Family Law News - U.S. Eighth Circuit
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Show Me State? More like Slow Me State, right?

The first of three challenges to Missouri's ban on same-sex marriages was argued in court today, with the judge promising a quick ruling. Today's case, in state court, challenged the state's refusal to recognize gay marriages from out of state, while a second state court case will challenge the ban on in-state marriages. A federal case is also pending.

As was the case in many other states' disputes, the ACLU argued equal protection, while the state argued for state sovereignty.

Engaged Nebraska Inmates Suing for Right to Marry: ACLU Lawsuit

The ACLU of Nebraska filed a lawsuit against Nebraska prison officials for preventing two engaged inmates from getting married.

The lawsuit, against the Nebraska Department of Correctional Services, Director Michael Kenney, and two wardens, was filed on behalf of inmates Paul Gillpatrick and Niccole Wetherell, who have been engaged for more than two years.

The merits of their "right to marry" case will turn on whether the restrictions are related to a legitimate penological interest and the prison's willingness to use technology. Ah, love in the digital age.

Nebraska Supreme Court Denies Abortion to Girl in Foster Care

A 16-year-old girl in foster care was not mature enough to be allowed to get an abortion, the Nebraska Supreme Court ruled.

The young woman, referred to as Anonymous 5 in the opinion, became a ward of the state earlier this year after suffering years of emotional and physical abuse at the hands of her biological parents. Citing her foster parents' strict religious views, Anonymous 5 requested a judicial bypass from the court for an abortion when she was 10 weeks pregnant -- but to no avail.

Postnup Does Not Waive Spousal Rights to 401(k), 8th Cir. Says

When you sign a prenuptial or postnuptial agreement in which you agree not to be the beneficiary of a 401(k) retirement plan, does that extinguish your spousal rights to it?

To the surprise of divorced couples and family law attorneys alike, the Eighth Circuit has ruled that no, it does not extinguish your rights. You still may have a right to the 401(k).

In its decision, the appeals court ruled that a postnuptial agreement in which each party expressed "irrevocable consent" to a change of beneficiary of the other's retirement plan did not constitute a waiver of the spousal right to benefit from such plans.

Social Workers Have Qualified Immunity in Guardianship Dispute

The Eighth Circuit Court of Appeals ruled on Monday that a trio of Missouri social workers are entitled to qualified immunity after recommending a guardianship arrangement for a child that allegedly led to the child's death.

Lynn and Jason Hutson filed a civil rights lawsuit against Jude Walker, Julie Baumgardner, and Sallie West -- the social workers -- after the employees recommended that custody of their son, A.H., be granted to his grandparents, Carolyn and Patrick Cattin. According to the Hutsons, this recommendation resulted in the A.H.'s untimely death.

Eighth Circuit to Hold En Banc Hearing on Informed Consent Law

Two months after a three-justice panel of the Eighth Circuit Court of Appeals struck down a provision of South Dakota's informed consent law, the Court of Appeal announced they will hold an en banc hearing on the matter.

The controversial law in question expanded South Dakota's requirements for informed consent to abortion in 2005. The Court of Appeals upheld the majority of the law's provisions - such as informing the patient that the abortion will terminate the life of a whole, separate, unique, living human being - in September.

Eighth Circuit Upholds South Dakota's Informed Consent Law

The Eighth Circuit Court of Appeals last week upheld a South Dakota informed consent law that requires an abortion provider to inform a pregnant patient about her “existing relationship” with an “unborn human being.”

The case stems from a Planned Parenthood challenge to a 2005 South Dakota Public Health and Safety Code amendment expanding the requirements for informed consent to abortion. Under the law, a doctor must give a woman contemplating abortion oral advisories 24 hours before the procedure and written advisories at least 2 hours before the procedure.

Artificial Insemination Child Denied Social Security Benefits

Children are expensive. Childcare and tuition costs are increasing far faster than the rate of inflation. As a result, many couples are waiting longer to have a child, which, in turn, means that more couples are turning to fertility treatments, including artificial insemination, to conceive when they can afford a child.

Why should this matter to lawyers?

Sometimes family planning does not occur on the couples’ intended schedules. Sometimes one partner dies before the couple can start a family. But when the surviving partner decides to have children using the eggs or sperm of his/her late spouse, the legal result can turn into a nightmare hypothetical from your law school past.

Scobey v. Nucor Steel-Arkansas, No. 08-1192

District court's dismissal on summary judgment of plaintiff's claims of employment retaliation and violations of the Family and Medical Leave Act (FMLA) is affirmed where: 1) plaintiff failed to show he provided adequate notice to his employer that he had a serious health condition rendering him unable to work; 2) plaintiff's claim that defendant interfered with his FMLA rights by demoting him for unexcused absences must fail; 3) plaintiff's retaliation claim fails for the same reasons as his interference claim.          

Read Scobey v. Nucor Steel-Arkansas, No. 08-1192

Appellate Information

Submitted: December 11, 2008

Filed: August 25, 2009

Judges

Opinion by Shepherd, Circuit Judge

Karnitz v. Well Fargo Bank, N.A., No. 08-2100

District court's grant of summary judgment for plaintiff is reversed where the court erred in holding the mortgage was invalid under state law because both spouses did not sign it, as: 1) plaintiffs are estopped from claiming invalid mortgage since the nonsigning spouse knew of and intended to mortgage the homestead; 2) she retained benefits; and 3) the bank significantly changed its position in reliance on validity of mortgage. 

Read Karnitz v. Well Fargo Bank, N.A., No. 08-2100


Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: February 12, 2009
Filed: July 17, 2009

Judges
Before WOLLMAN, HANSEN, and BYE, Circuit Judges.
Opinion by HANSEN, Circuit Judge.
Dissenting Opinion by Bye, Circuit Judge.