Archive for the 'Family Law' CategoryPage 2 of 21

Unanimous Supreme Court Ruling on Same-Sex Marriage Would Be the Best Thing That Could Happen for Conservatives

“It’s happening, whether you like it or not!” – Lieutenant Governor Gavin Newsom

The big news this week is that the Supreme Court is hearing legal arguments on whether states can ban same-sex marriage. The lawyers have been chosen and a two hour argument has been allocated.

SCOTUS Gay Marriage DebateAt this point, the legalization of same-sex marriage is a foregone conclusion. The Court is split between 4 liberals and 4 conservatives, with Justice Kennedy serving as the “swing” vote. However, anyone who has been paying attention to same-sex marriage knows that Justice Kennedy wrote the previous Court cases decriminalizing homosexuality and overturning the federal Defense Against Marriage Act. Justice Kennedy wrote in broad, grand, sweeping language, and recognized same-sex marriage on the federal level using every legal theory possible.

Based on precedent, Justice Kennedy would rule against same-sex marriage when hell freezes over.

The Third Path

If the Court ruled in favor of same-sex marriage 5-4, Justice Kennedy would almost certainly write the opinion. If he did, he would probably copy and paste his opinion from the case regarding same-sex marriage on the federal level and give homosexuals broad protection.

If that happens, the only way to overturn Kennedy would be to pass a Constitutional amendment or wait for another Supreme Court to take up a similar case.

For conservatives to avoid the judicial landslide, the conservative Justices on the Court would have to rule in favor of same-sex marriage and make the decision a 9-0. Why? If the Court was unanimous, then the Chief Justice could decide who writes the opinion. Chief Justice Roberts could designate another Justice to write the opinion, like Justice Scalia or Justice Thomas.

The benefit of having a conservative Justice write the opinion legalizing same-sex marriage nationwide would be that the Justice could control what rights are established. Currently, Justice Kennedy and proponents of the LGBT movement are arguing that gays should have the right to marriage. A conservative justice could write that everyone has the right to same-sex marriage.

The difference is that the LGBT approach would create a protected class of persons based on sexual orientation. This protected class could pass laws protecting other rights, like forcing pizza parlors to serve them even if it violates the business owner’s religious rights. If everyone has a right to same-sex marriage though, then no protected classes are created. Instead, same-sex couples could get married, but nothing more. Business owners would still be free to discriminate because the foundation for civil rights of LGBT would not exist.

If the Supreme Court made a unanimous ruling for same-sex marriage, the rights from that case would be as narrow as possible for all nine justices to sign off on it. Although same-sex marriage is guaranteed to happen, the Supreme Court could still shape the outcome so that the conservatives would still have a chance to win a debate.

Should Rapists Have Parental Rights?

The Daily Show did a segment on rapists and parental rights last week. Samantha Bee hugged adorable animals while dealing with the reality that women cannot terminate their rapist’s parental rights. Even though proposed laws terminating rapist’s parental rights have bipartisan support, about twenty states have yet to pass any laws regarding the parental rights of rapists.

RapeDisturbingly, many of these rapists will use child custody battles in family court as a means to drop the rape charges against them in criminal court. Many mothers will elect not to testify against the rapists rather than go through a soul-numbing child custody battle. As a result, many rapists walk out of criminal court free. The rapists don’t leave because they’re innocent though; they’re free because they used the family court to blackmail the victim.

This isn’t a small issue. According to Shauna Prewitt, an attorney who personally experienced this vicious system, about 32,000 women each year become pregnant after being raped. At least a third of them give birth and raise the child.

The Child’s Best Interest Are Not Served by Rush of Judgment

The parental rights of rapists are one of the toughest issues a family law court will face. It’s important that we have this debate. But this debate is ending in the wrong direction. The focus of a child custody dispute is, and always should be, about the child.

All press is focused on the mother. Congresswoman Schultz’s description of a nightmare scenario placed the listener in the mother’s head. “Every other weekend, you have to meet your rapist in a Denny’s parking lot and hand over your child? No, that can’t be real.” Congresswoman Schultz believed the solution was obvious. “If you’re the victim of rape, and you conceive a child, then you should be able to terminate your rapist’s parental rights.” Once again, the focus is on what the woman should be able to do, rather than what the child’s prospects could be.

Congresswoman Schultz means well, but “conception by rapist” is an emotional rallying cry for women’s rights rather than a real thoughtful assert of a child’s future. If we give a kneejerk reaction, we may miss certain problems.

The most obvious problem is that we are assuming the father is guilty. Unless the father pleads guilty or is convicted of rape, the father is not a rapist. In rape cases, one of the strongest defenses is that the woman consented to sex. Evidence is hard to come by in those cases, so it comes down to a “he said, she said” battle. In child custody cases, the parents may be so focused on fighting each other that they cannot make good decisions for the child.

