CheckedOutLawyersBlog

Child Custody Case Argued in Supreme Court, Scalia Looks at Foreign Law

The United States Supreme Court looked at a Child Custody case last week that specifically addressed the rights of parents in international custody disputes.  The Justices have delved into the Hogue Convention on child abduction, a treaty that is generally designed to protect children from being taken to another country without the other parent’s permission. 

The case involved a child who was taken to the United States without the permission of his father who lives in Chile.  The Supreme Court seems to be leaning to siding with the father but several members of the court questioned the unintended consequences that could occur.  An example that Justice Roberts included was a parent who was attempting to take their child out of a country who would be raised under Sharia law.  The case also sparked news in the legal community for Supreme Court Justice Scalia’s use of foreign law in interpreting the constitutionality of the international custody issue, something that Scalia has famously scoffs at.

LA Times

Proposition 8 Being Fought in California Courts, Could Go to Supreme Court

Proposition 8, which was passed in November 2008, recognized marriage as between a man and a woman in the State of California.  The vote followed California’s highest Court’s decision to make gay marriage legal a few months before.  The new case, brought on by two same sex couples who challenge Proposition 8, could have national implications, going all the way to the Supreme Court.

Legal scholars argue that if the court case is a win for gay rights proponents in appeal, the case will most likely go to the Supreme Court because of the historic nature of the decision.  The case, which began Monday, will likely go to appeal regardless of the outcome of the case.  One area of arguments, emphasized by family law lecturer Joan Hollinger, are matters concerning child rearing. Attorneys who are currently arguing for same sex marriage in this case, seek to argue that marriage is a constitutional right and that gays and lesbians are entitled to special protection.  Gay marriage is currently legal in only 5 states along with the District of Columbia.

Reuters

NY Times

Judge Rules Palin Custody Dispute Should Be Open to Public

An Alaskan judge ruled last week that the child custody dispute between Sarah Palin’s daughter, Bristol, and Levi Johnston should remain open to the public.  Bristol Palin fought to make court records private, while Johnston argued that releasing the documents would keep those involved in the proceedings on good behavior.

Although celebrities in the past have had custody disputes with records remaining private, the judge found that keeping the public record did not harm the child involved.  Bristol Palin is seeking full legal and physical custody of their one year old child Tripp.  Probably indirectly referring to Levi’s recent playgirl pictorial spread, Bristol cited Levi’s immaturity as a reason for seeking full custody.  In court records released last week, Levi stressed concern over the proceedings, calling Tripp’s grandmother, Sarah Palin, “politically ambitious” and “has a reputation for being extremely vindictive.” Holiday reunions, described by Sarah on the Oprah Thanksgiving special, seem less likely.

Anchorage Daily Newsstory/1072008.html?loc=interstitialskip

Former NFL Star Travis Henry Involved in Unique Child Support Case

The Georgia Court of Appeals upheld a previous judge's order to use a trust created for child support, which was established because of previous late payments.  Despite the fact that trusts are ordered for parents to benefit children in child support cases, former NFL star Travis Henry was order to create a $250,000 trust for one child, as well as paying $3,000 per month.  The NFL star has nine children.

The trust is unique in George because it was created with the expectation that child support would not be paid based on previous delinquent payments.   Henry's attorney, who appealed with the State Supreme Court, is concerned about a precedent of a judge "seizing assets just in case."  The trust, was to be used to pay for the purpose of payments that were late and would be returned to Henry after the child reached the age of majority. 

Complicating matters, Henry was sentenced to 37 months in prison for which he is currently not generating an income.  Following this, Henry's attorneys have tried to modify payments, arguing that the trust was wrongly established to support payments which may not be due.  The Court of Appeals of Georgia ruled against this claim, saying in part that the trial court judge was justified because of Henry's "mismanagement of assets."

One effect of the ruling is that it affirms, "broad discretion when ruling on child support cases."  Additionally, the decision shows the different outcomes for child support cases; the trust was only created for one of Henry's nine children.  If his other children do not live in Georgia, the court can not enforce actions in other states or use the trust for his other children.

Fulton County Daily Report

Judge Looks at Divorce Case After Madoff

The Bernie Madoff Ponzi scheme scandal, for which Madoff was arrested last December, has made its way into the headlines again.  This time, rather than focusing on Madoff's life in his new home, the news has focused on the settlement of a divorced couple in New York. The question, which was addressed in the court: can a party, who believes that a divorce settlement was based on "mutual mistake" reconfigure a settlement to reflect the current value of the fund?  Manhattan Supreme Court Justice Saralee Evans ruled no, arguing that each parties received the benefits of the bargain.

