Archive for the 'Family Law' Category

Teen Sexting May Land Parents in Hot Water

Quick show of hands, how many people have sent or received from a boyfriend or girlfriend sexually explicit text when they were teenagers? In the age of iPhones, the answer is probably “most young people.” Sexting is so prevalent, it probably cost Hillary Clinton the presidency. The House has recently passed the “Protecting Against Child Exploitation Act of 2017,” (PACEA) a bill which mandates a 15 year prison sentence for anyone who shares sexually explicit material of minors, including the minors themselves. Additionally, PACEA mandates the same 15 year sentence for the parents or legal guardians of the minors who “knowingly permits” the minor to send such text messages.

The proposed bill is noble in its intentions, but the methods are extreme. First, the bill would potentially send minors to prison for more than a decade. A 15 year old girl could find herself in prison until she is 30 years old for the crime of sending a nude photo of herself to her boyfriend. Similarly, her parents could also be spending 15 years in prison if they knew she was sending those photos, but didn’t stop her. Since the prison time is a mandatory minimum, there is nothing the judge or jury can do to change the sentence if any of them are found guilty.

sextingThis bill should draw ire from both the left and the right sides of the political spectrum. For liberals, this bill represents yet another example of why criminal justice reform is necessary. These types of bills are likely to target and affect people who make less income than their wealthier counterparts. Although the bill says nothing about income, the wealthy can probably pay a private criminal defense attorney to fight off bogus charges like these. Poorer citizens can only rely on public defenders, who may become overwhelmed with cases like these. For conservatives, this bill should represent a nanny state attempting to dictate to parents how they raise their children. If the parents can’t discipline the children the way the state wants them to, then the whole family will be thrown in prison.

As stated earlier though, the PACEA does have noble intentions. Child pornography among human traffickers and pedophiles is a serious problem. Catching traffickers would certainly be easier if law enforcement could download the traffickers’ outbox and show the jury everything being sent. Since the PACEA does have a legitimate purpose, a few changes could probably fix a lot of the problems described.

How Can Congress Approve this Bill?

First, letting a judge or jury determine the sentence would help our courts separate childish teens from actual predators. If a 17 year old minor is sending nude videos to her 20 year old boyfriend, the parties should be receiving a fine or community service, at most. On the other hand, if a fifty year old man is expecting a 12 year old girl to send pictures of her chest, 15 years in prison might be too light. Mandatory minimums are usually built into law because citizens don’t trust their legal system to give correct verdicts. Although there might be some cases where the defendant gets off too easily, like Brock Turner, those types of injustices tend to be rarer than cases where the mandatory minimum gives too harsh a punishment.

Second, there is no need to charge the parents or legal guardians with sexting. The biggest reason to make parental neglect a crime in this instance would be to prevent guardians from exploiting their children.  Protecting children from their own parents is a potentially worthwhile goal, but the most serious crime would not be the minor sexting. If a guardian is exploiting a child, the government should be checking the parents’ text messages for incriminating evidence, not the kids.

I’ve been very critical of the PACEA so far, but there is one thing it gets right. Although 20 states have passed anti-sexting laws, there is currently no federal law against sexting despite the fact the technology allows sexting to cross state lines. Federal law covers child pornography, but sexting itself is not a federal offense, even if it can be used as evidence of a more serious crime. The PACEA would potentially fill this void, if it can avoid the more draconian methods currently in the bill.

How to Avoid Losing Child Custody Like Alex Jones

Infowars personality and conspiracy show host Alex Jones has been engaged in a custody dispute with his ex-wife, Kelly Jones, since their divorce in 2005. The couple had three children, ages 9, 12, and 14. Jones is famous for his angry rants on air, during which he talks about topics such as “9/11 is an inside job” or “Sandy Hook is a hoax.” Jones gained prominence last year when Mr. Trump appeared on his show.

At the end of April 2017, the jury awarded the couple joint custody of their children, but with the children’s primary residence changed to their mother’s residence. The ruling was made after almost two years of restraining orders, protective orders, subpoenas, and depositions.

