Family Law Prof Blog

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

Thursday, November 16, 2006

O.J. Simpson Describes How He Would Have Murdered His Wife

"THEY call it “The Interview that will Shake the Nation”. But two weeks before it is due to air, America is reeling with the news that O. J. Simpson is to describe, before an expected television audience of millions, how he would have murdered his wife. Mr Simpson, who was controversially acquitted 11 years ago of the murder of his estranged wife, Nicole, and her companion, will detail over a two-hour interview how he might have carried out the crimes had he been the killer. The former American football star has always denied responsibility for the murders. The interview, to be shown on Fox TV this month, comes before the release of his book on the subject, titled If I Did It." From Catherine Philp, TimesOnline Link to Article (last visited 11-15-06 NVS)

November 16, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 15, 2006

Girl Removed from DV Shelter to Effectuate Change of Custody

A 9-year-old Virginia girl who claimed her father had abused her was removed from the domestic violence shelter where her mother had taken her after a court awarded custody to father based on parental alienation syndrome. 

See the Times-Richmond Dispatch story on the family and views on PAS

November 15, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Regulations to Implement Hague Convention on Intercountry Adoptions Considered

The United States is in the final stages of implementing new, federal-level standards in light of the anticipated U.S. ratification of the Hague Convention on Intercountry Adoptions.  The Convention was discussed at a November 14 hearing before the House International Relations Subcommittee on Africa, Global Human Rights and International Operations.  The Hague Convention on Intercountry Adoption is a formal international agreement designed to ensure transparency in adoptions to prevent trafficking, kidnapping, smuggling and baby-selling.  The United States has signed the convention and is moving toward formal ratification in 2007. The Intercountry Adoption Act of 2000 (IAA) is the implementing mechanism established to carry out the functions required under the convention.  The IAA was enacted into law on October 6, 2000. A regulatory framework currently is being put in place to comply with the provisions of both the convention and the IAA to move the United States toward formal ratification.

Read the Department of State press release on the testimony before the committee or check out the State Department's website on the Hague Convention on Intercountry Adoptions  (last visited November 15, 2006 bgf)

November 15, 2006 in Adoption, International | Permalink | Comments (0) | TrackBack (0)

Case Law Development: A "Better Family" is Insufficient Justification for Termination of Parental Rights

The Texas Court of Appeals reversed a termination of a mother’s parental rights for insufficient evidence that the termination would be in the child’s best interests.  The court reviewed the testimony of the CASA volunteer’s observations and criticisms of mother’s parenting, making this a great case to turn into a class discussion problem given the extensive summaries of the testimony and the clear framing of the issue regarding what is minimally acceptable parenting.   

The case involved a mother and father whose two young children were removed from the home after a domestic violence incident in which each parent claimed the other was the aggressor.  There was also an admission by mother that she had smoked marijuana in front of the children.  The court concluded that, while these offending behaviors could form a basis for termination, they were not “egregious enough to warrant a finding that termination is in the children's best interest.”   

While there is evidence in the record of Mother's poor parenting skills, poor decision making, and inadequate protection of the children in the past, the evidence is uncontradicted that Mother has done everything that CPS has required of her and more. There is evidence CPS's goal initially was to reunite the family. After Mother and Father divorced, the goal became placing the toddler with Mother and the infant with Father. No significant event occurred between the time CPS planned to return the children to appellant and the time CPS sought termination of Mother's parental rights other than her divorce from Father and Mother's move out of her brother's house and into a sparsely-furnished two-bedroom apartment CPS deemed "unsuitable." The best interest standard does not permit termination merely because a child might be better off living elsewhere.  Termination should not be used to merely reallocate children to better and more prosperous parents.  The evidence shows Mother has made significant progress, improvements, and changes in her life. The evidence also shows Mother has attended 100 percent of her visits with her children, and she obviously cares for her children.

