Law and Daily Life: May 2009 Archives
Law & Daily Life - The FindLaw Life, Family and Workplace Law Blog

May 2009 Archives

21 Kids, 11 Mothers, 1 Father: Ways to Collect Child Support

A 29-year-old man in Tennessee apparently has been really busy ... fathering children, and now appearing at the court house, that is. KAKE reports that Desmond Hatchett is claiming to have fathered 20 and just maybe 21 or more kids (he says he knows all their names and ages) by at least 11 different mothers.

Desmond Hatchett's circumstances surfaced after Tennessee authorities took him to court for failing to pay his child support, which considering he reportedly earns minimum wages, might not be too surprising. Indeed, the story noted that even though the various "mothers of Hatchett's children are supposed to get anywhere from $25 to $309 a month ... when his paycheck is garnished amongst them all, some women only get a $1.98 a month."

Even though Hatchett's case is extreme and most people hopefully won't face 10 other parents seeking child support from the same person, what measures are available for a custodial parent to go about collecting unpaid child support? There are actually a variety of methods which can be used to collect child support from "deadbeat" parents or those that are simply temporarily behind. Here's a quick list with descriptions of key options:

Foreclosures and Bankruptcy: Is it a Good Alternative?

The AP today reported that, according to the Mortgage Bankers Association, nearly 1 in 8 U.S. households with a mortgage was recently either behind in loan payments, or facing foreclosure. Worse yet, one economist indicated that the housing market isn't expected to recover until after the unemployment market recovers ... Considering the state of the employment market, the same economist noted this might just be, well, no time soon.

In light of the dire statistics and forecasting, there are likely many people wondering about ways to avoid foreclosure. Short sales have already been discussed as one possible alternative, but for people who have reached the end of the line in options, bankruptcy just might be the last resort. For anyone out there wondering whether bankruptcy offers anything (and if so, what) to people facing foreclosures, here are a few potential pluses, minuses, and general considerations for weighing foreclosure or bankruptcy:

In yesterday's California Supreme Court ruling upholding Prop. 8, the state's highest court appeared to point anyone thinking about future challenges to the new rule toward the ballot box. However, maybe it should also have pointed toward the federal courthouse. This is because the lawyers who argued on opposite sides of the monumental Bush v. Gore election decision in 2000 are joining forces to challenge Proposition 8 in federal court. Now wait a second, wasn't the California Supreme Court's decision the end of the line for challenging Prop. 8 in the courtroom?

Well, as suggested by the Reuters story, the legal move might not have been a welcome one for all same sex marriage advocates. Attorneys Ted Olson's and David Boies's lawsuit on behalf of two same sex couples brings the gay marriage battle to federal courts, and "puts them at odds with gay rights advocates who see a federal court challenge as risky" because of the currently conservative-leaning Supreme Court. The piece noted:

What is Sexual Bullying, and Can Schools be Sued for not Stopping it?

Bullying at school has taken an ugly twist via the Internet and cyberbullying, but an article yesterday pointed out the potentially disastrous dangers of a specific type of schoolplace harassment called "sexual bullying". For anyone who hasn't heard about it before, one good definition used frequently for the term is "bullying, physical or non-physical, that is based on a person's sexuality or gender."

The consequences of sexual bullying can be very serious, and even deadly. The piece passed on the tragic stories of two young boys, 11-year-olds Jaheem Herrera and Carl Walker-Hoover, who both committed suicide after being bullied in ways that included the use of gay slurs. One expert, University of Illinois professor Dr. Dorothy Espelage, said that Carl and Jaheem suffered from sexual bullying, and that the problem may be bigger than people think. Indeed, Dr. Espelage indicated that "half of all bullying in elementary and middle schools involves the use of gay slurs".

People reading this may be wondering whether schools have any legal obligation to prevent this type of sexual bullying, and can they be held liable for the consequences of failing to take appropriate action?

Prop. 8 Decision Upholds California Gay Marriage Amendment: What Next?

The California Supreme Court today upheld Proposition 8, the voter-approved constitutional amendment limiting marriages to those occuring between a man and a woman. Despite the legal setback for gay marriage advocates, gay couples who were married before the election (reportedly as many as 18,000) got good news in the opinion because the court found that the amendment did not apply to them.

The court's conclusion, in its own words, was as follows:

"Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision), does not violate the separation of powers doctrine, and is not invalid under the "inalienable rights" theory proffered by the Attorney General. We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid. "

Acknowledging that although the "designation of 'marriage'" is very important to both sides in the debate, the court went to great lengths to emphasize the breadth of constitutional protections that remain for same-sex couples despite Prop 8. Still, considering that this is likely to be small consolation to gay marriage proponents, there's probably quite a few people wondering, "what next"?

