Archive for the 'Family Law' CategoryPage 2 of 19

Proposed Child Spanking Law in Kansas Would Have Been a Disaster

Child Spanking Law Proposed by a Kansas State Representative

Anyone remember when parents and teachers spanked kids? Last week, Kansas State Representative Gail Finney proposed a bill which would have explicitly legalized spanking children. The bill has since died in committee, but given that 81% of Americans believe spanking is sometimes appropriate, the issue is bound to come up again.

Child Spanking LawsOf course, Kansas has allowed spanking children before. However, spanking was legal in common law, or law as understood by courts. Child spanking was not formally written down in statutes by lawmakers. Last week’s bill would have declared that “up to ten forceful applications in succession of a bare, open-hand palm against the clothed buttocks of a child and any such reasonable physical force on the child as may be necessary to hold, restrain or control the child in the course of maintaining authority over the child, acknowledging that redness or bruising may occur on the tender skin of a child as a result.” “Child” would have included “a person over the age of 18 who is enrolled in high school.” More importantly, the bill would have allowed parents to give permission to school authorities to spank their child.

As mentioned before, 81% of Americans claim they believe spanking is appropriate. Interestingly, 31 states ban or limit corporal punishment (child spanking). The scientific basis for this political support rests on shaky grounds. In 2010, Professor Gunnoe of Calvin College concluded that adults who recall being infrequently hit were better adjusted than adults who didn’t remember being hit. In 2012 though, the Monitor on Psychology reported that harsh punishment could lead to “increased aggression, antisocial behavior, physical injury and mental health problems.”

Imagine If Kansas Had Actually Passed the Child Spanking Law…

So what’s the big deal about writing a rule down? There are two problems when lawmakers try to write down court recognized rules.

First, a poorly written law can wreck all kinds of chaos. Under the proposed spanking bill, children could give school personnel the authority to spank children, even if the child is 18. When a child turns 18, however, the child is a legal adult. Parents cannot give school personnel the authority to spank their adult child because parents would no longer have the authority to grant that kind of power.

Politically, this provision of the bill would have been a disaster. The Constitution gives 18 year olds the right to vote. Any politician who allows government workers to spank their constituents would not be in office for very long. Allowing school officers to spank any high school student could have lead to very poor publicity. Imagine a 52-year-old male teacher spanking a 16-year-old woman.

Second, this bill was not the law child spanking advocates were waiting for. By codifying one method of child spanking, the law would have precluded other forms of discipline. Representative Finney’s bill would have legalized “bare, open-hand palm against the clothed buttocks of a child” only. Presumably, other types of punishment would not have been legal.

Representative Finney considered this an upside. The line between child abuse and child discipline would have been better defined. However, limiting child spanking to “bare, open-hand palm against the clothed buttocks of a child” ignores many possible circumstances. Some children are very tough and barehanded slapping would not be very intimidating to them. On the other end of the spectrum, this bill would have permitted bruising as a result of spanking. Some people consider bruising a sign of abuse.

Representative Finney might have had the best of intentions, but courts need flexibility to judge specific cases. Kansas is fortunate that this bill ended in the scrap heap.

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Are Pet Trusts Valid?

Can I use a trust to leave money and property to my pets? 

Let’s face it, it’s true: a dog is a man’s best friend. Unlike humans, dogs will not ignore your calls or ask you for money. Some dogs are even completely satisfying substitutes for babies. So naturally, people often want to provide for their pets when they die. A pet trust is common used for this purpose.

Pet TrustAre pet trusts valid? In some cases, the courts have ruled that pet trusts to be a waste of resources. However, even if a court reaches this decision, it will often still honor the decedent’s wishes, but will simply reduce the trust amount. For example, in 2007, hotel heiress Leona Helmsley left her dog $12 million and the judge reduced it to $2 million.

On the other hand, Tennessee Courts have held that all pet trusts are valid so long as the decedent was of sound mind and disposing memory when he made the trust. For example, when Leon Sheppard Sr., a retired businessman, died in 2012, he left $250,000 and a 4,270-square-foot home to his two cats, Frisco and Jake. The court allowed the pet trust. But once the cats die, any remainder of the money will go to Sheppard’s relatives.

Although it may be odd to leave such large sums of money to pets instead of family, a pet trust ensures that the decedent’s pets will not be abandoned. And then after the pets pass, the remainder of the trust will go to family members.

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Judge Strikes Part of Utah’s Polygamy Ban

Never underestimate the cultural influence of reality TV. The popular show “Sister Wives,” for example, recently led to a significant change in the polygamy laws of Utah.

Sister Wives is about a man, Kody Brown, his four wives, and his 17 children. The Brown family are fundamentalist Mormons who claim polygamy is part of their religion, although the Church of Latter Day Saints formally disavows polygamy today.

Sister Wives Polygamy LawThe marital status between the four women and Brown is a little more complicated than it appears at first. Brown only has a marital license with his first wife, Meri. Brown has a common law marriage with Christine and Robyn, both of whom he has been “married” to for 16 years. Brown and his latest wife, Janelle, recently held a marriage ceremony together, but Brown does not hold a marital license with Janelle. Janelle has two children from a prior marriage.

Brown challenged Utah’s polygamy ban in 2011, shortly after “Sister Wives” began broadcasting on the airwaves. Utah, like most states, prohibits individuals from holding more than one marriage license or holding a marital license with more than one person. However, due to the state’s history, Utah goes further than most states by criminalizing “cohabitation” with a person or persons which resembles a marital relationship.

Judge Waddoups, the trial judge presiding over the case and a George Bush appointee, ruled that the cohabitation clause was unconstitutional. Specifically, the judge held that the cohabitation law violated free exercise of religion and invaded the privacy and liberty rights of the Brown family. However, Judge Waddoups left the other half of Utah’s polygamy law untouched. Although it is now legal to live in Utah with a mistress as a spouse, the state won’t recognize more than one spouse.