In the Interest of C.E.K., 2006 Tex. App. LEXIS 9838 (November 14, 2006)
Opinion on the web (last visited November 15, 2006 bgf)

November 15, 2006 in Termination of Parental Rights | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Personal Jurisdiction for Child Support May be Based on Service by Publication on State Resident

The Texas Court of Appeals holds that service by publication upon a husband was valid to establish personal jurisdiction for purposes of a child support order unless husband was a non-resident.   In this action, the Attorney General had brought a child support enforcement action against Father, based on a 1981 dissolution decree in which Father had been served by publication and an ad litem attorney had been appointed to answer on his behalf.  The trial court dismissed the enforcement action sua sponte based on lack of personal jurisdiction, but the court of appeals reversed, holding that personal jurisdiction could only be subject to challenge if Father was shown to have been a non-resident of Texas when he was served by publication.

In the Interest of A.B., 2006 Tex. App. LEXIS 9830 (November 14, 2006)
Opinion on the web (last visited November 15, 2006 bgf)

November 15, 2006 in Jurisdiction | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Malpractice for Delay in Transferring Pension Funds

A cautionary tale: In any area of law, missed deadlines and delay are a common cause of malpractice.  In divorce practice, a common area for delay to cause harm is in the follow through required after a dissolution.   

The New York Court of Appeals reversed a trial court’s dismissal of a malpractice action premised on delay in transferring funds from a pension.  The trial court had held that the plaintiff’s damages were speculative as they were based on her argument that the pension investment had declined in value during the delay and if she had received the funds sooner, she could have made wiser investments and avoided that loss.  The court of appeals found that “the complaint sufficiently asserts that defendants' inordinate delay in effecting the stipulated transfer of funds resulted in a loss of principal attributable to defendants' lack of professional diligence. For purposes of this appeal, we reject the intimation that plaintiff must be treated as an investor who implicitly assumed the market risk inherent in an investment vehicle such as the Plan… Plaintiff agreed to accept the proceeds of the Plan, not the investments it represented. Moreover, it is clear that the stipulated agreement contemplated a prompt transfer and distribution of funds. Finally, at this stage of the proceedings, we are not prepared to rule that defendants' failure to fix the value of the Plan in the stipulated agreement or otherwise insulate plaintiff from the market risk attendant upon a delay in transfer and distribution of the proceeds cannot be deemed a lapse in the exercise of professional diligence.”

Lappin v Greenberg, 2006 NY Slip Op 8168 (November 14, 2006)
Opinion on web (last visited November 15, 2006 bgf)

November 15, 2006 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 14, 2006

Polygamy Reappears in Tajikistan

"Gulya Ismoilova cannot say exactly when men in Tajikistan broke with a century of tradition and began taking second and even third wives, but she remembers precisely when her husband announced he had married again. “Two years ago he took a woman to his brother’s house,” said Ms. Ismoilova, her hand trembling as she lifted a cigarette to her lips. “That’s when my life ended, when I became a first wife.” Ms. Ismoilova said she could not have imagined her present circumstances when she married 11 years ago." By Ilan Greenberg, N.Y. Times Link to Article (last visited 11-13-06 NVS)

November 14, 2006 | Permalink | Comments (0) | TrackBack (0)

Child Welfare Settlement in New Jersey

"New Jersey has spent $7.5 million to settle a lawsuit over a child welfare case in which a 7-year-old boy’s mummified remains were found in a basement here. The payout, arranged last year but only recently announced, is the second-largest made by the State Division of Youth and Family Services over child welfare mistakes, according to state officials." AP, N.Y. Times Link to Article (last visited 11-13-06 NVS)

November 14, 2006 | Permalink | Comments (0) | TrackBack (0)

