Family Law Prof Blog

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

Wednesday, July 26, 2006

Part of Suit Challenging DOMA Survives Motion to Dismiss

The United States District Court for the Northern District of Oklahoma has held that at least some of the challenges brought by same-sex couples to the Defense of Marriage Act will survive a motion to dismiss.

The court that none of the couples had standing to challenge Section 2 of the act, which provides that no state be required to give effect to a public act or judicial proceeding of another State "that is treated as a marriage under the laws of such other State" that a lesbian couple who had a civil union in Vermont and also had been married in Canada.   Even the couple who had established a civil union in Vermont and were legally married in Canada lacked standing.  The court relied heavily on the reasoning of  Smelt v. County of Orange, 447 F.3d 673, 683 (9th Cir. 2006) and concluded that they did not have standing to challenge Section 2 of DOMA because a civil union is not a marriage.  Their Canadian marriage did not give standing because "the word "State" in Section 2 of DOMA (like use of the word "State" in the Full Faith and Credit Clause) was not intended to include foreign countries but instead was intended only to include states within the United States."

The court did find sufficient evidence of standing for this couple to survive a motion to dismiss in regards to the challenge the definitional section of DOMA.  The court rejected the argument that same-sex couples were no more harmed in that their civil union could not be recognized as marriage than would any other legal relationship, such as a business partnership.  The court commented: "It seems to ignore common sense and to elevate form over substance to equate these two types of legal relationships for purposes of analyzing the injury suffered as a result of the federal definition of marriage."

The court granted dismissals on the Full Faith and Credit Clause and Privileges and Immunities Clause challenges but found that the challenges to Section 3 based on the Equal Protection Clause and Substantive Due Process Clause are sufficient to survive a motion to dismiss. "The Court concludes that such challenges are more appropriately decided at the summary judgment stage, because they may involve specific factual findings related to the purpose and justifications for the law."

Baldwin v. Oklahoma ex rel. Edmondson, 2006 U.S. Dist. LEXIS 49829  (July 20, 2006) bgf

July 26, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

More than Biological Connection Required for Parent to Inherit from Child?

What is a father? Today, a judge in Hudson County is expected to issue his legal opinion on fatherhood in the case of a  Staten Island man trying to claim half of his late daughter's inheritance. The case involves a  New Jersey law that divides the estate of someone who dies without a will between the person's parents if there are no children or other descendants. The attorney for the deceased woman's mother believes the judge's ruling will break legal ground in defining and interpreting parental inheritance.   The legal case hinges on whether the Staten Island man, Ruben Martinez, should still be considered the woman's legal parent even though he admits in court papers that he was not very involved in his daughter's upbringing and did not pay child support.

Read more of the article by Rudy Larini from New Jersey's Star-Ledger (last visited July 25, 2006 bgf)

Continue reading

July 26, 2006 in Paternity | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 25, 2006

Seventh International Symposium on Child Custody Evaluations: Great Debates in Child Custody Evaluation

The Association of Family and Conciliation Courts is hosting the Seventh International Symposium on Child Custody Evaluations: Great Debates in Child Custody Evaluation on October 19 - 21, 2006 in Atlanta.

"The development of AFCC's Model Standards of Practice for Child Custody Evaluation has sparked widespread and intense debate about the child custody evaluation process. The 2006 Sumposium will tackle the issues head on and feature three exciting debates:

  • Are AFCC's Model Standards a Help or a Hindrance?
  • Are Full Child Custody Evaluations a Realistic Option?
  • To Recommend or NOt to Recommend? Is that the Question?"

Link to Conference Brochure (last visited 7-24-06 NVS)

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

Seventh International Congress on Parent Education and Access Programs

The Association of Family and Conciliation Courts is hosting the Seventh International Congress on Parent Education and Access Programs: Parenting After Separation and Divorce: Emerging Issues for Educators on October 22 - 23, 2006 in Atlanta.

"Whether it is new research on child development or advances in technology, effective educational programs for separated and divorcing parents are dynamic and constantly changing. Now is the time to take a fresh look at your program and to learn and network with the leaders in the field. This is a great opportunity to exchange ideas and share perspectives with experienced providers. The conference will help participants examine challenging questions, including:

  • Can technology enhance or replace face-to-face educational programs?
  • What are the latest research findings about children in separating and divorcing families?
  • What can programs offer for nontraditional families?
  • How can administrators assure quality?"

