Recently in Family Law Category

A U.S. appeals court has ruled that Texas can cut funding to Planned Parenthood because it performs abortions, Reuters reports.

The emergency stay was granted by 5th U.S. Circuit Court Judge Jerry Smith. It reversed a lower court injunction in favor of the organization. Planned Parenthood sued Texas last year over a law that cut state funding to any abortion providers. The stay, in essence, bans Planned Parenthood from receiving any money from the state's Women's Health Program.

So what does this mean for the over 40,000 Texas women who currently depend on Planned Parenthood for their healthcare?

An Ohio Supreme Court custody decision has given custody of a daughter to the biological mother in a lesbian relationship. The same-sex couple's custody dispute, with one partner being the biological parent and the other the non-biological parent, was decided in a 4-3 decision.

Kelly Mullen, the biological parent, had originally shared parenting responsibilities with her lesbian partner, Michele Hobbs. After the couple split, a custody battle ensued.

Hobbs argued to the court that she was intended to be the co-parent of their daughter despite not being the biological parent, reports the ABA Journal.

Will the revolution be televised? If you consider the arguments regarding California's ban on same sex marriage, Proposition 8, to be in any way revolutionary, then the answer is yes.

A federal court of appeals has ruled that both C-Span and local news station KGO-TV may televise the arguments before the court. Oral arguments are scheduled to be heard December 6.

The 9th Circuit Court of Appeals will hear the appeal from the ruling by U.S. District Court Judge Vaughn Walker finding Prop 8 to be unconstitutional. At the time the trial was scheduled, Judge Walker was considering allowing cameras in the courtroom for a live feed. However, the proponents of Prop 8 objected, saying their witnesses would be harassed or otherwise prevented from testifying freely. The U.S. Supreme Court (a body not overly fond of cameras in the courtroom) ruled the trial could not be filmed.

This week, the last state statue expressly banning all homosexual parents from adopting children was struck down by the Florida Court of Appeals. The gay adoption ban was found by the court to unconstitutionally limit same-sex families from adopting, even though they had been permitted to become parents in other ways. The Florida Department of Children and Families, who defended the law, will almost certainly appeal the decision to the state's highest court.

The Miami Herald writes that attorneys for Frank Martin Gill who, along with his partner, had been fostering their children but were not permitted to adopt them, were elated by the decision. "This is good news for the advancement of human rights and the children in Florida's troubled foster-care system," ACLU attorney Howard Simon said.

This week the California Supreme Court set up another sign-post on the legal road for Perry v. Schwarzenegger, the suit over California's ban on same sex marriage. As discussed in a prior post, the court was petitioned to force the Governor, along with Attorney General Jerry Brown, to defend the law to the court of appeals. The California Supreme Court has decided the governor and attorney general have no legal requirement that would force them to defend Prop 8.

Conservative groups have argued state authorities have a legal obligation to defend the law, reports the Christian Science Monitor. The Los Angeles Times even went so far as to editorialize that "California's top public lawyer and its chief executive have an obligation to defend the laws of the state whether they like them or not - and that should include the ban on same-sex marriage." However, it may not be so much a case of personal distaste, as one of spending scarce state resources on a law that has been declared unconstitutional by a federal court.

We are now back where we started, nearly. Late yesterday afternoon, August 16, a three judge panel of the 9th Circuit Court of Appeals made a U-turn in the legal journey of Perry v. Schwarzenegger and reinstated the stay placing same sex marriage on hold in California.

In addition to granting the motion by the proponents of Proposition 8 for a stay, the panel of judges; Edward Leavy, Michael Daly Hawkins and Sidney R. Thomas have also set the appeal itself on a fast track. In their Order, the judges set aside the previous briefing schedule and have ordered the first briefs for the appeal to be filed in September, with the appellate hearing set for the first week in December.

Depending on whom you ask, the decision of U.S. District Court Chief Judge Vaugh Walker to refuse to grant the stay motion by the proponents of Proposition 8 is either another victory for those supporting same sex marriage, a statement that nothing will change right now, or a green light for the opposition to Prop. 8, as no marriages can yet take place. In some ways, all these conclusions are correct.

Judge Walker issued his Order denying the stay on his decision to overturn Proposition 8 at about 12:30 PST, on August 12. In his order, the judge found that none of the arguments offered by the the proponents of Prop 8 were sufficient to warrant the stay. The judge reviewed the four factors necessary for granting a stay: 1. would parties seeking a stay be likely to win on appeal, 2. would parties seeking the stay be irreparably harmed if the stay were denied, 3. would the stay if granted, harm any other party or person, and 4. would the stay be in the public interest or not. The law requires the judge give the most weight to the first two requirements.

In the much anticipated opinion in Perry v. Schwarzenegger, Chief Judge of the U.S. District Court for the Northern District of California, Vaughn Walker, found on August 4 that California's law banning same sex marriage violates the Constitution of the United States. Proposition 8 was passed by a narrow margin of voters in 2008. Previous to its passage, 18,000 same sex couples were granted marriage licenses in the state of California. Today's Prop 8 ruling, like those before from the state courts, does not affect those marriages.

In his opinion, Judge Walker found the state law violated both the Equal Protection and the Due Process clauses of the Constitution. SCOTUS Blog writes that after consideration, the court found that the proponents of Prop 8 did not show that the state had a rational basis (the lowest of the tests for constitutional validity applied by the courts) for excluding same sex couples from the right to marry. The judge found the law specifically, "... fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage age license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples ..."

With a 5-4 vote, the D.C. Court of Appeals has upheld same-sex marriage in D.C. The appeal came after a Superior Court judge sided with the D.C. Board of Elections and Ethics, which had rejected an initiative to have the gay marriage issue decided by popular vote rather than the D.C. Council. The council had voted to allow same-sex marriage last December.

Last May, attorneys representing opponents of gay marriage, supported by the group National Organization for Marriage, argued before the D.C. Court of Appeals that the decision of the board had violated the District's Human Rights Act by authorizing same-sex marriage.

The court was asked to resolve the following legal question: did the District of Columbia Board of Elections and Ethics act lawfully when it rejected the proposed initiative on the ground that it would authorize discrimination prohibited by the Human Rights Act?

A federal judge has ruled that the federal ban on gay marriage is unconstitutional. U.S. District Judge Joseph Tauro ruled on Thursday in Gill v. Office of Personnel Management, that the 1996 Defense of Marriage Act prevented states from being able to define marriage. As defining marriage has been a state right, a federal law to ban gay marriage cannot stand, Tauro ruled. Tauro found that the law forced the state of Massachusetts to discriminate against it's own citizens. 

The lawsuit was brought by seven married gay couples and surviving spouses from Massachusetts who said they were wrongfully denied federal benefits because of the Defense of Marriage Act. The state of Massachusetts argued that under the Defense of Marriage Act, gay couples were denied benefits such as Medicaid. 

The justice department unsuccessfully argued that for a federal program, like Medicaid, the government has the legal right to set eligibility requirements restricting benefits to only couples in a marriage between a man and a woman.