The judge countered the Plaintiff's reasoning that the funds had no value.  Stating that part of the funds were liquidated to pay off his ex wife's portion of the fund, Evans argued that after the settlement, the portion of the investment could have been redeemed for cash. 

NY Post

NY Law Journal

Clues to Tiger Woods' Legal Strategy

Tiger Woods has hired the firm Lavely & Singer to represent him amidst the backdrop of more women coming out to declare their own affairs with the golf star.  The firm is known in their advocacy for celebrities involved in libel disputes.  According to the National Law Journal, the move signals that Woods is serious about challenging the magazines that publish false statements or photos.

Partner Marty Singer is known for his cease and desist letters, which he directs to tabloids covering his clients.  These letters are motivated to stop publication of “false statements.” If the publisher does publish false statements, a letter can be used as proof that their content was known to be untrue, which can be considered malice in a libel case.  There is no word if this firm will be representing Woods on his divorce proceedings, which according to the Boston Herald, appear likely to occur. 

The National Law Journal

Boston Herald

Getting Visitation as a Grandparent

A Supreme Court decision in 2000 ruled that a Washington state law on child visitation was unconstitutional.  The Washington state law itself was found unconstitutional because it allowed “any person…at any time” to petition for visitation rights if it was in the best interest of the child.   Interpretations of this law have varied by states and have resulted in different rights for grandparents seeking visitation.

The US Supreme Court ruling had a significant impact on Iowa’s interpretation of visitation rights for grandparents.  Currently, grandparents who wish to see their grandchildren and are not allowed to do so by the child’s parent must prove by clear and convincing evidence that a substantial relationship with the grandchild exists, the custodial parent is unfit to make the visitation decision, and that visitation is in the best interest of the child.  Another barrier that the Iowa AP cites is that judges often presume that parents who are determined "fit" act in the best interest of their children, and that there is not a need to enter further into the family sphere.

The necessity of proving that the parent is unfit is a standard that can add many barriers to visitation.  For example, grandparents who are allowed to see their grandchild occasionally would need to take legal action to prove that the parent was not fit.  This could hamper a relationship that may be dependent on infrequent visits.  Advocates in Iowa are looking to other states' interpretations of the Supreme Court decision, including Ohio.  In Ohio, grandparents must prove that visitation is in the best interest of the child, the Court must give deference to the reason the parent states for not allowing visitation, and there is no such thing as a parental fitness test.  

Iowa Department of Aging

Recent Massachusetts Case: Retirement is Not a Reason to Stop Alimony Payments

A recent Massachusetts case gained headlines because of the contentious question raised: Can a man or woman who is responsible for alimony payments relinquish alimony payments because of retirement?  The Supreme Judicial Court of Massachusetts upheld the probate court’s decision that a former spouse may have to keep paying alimony after retirement.

The courts decision signals that retiring may be part of a consideration for alimony payments, but that it is not the only consideration.  Factors that are also considered include the length of marriage and financial status of the two parties. Justice Ralph D. Gants stated that in some cases a spouse “may be expected temporarily to postpone retirement or to find part-time work to help the recipient spouse weather difficult financial circumstances.’’

Boston Globe

Some Current Challenges for Same Sex Married Couples

In October 2008 the Supreme Court of Connecticut gave same sex couples the right to marry.  According to the Connecticut Law Journal, same sex couples married in Connecticut are currently facing many legal obstacles that heterosexual married couples married in the same state are not facing.

Same sex couples married couples who choose to be married in Connecticut but who decide to reside in a state that doesn’t recognize same sex marriage are unable to divorce.  In Connecticut, one or both partners must be a resident of the state for at least one year before a divorce is granted.  This is the same for all married couples in Connecticut, but it poses a challenge to those same sex couples who want to be married but do not want to uproot their families who live in another state.

Additionally, same sex married couples are not afforded federal benefits of marriage that heterosexual married couples are afforded.  For example, same sex couples are presently not able to receive social security benefits after a spouses’ death.  A recent lawsuit in Massachusetts is challenging this in the suit Kerrigan v Commissioner of Public Health, which challenges the constitutionality of the Defense of Marriage Act since it does not recognize same sex marriages.  

Text Message at Your Own Risk

Public figures like Senator Ensign and Tiger Woods are making headlines for recent affairs.  And because of that, more of these transgressions are making their way through the public domain through racy texts.  Text messaging is becoming a new way spouses are identifying mates who cheat, and it can become a defining factor for divorce cases.  Text messages have changed dynamics of the courtroom, as the transgressions are more visible and undeniable as technology has evolved. As family law specialist Mitchell Karpf said it succinctly, “It's right there in black and white what has transpired, and there's no going back from that.”

ABC News