Recently in Family Law Category
Though the two highest Texas Appellate Courts have held that the state had no justification for removing the 468 children from their parents at the Yearning for Zion Ranch, and the trial court lacked authority and reason to issue such an order, the children remain in foster care spread across the state. At a hearing on Friday, trial judge Barbara Walther refused to order the children released and actually walked off the bench in the middle of the hearing when lawyers for the children tried to argue she had no authority to put conditions on the rescission of her order.
is the Opinion of the Supreme Court of Texas holding that the state illegally removed 468 children from their homes on a ranch run by the Yearning for
Alan Milstein
Here is the Opinion of the Texas Court of Appeals holding that the Department of Family Services failed to meet its burden in showing that the 468 children seized from their mothers were in imminent danger of suffering abuse. While the media reports of the living conditions at the compound seemed to suggest a clear case of the state acting appropriately, the actual evidence the state introduced to justify its extraordinary action was pencil thin at best. This included the following:
a) only five of the female children seized were pregnant or had delivered a child and there was no evidence introduced that any pregnancy was the result of a forced marriage or coupling;
b) there was no evidence of abuse of any of the male children seized;
c) there was no evidence that any of the infant, preschool, or preteen girls had suffered or were in imminent danger of suffering abuse; and
d) the much publicized initial phone call was apparently a hoax.
The numerous
Alan Milstein
In today's Sacramento Bee, Peter Schrag has an excellent op-ed article titled "The State High Court's Gay Marriage Conundrum."
On Saturday,
For more information about how to register for this and other classes at Way Gay U, go to the web site at waygay.org
A California Appellate Court has issued an opinion holding that parents who lack teaching credentials cannot homeschool their children. The ruling is a blow to the approximately 150,000
The Court ruled “Parents do not have a constitutional right to home school their children. Parents who fail to [comply with school enrollment laws] may be subject to a criminal complaint against them, found guilty of an infraction, and subject to imposition of fines or an order to complete a parent education and counseling program.”
In the spirit of the holiday, a
Palimony, support paid by one person to another based on a marriage-type relationship and a promise to support. To prove a case of palimony, the person seeking support must establish
(1) that the parties cohabitated; (2) in a marriage-type relationship; (3) that, during this period of cohabitation, defendant promised plaintiff that he/she would support him/her for life; and (4) that this promise was made in exchange for valid consideration.
The principal of palimony rests on the notion that "a marital-type relationship is no more exclusively dependent upon one partner's providing maid service than it is upon sexual accommodation. It is, rather, the undertaking of a way of life in which two people commit to each other, foregoing other liaisons and opportunities, doing for each other whatever each is capable of doing, providing companionship, and fulfilling each other's needs, financial, emotional, physical and social, as best as they are able. And each couple defines its way of life and each partner's expected contribution to it in its own way." Levine v. Konvitz, 383 N.J. Super. 1, 3 (App. Div. 2006).
The concept of palimony makes sense in a society that is defined by indefinable family structures. Also, from a public policy stand point, it makes sense to place the burden of supporting another on the person who created the dependency, rather than shift the burden to society by forcing a dependent person to rely on public assistance. However, the flip side of the coin makes me think that palimony creates greater rights in non-married people than married couples have.
