Family Law Prof Blog

Case Law Development: Change in Custody Based on Custodial Parent's Disrespect for Law

The Arkansas Court of Appeals reversed a trial court’s denial of a change of custody and order of an increase in child support.  After their divorce, Father had primary custody of their child and Mother had been ordered to pay $25 a week in child support (on earnings of $272).  Mother alleged that Father had been physically and emotionally abusing the child and sought a change of custody.  Father counterclaimed for a visitation schedule.  The trial court found Mother’s claims were not supported and did not amount to a change in circumstances and sua sponte increased her child support to $63 a week.

The court of appeals did not question the trial court’s findings regarding Mother’s allegations of abuse but nonetheless found error in the trial court’s refusal to change custody based on Father’s relationship with legal authority.  Father had a series of criminal convictions for passing bad checks, driving on a suspended license, failing to pay fines in those cases as well as a contempt citation for failing to pay attorney’s fees ordered by the divorce decree.  “This evidence of repeated lawbreaking, together with the confrontational and disrespectful character of several remarks made by appellee as he testified at trial, leads us reluctantly to the conclusion that appellee has lost the willingness and ability to act as a proper role model for his seven-year-old son, and to teach him the need to afford due respect to the law and to others.”  Mother, on the other hand, had been paying twice the amount of child support ordered so that her child would have what he needed and had remarried and her husband was supportive of her request for custody.  Thus, the court of appeals held that mother should be granted custody.

Inmon v. Heinley, 2006 Ark. App. LEXIS 71 (January 25, 2006)
Opinion available on the web (last visited January 30, 2006 bgf)

Case Law Development: Unmarried Cohabitants Do Not Qualify as "Spouses" under Insurance Contract

The Alaska Supreme Court holds that an insurance company need not extend benefits to an unmarried cohabitant of an insured under a benefits provision for "spouses" and that this policy does not violate the Alaska Human Rights Act's prohibition of marital status discrimination.  The couple in this case had been married for 13 years, had divorced, Husband had remarried and divorced and then the couple had reunited but had not remarried.  They had been living together for several years when Husband was hit by a car.  He and Wife sought to collect under the insurance policy. The court found that the language of the policy, extending benefits only to "spouses" was unambiguous and, even under a "reasonable expectations" interpretation could not extended to unmarried cohabitants. 

Husband also relied on the court's decision University of Alaska v. Tumeo, 933 P.2d 1147 (Alaska 1997), in which the court held that the University of Alaska violated the Human Righst Act by denying benefits to domestic partners while granting those benefits to married individuals. However, the court noted that the Alaska legislature had amended the Human Rights Act to allow differential benefits for married and unmarried individuals after that decision, so there was no discrimination by the insurance company here.

Cole v. State Farm Ins. Co., 2006 Alas. LEXIS 10 (January 27, 2006)
Opinion available on the web (last visited January 30, 2006 bgf)

Case Law Development: Mere Offers of Financial Support Insufficient to Entitle Putative Fathers to Notice of Adoption

The Supreme court of North Carolina holds that a putative father need not consent to the adoption of his biological child if he has not provided actual financial support for the child, notwithstanding that he has made offers of support to the mother who has declined the support. 
The court reasoned that the bright line rule was consistent with legislative intent and the public policy to ensure prompt placement of children in permanent homes.  The court suggested that the rule does not give mothers the power to thwart the rights of putative fathers, as the father
need only provide support for the child (by, for example, opening a trust fund for the child's benefit) not to the child's mother.

In re Anderson, 2006 N.C. LEXIS 5 (January 27, 2006)
Opinion available on the web (last visited January 30, 2006)

Case Law Development: Accrual of Alienation of Affection Claims

The Supreme Court of North Carolina holds that an alienation of affection claim does not accrue until the alienation is complete.  The trial court had granted summary judgment to the defendant on the basis that, as a matter of law, the cause of action must accrue no later than the date of separation. However, the supreme court found such a rule inconsistent with the underlying theory of the cause of action and with public policy of encouraging reconciliation. In this case the couple were married in 1968 and had three children together. Husband began an affair and the couple separated in 1998 however, they continued in marriage counseling and to maintain joint purchases and finances until February 2001. Thus, the court held there was a factual question regarding the date of alienation, reversing the trial court's grant of summary judgment.

