Family Law Prof Blog

"Aging Out" of Foster Care

"When current and former foster children formed a group to help youths who had turned 18 and were “aging out” of the system, one of the first things they did was hold a luggage drive.
“We saw that a lot of the kids were taking their clothes out in garbage bags,” said Chilton Brown, 23, a former foster child who spent ages 3 to 18 as a ward of the state, bouncing around 15 family homes or group residences.

A life contained in green plastic bags: it is the kind of humiliating detail that hits home hardest among foster youths themselves. It is also a telling sign of how unprepared many of these 18-year-olds are to live on their own, without families, jobs or school diplomas to shore them up."By Erik Eckholm, N.Y. Times Link to Article (last visited 1-29-07 NVS)

World's Oldest New Mother

"A 67-year-old woman who is believed to be the world's oldest new mother told a British Sunday newspaper she lied to a U.S. fertility clinic -- saying she was 55 -- to get treatment. Carmela Bousada said in her first interview since she gave birth to twin boys on Dec. 29 that she sold her house in Spain to raise $59,000 to pay for in vitro fertilization at a California clinic, The News of the World reported.

''I think everyone should become a mother at the right time for them,'' Bousada said in a video of the interview provided to Associated Press Television News." By Associate Press, N.Y. Times Link to Article (last visited 1-29-07 NVS)

Women as "Birth-giving Machines"

"Japan's health minister described women as ''birth-giving machines'' in a speech on the falling birthrate, drawing criticism despite an immediate apology. ''The number of women between the ages of 15 and 50 is fixed. The number of birth-giving machines (and) devices is fixed, so all we can ask is that they do their best per head,'' Health, Labor and Welfare Minister Hakuo Yanagisawa said in a speech Saturday, the Asahi and Mainichi newspapers reported. Yanagisawa reportedly apologized even as he made the remarks, and later told Kyodo News agency the language he used was ''too uncivil.''" By Associated Press, N. Y. Times Link to Article (last visited 1-29-07 NVS)

Separation Agreement Enforced

"THE news earlier this month about how a New York court treated the dissolution of a gay relationship demonstrates how far gays have come in the struggle for marriage equality and how far we have yet to go. The court held that a separation agreement between two men was binding even though they were not married. This is an advance over earlier cases in which such agreements were sometimes deemed unenforceable. At the same time, it falls far short of marriage. The case sounds like a contracts question on the New York Bar Exam. . ." By Kenji Yoshino, N.Y. Times Link to Article (last visited 1-29-07 NVS)

Scholarships Available for AFCC’s 44th Annual Conference in Washington, DC

The Association of Family and Conciliation Courts (AFCC) is offering scholarships to its 44th Annual Conference, Children of Separation and Divorce: The Politics of Policy, Practice and Parenting at the Capital Hilton in Washington, DC.  Twenty conference scholarships, including international scholarships with travel stipends, will be granted.  Additionally, local conference scholarships will be offered to support professionals and graduate students in the conference host community and will be granted to persons living in that community.

AFCC’s 44th Annual Conference, May 30-June 2, 2007 will convene leading judges, mediators, lawyers, parenting coordinators, custody evaluators, court administrators, parent educators, researchers and more.  AFCC conferences are unique because participants do not share a common profession, instead they share a strong commitment to benefit communities, empower families and promote a healthy future for children.  The conference features nearly 70 sessions on the latest topics that impact children and families of separation and divorce and more than 150 presenters from Canada, Taiwan, United Kingdom, Germany, Australia, New Zealand and the United States. 

AFCC must receive all scholarship applications by March 1, 2007.  The scholarship application, conference brochure, online registration and more can be found on the AFCC Conferences page on the AFCC Web site at Link to More Information (last visted 1-25-07 NVS)

Case Law Development: Continuing Tort Doctrine Applies in Measuring Statute of Limitations for Domestic Violence Torts

The statute of limitations on a domestic violence claim does not begin to run until the last alleged act of violence has occurred, the California Court of Appeal has held. The court concluded that domestic violence is a continuing tort, not comprised of distinct torts that trigger a variety of limitations periods upon their occurrence. The plaintiff had sued her estranged husband for assault, battery, intentional infliction of emotional distress and violation of civil rights, alleging that he engaged in a pattern of domestic violence that started a few months after they married in 1989. The complaint included allegations of kicking, hitting, choking, sexual abuse and death threats. The plaintiff claimed the physical abuse ended in April 2001, while the emotional abuse continued until April 2004, two years after she filed for a divorce. The defendant in the action had sought to exclude all references to acts he allegedly committed against his estranged wife more than three years before she filed her complaint.