Mr. Jones’s show has been a drag on his custody battle. Ms. Jones’s attorneys have used video tape evidence of Mr. Jones’s rants as evidence that he is mentally unfit to be a parent. They compare Alex Jones to cult leaders and that the children are being turned into cult followers. The father’s attorneys argued to the jury that their client was merely a “performance artist” and that the videos were merely an act.

Unfortunately, Mr. Jones himself never got the memo that his show was merely “satire.” In another video filmed after his attorney’s opening arguments, Mr. Jones proudly announced “I 110 percent believe what I stand for.” A psychologist testified that Mr. Jones was diagnosed with narcissistic personality disorder, a disorder in which the patient has an inflated ego and has a constant need to be admired and a lack of empathy for others.

Alex JonesShould Parents With Mental Disabilities Retain Custody of their Children?

The most interesting issue here, assuming that Alex Jones is not acting, is whether Mr. Jones has narcissistic personality disorderand whether that narcissism would prevent him from properly raising his children.

Custody cases are always to be decided in the children’s best interests. This is the standard in all custody cases and attorneys should always be arguing that time with their client is in the children’s best interests. However, for many years society has made many assumptions about what is best for the children. These assumptions can be unconstitutional if they violate a constitutional right. For instance, firearms can be dangerous to children, but merely owning a gun cannot be said to violate a child’s best interest. Similarly, assumptions about race, religion and gender must often be challenged.

Disorders and disabilities are more difficult for a court to assess. On one hand, having a parent with a disorder or disability might inhibit a parent from being fully able to raise a child. On the other hand, merely assuming a parent is an unfit parent because of a disability would not be valid. For instance, a parent who is wheel-chair bound might not be able to engage in physical sports or run up a staircase to chase a little boy. However, the opposing party must offer proof that the parent’s wheelchair is actually preventing the parent from carrying out his or her parental responsibilities and not just assume that the disability is inhibiting a parent-child relationship.

If Alex Jones has narcissistic personality disorder, the question is whether Mr. Jones’s disorder is causing harm to his children. From the trial testimony, it sounds like Mr. Jones’s issue is that he requires a constant need to be right, even if that need results in him sabotaging his legal fight for his children. Such a personality could be overly dominating, especially for young children. The question for the jury is whether a dominating personality is merely a strict father who wants the best for his children or a man who wants his children to tell him he is right and correct in all things. If it’s the latter, Mr. Jones should not have custody.

There’s a Moral to This Story

So what lessons can we draw from Mr. Jones’s case? First, do not sabotage your attorney, especially if the other side is arguing that you’re insane. Contradicting your attorney is never a good idea, as the opposing side can use your own words against you and your legal team. Second, provide as much evidence as possible. Walking into an attorney’s office and complaining about how crazy your ex-spouse behaves is not nearly as effective as walking into an attorney’s office with witnesses, police reports, or video tape of how crazy your ex-spouse behaves. Of course, not every ex-spouse runs an internet show out of his or her house, but if the behavior is truly that terrible, it might be worth calling the police to get a report.

Abortion: Arkansas Law Hopes to Protect Father’s Rights

A new Arkansas law that will go into effect later this year will allow a husband to sue a doctor in order to stop his wife from getting an abortion. Known as the Arkansas Unborn Child Protection from Dismemberment Abortion Act, or “Act 45”, it prohibits a particular type of abortion known as “dismemberment abortion.” The law provides no exemption for spousal rape.

Historically, Father’s Rights were to Prevent Abortions

abortionFathers historically have no legal rights with regard to their wife or the mother of their child choosing to have an abortion. If a man’s pregnant partner chooses to have an abortion, the father’s consent is not a legal requirement. A woman can choose to abort the pregnancy despite the father’s objections. In fact, the Supreme Court in Planned Parenthood v. Danforth ruled that laws requiring a spouse’s consent to be unconstitutional. The court reasoned that only one partner’s decision on abortion can prevail, and that the balance weighed in the woman’s favor.

