Category Archives: Family law

The Supreme Court Ruling Against Texas’ Abortion Law – Five Key Points

Last month’s Supreme Court ruling on a Texas law that closed dozens of abortion clinics has been hailed as the most significant court decision related to abortion since Roe v Wade in 1973.

The Supreme Court backed abortion rights
An abortion sign in South Africa

The decision in Whole Woman’s Health v. Hellerstedt was important because it tackled two specific and key provisions of a sweeping law to restrict abortions that Texas’s conservative legislature passed in 2013, namely:

1 The requirement of doctors who perform abortions to have admitting privileges at a hospital no more than 30 miles away from the abortion clinic.

2 It required clinics that perform abortions to have the same health and safety standards as ambulatory surgical centers that perform far more complicated procedures.

The practical effect of the law was to close dozens of abortion clinics across the Lone Star State. Opponents of the legislation claimed it would cut the number of abortion clinics from 40 to 10. About half of the clinics had closed by the time of the ruling.  The Dallas Morning News reported a 14 percent reduction in abortions in the state.

In a nutshell, the 5-3 ruling of the Supreme Court, which was written by Justice Stephen Breyer, said that both the admitting privileges and the onerous surgical center requirements “constitute an undue burden on abortion access, and thus violate the Constitution.”

Here are five important takeaways from the ruling

1 It Sends a Message to Other States

Republican-led states have been undermining abortion since 2010 when the party made historic electoral gains and doubled the number of states it controlled. The Supreme Court ruling has drawn a line in the sand and made it clear that laws as restrictive as the one in Texas will likely be struck down.

2 It was the First Pro-Abortion Win in More than a Decade

Pro-abortionists have been losing ground for 10 years, even though Roe v. Wade remains in force. The last time they were on the winning side of a major Supreme Court case was 16 years ago, when a 5-4 ruling in Stenberg v. Carhart invalidated a law in Nebraska that banned a procedure abortion opponents called “partial-birth abortion.”

3 Justice Anthony Kennedy Changed Sides

All eyes were on which side Justice Anthony Kennedy would back. Kennedy has been a swing vote on abortion in the past, but he joined the majority side in Whole Woman’s Health v. Hellerstedt. The Supreme Court’s future direction on this contentious and polarizing issue  is likely to depend on November’s election and which side gets to appoint the ninth judge.

4 The Lack of Health Benefit Argument Was Pivotal

One of the original issues disputed in the case involved the Texas legislation’s perceived benefits for maternal health. While the Fifth Circuit assumed health benefits would arise for women, the Supreme Court said it had demonstrated “blind deference” to the claims of lawmakers with an anti-abortion agenda.

The Supreme Court considered statistics that found there are seldom complications from abortions and  even when complications do arise, the H.B. 2 law probably wouldn’t help much.

5 The Opponents of Abortions May Adopt Different Tactics

Anti-abortion lawmakers have become increasingly bold in recent years. Recently, proposals for a total abortion ban were vetoed by the Governor of Oklahoma. Woman’s Health v. Hellerstedt may change that because they will be more aware of the possibility of legislation being ruled unconstitutional.

Another ruling could make for an even broader pro-abortion precedent. That would be bad for the opponents of abortion.

We can expect to see states continuing to chip away at abortion laws, but it’s likely to be in a way that’s more subtle that the law in Texas.

 

The Rights of Grandparents in Visitation and Custody Cases

When we talk about grandparents’ rights in family cases, the term can be misleading. Grandparents don’t have rights in a constitutional way. However, in every state, there are circumstances in which grandparents may be given some rights over children, ranging from custody to visitation.

The recognition of grandparents’ rights is a relatively new development, and there are variations from state to state. Most of the statutes have been in place for less than three decades. Every statute requires its courts to consider the best interest of the child before awarding custody or visitation to grandparents.

Grandparents have legal visitation rights in most states
Grandparents have rights in all states

In the past, the role of grandparents in bringing up children was downplayed by the courts. Grandparents are heavily involved in some families and may even be primary caretakers. A list of grandparents’ rights has been published by Findlaw.

