Tuesday, July 31, 2007
Many family law textbooks begin with an examination of the definition of "family" -- with zoning law cases taking center stage in the debate. The most recent opinion on the constitutionality of formal definitions of "family" comes from the Iowa Supreme Court, which in a 4-3 decision held that a city zoning ordinance that prevents multi-family dwellings in some neighborhoods does not breach the Equal Protection clause. The split opinion presents great reading for our students.
The case involved a suit by a landlords' association challenging the Ames Iowa single-family zoning ordinance. Ames is a university city experiencing an inflow of students into established residential areas. The landlord association challenged the constitutionality of the ordinance based on its definition of "family" as "Any number of people related by blood, marriage, adoption, guardianship or other duly-authorized custodial relationship."
However the Supreme Court found the definition rationally related to a legitimate government objective and noted that "It is the City's prerogative to fashion remedies to problems affecting its residents.... The court's power to declare a statute or ordinance unconstitutional is tempered by the court's respect for the legislative process."
The dissent argued that the city's family definitions are outdated and unconstitutionally restrictive. "Today it is not unusual to see a group of unrelated single persons living together and sharing expenses.... The simple fact is that in today's modern society the overinclusive and underinclusive examples identified in this dissent and by other courts that have found similar ordinances unconstitutional are closer to the norms than to the extremes,"
Ames Rental Property Association v. City of Ames, (Iowa Supreme Court July 27, 2007)
Opinion online (last visited July 30, 2007 bgf)
In a case that would provide a fine basis for a class discussion problem, the Supreme Court of Iowa considers equitable distribution of asset appreciation in a 15-year marriage. The court held that the trial court had erred in not dividing the increase in the value of both spouses’ premarital assets. The trial court had awarded each spouse the passive increase in the value of their premarital assets but had divided the increase it attributed to marital efforts.
The Supreme Court reversed, finding that marital contributions were of little help in determining what was equitable in a 15-year marriage:
We do not find the parties’ respective contributions to the marriage justify treating the parties differently. Michele’s biggest criticism of Ted is his “failure without good cause to contribute financially to the marriage consistent with his earning capacity.” However, we have never held or even insinuated that spouses should maximize their earning potential or risk being punished in the distribution of the parties’ property.
Iowa is a no-fault state. … It is important to remember marriage does not come with a ledger. … Spouses agree to accept one another “for better or worse.” Each person’s total contributions to the marriage cannot be reduced to a dollar amount. Many contributions are incapable of calculation, such as love, support, and companionship. “Financial matters . . . must not be emphasized over the other contributions made to a marriage in determining an equitable distribution.” … Nor do we find it appropriate when dividing property to emphasize how each asset appreciated—fortuitously versus laboriously—when the parties have been married for nearly fifteen years.
The court did, however, allocate to husband $22,000 of debt that he had incurred after wife’s petition for divorce. Because husband was unable to explain why he had incurred this debt or how it had been spent, the court found it equitable to allocate this debt exclusively to husband. The opinion provides a fine summary of Iowa law on dissipation of marital assets and division of debt.
In Re Marriage of Fennelly, (July 20, 2007)
Opinion online (last visited July 30, 2007 bgf)
The 18th Annual Kids Count Data Book is now available from the Annie E. Casey Foundation. The data book provides national and state-by-state information and statistical trends on the conditions of America’s children and families. Among the key indicators the data book tracks are infant, child and teen deaths; low-birthweight babies, teen births, high school dropout, teens not in school and not working, children living in families where no parent has full-time, year-round employment; children living in single-parent families, and percentage of children in poverty.
Monday, July 30, 2007
Case Law Development: Florida Supreme Court Requires Adoption Agencies to Notify Unmarried Biological Fathers of Paternity Registry
In a decision that clarified a number of issues that had split the Florida appellate courts, the Florida Supreme Court has held that an unmarried father's parental rights may not be terminated based solely on failure to register in the putative father registry. "We hold that the rights of an unmarried biological father in relation to the child, who is known or identified by the mother as the potential father and who is locatable by diligent search, may be terminated based on his failure to file a claim with the Florida Putative Father Registry only if the father was served with notice under section 63.062(3)(a), Florida Statutes (2005), and he fails to comply with the requirements of that subsection within the thirty-day period."
The court did not eliminate the requirement that unmarried father's register in order to prevent the termination of parental rights. "The entire statutory scheme would be frustrated, including the interest in prompt adoption proceedings, if an unmarried biological father could avoid having his parental rights terminated prior to an adoption, even though he failed to comply with the requirements of section 63.062(2). In fact, section 63.054(1) contemplates that the termination of parental rights proceedings will operate against unmarried biological fathers in order to promote finality and certainty by providing that an unmarried biological father must file a claim of paternity with the Registry."