Moreover, the Supreme Court concluded in Planned Parenthood v. Casey that the father does not have a legal right to be notified of an abortion. Most women discuss an abortion with their significant other, but those who do not may be in an abusive relationship. Therefore, requiring spousal notification places an undue burden on women who may fear for their safety.

What Kind of Abortion Does the Arkansas Law Stop?

Arkansas Act 45 prohibits a practice known as dilation and evacuation, also known as dismemberment abortion, in which fetal materials are removed from the womb through surgical instruments. It is the safest and most common method of abortion in the second trimester and is used in 95 percent of second-trimester abortions. It occurs after 12 to 14 weeks of pregnancy.

How Will the Arkansas Law Work?

Under the new Arkansas law, a father can sue a doctor to stop an abortion if the wife is in her second trimester and having a dilation and evacuation procedure. This means that the wife is over 12 weeks pregnant. What is controversial about the law is that it allows the father to stop an abortion even if he raped his wife.

Is the Arkansas Law Constitutional?

The American Civil Liberties Union (“ACLU”) of Arkansas argues that it is not. They intend to challenge the new state law as soon as practically possible.

The ACLU argues that the law not only bans what’s considered the safest and most common method of second trimester abortions, but it also does not make any exception for victims of spousal rape. This means that a wife’s rapist husband could sue to prevent an abortion.

Under Roe v. Wade, the Supreme Court established that it is a woman’s right to have an abortion until approximately 22 weeks of pregnancy or when the fetus is considered viable outside the womb. The new law puts a limitation on the woman’s ability to abort before viability, even though it is a guaranteed right. For this reason, it should not be considered constitutional.

Additional Concerns about the Law

While the Arkansas law affords the father more rights, it also strips away rights that have historically been given to the woman. The ACLU is concerned that with the limitation on dilation and extraction abortions, women may opt to use a procedure that is less safe. Such a procedure can put both the unborn fetus and the woman’s life at risk.

Can a Miscarriage Be a Wrongful Death Claim?

A recent decision from the Alabama Supreme Court allows a woman to proceed forward with a wrongful death suit against her obstetrician after suffering a miscarriage.  While the decision has rocked a few boats, the Court only affirmed existing laws that allow a person to sue for the wrongful death of an unborn child.

Miscarriage Wrongful DeathLet’s Check the Facts

Two days after finding out she was pregnant, Kimberly Stinnett experienced abdominal cramping and fever.  After an evaluation that included ultrasound, an obstetrician determined that Stinnett, based on the findings from the evaluation and Stinnett’s prior medical history, was experiencing an ectopic pregnancy.  An ectopic pregnancy occurs when a fertilized egg attaches itself in a place other than inside the uterus, which makes it impossible for a fetus to develop.

The obstetrician performed a dilation and curettage, commonly referred to as a “D&C”, which is a surgical procedure used to determine whether a pregnancy is intrauterine (within the uterus) or ectopic. Stinnett testified that the obstetrician told her, as a result of that surgical procedure, the pregnancy wasn’t ectopic, but that she believed a miscarriage had taken place.  The obstetrician, however, testified that she still had a strong suspicion that the pregnancy was ectopic and therefore ordered a drug commonly used to treat ectopic pregnancy.  The drug is intended to cause the end of pregnancy and was administered to Stinnett.

Stinnett attended a follow up appointment, in which she saw her original doctor.  A follow-up ultrasound showed that Stinnett was having a failing intrauterine pregnancy, possibly as a result of the drug the previous obstetrician had given her.  Several weeks later, Stinnett suffered a miscarriage.

Stinnett brought suit against the obstetrician and claimed:

  • Medical negligence for performing the D&C and administering the drug,
  • That because her pregnancy was not ectopic, the D&C should not have been performed nor should the drug should have been administered, and
  • That the obstetrician’s actions violated the applicable standards of care and proximately caused the loss of her baby.

