New Hampshire Supreme Court Reviews Family Court Decision on Home Schooling

Custody issues are almost always best-decided by parents outside the courthouse.  Sometimes, however, a school choice dispute drives post-divorce parents into the courtroom.

In a case percolating through New Hampshire, a family court judge endorsed a parenting plan between feuding parents that featured public school over home-schooling by the mother.  The case was argued before the New Hampshire Supreme Court last week with a decision expected soon.

Mother, Brenda Voydatch, claims a constitutional First Amendment right to direct her daughter's education in accord with her deeply-held religious beliefs.  Father, on the other hand, petitioned the family court for an order that his daughter attend public school.  The family court judge appointed a guardian ad litem for the child who recommended the switch to public school.

Father knows best; for now.

This case has been acquiring headlines while burning through the NH appellate courts.  The parents have already tested their respective positions on the school issue in a full-blown custody trial resulting in joint legal custody, with "physical custody" to the child's mother.

Mother attacked the family court's reliance on the so-called expert testimony of the GAL, an admitted non-expert in the comparative pedagogies sought by the parents.  Mother paid her lawyers to be troubled by the court's apparently exclusive reliance on his GAL; a sort-of "judge-in-the-field".

For their part, father's lawyers have scoffed at the notion that any constitutional issues are presented in the case at all. Father sees the family court's public school ruling as an example of tough decision-making; family court style.   His pleadings also assert that Mother has exhibited an excessive, Christian, religiosity in her curriculum that has impeded their children's socialization; read "secularization".

The dispute is certainly philosophical, if not constitutional.  Stay tuned per usual as we await the outcome of the case and report back to you.

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UM Law Grad Wins at SCOTUS in Female Prisoner Assault Case

University of Michigan Law Quad

As a young attorney back in the early-1990s, I worked for a Detroit law firm and moonlighted as an adjunct professor at the University of Detroit Mercy. The adjunct instructor gig was made possible by my willingness to teach federally mandated law courses to female prisoners at the Scott Correctional Facility in Plymouth, MI.  One of their chief complaints: sexual assaults by the guards.

The abuse was so common at Scott Correctional, the inmates initiated a lawsuit back in 1996 that eventually resulted in a $15 million jury verdict in the Washtenaw County Circuit Court.  It took until 2008 for the inmates to get their verdict and their vindication.

Earlier this week, UM Law graduate David Mills, a Cleveland, Ohio solo practitioner who's office is his kitchen table and who's mother is his paralegal, had a jury verdict reinstated by the SCOTUS in a prison guard assault case.  Mills filed a suit in federal court on behalf of Michelle Ortiz alleging that she was sexually assaulted during her one-year sentence in an Ohio penitentiary.  Ortiz alleged that she promptly reported the assault and was rewarded with a second assault the very next evening, followed by a stint in solitary confinement.

Mills' suit was a "section 1983" civil rights case which alleged that a state actor, the prison's case manager, failed to take steps sufficient to protect Ortiz's safety.  The jury awarded Ortiz $625,000, but that verdict was reversed on appeal by a panel of the Sixth Circuit Court of Appeals.

Ortiz was granted certiorari by SCOTUS to determine the procedural issue of whether a defendant that loses a motion for summary judgment, brought early in the case, can appeal a trial court's dispositive decision after a jury verdict on the merits of the case.  Luckily for Attorney Mills, the federal circuit courts of appeal are divided on this issue.

SCOTUS has now ruled that a litigant cannot wait until after a trial to appeal such a dispositive decision; the appeal must be taken interlocatory (in the middle of the case) in order for the issue to be properly preserved.

From time to time, this blog takes note of some of the problems and peculiarities arising from keeping millions of citizens incarcerated.  Obviously, in our free society, you are not free to break the law.  If you do, a stint in prison can be the result.  In the prison business, however, there are cases of clear-cut abuse.  Paying your debt to society should not equate to torture at the hands of the state.

In Ortiz, the prison guard eventually became the prisoner.  Just as Michiganders did in the Scott Correctional case, Ohioans can pick-up the tab for the incarcerated, and for the abuser's wrongful deeds.

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Adultery in the Marital Bed

Please; Not in the Marital Bed

Always poor judgment, sometimes an adulterous liason makes it into the marital bed.  If the cuckholded spouse learns of the at-home trist, the ensuing divorce is very nasty.

This circumstance was recently featured in the NYT.  The article is of note in this blog mostly because it quotes a well-known Michigan divorce attorney; Richard Roane of Grand Rapids.

With New York finally following the rest of the states in 2009, all 50-states now have "no fault" divorce laws on the books.  Each state is different, however, as to how adultery, if and when proven, is factored into the divorce judgment.

The Michigan Penal Code has long-contained a chapter on adultery, defined as, "the sexual intercourse of 2 persons, either of whom is married to a third person." The scope of the criminal conduct includes divorced but cohabiting persons. The statute requires the cuckolded spouse to swear-in as the complaining witness and has a brief statute of limitation; one year.

The adultery statute merged into the penal code in 1931. The caselaw on this "consensual" crime goes back to 1884, in a case from Berrien County; People v Hendrickson.  That case stands for the evidentiary proposition that the testimony of the un-married participant in an adulterous union (the "other woman") can supply the requisite testimony to support a conviction, subject of course, to cross examination.

In the here and now of 2011, Michigan's family courts have adhered to the "no-fault" provisions of the divorce statutes. Adultery is now a matter of private morals, with family court judges free to exercise their discretion regarding the weight to put on allegations of adultery and their attendant consequences in matters of child custody and property division.

State Senator Ron Jelinek has proposed legislation seeking to abolish adultery as a felony.  The proposed legislation, however, has not gone anywhere since being referred to the Senate's judiciary committee shortly after its introduction in February 2009.

Occasionally, the adultery statute is cited in civil cases seeking to apply what is known as the "wrongful conduct" rule which blocks a plaintiff's attempt to gain from an adulterous relationship.

Immoral, but all too common, adultery has always posed a serious threat to the traditional family unit. Adultery, however, is a rarely charged felony. Thus, it's persistence within the penal code, particularly the anti-cohabitation provision, bloats the Michigan Compiled Laws with anachronistic provisions. Transgressions are best addressed within the discretion of the family court judges.

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