Family Law Prof Blog

Case Law Development: Parental Access to Child's Mental Health Records in Custody Actions

The Iowa Supreme Court recently held that a parent’s statutory right to access to her child’s mental health records could be limited by the child’s best interest.   In that case, Mother had pled guilty to assaulting one of the children and, after custody was transferred to Father and Mother was denied further contact until 2012, Mother sought the mental health records of the children from the social worker who had been their therapist prior to the custody modification.  The court held that Iowa statues prohibited licensed social workers from disclosing information acquired from a client without his or her consent.  In interpreting that statute, the court found that “the legislature did not exclude minors from the physician-patient privileges established under [the act].”  While the court acknowledged that parents normally can consent to the release of their child's mental health records,” and that Iowa statutes appear to provide parents a right to these records, the court found that neither the statutes nor the common law “does not give either parent an absolute right to those records. . . . the best interests of the child always prevail. … Similarly, the rights given to parents under [the Iowa code] are tempered by the overriding principle that when dealing with a matter concerning a child whose custody was determined by a court decree in a dissolution-of-marriage action, the first and governing consideration a court must apply is the best interest of the child.”

The court agreed that the release of the records was not in the children’s best interests.

Harder v. Anderson, Arnold, Dickey, Jensen, Gullickson and Sanger, L.L.P., Iowa , No. 08-0475, 4/17/09). (last visited April 27, 2009) bgf

Case Law Development: Access to Parental Mental Health Records in Custody Actions

In the continuing battle over the role of psychological experts in custody actions, courts have been called upon to examine the balance between the broad scope of discovery in these actions and the right of privacy in mental health records. In a case in which a Father sought Mother's mental health records in order to support his claim for modification of custody, the Pennsylvania Superior Court held that, even though a court has statutory authority to order a parent to submit to a mental health evaluation does not mean that it may require the parent to disclose existing privileged mental health records. While the court did not find these records to be covered by physician/patient privilege because the records were not confined to communications for the purposes of treatment, the court did find that the broader privacy provisions of the state Mental Health Procedures Act did cover the records.  Moreover, the court concluded that “less intrusive means exist for the trial court to make a determination as to Mother's suitability as a custodial parent, rather than releasing Mother's privileged mental-health records … and vitiating her statutory right of confidentiality.”

Gates v. Gates, 2009 Pa Super 40 (March 10, 2009) (last visited April 27, 2009 bgf)

Undocumented Immigrants and the Battle for Custody

The New York Times reports today on the legal struggles faced by immigrants caught up in enforcement raids, who then face a loss of custody of their children. As the article characterizes the problem, "crackdowns against illegal immigrants thrust local courts into transnational custody battles and leave thousands of children in limbo."  The article reports on several current cases before the courts including a case currently before the Nebraska Supreme Court in which a mother had her parental rights terminated to her child after she was detained pending deportation.

To learn more about the issue, see "Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families", 43 Wake Forest L. Rev. 391 (2008) by Professor David B. Thronson of UNLV Law.  The article is available at SSRN. (bgf)

Recent Scholarship: Women's Reproductive Health as a Protectable Interest

Beth Burkstrand-Reid, Visiting Assistant Professor at the University of Illinois College of Law's article: "The Invisible Woman: Availability and Culpability in Reproductive Health Jurisprudence"  will appear in a forthcoming issue of the Colorado Law Review.  In the article, Professor Burkstrand-Reid examines court decisions relating to contraception, abortion and childbirth and demonstrates consideration of women's reproductive health as a protectable interest is declining in reproductive health cases. She argues that this is being accomplished in significant part through application of one or both of two recurring devices. First, judges regularly -- and often inaccurately -- cite the theoretical availability of alternative reproductive health services as proof that women's health won't suffer even if a law curtailing reproductive rights is upheld.  Second, when alternatives are not available, decisions blame women for the lack of availability.

The article is available for download at SSRN

Marriage Abolition?

Douglas Kmiec of Pepperdine appeared on the Colbert show advocating a position akin to marriage abolition.  See more on ConLawProf here.

RR

Fewer Children In Foster Care In NC County Promotes Child Welfare and Saves Money

Guilford County (North Carolina) has employed a multi-prong approach to family preservation, and has reduced the number of children in foster care by 31%.  In this Greensboro (NC) News-Record article, county officials and national experts agree that the children who have remained with their families have avoided the unnecessary trauma of being separated from their families, and note the cost-savings of prevention programs as compared to out-of-home care.

