Family Law Prof Blog

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

Saturday, May 27, 2006

Russian Court Bars Gay Pride Parade in Moscow

A Russian court on Friday barred a gay pride parade in Moscow. The court upheld the decision of Moscow authorities who had banned the holding of the parade. It is reported that the Mayor of Moscow felt the march would provoke protests that would lead to public disturbances.  It is also reported that Russia's Muslims, Russia's Chief Rabbi, and the leaders of the Russian Orthodox Church have expressed their opposition to the parade.  Source. MosNews.com. For the complete story, please click here (last visited May 27, 2006, reo).

May 27, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Argentina Considering Legalizing First-Trimester Abortion

The Catholic News Service reported this week that Argentina is considering a revision of the penal code involving abortion. Under the new code, the section addressing abortion would read, "The woman is not punishable when the abortion is practiced with her consent and within three months of conception, provided circumstance made it excusable."  Source.  Gudrun Schultz, lifesite.net. For the complete story, please click here (last visited May 27, 2006, reo).

May 27, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Friday, May 26, 2006

Victims of Domestic Abuse Confide in Computer More Readily Than a Doctor

West Palm Beach family law attorney Janet Langjahr highlights in her blog a new study that finds that victims of domestic violence are more likely to report their abuse in a computer-based medical interview than they are talking to a real live doctor. The study found that, after the “ice was broken” with a computerized questionnaire, victims were more likely to discuss the abuse, when probed by physicians tipped off by the computerized interview results.

One wonders is the "questionaires" family law attorneys often use in initial stages of divorce actions would have the same "ice breaking" effect as computerized questionaires and improve the ability of family law attorneys to screen for domestic violence.

Read the Forbes article on the study (last visited May 26, 2006 bgf)

May 26, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Case Law Development: California Court of Appeals Emphasizes Importance of Due Process in Hearing Relocation Petitions

The California Court of Appeals reversed a trial court's order that changed custody from shared physical and legal custody of the four minor children to sole physical and legal custody with Mother and permission for her to move with the children to Virginia, where she now resides with her new husband.  The court of appeals strongly criticized the trial court's failure to give Father a meaningful opportunity to be heard on the change in custody and relocation decision:

"Virtually from start to finish, the trial court handling this matter failed to follow or evenly apply the rules and procedures governing family law matters and, by failing to do so, denied Timothy the opportunity to be meaningfully heard. The rules of procedure for reaching family law decisions-contained in the Family Code, the Code of Civil Procedure, the California Rules of Court, and local court rules-are not mere suggestions. The rules of procedure are commands which ensure fairness by their enforcement."

Father had initially brought an action seeking sole custody of the children. Among the errors the court of appeals noted were the trial court's failure to require Mother to file a responsive pleading to this action (her counsel at that time indicated that she did not anticipate asking for relocation, even though she had remarried and her husband lived in Virginia).  The court appointed a mental health professional to conduct an evaluation without defining the purpose and scope of the evaluation as is required by the evidence code.  Father withdrew his motion after that evaluator concluded that Mother should be given primary custody and allowed to move with the children (even though that was not an issue before the court at that time).  Mother then filed her own motion to change custody and relocate and requested that it be heard on shortened notice.  Father moved to quash the motion as he had not received the required personal service of the motion.  The trial court denied his motion to quash and granted Mother's request for an expedited hearing without a good cause showing. The trial court then refused to continue the hearing for three days to permit Father's rebuttal expert to testify.  Taken together, the court of appeals found these errors to justify reversal, even though it noted this would further prolong the uncertaintly of custody for the children.  The court cautioned "All the more reason why it is important to adhere to the correct procedures and provide a fair hearing in the first instance. "

In re Seagondollar, 2006 Cal. App. LEXIS 779 (May 25, 2006)
Opinion on the web (last visited May 26, 2006 bgf)

May 26, 2006 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Thursday, May 25, 2006

Wealthier Spouses Warned to Beware

"By the time the House of Lords had finished delivering its double ruling in the Miller and McFarlance cases today, divorce lawyers around the country were already scrambling to interpret its significance. There was disagreement as to whether it clarified or complicated divorce laws. Many believed it would lead to higher maintenance payments for ex-wives and an increase in pre-nuptial agreements. All agreed on one thing: it was a blow to wealthier spouses.