Here are some key rights:

Visitation Rights for Grandparents

The courts don’t need to get involved when parents or guardians allow or encourage visits from grandparents to grandchildren. It gets more complex when visitation is denied by parents. In such cases, If parents or guardians encourage or, at least, allow grandparents to visit their grandchildren, then no grandparent can approach the court to obtain visitation rights. They must prove that it is in the child’s best interests to grant those rights. Some pertinent factors include:

  1. The relationship between the child and the grandparent
  2. What impact the visitation will have on the child and his or her parents
  3. How recently the child was in contact with the grandparent
  4. The likely effect of visitation on the child and parent
  5. Whether granting visitation by grandparents would interfere with the child’s time with his or her parents
  6. Whether a grandparent has ever neglected or abused a grandchild.

Most states allow some visitation by grandparents unless there are other concerns such as alcohol or drug abuse.

The legal concept of allowing grandparents to visit with their grandchildren, even when the parents of the children object, is based on the idea that children need contact with their grandparents. An exception to this approach is where an objection is based on a serious concern such as neglect or abuse.

Courts in each state are required by federal law to recognize and enforce non-parental visitation orders granted in other states. But some states have gone too far. The U.S. Supreme Court struck down the nonparent visitation portion of Washington state’s visitation statute as unconstitutional, ruling that it violated the due process rights of parents to raise their children.

In the case of Troxel v. Granville, the Supreme Court reviewed the case from Washington State. The justices found that parents have a fundamental right to make decisions about raising their own children. However, the court did not agree that Washington State’s permissive visitation statute was unconstitutional or with the argument that allowing a nonparent to petition for visitation rights amounted to an assault on the integrity of the family unit.

In the wake of the Troxel ruling, many states changed their grandparent visitation laws to be consistent with the ruling that the starting presumption should be in favor of the parents, and judges are now very careful about taking parents’ wishes into account when resolving disputes.

Custody by Grandparents

Grandparents face an uphill task to gain custody of their grandchildren in most states. Unless a parent has voluntarily given up his or her parental rights, grandparents will likely have to prove that the parent is unfit to gain custody. However, some states have laws that make it easier for relatives who already have physical custody of children to obtain legal status based on the best interests of the child. See HelpGuide.org for more details.

Facebook as Medium for Serving Divorce Papers

Social media sites such as Facebook and Twitter have made the change from being time wasting distractions influential media in recent years. But social media has not been considered in the past as a means of serving divorce papers – until now. The comments of a judge in a case in New York has raised the possibility of “divorce by Facebook,” CNN reports.

Facebook is being used to serve divorce papers

Ellanora Arthur Baidoo from Brooklyn has been trying to divorce her husband for several years, according to her attorney. However, lawyers were unsuccessful in tracking down Victor Sena Blood-Dzraku to serve him the papers. Baidoo was able to reach her husband by phone but he informed her he has no fixed address and no place of work, court documents stated. “He has also refused to make himself available to be served,” the document said.

The report said Baidoo had exhausted other ways of serving the papers on her husband so she filed an application asking for “service by alternate means,” in this case, via social media. Comments made by Justice Matthew Cooper in this case suggest social media may become an acceptable way of serving divorce papers in the future. The judge said the “advent and ascendency of social media,” means sites like Facebook and Twitter are the “next frontier” as “forums through which a summons can be delivered.”

There are still a number of potential issues before Facebook becomes an established part of the divorce process. Before Cooper agreed to the use of Facebook, Baidoo had to prove the Facebook account she intended to use belonged to her husband, and that he consistently logged on to the account and would see the summons. The CNN report said Baidoo’s marriage to Blood-Dzraku started to fail shortly after they were married in 2009 because her husband refused to participate in a Ghanaian wedding ceremony that would include both their families. The couple never lived together.

