WEEK 5

Monday, October 25
PAGES: 479-483
CASE: Alison D. v. Virginia M.

CHILD SUPPORT SCHEDULE CONTINUED: More explanation of the Washington child support schedule, which is based on the monthly net incomes of the parents (see the notes for Friday, October 22 for more explanation and a link to the relevant statute). Today, Hardisty explained that the court can deviate from the basic support obligation number if it provides a written explanation, that courts have discretion over the other numbers (special expenses, medical expenses) and that agreement of the parties is not a valid reason for deviation from the schedule.

CASES DISCUSSED BRIEFLY:

WHITE v. MARCIANO: It was posited that this was correctly decided (after some discussion about whether the 81-year-old mother would move into this theoretical new house White told the court she wanted to inhabit).

ROE v. DOE: It was similarly posited that this was correctly decided. See case brief for statement of the holding.

JONES v. JONES: In Washington, there is a duty to support children as long as they are dependent. The court will order payments for college from the non-custodial parent, but a child has no right to seek college support from a custodial parent (because of the family privacy doctrine. These types of arrangements are normally settled during the divorce or support proceeding; children or their custodial parents usually cannot bring these actions post-divorce. But see Bayliss v. Bayliss, 550 So.2d 986 (1989) (trial court has jurisdiction to require parents to provide post-minority support for college education of a marriage tha has been terminated by divorce; action brought when child was 18).

ALISON D.: "Biological stranger" to the child did not have standing to bring writ of habeas corpus in an attempt to seek legal visitation even though the outsider lived with the child, established a parent-like relationship with the child and even though the outsider and the parent had an agreement to raise the child together.

This ruling cuts both ways: This "biological stranger", then, has no duty to support the child, either. Her arguement was something akin to common-law marriage, that this relationship can be established informally. The court says this status, this parent-child relationship, cannot be created informally.

In Washington, it should be noted, any interested person can seek visitation of the child; the court applies a "best interests" analysis.

Tuesday, October 26
PAGES: 483-501
CASES: Carol Burke, et. al. v. Elliot Rivo, M.D.; Patricia A.W. Ruth v. Harry Theodore Fletcher; Joseph Bartanus, Sr. v. Bernard V. Lis; Vivian Villareal, et. al. v. State of Arizona Dept. of Transportation, et. al.

INTRODUCTORY TEXT: Hardisty pointed out that the author should have included the converse of his statements about how the parent-child relationship may affect tort claims and tort liability, particularly with regard to (2) on the top of page 484: If children may assert tort claims against their parents, so, too, can parents assert tort claims against their children. Similiarly, in the last paragraph of the introductory notes, the author asserts that parents may assert tort claims for the death of a child; children may also assert tort claims for the death of a parent.

BURKE V. RIVO: The general rule is that the provessional is liable of a child was born out of wedlock as a result of a negligently performed sterilization. This is not a strict-liability regime, however. In this case, the Burkes put forth three theories of liability, two dealing with negligence:

1. Negligence in performing the sterilization so that Mrs. Burke became pregnant again, against the express wishes of the couple.
2. The doctor was negligent in failing to inform the couple about the risks associated with the particular procedure and of the availability of an alternative procedure that would decrease the liklihood of unwanted pregnancy.
3. Breach of promise where the doctor "guaranteed" the couple that the would be barren following the procedure.

The court also said the judge can mitigate, to offset the doctor's damages against the benefits the couple receives from raising a healthy child, but said the couple can only recover the economic costs of raising the child in situations in which the original procedure was elected because of economic considerations.

HARDISTY CRITICISM: The court argues irrationally on page 488 that the offset for the benefits of raising a healthy child should be used to offest only the economic costs of raising the child and not used to offset all other damages incurred by the family. This regime creates an incentive for the parents to tell the court that the child is awful and that they are so cold as to derive absolutely no intangible benefits from contact with one's own flesh and blood. This cuts against some traditional notions of family law, namely that of custody as a benefit to the custodial parent in a custody dispute and that of compensating a parent for the wrongful death of a child.

RUTH v. FLETCHER: A fact-specific case in which the court determines that, on these facts, a reasonable jury could not find that the woman intentionally inflicted emotional distress. The man's own ideas about whether the woman behaved intentionally, quoted in the opinion, are a non-doctrinal factor, Hardisty says, because there would still not be enough evidence to support a finding of intentional infliction of emotional distress even after discounting the man's testimony.

