Divorce Law Journal

California To Permit Same-Sex Marriage (at least for now)

Click In Re Marriage and you'll see the 172 page opinion from the Supreme Court of California today. Marcia Oddi at Indiana Law Blog posts:

Here is a report by Bob Egelko of the San Francisco Chronicle on this morning's ruling. The story begins:

10:31 PDT SAN FRANCISCO -- Gays and lesbians have a constitutional right to marry in California, the state Supreme Court said today in a historic ruling that could be repudiated by the voters in November.

In a 4-3 decision, the justices said the state's ban on same-sex marriage violates the "fundamental constitutional right to form a family relationship." The ruling is likely to flood county courthouses with applications from couples newly eligible to marry when the decision takes effect in 30 days.

More:
The celebration could turn out to be short-lived, however. The court's decision could be overturned in November, when Californians are likely to vote on a state constitutional amendment banning same-sex marriages. Conservative religious organizations have submitted more than 1.1 million signatures on initiative petitions, and officials are working to determine if at least 694,354 of them are valid.

If the measure qualifies for the ballot and voters approve it, it will supersede today's ruling. The initiative does not say whether it would apply retroactively to annul marriages performed before November, an omission that would wind up before the courts.

Family Law Prof Blog highlighted this quote from the opinon, "In the present case, it is readily apparent that extending the designation of
marriage to same-sex couples clearly is more consistent with the probable
legislative intent than withholding that designation from both opposite-sex couples
and same-sex couples in favor of some other, uniform designation. In view of the
lengthy history of the use of the term “marriage” to describe the family
relationship here at issue, and the importance that both the supporters of the 1977
amendment to the marriage statutes and the electors who voted in favor of
Proposition 22 unquestionably attached to the designation of marriage, there can
be no doubt that extending the designation of marriage to same-sex couples, rather
than denying it to all couples, is the equal protection remedy that is most
consistent with our state’s general legislative policy and preference."

Time Magazine Reports Ky Bio-Dad Decision And Putative Father's Plan To Go To U.S. Supreme Court

The story is online here. Some quotes: Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital "I do" mean a lot more than DNA.

The report continues, But unlike the past, such allegations these days are often backed by science, introducing certainty where none before existed. As of a result, the prohibition on third-party challenges to paternity has begun to weaken. By 2000, at least 33 states had adopted rules that allowed challenges by fathers with genetic proof of their paternity, usually restricting such efforts to the first two years of a child's life. The advent of DNA testing has tread a similarly disruptive course in other areas of law, including criminal cases where exonerations once thought impossible are becoming routine. A few states have even begun allowing ex-husbands to present DNA evidence that they were duped by cheating spouses to avoid child support obligations.

What's next? Rhoades said he plans to appeal to the U.S. Supreme Court on constitutional grounds. But he faces long odds there, given that the high court has already ruled once, in 1989, on the same issue, upholding California's explicit bar against paternity challenges like his. That decision too was divided and contentious. The biological father in that case did not get to see his daughter till she had turned 21. "Well, obviously I am not going to give up and say, 'Oh well I lost,'" Rhoades says. "I believe I have a fundamental right to be in my son's life." The trouble is: nature's law isn't the law of the land.

Remedies Available Following Claim Of Fifth Amendment Privilege In Divorce

By Sarah Jost Nielsen, published in The Advocate, The Kentucky Justice Association, March/April 2008, Volume 36, Number 2.

The constitutional privilege against self-incrimination under the Fifth Amendment to the United States Constitution is typically associated with parties in a criminal action. However, the privilege may also be asserted by a party in a civil action, such as a divorce. For example, the issue may arise if a spouse faces a criminal investigation by the Internal Revenue Service and asserts the privilege in response to questions regarding tax returns or other financial information. When a spouse asserts the privilege against self-incrimination in a divorce proceeding and blocks the other party's access to relevant, and often critical, information, the court must balance the rights of both parties to ensure that the case proceeds equitably and does not stagnate.