Lawyers acting for Baidoo have contacted Blood-Dzraku twice on Facebook, according to reports, but he has not responded. Social media has transformed the way we live our lives and interact with each other so it’s natural that it may end up playing a greater part in a wide range of legal proceedings at some point in the future. There are many obstacles and difficulties that are experienced in break-ups and divorces which is why it’s still important to hire an experienced divorce lawyer.

Virginia’s Ultrasound Law is the Latest Chapter in a Legal Battle over Abortion

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A controversial bill in signed this month in Virginia that has made ultrasounds for women seeking abortions mandatory, again highlights the division in America over the issue of abortion.

Abdominal ultrasounds for women seeking abortions in the Commonwealth will become mandatory after July 1, 2012. The measure was recently signed into law by Virginia’s Republican governor Bob McDonnell.

The bill was signed amid scenes of protest in Richmond, but earlier versions of the bill proved even more contentious because it proposed an invasive form of ultrasound.

The new law “requires all Virginia abortion providers to comply starting July 1 or pay a $2,500 fine for each violation,” CBS news reported.

Patients who live within a distance of 100 miles of the clinic performing the abortion must wait 24 hours after the ultrasound before having an abortion, under the new law. Victims of rape or incest who notified the police of their attacks are exempt. While woman have to be offered a chance to see the images under the new law they can’t be forced to do so.

The original measure attracted widespread criticism because it required women to undergo a transvaginal sonogram, a procedure in which a wand is inserted in the vagina to produce an image.

Critics said the measure deliberately sought to require an invasive procedure to dissuade women from having abortions when a less invasive method was available. McDonnell amended the bill to allow the use of an abdominal sonogram, in which the wand is instead rubbed over a woman’s belly. The initial bill also applied to all abortions including incest and rapes.

“As difficult as an abortion decision is, the information provided by ultrasounds, along with other information given by the doctor pursuant to current law and prevailing medical practice, can help the mother make a fully informed decision,” McDonnell said in a statement.

Virginia is not alone in requiring pre-abortion ultrasound screening. Seven other states have the measure.

The legislation closely resembles similar bills making their way through legislatures in 12 other states, according to an analysis by the Sunlight Foundation.

Abortion law has been one of the most controversial areas of family law in the United States for more than a century, pitting arguments of a woman’s freedom of choice against those of the rights of the unborn child.

Laws banning abortion first appeared in America in the 1820s, originally forbidding abortion after the fourth month of pregnancy.

The U.S. Supreme Court’s 1973 decision in Roe v. Wade, remains the most important judicial decision in this volatile area.

Jane Roe was a pseudonym for Norma McCorvey, woman from Texas who was pregnant but unmarried.  She wanted an abortion, but was denied under Texas law. A federal lawsuit was filed seeking to have the Texas law overturned as unconstitutional.

The US Supreme Court on a 7-2 vote agreed with Roe that the law criminalizing abortion violated her right to privacy. The case decided a state cannot regulate abortion in the first trimester beyond making sure the procedure is carried out by a licensed doctor in medically safe conditions. The court also ruled that a fetus is not a person protected by the constitution.

Before Roe v. Wade all states had laws on their books criminalizing abortions dating back to the 19th century. These laws stayed on the books until the 1960s and 1970s in many cases.

The landmark case failed to take the sting out of the abortion debate. If anything, it became more intense.

Opponents led by the Catholic Church, became more organized. In the 1980s, the Republican President Ronald Reagan, an outspoken opponent of abortion, argued for the reversal of Roe v. Wade.

The President appointed C. Everett Koop, an abortion opponent, to the position of surgeon general. But Roe v. Wade remained in place.

By the 1980s the abortion issue was spilling over into violence in the organized blocking of access to clinics which provided abortion services, organized primarily by a new group called Operation Rescue.

There were also bombings of abortion clinics by radicals. On Christmas Day, 1984, three abortion clinics were bombed. One of those convicted described the crimes as “a gift to Jesus on his birthday.”

Although the violence has died down, abortion continued to be a political and legal battleground as witnessed in Virginia.

The legal focus shifted to later term abortions in recent years. In the 2000 case of Stenberg v Carhart, Nebraska’s law that made the performing of partial-birth abortion illegal, was struck down by the Supreme Court.

