Divorce Law Journal

Link to Western District of Ky Memorandum Opinion Recognizing Same-Sex Marriages Performed in Other States

Bourke v. Beshear

A.C. v. Com., Ky COA, Due Process, Contempt, Juvenile Status Offenders

A.C. v. Com., 2009-CA-000714-ME  

Published:   Vacating, Remanding, and Denying Motion to Dismiss

County: JESSAMINE

 

Child appealed FC’s order finding her in contempt of court for violation of juvenile probation.

 

FACTS:

Parents filed “beyond control” juvenile complaint against Child in 2007, and Child requested formal hearing.  A proceeding occurred as a result of the Complaint, but evidence was not taken and the record does not reflect that Child admitted to being beyond control.  FC nonetheless found that Child was beyond control of her parents and entered a “Juvenile Status Offender Order” finding Child to be a status offender.  Child was ordered to serve 1 year of probation per the terms of the Order, which would end in June 2008.  During the probationary period, Cabinet filed a DNA petition with regard to Child, alleging physical and emotional abuse and neglect of Child by Mother and Stepfather.  During one of the early proceedings in the DNA case, Stepfather stated that Child needed to leave the home or he would.  In Child’s presence, FC asked Mother who she would choose.  When Mother failed to choose, FC placed Child with Father, ordered no contact with Stepfather, and allowed Mother supervised visitation.  At adjudication hearing, FC found Child to be abused and continued previous visitation orders.  DNA case was closed in September 2008.  Nonetheless, a March 2009 summons was issued to Father, requiring him to bring Child to court, and Cabinet filed a Motion to Review in the DNA action.  A hearing was heard on the Motion to Review, but FC focused on a contempt charge for alleged violations of her probation, despite the fact that the probationary period had expired.  Child had received no notice that the proceeding would address an alleged violation of her probation.  Child was not allowed counsel during this proceeding, despite the presence of all other counsel.  No evidence was introduced at this hearing and Child did not admit to the allegations against her.  FC admonished Child, revoked her probation, and order her placed with DCBS for no more than 30 days. 

 

ANALYSIS:

CA found that FC, amongst many other procedural irregularities, failed to hold a hearing on the original “beyond control” complaint as required for FC to find Child to be a Status Offender.  However, since no appeal was taken from that Order, CA was without jurisdiction to reverse the Order. 

 

CA further found that Child was not provided written notice of the specific grounds constituting her alleged probation violation prior to appearing in court. Furthermore, pursuant to KRS 610.265(3)(d) and KRS 610.060(2)(a), FC erred when it heard arguments from the Cabinet, the County Attorney, the GAL, and the attorneys for Child’s parents for more than five minutes during the hearing without Child’s counsel being present to represent her. However, Child was given the opportunity to speak with her attorney prior to FC finding her in contempt for violating the terms of her probation. Nonetheless, no evidence was taken on the alleged violations, and Child did not admit to them. FC also failed to provide a written statement as to the “evidence” it relied upon in support of its finding of contempt and its decision to revoke her probation.  Accordingly, the proceeding which led to Child’s detention was replete with due process violations. The order of March 12, 2009, must be vacated because FC had no jurisdiction to hold her in contempt once the 2007 status offense action expired pursuant to the terms of Child’s probation. 

 

FC’s Order vacated.

 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

 

 

 

Young v. Holmes, Joint Custody, Ky COA Affirmed Order Of Religious School

Young v. Holmes, __ S.W.3d __ (Ky. App. 2009)

           The parties share joint custody of their minor child and could not agree as to where the child should attend kindergarten.  The trial court held a hearing and found that it was in the best interests of the child to attend St. Athanasius School.  Young appealed.  Young argued that the order violates her First Amendment right to religious freedom and that the court could only appropriately order the child to attend St.Athanasius if it found that he had special needs that would require him to attend a private school. 

COA affirmed.  The trial court used the correct standard of best interests of the child and did not base its decision on religious interests.  Young had the burden to prove that “the decision of the trial court was based upon religious interests and such impropriety would not be presumed merely because the school selected had a religious connotation in addition to its academic offerings.”  Therefore, the order did not violate the First Amendment.  Further, the trial court was not required to find that the child had special needs prior to ordering that he attend a private school, since Holmes voluntarily undertook the additional cost of the child’s private education.  Miller v. Miller and Smith v. Smith, cited by Young for that proposition, addressed situations where the trial court had imposed upon a party the additional cost of private education, and thus were not controlling authority in the instant case.    