How COBRA Works for Employees Facing Layoffs or Unemployment

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One of the biggest problems facing people who have been laid off is what to do about their health insurance coverage. Adding to this concern, NPR is reporting that job losses including layoffs piled up further in 44 out of 50 states last month and that economists are saying employers probably won't want to increase hiring until some economic confidence is restored. As a result, jobless individuals face not only the prospect of losing their employer-sponsored health plans, but perhaps for a fairly long time, at that. This is where a federal law known as COBRA steps in, which is something all employees should be aware of.

As ominous as its name appears, COBRA stands for the Consolidated Omnibus Budget Reconciliation Act of 1986.  Yeah, not exactly descriptive. At any rate, COBRA provides that certain former employees, retirees, and spouses and dependent children of former employees have the right to temporary continuation of health coverage from an employer at group rates. Usually, these benefits must be available for 18 months after an employee leaves or retires.

Twins Born With Different Fathers: Paternity Problems?

In an odd story out of Dallas, a mother is reported to have given births to twin boys that do not have the same father. Yes, you read that right, and according to FOX 4 it can happen and even has a medical term, heteropaternal superfecundation. It's probably not worth memorizing though, as apparently it is so rare it "is likely to be the only time that we will ever see this occur in the city of Dallas," said one doctor.

At any rate, what happened was that the mother, Mia Washington, had an affair during marriage resulting (the story has all the details of how the "medical marvel" can happen). Eventually, after she and her husband noticed the twins had different facial features (and perhaps reading about babies switched at birth?) they went to a lab to get a paternity test, and got the scoop that one of the twins. However, Washington indicates "she has no plans to tell" the other father about his son, people might wonder about how the law looks at a father in such circumstances.

Law Against "Drive-Through" Breast Cancer Surgeries Coming Soon?

The Breast Cancer Patient Protection Act of 2009

Legislation was recently introduced in Congress that would force insurers to pay for a minimum hospital stay for patients undergoing certain types of breast cancer treatment. If the Breast Cancer Patient Protection Act already sounds familiar, it might be because such legislation has been lingering around in consideration and debate, in various forms, for over a decade.

The proposed legislation is aimed at the issue of "drive-through" breast cancer surgeries, and how insurers sometimes try to limit coverage for such surgeries (even mastectomies, or the removal of breasts) to outpatient procedures. In other words, sometimes insurers will only pay benefits on those surgeries to the extent they are outpatient procedures, and might not pay for a patient's hospital stay.

So you're at the airport, you've gone through the inevitable check-in and security line, when you walk through a machine you think is a metal detector, just like you probably have a number of times before. However, if you're at one of nineteen airports across the country testing new "whole body imaging" scanners, you might be interested in knowing just what the security official on the other side of the screen is seeing if you go through one of the machines, according to CNN.

Indeed, if you believe privacy advocates, what they are seeing on their screen might be something just shy of a peep show. Right now just six airports (San Francisco, Miami, Albuquerque, New Mexico Tulsa, Salt Lake City, and Las Vegas) are using the new whole body imaging scanners as a primary security check option, while the remainder use them as a secondary check after people fail a metal detector. In the past, the secondary option would have been a pat down.

What to Do if Your Child is Threatened at School

It is sadly only too often that it is only with perfect hindsight, in the aftermath of school violence, that the "warning signs" leading up to the disaster are discovered. One mother in Denver, Colorado, is upset with the actions, or rather, inaction, of her child's school in response to a "kill list" found in a classmate's journal.

According to the report, "[t]he journal contained several disturbing drawings of girls being hung by nooses and a list that included the names of eight people the girl's classmate wanted to kill. On the right side of the list were sketches of various weapons that the classmate would use to kill these people." After her child said she was one of the targets, her mother gave the list to police, who in turn, turned it over to the school. An ensuing "threat assessment" didn't find one, and the district simply indicated "they were aware of the incident and were providing the student and the guardian the support they need. They said in the absence of a 'viable' threat they could not remove the student or punish them for expressing themselves."

When a child is sick, many parents probably don't think twice before getting them some medicine or taking them to the doctor, if necessary. But what if a doctor tells a parent something they don't think is true, or advises a course of action that the parents simply do not wish to take? Aren't they free to make a decision for their child on their own? Not necessarily, according to a Minnesota court. The AP reports that, after 13-year-old Daniel Hauser was diagnosed with Hodgkin's lymphoma, he and his parents Colleen and Anthony Hauser decided, based on their religious beliefs, that "alternative medicines" would be a better way to go than chemo (they did give one round of chemo a shot).