Link to Conference Brochure (last visited 7-24-06 NVS)

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

Man Convicted of Killing Family Seventeen Years Ago

"A jury convicted a man Friday of killing his father, stepmother and two stepsisters 17 years ago inside their church parsonage home so he could attend some high school prom events. The St. Joseph County jury found Jeffrey Pelley, now 34, guilty on four counts of murder after deliberating more than 25 hours since Wednesday. Pelley faces up to 260 years in prison when he is sentenced September 15." Link to Article (last visited 7-24-06 NVS)

July 25, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Mother Seeks Return of Children

"To make the letter look right, Marie needed a computer, so one day in March she walked to a public library. There she composed at the keyboard, but the writing didn’t go well. She had the first of her five children at 13, spent part of her teenage years in a group home and part in the home of her crack-addicted mother and never reached high school. “You know,” she told me later, “the way I sound sometimes doesn’t sound like it’s supposed to.” But she wasn’t leaving that library without the letter she needed. College students were studying nearby, and Marie, who is 29, interrupted one of the girls. To this stranger, she confided her situation. And soon, with the girl’s help, she began again.“To whom it may concern,” she typed, “I am writing to you to appeal for the return of my children.” Marie (I am using her middle name, as well as the middle names of her children, to protect their privacy) lost her kids, all of them boys, to the State of Connecticut more than a year ago." By Daniel Bergner, N.Y. Times Magazine Link to Article (last visited 7-24-06 NVS)

July 25, 2006 in Child Abuse | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Washington Supreme Court Upholds Ban on Same-Sex Marriage

The long-awaited decision of the Washington State Supreme Court appeared today and the court split 5-4, upholding the state's 1998 Defense of Marriage Act, which limits marriage to opposite-sex couples.  The court reversed the lower courts, which had held that the act violated the state constitution and its Equal Rights Amendment.

The majority opinion, authored by Judge Barbara Madsen, begins by noting that, while constitutional precedent and deference to the legislature dictated the outcome, "We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington." 

The court examined the history and nature of Washington state's constitutional privileges and immunities clause and its relationship with the state's equal rights amendment, but in the final analysis, concluded that the privileges and immunities analysis in this context should mirror that of the federal constitution.  The court applied a rationale basis test to the privileges and immunities clause analysis and concluded that for both that analysis and for substantive due process "DOMA is constitutional because the legislature was entitledto believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents." The court rejected the privacy analysis Finally, the majority concluded that "DOMA does not violate the state constitution’s equal rights amendment because that provision prohibits laws that render benefits to or restrict or deny rights of one sex. DOMA treats both sexes the same; neither a man nor a woman may marry a person of the same sex."

The majority opinion spends a number of words on criticisms of the analysis and rhetoric of the dissenting opinions as improper to the judicial role, particularly the opinion of Judge Mary Fairhurst, which saw the case as an example of blatant bigotry.  At the same time expressed considerable support for the political agenda of the plaintiffs.

... The plaintiffs and their amici have clearly demonstrated that many day-to-day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples, unlike married couples who automatically have the advantages and rights provided to them in a myriad of laws and policies.... the plaintiffs expressly requested that this court not consider whether denial of statutory rights and obligations to same-sex couples that apply to married couples violates the state or federal constitution. Thus, our opinion does not address those issues. There may be “more just and humane" ways to further the State’s interests,  but the State has met its burden in demonstrating that DOMA meets the minimum scrutiny required by the constitution. However, given the clear hardship faced by same sex couples evidenced in this lawsuit, the legislature may want to reexamine the impact of the marriage laws on all citizens of this state."

Anderson v. King County, (July 26, 2006)
Opinions on the web:
Concurrence by Alexander, CJ
Concurrence by J.M. Johnson, J.
Dissent by Bridge, J
Dissent by Chambers, J
Dissent by Fairhurst

For reports on local reactions, see the article by Tracy Johnson and Phuong Cat Le of the Seattle Post Intelligencer   or commentary on the decision in the context of Washington's "meretricious relationship" doctrine, which provides considerable protection for unmarried cohabitants, see Jeanne Hannah's Updates in Michigan Family Law blog. For background on the plaintiffs and the suit, see the ACLU press release on the case and the LAMBDA website.

(all last visited July 26, 2006 bgf)

July 25, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Sunday, July 23, 2006

Case Law Development: Child Support First-Family Preference Does Not Violate Equal Protection

The Kentucky child support statutes, like those of most states, provides a preference for prior-born children when calculating child support.  In this case of first impression, the Kentucky Court of Appeals holds that this preference does not violate equal protection. 