Kentucky is among those states that have yet to address the issue of a party asserting the Fifth Amendment privilege against self-incrimination within the context of a divorce proceeding. Although the issue seldom arises, an ample body of case law exists among the other states that can act as a guide when it does. Courts have a variety of remedies available to ensure the equitable and expeditious adjudication of both parties' rights and claims. Just as important as one party's right to claim the privilege against self-incrimination, is the other party's right to discover evidence relevant to the fair resolution of his or her claims and defenses without undue delay.

Among the states that have addressed the issue, there are two widely accepted remedies. One allows the fact finder to draw an adverse inference against the party invoking the Fifth Amendment privilege against self-incrimination. This remedy follows the established rule recognized by the United States Supreme Court in Baxter v. Palmigiano that the Fifth Amendment does not forbid adverse inferences against parties to civil actions. The other common remedy allows the court to deny the spouse who invokes the privilege affirmative relief if he or she refuses to answer questions relevant to the issues.

For instance, in Griffith v. Griffith, a divorce proceeding, the wife sought the affirmative relief of permanent alimony. Since adultery was a criminal offense in South Carolina, the parties stipulated that they had been granted immunity from prosecution for adultery. Nevertheless, the wife still invoked the privilege against self-incrimination and refused to answer questions regarding adultery, since proof of adulterous conduct under some circumstances acted as a bar to alimony. In affirming the trial court's decision that the immunized wife could not assert the privilege and seek the affirmative relief of alimony, the appellate court noted that almost all of the states that have confronted the issue of whether a spouse may continue to request the affirmative relief of alimony while denying the opposing party the opportunity to cross-examine on the subject of the alleged adultery have held that the spouse must choose between invoking the privilege and seeking affirmative relief. The denial of the right to seek affirmative relief under such circumstances does not violate any right guaranteed by the Fifth Amendment. The court reasoned that [i]f any prejudice is to come from such a situation, it must, as a matter of basic fairness . . . be to the party asserting the claim [of privilege] and not to the one who has been subjected to its assertion. It is the former who has made the election to create an imbalance in the pans of the scales. In addition to denying the wife affirmative relief, the court also held that the trial court erred in not drawing an adverse inference from the wife's refusal to answer questions regarding her alleged adultery. In so doing, the court again noted that the majority of jurisdictions confronted with the issue have followed the rule articulated in Baxter, supra, and held the same.
Likewise, the Supreme Court of Rhode Island in Pulawski v. Pulawski held that the trial court erred in a divorce action by granting affirmative relief to the wife and in failing to draw any negative inference against the wife even though she invoked the privilege against self-incrimination. The Court found that the imposition of sanctions upon a party who seeks affirmative relief and the drawing of adverse inferences against such a party when he refuses to answer relevant questions on self-incrimination grounds are widely accepted in both state and federal courts.

In Kentucky, practitioners can ask the court to deny relief to a spouse who invokes the privilege and to draw adverse inferences against him or her using the same legal principles. For instance, if a spouse invokes the privilege as to financial information and also asserts a claim for maintenance, then the practitioner should ask the court to deny that spouse's claim for said relief. While the case law cited herein refers to affirmative relief, logic and equity dictate that this remedy also be available when any spouse requests relief and then invokes the privilege regarding the discovery of relevant information for the fair adjudication of that relief. The practitioner can also ask the court to draw adverse inferences against that same party in relation to other issues that factor in the spouse's financial circumstances, such as child support or property division.

In addition to the use of the two remedies discussed above, courts have fashioned other solutions. For instance, some courts have required the dismissal of the divorce petition when the plaintiff spouse refuses to waive his or her privilege against self-incrimination. In so holding, those courts reason that in cases with private litigants, one party's right to claim the privilege against self-incrimination must be balanced against the other party's right to due process and a fair trial. If a plaintiff is allowed to present sufficient facts to state a cause of action in order to seek affirmative judicial relief, the defendant cannot be denied the right to discover all relevant facts and evidence in his or her attempt to avoid liability. As one court succinctly stated, one seeking equity must do equity. A party should not be allowed to use the privilege against self-incrimination as both a shield and a sword.