However, Brown County District Judge John Rodenberg found Daniel Hauser was "medically neglected" and consequently was in need of child protective services. This essentially ended up taking the medical decision out of Colleen and Anthony Hausers' hands, although they were apparently allowed to keep custody of their child. So what are parents' rights with regards to getting, choosing, and/or refusing treatment for their kids?

NH Governor to Sign Gay Marriage Bill, If Changed: What State is Next?

New Hampshire's Democratic governor, John Lynch, is now indicating he will sign a gay marriage bill, if it is changed slightly. The hangup? Governor Lynch would like to see some protections for churches and employees that don't want to take part in any gay marriages. In other words, if the churches don't want to conduct any gay marriages, the law wouldn't force them to.

Gay marriage proponents indicated they approved the proposed changes, such as the executive director of New Hampshire Freedom to Marry Coalition, who said, "This is language we can support".

This all comes despite Lynch's previously stated opposition to gay marriage. What occasioned the change of heart? Lynch explained:

"Throughout history, our society's views of civil rightshave constantly evolved and expanded," Lynch told reporters. "New Hampshire's great tradition has always been to come down on the side of individual liberties and protections."

Lynch said he personally opposes gay marriage, but decided to view the issue "through a broader lens."

The Brady Dougan Divorce Case: Getting Divorce Settlement Agreements Right

Okay, this probably falls under the category of "it can happen to anyone" but is also intended as a cautionary tale. A court ruled today that the CEO of the Swiss banking titan Credit Suisse, Brady Dougan, has to pay his former wife, Tomoko Hamada Dougan, almost $1 million for being a few days late (12) on a payment required by their divorce agreement. A million bucks for a few days! How can this be, you ask?

Well, the bottom line appears to be ... he agreed to. When divorcing couples have come to an agreement on the resolution of all the issues in a divorce, they usually write up some form of agreement. This agreement memorializes all of the details and then gets submitted to a judge for final approval. If everything appears to be fair, both in terms of the negotiation and the terms of the agreement, then a judge will sign off on it.

As with settlement agreements in other civil cases, approved divorce settlement agreements are contracts that are binding on the parties. For this reason, it is important that they include and carefully describe exactly what each of the spouses wants to have happen. So, going back to Brady Dougan's divorce case, a Connecticut court of appeals found that a penalty provision that Brady and his wife included in their stipulated judgment (a form of agreement), certainly applies to Brady.

How a Short Sale Works for Homeowners Facing Foreclosure

The AP today reported that the White House is expanding its mortgage aid program, adding some new options for homeowners to avoid a foreclosure. According to the story, the "new initiatives are expected to streamline the process of selling a home that is worth less than the mortgage, or transfer ownership of a home to the lender." What that first option is actually referring to is what is commonly called a "short sale", which can be one alternative to foreclosure (and/or bankruptcy) for homeowners who are unable to keep their home via mortgage modification or similar options.

As suggested, short sales are when homeowners sell a home for less than the amount they owe on the mortgage, and their lender typically forgives the amount "short". Of course, short sales can only be done with the approval of a lender, which probably leads anyone to wonder why a lender would possibly agree to getting shortchanged. These days, there actually may be many reasons, as the government continues to take steps to prevent rising foreclosures.

The city of Cleveland is really taking budget cuts to another level, it seems. Next in line for cost-saving measures are the city's twelve cemeteries where "rising maintenance costs" have pushed the city to send out letters to relatives of people buried there telling them to "remove crosses and other decorations from graves or have them taken away." Although the city says its policy has been there for 14 years, now that it's actually going to be enforced, people might wonder if such a policy is even legal?

As a general rule, if a city's policy doesn't "pick on" a particular type of decoration or symbol, particularly religious ones such as crosses, and simply applies across the board to ban any and all decorations, then such a rule could very well be valid. In other words, if a city were simply to ban crosses from its graveyards, it would be risking a lawsuit because the policy is singling out a particular religion for different treatment, as compared to others. Additionally, if a rule is supposed to apply to all decorations, but is only enforced as to particular ones, that might raise legal issues too. However, going only on the news report, Cleveland's "grave decoration policy" may be one that is directed to any and all decorations.

Swedish health authorities have ruled that gender based abortion is legal. In other words, in Sweden it is okay in the eyes of the law to decide to get an abortion based on an unborn baby's sex. First of all, for those wondering, sex selection abortion is not that unusual in many parts of the world, particularly in Asian countries such as China and India where cultural norms come into play leading to numerous instances of female feticide (sons are preferred). Noteably, female feticide happens even if abortion based on gender is illegal in those countries. Still, many people who read about Swedish authorities' decision are probably shocked, and could very well believe abortions based on gender are clearly illegal here in the United States. Or are they?

