Tuesday, January 22, 2008
Case Law Development: Burden of Proof of Indian Child Welfare Act Element of "Active Efforts" to Reunite
The Nebraska Supreme Court joins those states that interpret the Indian Child Welfare Act to require only clear and convincing proof that "active efforts have been made to provide remedial services and rehabilitative programs" 25 U.S.C. 1912(d) in order to terminate parental rights. Other states have held that this element must be proven beyond a reasonable doubt. The Nebraska Supreme Court analyzes the language of the ICWA and concludes that the higher standard, mandated by the act for other elements of the ICWA, is not required for this element.
Alexander Rhoads of the Iowa Divorce & Family Law Blog reports on the Iowa Supreme Court decision in Schott v. Schott, in which the court held that a trail court could not collaterally attack the validity of a second parent adoption in a later child custody proceeding. The case involved female partners who were parents to two children: one parent was the biological parent and the other had adopted the children. In the custody proceeding following their breakup, neither party challenged the validity of the adoption, but the trial court found that the court granting the adoption had lacked subject matter jurisdiction and dismissed the case. Both parties appealed.
The Iowa Supreme Court held that the collateral attack on the prior adoption was error:
Even if the district court who issued the adoption decrees misinterpreted Iowa’s adoption statute, the adoptions are not void..... an adoption may only be collaterally attacked if the district court granting the adoption lacked jurisdiction over the person or subject matter, or on due process grounds by a natural parent. Since none of those circumstances exist, the districtcourt considering [the adoptive mother's] petition was wrong to declare the adoptions invalid.
Saturday, January 19, 2008
The California Supreme Court resolved a split among the courts of appeals in holding that a juvenile court's error in the procedure used to appoint a guardian ad litem for a parent in a dependency proceeding is subject to harmless error review. The father in this case, facing an action for termiantion of his parental rights, was appointed a GAL in an informal manner, with the trial court asking him if a "second attorney" would be useful to him, but without much further explanation. The Supreme Court found that the procedure did not comport with due process but found the error harmless because the record clearly established father's incompetency. His parentshad already been appointed conservators of his person under the probate code and he was found mentally incompetent to stand trial in criminal proceedings either shortly before or within days after the guardian ad litem appointment.
In re James F., (California Supreme Court January 15, 2008)
Opinion on web (last visited January 18, 2008 bgf)
Friday, January 18, 2008
The Association of Family and Conciliation Courts (AFCC) is offering scholarships to its 45th Annual Conference, Fitting the Forum to the Family: Emerging Challenges for Family Courts, May 28-31, 2008 at the Weston Bayshore in Vancouver, BC, Canada. Twenty-five conference scholarships, including international scholarships with travel stipends, will be granted.
AFCC’s 45th Annual Conference will convene leading judges, mediators, lawyers, parenting coordinators, custody evaluators, psychologists, social workers, researchers and others. The AFCC Annual Conference is the premier interdisciplinary family law, mental health and dispute resolution conference, featuring 80 sessions and 190 presenters from Australia, Canada, Ethiopia, Israel, New Zealand, South Africa, Taiwan, the United Kingdom and the United States. The conference features new programs on domestic violence, the child’s voice, high conflict families, child welfare and decision making, psychological testing, parenting coordination, collaborative law and mediation.
AFCC must receive all scholarship applications by February 29, 2008. The scholarship application, conference program brochure, online registration and more can be found on the AFCC Web site at Link. If you have any questions, please contact AFCC at AFCC website or (608) 664-3750.
By AFCC (last visited 1-18-08 NVS)
"After enduring seven years of beatings from her husband, a young Yemeni-American woman recently fled to a local shelter, only to find that the heavy black head scarf she wore as an observant Muslim provoked disapproval.
The shelter brought in a hairdresser, whose services she accepted without any misgivings. But once her hair was styled, administrators urged her to throw off her veil, saying it symbolized the male oppression native to Islam that she wanted to escape.