However, the court went on to analyze the notice an adoption agency must provide an unmarried biological father before the statutory registration requirement attaches. The court's statutory interpretation side-stepped constitutional challenges to the paternity registry.
The court noted that registration alone is insufficient to prevent termination of parental rights of unmarried fathers. The fathers must also file an affidavit of commitment in the court in order to establish and preserve his right to be made a party to any proceeding to terminate parental rights and to establish that his consent is required to the proposed adoption.
Heart of Adoptions v. J.A., Florida Supreme Court (July 12, 2007)
Opinion online (last visited July 27, 2007 bgf)
Forbes magazine reports on an Australian twin study indicating that family history is more predictive of divorce than genetic history. "Adults whose own parents had split had nearly twice the risk of going through a divorce themselves, the researchers found. But there is no "gene" for divorce, so to speak, said lead researcher Robert M. D'Onofrio, an Indiana University psychologist. "Genetic factors that influence both generations do not [significantly] account for that increased risk," he said. The findings are published in the August issue of the Journal of Marriage and Family."
Read the Forbes article (last visited July 27, 2007 bgf)
Case Law Development: Ohio Supreme Court rules that domestic violence laws don't conflict with a state ban on gay marriage
Settling an issue that has split the Ohio Supreme Courts (see 2/15/07 Family Law Prof post), the Supreme Court of Ohio has upheld the constitutionality of the state's criminal domestic violence laws as applied to unmarried couples. In a 6-1 decision, the Ohio Supreme Court ruled that the domestic violence law does not conflict with the state's same-sex marriage ban merely because it protects unmarried cohabitants by extending protection to persons living together 'as a spouse.' Chief Justice Thomas Moyer said in the opinion that lawmakers included many groups under the domestic violence law, not just unwed couples, and that describing people's living arrangements isn't the same as creating a law approximating marriage. Ohio's constitutional amendment goes beyond merely prohibiting same-sex marriage but also prohibits the government from creating any approximations to marriage. 'The state does not create cohabitation; rather it is a person's determination to share some of life's responsibilities with another that creates cohabitation,' Moyer wrote. 'The state does not have a role in creating cohabitation, but it does have a role in creating a marriage.' In considering what would be legislation that violates the amendment, the court pointed to civil unions: “The second sentence of the amendment prohibits the state and its political subdivisions from circumventing the mandate of the first sentence by recognizing a legal status similar to marriage (for example, a civil union).”
State v. Carswell, ___Ohio St.3d___, 2007-Ohio-372 (July 25, 2007)
Opinion online (Last visited July 27, 2007 bgf)
Thursday, July 19, 2007
"A FRIEND from business school, just engaged, boasted recently not about the virtues of his wife-to-be but about the Byzantine process he and she had gone through in constructing what he considered the finest of prenuptial agreements, as if there were some sort of poetry in the laborious detail involved in dividing assets and wealth. Months earlier, another friend, who had separated from her husband, told me she’d decided to go back with him, but only after the two of them had constructed a “post-nup” that left no doubt as to how their finances would be divided should they break up again.
I suppose both kinds of agreements are understandable in an era when so many marriages fail, but it seems sadly clear to me that both couples, for all their meticulous planning, had overlooked and ignored the most important point of all. Dividing up money and assets after a marriage falls apart can be a mess, but it’s often nothing compared with the agony and emotional torment of a custody battle — dividing up the children. Money is, after all, only money — you can make it back, you can do with less of it if you need to, you can even file for bankruptcy. But children are not commodities that can be replaced.
Thus, a proposal, based on observation and my own recent experience of divorce: Engaged couples should enter into a new kind of arrangement, one that has nothing to do with houses or cars or the Warhol on the wall but focuses on any children born of the marriage. If two people can contemplate, before they ever marry, the possibility of what Walter Winchell called “splitsville” and agree in advance how they would divide assets, they ought to also be able to make sane arrangements for dividing time with their children."
By James Andrew Miller, N.Y.Times OP-ED Contributor Link to Article (last visted 7-18-07 NVS)
"SOMETIMES when the earth shudders it doesn’t make a sound. That’s what happened in Harrisburg, Pa., recently.
On April 30, a state Superior Court panel ruled that a child can have three legal parents. The case, Jacob v. Shultz-Jacob, involved two lesbians who were the legal co-parents of two children conceived with sperm donated by a friend. The panel held that the sperm donor and both women were all liable for child support. Arthur S. Leonard, a professor at New York Law School, observed, “I’m unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child’s support and are also entitled to visitation.”