The issue here in the U.S. has typically been framed at an entirely higher level, in other words, should abortion itself be legal? If so, at what point in time during a pregnancy do we draw the line, and what methods are prohibited for performing an abortion? Rarely, however, do the reasons behind an abortion itself get looked at. The only exceptions to this have been where concerns over the health of the mother become involved, which can be a reason for allowing an otherwise impermissible abortion (another exception being rape cases).

Anybody who has gone through the process, or has walked someone through the process, of a divorce knows how challenging it can be. These days, the "standard" concerns and stresses that accompany a divorce in court could very well be magnified for many couples also facing a difficult economy. However, one option that people generally might have heard of, but not know too much about, is that of a collaborative divorce, which may provide a more private, less stressful, and less costly alternative to an adversarial courtroom divorce.

First off, a collaborative divorce is a structured, out-of-court process by which spouses/parents can finalize a divorce and resolve any related support and property disputes without stepping into a courtroom. In a collaborative divorce, each spouse hires an attorney trained in the collaborative process who advises and assists in negotiating the settlement agreement between the parties. The process may also involve professionals such as child custody specialists or neutral accountants (agreed upon by the parties) who will be there to help address the specific issues involved in a particular case, avoiding any need for costly litigation.

Workplace Bullying, Harassment Laws Coming Soon?

The topic of bullying sees no shortage of press coverage, whether the site of bullying be the schoolyard or the Internet. However, one phenomenon that has not been as widely addressed has been that of workplace bullying. First off, there's probably a number of people wondering just what that might be. There is apparently no single formal definition for workplace bullying, but it can probably be fairly described as the repeated use of aggressive or unreasonable behavior (which can include verbal, physical, and psychological forms) against a co-worker.

Whatever definition someone chooses to apply, however, the fact is that workplace bullying is a real problem which may now start being addressed by the law. Massachusetts is reportedly considering a bill targeting workplace bullying. The title of the bill is a pretty good description for what it would do, "[a]n Act addressing workplace bullying, mobbing, and harassment, without regard to protected class status." That last part, in regular English, means that this bill would deal with those areas that aren't already covered by existing laws, with the most obvious example being laws prohibiting sexual harassment.

Former Democratic presidential candidate John Edwards may be in need of some "Resilience" of his own considering the reports about his former mistress, Rielle Hunter, possibly seeking a paternity test.

If so, this would represent a change-of-heart from last year when her lawyer, Robert Gordon, "released a statement saying she 'will not participate in DNA testing or any other invasion of her or her daughter's privacy now or in the future.'" The timing certainly makes one wonder whether this might be in any way related to Elizabeth Edwards' soon-to-be-released book wherein she supposedly "calls Hunter's life 'pathetic'".

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Annulment or Divorce, What's the Difference?

Although celebrity divorces regularly make headline news, it's relatively rare that someone hears about a big story about an annulment, so it might not be surprising that some people wonder what the difference between the two are. For those wondering what distinguishes an annulment from a divorce or what the requirements for a civil annulment are, here's a quick run down.

As most are aware, divorce is a legal process whereby a marriage gets dissolved. A civil annulment also dissolves a marriage, but it does so in a way that treats the parties as if they were never married. Generally you hear about annulments mostly with people that have been married a short time, and the general requirements for getting annulments pretty much explain why.

Following up on the post last week, Maine has become the latest in a string of New England states to legalize gay marriage. Although it was previously unclear whether Maine's governor, John Baldacci, would sign the bill (he opposed gay marriage in the past), in the end it reportedly only took him less than an hour to sign the bill following legislative approval.

Upon signing the bill, Baldacci gave an arguably conflicted statement about the future of gay marriage in the state, per CNN:

"I have come to believe that this is a question of fairness and of equal protection under the law and that a civil union is not equal to civil marriage," said Baldacci, a Democrat.

But he raised the possibility that the residents of the state would overturn the law, saying, "Just as the Maine Constitution demands that all people are treated equally under the law, it also guarantees that the ultimate political power in the State belongs to the people."

Are Neon or "Underglow" Car Lights Legal?

Whether you're a hobbyist or enthusiast who likes making car modifications or maybe just someone who drove down the highway and did a double-take at seeing a vehicle seemingly floating on glowing neon lights next to you, you might be wondering about the legality of "underglow" or neon lights under vehicles.