In addition to her medical malpractice claims, Stinnett claimed wrongful death of her unborn fetus under Alabama’s wrongful death of a minor statute.  The personal injury claims stemming from the medical malpractice suit were allowed to go forward, but the lower court dismissed the wrongful death portion of the suit.  Stinnett appealed.

Why Did the Alabama Supreme Court Allow the Wrongful Death Claim to Move Forward?

Among other arguments, the obstetrician’s main argument rested on the idea that the wrongful death of a minor statute didn’t apply to her due to an exemption within another Alabama statute limiting criminal liability for licensed physicians who, through mistake or unintentional error, caused the death of a previable fetus.  The argument rested on the idea that if criminal liability was exempted, so too should civil liability.

The lower court agreed, but the Alabama Supreme Court ruled otherwise, stating, “[I]t simply does not follow that a person not subject to criminal punishment under the Homicide Act should not face tort liability under the Wrongful Death Act”.  The high court found doing so would, essentially, defeat the purpose (to prevent homicides) of allowing wrongful-death claims based on negligence in the first place.

The court remanded the wrongful death claim back down to the lower court, which means Stinnett has a chance to argue it in front of a jury.

Will She Win?

This case can appear a bit convoluted because it involves both wrongful death, as well as medical malpractice, but they essentially coincide with each other.  Wrongful death suits are brought when a person dies due to the negligence or misconduct of another.  In order to bring a successful wrongful death cause of action, Stinnett will need to prove:

  • The death of a human being,
  • Was caused by the obstetrician’s negligence (or intent to cause harm), and
  • That Stinnett is suffering monetary injury as a result of the death of her fetus (think losing future income from a spouse).

Alabama law allows wrongful death suits on behalf of previable fetuses, so Stinnett will have no problem proving the first element; it’s the other two elements that will be harder to prove.

Medical malpractice is one circumstance a plaintiff can use to prove a wrongful death claim.  If Stinnett can prove that the obstetrician acted negligently in a way that another competent obstetrician in similar circumstances would not have acted, then she’d have a good argument for medical malpractice.

Remember when I said Stinnett filed suit for medical negligence and wrongful death?  Even though the wrongful death suit was originally dismissed, the personal injury claims proceeded forward and a jury found in favor of the obstetrician.  What does that mean?  That the doctor wasn’t liable, which implies she followed the appropriate standard of care.  If that’s the case, then Stinnett won’t have much luck proving a wrongful death claim.

The Alabama Supreme Court noted in their decision that it wasn’t clear whether the jury’s decision rested on the obstetrician’s standard of care or whether it rested on the theory that Stinnett didn’t suffer any damages.  For those reasons, Stinnett has the option to proceed forward and, if she chooses to, she’ll need to prove both negligence with respect to the standard of care and that she suffered monetary injury.

Eggs Benedict Arnold: Sofia Vegara Sued by Her Own Frozen Embryos

Modern Family star Sofia Vegara has been involved in a nightmare of a lawsuit over custody of frozen embryos since 2013, with the lawsuit originally brought in California by Ms. Vegara’s ex-fiance Nick Loeb. In a bizarre twist on the case, earlier this month Loeb brought a right-to-live lawsuit on the same grounds as his California lawsuit in Louisiana. However, the real bizarre twist is that it isn’t Loeb who’s bringing the lawsuit.  Instead, in a first of its kind case, the lawsuit is being brought with the frozen embryos themselves as plaintiffs.  An embryo is, despite the pun in the title, distinct from an egg in that it has been fertilized.

Loeb has decided to name the embryos Emma and Isabella for purposes of their lawsuit.  The suit claims that the embryos are seeking “the right to be transferred to a uterus so they can be born and claim an inheritance” and asks the court to force Vegara to sell custody of the embryos to Loeb. It also, probably not coincidentally, came barely a week before a judge in California ruled on a motion for summary judgment and to sanction Mr. Loeb in a nearly identical case—motions that led Loeb to outright drop his case in California.