We agree with [other state] courts that the state's interest in seeing that prior-born children are provided for is a rational basis for the provision at issue in KRS 403.212(2)(g)(4). Clearly, the intention of the statute is not to deny financial resources to later-born children, but rather to make sure prior-born children are being supported. While in some cases application of the statute may result in later-born children having access to fewer financial resources than prior-born children, "[e]qual protection does not require there to be a perfect fit between means and ends."

Kimbrough v. Commonwealth ex rel Shantrece Laniece Belmar, 2006 Ky. App. LEXIS 226 (July 21, 2006)
Opinion on the web (last visited July 24, 2006 bgf)

July 23, 2006 | Permalink | Comments (0) | TrackBack (0)

Case Law Development: North Dakota Supreme Court Addresses Extension of Protective Orders

In its second review growing out of a domestic violence protective order, the Supreme Court of North Dakota holds that:

While the statute governing issuance of domestic violence protection orders speaks of "amending" an existing protection order, that term permits the court to extend the term of an order. 

An order can be extended even after it expires if the request for the extension is filed before the expiration of the order.

A stipulated order can be extended beyond its agreed upon time limit.

The court also concluded that the trial court did not err in taking judicial notice of evidence of domestic violence from the couple's divorce action, and further noted that even if this were error, it would be harmless as the court had ample independent evidence of the danger to petitioner to support the protective order and its extension.

Frisk v. Frisk, 2006 ND 165 (July 21, 2006)
Opinion on web (last visited July 23, 2006 bgf)

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

Case Law Development: Nunc Pro Tunc Orders Cannot Change Date of Divorce If No Error

Husband and Wife filed a joint petition for divorce on September 2nd.  On September 3rd, Wife remarried.  The judge in the divorce action signed the divorce decree about three weeks later.  Ten years later, when Wife filed for divorce from her second husband, he discovered that she was still legally married to her first husband when they wed and counterclaimed for annulment.  Wife then filed a motion to amend the prior divorce decree to reflect at September 2nd divorce date.  In order to legitimatize her second marriage, and relying on the good faith belief of all the parties involved at the time that the divorce was effective, the trial court granted the motion. 

On appeal, the Supreme Court of Nevada reversed, holding that "Because a nunc pro tunc order can only reflect that which was actually done, we conclude that the district court cannot use a nunc pro tunc order to change the date of a divorce decree to a date before the date when the matter was adjudicated."  The court commented that, "Although the divorce petition ... was uncontested and jointly filed, the divorce decree is nevertheless a decision adjudicating the parties' rights and liabilities.... The district court's decision to approve a petition for divorce is not equivalent to the exercise of a clerical duty that the court may later amend at its discretion."

McClintock v. McClintock, 122 Nev. Adv. Rep. 73 (July 20, 2006)
Opinion on web (last visited July 23, 2006 bgf)

July 23, 2006 in Divorce (grounds) | Permalink | Comments (2) | TrackBack (0)

Case Law Development: Patient's Identification of Assailant Not Admissible Hearsay under Medical Diagnosis Exception

The Minnesota Supreme Court has been at the front lines recently in deciding cases regarding admissibility of hearsay statements in child abuse and domestic violence actions.  The court now holds that a trial court erred in adopting a categorical rule of admissibility for statements of identification by domestic abuse victims under the medical diagnosis exception, as there was insufficient evidence that identification of the perpetrator is relevant to medical diagnosis:

We are not able to determine, by judicial notice or general knowledge, whether the notion that the identification of the perpetrator of domestic violence is reasonably pertinent to medical diagnosis and treatment is generally accepted in the medical profession. To this extent, the medical exception to the hearsay rules depends, in the first instance, on the views of the medical profession, not on the views of the courts. We can speculate that the medical profession may have evolved to recognize the importance of treating the whole person of a victim of domestic violence, including the emotional and psychological effects of past violence and the potential of future violence. But we can do no more than speculate. The record before us contains no medical expert testimony on the scope of the customary treatment of a victim of domestic violence or whether the identity of the domestic abuser is reasonably pertinent to that treatment.... We conclude that the categorical rule of admissibility that the state urges us to adopt is too broad. It ignores variables such as the seriousness of the assault, the frequency of the abuse against the victim, the type of domestic relationship, or the presence or absence of emotional or psychological harm. These variables can affect the pertinence of a statement of identification to medical diagnosis or treatment.