McCutchen v. McCutchen, 2006 N.C. LEXIS 2  (January 27, 2006)
Opinion available on the web (last visited January 30, 2006 bgf)

Hofstra Law School Establishes LL.M Program in Family Law

"Hofstra Law School established the LL.M. Program in Family Law in response to contemporary family law practice's increased demand for specialization and need for an interdisciplinary focus for resolving family issues.  The only program of its kind in the eastern United States, and one of only three programs in the country, Hofstra's LL.M. Program in Family Law furthers the Law School's commitment to developing skilled and compassionate family lawyers who have a thorough grounding in the issues central to the field - divorce, family violence, child custody, abuse, neglect and support - as well as knowledge in related areas such as tax, contracts, real estate, and partnership law, child psychology and treatment options.

Hofstra's LL.M. program meets the needs of all students, whether they seek to concentrate on matrimonial issues - marital dissolution, child custody, and property distribution; child protection issues - child abuse and neglect and the child welfare system; or one of the growing areas of subspecialty - international family law, legislative reform, or representing gay and lesbian families."By Hofstra Law School Link to Website and Application (last visted 1-29-06 NVS)

Real Life Like an Exam Question?

"He is 86 and she is 85. Married in 1940, they have not lived together since he moved out of the marital residence more than 33 years ago and had a child with his secretary. He insists the couple were divorced in 1984, but she claims that until six months ago he had tricked her into believing that they were still married. Now she is asking a Nassau County Supreme Court to vacate the earlier judgment and grant her a divorce on grounds of abandonment.

Confronted with a set of facts that one family law expert compared to an exam question conjured by "a really maniacal law professor," Justice Anthony J. Falanga, in A.S. v. A.S., 201697/05, refused to dismiss the wife's action and ordered the parties to submit additional evidence. Moreover, he said he would schedule a hearing to determine if the wife was served with the 1984 divorce action." By Andrew Harris, New York Law Journal, Law.com Link to Article (last visited 1-29-06 NVS)

Family Letters Cover 200 Years

"Beginning more than 200 years ago, Mr. Cowan's family has kept the messages — people called them letters in those days — written to one another, as well as correspondence with eminent outsiders like Ralph Waldo Emerson, sermons given by preachers in the family and multipart essays sent home while traveling.

The collection, at least 75,000 documents totaling hundreds of thousands of pages filling 200 boxes, is one of the largest private family troves that has turned up in recent years, genealogy experts say. It has been stored in attics, sheds and storage lockers over the years, and most recently in the Cowans' home here in Boulder, where they were interviewed on a recent morning. Its contents cover the scandalous (a relative jailed for embezzlement), the intriguing (a runaway slave seeking refuge in the North) and the historic (the settling of Chicago)." By Kirk Johnson, New York Times Link to Article (last visited 1-29-06 NVS)

South Dakota Legislators Debate Insurance Coverage of Contraceptives

South Dakota legislators began a debate on Thursday over whether insurance companies in that state should be compelled to pay for contraceptives if those firms cover other prescription drugs. Those supporting the measure, argue that it is discriminatory for firms who provide drugs for male impotence to not provide coverage for contraceptives that women use. It was also argued that preventing pregnancies would cost insurance companies far less than paying for births.  Source:  Joe Kafka, AP, Rapid City Journal, rapidcityjournal.com. For the complete story, please click here (last visited January 29, 2006,

Germany Concerned over Birth Rate – One of Europe’s Lowest

German politicians are debating what to do to encourage reluctant couples to breed after newly released figures showed Germany with the world's highest proportion of childless women. According to European Union statistics from 2005, thirty per cent of German women have not had children. Forty percent of female graduates not have children. Germany’s family minister, Ursula von der Leyen, said that unless the birth rate picked up the country would have to “turn the light out”. Germany's birth rate is one of the lowest in Europe with an average of 1.37 children per woman, compared with 1.75 in Sweden and 1.74 in the UK. German mothers are also the oldest - with an average age of 30 for a first child - and most parents opt for only one or two children. Source:  Luke Harding, Guardian Unlimited, guardian.co.uk. For the complete story, please click here (last visited January 29, 2006, reo).

Case Law Development: Ninth Circuit Rules 2-1 that Americans Who Pay for Sex with Children in Foreign Countries may be Prosecuted in U.S.