Family Members Steal Identities

"In the five years since his divorce, Eric Wagenhauser had moved on with his life. He had remarried and was sharing custody of the three children from his first marriage. Then, last year, Mr. Wagenhauser discovered a new wrinkle on American divorce: his former wife had used the children’s Social Security numbers to apply for nine credit cards in their names. She obtained two. Mr. Wagenhauser’s ordeal over the next year, which involved police departments in two Texas counties, banks, credit bureaus and the Social Security Administration, is familiar to many identity theft victims — the crime often begins at home. Though most victims never learn who stole their identities, half of those who do say the thief was a family member, a friend, a neighbor or an in-home employee, according to surveys by the Federal Trade Commission and Javelin Strategy and Research, a private research firm. The surveys estimate that 9 million to 10 million Americans have their identities stolen each year." By John Leland, N.Y. Times Link to Article (last visted 11-13-06 NVS)

November 14, 2006 | Permalink | Comments (0) | TrackBack (0)

Malawi Challenge to Madonna's Adoption

"A Malawi judge will rule next week on whether the High Court should hear a legal challenge to pop queen Madonna's interim adoption of a one-year-old boy from the southern African country, a lawyer on the case said. Malawi Judge Andrew Nyirenda said he wanted until November 20 to consider the case and whether an additional plaintiff could join the suit, said Justin Dzonzi, the lawyer representing the alliance of 67 activist groups which began the lawsuit. ``All the parties have been heard and the court has reserved its ruling because the Malawi Human Rights Commission also applied to be part of the case and the judge wants more time before he can make an order,'' Dzonzi said."Reuters, N.Y. Times, Link to Article(last visited 11-13-06 NVS)

November 14, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, November 13, 2006

Chidlren's Mental Health

The National Center for Children in Poverty has released a fact sheet for policymakers, arguing that  mental health problems are widespread among children and that the mental health system is inadequate to meet the needs of children and youth. The fact sheet contains data charts and recommendations. Read the fact sheet (last visited November 13, 2006 bgf)

November 13, 2006 | Permalink | Comments (0) | TrackBack (0)

D & X Procedure Before Supreme Court

Out colleagues at the Law Librarian Blog (a member of the Law Prof Blog network) have provided a comprehensive post of background resources for the consolidated cases of Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382, which challenge the constitutionality of the Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105. The Act  prohibits intact dilation and evacuation procedures (D & X procedure), commonly known as "partial-birth abortions," unless the pregnant woman's life is in danger. Any person or physician found guilty of violating the Act may be fined or imprisoned not more than two years, or both.

Law Librarian Blog Post (last visited November 13, 2006bgf)

November 13, 2006 | Permalink | Comments (0) | TrackBack (0)

ABA and Harvard Co-Host Child Advocacy Conference

Harvard Law School’s recently launched Child Advocacy Program (CAP) will host its first-ever conference, in conjunction with the  ABA Center
on Children and the Law (CCL):

“Promoting Children’s Interests: Preparation, Practice & Policy”
April 13-15, 2007
Cambridge, MA

Pre-conference:  9 AM – 12:30 PM on Fri., April 13
General conference:  1:00 PM on Fri., April 13 through 1:00 PM on Sun., April 15

Conference updates – including session topics and presenters, conference and hotel registration information, and a detailed conference schedule – will be posted on the conference website.:

The ABA has held this conference in prior years and regularly attracted a broad range of practitioners and policy-makers.  With
Harvard Law School’s CAP involved this year, the scope of the conference will be broadened with sessions designed for those in the academic world, including law school deans, legal scholars, clinicians, social scientists, child advocacy programs and those interested in starting such programs.

For more information, email capconference@law.harvard.edu or call

617.496.8852

November 13, 2006 | Permalink | Comments (0) | TrackBack (0)

Friday, November 10, 2006

International Recognition of Same Sex Unions

Mexico:

Mexico City's assembly on Thursday voted for the first time in the country's history to legally recognize gay civil unions, a measure that will provide same-sex couples with benefits similar to those of married couples. The mayor was expected to sign the measure into law.   Read the New York Times article (last visited November 9, 2006 bgf)

South Africa:

A parliamentary committee approved proposals for same-sex marriages in South Africa on Thursday, clearing the way for the passage of legislation that would be unique on a deeply conservative continent.  Read the New York Times article (last visited Nov 9, 2006 bgf)