"Overall it hasn't got better for the husbands," Magnus Mills, a partner at Manches, said. "It's probably slightly better for the wives. White v White [the landmark 2000 case] was the watershed that made things better for wives everywhere and that swing hasn't halted." Justin Moss, a family law solicitor at Wilsons, a firm in Salisbury, said: "Rich men shouldn't get married, frankly. It's that simple. It's not sensible for anyone, man or woman, to marry anybody financially weaker than they are."" By Alex Spence, Times Online Link to Article (last visited 5-24-06 NVS)

May 25, 2006 in Maintenance (alimony) | Permalink | Comments (0) | TrackBack (0)

Family Law Protesters Disturb BBC Studio

"Protesters campaigning for parents' rights invaded a BBC television studio Saturday - halting Britain's televised national lottery draw. Graham Manson, spokesman for the Real Fathers 4 Justice group said two members of the organization were involved in the demonstration, rushing forward from seats in the studio audience. Protesters Ray Barry and Nadine Radford carried out the protest to denounce what they said is "the lottery faced by people every day in the family law courts," Manson said." Canadian Press, canada.com Link to Article (last visited 5-24-06 NVS)

May 25, 2006 | Permalink | Comments (0) | TrackBack (0)

Discrimination in Scottish Divorce

"ONE of Scotland's most senior legal figures has launched a scathing attack on Scots law by claiming that women are being discriminated against in divorce settlements north of the Border. Lord Hope of Craighead yesterday took the unusual step of criticising Scottish law as he delivered a ruling on two multi-million pound divorce cases in England. The former lord president was among a panel of judges at the House of Lords that ruled Melissa Miller was entitled to £5 million of her former husband's assets after just two years and nine months of marriage. Meanwhile, Julia McFarlane, who was awarded £250,000 a year from her former husband's earnings, was told that she can keep her maintenance payments for life if necessary.

In his opinion on the cases, Lord Hope called for a review of the limited awards Scottish courts can grant to spouses to cushion the blow of divorce. He called on judges north of the Border to be given power to provide long-term compensation to the partner of a marriage who has given up well-paid, promising careers after marriage. The cases have been hailed as a significant victory for women. But as the judges were ruling on English cases, their judgments are not binding on Scotland." By Michael Howie,scotsman.com Link to Article (last visited 5-24-06 NVS)

May 25, 2006 in Maintenance (alimony) | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 24, 2006

Case Law Development: Ninth Circuit Court of Appeals Affirms Ban on Aerial Abortion Ads

A panel of the Federal Ninth Circuit Court of Appeals has affirmed Honolulu, Hawaii's ban on aerial advertising of abortion ads.  Abortion opponents had planned to tow aerial banners protesting abortion over the beaches of Honolulu.The court said that the city’s ban on such advertising, which is based on a 1978 ordinance, did not violate the First Amendment to the United States Constitution.

The court found that airspace is not a public forum and that other means were available for the group to campaign against abortion.  It also said that the city's longstanding efforts at beautification through strict regulation of all kinds of outdoor advertising -- commercial and political -- were even-handed and consistent and did not constitute discrimination against the protestors.  A copy of the Ninth Circuit decision can be obtained by clicking here (last visited May 24, 2006, reo).

May 24, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Mississippi Supreme Court Says Genetic Testing O.K. in Paternity Cases -- Even If Not in Child’s Best Interests

The Mississippi Supreme Court has ruled that genetic testing must be performed when requested by either party in a paternity case. The court held that “Even if a trial court determined it was not in the child's best interests to require a paternity test, all that is necessary, under the statute as it currently exists, is for either the plaintiff or defendant in a suit regarding paternity to move for a test to be done. No discretion is afforded.”  The court said it was bound to apply the statute permitting testing unless it is changed by the legislature. A copy of the opinion in Thoms v Thoms can be found by clicking here (last visited May 24, 2006, reo).