Should polygamy be recognized by the state if all parties consent to the relationship(s)? Although proponents of same-sex marriage will deny this case has anything to do with their movement, Judge Waddoup’s 91-page decision is a product of the homosexual rights movement. Indeed, Browns’ attorney relied on the Supreme Court case which struck down homosexual sodomy laws when arguing that the cohabitation law should be overturned. Judge Waddoups compared polygamy to “an unmarried man who chooses to have intimate relationships with three women.” Although the state would not sanction the unmarried man’s relationships, the state would not punish the man, or the women, for engaging in such relations.

This is an argument for decriminalizing polygamous lifestyles, but it still is not an argument for recognizing polygamy. State recognition of polygamy will not happen, although social conservatives are still wrong to argue that ‘traditional’ marriage or protection of children is the reason. Unlike same-sex marriage, marriage with multiple partners would require complete renovation of our legal system, especially if polygamous marriages could be recognized as common law marriages. It is easy to replace the word “husband” or “wife” with “spouse.”

For polygamous relations to be recognized by the state, federal tax law, estate law, and spousal communication privileges would all have to change to make room for multiple person marriages. Completely re-engineering our legal system to accommodate polygamy would be challenging, to say the least.

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An Update on Reproductive Rights: New Abortion Laws in 2013

A Recent California Law Increases Access to Abortion

California Assembly Bill 154, recently signed into law by Gov. Jerry Brown, increases access to abortions for women during the first trimester. The bill allows abortions to be performed by non-doctors including trained nurse-practitioners and medical assistants. While Planned Parenthood applauds this measure as yet another reproductive rights victory in California, others see the issue differently.Abortion Laws

Aside from opposition based on moral grounds, there are worries about potential health hazards associated with non-physicians performing abortions. First trimester abortions are not completely safe; therefore, complications may result.

It is unclear how many nurse-practitioners or other medical assistants will opt to participate in abortion certification training. If many choose to forgo certifications and to not provide abortions, the hoped-for benefits of the “wider access” may be far less than expected.

California’s new abortion law highlights an issue in the medical field regarding class disparity. While affluent women are able to afford care in surgery-ready hospitals, others are given a “free choice” to only seek inferior care for reproductive health issues. Although abortions may be a relatively straightforward medical procedure, they should always be performed with care. By providing widespread access to potentially sub-par health care, abortion procedures may be trivialized.

Harsh Anti-Abortion Legislation Continues to Undermine Freedom of Choice   

California’s new law unfolds against the backdrop of a nationwide curtailment of reproductive rights for women. It has been reported that 43 abortion-restrictive laws have been passed by various states in 2013. Since 2007, more than 100 abortion-restrictive measures had been successfully passed across the nation by state legislatures. While it is not clear, such abortion restrictions may have a disproportionately negative impact on the less affluent.

Some abortion restrictions may undermine the pro-choice victories in Roe v. Wade. For example, most abortions after the twelfth weeks of pregnancy are banned in Arkansas. In North Dakota, abortion may be banned as early as six weeks into the first trimester, when fetal heartbeat may be traced. This is one of the most restrictive laws concerning abortions in the entire nation.

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Erasing Your Child’s Internet Presence

When I was in high school, there was a small controversy at my school regarding an Iranian-American student beaten up in a bathroom by other students. The beating was caught on film and the students who bullied the victim were foolish enough to put the video online. The video has since been removed. I don’t know who took the video down, but California passed a law this year which would require websites to give the bullies the right to take down such incriminating evidence.Kids Online Privacy

SB-568 – The Right to Remove Internet Content for Minors

A few months ago, I wrote on the right to be forgotten. Back in May, the right to expunge one’s own web presence was merely a theoretic exercise. Well, California has jumped the bridge from theory to actual law. The new law, SB-568 (fresh out of clever acronyms?), requires websites to give minors the ability to delete their own postings, be it text, photo, or video. The law also requires websites to clearly inform minors how they may go about deleting the information they posted. SB-568 defines “minor” as a person 18 years or younger. Information that  was uploaded by a third party or that has been subpoenaed cannot be removed. The law will be implemented in social media websites in 2015.

Proponents of the new law, including the governor, see the new law as a means to protect children from themselves. Kids will be kids, SB-568 supporters claim, and children shouldn’t be penalized for that. Indeed, the direction of the law seems to support the idea that there is a right to Internet privacy. Federal law already limits the information a website can collect from children who are 13 or younger. Other laws require websites to publicly reveal what information they are collecting and with whom that information is shared.

Drawbacks to SB-568

Despite its good intentions, SB-568 has a number of flaws. First, the new law is nearly useless. The embarrassing video on YouTube might be shared on Facebook. If it was uploaded by a third party, the user still can’t touch that content.

Second, it is questionable whether the right to privacy exists on all websites. The nature of the website should control whether there is an expectation of privacy. Posting on Facebook is not like posting on Twitter. The former is sometimes regarded as a private chat between friends while the latter is more like posting an advertisement on a roadside billboard. Nina Davuluri, the first Indian Miss America, was called “Ms. 7-11,” among other racial slurs, across Twitter. If an employer can fire an employee for calling Davuluri “Ms. 7-11” on a public billboard, it should be equally possible for an employer to fire an employee for calling Davulvuri “Ms. 7-11” on a website which functions like a billboard.

My biggest concern with SB-568, however, is the potential for abuse. Extending the “right to be forgotten” to elected officials would be disastrous. Similarly, teenagers who engage in conduct far more inappropriate than “childish behavior” should not be allowed to walk away from their actions.

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