Monday, April 7, 2014

Child Support Obligation After Death of the Child

David A. Shane, now 47 years old, was convicted in 1997 of the 1994 murder and feticide of 23 year old Nicole Lynn Koontz who was seven months pregnant with Shane’s co-defendant’s, Robert L. Hicks’, child. Shane is serving a 60 year sentence for the crime.

Shane and his ex-wife divorced in 1990 and have a daughter Ashlie born in 1988. He was ordered to pay $67 per week in child support. Ashlie died in a house fire in April 2006 when she was 18 years old. At the time of her death, Shane was not current on his child support payments and owed some child support arrears. In December 2012, Delaware County child support obtained an income withholding order to recover some of the child support arrears.

Shane earns $0.95 per hour working in the prison laundry and works about 37 hours per week. The Delaware Circuit Court ruled that Shane must continue to pay 55% of his prison wages to pay off the child support arrears because the child support arrears don’t terminate with the death of the child. The Indiana Court of Appeals upheld this ruling and found that Shane missed the deadline to appeal the decision by nine days.

In California, the obligation to financially support your children is taken seriously. Failure to pay child support can result in revocation of the driver’s license, or any other licenses or permits issued by the state of California, or even potential jail time. Child support arrears can’t be discharged during bankruptcy and if the paying parent dies, if there are child support arrears, the receiving parent becomes a creditor against paying parent’s estate for repayment of the arrears. While the death of the child would have terminated the current child support order, the arrears were incurred while the child was still alive and the arrears don’t get discharged because the child is no longer living. The receiving parent is still owed the money that he/she should have received as financial assistance from the other parent during that period. 

Tuesday, April 1, 2014

Update on the Pelletier Case

This is a follow up to one of my older blogs about Justina Pelletier, the 15 year old Connecticut teenager who suffers from some psychiatric and physical medical issues. Justina was removed from her parents’ custody while receiving medical treatment at a Boston area hospital and temporarily placed in the custody of the state. 

Last week, Massachusetts Juvenile Court JudgeJoseph Johnston awarded "permanent" custody of Justina to the state. Her parents are not allowed to appeal the decision until summer.

According to the Boston Globe, the Judge found there was sufficient evidence to find that Justina’s parents "were unfit to care for the complex medical and psychiatric needs of their daughter." The state has no immediate plans to return Justina to Connecticut or to the custody of her parents.

Monday, March 31, 2014

"Domestic Violence" and "Disturbing The Peace": How Should They Be Defined?

      California’s Domestic Violence Prevention Act (“the DVPA”) was intended to streamline and simplify the process of protecting victims, including children, from familial abuse.   Two recent cases have blurred the definition of “domestic violence” to a point where it is now difficult even for experienced lawyers to predict, in a given case, whether particular conduct rises to the level at which a particular judge, on a particular day,  will issue a permanent restraining order.  Since DVPA restraining orders have serious long-term consequences to the rights of the person at the “business end” *, particularly in any case involving children, this is a far from trivial concern.

     The problems start with a circular legal definition: California Family Code  (“FC”)  Section 6203 defines “abuse” as:

     (1) "... causing or attempting to cause bodily injury"; 
     (2)  sexual assault, 
     (3) "placing a person in ... ...apprehension of imminent serious bodily injury..."
      (4) (and here’s the problem) engaging in “ any behavior that has been or could be enjoined pursuant to FC 6320". 

     FC 6320, in turn, allows the court to "enjoin" any of the following:   molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, (including, but not limited to, making annoying telephone calls) ... ...destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and ... ... of other named family or household members” and may “include in a protective order a grant of the exclusive ... ...possession... ...of any animal .... The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.”

     So if a judge finds that the person to be (but not yet) restrained did any of those things which the court could have restrained, then it appears that the judge may be required to issue the both he temporary and permanent restraining order.  

The recent Court of Appeal opinion in Burquet/Brumbaugh**, echoing the earlier opinion in Marriage of Nadkarni***, expands the applied definition of “disturb the peace” . In Nadkarni, the appellate court said:

We believe that the Legislature intended that the DVPA be broadly construed in order to accomplish the purpose of the DVPA. Therefore, the plain meaning of the phrase "disturbing the peace" ... ... may include... ... a former husband's alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading and publicly disclosing her confidential e-mails. .... Datta's conduct included accessing, reading, and • publicly disclosing the content of Darshana's confidential e-mails, and that his conduct caused her to suffer "shock" and "embarrassment," to fear the destruction of her "business relationships," and to fear for her safety. In other words, Datta's conduct with respect to Darshana's e-mail account, as stated in her declaration, allegedly caused the destruction of her mental or emotional calm...
    The court of Appeal reversed the trial court’s refusal to grant a restraining order.

       In Burquet, the appellate court affirmed  trial court’s granting of a permanent restraining order, on a showing that “defendant, because of his inability to accept that his romantic relationship with the plaintiff was over, and despite plaintiff’s numerous requests that he not contact her, was engaging in a course of conduct of contacting plaintiff by phone, email, and text, which messages contained inappropriate sexual innuendos, and arriving at her residence unannounced and uninvited, and then refusing to leave and making a scene, when she refused to see him for the purpose of causing her to renew their romantic relationship.” **** There was no showing that Brumbaugh had ever threatened anyone, or attempted to enter Ms. Burquet’s residence over her objection (in fact, he left the scene voluntarily).

       What is problematic about these cases is the reliance on the parties’ past emotional history in determining what does or doesn’t constitute “abuse” which results in the issuance of a restraining order; effectively, the past emotional relationship of the parties may convert otherwise “non-abusive” conduct into conduct upon which a court can base a permanent restraining order.

      When a legal process requires judges to perform this sort of psychoanalysis, in a short hearing between (generally) unrepresented litigants, on a crowded calendar, while attempting to prevent recurrence of true domestic abuse and violence, we have a problem.

    * These consequences can include a permanent, “un-expungible”  record of the issuance of a temporary order, even if the court later finds that there is no basis for issuing a permanent order, which record will affect any sort of application which requires a background check or disclosure; a presumption that the restrained person should not be awarded sole or joint custody of any child, deprivation of the right to possess a firearm, even in the course of one’s job, and other serious, long-term consequences.  See Shebby, D.  “Hey Joe, Where You Going With That Gun: Do The Automatic Firearms Restrictions In California DVPA Orders Conflict With The Second Amendment”, ACFLS Family Law Specialist 2013:3   p. 1.

    **B248031  Los Angeles County Super. Ct. No. BQ039688 Filed 1/14/14; pub. order 2/11/14.

    ***IRMO Nadkarni (2009) 173 Cal.App.4th 1483

    **** ”“He knocked on the door and plaintiff opened it but did not invite him inside. After a short conversation she told him to respect her wishes and to leave. ‘He got angry. He started saying very—in a loud voice “I love you, I don’t know, I’m sorry.’” She was afraid of what he was going to do, and said ‘Please leave, I’m scared. I will call the police.’ ‘And that’s when he shouted at me through my door window, I want to see you do that.’ Defendant still did not leave, he paced around her porch for about 10 minutes. After about ten minutes he called her from his cell phone and told her he was leaving. He asked her not to be scared, but she was scared because he was angry. On two prior occasions during their relationship when he had gotten angry he became physical with her. He left before the police arrived.”