Americans caught paying children for sex in foreign countries can be prosecuted in the United States, a panel of the Ninth Circuit Court of Appeals Ruled Wednesday.  In its 2-1 ruling, the panel upheld a two-year-old law criminalizing such behavior.

The court was confronted with a question of first impression regarding the scope of Congress’s power under the Foreign Commerce Clause. At issue was whether Congress exceeded its authority “to regulate Commerce with foreign Nations,” U.S. Const. art. I, § 8, cl. 3, in enacting a statute that makes it a felony for any U.S.citizen who travels in “foreign commerce,” i.e. to a foreign country, to then engage in an illegal commercial sex act with a minor. 18 U.S.C. § 2423(c). 

The defendant, age 71, did not dispute that he traveled in “foreign commerce,” nor did he dispute that he engaged in illicit commercial sexual conduct. He lived from 1998 to 2003 mostly in the Southeast Asian nation of Cambodia and had sex with between 40-50 boys there, by his own admission. Victims told authorities they had earned between two and five dollars for the sex acts.

He was extradited to the United States and was the first person charged under a 2003 law that made it easier to prosecute cases of commercial sex with children abroad. The defendant admitted his activities in a 2004 plea agreement that sent him to prison for 97 months, while leaving open the possibility to appeal the law on constitutional grounds.

The court held that the defendant failed to demonstrate “a plain showing that Congress . . . exceeded its constitutional bounds,” in enacting §§ 2423(c) and (f)(2). "Traveling to a foreign country and paying a child to engage in sex acts are indispensable ingredients of the crime to which the defendant pled guilty," said the court. "The fact that §§ 2423(c) and (f)(2) meld these economic and criminal components into a single statute does not put the conduct beyond Congress’s reach under the Foreign Commerce Clause. The rational nexus requirement is met to a constitutionally sufficient degree. Congress did not exceed its power `to regulate Commerce with foreign Nations in criminalizing commercial sex acts with minors committed by U.S. citizens abroad.” Source:  Adam Tanner, Reuters, today.reuters.com.  For the complete story, please click here (last visited January 29, 2006, reo). The opinion, U.S. v. Clark, filed January 25, 2006, may be found here (last visited January 29, 2006, reo).

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Legislative Development: State of Washington Extends Civil Rights Protection to Gays and Lesbians

The state of Washington passed a civil rights bill on Friday that extends protection to Gays and Lesbians.  The measure, which was first introduced in 1977, adds “sexual orientation” to a state law that bans discrimination in housing, employment and insurance, making Washington the 17th state passing a law covering gays and lesbians. It is the seventh to protect transgender people.  Source:  Rachel La Corte APress Writer, abcnews.go.com. For the complete story, please click here (last visited January 28, 2006, reo).

Will State of Washington Now Approve Gay Marriage?

With the passage of a civil rights bill on Friday that extends protection to gays and lesbians, attention in the state of Washington is now on its Supreme Court where 19 same-sex couples are challenging a state law that bars them from marriage. They are contending that the state's Defense of Marriage Act (DOMA) violates the privileges and immunities clause of the state constitution, which they claim prohibits any law that grants benefits to one group that are not afforded to all. A decision in the case is expected at any time.  Source:  Lornet Turnbull, Seattle Times, SeattleTimes.nwsouce.com. For the complete story, please click here (last visited January 28, 2006, reo).

Egyptian Court Rules a Positive DNA Test Not Sufficient to Prove Popular Actor is Father of Child

An Egyptian family court judge ruled on Thursday that a positive DNA test was not enough to prove that a popular actor was the father of her baby girl. The court refused the mother’s request that the actor be recognized as the girl’s father, saying that while the test showed he was, the mother could not produce proof that they had had a secret, informal marriage. The paternity suit against the young TV star raised a scandal in Egypt, when the mother went public last year with her intention to bear a child as a single mother and would try to prove that the actor, who has also hosted religious programs directed to youth, was the father of a child now 15 months old. Source:  AP, Khaleej Times Online, khaleejtimes.com. For the complete story, please click here (last visited January 28, 2006, reo).