ELEMENTS OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:

1. The outrageous behavior had to have resulted in severe emotional distress.
2. The defendant has to have intended to engage in the outrageopus conduct.
3. She must have intended (or reckless) to inflict the severe emotional distress.

Another non-doctrinal factor was the fact that any punishment of the woman in this situation would have resulted in punishment of the child because it would have taken away from the mother's ability to support the child (to the tune of $35,000). In this way, this case is similar to Stephen K. v. Roni L. and L. Pamela P. v. Frank S. All involved women misrepresenting some fact in some way; all involved men seeking some financial benefit from this misrepresentation; and all resulted in the men losing. In each case, Hardisty said, the court did not want to establish a tort which would result in the transfer of wealth from a custodial mother to a noncustodial father. In the case at bar, Hardsity says, the court raises the bar of recklessness in order to reach a result in keeping with this general trend.

Was the case decided correctly? Nobody in the class argued that the woman's behavior in this case was commendable. Some suggested that Ted pursue another legal theory, but negligent infliction of emotional distress was precluded by state common law and fraud was precluded by the ruling in Roni L. Hardisty then relayed a story he had heard third had from a former student. This student had a friend who worked at the U.W. Medical Center who was curious about paternity. This friend conducted blood tests on parents and children to determine whether the putative fathers were really the fathers (without telling the parents of the result) and found that 30 to 35 percent of all newborn identities were "not as advertised." Ted was in a difficult position here because he could have insisted on a paternity test only at the risk of casting aspersions on Ruth's insistence that he, Ted, was the father and not this mysterious bartender.

BARTUNUS: In this case, there were facts sufficient to establish a cause of action, the court ruled. Discussion of the differences between this case and Ruth devolved into a semantic discussion of "genetic" vs. "biological". Prof. Hardsity contended that the connection adoptive parents feel for their children and adopted children for their parents is a function of biology so that one could call Bartunus Jr. the biological son of his aunt and uncle, even though he was the genetic son of Bartunus Sr. A student wondered whether any court anywhere had given validity to this distinction; then the bell rang.

MORE ON BARTUNUS: Differences between Bartunus, Ruth:

• DOCTRINAL: Stronger evidence in Bartunus.
• NON-DOCTRINAL: There were differences between the plaintiffs (genetic father in Bartunus, jilted "father" but genetic stranger in Ruth), defendants (aunt and uncle in Bartunus, mother in Ruth).
• NON-DOCTRINAL: A judgment against the mother in Ruth would be a judgment against the child, whereas the judgment against the aunt and uncle in Bartunus would have no effect of the then-grown child.

VILLAREAL: When the court says "adoptive or biological" parents can only sue for loss of consortium. It says that, Hardisty says, but it doesn't really mean that (how about the case of the presumtive father in Michael H. v. Gerald D.?) The court ruled that this ability to sue for loss of consortium was not retroactive (Villareal, for instance, was barred from suit because others had reached a settlemet with the state precluding her from suing).

INTRODUCTION TO CHAPTER 9: Page 502, first paragraph, second sentence: "States also undertake to regulate the behavior of minor children directly, through the juvenile court system, and often provide as part of that system for different treatment for minors who violate the criminal laws from that accorded adult offenders." (emphasis supplied). Hardisty says this is wrong: Every state has a juvenile court syustem and all juvenile court systems treat some juveniles differently that adults (though even some minors are treated as adults).

Page 502, second paragraph, second sentence: "Parental authority was, until the middle of the Twentieth Century, subject only to limited legal restraints and even those restraints were honor most often in breach." Hardisty: Parents could never kill their children, even at common law (though the Romans could, interestingly enough).

Page 502, first paragraph, last sentence: "However, the bulk of cases in [juvenile] courts do not involve relations between children and their parents or other family members and accordingly will not be dealt with in this book." Hardisty: Matters of the juvenile court do affect relations between children and their parents, though this aspect is often ignored in family law texts. For instance, Hardisty said, the question of what to do with children who commit acts that would be criminal if committed by adults.