Instead the woman, who asked for anonymity because she feared further violence from her relatives, decamped to the Hamdard Center for Health and Human Services in suburban Chicago, a shelter that caters mainly to Muslim women by not serving pork and keeping prayer rugs handy. Such shelters are extremely rare nationwide, activists say, because Muslim Americans only recently began confronting the issue of spousal abuse."
By Neil MacFarquihar, N. Y. Times Link to Article (last visited 1-18-08 NVS)
Tuesday, January 15, 2008
Case Law Development: Can Delays Caused by Child Protective System Provide Basis for Adoption Outcome?
Justices of the California Court of Appeals disagreed over the effect of a two-year delay in terminating a mother's parental rights and in preventing the child's transfer to Florida to reside with her aunt. The majority opinion provides a detailed summary of the delays and difficulties in the case, summarized thus:
This is a dependency case in which a drug-addicted mother was arrested in California and extradited to Florida. Her nine-month-old daughter, who tested positive for opiates and cocaine because her mother was breastfeeding her while using drugs, was placed with foster parents. At the mother's request, her sister did everything she could to have the child placed with her in Florida, but the Florida child welfare authorities refused to expedite the process and almost a year elapsed before the Florida family obtained a foster care license. Meanwhile and inevitably, the child (now almost three years old and a complete stranger to her Florida family) bonded with her foster parents who are eager to adopt her. The dependency court, placing the child's best interests first, terminated the mother's parental rights and designated the foster parents as the child's prospective adoptive family.
The majority noted that the possibilities for mother's reunification were slim given her three-years sentence for her drug conviction. The majority also noted the aunt's reluctance to adopt the child, her limited financial ability to secure health care for the child, and concerns regarding Florida's child protection system's ability to monitor the case. The fact that the child had lived with the foster family in California for over two years and had never met the aunt was equally significant in the majority's analysis.
The dissent's opinion was sharply critical of an approach that did not give greater weight to parental rights and family-preferences in foster placement. The dissent opined that, "The majority's approach gives far too much weight to the amount of time that a child resides with a foster parent, gives inadequate weight to facts that warranted placement of [the child] with her aunt's family, and ignores the insidious effect on the child welfare system of using the failure of the system itself as justification for the termination of parental rights." On the issue of the Florida system's ability to monitor the aunt's care, the dissent sharply noted, "DFCS cited as an additional ground for denying placement with [aunt] and her family that the Florida child welfare system was not up to the job of monitoring [child's] placement with them. Although as Californians, we are confident that we do things better here than anywhere else, we doubt the citizens of Florida would share that view."
This case is a good read for any student studying the dynamics of the child welfare system.
In Re Lauren Z, California Court of Appeals, January 11, 2008
Opinion online (last visited January 14, 2008 bgf)
Case Law Development: Child Born As Result of Implantation of IVF Embryo After Father's Death Not Entitled to Inheritance Rights
Answering a certified question from the US District Court, the Arkansas Supreme Court has held that A child born in a test tube and implanted in his mother's womb after his father's death cannot necessarily be considered as an heir to his father's property. The critical issue according to the court was whether the date of conception for her child should be considered when the embryo was created or when the embryo was implanted in the mother's womb.
The case arose when a mother applied for child insurance benefits for her child implanted and born after father's death. Arkansas social service officials denied her request, saying the child was "conceived" after the father had died. The Arkansas social security administration argued that "conception" was defined as the onset of pregnancy or the implantation of an embryo in the womb. Mother argued that her child was "'conceived' at the time her egg was fertilized by the father's sperm,"
The court said the law on inheritance did not address in vitro fertilization and was adopted before the procedure was developed. But the court declined to offer a legal definition of conception, saying that was "not our role." "Were we to define the term 'conceive,' we would be making a determination that would implicate many public policy concerns, including, but certainly not limited to, the finality of estates." Instead, it urged the state legislature to address the question.