(MIF 04-17-2009)

Second Parent Adoption, DOMA, and Genetic Child

This case presents important questions about the ways in which a child’s “parents” are defined and legally constituted, and how the parent/child relationship can be protected in a transient, cross-border society.  Answers implicate assisted reproductive technologies (ARTs) and an out-dated statutory scheme which fails to anticipate the relations created by those technologies, New York’s evolving jurisprudence of same sex relationships, equal protection, full faith and credit, and the effects of the federal Defense of Marriage Act (“DOMA”) (Pub L No 104-199, 110 US Stat 2419 [1996], codified at 1 USC § 7 [2000] and 28 USCS § 1738C [2000]).  This court concludes that although petitioner already has a legally protected parental relationship with Sebastian and, even in the absence of that legal relationship, could utilize several less intrusive, expensive and time-consuming methods of establishing one, the only remedy available here that will accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law (“DRL”) § 111 et seq.

So begins In re Sebastian, an opinion by New York Surrogate Kristin Booth Glen, in a case that sounds as if it might be a Family Law exam:

Ingrid A. is a Dutch citizen who works at the United Nations.  Mona A. is of Somali/Yemeni heritage, had an international upbringing and practices international law at a New York firm.  Ingrid and Mona have been in a committed relationship for more than eleven years, and on December 24, 2004 they were legally married in the Netherlands. Desirous of establishing a family, and one which would reflect their ethnic and racial diversity, Mona donated her ova which were fertilized  in vitro2 by an anonymous sperm donor chosen for his similarities to Ingrid’s Dutch Italian ethnicity.   The fertilized ovum was successfully implanted in Ingrid’s uterus, and on January 27, 2008 she gave birth to Sebastian, with Mona at her side.   A birth certificate was issued by New York City’s Department of Health and Mental Hygiene naming Ingrid alone as Sebastian’s parent.  Since then Ingrid and Mona continue to live together and co-parent Sebastian, who they consider to be the child of each of them.  Notwithstanding their marriage and Mona’s unquestioned genetic relationship to Sebastian, Mona here seeks to adopt the child.

Glen grants the second-parent adoption as the only way in which the parental rights would be protected across state and national borders, but only after exploring the other possible avenues and concluding that they do not provide sufficient certainty:

Sebastian’s genetic mother has other potential legal avenues:  first, to be listed on Sebastian’s birth certificate; second, with her partner, Ingrid, to execute a statutorily prescribed acknowledgment of paternity [filiation]; and third, to obtain a judicial order of filiation. Only the last of these is presumptively subject to Full Faith and Credit.  This court, however,  lacks jurisdiction to confer legal parentage in any way other than by granting the adoption requested by the parties.  And, although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the entire United States.

 
This is an erudite opinion by Surrogate Glen, former family law professor (and former dean at CUNY School of Law), that is worth reading for professors, practitioners, and students alike. The opinion is available as a pdf here.

RR

Recent Scholarship: Tax Time & Divorce

For your tax time reading, some recent scholarship on taxes and families:

Professor Michael Waggoner of the University of Colorado Law School, argues that similar tax treatment should extend to other support payments, including child support, in his article, "IRC Section 71 May Impoverish Children, Endanger Ex-Wives, and Disrupt Federalism" which appeared in 46 Family Court Review 574 (2008) and is available online at SSRN. 

For an overview of tax policy and family law, see the article by Professor Patricia Cain (Santa Clara) entitled, "Taxing Families Fairly, in 48 Santa Clara L. Rev. 805 (2008) also available online at SSRN.

Professor Theodore Seto (Loyola-LA) argues in "The Unintended Tax Consequences of Gay Marriage", 65 Wash & Lee L. Rev. 1529 (2008) that "the only way to ensure that gay couples will be taxed no more favorably than heterosexual married couples is to list gay marriage as one of the proxy relationships that automatically invokes pertinent anti-abuse rules--in other words, to treat gay marriage as marriage for federal income tax purposes."  The article is available online at the Washington & Lee Law Review website

Same-Sex Marriage: New York

According to a NY Times blog here, New York's Governor Paterson will announce on Thursday morning that he intends to introduce a same-sex marriage bill in the NY Legislature.  States bordering New York have legalized same-sex marriage.

RR

Conference: CHANGING FAMILIES

Conference at:

"Our Changing Families"

Dedicated To The Influential Work of

                                        former [NY Ct of Appeals]

                                      Chief Judge Judith S. Kaye

Date: Friday, April 17, 2009
Time:  8:30 a.m. - 3 p.m.
Location: Albany Law School, 1928 Building, Room 200
Registration:  The symposium is free and open to the public. Registration is, however, preferred. To register contact Lauren Hunt 518-445-3320 or lhunt@albanylaw.edu. 
Continuing Legal Education: This symposium has been certified as a source of 5 credit hours for both transitional and non-transitional areas of professional practice for attorneys in the State of New York. Cost: $75. CLE registration is required.

