After being raped, an unmarried woman finds she is pregnant. She wishes to give the child up for adoption, but under current law she must first prevail on the birth father to give up his parental rights — and as a condition of doing so, he demands that she not testify against him. Does this sort of thing really happen? A lawmaker and a reporter in North Carolina investigate and find that, yes, it does seem to (Ruth Sheehan, “Rapists lose facet of power”, Raleigh News & Observer, Sept. 6). P.S.: I, Gadfly raises an important point, namely, how should the law deal with the fact that not all rape accusations are accurate and some are even made tactically? The Raleigh newspaper’s account indicates that the North Carolina legislation cuts off the parental rights of rapists only on conviction, which minimizes the damage done by false accusations, but also suggests that the law may be without effect in the type of case that caused outrage in the first place, in which avoiding conviction is the whole point of the abuse.
Posts Tagged ‘family law’
California grandparents get visitation rights
State legislation is often reactive, suffering from the belief that no problem can possibly be made worse by creating a “remedy” for it in the judicial system. A few years back, a number of grandparents anecdotally and adversely affected by a child’s divorce mounted an effective publicity campaign calling for new laws, destined to pass because of the absence of an organized counter-lobby of citizens wishing to preserve their future parenting decisions from judicial micromanagement (Oct. 21, 2002). Thus, California Family Code ?? 3103-3104 permit grandparents to litigate visitation rights if a child’s parents divorce, even on the objections of both parents. It also permits the litigation of collateral issues arising from the existence of grandparents’ visitation rights, including using such rights as a “factor” to order a change of residence of the child (? 3103(f)) or providing for the resolution of additional child support issues relating to the grandparents’ visits (? 3103(g)). The possibility of such litigation is not an insubstantial bargaining chip, given that other California family law permits the court to order one spouse to pay the litigation expenses of both spouses. The law is in the news because one such litigation made it to the California Supreme Court, which upheld the constitutionality of the law in a 4-3 decision in In re Marriage of Harris, distinguishing it from a broader Washington state law struck down by the U.S. Supreme Court in 2000 in Troxel v. Granville. (Maura Dolan, “Court Backs Rights of Grandparents”, L.A. Times, Aug. 24; Bob Egelko, “Custody ruling backs grandparents’ rights”, San Francisco Chronicle, Aug. 24; David Watson, “Statutes on Grandparent Visitation Pass Constitutional Muster”, Metropolitan News-Enterprise, Aug. 24) (via Bashman).
“Deadbeat” dads: how many in jail?
The Department of Justice “states that 2,078,570 people were incarcerated ‘in Federal or State prisons or in local jails’ as of June 30, 2003.” How many of them were fathers behind on their child support payments? It seems impossible to get a firm answer to that question, or even a decent estimate. Some such fathers are genuinely able to pay but are expressing contumely toward the court; others, however, appear to have landed in a latter-day equivalent of debtor’s prison. “Their employment prospects sink with each imprisonment, even as their child support debt rises.” (Wendy McElroy, “In Defense of ‘Deadbeat’ Dads”, FoxNews, Aug. 4).
And, of course, parents wind up in jail for nonfinancial offenses too. A “Virginia mother was sentenced [Aug. 12] to 10 days in jail for defying a court order not to smoke in front of her children.” After spending four hours behind bars Tamara Silvius was released on bond for purposes of appealing the order. (Sue Anne Pressley, “Mother Who Smoked Near Family Gets Jail”, Washington Post, Aug. 13).
Canada: dog alimony arrives
“For the first time in Canada, a court has ordered a man to give his ex-wife monthly support payments for their dog. Kenneth Duncan, a truck driver in Edmonton, was told to pay $200 a month in alimony towards the upkeep of Crunchy, a St. Bernard. …Had Crunchy been a child, the monthly payment would have been $691.” (“Albertan ordered to pay ex-wife $200 a month for pet support”, CBC News, Aug. 10). More on pets in divorce: Feb. 17, 2003; May 14-15, 2002.