May 24, 2006 in Paternity | Permalink | Comments (0) | TrackBack (0)

Abortion Level at All-Time High in Scotland

According to a report issued by the government, the number of abortions carried out in Scotland reached an all-time high in 2005. The report claims that 12,603 pregnancies were terminated, the highest level since abortion was made legal in 1967. Source. BBCNews, news.bbc.uk. For the complete story, please click here (last visited May 24, 2006, reo).

May 24, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Kansas Legislators Supporting Abortion Reporting Bill Unsure of Override

Supporters of a bill that would require Kansas doctors to report more information to the state about abortions they perform were unsure Monday if  they would try to override Governor Kathleen Sebelius' veto of the proposal. It is reported that the bill’s backers will wait until Thursday to decide whether to try and override the veto. Source.  John Hanna, AP, kansascity.com. For the complete story, please click here (last visited May 24, 2006, reo).

May 24, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Are Daughters and Sons Good For a Marriage? “Yes, Says Australian Research

According to research conducted by the Australian National Univeristy released on Monday, parents who have a boy and a girl are more likely to stay married than those with two boys or two girls.  Furthermore, unmarried parents are more likely to tie the knot if they have a child of each gender. The results are based on an analysis of 60 000 families from the past five Australian censuses between 1981 and 2001.  Source.  Iol.co.za. For the complete story, please click here (last visited May 24, 2006, reo).

May 24, 2006 | Permalink | Comments (0) | TrackBack (0)

Newfoundland and Labrador Enact New Child Support Enforcement law

The provincial government of Newfoundland and Labrador has passed a new law that will put more teeth behind the enforcement of child and spousal support orders. The new law allows the province to suspend drivers' licenses or revoke a big- game license if a child support obligor is not making adequate child support payments.  Source.  Cbc.ca/n/story. For the complete story, please click here (last visited May 24, 2006, reo).

May 24, 2006 in Child Support Enforcement | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 23, 2006

Resource for Updates on UK Family Law

Our readers may find Family Law Week a particularly valuable resource for keeping in touch with developments in family law in the UK in particular and EU in general.  All content is provided free of charge and one can subscribe to an email update service without charge as well.

The most recent article presents a summary and analysis of the effect of recent key public law children cases, especially those relating to emergency protection order applications. Read Alex Verdan's article.  In another recent article, Lord Justice Thorpe reviews his first 15 months as the UK's Head of International Family Law in the UK publication Family Law Week.  He reviews the developments in family law that lead to the creation of his post and describes some of the issues he has addressed in the past year. Read Justice Thorpe's article.   

(last visited May 22, 2006 bgf)

May 23, 2006 in International | Permalink | Comments (0) | TrackBack (0)

Wyoming sues ATF over Wyoming Law "Expunging" Domestic Violence Misdemeanors to Permit Subsequent Gun Ownership

Wyoming Attorney General Pat Crank has sued the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, saying the agency is relying on a "hyper-technicality" to refuse some Wyoming residents -- people convicted of misdemeanor domestic violence -- the right to bear arms.  "Essentially, what the dispute involves is the meaning of the word 'expungement' and how it is applied to firearms disability under federal law," said Eric Epstein, division counsel for the ATF field office in Phoenix.  Federal law prohibits gun ownership by those convicted of domestic violence offenses unless those offenses are expunged.  The ATF maintains that a 2004 Wyoming statute that provides for "expunging" records of certain misdemeanor assaults in order to allow those convicted to subsequently own guns does not meet the standards of the federal law because records of the conviction are still kept for limited purposes.
Read the article in the Billings Gazette (last visited May 23, 2006 bgf)

May 23, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Next Chapter in a Three-way Ongoing Custody Dispute

A Florida judge ruled Monday that a boy who spent the first 3½ years of his life with a Florida couple should permanently live with his biological father in Maine.  The boy had been raised since he was a newborn by a couple in Florida who had never completed the adoption process.  In January 2005, the boy was placed with his biological mother and stepfather.  Seven months ago, the boy was placed with his biological father, after allegations of abuse by his stepfather, with this most recent opinion affirming that custody decision.