Courts have also utilized the remedy of striking a party's pleadings. In Franklin v. Franklin, the wife refused to answer interrogatories and testify regarding the status of her prior marriage, invoking the privilege against self-incrimination. At the same time, the wife, plaintiff in the divorce action, sought temporary alimony. By invoking the privilege, she refused to reveal facts that were critical to an accurate and fair adjudication of her right to divorce and to temporary support. The Supreme Court of Missouri, applying principles of equity, found that if a party refuses to answer oral or written interrogatories which request relevant and material facts that are solely within the knowledge of the party, the court may strike that party's pleadings.

Lastly, courts have denied a party the right to rely on evidence about which they refuse to testify. In In re the Marriage of Hassiepen, the husband invoked the privilege against self-incrimination during cross examination when asked questions regarding why he had filed multiple tax returns late and why he had yet to file one year of returns. However, the husband wanted the trial court to consider those same returns as evidence of his income in determining the amount of his child support obligation. The appellate court held that if the husband wanted the trial court to consider the tax returns as evidence, then he must testify regarding any relevant questions about them, reasoning that the cross examination of the husband goes to his credibility and the legitimacy of the tax returns. Therefore the court held that the trial court erred in considering the tax returns. The husband needed to choose either to assert the privilege against self-incrimination and not rely upon the tax returns as evidence of his income, or to submit the tax returns as evidence and not assert the privilege during cross-examination. It is important to note that the court's limitation on the husband's use of the tax returns did not extend to the wife. The wife was free to use the returns in any legitimate way that she desired.

This review of case law reveals that the remedies available to a Kentucky court span a wide range of extremes and potential efficacy. On the one extreme, courts may dismiss the divorce petition altogether if the plaintiff spouse invokes the privilege. However, this solution not only penalizes the plaintiff spouse, but also unfairly penalizes the defendant spouse if he or she wants a divorce. Instead of balancing the parties' rights, this remedy voids everyone's rights. Of course, the defendant spouse may then file his or her own petition, but not without the likelihood of incurring additional court costs and attorney fees. On the other hand, the least extreme remedy, drawing adverse inferences against the party that invokes the privilege, is inadequate. While this remedy may be helpful to parties not claiming the privilege, it does not necessarily get them where they need to go. In many instances, when the court draws all adverse inferences, the resulting conclusion will still fail to provide an accurate picture of the parties' finances. Thus, the non-invoking spouse may still receive significantly less in a division of property or determination of maintenance or child support than he or she is due. Those remedies that fall somewhere in between the two extremes seem to offer the most effective and equitable solution to the court's need to balance the rights of both parties. Denying affirmative relief, striking a pleading, and/or denying the right to rely on certain evidence, all seem to strike the right balance, maintaining a spouse's right to invoke the privilege as well as the other spouse's right to a fair adjudication of his or her rights and claims without unwarranted delay. As such, Kentucky practitioners should carefully examine the facts and circumstances of their case to determine which remedy would best benefit their client.

1. 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976).
Affirmative relief is defined as the “relief sought by a defendant by raising a counterclaim or cross-claim that could have been maintained independently of the plaintiff’s action.” Black’s Law Dictionary (8th ed. 2004), relief.
2. 506 S.E.2d 526 (S.C. App. 1998).
3. Id. at 529-530.
4. Id. at 530. (citations omitted).
5. Id. at 531-532.
6. 463 A.2d 151 (R.I. 1983).
7. Id. at 156. (citations omitted).
8. See Christenson v. Christenson, 162 N.W.2d 194 (Minn. 1968), Stockham v. Stockham, 168 So.2d 320 (Fla. 1964), and Minor v. Minor, 232 So.2d 746 (Fla. App. 1970), affirmed by Minor v. Minor, 240 So.2d 301 (Fla. 1970).
Id.
9. Christenson v. Christenson, 162 N.W.2d 194, 202-203 (Minn. 1968)
10. Minor v. Minor, 232 So.2d 746, 747 (Fla. App. 1970) affirmed by Minor v. Minor, 240 So.2d 301 (Fla. 1970).
11, 283 S.W.2d 483 (Mo. 1955).
Id.
12. 646 N.E.2d 1348 (Ill. App. 4 Dist. 1995).