In a recent 3rd Circuit Court decision, Carino v. O'Malley, the Federal Court held that cohabitation is not an indispensable element of a claim for palimony. In this case, the parties involved in a romantic relationship were an 18 year old college student and a 55 year old divorced father of 3 children. Over the course of 17 years, they maintained an exclusive relationship. She moved from New Jersey to New York to be closer to her employment and because he convinced her it was more convenient for their relationship. He helped pay for her apartment and he purchased a condominium in New York City. He also provided her with significant cash and paid for her credit cards, health insurance , utility bills and trips the two took together. Furthermore, he made certain promises to her to provide continued financial assistance. The two, however, never lived together. Although the Federal Court applied New Jersey law, as it was required to do so under this case, and recognized that several New Jersey cases held cohabitation to be an indispensable element of a palimony claim, the Federal Court rejected the bright-line requirement. The Federal Court reasoned that the New Jersey decisions were not based upon explicit statements of the Supreme Court, but rather on an interpretation of the Court's definition of a "marital-type" relationship. Shortly after the Federal Court's decision, the New Jersey Appellate Division decided another palimony case, Devaney v. L'Esperance, and again held that cohabitation is an essential element of a palimony claim. The New Jersey Supreme Court heard argument on this recent decision on
In our dynamic society, committed relationships can encompass something other than sharing the same residence. As we know from the advent of civil unions, we certainly have to distance ourselves from long standing notions of the traditional family unit. However, allowing a claim for palimony without requiring cohabitation exposes each one of us to outrageous claims for support. To protect ourselves, do we now have to create a new brand of contract - the "Anti-Relationship Agreement" or the "Friendship Agreement" - just so we all know where we stand?
Matthew Podolnick
Britney Spears allegedly filed for a restraining order against her then current boyfriend Adnan Ghalib, supposedly a member of the paparazzi, because he was informing his agency about her whereabouts. Rather than merely end their relationship, thereby severing his ability to provide his agency with photo ops, Britney took the decidedly aggressive course of action and supposedly filed for protection under California's domestic violence laws. Was Britney's conduct warranted, an over reaction or an abuse of the system?
A person can file a complaint alleging an act of domestic violence and obtain a restraining order in a local Municipal Court or the Family Part of the Court, when the act of domestic violence is between people with a relationship, if that person inflicts one of the following: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment or stalking. Judges routinely issue temporary restraining orders upon the sworn oral testimony of the victim who is not required to be physically present when the person seeking restraints appears to be in danger of domestic violence. The oral statement can be given to the judge over the telephone. Once the temporary restraining order is issued, a hearing is scheduled in front of a judge who then may issue a final restraining order upon a specific finding of domestic violence or dismiss the temporary restraints.
Unfortunately, the domestic violence laws are increasingly used as a sword rather than a shield for which they were intended. As the number of couples filing for divorce exceeds 50%, and as dads' roles in the house as care givers for the children expand and so do their rights to custody, the filing of false domestic violence complaints, by both men and women, grows. False claims are filed in an effort to gain a strategic advantage in the divorce litigation. These false claims, however, trivialize the true suffering of real victims of domestic violence and are an abuse of the system.
Victims of domestic violence need protection and restraining orders can be an important tool. When the domestic violence laws are used inappropriately with greater frequency, however, the real victims are abused again because judges become cynical and may not grant restraints when they are truly warranted. Additionally, children get caught up in the battle between feuding parents and become victims themselves when a false claim is filed because routinely the temporary restraining order prohibits the accused of seeing the children. To compound the growing problem, in a recent Appellate Court decision it was held that even if an alleged victim loses in the Family Court, double jeopardy does not attach and a criminal complaint can be pursued.
Ms. Ferguson and Mr. McKiernan made a deal. He would donate his sperm and would never seek visitation; she agreed his donation would remain anonymous and to never seek parental support. It had all the hallmarks of an anonymous sperm donation except it was a private deal and the parties had previously had a romantic relationship.
Ms. Ferguson soon gave birth to twins. She married and, for five years, honored the deal with Mr. McKiernan. Her bond was hardly her word, however, and she brought suit against the father of her twins for child support. The trial judge expressed his dismay at her dishonest behavior but, because the deal was not binding on the twins, found the agreement was unenforceable and contrary to public policy. The Superior Court affirmed.
The Pennsylvania Supreme Court would have none of it, or at least 3 of the 5 Justices who participated. The Court acknowledged the
Justice Eakin in dissent had it right. “Do these children,” he asked, unlike any other, lack the fundamental ability to look to both parents for support? . . .Is the means by which these parents contracted to accomplish conception enough to overcome that right. I think not.” Neither do I.