In 2003, the federal government moved on the issue, enacting a Partial-Birth Abortion Ban Act. Although several federal judges struck down  the law, citing the precedent of Stenberg v. Carhart, it was upheld by the Supreme Court in Gonzales v. Carhart.

Rules requiring a woman to get “informed consent” or parental consent have proved to be another volatile area for legal action

Generally an abortion provider must give information about the risks, the alternatives, the age of the fetus, and information about assistance available for the woman to have the child. Requirements by states for women seeking abortions to have ultrasounds, is part of the informed consent agenda.

The Supreme Court generally has upheld parental consent laws, provided they allow a minor the ability to obtain permission to have an abortion from a judge rather than a parent. There are 26 states that require parental consent to abortion and 37 states that require some kind of parental involvement such as parental notification short of consent. In all cases the lack of consent can be overturned by a court ruling.

Wide variations in abortion law remain at state level. For instance, 46 states allow individual health care providers to refuse carry out an abortion. And 43 states allow institutions to refuse to perform abortions.

In all 19 states mandate that women receive counseling before an abortion including information on factors such as the possible link between abortion and breast cancer in seven states and the ability of a fetus to feel pain in 11 states.

The Republican-controlled US House of Representatives is currently considering the “Child Interstate Abortion Notification Act” that would effectively federalize state laws of abortion for teens, and is aimed at preventing women under 18 from obtaining an abortion. It would impose harsh penalties on doctors or anybody else who helps a minor obtain an abortion without first informing her parent or guardian.

The law on abortion remains a fast moving and bitterly contested area.

Facebook is Cited as a Factor in a Third of Divorces, says Report

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Social media may allow us to track down old friends again. But it has also become an increasingly significant factor in divorces.

This may not come as news to many divorce attorneys. Every year more of them are using information from sites such as Facebook in divorce proceedings. 

A recent study from the United Kingdom website Divorce-Online found Facebook to be a driving force behind about a third of divorces in which unreasonable behavior was a factor.

Facebook typically is causing relationship problems where a spouse finds flirty messages, photos of their partner at a party they did not know about or with someone they should not have been with. This suggests Facebook may be playing a part in exposing behavior that would not otherwise have been known about, but there’s also evidence the site is fostering illicit connections.

Family lawyers have been seeing the nefarious influence of social networking sites on relationships for some time. Emma Patel, the head of family law at Hart Scales & Hodges Solicitors, in the United Kingdom told the Daily Telegraph, Facebook acted like a “virtual third party” in splits.

“Facebook is being blamed for an increasing number of marital breakdowns, and it is quite remarkable that all the petitions that I have seen here since May have cited Facebook one way or another,” Patel said in a Jan, 2011 article.

The extent to which some spouses will use Facebook to cheat was highlighted in an article in on Missouri’s ky3.com site.

Dana Williams of Springfield, MO believed she had a good marriage. 

“She and her husband had been together for eight years when she was faced with a gut-wrenching reality online.  She said her friend showed her pictures of her husband with another woman on Facebook.com,” the channel reported.

“And it was him saying he was so happy.  He had his three month anniversary with this girl,” said Williams.

Williams said her husband even set up a secret Facebook account with a profile picture that showed him with another woman.

“People need to be careful what they write on their walls, as the courts are seeing these posts being used in financial disputes and children cases as evidence,” Mark Keenan, a spokesman for Divorce-Online, said.

Users of social networks often make the mistake of assuming the information they put on those sites is private. In fact, information posted on Facebook, Google+, Twitter or any other network can be used in divorce proceedings.

A Guide to Domestic Torts

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In May 2011 a lurid story broke on the entertainment website TMZ about an “A-list” celebrity who is being sued for more than $20 million for intentionally transmitting the venereal disease herpes.

“An unnamed plaintiff has sued “an A-list celebrity of substantial fame internationally,” claiming the celeb came on to the plaintiff in Las Vegas and swore he was STD free, the TMZ report stated.