Sarah Jost Nielsen is an associate with Diana L. Skaggs + Associates.

Court Orders Blog Post By Divorce Litigant Removed

Thanks to Indiana Law Blog for spotting and posting HUSBAND POSTS ABOUT PENDING DIVORCE IN BLOG, COURT ORDERS POSTING REMOVED. Check it out.

Child Custody Decisions and the Constitution

When I read Wireman v. Perkins, digested here, I thought the underlying constitutional questions were interesting. While not mentioning this recent Kentucky decision about religious upbringing of children in the child custody context, scholar Eugene Volokh's analysis here of constitutional issues in custody questions indicate the Kentucky Court of Appeals reached the correct result. Some quotes from Child Custody Decisions and the Constitution:

The Supreme Court's 1984 Palmore v. Sidoti decision is an excellent example: The Equal Protection Clause bars a judge from granting custody to one parent instead of another based on the other parent's having entered into an interracial relationship (or marriage). And this is so even if the judge sincerely (and perhaps even reasonably) believes that a child might face more social problems if the child is reared in a mixed-race family.

Likewise, many state courts have held that judges can't restrict a visiting parent's exposing his children to his own religion, even when the custodial parent is teaching a different religion, at least in the absence of a showing of likely serious harm to the child. A judge may theorize, perhaps even plausibly so, that it's better for children to learn one religion rather than two rival ones. But he can't implement his theory through an order restricting one parent's teachings, since that would violate the Free Exercise Clause.

Several state courts have similarly held that judges can't hold a parent's lack of religion against him in a child custody proceeding -- again, even if the judge sincerely believes that it's in a child's best interests to grow up in a more religious home. The Establishment Clause bars such preferences.

It seems to me these courts are quite right. Indeed, a parent's Due Process Clause right to have custody of the child may have to give way in divorce cases, since both parents can't live apart and at the same time live together full time with the children, and since even joint legal decisionmaking for the child may be impossible when the parents are unable to get along; but this reason for restricting parental rights generally doesn't justify restrictions on Equal Protection Clause, Free Exercise Clause, Establishment Clause, and Free Speech Clause constraints on the government.

Likewise, perhaps even these constitutional constraints must give way when genuinely necessary to prevent likely serious harm to the child, on a sort of "compelling government interest" rationale; I'm skeptical of that in many instances (see my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006)), but I see the force of the argument. But I don't think that a simple desire to serve the child's best interests slightly better (in the family judge's view) justifies departing from the constitutional constraints.

That's why I'm so troubled when some family courts do prefer the more religious or churchgoing parent over the less religious or churchgoing parent, in my view a blatant violation of the Establishment Clause. That's why I'm troubled when some family courts restrict parents' teaching their children various disfavored ideologies, whether racism, Communism, support for the propriety of homosexuality, hostility to homosexuality, support for the propriety of polygamy, Wiccanism, and so on. And that's why I'm troubled when family courts suggest that parents could be penalized because they don't teach their one-quarter Korean children things that all-white children needn't be taught, or because they don't live in sufficiently "divers[e]" neighborhoods.

A family court judge necessarily has broad power over children's (and therefore parents') lives. It doesn't follow, though, that this power should be entirely free of the Equal Protection Clause, Establishment Clause, Free Exercise Clause, or the Free Speech Clause.

UPDATE:From Marcia Oddi of Indiana Law Blog,

Our COA in 2005 threw out a provision in a decree which read "That the parents are directed to take such steps as are needed to shelter [the child] from involvement and observation of these non-mainstream religious beliefs and rituals[.]" The trial judge inserted it on his own, upon finding out that both parents were Wiccans. The Indiana CLU sued. The COA threw out the provision on non-constitutional grounds. The trial court judge was recently appointed to the COA by our Governor. Here are the links.

'Lawrence' Fails to Open Floodgates to Unfettered Sexual Freedom

'Lawrence' Fails to Open Floodgates to Unfettered Sexual Freedom is the title of an article by Howard J. Bashman published here as a special to Law.com March 5, 2007. Those in the blogosphere know Howard as the author of the excellent blog, How Appealing. I am pleased the article mentioned his private practice, a litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. Here are some excerpts:

Perhaps owing to the nation's puritanical origins, in the United States we love to legislate about sex -- even sex between consenting adults or between consenting adults and inanimate objects.