More info here.

RR

Case Law Update: Tax Time and Divorce

Tax day is around the corner and you and your students may be turning your syllabus to tax issues upon divorce. 

One often-litigated issue is the tax treatment of alimony payments. The tax code provides that alimony will be deductible to the payor and taxable to the payee. 

Characterization issues are the most commonly litigated issue in this area.  For alimony to be deductible it must truly be alimony - as opposed to child support or property division and, for purposes of I.R.C. § 71 and I.R.C. § 215, the support must terminate on ex-wife’s death.  So for example, the tax court in Swening v. Comm'r,  T.C. Summary Opinion 2009-7 (Jan. 8, 2009) held that an ex-husband's unallocated support payments were not deductible because they lacked these essential terms and the state's divorce statutes did not suppy the missing terms.

A recent tax court opinion notes that, in order to take the deduction, the payor must have actually paid the alimony.  In Jonas v. Comm'r, T.C. Memo 2009-49 (March 5, 2009) the ex husband was ordered to pay support to the ex-wife.  While he did not make those payments for two years, he did take deductions for alimony paid.  The IRS disallowed those deductions and it's decision was upheld by the court.  The court held that husband had not made a "payment" by virtue of the fact that husband's property, which had been subject to a lien to secure the alimony, was sold and the proceeds placed in a trust securing the alimony.

Finally, the California court recently addressed a couple's attempt to transfer some of the payee's liability for taxes on alimony: When a marital settlement agreement, which has been incorporated into a divorce decree, requires that Husband pay half of Wife's tax liability resulting from marital support, does the ex-wife have a duty to choose the filing status that will result in the lease tax liability?   The California Court of Appeals recently held that there was not an implied contractual duty of fair dealing in an agreement that has been incorporated into a divorce decree and that it would not imply such a requirement into the decree. Corona v. Corona, (California Court Appeals April 7, 2009)  (all websites last visited April 12, 2009 bgf)

Case Update -- Termination of Parental Rights Vacated Because Counsel Appointed for Parent Only Two Weeks Before Trial

The Michigan Supreme Court issued a decision in In Re Hudson/Morgan Minors on April 8, 2009.

(MIF 4-10-2009)

Science and the Drug Exposed Infant

As part of a program at New York University School of Law recently on Drugs, Pregnancy and Parenting: What the Experts in Medicine, Social Work and Law Have to Say, Dr. Deborah A. Frank, Professor of Pediatrics at Boston University School of Medicine presented a lecture on Prenatal Drug Exposure: What Does the Science Tell Us?   She explores the social meaning of certain drugs and exposes some of the myths laden in the term "crack-addicted babies".  The entire lecture is about 15 minutes and would be especially useful in child welfare classes and clinics.  The video can be viewed at http://www.vimeo.com/3916613 (last visited April 6, 2009 bgf)

Stimulus Funds Available To Prevent Foster Care Placements Due To Inadequate Housing

The National Center for Housing and Child Welfare (NCHCW) has published an issue brief identifying more than $2 billion in stimulus funding available for emergency housing to prevent placement of children in foster care.  Trade journal Youth Today summarizes the issue brief here.

(MIF 04-05-2009)

Same-Sex Marriage in Iowa

Although the Iowa Supreme Court website has "crashed" due to traffic, the first "twitter" reports are that the Iowa Supreme Court has declared the state's opposite-sex only marriage law unconstitutional.

UPDATE:   The opinion is now available as pdf here.

UPDATE:  My analysis is now available on ConLaw Prof Blog here.

RR

Same-sex Marriage Updates

UPDATE: Iowa Supreme Court ruling on gay marriage set for release Friday, story here.

                    

It is being widely reported that the Swedish Parliament,

in a 261-22 vote, approved same-sex marriage.

Meanwhile in the United States, the Vermont Legislature is set to vote on a same-sex marriage bill, a bill which the Governor has stated he will veto.  Vermont has civil unions for same-sex couples.

In Iowa, the wait for a decision on same-sex marriage from their highest court after oral arguments last December continues, and in New York, the highest court has decided to hear cases regarding New York's recognition of out-of-state same-sex marriages.

In West Virginia, the state legislature did not allow a constitutional amendment banning same-sex marriage to proceed.

RR