Few details were available of the case and neither party was named. But it sheds light on the little known family law area of domestic torts.

Contracting herpes is a serious matter. Aside from the embarrassment and the physical discomfort, there is no cure for herpes. Even when the symptoms are in remission, it’s likely to affect the ability of the person who contracted the disease, to engage in future sexual relations. Contracting a sexually transmitted disease (STV) from a partner is just one of a raft of domestic torts.

 In some states such as California, the victim may be able to obtain compensation for additional costs as well as the emotional distress caused. In severe cases he or she might be entitled to punitive damages for physical, emotional or psychological and physical injuries suffered over the length of a relationship.

There’s also the question of whether a spouse could receive a spousal support award in the courts if he or she contracted an STD. The problem of proof and the extensive recovery program means few cases of this nature are brought.

“No, it is not likely or commonplace to see a divorce court increase the spousal support award under these circumstances even though the court would have the legal authority to do so,” concluded Robert L. Mues, an attorney and author of Divorce in Ohio.

States including North Carolina recognize tort liability between spouses. A civil action may be brought against a spouse for battery, assault or infliction of emotional distress, the latter known as “heart balm” cases.

Infliction of emotional distress in the absence of physical abuse is limited to few jurisdictions because it can be a difficult and subjective area that calls for the involvement of psychological experts.

States including North Carolina also recognize claims for alienation of affection and criminal conversation.

Notwithstanding its name, criminal conversion is a civil matter. A person who has engaged in sexual intercourse with a married individual, can be liable in an action, even in cases where the married person was separated at the time of the affair.

In practice it’s rare for so called “marriage wreckers” to be sued. The innocent spouse who wants to pursue a lawsuit against a third party, alleging alienation of affections, needs to prove the marriage was viable and based on genuine love and affection, that the love was destroyed and the third party was responsible for the deterioration of the marriage, although the third party does not have to be proved as the only factor responsible for breakdown of the relationship.

Liability under this law could also extend to an in-law who encourages one spouse to leave the other. The innocent spouse could recover damages for a number of factors including emotional distress, anxiety and a loss of financial support.

Although there are wide variations from state to state, the concept of domestic tort is deeply rooted in common law and the principle that when someone harms you be it physically, emotionally or financially, you are entitled to compensation. It could be a stranger or a spouse.

Invasion of privacy is another domestic tort recognized in some states. Actions could include the publication of intimate photos, hacking into an e-mail account, wiretapping, or stalking. Recently in Chicago a woman sued her ex-boyfriend for allegedly posting nude photographs of her on an X-rated website.

As well as the obvious cases such as assault and battery, a spouse may seek damages against an estranged partner for a financial malfeasance if there has been a fraud or a breach of a financial duty.  This could include theft or goods or the transferal of an insurance policy.

Not only may a spouse’s rights be addressed through the tort law, but so are the rights of children.  A child may have a cause of action for assault and battery if he or she was hurt by a parent for any abuse or neglect.

One of the most interesting and evolving areas of domestic torts, which is a corollary of domestic violence, concerns Battered Women’s Syndrome. Can a woman recover damages for the feelings of guilt and fear caused by an abuse relationship?

“The most publicized and envelope-pushing type of domestic torts comes out of domestic violence and involves the Battered Women’s Syndrome,” writes New Jersey family lawyer Elliot H. Gourvitz.

New Jersey courts first recognized the Battered Women’s Syndrome as a defense in a 1984 criminal case.

“The Syndrome itself is such that battered women exhibit common personality traits: low self esteem; traditional beliefs about a woman’s role, family and home; female sexuality, tremendous feelings of guilt that their marriages are failing; and the tendency to accept responsibility for the

batterer’s action. These battered women are paralyzed by the fear of their spouse’s response should they attempt to leave the relationship,” Gourvitz wrote.

 Domestic torts are a rapidly moving area but some commentators point to the difficulties faced by those who want to bring cases. Barriers to compensation were explored in this 2001 article.

David Macaulay

 veritaslegalmedia@hotmail.com