In the aftermath of the U.S. Supreme Court's 2003 ruling in Lawrence v. Texas invalidating a Texas ban on homosexual sodomy between willing adult participants, many wondered whether other laws regulating sexual conduct between consenting adults would be vulnerable to legal challenge.

If two recently issued appellate court rulings are any indication, the post-Lawrence fears of those concerned that public morality would no longer remain a valid basis for legislating consensual sexual conduct have proven to be overblown. Instead, these rulings demonstrate that, even where consenting adults are involved, Lawrence has failed to usher in an "anything goes" era, free from governmental interference.

In the more recent of the two rulings, the Supreme Court of Ohio late last month rejected a man's challenge to a state law that criminalizes sexual conduct between a stepparent and stepchild even if both are adults and unrelated by blood, and both willingly participate in the conduct. In seeking to challenge the law as unconstitutional as applied to his case, the stepfather argued that Ohio had no legitimate interest in regulating sex between consenting adults.

However, Ohio's highest court disagreed by a vote of 6 to 1. The majority's opinion observed that "Lawrence did not announce a 'fundamental' right to all consensual adult sexual activity, let alone consensual sex with one's adult children or stepchildren." The Ohio justices found that, while the Texas statute in Lawrence was unconstitutional under the so-called "rational basis" test, a rational basis existed for Ohio to prohibit even consensual sex between a stepparent and an unrelated stepchild.

The legitimate interest that the Ohio court recognized was the state's interest in protecting the family unit and family relationships. The Supreme Court of Ohio went on to recognize that if the stepfather and stepdaughter wished to have the ability to engage in sexual relations free from government regulation, they could do so -- if the stepfather divorced the stepdaughter's biological mother.

He had this to say about the 11th U.S. Circuit Court of Appeals decision that resulted from an effort to invalidate an Alabama law prohibiting the commercial distribution of sex toys and the fallout from Lawrence:

The 11th Circuit's opinion explains: "[T]he ACLU argues [that] this case is indistinguishable from Lawrence -- just as in that case, in this case there is no legitimate state interest, including public morality, that supports the challenged Alabama statute."

But the 11th Circuit disagreed, observing that "while the statute at issue in Lawrence criminalized private sexual conduct, the statute at issue in this case forbids public, commercial activity."

Thus, the 11th Circuit ruled, "we find that public morality survives as a rational basis for legislation even after Lawrence, and we find that in this case the State's interest in the preservation of public morality remains a rational basis for the challenged statute."

For that reason, the court affirmed the Alabama federal district court's most recent ruling in the case and refused to invalidate that state's statute prohibiting the commercial distribution of sex toys.

In the immediate aftermath of Lawrence v. Texas, legitimate questions arose concerning the likely fate of other laws seeking to regulate the sexual conduct of consenting adults. Now, nearly five years later, it appears that the impact of the Lawrence ruling has been far more limited than many had initially hoped -- or feared.

Gag Orders Against Parents

May a court prohibit a parent from discussing religious beliefs with a child? An audio of the NPR interview with UCLA constitutional law professor Eugene Volokh last weekend is available online. Last year we posted Parent-Child Speech Restrictions; Will Best Interests Withstand Constitutional Challenge? linking to Prof. Volokh's significant piece of legal scholarship, Parent-Child Speech Restricitions. Prof. Volokh has a number of related posts at Volokh Conspiracy.

Cabinet for Health and Family Services, et al v. A.G.G. and W.E.G.

Cabinet for Health and Family Services, et al v. A.G.G. and W.E.G., 190 S.W.3d 338 (Ky. 2006)
Issues and Holdings:
1. Whether the evidence was sufficient to terminate parental rights. The Court held yes, the evidence was sufficient.
2. Whether out-of-court statements made by a child to a therapist and pediatrician describing sexual abuse were admissible under the hearsay exception for statements made for purposes of medical treatment or diagnosis. The Court held yes, that the statements were admissible under the hearsay exception.
3. Whether the Sixth Amendment right of confrontation, as outlined in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), applied to termination of parental rights proceedings. The Court held no, the right of confrontation is not applicable in such proceedings because termination of parental rights proceedings are civil and not criminal.