The court noted that “While we recognize the difficulty a spouse or ex-spouse may have in defending against domestic violence cases, the continuing tort doctrine seems especially applicable in such cases.” The court reasoned that “Most domestic violence victims are subjected to ‘an ongoing strategy of intimidation, isolation, and control that extends to all areas of a woman’s life, including sexuality; material necessities; relations with family, children, and friends; and work,’” Moreover the court noted that the California code of civil procedure states that domestic violence lawsuits must be commenced within three years from the date of the “last act” of alleged violence. The court concluded that “The words ‘last act’ are superfluous if they have no meaning .... By adding these words, we believe the Legislature adopted by statute the continuing tort theory, thus allowing domestic violence victims to recover damages for all acts of domestic violence occurring during the marriage, provided the victim proves a continuing course of abusive conduct and files suit within three years of the ‘last act of domestic violence.’”

Pugliese v. Superior Court, (January 23, 2007)
Opinion on the web (last visited January 24, 2007 bgf)

Call for Unified EU Family Law

The EU must streamline family law across member states' borders, United Kingdom constitutional affairs minister Harriet Harman has said. Speaking in Brussels, Ms Harman said closer co-operation between the EU's legal systems is vital. Almost one in five divorces in Europe now involves couples who come from different countries. Ms Harman urged the EU Commission to propose rules which could work despite differences in countries' legal codes. She said it was important "not just for couples living in separate countries, but above all for their children".

Ms Harman wants see the system streamlined to ease the trauma of divorce for all those involved.

Read the BBC's Report on her recommendations. (last visited January 24, 2007 bgf)

Late-Life Divorce Research Published

Author Deirdre Blair, has released a new book: "Calling It Quits: Late Life Divorce and Starting Over."  Blair interviewed more than 400 ex-wives and ex-husbands, aged 50 to 83, who had ended marriages that had lasted anywhere from 20 to 60 years. She also talked to adult children of older divorced parents. The book explores what an AARP Magazine survey referred to as the "groundbreaking" and growing trend of late-life divorce and provides an insider look at life in the years after the end of a long-term union.

Read about the book from the Hartford Courant. (last visited January 24, 2007 bgf)

Case Law Development: Tennessee Court Orders that Daughter Be Returned to Chinese Parents after Seven Years in Custody of Foster Parents

The Tennessee Supreme Court has ruled in the case of Anna Mae He (see Nov. 27, 2005 Family Law Prof post) reversing the termination of the parental rights of the Chinese couple who seven years ago had given their daughter to a couple in Tennessee for foster care. The trial court had predicated the termination on the ground that the parents abandoned A.M.H. by willfully failing to visit her for four months. The Tennessee Supreme Court held that, "because the undisputed evidence shows that there was animosity between the parties and that the parents were actively pursuing custody of A.M.H. through legal proceedings during the four-month period immediately preceding the filing of the petition for termination of parental rights, ...the trial court erred in finding a willful failure to visit..... we conclude that the parents’ consent to transfer custody and guardianship of A.M.H. to the appellees was not made with knowledge of the consequences of the transfer. Therefore, according the parents those superior rights to the custody of their child that constitutional law mandates, only a showing of substantial harm that threatens the child’s welfare may deprive the parents of the care and custody of A.M.H. Although A.M.H. has now been with the appellees for more than seven years, six of those years elapsed after the parents’ first unsuccessful legal filing to regain custody. Evidence that A.M.H. will be harmed from a change in custody because she has lived and bonded with the Bakers during the pendency of the litigation does not constitute the substantial harm required to prevent the parents from regaining custody."  The Court remanded for determination of a reunification plan.