November 10, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 9, 2006

Arguments on Federal "Partial Birth" Abortion Ban

"Two hours of oral argument on a federal "partial birth" abortion ban at the Supreme Court yesterday showed that the justices are intensely focused on the procedure's medical details and health implications -- but produced few clues as to how they might rule. As expected, the court's four most liberal members, Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, sounded skeptical about the statute. Of the court's conservatives, only Chief Justice John G. Roberts Jr. said much at all, asking questions that implied the law should be upheld. That left plenty of time for Justice Anthony M. Kennedy, whom both sides in the case consider the likely swing vote, to listen to the lawyers and air his concerns -- though he did not tip his hand."By Charles Lane, Washington Post Link to Article (last visited 11-8-06 NVS)

November 9, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Man Jailed for Planning to Kill Ex-wife Seeks Relief from Child Support Payments

"A Toronto-area man, already serving a four-year sentence for plotting to kill his ex-wife to get out of paying child and spousal support, is now using his incarceration as an excuse to avoid the payments. Ronald Schulz pleaded guilty earlier this year to conspiracy to commit murder, admitting he hired a hitman to break his ex-wife's neck. The "hitman" was in fact an undercover police officer, and Schulz ended up in prison. In court this week, however, Schulz argued he still can't pay for support due to his incarceration, an argument that his ex-wife's lawyer called the ultimate in audacity." Reuters, Yahoo News Link to Article (last visited 11-8-06 NVS)

November 9, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Student-Moms Take Kids to College

"BRENNA WELSH, who is 4 years old, thinks she lives in a hotel and eats dinner at a restaurant every night. That the hotel is a modest three-story dormitory and the restaurant a college cafeteria is unimportant to her. That she is able to live with her mother, Nicole Welsh , 29, and 6- year-old brother while her mom works toward her degree makes her happy and ambitious. “When I get big,” she says, sitting in a child-size chair in the dorm’s day care center, “I’m gonna clean my room.” Evidence of children is sprinkled throughout the campus of Wilson College. A women’s liberal arts school in south-central Pennsylvania near the West Virginia border, it is home to 400 full-time students, 20 of them mothers." By Jane Gordon, N.y. Times Link to Article (last visited 11-8-06 NVS)

November 9, 2006 | Permalink | Comments (0) | TrackBack (0)

Human Rights Watch Issues Report Regarding Violence Against Women and Girls

"Discriminatory laws, traditional practices and a severe shortage of emergency shelters combine to perpetuate violence against women by their family members and intimate partners in the Palestinian territories, according to a report to be issued on Tuesday by Human Rights Watch, a New York-based advocacy group. The report, based on interviews over the last year with victims, police officers, social workers and officials of the Palestinian Authority, says that while there is “increasing recognition of the problem” of violence against women and girls, “little action has been taken to seriously address these abuses.” In fact, the report says, “there is some evidence that the level of violence is getting worse, while the remedies available to the victims are being further eroded.”" By Steven Erlanger, N.Y. Times Link to Article (last visited 11-8-06 NVS)

November 9, 2006 | Permalink | Comments (0) | TrackBack (0)

Guatemalan Adoptions

"Guatemala, where nearly one in every 100 children is adopted by an American family, ranks third behind much larger nations, China and Russia, when it comes to providing babies to American couples. The pace of adoptions and the fact that mothers here, unlike in other places, are sometimes paid for their babies have brought increasing concern and the prospect of new regulation that may significantly reduce the number of Guatemalan babies bound for the United States next year, or end it altogether." By Marc Lacey Link to Article (last visite 11-8-06 NVS)

November 9, 2006 in Adoption | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 8, 2006

Other Family Law Election Issues

North Dakota's Shared Parenting ballot initiative, which would have created a strong presumption for joint custody, was defeated.  See the Minot Daily News

South Dakota's abortion ban was also defeated. (Read about it from Reuters)

Nov. 9, 2006 bgf

November 8, 2006 | Permalink | Comments (0) | TrackBack (0)