Archive for the 'Family Law' CategoryPage 2 of 31

When Should the Criminal Court Get Involved with Family Law?

Most family law cases make it from petition to marital settlement agreement without having to involve the police or a criminal prosecutor. However, there are cases when a partner is abusive, when the children are in danger, or when a partner makes false accusations that could have grave legal consequences. If you’re involved in such a case, when should you go to the prosecutor?

Family Court or Criminal Court

The biggest difference between family and criminal court is that the former is a civil court only. In other words, while it may have the power to referee and resolve disputes between different private parties, its power to punish criminal wrongdoing is extremely limited. The most available option is a sanction, or fine, for disrespectful behavior and potentially limited jail time for contempt of court. Successful contempt pleadings are rare though and sanctions don’t have an adverse effect if the party is extremely rich or extremely poor.

Criminal courts, on the other hand, are designed to find and punish criminal behavior. Police officers can take down statements and make arrests, prosecutors can initiate investigations, and defense lawyers can make constitutional arguments to protect against false accusations. In family court, it is common for parties make accusations and counter-accusations; in criminal court, the defendant will find that type of finger pointing to be unsuccessful.

by VicThe Right Time

So when is the right time to involve police, prosecutors, and criminal courts in a divorce or child custody matter?

In most circumstances, the right time is when the abuse begins. If a partner shoves you against a wall or throws an object at you, you should have the police make a report. If the situation is life-threatening, you should call 911. If you call 911, be sure to tell the dispatcher as much information as possible. These calls are always recorded by the police department, so even if the responding officer makes a mistake, the initial call will reveal any potential inconsistencies. If it’s not life-threatening, consult a family attorney about the best way to file a police report. If the abusive behavior continues, continue making police reports.

There are three important reasons to file a police report against an abuser. First, police reports are almost always admissible evidence in court, so there will be no problem getting the information in front of a judge. Second, in order to obtain a conviction for domestic violence or harassment (depending on your state and county), there usually has to be a pattern of abuse. Constantly making police reports establishes this pattern. Third, it prevents the abuser from filing the charges first. In many abuse cases, the abuser may attempt to accuse the victim first, so that the victim appears to be the abuser instead. Filing a police report first may prevent the abuser from muddying the situation too much.

If you have children and the abuser is your spouse, the dynamic changes. Many spouses are afraid to call the police on their spouse because they do not want their children to see the police arrest a parent of the children. If you believe your life or the life of your children is actually in danger though, seeing a parent arrested is preferable to seeing a parent being abused.

SCOTUS Allows Wisconsin Fetal Protection Law to Continue

The line between the rights of an unborn fetus and the rights of the woman pregnant with that fetus is one of the most contentious legal issues in modern society. While it generally comes up in the context of a women’s right to choose to have an abortion, the same battle is fought on other fronts as well. In Wisconsin, one such situation dealt with the state’s ability to step in and take physical custody of a pregnant woman-force her to stay in a secure medical facility or prison-where she uses alcohol or drugs while pregnant.

Just a few months back, a Wisconsin District Court ruled that a 1997 law giving the state this power was unconstitutionally vague. This led to the case being appealed to the Supreme Court of the United States. Last week, the Supreme Court issued an order removing the Wisconsin District Court’s stay on the law-at least until the Supreme Court rules on the “fetal protection” law one way or another.

At this point, there is no final say on what will happen to Wisconsin’s law. However, to get a better idea of what the future of this law means for you let’s look at the law itself, the facts behind this case, and the ruling of the district court from a few months ago.

fetal protection lawThe “Fetal Protection” Law and It’s History

Back in 1997, the Wisconsin Supreme Court made a ruling limiting the breadth of the Wisconsin Children’s Code-the code of laws allowing Wisconsin’s Department of Children and Families and other social services to take protective action in the interests of abused or neglected children. They determined that code did not give Wisconsin services jurisdiction over an adult pregnant woman just by reason that she is expecting.

But that same year they passed Wisconsin Act 292. The Act allowed juvenile courts and protective services to exert jurisdiction over an unborn fetus as if they were a child in need of protective services where the “expectant mother’s habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, [poses] a substantial risk” of harm to the unborn child. So, Wisconsin Services can hold pregnant women in custody if there is probable cause to believe she is within the jurisdiction granted by this act and there is reason to believe the mother is or has refused alcohol or drug services offered to her or isn’t making a good faith effort to participate in such services. The state can also appoint a guardian ad litem for the fetus-basically somebody who’s job is to advocate for the best interests of the unborn fetus.

On its face, this law seems innocuous. Abusing alcohol or drugs can have a serious effect on the health of a child when it is born. The ability of the state to step in and make women seek medical help in ceasing their alcohol or drug abuse could certainly prevent damage to a fetus that would ultimately affect the child for their entire life. However, but the Act was worded so vaguely that it opened the door for Wisconsin to potentially trample on women’s rights.