INTRODUCTION TO JUVENILE JUSTICE: The first juvenile court was established in 1899 in Illinois. Statutes similar to it were quickly passed in all other states over the next decade, Hardisty said ("an idea whose time had come"). Under this system, there were three categories that gave the juvenile court jurisdiction over children:

1. Neglect: Fault of the parents
2. Dependency: Because of no fault of the parent (who is too poor to care for the child property)
3. Delinquency: Because of the fault of the child, either because they are incorrigible or because they commited acts that would be criminal if commited by and adult. Bifurcated process:
   1. Adjudication: Deals with what the child did; this proceeding is often dispensed with in the informality of the juvenile justice system ("The Hallmark of juvenile court is informality").
   2. Disposition: What to do with the child (can result in loss of custody and, therefore, affect the relations between the family and the child).

The "incorrigible" distinction has been eroded as a reaction against parents sending their children to state custody.

Oftentimes, "delinquency" gets negotiated down to "neglect" in consideration for the child's future (less prejudicial on the child's record).

JEFFERSON: Hardisty says the Supreme Court in this case did not really issue an opinion, but quoted the opinions from the court below. It issues an order, but not an opinion.

TAFT: This case is really about the insufficiency of the record. The court said the wife has a right to reproductive autonomy, but that the husband did not present evidence of any compelling state interest that would justify the derogation of this right.

Thursday, October 28
PAGES: 521-542
CASES: Parham v. J.R.; Matter of Joseph Hofbauer; William E. Weber, as Guardian Ad Litem for Baby Jane Doe v. Stony Brook Hospital; John Santosky v. Bernhardt S. Kramer; Matter of Sanjivini K.

PARHAM: The court did not decied on the record of this case, but outlined what would be required of due process (remanding the issue to the lower court and declaring that due process does not require an adversarial hearing).

HOFBAUER: The source of law in this case was a state statute (level 6). The Family Court in New York is what is called Juvenile Court in other states. The Family Court takes over the equitable duties of the court. In this case, the court upheld the parents's decision because they were following the advice of a licensed physician. HARDISTY: A child is not neglected where the parents are following the advice of a medical practitioner and where there is medical proof that the treatment is viable. There was some discussion about whether the holding should say "doctor" rather than "medical practioner" and also whether the holding should contain the fact that the parents agreed that they would turn to conventional treatments should the child's condition worsen.

WEBER: This party went to the Supreme Court for equitable relief. This third person, who the court didn't seem to like, rather than going to the Family Court. According to state law, he had to standing in the Family Court (probably the point of going straight to the Supreme Court in the first place). The Family Court Act took away jurisdiction over this area from the Supreme Court in New York. Essentially, then, he had no standing.

A student called this a case of the court "punting" this decision, that is not really taking a position because of the charged political nature of the case (deciding the case on the question of jurisdiction or standing).

TERMINATION OF PARENTAL RIGHTS: This is a misnomer, Hardisty says. Really what the court does is terminate the parent-child relationship. This means the court destroys the rights of the children for support as well as of the rights of the parents to the custody and care of their children, but also destroys the duties of the parents to care for their children. Calling it "termination of parental rights" is a way of soft-pedaling it. Because the child's rights are so critical to these proceedings, Hardisty contended, they should be parties to them. "Under our traditional notions, the child ought to be independently represented."

This problem arose because of the design of the juvenile court acts of the early 20th century. These systems were not designed by lawyers or legal sophisticates, but by those who wanted social workers to get involved in these situations, for the good of the family. Also, Hardisty said, there is some feeling that there is something unseemly about a child suing a parent.

SANTOSKY: The court rules that due process (Fourteenth Amendment to the U.S. Constitution) requires that a state prove permanent neglect by, at the very least, clear and convincing evidence.

SANJIVINI K: The best interests of the child are not a consideration in determining the jurisdiction of neglect proceedings. There is no de facto neglect, just statutory neglect. In this case, the child, who had been americanized in her 13 years with her foster family, did not want to be returned to her mother, who was from India and who was very traditional. This was cut out of the opinion, but was a factor in explaining how long it took for the mother to get her daughter back.

REVIEW SETS OF DATES: For tomorrow, Hardisty put two sets of dates on the board as a way of reviewing for Part III:

SET ONE:

• 1979
• 1982
• 1987
• 1989

SET TWO:

• 1971
• 1977
• 1979
• 1981-1993

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