In Re Adoption of AMH, January 23, 2007
Opinion on the web  (last visited January 24, 2007 bgf)

Also read news stories on the decision from the New York Times; USA Today; and the Memphis Eyewitness News (includes video interviews)

Case Law Developments Return

Thanks to readers (and to my fellow editor) for your patience with my extended winter break.  Case Law Developments resume today.  Also starting today look for a new feature for the blog: teaching resources.  Look for materials and methods to engage your family law students and enrich their learning.

BGF

Teaching Resources: Teaching Empathy for Victims of Domestic Violence

Many family law profs consider teaching Domestic Violence 101 in the basic family law course a necessity, but find the subject difficult to convey in the limit number of class hours one can devote to the course.  Legal doctrines and trends protecting victims of intimate violence often fall on ears deafened by the insistent question "Why doesn't she just leave?"

Here's a fabulous resource for an experience that students can work through in one hour's class time that will help them to appreciate the barriers victims face in leaving abusive situations.  The simulation requires the students to walk "In Her Shoes" recounting the choices and barriers faced by women in a variety of circumstances.  Students assume and experience the roles of diverse battered women as they seek assistance from a variety of resources (set up as "stations"). Each represents an institution or service that women encounter when they attempt to escape, such as courts, doctors and shelters. Each station may be a resource, or a barrier.

The simulation, which includes instructions for setting up the program and debriefing the students after the experience, can be obtained from the Washington State Coalition Against Domestic VIolence.

bgf

Case Law Development: Bifurcating Judgment Precludes Appeal

A recent inquiry from a reader asked whether bifurcated judgments in divorce actions may be separately appealed.  Here is at least one court's answer...

Rather than simply enter temporary orders, a divorce court will sometimes bifurcate a divorce judgment, granting divorce or child custody for example, and reserving judgment of financial issues pending more factual development or hearings.  However, the Illinois court has held that such a bifurcated judgment is not final for purposes of appeal.  In this case, the trial judge entered a judgment of dissolution, divided the marital property, granted sole custody of the children to petitioner, set child support of $1,306.95 a month, and barred respondent from receiving maintenance. However, it "reserved" the issues of visitation, the children's post-high-school educational expenses, and petitioner's maintenance.  Raising the issue sua sponte, the Illinois Court of Appeals held that "The reservation of issues here deprives us of jurisdiction over this appeal."  -- No bifurcating appeals.

Mardjetko v. Mardjetko, 2007 Ill. App. Lexis 3 (January 5, 2007)
Opinion on the web (last visited January 15, 2007 bgf)

Case Law Development: Liability for Child Support Arrearages When Paternity is Disproven

The Arkansas Surpeme Court held recently that  "an individual who was an adjudicated father or who acknowledged paternity, but was later determined not to be the father, shall have the previous finding or establishment of paternity set aside and he shall be relieved of any future obligation of support."  The court refused, however, to find that arrearages could also be set aside.  Here a default judgment had been obtained against the alleged father, who never paid any child support.  When he was brought before the court on contempt charges, he requested a paternity test.  Upon finding that the test excluded him as the father, the court discharged any future child support but held that the statutory language was clear and did not permit discharging past child support judgments.

A dissenting judge argues that "The decision today arguably reaches a grossly unfair result by saddling a person with a past-due support debt when that person has never claimed to be the father of the child and when he has been found, after paternity tests, not to be the biological father." and urges legislative clarification.

ARKANSAS OFFICE OF CHILD SUPPORT ENFORCEMENT V. PARKER,
2007 Ark. LEXIS 28 (January 11, 2007)
Opinion on the web (last visited January 15, 2006 bgf)

Case Law Development: Publicly Admitting Paternity Sufficient to Establish Inheritance Rights

The California Court of Appeals interprets its probate code to provide that "a child born out of wedlock to establish a father-child relationship for intestate succession purposes by providing clear and convincing evidence that the father "has openly held out the child as his own."  Here, the father was aware he had fathered a son and had offered to marry the mother who refused and married another man who had raised the son as his own. When the son was 18 years old he learned of his biological father's identity and established a relationship with the father's family.  Despite the fact that father admitted he was the biological father, was not interested in establishing a relationship with the son and limited his contact with him.  The court held that father's acknowledgement to family members and others that he was the biological father was sufficient to establish his paternity under the probate code -- neither a desire for a relationship with the son nor any formal written acknowledgment of paternity were required.