Update: Virginia primitive, take 6
More developments regarding Virginia’s antigay law, much criticized in this space (see May 31 and links from there): the state’s Attorney General, Jerry Kilgore, has put forth an opinion (which of course does not bind the courts) construing the statute narrowly so as not to restrict persons of the same sex from entering private contractual arrangements that convey any “rights or privileges not exclusive to the institution of marriage”. (“The law”, Style Weekly (Richmond magazine), Jun. 30; Lisa Provence, “Not gay: Marriage affirmation sparks protests”, The Hook (Charlottesville), Jul. 17; Adrian Brune, “ACLU to challenge Va. union ban”, Washington Blade, Jul. 16). The law is already being cited by some attorneys as reasons why persons in Virginia should be considered free to disregard not merely civil unions, but even court orders arising out of such unions, originating in other states. Attorneys for Lisa Miller-Jenkins, who recently moved to Virginia from Vermont after the breakup of a civil union in the latter state, are citing the Virginia law to justify their client’s reported refusal to comply with a two-month-old Vermont court order awarding her former partner, Janet Miller-Jenkins, rights to visit the daughter born to Lisa during their time together. “State law forbids Virginia courts from handling legal custody and parental rights disputes if proceedings are already under way in another state.” (Calvin R. Trice, “It’s Virginia vs. Vermont in custody case”, Richmond Times-Dispatch, Aug. 14; Justin Bergman, “Judge delays ruling on jurisdiction in lesbian custody battle”, Newport News Daily Press, Aug. 13; Jonathan Finer, “Custody Case Puts Lesbian Civil Union On Trial”, Washington Post/National Constitution Center, Aug. 7)(via Tim Hulsey). And some gay residents of the Dominion have reacted to the law by deciding to move away. Update Aug. 25: Va. judge takes jurisdiction of custody case notwithstanding court order (Washington Post). More background on case: Washington Blade, Aug. 20. Further updates Dec. 16 (I challenge conservative commentator David Frum’s description of the case); Aug. 26, 2006 (Vermont Supreme Court rules against Miller); Nov. 29, 2006 (Virginia appeals panel, reversing lower court, rules against Miller).
Opportunistic dad sent packing
According to what the court described as “overwhelming and credible evidence,” Derrick Williams refused to acknowledge that he was the father of Lisa Farmer’s unborn child, or have any contact with Farmer. Then he learned that she’d been awarded $150,000 after being in a car accident that claimed the life of the fetus. Then he decided that he really was a deeply devoted sort of dad after all and claimed half the money. Eventually the Mississippi Supreme Court told him to get lost. (“Mississippi gets it right” (editorial), Chicago Tribune, Aug. 10).
Jacoby & Meyers: zero net worth?
“An accountant tapped to help clean up the state’s matrimonial courts is under investigation by the FBI for allegedly making crooked evaluations in cases before embattled Manhattan Supreme Court Justice Marylin Diamond, The Post has learned. … The feds are looking into complaints about [forensic accountant John R.] Johnson stemming from divorce squabbles in which he evaluated marital assets. The cases in Diamond’s court include the divorces of millionaire lawyer Gail Koff, head of the Jacoby & Meyers law firm, and fashion designer Cathy Hardwick.
“Johnson determined that Jacoby & Meyers had zero net worth — a finding that supported Diamond’s ruling. She had ruled that Koff’s husband, architect Ralph Brill, was responsible for half of the firm’s $8 million debt from tax problems. … Johnson also said that Hardwick’s name had no value.” (Brad Hamilton, “Divorce Expert Eyed for Covering His Assets”, New York Post, Jun. 27). Koff, we note, is the author of the Jacoby & Meyers Guide to Divorce (Henry Holt, 1991).
Supremes dispose of Pledge case on standing grounds
And good for them: “rules about standing, however inconvenient, serve a purpose: limiting the power of the federal courts over our lives and government policies.” (Steve Chapman, “On the pledge, the Supreme Court punts”, Chicago Tribune, Jun. 17). An earlier court ruling had already established the girl’s mother as guardian of her legal interests, and California plaintiff Michael Newdow (who was never married to the mother) should not be permitted to evade that determination by pursuing proceedings in a second court (more on standing).
Double-counting OK in N.Y. child support formulas
Despite objections that it is institutionalizing “double dipping”, New York’s highest court has given its assent to a manifestly unfair practice in family court of counting the same income stream twice in calculating support payments. The issue arises because New York, alone among the 50 states, treats enhanced income attributable to a professional license as community property and awards a share of it to the other spouse. The court may then proceed to assess child support payments on top of that against a non-custodial spouse. In doing so, however, courts have been basing child support formulas on the full professional income stream, even though part of that stream is no longer available, having been awarded to the other spouse. “The immediate effect of the [new Court of Appeals] ruling is that an Albany, N.Y., physician must pay his ex-wife two-thirds of his net income, about $91,000 a year, since his child support calculation ignores the fact that she is already drawing from the value of his medical license.” According to the majority of justices, this result simply follows from the phrasing of the state’s child support statute, and the legislature in Albany is free to change it if it is unfair. Dissenting Justices Robert Smith and Susan Phillips Read, on the other hand, point out that the statute in question “expressly permits departure from its formula to avoid an ‘unjust or inappropriate’ result.” (John Caher, “N.Y. Panel Upholds Disputed Child Support Formula”, New York Law Journal, Jun. 14; Holterman v. Holterman opinion, Jun. 10).
Behind in your child payments? We’ve got a knife here
A Kentucky family court judge is ordering some dads who fall behind in their court-ordered child support payments to choose between going to jail and submitting to a vasectomy. That’s part of a growing trend (see Jan. 7-8, 2003) for courts to issue edicts against procreation, notwithstanding the bad odor that court-ordered sterilization has been in for the past few decades. (Dee McAree, “Deadbeat Dads Face Ban on Procreation”, National Law Journal, Jun. 10). For more on child support, see Feb. 3, Sept. 18, Feb. 25; more.