Most states have pretty specific traffic laws or vehicle codes governing, to varying degrees, vehicle specifications and equipment (including lighting). These laws can get pretty specific and may vary in enforcement and interpretation all the way to the local level. When a vehicle gets modified, an owner runs the risk of getting a traffic ticket if the modification isn't within code. As far as lighting goes, neon lights or underglow lighting on private vehicles are generally not permitted with a few exceptions.

Some jurisdictions make specific allowances or prohibitions on particular colors of lights on a vehicle, as well as for specific individuals or vehicles that may have added lighting. Kansas, for example, has a law stating:

One recurring theme of the ongoing recession has been the seemingly incessant stream of foreclosures. However, South Carolina's highest court late yesterday afternoon issued a temporary restraining order (TRO) putting a freeze on thousands of imminent foreclosure sales in the state, reports the AP. The ruling provides some very needed relief to qualifying homeowners in distress by providing them with some time to seek mortgage modification under new government programs.

The TRO specifically "prevent[s] the foreclosure sale of any property arising out of a loan owned or guaranteed by petitioner or Freddie Mac or held by a servicer who has signed an agreement to participate in the HMP." The HMP refers to the Home Affordable Modification Program, which was announced in March of this year, and is a government program designed to help millions of qualifying at-risk homeowners by modifying their loans (see links below).

The South Carolina ruling requires the companies seeking foreclosure to notify all parties by May 15, 2009 as to whether or not the loan is subject to modification under the new programs. If the loan qualifies, then the freeze on that foreclosure will continue until a decision on modification is made. If the lender says the loan doesn't qualify for modification, that finding can be disputed in court. If a borrower qualifies and obtains a modification, then the foreclosure proceedings will be terminated. Of course, should they not qualify or obtain the modification, then the foreclosure proceedings can resume.

Moving? Child Custody Considerations for Relocating Parents

As the school year begins to wind down for most schools in this and upcoming months, this is a time when some families start to plan for possible out-of-state relocation so that they can get it done in between school terms. The planning of a move in and of itself is tough enough, but for divorced parents with sole or joint custody of their children, the issue of relocation may have an added legal dimension that they might have good reason to be concerned about. So, for custodial or noncustodial parents wondering what their rights with regard to relocating might be, here's a brief summary.

The laws regarding a parent's right to move out of state with their child do, unfortunately, vary from state to state, and to make matters more complicated, the laws in these areas are constantly shifting and evolving. Many states used to generally allow custodial parents to move wherever he or she wants with their own child(ren), but some states have placed varying degrees of limitations on this freedom. Indeed, some states tend to discourage such moves if the noncustodial parent objects, and may restrict the right of the custodial parent to move with a child via laws saying that a child cannot be moved without permission of the other parent, or without permission of the court. It is also not unusual to require a custodial parent to provide the noncustodial parent with adequate notice of their intent to relocate.

Despite the recession and tough times facing homeowners across the country, a bill designed to help homeowners facing possible foreclosure was shot down in the Senate, reports the L.A. Times. One major feature that would have assisted homeowners facing foreclosure was a "cram down" provision that would apply in bankruptcy proceedings.

That home loan measure would have allowed for bankruptcy judges to reduce the principal owed on a mortgage for a primary residence, which bankruptcy judges are alreadly allowed to do for vacation homes, cars, and boats. In other words, for people who have arguably "extra" stuff besides the roof over their head, a judge can reduce principal on the loans for such "extras" to make them more affordable, but the judge can't do that for the roof over one's head. A key idea behind the cram down legislation was that it could have encouraged lenders to modify loans for borrowers before they were forced into bankruptcy.

Maine's Senate passed a bill legalizing gay marriage yesterday, Reuters reports, putting the state a step closer to becoming the fifth to legalize same-sex marriage. The bill reportedly redefines marriage as "the legal union of two people" (not limited to one between a man and a woman).

However, the state's House of Representatives still has to approve the measure, and even if passed, the legislation may face an uncertain future at the hands of Maine's governor, Democrat John Baldacci. He has not taken an official position on the bill but has opposed gay marriage in the past, although he has favored the idea of civil unions.

The Reuters story indicates that the push in Maine is part of gay rights advocates' coordinated strategy to have all six New England states legalize the institution for all couples. More specifically, the goal is to bring same-sex marriage to all of New England by 2012. So far, Connecticut, Vermont, and Massachussets have legalized gay marriage, and New Hampshire's gay-marriage legalization bill currently only awaits signing by Democrat Governor John Lynch. Advocates thus noted that should the Maine legislation come into law, Rhode Island could very well be the last New England state that hasn't legalized gay marriage.