"The only people who are not protected under this statute right now are same-sex cohabiters or former cohabiters, is that it?" Pleicones said in court Wednesday, according to a video of arguments archived on the court's website. "This statute is pretty clearly unconstitutional in its discriminatory impact upon same-sex couples. So tell me, what's the remedy?"

Bakari Sellers, an attorney for the woman who brought the case, argued the domestic violence provision can be changed to include all couples.

"The state has a legal interest in protection of all its citizens from domestic abuse," he said.

More than two decades ago, Sellers noted, state lawmakers intentionally made the law restrictive to male-female couples. This change, Associate Justice Don Beatty said, makes clear that lawmakers were specifically keeping same-sex, unmarried couples from being included under South Carolina's criminal domestic statute.

Read more here.

April 3, 2016 in Domestic Violence | Permalink | Comments (0)

Sunday, March 6, 2016

Louisiana Still Lacks Laws to Protect Domestic Violence Victims

From The News Star:

The Violence Policy Center ranks Louisiana fourth in the nation for the number of domestic abuse homicides.

Beth Meeks, Louisiana Coalition Against Domestic Violence executive director, said these new laws have potential to protect victims of domestic violence, but failure to implement policies set in decades-old federal acts have left them ineffective.

The Violence Against Women Act of 1994 was the first federal legislation designed specifically for the protection of women in abusive homes. Using years of research, the act proposed some best-practice policies for law enforcement and judges to follow in dealing with batterers.

“Those best practices were never fully implemented in the state of Louisiana,” Meeks said.

Pro-prosecution policies, conducting evidence-based trials rather than trials based on victim testimony and the immediate arrest of abusers were among those strategies. Meeks said these policies were designed to keep abusers and victims separate, as well as give law enforcement and courts more authority in the detainment and prosecution of offenders.

“While domestic violence is still a problem across the nation, those states that have implemented these practices, in the last 20 years, have seen a drastic reduction in domestic homicides, and Louisiana never saw that reduction,” Meeks said.

Read more here.

March 6, 2016 in Domestic Violence | Permalink | Comments (0)

Sunday, February 21, 2016

Domestic Violence Could Become Grounds for Divorce in Mississippi

From The Clarion-Ledger:

Domestic violence would become grounds for divorce under a bill passed out of the Senate Judiciary A Committee on Tuesday.

"One incident of domestic violence is enough," said state Sen. Sally Doty, R-Brookhaven, author of Senate Bill 2418.

Doty said she had conversations with the Mississippi Coalition Against Domestic Violence and others about the bill.

Mississippi has 12 grounds for granting a divorce. Under Senate Bill 2418, one or more instances of domestic violence would be the 13th, if established by clear and convincing evidence.

Freshman Sen. Chad McMahan. R-Tupelo, argued for adding documented domestic violence to the language in the bill.

"Are you saying it should be some documented report of domestic violence?" Senate Judiciary A Chairman Sean Tindell, R-Gulfport, asked McMahan.

McMahan said he believes domestic violence should be proven and not based solely on a person claiming it without proof.

Doty said the bill states domestic violence has to be established by clear and convincing evidence, which sets a higher standard than a person merely claiming it.

Read more here.

February 21, 2016 in Divorce (grounds), Domestic Violence | Permalink | Comments (1)

Sunday, February 7, 2016

Domestic Violence Leads in Arrests in Kauai


Domestic violence is rampant across Kauai, according to figures from the county prosecutor’s office and Kauai Police Department.

“We have a history of domestic violence and murders on the island,” said Renae Hamilton, executive director at the YWCA of Kauai. “It strikes everyone in the community.”

Domestic abuse is the second most prevalent crime on the Garden Isle at 282 arrests out of 3,888, according to KPD’s recently released report for all adult arrests and juvenile detainments for 2015. Criminal contempt of court was number one, with 483 arrests.

Hamilton said the domestic violence numbers are not surprising, and don’t even tell the whole story.

“As we know, all cases of domestic violence don’t get reported,” Hamilton said. “I’m sure there are cases where they don’t call the police at all.”

Prosecuting Attorney Justin Kollar said his office receives more than 500 domestic violence cases a year, including misdemeanors and felonies.

“Our most recent murder and attempted murder cases both involved aspects of domestic violence,” Kollar said, referring to two pregnant women, Victoria Kanahele and Jasmine Duque, who were stabbed in the past six months. “Most of our domestic violence crimes involve alcohol or drug use in some way. Services are provided by our attorney staff, our victim and witness staff, and our partner service providers in the community.”