Estate of Burden, 2007 Cal. App. LEXIS 48 (Jan 16, 2007)
Opinion on the web (last visited January 22, 2007 bgf)

Divorcing Couple Divide House - Literally

The BBC News reports that a bickering New York couple have had a dividing wall constructed inside their home as part of an acrimonious divorce. Chana and Simon Taub, both 57, have endured two years of divorce negotiations, but neither is prepared to give up their Brooklyn home.  Now a white partition wall has been built through the heart of the house to keep the pair apart. Mr Taub asked a judge to allow him to erect the partition when the couple's divorce stalled over financial details.

Read the story and see the picture (last visited January 22, 2006 bgf)

Child Has Three Parents

"Last week, a 5-year-old Ontario boy became a member of a larger family. An appeals court ruled that he has three parents: a father and two mothers.

The boy, who like other members of the family cannot be identified under a court order, has been raised by his biological mother and her partner; the partner was given parental status by the Ontario Court of Appeal last week. The boy’s father has also been involved in his upbringing since birth.

The court decision affirming the partner’s parental rights, which overturned a 2003 trial court ruling, is the latest of a series of legal actions expanding the rights of same-sex couples in Canada. Like those earlier rulings, this one was swiftly criticized by some religious and family groups for undermining traditional definitions of marriage." By Ian Austen, N.Y. Times Link to Article (last visited 1-17-07 NVS)

Mother Awarded $15 Million

"Joel Steinberg, the disbarred lawyer who served 17 years in prison for killing his illegally adopted daughter, must pay $15 million to the girl's birth mother, an appeals court ruled Tuesday.

The appeals court affirmed a lower court decision to award Michele Launders $5 million for 6-year-old Lisa Steinberg's pain and suffering, $5 million for pain and suffering ''as a battered child'' and $5 million in punitive damages.

Joel Steinberg argued the award was excessive and should be reduced because Lisa died relatively quickly, after ''at most eight hours of pain and suffering.''" By Associate Press, N.Y. Times Link to Article (last visited 1-17-07 NVS)

French Baby Boom

"It's almost a ''bebe'' boom: France had more babies in 2006 than in any year in the last quarter-century, capping a decade of rising fertility that has bucked Europe's graying trend, the state statistics agency said Tuesday.

The government trumpeted the figures as a victory for family-friendly policies such as cheap day care and generous parental leave -- many of which were launched under Socialists like presidential candidate Segolene Royal, who was family minister in the early 1990s, and have continued to grow under today's conservative government.

France had 830,000 new babies last year, the highest annual total since 1981, the Insee statistics agency said. That brought France's population to 63.4 million people as of Jan. 1, up from 62.9 million a year earlier." Associate Press, N. Y. Times, Link to Article (last visited 1-17-07 NVS)

New York Urged to Reform Family Court

"Nixzmary Brown was just 7 when she died, one year ago this month in Brooklyn, an apparent victim of brutality at home and neglect by the child welfare system. Since then, the city has added staff, upgraded training and addressed faults in the Administration for Children’s Services. Large problems still need fixing, however, and none so urgently as the city’s Family Court, which state neglect has left in something between chaos and despair.

Incredibly, the court has only 47 judges, a number determined by the state and unchanged since 1991. That is not enough for the court to oversee cases like Nixzmary’s as closely as it should. State legislators should increase the number of judges right away, and Gov. Eliot Spitzer should put the Family Court high on his judicial reform agenda." Editorial, N. Y. Times Link to Article (last visited 1-16-07 NVS)

More Women Live Without a Spouse Than With A Spouse

"For what experts say is probably the first time, more American women are living without a husband than with one, according to a New York Times analysis of census results. In 2005, 51 percent of women said they were living without a spouse, up from 35 percent in 1950 and 49 percent in 2000.

Coupled with the fact that in 2005 married couples became a minority of all American households for the first time, the trend could ultimately shape social and workplace policies, including the ways government and employers distribute benefits.

Several factors are driving the statistical shift. At one end of the age spectrum, women are marrying later or living with unmarried partners more often and for longer periods. At the other end, women are living longer as widows and, after a divorce, are more likely than men to delay remarriage, sometimes delighting in their newfound freedom." By Sam Roberts, N. Y. Times Link to Article (last visited 1-16-07 NVS)