Finley v. Astrue, Arkansas Supreme Court (January 10, 2008)
Opinion online (last visited January 15, 2008 bgf)
Monday, January 14, 2008
By now you've all had a student bring you the news reports of the twins separated at birth who later married not knowing they were siblings. (My students were sending me the article in droves because the fact situation formed the basis for one of the essay questions on last semester's final exam -- they couldn't believe my crazy exam story really happened). The case was brought to public attention in aid of legislative push in Parliament to give adopted children full access to their birth records during a debate on the Human Fertilisation and Embryology Bill. Read the Telegraph story on the legislation. (last visited January 14, 2008 bgf)
Case Law Development: Virginia Court Distinguishes Abandonment in Divorce and Elective Share Analysis
The Virginia Supreme Court found that the trial court did not err in ruling that an estranged husband was not eligible for an elective share of the spouse's augmented estate. The court noted that the record shows that both before and after the parties separated, the husband showed none of the normal indicia of supporting his spouse or of the marital relationship. The evidence was sufficient to support the trial court’s holding that he abandoned his wife prior to and continuing until the time of her death
The decision required the court to distinguish the term abandonment as used in divorce actions wtih the analysis of abandoment in this case:
While the term "abandonment" is similarly defined for purposes of domestic relations and elective share matters, there are significant differences in the analysis of the evidence when resolving the issue in the domestic relations and elective share contexts. For example, as we have noted, the relevant time period for determining abandonment for purposes of [elective share analysis] extends to the time of the deceased spouse's death and is not limited to the moment of separation, or the filing of a petition for divorce, as it is when abandonment is the ground upon which a divorce is sought. ... A second distinction is the effect of the parties' agreement to separate or to seek a divorce. In an elective share analysis, an agreed separation or petition for divorce is relevant evidence of the termination of cohabitation, but is not evidence which defeats a finding of willful abandonment. In contrast, such an agreed separation or divorce petition may preclude a claim of abandonment in a divorce action because a finding of abandonment in that context is based on fault which is inconsistent with parties agreeing to terminate cohabitation or to seek a divorce. With these distinctions in mind, we now turn to the evidence in this case. In this case, the mutual decision to cease cohabitation and Dorothy's divorce petition based on living separately for more than a year implies that the termination of the marital relationship was not the product of willful abandonment but rather an agreement between the parties.
The court found dispositive Husband's conduct during and after the separation in his failure to support or care for Wife.
Purce v. Patterson, (Virginia Supreme Court January 11, 2008)
Opinion online (last visited January 13, 2008 bgf)
Saturday, January 12, 2008
Some time ago, the editorial staff of Family Law Prof decided we would no longer cover celebrity family law problems as a routine matter. However, Professor Joanna Grossman has provided a lovely essay on the Britney Spears family law saga you may wish to share with your students. The essay, "Britney Spears: Why She Lost Visitation Rights, And What Her Case Teaches Us About Family Law" is available at FindLaw's Writ (last visited January 9, 2008 bgf)
A commissioned poll by an online divorce site (Divorce360.com) examines the reasons people divorce. The number one reason people gave for divorce is abuse. More than one in three (36%) divorced Americans cited either verbal or physical abuse as the main cause of divorce. Money, at 22%, is a distant second. Women are more than twice as likely as men (48% vs. 21%) to divorce because of verbal or physical abuse. Men, in turn, are more than twice as likely as women (22% vs. 11%) to cite sex as the cause for their failed marriage.
Read the Divorce360 report (last visited January 9, 2008 bgf)
Friday, January 11, 2008
A recent report by two research institutions, the Center for New York City Affairs at the New School and the Center for an Urban Future reports that the New York Family Court system has been “overwhelmed” by a flood of abuse and neglect cases in the last two years. The report “Against the Clock: The Struggle to Move Kids Into Permanent Homes,” notes that abuse and neglect allegation have increased by 150% in the past two years and that more children are spending longer periods in foster care. "Despite the Permanency Law of 2005 — which aimed to get children out of foster care faster — kids in New York City are staying in foster care longer. For children in foster care for the first time, the median length of stay before returning home rose from 8.2 months in fiscal year 2005 to 11.5 months in fiscal year 2007."