However, the court was careful to limit its holding:

We do not foreclose the possibility that we might in the future adopt a properly limited categorical rule of admissibility under the medical exception to hearsay for statements of identification by victims of domestic violence. Nothing in this decision should be interpreted as preventing or discouraging hospitals from conducting routine screening for domestic abuse for any or all patients. And we do not suggest that accusations by victims of domestic abuse are unreliable. We only hold that where, as here, there is an insufficient evidentiary foundation to establish that the identity of the person who caused an injury was reasonably pertinent to the medical diagnosis or treatment of that injury, the statement of identity is not admissible under Rule 803(4).

The court found that because the victim's statements were admissible under the residual exception, the district court's error in was harmless.

State v. Robinson, 2006 Minn. LEXIS 439 (July 20, 2006)
Opinion on the web (last visited July 23, 2006 bgf)

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

Case Law Development: Juvenile Court Has No Jurisdiction over Missing Child

After a Mother had four other children removed due to severe child abuse (including the death of one of her children), Mother gave birth to a fifth child and reported that she had given the child to his father, whose whereabouts she did not knwo.  The state brought proceedings to bring this fifth child under court jurisdiction, denied Mother family reunification services, identified long-term foster care as a permanent plan, and ordered permanent placement services for the child if he were ever found.  On appeal, the California Court of Appeals reversed, holding that in the absence of any evidence regarding the child's whereabouts, the state had failed to establish jurisdiction.  The court suggested that the trial court should have simply waited until the child was found to hold the jurisdicitonal and dispositional hearings.  The court remanded with instructions that the juvenile court maintain the protective custody warrant issued for Baby Boy M. in full force and effect and set the case for periodic review hearings.

In re Baby Boy M, (Cal. Ct. App. July 19, 2006)
Opinion on web (Last visited July 23, 2006)

July 23, 2006 in Child Abuse | Permalink | Comments (1) | TrackBack (0)

Case Law Development: Child Support May be Shared by Psychological and Biological Fathers

The New Jersey Court of Appeals reviewed a trial court's decision to order child support for a 15-year-old girl from both "her biological father, who was unknown to her until these proceedings, and the man she called Dad for almost ten years." In reviewing the appeal by the biological father, the court held that the biological father was properly ordered to submit to genetic testing, as daughter's relationship with her psychological father had already deteriorated and she sought to determine her biological father. The court further held that equitable estoppel did not make the psychological father solely responsible for the daughter's support, since biological parents have the primary support obligation absent exceptional circumstances. Here, the court found that while biological father had the primary support obligation, it was proper for him to share the obligation with the psychological father because the biological father could not pay the entire amount of support.

J.R. v. L.R., 2006 N.J. Super. LEXIS 198 (July 17, 2006)
Opinion on the web (last visited July 23, 2006 bgf)

July 23, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Laches Defense Unavailable in Child Support Actions

California Family Code section 4502(c) applies retroactively and bars a parent from relying on laches to defend an action to enforce a child support order.   The California Supreme Court holds that the terms of the Family Code itself dictate retroactive application. Moreover, an exception to retroactive application of laws that create new duties does not apply to the laches defense as "Assertion of a laches defense seeks an equitable act of grace to relieve the burden of an existing obligation. Elimination of the defense does not create a new duty."

Moreover, the court rejected the due process challenge to retroactive application, holding that this application advances a compelling state interest.  "Unquestionably, the availability of laches impaired the ability of a parent to collect child support. Eliminating the defense necessarily advances the state’s interest in securing payment of all child support obligations. Moreover, to the extent obligor parents benefit from their efforts to evade support obligations through the use of the defense, section 4502(c) cures this “ rank injustice of the former law.”

In re the Marriage of Fellows, 2006 Cal. LEXIS 8764 (July 20, 2006)
Opinion on the web (last visited July 23, 2006 bgf)

July 23, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Saturday, July 22, 2006

Case Law Development: Supreme Court of Canada Allows Effect of Spousal Misconduct to be Considered in Awarding Alimony

Canada's Divorce Act eliminates consideration of misconduct in awarding spousal support.  The Supreme Court of Canada has now ruled that, although misconduct like adultery is not relevant in a divorce case, the consequences of that misconduct may be.  In justifying this nuanced distinction, the court noted:

The 1985 Divorce Act eliminates misconduct, as such, as a relevant consideration when making an award for spousal support.  Section 15.2(5) provides that in making an interim or final order for spousal support, “the court shall not take into consideration any misconduct of a spouse in relation to the marriage”.  In addition, s. 17(6) instructs the court not to consider in a variation application any conduct that could not be considered in the making of the initial order.  These provisions make it clear that misconduct should not creep back into the court’s deliberation as a relevant “condition” or “other circumstance” which the court is to consider under s. 15.2(4) in making or varying a spousal support order.  There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself.  Those consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct.  On the contrary, they can be highly relevant to factors, such as a claimant spouse’s capacity to be self‑sufficient, which must be considered when making a spousal support order.  Failure to achieve self‑sufficiency is not a breach of “a duty”.  It is simply one factor amongst others to be taken into account when considering a spousal support order. 

Leskun v. Leskun, 2006 SCC 25 (Sup. Ct. Canada June 21, 2006)
Opinion on web (last visited July 23, 2006)
Analysis of the opinion from Brampton News legal correspondent Meredith Cox.

July 22, 2006 in Maintenance (alimony) | Permalink | Comments (0) | TrackBack (0)

Lead Plaintiff Couple in Goodridge v. Department of Public Health Separate

The lesbian couple whose landmark lawsuit helped Massachusetts become the only state in America where same-sex couples can marry legally have split up, a spokeswoman said on Friday. Julie and Hillary Goodridge and six other gay and lesbian couples sued Massachusetts for the right to marry and won when the state's highest court ruled narrowly for them in 2003. Their suit helped spark a nationwide debate on gay marriage.

Read the Reuters story (last visited July 23, 2006 bgf)

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

Friday, July 21, 2006

Missouri Drops Ban on Gay and Lesbian Foster Parents

Missouri no longer will block efforts by Kansas City lesbian Lisa Johnston — or other gays — to become licensed as foster parents, state officials said Tuesday.  However, the Missouri Department of Social Services cautioned that just because gays may get licensed doesn’t automatically mean they will become foster parents. "We’re considering the biological parents’ preferences, and we’re also considering the abuse and neglect that occurred to the child and whether or not an alternative lifestyle environment would be confusing or add trauma to an already abused or neglected child,” said Deborah Scott, spokeswoman for the department.

The announcement came a month after state Attorney General Jay Nixon said he would not appeal a judge’s February decision allowing Johnston to be a foster parent. Nixon said he was dropping the appeal because Gov. Matt Blunt had just signed a law that repealed language outlawing homosexuality in Missouri.

Read the Kansas City Star Article (last visited July 20, 2006)bgf

July 21, 2006 | Permalink | Comments (0) | TrackBack (0)

North Carolina Holds Law Barring Cohabitation Unconstitutional

A state judge has ruled that North Carolina's 201-year-old law barring unmarried couples from living together is unconstitutional.  A lawsuit challenging the law was brought last year by the state chapter of the American Civil Liberties Union on behalf of a former Pender County sheriff's dispatcher. Deborah Hobbs, who had been living with her boyfriend, quit her job in 2004 after Sheriff Carson Smith demanded she marry her boyfriend or move out if she wanted to work for him.

Read the Fox News story (last visited July 20, 2006)bgf

July 21, 2006 in Cohabitation (live-ins) | Permalink | Comments (0) | TrackBack (0)

Thursday, July 20, 2006

Rabbinic Courts and Divorce

"Last-minute demands this week by Shas has delayed proposed divorce legislation that legal experts said would harm women's legal standing. The bill is now not expected to be considered by the Ministerial Law Committee until the Knesset's winter session, which begins after the High Holy Days. If the legislation becomes law, it give rabbinic courts continued jurisdiction over divorce cases. This would mean that any disputes about the monetary aspects of a divorce agreement reached in a rabbinic court that arose after giving the get (divorce writ) would be decided in the same rabbinic court. Neither side would have recourse to civil courts." By Matthew Wagner Jerusalem Post, Link to Article (last visited 6-19-06 NVS)

July 20, 2006 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

Chinese Border Police Work with Families

"Fighting people smugglers and drug runners is old hat for China's border police who now have a new duty -- defusing marital squabbles and other disputes. policy -- called "love the people, consolidate the borders" -- made perfect sense, as a happy populace that trusts the authorities helps make China's frontiers safer." Reuters, Yahoo News Link to Article (last visited 6-19-06 NVS)

July 20, 2006 | Permalink | Comments (0) | TrackBack (0)