The case follows a similar decision handed down by a provincial court in Ontario in January. In what appeared to be the first such ruling in any Western nation, the court ruled that a boy can legally have three parents. In that case the biological mother and father had parental rights and wished for the biological mother’s lesbian partner, who functions as the boy’s second mother, to have such rights as well."
N.Y Times Opinion Link to Article (last visited 7-18-07 NVS)
"A man cannot recoup child support payments he made for a son he later found out was not his own, the state Supreme Court has ruled, overturning lower courts' decisions.
In its unanimous ruling, the justices ruled that the man, identified only as Roy in the lawsuit, was not entitled to payments he made since his 1980 divorce because state law required such a challenge to be filed before the child turned 23 years old.
The court ruled that even though the man found out only long after his son turned 23 that he was not the father, it wasn't enough to force the biological father, identified as Patrick, to pay child support.
''This is a sad, heartbreaking case of a man who learned that an essential truth had been withheld from him for thirty years,'' wrote Justice Barry Albin. But the court thought that lawmakers envisioned such a scenario when creating the Parentage Act."
AP, N.Y. Times Link to Article (last visited 7-18-07 NVS)
Tuesday, July 10, 2007
"Marquette University Law School is proud to announce the First Annual Dispute Resolution Works in Progress Conference, October 19 – 20, 2007, an opportunity for scholars from all over the country to meet others who are teaching and researching in dispute resolution. Join us and present your recent scholarship or works in progress, get feedback from colleagues, and learn about other research projects underway. Although we encourage you to share your current endeavors, you do not need to be a presenter to attend.
No registration fee is required, however you must register by August 3rd in order to attend. You can register through the Conference website, which also includes links to hotels in the area. We will provide breakfast and lunch both days of the conference; you are responsible for making your own hotel and travel arrangements. Titles and abstracts should be sent to Natalie Fleury at [email protected] by August 3rd. Full papers or any other materials to be distributed are due no later than September 14th. PowerPoint presentations must be submitted by October 15th and presenters must provide their own handouts. If there are a large number of proposals for presentations, priority may be given to those who submit early.
We look forward to seeing you in October!" From Professor Andrea Schneider
Friday, July 6, 2007
"The authorities in California are investigating accusations that poor health care at a center where mothers serve prison terms with their young children led to the stillbirth of a 7-month-old fetus and endangered the lives of several children.
Staff logs, statements by prisoners and interviews with investigators, staff members and prisoners’ families depict a facility where inmates and their children were denied hospital visits and medications, and where no one kept adequate records of accidents involving injuries that included a skull fracture and a broken collarbone.
The California Department of Alcohol and Drug Programs, one of several agencies investigating, is expected to decide this month whether to continue licensing the center, which houses nonviolent offenders, most convicted of drug crimes."By Solomon Moore, N.Y. Times Link to Article (last visited 7-6-06 NVS)
Tuesday, July 3, 2007
"Doctors have removed eggs from young female cancer patients and -- for the first time -- brought the eggs to maturity before freezing them, giving the girls a better chance to one day have children. Previously, scientists had thought viable eggs could only be obtained from girls who had undergone puberty.
''We didn't expect young girls to have eggs that could withstand the process of maturation,'' which involves adding hormones, said Dr. Ariel Revel, who led the research at the Hadassah Hospital in Israel."
By Associated Press, N.Y. Times Link to Article (last visited 7-3-07 NVS)
"Lost love carries no refund, even if you have a receipt. The Utah Court of Appeals rejected an ex-fiance's request to recover thousands of dollars spent during his engagement on a vasectomy, a cruise to Alaska, a trip to France and other purchases.
Layne D. Hess sued Jody Johnston after she returned an engagement ring to him in April 2005 and called off a wedding planned for that summer. Hess accused her of unjust enrichment and breach of contract, claiming he spent the money because of their upcoming marriage."
By Associated Press, Washingtonpost.com Link to Article (last visited 7-3-07 NVS)
"Nearly half of the country’s lowest-income families suffer from what Harvard’s Joint Center for Housing Studies describes as a severe housing cost burden that places them at clear risk of homelessness. These struggling families often live doubled up with relatives and spend more than half of their pretax incomes on rent, which means that they keep a roof over their heads only by cutting back on food, clothing and medical care.
The affordable housing crisis was accelerated during the 1980’s, when the Reagan administration and Congress backed away from a longstanding federal commitment to affordable housing by cutting construction funds and revising the tax structure in ways that discouraged investment in affordable, multifamily buildings. Congress could reverse those disastrous policies and help the most vulnerable families by passing legislation that would create the National Affordable Housing Trust Fund."
N.Y. Times Editorial Llink to Article (last visited 7-3-07 NVS)