The Maine Supreme Court disagreed over whether a default judgment was appropriate for a father's failure to appear at a Magistrate's status conference. The majority affirmed the trial court's entry of default judgment awarding mother custody based on father's failure to appear at the status conference. The court noted that father's excuse that he was confused about the hearing was not credible. The dissent used the case as an opportunity to criticize the practice of Magistrate's scheduling of repeated status conferences, noting that the scheduling order in this case provided little notice regarding what issues would be determined at the hearing. The dissent commented:
This pre-trial conference scheduling order was not an aberration. It reflected a widespread practice of Family Law Magistrates scheduling repetitive pre-trial status conferences, requiring parties to appear at court, but without any specific objective to be achieved in the court appearance. In a November 2006 report, our Family Division Task Force expressed concern about "too many case management conferences at which little is accomplished." Family Division Task Force Report at 3 (2006). The Task Force noted that "some current scheduling practices indiscriminately promote numerous conferences in pre-and post-judgment family matters." The Task Force report also stated a goal "to reduce the number of magistrate events that do not address substantive issues.
The majority had agreed that there was cause for concern regarding magistrate practices, but concluded that:
While the scheduling of repetitive case management conferences could lead to confusion or frustration on the part of litigants, this matter is hardly a case study in injustice....While critical review of scheduling practices is generally a worthwhile undertaking, the instant matter is not a productive forum for this discussion.
Conrad v. Swan, 2008 ME 2 (January 8, 2008)
Opinion online (last visited January 10, 2008 bgf)
The California Court of Appeals has issused an unpublished opinion that is an excellent case study of the relationship between poverty and termination of parental rights. A presumed father's parental rights had been terminated because he was unable to provide a stable home for his children, even though he had been an involved, caring father and the child protective services had found no harm or threat of harm to them at any time. The court of appeals reversed the termination, holding that the trial court must find that a presumed father is unfit before terminating parental rights. The court commented:
DCFS may not bootstrap the fact that Gerardo was too poor to afford housing, which would not have served as a legitimate ground for removing the boys in the first place, to support findings of detriment, all of which flow directly from the circumstances of Gerardo's poverty and his concomitant willingness to leave his sons in his family's care while he stayed close, maintained familial ties and worked to raise rent money. This is particularly so when DCFS might have assisted Gerardo to obtain affordable housing, but made no effort to do so....It is not up to Gerardo to prove he is a fit parent. Rather, it is up to DCFS to satisfy its constitutional burden to establish, by clear and convincing evidence, that he is not.
In re G.S.R., Cal. App. Second Div. (January 8, 2008)
Opinion online (last visited January 10, 2008 bgf)
Thursday, January 10, 2008
The United States Supreme Court on Monday refused to review a Mississippi Supreme Court's decision affirming a $750,000 damages award for "alienation of affection." The plaintiff Johnny Fitch divorced his wife Sandra after she became pregnant and a paternity test confirmed his suspicions the child wasn't his. He then sued the real father under the alienation of affection statute only on the books in Mississippi and six other states.
The other states with similar statutes are Hawaii, Illinois, New Mexico, North Carolina, South Dakota and Utah.
Fitch v. Valentine, January 7, 2008
Mississippi Supreme Court opinion (January 25, 2006) online
The ABC News Report and video interview with the defendant, his wife and their attorney are available online, including some fascinating interviews with members the public about the underlying premise that a wife is the property of her husband. The Today Show also has a report and video interview online.