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

P.C.C. v. C.M.C., Ky COA, Step-parent Adoption, Termination Of Parental Rights,Due Process

P.C.C. v. C.M.C., __ S.W.3d __ (Ky. App. 2009)

           P.C.C. appealed the judgment of adoption which effectively terminated his parental rights and allowed the child’s stepfather to adopt him.  P.C.C. and K.R.C. were married and had a son.  The parties divorced and agreed that K would have sole custody and P would have a set visitation schedule with the child.  K then married C.M.C., who filed a Petition for Adoption and Termination of Parental Rights.  P objected, arguing that C lacked standing to initiate termination proceedings, and he filed a motion to enforce his visitation rights in the divorce matter.  The trial court refused to hear P’s visitation motion unless the adoption petition was ultimately denied.  Pursuant to KRS 199.502, the court granted the adoption petition and terminated P’s parental rights on the theory that P had abandoned the child for more than 90 days by failing to exercise his visitation rights.

            COA reversed and remanded.  P was not afforded fundamental due process throughout the litigation.  C also failed to meet his burden of proof that P abandoned the child.  The evidence indicated that throughout the child’s life his father’s attempts to visit with him had been “systematically thwarted” by the child’s mother.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Kessler v. Switzer, Ky COA, No Hearing Required For Extension of DVO

Kessler v. Switzer, __ S.W.3d __ (Ky. App. 2009); 2008-CA-002083-ME

Switzer filed a motion to extend a domestic violence order (DVO) and attached an affidavit stating that she had filed charges against Kessler for violation of the DVO and that she was still in fear of Kessler. When the matter came before the court, Switzer’s counsel informed the court that the charges had been dismissed. Kessler objected to the court ordering the extension without holding a hearing in which Switzer could testify and be cross-examined. He also objected to the extension on the grounds that there was no legal standard for granting such extensions. The trial court granted the extension and this appeal followed.

The COA affirmed. The statute does not require that a hearing be held or that evidence of additional acts of domestic violence be presented in order for the court to grant an extension of a DVO. The trial court properly considered the facts and circumstances of the case. COA also found that Kessler waived his constitutional claims since he failed to follow the proper procedure pursuant to KRS 418.075.

Judge Caperton’s dissent: The trial court should not have accepted the allegations made in Switzer’s affidavit without the test of cross-examination.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Ruby v. Ruby, Ky COA, Domestic Violence, Recusal,Voluntary Dismissal

Ruby v. Ruby DOMESTIC VIOLENCE HEARINGS AND VOLUNTARY DISMISSAL 2008-CA-000122 PUBLISHED: REVERSING AND REMANDING PANEL: THOMPSON PRESIDING; MOORE CONCURS; HENRY CONCURS IN PART AND DISSENTS IN PART COUNTY: JEFFERSON DATE RENDERED: 1/23/2009

Husband appealed from TC’s entry of DVO, asserting that TC judge should have recused; that it should have granted his request for continuance and his request to obtain Wife’s mental health and prescription records; that his constitutional rights were violated because he was denied assistance of counsel, the right to confront witnesses against him, and to present his own witnesses; and that TC should have vacated DVO pursuant to an agreed order entered by the parties.

FACTS: EPO was issued against Husband after Petition for DVO filed by Wife. DVO hearing was scheduled to occur 11 days later, but Husband requested and was granted over Wife’s objection a continuance and the hearing was rescheduled to occur 15 days later. At the rescheduled hearing, Wife and her attorney appeared but Husband did not. Substitute counsel appeared on Husband’s attorney’s behalf and stated that Husband’s attorney was ill and that court staff informed Husband’s attorney that the hearing was continued. TC learned from staff that they did not inform Husband’s attorney that hearing was continued. TC contacted Husband’s attorney at home and informed him that the hearing would proceed. Substitute counsel moved for TC judge to recuse himself as Husband was an attorney that had practiced in his court. TC judge refused.