Family courts use the child’s best interest standard because parents often need reminders that their fight is about their child, not each other. There are plenty of child custody cases where the mother falsely accuses the father of hitting her or stealing from her or abusing her, in the hopes that the court will give her sole custody. Family law judges and lawyers wouldn’t be surprised if a mother lies about being raped in order to gain sole custody.

I’m not saying that all women who accuse the father of rape are lying. I’m certainly not suggesting that fathers should use child custody as leverage to get out of criminal court. But rape and child custody are highly emotional topics where evidence may be hard to come by. If the mother is lying about the rape and the state terminates the father’s parental rights, it is the child who will suffer.

Instead of a unilateral termination of parental rights if the mother accuses the father of raping her, states could enact a law prohibiting parents from dropping criminal charges in exchange for child custody. It would not be in a child’s best interest to have a parent sacrifice the child so that the parent can remain out of prison. Prohibiting child custody settlements from dropping criminal charges is a solution that would protect the defendant’s criminal rights, the mother’s rights, and the child’s best interests.

Judge Directs Couple to Get Married after Woman Attempts to Light Her Boyfriend on Fire

Courts have handed a number of creative sentences over the last few years. Judges have ordered criminal defendants to wear signs outside the store they shoplifted from and buy flowers for their estranged wives. In western Pennsylvania, Quenesia Catasphany plead guilty to reckless endangerment. Last October, Ms. Catasphany had doused her boyfriend, Andrew White, with lighter fluid. Judge Joseph Williams III gave Ms. Catasphany an unusual option: Judge Williams could work out a lesser sentence if Ms. Catasphany and her boyfriend/victim got married.

pennsylvania judgeThe reasoning behind Judge William’s proposal was rather simple. Catasphany was pregnant and would give birth to their fourth child two days later. Catasphany had accused her then boyfriend of having an affair and threatened to set White on fire. In the judge’s eyes, Catasphany lacked stability in her life. So in the hearing on March 23, Judge Williams proposed the two of them get married. If they did, Judge Williams stated they “might be able to work this out better.”

Later that day, Catasphany and White got married. Judge Williams personally married the couple himself. Catasphany told local media that she was very grateful for the opportunity to better their relationship and she appreciated the judge speaking on her behalf.

Married by Duress or Happy Ever After?

Catasphany seems to be happy with the end result, but there’s no word on whether her new husband is happy with the arrangement. Getting doused with lighter fluid and then having a judge arrange the victim’s marriage to the attacker doesn’t sound like a very romantic engagement. If one of the new spouses becomes unhappy, could Catasphany or White use their unusual marital circumstances as a way to untie the knot?

Theoretically, Catasphany and White could claim Judge Williams had coerced them into getting married. Marriage by duress would mean that the parties didn’t consent to being married and the marriage could be annulled.

This sounds good in theory, but courts interpret duress very narrowly. Catasphany was forced to make a choice between marriage and getting a higher sentence, but it was still her choice. Likewise, White could have declined the judge’s proposal and refused to marry the woman who threw lighter fluid at him.

In all the prior creative sentencing, the judge’s alternative sentence did not continue indefinitely. Using state power to convince people to get married is potentially a life sentence, a sentence longer than any jail time the judge could hand down for this particular crime. It’s also a continual relationship between a potential domestically violent relationship. Given the nature and length of this “sentence,” Catasphany and White each should have consulted an attorney before making a life-impacting decision.

Judge Williams proposal was reasonable, but expecting the couple to make a decision within three days meant that Catasphany and White couldn’t possibly foresee all the problems this alternative sentence might cause them in the future. Best of luck to the newlyweds.

Parent Liability for Their Children’s Gun-Related Accidents and Crimes

Parent’s Liability When Children Find Their Guns

Two children have recently died and one has been injured in Harris County, Texas. All three incidences happened in a four day period last week. A three year old and four year old both accidentally shot themselves with a gun found at their home, and a five year old critically injured his six year old brother with a gun found as well.

parent gun liability for childrenOn average, between 2007 and 2011, 62 kids per year have died from gun related mishaps like the incidences above. After three tragedies in just four days, Houston authorities have urged parents to lock their firearms in a safe and inaccessible place to children.

Are Parents Responsible?

In Texas, residents do not need a permit to purchase a gun, a registration of firearms, or a licensing of ownership in order to own a gun. It’s common sense to keep a gun out of reach to children in the home, but clearly a lot of parents fail to recognize this basic safety precaution.