The Supreme Court of Wyoming, in a case of first impression, interprets its state paternity statute regarding the impact of a DNA test excluding paternity. The disputed provision reads: "If the scientific evidence resulting from the genetic tests conclusively shows that the defendant could not have been the father, the action shall be dismissed." In this case, father submitted a genetic test excluding his paternity but took no further action. Over a year later, the laboratory contacted the court to notify it that it had discovered an error in the testing -- it had switched samples. When it re-ran the test with the correct samples, defendant was established to have a 99.99% probability of paternity. The court then ordered additional genetic testing, which also pointed to defendant as father.
Father argued that the court lacked any authority to order further testing because the statute required the court to sua sponte dismiss the paternity action once the first test had been submitted excluding him as father. The court found otherwise:
The cases relied upon by RK do not, however, establish that the plain language of Wyo. Stat. Ann. § 14-2-111(f) mandates dismissal in the absence of an appropriate motion. The statute does not establish a timeframe for dismissal, nor does the statute require the district court to dismiss paternity cases on its own initiative. There was nothing to prevent RK from filing a motion to dismiss the paternity action, but RK did not file such a motion until after the court had received information undermining the reliability of the Test 1 results. Stated differently, at the time RK moved for dismissal, the genetic test had not "conclusively" established that RK was not the father. We also note that there is no requirement in the statute that dismissal be with prejudice. In the absence of a dismissal with prejudice, the State could have re-filed the action in August 1994 when the laboratory's error became known. In sum, RK asks this Court to read far more into the statute than is justified by its plain text. The court's failure to dismiss the action, sua sponte, did not violate the plain language of the statute. Accordingly, the paternity action was still pending at the time the laboratory revealed its mistake.
Father also argued that the trial court had applied the paternity statute in effect at the time of the decision rather than at the time the action was filed. The earlier statute had been more generous in the range of evidence permissible to rebut a paternity test. Thus, father argued, the trial court improperly excluded testimony of an expert witness. The Supreme Court agreed that the trial court erred in this exclusion but found it harmless error in the context of the two subsequent genetic tests establishing father's paternity.
RK v. State ex rel. Natrona County, 2008 WY 1 (January 8, 2008)
Opinion online (last visited January 9, 2008 bgf)
Case Law Development: Default Administrative Child Support Order Does not Establish Paternity Sufficient to Support Criminal Non-Support Action
The Supreme Court of Missouri has issued a number of decisions this past year relating to paternity -- requiring greater process to prove or disprove paternity. In its latest decision, the court concluded that the state's child support administrative system was not sufficient process to establish paternity when the order was by default. The court held that, the state failed in its burden to prove the duty to support one's child where there was no final judgment of paternity by a circuit court and, thus, no "legal process" that judicially determined defendant's parentage. In the absence of a circuit court judgment, defendant was not prevented from collaterally attacking the administrative order used to establish his obligation of support that, in turn, served as the basis for this criminal prosecution. Because the State failed to prove that the child had been legitimated by "legal process," the judgment was reversed, and the case was remanded.
State v. Salazar, 236 S.W.3d 644 (October 30, 2007)
Opinion online (last visited November 9, 2008 bgf)
Wednesday, January 9, 2008
The New Jersey Court of Appeals details a "classic palimony" case this week -- a thirty-year relationship between Rosemary Connell and Edward Diehl. Diehl had told Connell that they did not need to get married because they would simply tell everyone they were married, he would buy her a ring, and they would be together "always." They did so and few people knew that they were not legally married. Connell was disabled due to functional blindness, but contributed her disability checks and an inheritance to the family. Diehl made various investments in his own name, raised Connell's son (claiming him as a dependent on his taxes), and made estate plans leaving the majority of his estate to Connell. When the relationship soured, Connell was left destitute.
The court had no difficulty in finding the prerequisites for a palimony suit here. On the question of damages, the court recited the elements for determination of a lump-sum palimony award: "First, the judge was required to determine the reasonable future support Diehl promised to provide. That amount is to be calculated on a weekly or monthly basis. Second, the judge was required to determine the duration of future support. Third, the judge was required to reduce that period of annual future support to a present value lump sum."