Case Law Development: North Carolina Supreme Court Upholds Alienation of Affection’s Claim – Separation Does Not Trigger Running of Statute of Limitations

The issue in Mccutchen v.  Mccutchen  was whether the accrual of a cause of action for alienation of affections occurs as a matter of law on or before the date a married couple separates. The North Carolina Supreme Court held that the claim accrues whenever alienation is complete, regardless of the date of separation, and that the determination of when alienation occurs is generally a question of fact for the jury. The lower courts had held that the plaintiff's cause of action for alienation accrued by the date of their separation and was thus barred by the state statute of limitations.  The court stated that North Carolina’s public policy, which within reason favors maintenance of the marriage, militates against the application of any procedural rule that forces a spouse to file any action which tends to sever the marital relation before that spouse is really desirous of pursuing such a course.

The record indicated that although the couple separated on 9 September 1998, the husband expressed his desire to return to the marriage multiple times between October 1999 and September 2000 and asked plaintiff not to take legal action during that time. The couple purchased a car together in May 1999, following the husband’s indication that he had broken off his relationship with defendant. Plaintiff and husband also maintained joint finances after their separation. Additionally, they participated in marriage counseling from July 1998 to February 2001. During their last counseling session, husband told plaintiff “he was not heading toward divorce.” In fact, husband did not file for divorce until more than a year after the date he was legally permitted to do so under state law.  The slip opinion in McCutchen v. McCutchen, filed January 27, 2006, can be found here (last visited January 27, 2006, reo).

Utah House Approves Bill Requiring Parental Consent before Girl under 18 Can Have Abortion

The Utah House of Representatives approved a bill on Friday that would require a parent's consent before a girl under 18 years old can have an abortion. It also approved legislation that would require doctors to inform women seeking abortions after 20 weeks gestation that their fetuses can feel pain. Both bills now go to the State Senate for debate. Source:  Rebecca Walsh, The Salt Lake Tribune, sltrib.com. For the complete story, please click here (last visited January 28, 2006, reo).

Legislative Development: Wisconsin Passes Internet Visitation Bill

The Wisconsin Legislature has codified provisions regarding electronic communications for visitation. As summarized by the Wisconsin Legislative Service, "This bill provides that, if the court grants periods of physical placement to both parents, the court may grant to a parent a reasonable amount of electronic communication at reasonable hours during the other parent’s periods of physical placement with the child. Electronic communication is defined as time during which a parent and his or her child communicate by using various types of communication tools, such as the telephone, electronic mail, instant messaging, and video conferencing or other wired or wireless technologies via the Internet. The basis for granting electronic communication is whether it is in the child’s best interest and whether equipment for providing electronic communication is reasonably available to both parents. Electronic communication may be used only to supplement, and not as a substitute or replacement for, the physical placement that a parent has with the child. The bill provides that a parenting plan that a party files with the court before a pretrial conference when legal custody or physical placement is contested must include any electronic communication a parent is requesting and must indicate whether equipment for providing electronic communication is reasonably available to both parents. The bill also provides that, if a parent is proposing to move with the child and the other parent objects to the move, the court may not use the availability of electronic communication as a factor in support of a modification of physical placement or a refusal to prohibit the parent from moving with the child."

To read more about it, see the entire summary of the bill from the Wisconsin Legislative Service.(last visited January 26, 2006 bgf)

Thanks to the Iowa Family Law Blog for highlighting this development.

Case Law Development: Florida Court of Appeals Denies Enforcement of Co-Parenting Agreement

The Florida Court of Appeals found no basis in law for upholding a parenting agreement between cohabitants.  This action involved two women who, after they had lived together for eight years, entered into carefully drafted co-parenting agreements in regards to a child Mother would conceive through sperm donation.  Two years later the couple executed another agreement regarding a second child born to Mother.  Mother and her Partner agreed that Partner would have parental rights and obligations with respect to the children. When the children were five and seven years old, Mother moved to another city and did not give Partner access to the children. Partner filed a complaint against Mother for breach of contract, breach of fiduciary duty, residency and child support, and declaratory judgment.  The trial court dismissed the action, noting that Partner and the children's guardian ad litem "made a compelling argument that it is in the best interests of the children to enforce the co-parenting agreements"  but concluding that Florida law gave Partner no right to relief.   The Florida Court of Appeals affirmed since, absent evidence of detriment to the child, courts have no authority to grant custody or to compel visitation by a person who is not a natural parent, and agreements providing for visitation by a non-parent are unenforceable.