It’s also no coincidence that Loeb has chosen Louisiana to plead his case the second time.  Louisiana is the only state in the country that actually has a statute naming embryos “juridical persons.”  Without this statute, Loeb couldn’t pull the stunt he has—having the frozen embryos themselves bring the lawsuit.

Louisiana Law on Frozen Embryos

Louisiana is, without a doubt, among the most harshly restrictive states when it comes to reproductive rights and abortion.  This is probably obvious from the fact that they’re the only state in the nation where Loeb could have brought a lawsuit with embryos as plaintiffs.

Louisiana Health Law goes further than any other state on the issue of frozen embryos—making them juridical persons.  Hearing this, you’re probably asking yourself—“what the heck is a juridical person?”  Basically, a juridical person is any entity other than a natural person that is recognized as a distinct legal entity with its own rights and duties.  It commonly comes up in the context of corporations but Louisiana has extended the concept to frozen embryos, thus allowing them to sue on their own behalf—or even more strangely be sued by others.

Louisiana law doesn’t stop there, these same laws forbid the destruction of frozen embryos and require donors to instead put their embryos up for a sort of “uterus adoption” where the donors renounce their rights in favor of “another married couple.”  So basically, the only option is to renounce rights, and allow another to act as a surrogate to the frozen embryos.  However, “another married couple” is not there for no reason.  The statute only allows married couples to implant the frozen embryos after donors give up their rights to them.

sofia vegara embryos

Perhaps most relevant, if one of the donors implants an embryo and that embryo develops into a child—that child is born with inheritance rights to both donors—in this case Vegara and Loeb.

These rights for frozen embryos in Louisiana—far beyond anywhere else in the nation—have allowed Loeb to bring his lawsuit.  However, like his lawsuit in California, it is not the laws on reproductive rights that are likely to decide the day in court but rather simple contract law.

Who Gets to Decide? Agreements When Freezing a Fertilized Embryo

As you might imagine, deciding to fertilize and freeze an embryo with another person is a huge commitment.  Like any huge commitment, it is one that should be—and usually is—entered into with extreme care and well understood agreements as to how the process will proceed.  Thus, when a couple chooses to freeze a fertilized embryo, there is nearly always a contract which details how and when the embryos may be brought to term.  For example, these contracts usually state whether there needs to be consent from one or both of the donors before an embryo may be brought to term.

Loeb and Vegara are no exception to this general rule and signed an agreement which states that the frozen embryos may only be brought to term with the consent of both of them.  Loeb has argued in California, and certainly will in Louisiana, that the agreement did not address a situation where the two separated.  However, regardless of the scope of the contract, the existence of such a contract means that it will be the first—and potentially last—thing that a court will address in deciding this case.  If the contract is valid then Loeb is bound to its terms and simply cannot demand that the embryos be brought to term without Vegara’s consent.

With this in mind, it’s no surprise that Loeb’s new lawsuit targets the validity of the contract.  Besides the argument to the scope of the contract which failed in California, Loeb has additionally argued that the agreement should be void because it violates Louisiana law.

If there is anywhere that a judge might decide that Loeb’s argument has merit and set aside the contract that has already lost him his case previously, Louisiana is that place.  This case has the potential to set precedent as one of the first cases to deal with the interaction of Louisiana’s reproductive rights law and the enforceability of a contract.

Protecting Your Reproductive Rights

Louisiana, as mentioned already, is the only place in the country to limit a woman’s reproductive rights so substantially when it comes to frozen embryos.  However, this case does serve to highlight the importance of a carefully crafted agreement if you and your partner are considering freezing an embryo.  Generally, a simpler way to go about things is to freeze eggs rather than embryos.  Where eggs are frozen as opposed to fertilized embryos the woman who provided those eggs has full autonomy over what she wants to do with them.  That way, a woman can avoid the stress of a situation like Ms. Vegara’s.