Facts:
A.G.G. and W.E.G., both mentally disabled, are the parents of two children, N.E.G. and A.E.G. The family lived at two residences, their own home and the home of the children’s paternal grandparents. The Cabinet found both residences to be unsafe and in poor condition and the children to have poor hygiene, missed school, and delayed learning. The parents ignored appointments with social workers. The Cabinet also learned that two paternal uncles, who lived primarily at the paternal grandparents’ residence, were possible sexual offenders. There was evidence that at least one of the uncles sexually abused N.E.G. at the paternal grandparents’ residence.
The Cabinet made numerous recommendations, which were adopted by the family court as a disposition order. The recommendations included regular school attendance, improved home sanitation and hygiene, and that the children have no contact with certain paternal relatives. The parents failed to comply and the children were removed to foster care. The foster mother later observed N.E.G. sexually acting out with A.E.G. and other children. After repeated failure of the parents to respond to family services, the Cabinet filed a petition to involuntarily terminate parental rights.
The family court terminated the parental rights of both parents after a two day trial. The Court of Appeals reversed and remanded for a new trial, holding that the family court admitted improper hearsay evidence in violation of the holding in Crawford v. Washington. The Supreme Court granted discretionary review.

Analysis:
First, the Court held that the evidence was sufficient to terminate parental rights. The Court found that the family court’s findings of fact were not clearly erroneous and were supported by clear and convincing evidence. The Court found that there was ample evidence that N.E.G. was sexually abused and that the parents created a risk that an act of sexual abuse would be committed on A.E.G.
Second, the Court held that the statements made by N.E.G. to his therapist and pediatrician were admissible at trial under KRE 803(4), the hearsay exception for statements made for purposes of medical treatment or diagnosis, even though the therapist was not a physician. N.E.G. made statements to the therapist regarding sexual abuse by his two uncles and father. Such statements were admissible, even though the therapist was not a physician, since the therapist testified that she intended to provide any needed therapy for the child’s mental health. N.E.G. made statements to the pediatrician regarding sexual abuse by one of his uncles. Such statements were admissible since the physician was diagnosing and treating the child for suspected abuse.
Finally, the Court rejected the Court of Appeals’ reliance on Crawford to exclude the above statements. The Court found that Crawford was not intended to apply where the Sixth Amendment does not apply, such as in civil proceedings. Since termination of parental rights proceedings are civil, not criminal, Crawford does not apply. The Court also rejected the Court of Appeals’ reliance on G.E.Y. v. Cabinet for Human Resources, 701 S.W.2d 713 (Ky.App. 1985), for the proposition that hearsay exceptions do not apply in termination of parental rights proceedings. The Court noted that it had narrowed the holding of G.E.Y to permit the introduction of portions of the Cabinet’s investigative file that would be admissible if the social worker testified in person. Thus, G.E.Y. did not preclude the introduction of the statements of N.E.G. to the therapist and pediatrician.
The Court reversed the Court of Appeals and reinstated the judgment of the family court.

KY Law: Preference For Prior Born Children Does Not Violate Equal Protection Clause

"The Kentucky child support statutes, like those of most states, provides a preference for prior-born children when calculating child support. In this case of first impression, the Kentucky Court of Appeals holds that this preference does not violate equal protection. 'We agree with [other state] courts that the state's interest in seeing that prior-born children are provided for is a rational basis for the provision at issue in KRS 403.212(2)(g)(4). Clearly, the intention of the statute is not to deny financial resources to later-born children, but rather to make sure prior-born children are being supported. While in some cases application of the statute may result in later-born children having access to fewer financial resources than prior-born children, "[e]qual protection does not require there to be a perfect fit between means and ends.' Kimbrough v. Commonwealth ex rel Shantrece Laniece Belmar, 2006 Ky. App. LEXIS 226 (July 21, 2006) Opinion on the web (last visited July 24, 2006 bgf): Source Family Law Prof Blog," which links to the opinion.