Wife testified as to extensive injury inflicted by Husband, and Husband’s substitute counsel was given the opportunity to cross-examine Wife. TC then ordered that it would hear testimony from Husband one week later, but that no other testimony would be heard. At that hearing, Husband testified that argument between Husband and Wife occurred because of Wife’s irrational behavior and that her injuries resulted from her tripping over an open dishwasher door.

One week after Husband’s testimony, TC found that Husband abused Wife and that abuse may occur in future and therefore entered DVO prohibiting contact between parties. Two days later, Husband filed motion to vacate DVO, stating that parties were attempting reconciliation and included Agreed Order in which Husband and Wife requested DVO dismissal. TC denied motion but amended DVO from “no contact” order to “no unlawful contact” order.

Judge Recusal: CA held that recusal is not necessary merely because an attorney has practiced before a judge. Only when a judge would be biased against one party is recusal required.

Continuance of Hearing and Constitutional Issues: KRS 403.740 requires that a DVO hearing be conducted within a limited time. Husband had already been granted one continuance, thus it was not an abuse of discretion for TC to deny second continuance. Regarding Husband’s contention that he was not allowed to present witnesses on his behalf, CA held that TC could have entered its decision based only on evidence presented at initial hearing date, which would not have included Husband’s testimony, and that TC gave Husband more than he was entitled to by granting the additional date for Husband to testify. Regarding his claim that he could not confront witnesses, substitute counsel for Husband did cross-examine Wife though Husband was not present.

Husband also contended that he should have been able to call Witnesses to testify on his behalf and specifically complained that though he subpoenaed Wife’s brother and sister-in-law to appear at the second hearing date, TC judge refused to hold those witnesses in contempt. CA held that language of Kentucky statutes regarding disobedience of a subpoena is permissive and does not require the court to issue contempt citation or warrant to bring witnesses before court. The effect of issuing the citation or warrant would be to grant Husband’s second continuance, and weighing this against the possible relevancy of the testimony in question, TC’s refusal to hold witnesses in contempt was justified. The same reasoning applied to Husband’s complaint that TC should have granted his motion to compel Wife’s medical and psychiatric records; not only was the motion improperly noticed, but granting the motion would have given Husband his second continuance.

Joint Motion to Vacate DVO: Though TC found that domestic violence had occurred and would probably re-occur, parties requested just two days later to have DVO vacated. CA held that while a domestic violence petition is pending, victim can seek dismissal under CR 41. Where DVO has been entered, however, TC has discretion to deny parties’ requests to vacate, after inquiring into the voluntariness of victim’s participation in the request. TC here only asked Wife if she agreed to vacating DVO, to which she responded only “yes.” CA held that TC should have inquired further into circumstances that caused her to enter the agreement and could deny the motion only after making specific findings supporting its denial.

Reversed and remanded.

DISSENT:

TC is in best position to determine whether hearing should be required on Joint Motion to Dismiss. Given that Motion was filed such a short time after DVO entered, there was no abuse of discretion.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

One To Be Published Ky COA Family Law Decision Released 2/6/09; None Released 1/30/09 Due To Weather

A digest of Hines v. Carpenter will be posted shortly. It affirms the denial of motion to compel lump sum payment for damages where father posted supersedeas bond on judgment for back child support.

A.P. v. Commonwealth, Ky COA, Termination Of Parental Rights, Due Process Right To Counsel

A.P. V. COMMONWEALTH OF KENTUCKY, CABINET OF HEALTH & FAMILY SERVICES, B.M.P.
2008 WL 4601312
2008-CA-000730,
PUBLISHED: VACATING AND REMANDING
PANEL: CLAYTON PRESIDING; ACREE AND KELLER CONCUR
COUNTY: TRIMBLE
DATE RENDERED: 10/24/2008
ISSUE:
Mother appealed TC’s judgment involuntarily terminating her parental rights to Child, contending that her due process rights were violated, that her counsel’s assistance was ineffective, and that the findings of fact were not supported by clear and convincing evidence. CA agreed as to the due process issue, and therefore, vacated and remanded.

