Archive for the 'Family Law' CategoryPage 2 of 19

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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Homosexual Seeks Inheritance through Common Law Marriage

Most Americans do not have a will and those who do typically don’t take the trouble to update it regularly. The tragic story of James Spellman and Michael Kelly underscores why it is so important to keep a will consistent with your present wishes.

Michael Kelly first met James Spellman at a Halloween party in 1994. The two men shared a close relationship thereafter. Although the gay rights movement in the mid-nineties did not command the political capital it does today, Spellman alleges he and Kelly agreed to live together as spouses. The couple maintained their agreement and their relationship until 2012, when Kelly was diagnosed with bile duct cancer. Spellman devoted himself to Kelly’s care, but Kelly passed away shortly thereafter. Kelly left behind $819,000 in his estate, including a beach house worth $574,000.

Kelly and SpellmanUnfortunately for Spellman, Kelly left behind a will naming his four siblings as his beneficiaries. The will, written in 1990, does not mention Spellman. Although the District of Columbia legalized same-sex marriage in 2010, Kelly’s illness distracted him from thoughts about marriage or updating his will.

Kelly’s estate refuses to give Spellman any part of the inheritance. Spellman claims he is entitled to a portion of the estate as Kelly’s common law spouse. Common law marriage is a marriage “by fact,” whereby the state recognizes two persons as married, even in the absence of a marriage certificate. Two persons are married in common law if, for a certain period of time determined by the state, the two individuals live together and present themselves as spouses to the world. Spellman claims he has lived with Kelly for the last eighteen years and that Kelly’s family knew about their relationship.

The estate claims that Spellman would not be entitled to the inheritance even if Spellman were a woman. The defendant says that Kelly lived in Delaware, where common law marriage is not recognized. The estate also denies that Kelly and Spellman were living together for as long as Spellman claims they had.

Spellman’s attorney argues for an extension of common-law marriage to same-sex marriage and to declare Kelly and Spellman married. Ideally, a favorable verdict will allow Spellman to collect inheritance under intestacy law.

Intestacy law is the “default” law if the deceased did not have a will or only had a partial will. Although I don’t know the full contents of Kelly’s will, Spellman might still be denied inheritance if he is not in the will. Under intestacy law, the spouse can receive most of the inheritance, but intestacy law assumes that a complete will does not exist. If Kelly’s will divides all of his estate among his siblings, there might not be anything left for Spellman to collect, even if he is recognized as a spouse. The estate can always argue that Kelly intentionally refused to update his will and that Kelly intended to deny Spellman any inheritance, even if Kelly considered Spellman his spouse.

Spellman’s claim has a long way to go if he continues forward. Still, the case is very noteworthy because of how the parties are treating homosexuality. Not only is the plaintiff asserting a homosexual relationship as a reason for inheriting from the deceased, the estate’s attorney is treating the homosexual nature of the relationship as a non-issue.

In the not too distant past, homosexuality was considered a reason to disinherit someone, even if the beneficiary was named in the will. Estates could argue that homosexuality was an undue influence on a dying person, thereby negating the deceased’s ability to freely express his or her intentions in the will. This case might not be a victory for James Spellman, but it is remarkable as evidence for how far the homosexual rights movement has come.

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Diabetic Students Can Now Receive Insulin Shots from School Staff in California

A Legal Victory for California Diabetic Students and Their Families

On August 12, 2013, the California Supreme Court unanimously decided that unlicensed school staff should be able to administer insulin shots to diabetic students when a nurse is not around. Prior to this ruling, parents of diabetic children often faced serious hardships in ensuring that their children received timely insulin shots at school.

Child Diabetes Insulin Shot

Why Did This Ruling Take So Long To Achieve?

Consider: a number of existing California laws, such as the Education Code, already permit parents and even children themselves to administer insulin shots when necessary. If a child can self-medicate with insulin when necessary, would a trained teacher be any less capable of doing the same for that child?

In the parents’ view, which had been taken up by the state Supreme Court, the practical approach would emphasize equal access to care – administration of insulin (and other prescribed medications) – without jeopardizing diabetic students’ safety at schools.

However, the American Nurse Association (ANA) opposed the idea that non-nurses should be able to administer insulin to students. As a professional nursing organization, ANA worries about the safety of this long-awaited solution that does not come from the expert community of nurse professionals. Many discount ANA’s concerns about safety as related to union interests or professional corporatism, but even if that is so, ANA’s concerns are not without merit.

Health Care Should Not Be Compromised
Obviously, health care professionals perform a range of technical services. However, many of their duties (such as insulin shots) could be safely replicated by unlicensed laypersons. The question can be raised: Would fix-it-yourself outsourcing of health care services increase the quality of health care?

The most important point is this: Health care should not be compromised simply because a particular health care service is traditionally performed by a licensed professional. In education, we want qualified educators to teach our children how to read and write. But no one would argue that only a licensed teacher can help our children learn how to correct a spelling error. The same should be true for health care. We shouldn’t have to rely exclusively on qualified professionals to accomplish acts that could easily and safely be performed by laypersons.