Ms. Tamara Loertcher’s Case

The case brought before the district court dealt with one Ms. Tamara Loertcher. She became pregnant in 2014 after long believing herself incapable of becoming pregnant. She was using methamphetamine and marijuana prior to becoming pregnant allegedly to self-medicate serious depression. Stating that she still did not believe she was truly pregnant, she went to the hospital three months later to confirm the results of her at-home test. The hospital’s tests revealed both pregnancy and drug use. She checked into a rehab clinic the same day.

Once at the rehab clinic, staff at the clinic reported Ms. Loertcher to child protective services for her drug use. This led to a case against her which culminated in her being unrepresented at regarding her being taken into custody. With no one there supporting her interests, she lost the hearing and was required to stay at a secure medical facility. She refused, was held in contempt, and thrown in jail with no medical services for 30 days. 18 days after being put in jail, she was released. She has since ceased all drug use and given birth to a completely healthy baby boy.

Ultimately, Ms. Loertscher stated that she felt that her worst mistake was going to the hospital in the first place. This is the fear of laws like Wisconsin’s, that they serve to deter the women who most need medical services from seeking help. However, this was not the reason the law was struck down.

The District Court’s Vagueness Ruling

In their ruling from the end of April of this year, it was the vagueness of the statute that led to the district court ruling it unconstitutional.  A statute is unconstitutionally vague where it doesn’t give the public fair notice as to the exact boundaries of the law. It’s only fair that the public know when they are and when they aren’t violating the law. To pass muster, a law needs to give at least some guidelines for how it is enforced. This act was subjected to a high level of vagueness scrutiny due to the constitutional rights implicated by the acts potential to lead to either physical restraint or forced medical care.

When looking at the text of the statute, the found that many of its terms failed to rise to this simple standard. The act applies where there is habitual lack of self control when it comes to drug or alcohol use. However, how much is habitual? Daily? Multiple times a week? Multiple times a month? Experts in the case couldn’t really nail down what was habitual use, never mind that habitual use is likely different depending on what is being used.

Similarly, the act applies to severe lack of self-control when it comes to drugs or alcohol but provides no line whatsoever as to what is severe. Further, due to wording of “habitual lack of self-control,” the act could be applied to any woman who once had an alcohol or drug habit-even if she no longer uses any substance-because habitual deals with both past and present behavior.

The court raised one more rather odd concern. How would the act deal with a pregnant woman who simply didn’t believe that using drugs or alcohol would affect her fetus? This wouldn’t be a case of lack of self-control but rather a matter of misinformation.

The list of overly vague terms and unclarified ambiguities in the act went on: risk is included but how much risk is “substantial?” When will a child be seriously affected by drug or alcohol use? Studies tend to agree that such behavior can affect a pregnancy but the amount necessary to harm a fetus varies from study to study. The experts in the case certainly couldn’t present a scientific consensus as to any of these questions. Thus, the district court ruled the act unconstitutional for vagueness and issued an injunction preventing application of the law-the injunction the Supreme Court just lifted.

fetal protection lawThe Future of the Act

The Supreme Court’s ruling only lets Wisconsin’s act continue functioning for now, it doesn’t necessarily mean that the Supreme Court will ultimately rule that the act is constitutional. It may tilt the odds in that direction. However, it is not the last nail in the coffin.

These sort of laws, allowing the government control over a pregnant woman because of her pregnancy, are certainly problematic. Abortion laws have long struggled in establishing the proper balance in the push and pull between a woman’s right to bodily autonomy and the rights of a developing fetus. Should a fetus be treated as having rights superseding that of the mother? When should a fetus be considered to have rights at all? With a law like Wisconsin’s, it seems like it allows the state to invade the rights of a pregnant woman almost immediately.

Drug and alcohol use during pregnancy is certainly not something to be encouraged. However, how far are we willing to allow the government to step on a woman’s rights to achieve this end? There is likely a middle ground here where the proper legal standard should be, however we continue to struggle to find the right way to deal with these issues. When the Supreme Court fully addresses this case, it will be the first time new appointee Justice Gorsuch will weigh in on such an issue since he joined the Court. We’ll have to wait and see what the Court’s eventual ruling will mean for Wisconsin’s law and women’s rights in general.

Should Divorce Be Separated From Money?

Is There a Different Way to Approach It?

One novel idea for shortening divorce proceedings comes from across the Atlantic. Sir James Munby, a British judge, has suggested that court should “bring about a complete de-linking-separation of divorce and money.” In other words, instead of having asset division and spousal support as part of the divorce process, the two should be completely separate. In this way, a divorcing couple could become divorced in a matter of weeks, if not days, and then divide their property and money in a separate court process if they so choose. Child custody and support cases are often separate from divorce procedures already. Child custody/support can be independent of marriage (some couples have children without being married) or the custody/support case can outlive the divorce, as the parents are responsible for their children until the kids turn 18, even if the parents’ divorce ended years ago. Sir Munby’s proposal would split property and money issues from divorce just as child custody and child support issues are split.

divorceIf property and money issues are detached from divorce, what is left for the divorce court to do? In Britain, fault divorce is still the default, so the divorce courts would presumably spend greater time determining why a marriage ended. In the U.S., no-fault divorce is omnipresent, so that same type of inquiry would not exist. Indeed, dividing the financial aspect of a divorce from the marital status would dramatically speed up the process, as the parties would just declare their new divorce status and leave the details for later rather than wait until the end for the judge to sign off on the judgment.