FACTS:
Cabinet filed DNA petition which alleged that Mother’s Stepfather had abused the child while Mother and Child were living with him and Maternal Grandmother. Mother subsequently permitted contact between Child and Mother’s Stepfather in violation of safety plan. After hearings, Child was placed with Father and then at the Home of the Innocents and Father’s parental rights were terminated. At a permanency hearing, TC ordered that the goal be changed to adoption. Cabinet filed an involuntary termination of parental rights against Mother and a GAL was appointed and Mother was appointed an attorney. A bench trial occurred over two days. On the first day, all the parties including Mother appeared, but her counsel was not present due to inclement weather in Northern Kentucky. TC tried unsuccessfully to reach him. TC then allowed clinical psychologist to testify, though Mother did not have attorney present, because the psychologist traveled from Frankfort to be there. TC provided that Mother’s attorney would not be limited in his cross-examination of the psychologist. Mother was never questioned about whether or not she wished to proceed with the hearing without her counsel present.
At the conclusion of psychologist’s testimony and cross-examination by GAL, TC again attempted to contact Mother’s attorney to ascertain whether the trial could be resumed later in the day. When TC could not reach Mother’s attorney, it allowed Child’s therapist to testify because she would not be able to testify at second trial date. During therapist’s testimony, Mother’s attorney called TC and advised that he would be unable to make the hearing that day due to the road conditions but that it was fine for the court to continue without him.
On the second day of trial, Mr. Adams had no questions for either psychologist or therapist both witnesses were released. CA record did not demonstrate whether or not Mother’s attorney had reviewed the tapes from first day of trial. The Cabinet called five more witnesses. The only witness called by Mother’s attorney was Mother. At the conclusion of the trial, TC called upon CASA volunteer. Although she was not sworn in, she was asked by TC to give a 90-second synopsis of her involvement and recommendation for the child to the court. In fact, CASA volunteer was present during the entire trial, having not been asked to leave during the testimony of the other witnesses.

ANALYSIS:
On appeal, Mother contended that as her counsel was not present during the first day of the termination hearing, her due process right to a fair hearing was violated. CA agreed.
Kentucky’s statutory scheme to protect children and to adjudicate parental rights provides for the appointment of counsel throughout all the proceedings. CA found that the failure of Mother’s counsel to be present on the scheduled day of the trial during the testimony of the first two witnesses could have made a difference in the family court termination proceeding. CA found that the judge, the Cabinet’s counsel, and GAL all indicated uneasiness with the proceeding since Mother’s counsel was not present. Unfortunately, the focus seemed to be on the witnesses’ convenience rather than the mother’s fundamental right to be properly represented during the trial.
Upon remand, TC was to conduct another termination hearing under KRS 625.080, and Mother shall be represented by counsel during the entire proceeding. CA held that such a serious matter, possible loss of this elemental societal relationship between parent and child, requires complete deference to providing for all the parent’s due process rights.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Marshall v. Com, Ky COA, Flagrant Non-Support, Due Process

MARSHALL V. COM.
2007-CA-001320
PUBLISHED: VACATING AND REMANDING
PANEL: TAYLOR PRESIDING; CLAYTON, MOORE CONCUR
COUNTY: GRAVES
DATE RENDERED: 8/28/2008

Father appealed TC’s order revoking his conditional discharge upon offense of flagrant nonsupport.

FACTS:
After Father had failed to honor terms of conditional discharge, TC held hearing on Commonwealth’s motion to revoke the discharge. Father argued and testified that he lacked ability to pay the ordered child support. TC revoked his conditional discharge and ordered that he be imprisoned for the remainder of his sentence.

ANALYSIS:
On appeal, Dad first argued that TC violated his constitutional rights under the due process clause of the Fourteenth Amendment of the United States Constitution, and under Sections One, Two and Eleven of the Kentucky Constitution when it refused to examine possible alternative punishments to imprisonment and denied him his freedom even though he did not willfully refuse to pay his child support, as he was “too poor to pay his support obligation” and that TC was required to inquire as to why he was unable to pay before revoking probation or conditional discharge. CA held that no legal authority exists requiring TC to consider alternative forms of punishment when revoking probation or conditional discharge for failure to pay child support.
Father next argued that TC’s order revoking conditional discharge did not contain findings of fact and, thus, violated his constitutional due process rights. CA held that a probation revocation proceeding must conform to the minimum requirements of due process of law, including a written statement by the factfinder as to the evidence relied on and reasons for revoking parole. The order revoking Father’s parole did not include such findings of fact. CA thus remanded to TC to make factual findings. Vacated and remanded.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

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.