Read more here.

February 7, 2016 in Domestic Violence | Permalink | Comments (0)

Tuesday, January 12, 2016

How Obama's Gun Control Push Helps Domestic Violence Survivors

From Huffington Post:

Clai Lasher-Sommers was 13 when her abusive stepfather shot her in the back. It took her six months to walk again. On Tuesday, the 58-year-old sat steps from President Barack Obama as he announced his plan to curb gun violence through executive action. A few minutes into his emotional speech, Obama acknowledged Lasher-Sommers' pain -- and the pain of countless other women across the nation -- when he explicitly named domestic abuse as a source of deadly gun violence in the U.S.

Lasher-Sommers was relieved.

"As women who end up living in domestic violence situations, one of the things that happens is that you lose all power," she said. "When you don’t hear your government officials talking about it, you are just silenced one more time."

Obama’s executive action on guns, while modest, includes a number of proposals that advocates and gun violence prevention experts say could help protect domestic violence survivors from armed abusers. That’s important, as research has found that the presence of a gun makes it five times more likely that a woman will be murdered by her abuser.

A proposal to expand the definition of who is engaged in the business of selling guns -- and therefore must be licensed and conduct background checks -- could reduce domestic-related gun violence, said Allison Anderman, staff attorney at the Law Center to Prevent Gun Violence.

"It means that more people will have to get a dealer license," she said. "Those people are more likely now to catch domestic abusers who try to buy guns, and it will limit the number of domestic abusers who will be able to buy guns without a background check."

Under Obama’s plan, Anderman added, local authorities will be notified when prohibited individuals try to buy a gun.

Read more here.

January 12, 2016 in Domestic Violence | Permalink | Comments (0)

Thursday, January 7, 2016

China Finally Has A Law Prohibiting Domestic Violence

From CNN:

After a decades-long push, China has finally enacted its first nationwide law prohibiting domestic violence.

The ground-breaking legislation covers both married and co-habiting couples and those living in foster families. It comes into force March 1, state news agency Xinhua reported.

It also defines domestic violence for the first time, and includes pyschological abuse as well as physical violence.

However, critics say there are still gaps -- it excludes same-sex couples and makes no mention of sexual violence.

Until 2001, when China amended its marriage law, abuse wasn't considered grounds for divorce and violence in the home has traditionally been regarded as a private matter to be dealt with by family members.

The high-profile divorce in 2013 of Li Yang, the founder of the "Crazy English" teaching method and his American wife Kim Lee, forced the issue out of the shadows, Xinhua says.

In 2011, Lee posted pictures of her bruised face on Chinese social media and accused her husband of domestic violence. She later said in an essay in the New York Times that police had told her no crime had occurred.

Li admitted beating his wife but attacked her for breaking with Chinese tradition and discussing private matters in public. The episode triggered a massive public debate on domestic violence.

Read more here.



January 7, 2016 in Domestic Violence | Permalink | Comments (0)

Monday, December 28, 2015

China's First Domestic Violence Law May Include Psychological Harm, Cover Cohabitation

From Shanghai Daily:

CHINA'S first domestic violence law may include emotional or psychological abuse and cover cohabitation in order to bring more traditionally silent abuse victims under protection, a new draft read.

According to the draft, which is up for a second reading at the National People's Congress (NPC) Standing Committee's bimonthly session, "the country prohibits any form of domestic violence."

It defined domestic violence as both physical and psychological harm inflicted between family members, including beatings, injuries, restraint or forcible limits on physical liberty as well as recurring verbal threats and abuse as examples.

An earlier draft, submitted in August this year, included only physical abuse, but many lawmakers have since argued that the definition was far too narrow, said Su Zelin, deputy director with the Commission for Legislative Affairs of the NPC Standing Committee.

They also argued that the anti-domestic violence law should also cover cohabitation, Su said, hence the second draft of the law stipulated in a supplementary article that those who are not related but live together are also subject to the new law.

Family violence has remained in the shadows for a long time in China, where the culture holds that family conflicts are embarrassing private matters. As a result, domestic violence victims are often too embarrassed to speak out, and in many cases, police have turned away victims who came for help.

Only in recent years have people examined the issue in the wake of increasing public awareness and media reports on high-profile abuse scandals.


Read more here.

December 28, 2015 in Cohabitation (live-ins), Domestic Violence | Permalink | Comments (0)