The court of appeals reversed the trial court's determination of damages noting several errors:
First, the trial court had based the damages on Diehl's life expectancy rather than Connell's.
Second, the trial court did not explain its findings regarding the amount of Connell's support expenses and deducted from the damages, the value of Connell's food stamps. The court of appeals noted that any palimony award "should provide her with her minimal needs and prevent the necessity of her seeking public welfare."
Finally, as to the division of property, the trial court erred by concluding that no division of property could be made in a palimony suit. While equitable division is not proper, the trial court may divide property based on a theory of joint venture. Specifically, regarding the family home (which was in Diehl's name only but towards which Connell had contributed her $70,000 inheritance), the court of appeals directed the trial court to consider whether the facts supported a finding of a joint venture regarding that house. "If the judge finds that a joint venture existed, he must partition the home. If he concludes otherwise, a mere return of Connell's investment is not equitable. The judge must determine the present value of $ 70,000 as though it had been invested in some reasonable manner, such as certificates of deposit. Alternatively, he may determine its present value based on the appreciation in the value of the family home since it was remodeled. Otherwise, Diehl will have enjoyed the use of Connell's money without recompense. This rationale applies equally to division of the personal property in the family home. At the very least, Connell is entitled to the return of personal property she purchased with her inheritance."
Connell v. Diehl, (January 8, 2008)
Opinion online (last visited January 9, 2008 bgf)
Tuesday, January 8, 2008
Case Law Development: Divorce Litigant's Threats to Kill Judge and Attorneys Not Protected by Attorney-Client Privilege
This case is a window on the divorce attorney's worst nightmare - the client who threatens violence in retaliation for divorce. A divorce attorney heard her client make repeated threats to kill the judges and opposing counsel. The content of the statements is detailed in the opinion. She tape recorded one of these phone messages and called the police. This case would be provide a useful "how would you handle it?" class discussion.
In the subsequent criminal action for threatening a judge, the trial court ruled that "because Defendant did not make the threats to his attorney for the purpose of facilitating the rendition of professional legal services said statements were not covered by the attorney-client privilege." The Utah Court of Appeal's affirmed on the alternative ground of waiver, finding that because client's defense counsel stipulated to admission of the divorce attorney's testimony and the tape recorded conversation, defendant had waived the attorney-client privilege.
(The central issue in the case was whether the threats need to have been communicated to the judge in order to violate the statute. The court holds that they do not.)
Utah v. Jeffrey K. Johnson, 2008 UT App (January 4, 2008)
Opinion will be available at the Utah Court website (last visited January 8, 2008 bgf)
Case Law Development: Temporary Custody Change During Parent's Deployment Becomes Permanent Custody Change
Mother and Father had a joint custody arrangement regarding their child from ages 2 to 10, with child living primarily with Mother in New York with her husband and their child and having substantial visitation with Father in Virginia. When Mother was deployed to Iraq in 2004, Mother sought to have their nine-year-old child live with her husband and son. Father moved for a change of custody. While that action was stayed pursuant to the Service Members Civil Relief Act, the court awarded Father temporary custody. Diffin v. Towne, 787 N.Y.S.2d 677 (N.Y. Fam. Ct. 2004).
When Mother returned from Iraq, the court concluded after trial that primary physical custody should be transferred to Father. While noting that Mother's deployment was not, in itself, a change in circumstances, the fact that the child had adjusted well to living with Father, and that Mother had since divorced, were all factors that made a change in custody in the best interests of the child. Finding no abuse of discretion in this ruling, the New York Supreme Court, Appellate Division affirmed.
Matter of Diffin v. Towne, 2008 NY Slip Op 21 (January 3, 2008)
Opinion online (last visited January 8, 2008 bgf)
For more information on the Service Members Civil Relief Act, see the ABA Family Law Section guide by Mark E. Sullivan, A Judge's Guide to the Service Members Civil Relief Act