Of course, leaving financial (and parenting) issues for another court at a later date would not preclude the need for legal advice. Determining who gets the family home, dividing tax liabilities, and whether a party needs support and how much support are still issues that would need to be resolved at some point. If there are any accusations of domestic violence, the court should slow things down and determine what is going on. But for couples that just want to “get it over with” as quickly as they got married, the divorce process can be a lot faster than it currently is.

Is Legal Separation an Option?

There is one significant reason why American law would not separate money from divorce. In the United States, couples also have the option of being legally separate. This status means that the parties are still legally married, but no longer living together. This option has a number of useful advantages. First, many couples choose legal separation as a prelude to divorce. Many states have residency requirements at both the state and county level. Legal separation is a way of meeting those requirements while still living apart. Second, many religions frown on divorce, but have no opinion on legal separation. Being separated is often preferable to being divorced when seeing the in-laws at Thanksgiving. Finally, legal separation means that while the parties are no longer legally married in status, their finances are often still entwined. Legal separation in the United States would potentially fulfill Sir Munby’s vision of a divorce without finances, provided that the parties are comfortable with the arrangement.

Dissent by Justice Gorsuch Ignores Legal Reality of Paternity Debate

Legal paternity has often conflicted with reality. Most state laws assume that the husband of a woman is the father of the child, regardless of whether that is biologically true. To be sure, this presumption is convenient – husbands don’t have to get tested whenever their wives become pregnant. However, this assumption has caused no shortage of legal headaches, as issues such as adultery, insemination, and the best interests of children often threaten to unravel the presumption. The debate over paternity has taken on new dimensions after the Supreme Court legalized same-sex marriage.

paternityIronically, Pavan vs. Smith doesn’t involve any fathers. Terrah and Marisa Pavan, a lesbian couple, married in 2011. Terrah gave birth to a child in Arkansas in 2015. Arkansas law requires that the biological mother, in this case, Terrah, be listed on the child’s birth certificate as the mother. The law also requires that the husband, if any, be listed as the father. Marisa requested that she be added to their new baby’s birth certificate as the child’s other mother because she was the legal spouse of Terrah. Arkansas’s Department of Health, the Department responsible for issuing birth certificates, refused, arguing that state law specifically called out “husbands” rather than “spouses” to be added to birth certificates. The Pavans sued, arguing that the law was discriminatory as it restricted a marital benefit to straight married couples only.

Arkansas argued that their law was legal because the statute was about the biological relationships of the children, not the marital status of the parents.  The Arkansas Supreme Court agreed and upheld the law. The Pavans appealed to the Supreme Court and the Court reversed the state Court in a 6-3 decision, with Justices Gorsuch, Alito, and Thomas dissenting. The majority ruled that the law was discriminatory as it withheld a marital benefit from same-sex couples – the legal presumption that the spouse of the biological mother is the child’s other parent. The Gorsuch minority dissented, agreeing with Arkansas that the birth certificate of the child was about the parental relationships of the child, not the marital status of the parents.

Where Does Justice Gorsuch Go Wrong?

The Gorsuch minority’s logic is fatally flawed. Although a birth certificate’s purpose is to declare the parental relationships of a child, Justice Gorsuch and the state of Arkansas ignore the law’s assumption that paternal relationships are based on marriage status. When marriage status is used as shorthand for a child’s parental relationships, then the birth certificate ceases to be strictly about biology. The biggest issue with Justice Gorsuch’s dissent is that he fails to even acknowledge this assumption. If a man who potentially has no blood relation to the child, but is allowed to be the child’s father because of his relationship with the child’s mother, there is no reason a woman cannot be allowed to be a child’s other parent based on her relationship with the mother.

Indeed, the legal fiction that is paternity is acknowledged by Arkansas’s statutes. According to Arkansas, if the biological mother, biological father, and the mother’s husband all agree that the father should be on the birth certificate instead of the husband, then the father’s name will be used instead. This exception shows that Arkansas itself recognizes that there may be cases where the husband is not the father. Of course, this is the exception rather than the rule, but this exception highlights that the birth certificate is about the law’s assumption about marital status, not just biology.

What’s Our Takeaway?

Of course, states like Arkansas maintains the presumption that husbands are legal fathers of their wives’ children because states want to maintain the institution of marriage. It would extremely disruptive to a married couple’s life if one spouse was raising children with a person outside the marriage. It is beneficial to children that their parents have a document that can prove their relationship to the child, but the reason children don’t have three or more parents is to preserve the ideal of dual parents raising a family.

There is no reason why either of those justifications can’t be applied to a lesbian marriage. It would disruptive to the Pavan’s marriage if Terrah was forced to be a single parent even though she is legally married to Marisa. Putting Marisa down as the other parent would allow her to take the baby to see the doctor or to fill out school forms without Terrah haven’t to carry all the burden of raising a child. The remedy is also easy: change all gender specific statutes to gender neutral statutes. The institution of marriage can be preserved, if judges like Gorsuch will preserve it.

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.