For a series of articles on the ongoing dispute, including video footage, see Jacksonville, Florida News 4 reports  (last visited May 23, 2006 bgf).

May 23, 2006 in Adoption, Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Unmarried Biological Father's Consent Required For Adoption If Paternity Uncontested in Other Prior Proceedings

The Florida Court of Appeals reversed a trial court's order of adoption without securing the consent of the biological father.  The child and Mother had both tested positive for cocaine at the child's birth.  As a result, the state initiated dependency proceedings and identified Father as the biological father, without objection. 

In an effort to avoid the dependency proceeding, Mother's parents brought an action to adopt the child, to which Mother consented.  The trial court found that Father's consent was not required because he had not timely registered in the putative father registry.

The court of appeals reversed, finding that the trial court erred in determining that the Florida statutes requiring registration in the putative father registry is the sole method of preserving an unmarried biological father's rights.  Rather, the court held, a court must obtain consent to adoption from any man who qualifies as a father under any of the statutory sections of the statute.  "Thus, subsection (b)5 [the putative father registry] is not a default provision under which all unmarried biological fathers must qualify to protect their parental rights -- it is merely one statutory method among five to identify a child's father."  The court went on to note that father's consent was required because he met the statutory section in which paternity has been "established by court proceeding." "The phrase "established by court proceeding" is not limited to a formal paternity adjudication under chapter 724, Florida Statutes (2004). Rather, any time a court makes a factual determination as to the identity of a minor child's father, and the determination is material in the proceeding before the court, that proceeding qualifies as a "court proceeding" under subsection (b)3."

The dissent argues that the majority's conclusion that father's consent was required under the adoption act was "unsupported by the facts, directly contravenes the expressed legislative intent set forth in the Florida Adoption Act, and directly conflicts with prior case law from this court as well as overwhelming precedent from around the country."

B.B. v. P.J.M. & K., 2006 Fla. App. LEXIS 8011 (May 22, 2006)
Opinion on the web (last visited May 23, 2006 bgf)

May 23, 2006 in Adoption, Paternity, Termination of Parental Rights | Permalink | Comments (0) | TrackBack (0)

Pennsylvania Court Considering Posthumous Divorce

Lawyers for a slain dentist tried but failed yesterday to have his pending divorce finalized by a judge.  The case, first of its kind in Pennsylvania, centers on John Yelenic, who was attacked and killed April 13 in his Blairsville home.  Dr. Yelenic, 39, died the day before he was to sign his divorce papers and have them notarized. All five original copies of the paperwork were in his house when he was killed, said his lawyer, Effie Alexander. Common Pleas Judge Carol Hanna reviewed it but declined to grant Dr. Yelenic's divorce. She says she is not sure she has any standing in a case involving a dead man. The judge gave Ms. Alexander and her colleague, Sam Reich, two weeks to give her written arguments on why she has the power to grant a posthumous divorce.

Read the Pittsburgh Post-Gazette article (last visited May 23, 2006 bgf)

May 23, 2006 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

Monday, May 22, 2006

June Likely Time for Teen Sex

"June is when teens are most likely to have sex for the first time, a national survey says.
The survey doesn't say why. But Markie Trejo, a Sunnyside High School sophomore, probably has as good an explanation as anyone. "You have a lot of free time and you don't have no other way to waste it," he said. For agencies working to prevent teen pregnancy, that means May is crunch time." By Jane Erikson, www.azstarnet.com Link to Article (last visited 5-21-06 NVS)

May 22, 2006 | Permalink | Comments (0) | TrackBack (0)

Children Pressured to Be Sexually Active

"Children lack the knowledge and confidence to say no to sex or to keep themselves safe as they come under pressure from their peers to experiment, the charity ChildLine says today.
Rather than wait until they are emotionally prepared for sex, children as young as 12 are turning to alcohol to help to get them through losing their virginity. Most are too embarrassed, confused, drunk or illinformed to think about the risks of pregnancy or sexually transmitted infections, so contraception is barely even considered, a charity report says." By Alexandra Frean, Times Online Link to Article (last visited 5-21-06 NVS)

May 22, 2006 | Permalink | Comments (0) | TrackBack (0)