Texas has Child Access Prevention (CAP) laws that are specific to kids and guns. Depending on the circumstance, parents can be penalized with a prison sentence or a fine when their children get a hold of a gun in the home.

Texas imposes criminal liability on parents who allow their child access to a gun and do not store the gun safely. But, parents are not held responsible if the gun was in a locked container.

The three children’s parents will most likely not be prosecuted. But when a child (most likely a teenager) steals a gun from the home and shoots people in a public place (usually schools) the parents are much more likely to be held criminally liable.

The Legal Consequences of Three-Parent Babies

Britain just became the first country to legalize Mitochondrial DNA Transfer, or Three Parent IVF. The treatment uses DNA from two women and a man to conceive a child. The process takes one woman’s egg and replaces “defective” DNA with “healthy” DNA from a second woman. The purpose of the treatment is to help couples conceive a child without passing on severe genetic disorders.

three-parent babiesThere’s a great deal of controversy over this new technology because it’s a natural assumption that a child can only have two biological parents. There simply isn’t a legal framework to recognize more than two biological parents. Although Britain is willing to go forward, other countries, including the United States, are taking a “watch and see” approach.

The most common criticism is that the technology has not been adequately tested on humans and that any potential babies from this IVF will be at risk of cancer or other defects. More importantly, there is concern this new process could be the slippery slope to “designer babies.” If science can remove undesirable genetic disorders, science can also remove – or modify – other traits. In the future, this DNA transfer could lead to parents shopping for the traits they find most desirable: sex, hair color, eye color, musical capabilities, etc.

While everyone is focused on the issue of designer babies, there are other interesting legal issues that could arise. For instance, lesbian couples could finally have a child who is genetically related to both women. In those arrangements, the man required in a Three Parent IVF would merely be a sperm donor. But technology is often as much a curse as it is a blessing.

Three-Parent IVF is a new technology, but it has the same legal problems as other forms of assisted reproduction presents. Assisted reproduction cases involve parentage issues. Surrogate mothers and sperm donors agree to help conceive the offspring in exchange for money and freedom from legal liability to the child.

In surrogacy, it’s possible the couple can’t afford to support the child and will sue the second woman for child support. Of course, if a couple can afford a new and thereby expensive medical procedure, then the couple probably can afford to support a baby. On the other hand, the donor could have a change of heart about having parentage rights severed. The remainder of this article will discuss the latter.

Surrogacy and Three-Parentage

The woman who donated the DNA could be treated the same way as a sperm donor. In a sperm donor arrangement, a man could provide sperm, outside of sexual intercourse, to a woman. The man in the couple would then adopt the child as his own even though he is not genetically related to the child. The sperm donor, the biological and legal father, would have his rights severed under the donor agreement. Most states recognize sperm donor agreements. However, the couple must follow state procedures if they wish to terminate the sperm donor’s rights.

Courts could find the second woman in Three-Parent IVFs to be akin to sperm donors. The analogy is even more intuitive than surrogacy agreements because sperm is a vehicle for DNA and DNA is what the second woman is giving. Judges could merely read sperm donor laws as gender neutral. Courts could hold that the same procedures terminating the natural rights of sperm donors apply to women who donate DNA.

On the other hand, the Three-Parent IVF could be viewed as a surrogacy. Three-Parent IVF can be thought of as a reverse surrogacy. While surrogacy procedures require an unrelated woman to give birth to the couple’s child, Three-Parent IVF requires that the biological mother give birth to a child who is related to another woman. It’s possible to view the Three-Parent IVF as a surrogacy, with the birth mother a surrogate for the woman who donated the DNA.

Obviously this legal angle won’t work if the state doesn’t recognize surrogate agreements. Many states regard them as contracts to sell infants and courts will refuse to uphold them. Other states find nothing wrong with them and courts will hold that the intentions of the biological parents will decide the outcome.

Determining Parentage

In Three-Parentage cases, it might be difficult to determine which woman intended to be the legal parent and which woman was a surrogate. The easiest way might be to determine which couple (woman plus partner) was the party to the contract, but that wouldn’t be helpful if both women were in a relationship prior to the DNA mixing.

Proponents of Three-Parentage have asserted that the child wouldn’t be equally related to all three parents. The child wouldn’t be one-third related to each parent because the donor’s DNA is only supplied to “fix” genetic defects. It’s more likely that the child will be related to the donor by only one or two percent.

However, I would shocked if there weren’t any judges who would refuse to award custody based on the percentage of genes a child shares with a person. Grandparents and other relatives would be at a disadvantage, a disadvantage that would be unfair if they were more involved in a child’s life than persons who are genetically closer but emotionally distant. Genetic lottery is not a legal standard that any court should adopt. The child’s best interest is currently the default standard and nothing should change that.