Wakeman v. Dixon, 2006 Fla. App. LEXIS 659 (January 24, 2006)
Opinion available on the web (last visited January 25, 2006 bgf)

Case Law Development: Transfer of Property to Second Husband Requires Forfeiting $75,000 to First Husband

Wife's divorce decree contained a settlement agreement providing her ex-husband with an additional $75,000 judgment if, during his lifetime, she voluntarily or involuntarily sold, transferred, gifted, conveyed, or foreclosed upon the marital property granted to her. After wife remarried, she conveyed the property to herself and her new husband in joint tenancy.  Ex-husband then borught this action to collect the $ 75,000 due under the divorce decree. 

The district court held that the provision was a valid condition precedent in a contract, and not a void conditional judgment, and that the condition had been satisfied by the warranty deed. It therefore overruled Wife's motion to quash the garnishment, determined that $ 75,000 plus accrued interest from the time of the conveyance was due and owing in full, and directed the garnishee to pay into the court. 

The Nebraska Supreme Court affirmed. While noting that ordinarily conditional judgments are void, the court stated that this rule does not extend to equity or to equitable relief. "Rather, where it is necessary and equitable to do so, a court of equitable jurisdiction may enter a conditional judgment and such judgment will not be deemed void simply by virtue of its conditional nature."  Finding that the "$ 75,000 provision at issue in the instant case was the product of negotiations and agreement by the parties, and was found by the court to be part of a fair and reasonable settlement agreement" the court concluded that there was no basis for finding the judgment based on that agreement void.  Further the court found the agreement unambiguous and that the transfer fulfilled the condition in the agreement. 

Strunk v. Chromy-Strunk, 270 Neb. 917, 2006 Neb. LEXIS 11 (January 20, 2006)
Opinion available on the web (last visited January 25, 2006 bgf)

Case Law Development: Prenatal Drug Exposure by Father Basis for Terminating Parental Rights

The Idaho Supreme Court affirmed termination of a father's parental rights based on abandonment in a case in which Father, a "chronic methamphetamine addict" had "endangered his unborn child by encouraging Baby Doe's mother to use drugs with [him] up to one month before his daughter's birth."  The magistrate concluded that these actions "showed no regard whatsoever for the health and well-being of his unborn daughter" and the Supreme Court agreed.  Despite Father's declaration that having a child had changed his life and he vowed to get straight and that the court could not conclude he had abandoned a child before he had even had a chance to parent the child, the court found that he failed to bond with their newborn in the three months of supervised visitation he was given immediately after the child's birth and up until he was incarcerated for drug violations and that it was in the child's best interest that Father's rights be terminated.

Casi Found., Inc. v. Doe (In re Doe), 2006 Ida. LEXIS 3 (January 24, 2006)
Opinion available on the web (last visited January 25, 2006 bgf)

Case Law Development: Attorney Advice to Violate Divorce Decree Results in Suspension

In another blow against hardball litigation tactics in divorce actions, a divorce attorney was given a two-year suspension for counseling Husband not to comply with the part of the divorce decree requiring that transfer certain documents and information to his former wife within 30 days. Rather the attorney had drafted deeds transferring the property to others and then, after her client was in contempt, drafted a deed transferring the property to wife, even though at that point her client no longer owned the property.

The Supreme Court of Nebraska, in affirming the recommendation of discipline, concluded "it is apparent that [Attorney] assisted her client, Ronnie, in an attempt to frustrate his divorce decree and that when that attempt failed, she engaged in a prolonged series of misleading transactions intended to extricate herself and Ronnie from the consequences of her actions. Not only was her conduct deceitful and prejudicial to the administration of justice, but it was a poor discharge of her ethical responsibility to Ronnie, who landed in jail as a result of [her] counsel." The court concluded that the attorneys' conduct involved dishonesty, fraud, deceit, or misrepresentation; that she counseled and assisted her client in conduct she knew to be illegal or fraudulent; and that she engaged in conduct prejudicial to the administration of justice.

State ex rel. Counsel for Discipline v. Horneber,  270 Neb. 951; 2006 Neb. LEXIS 13 (January 20, 2006)
Opinion available on the web (last visited January 25, 2006 bgf)

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