Rights of Noncustodial Parent to Care and Companionship of Child

The Arizona Family Law Blog reports and links to a 9th Circuit case ruling on the constitutional liberty interests a noncustodial parent has to the care and companionship to a child.
Update: Case digest from the Family Law Prof Blog.

U.S. Supreme Court : Confrontation Clause in Domestic Violence Cases

DAVIS v. WASHINGTON (Nos. 05-5224 and 05-5705) together with No. 05-5705, Hammon v. Indiana, on certiorari to the Supreme Court of Indiana, was handed down yesterday. The link is to the syllabus, which states the holding of the opinion by Justice Scalia is as follows:

1. The Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U. S. 36 . These cases require the Court to determine which police “interrogations” produce statements that fall within this prohibition. Without attempting to produce an exhaustive classification of all conceivable statements as either testimonial or nontestimonial, it suffices to decide the present cases to hold that statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary

State Constitutional Amendments Banning Same-Sex Marriage May Impact Domestic Violence Statutes and Unmarried Women

From The Family Law Prof's Blog: Commentary: Do State Constitutional Bans on Same-Sex Marriage Impact Domestic Violence Statutes and Unmarried Women?
and
Another Ohio Appellate Court Holds Domestic Violence Statute Unconstitutional under Ohio's Defense of Marriage Amendment

Parent-Child Speech Restrictions; Will Best Interests Withstand Constitutional Challenge?

Eugene Volokh, a professor at UCLA School of Law, a prolific writer, and in a former life a law clerk to Justice Sandra Day O'Connor, will publish this month a significant piece of legal scholarship, Parent-Child Speech Restricitons. I am please to have his permission to link to the draft.

Queries: Should courts be permitted to restrict exposure of children to movies of a certain rating; to comments that homosexuality is a sin, that racists are bad people, that contradict the other parent's religious teachings, or that are profane; to gun-themed magazines; to pictures of "drag queens;" to unfiltered internet access; or to music with vulgar sexual content? May courts restrict a parent from teaching children values that may differ from the other parent's on such issues as abortion or gambling? Is it a constituitonal vioaltion to prohibit a parent from telling a child that the other parent is not biologically related?

After an extensive review of speech that may be constitutionally enjoined and an analysis of the subjectivity of the "best interest of the child" standard, he offers tentative proposals for the development of this area of law. He believes the "best interest of the child above all" standard conflicts in some cases with First Amendment, Equal Protection Clause and Free Execercise Clause rights of parents. It is his opinion that it is probably constitutional to have even a per se ban on custody where a parent has seriously abused a child, at least when only one of the parents is the abuser. He also believes it is constitutional to consider most of a parent's non-speech behavior under a best interest analysis. He notes that a parent's interracial relationship may not be constitutionally considered. He offers thought provoking proposals on the constitutional restrictions of a parent's speech regarding ideological teachings, religious teachings that are inconsistent with the other parent's, and ideological and non-ideological speech that hurts the relationship with the other parent. A recurrent note is of restrictions on speech to children from "split" families when a court lacks to the power to do so in intact families.

His New York University Law Review article will be helpful to family law practitioners litigating such matters and to appellate practitioners. James G. Dwyer, a professor at the College of William and Mary published a book last month, "The Relationship Rights of Children," which frames the issues from a different perspective, but which Prof. Volokh addresses in his article.

We see these issues on a frequent basis. My guess is that these two publications will fuel discussion and development in the law, and that we will see related "point-counterpoint" at national family law CLE. We will likely see debate in the blawgosphere, too.

On Derby Day Ben Cowgill on Legal Ethics wrote about and linked to a posting in Prof. Volokh's blog, The VolokhConspiracy, in which he references more recent court citings to blogs than to law review journals.

Just as only the foolhardy would draft a trust as part of an estate tax saving provision of a divorce settlement without consulting an estate attorney, we should think about involving attorneys who specialize in constitutional law as we take these issues up. The constitution is about to meet head-on with family law in a big way.