He Said/She Said, Save Our Sons, and the Stories that Stick: Part Two of a Two-Part Series of Columns

SHERRY F. COLB

In this second in a series of columns on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX, Cornell Law professor Sherry F. Colb suggests that gendered narratives play a role in people’s willingness to regard an acquaintance rape case as “he said/she said.” Colb describes several examples in which people prefer a story that confirms a pre-existing bias over truth based on evidence.

Read More

County of San Diego v. P.B

Court: California Courts of Appeal

Docket: D075690(Fourth Appellate District)

Opinion Date: October 16, 2020

Judge: Guerrero

Areas of Law: Family Law

L.C. (Mother) appealed a final order of child support covering periods from 2014 to 2019, when Child turned 18. Mother contends the trial court’s child support order had to be reversed because the court calculated child support utilizing a 29 percent timeshare for P.B. (Father) during a period of time when Father had no visitation with the child, purportedly due to Mother’s interference with Father’s visitation rights. Mother also challenged the court’s failure to include certain payments Father received from his parents as income available for child support. After review, the Court of Appeal agreed with Mother’s first contention, that it was improper to attribute nonexistent timeshare in response to Mother’s alleged interference with visitation, and concluded the order should be reversed so that support could be recalculated based on Father’s actual timeshare during the disputed time period, consistent with the statutory guideline under Family Code sections 4050-4076. In all other respects, the order was affirmed.

Leah B. v. Michael V.

Court: California Courts of Appeal

Docket: B301138(Second Appellate District)

Opinion Date: October 22, 2020

Judge: Kenneth R. Yegan

Areas of Law: Family Law

The Court of Appeal affirmed the trial court's order dismissing, for lack of jurisdiction, appellant's request for a civil harassment restraining order. The court held that appellant is not permitted to use the civil harassment order process to collaterally attack a confidential child dependency and adoption proceeding concerning her biological daughter. In this case, appellant's parental rights were terminated in a child dependency proceeding after appellant refused cancer treatment for her daughter and threatened the caregiver and case worker. The juvenile court then denied appellant's petition to reinstate service, freed the daughter for adoption, and placed her with a confidential caregiver. After the court affirmed the dependency order, appellant tried to intervene in the adoption proceeding by requesting a civil harassment restraining order. The court held that appellant may not use the civil harassment order process to mount a collateral attack on the Welfare & Institution Code section 366.26 order terminating parental rights, the selection of a confidential caregiver, or the adoptive placement.

In re M.T.

Court: Montana Supreme Court

Citation: 2020 MT 262

Opinion Date: October 20, 2020

Judge: James A. Rice

Areas of Law: Family Law

In this termination of parental rights matter, the Supreme Judicial Court reversed the district court's order, holding that the court abused its discretion by terminating Mother's parental rights without a conclusive determination of her two children's tribal membership status and enrollment eligibility with the United Keetoowah Band of Cherokee Indians tribe. Specifically, the Supreme Court held (1) the district court erred by terminating Mother's parental rights in the absence of a conclusive tribal determination regarding the children's status as Indian children of the United Keetoowah tribe; (2) the Montana Department of Public Health and Human Services engaged in reasonable efforts to prevent removal and reunite Mother with her children; and (3) the district court did not err by determining that the conduct or condition rendering Mother unfit, unable, or unwilling to parent was unlikely to change within a reasonable time. The Supreme Court remanded the case to allow the tribe to make a conclusive determination regarding the children's membership and enrollment eligibility.

Bickel v. Bickel

Court: North Dakota Supreme Court

Citation: 2020 ND 212

Opinion Date: October 21, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Civil Procedure, Family Law

Sabrina Bickel appealed a second amended judgment modifying Matthew Bickel’s child support obligation, order for amended judgment, and order on her motion to compel discovery. She argued the district court erred by miscalculating child support, incorrectly setting the commencement date for the modification of child support, and failing to award her attorney’s fees. After review, the North Dakota Supreme Court determined the district court did not "show its math" with respect to calculating the child support obligation. The matter was remanded for further proceedings.

Hoffarth v. Hoffarth

Court: North Dakota Supreme Court

Citation: 2020 ND 218

Opinion Date: October 21, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Civil Procedure, Family Law

Jeremy Hoffarth appealed an order denying his motion for relief from a divorce judgment and his subsequent motion to reconsider. The North Dakota Supreme Court concluded the appeal of his motion for relief from the judgment was untimely. The Court therefore affirmed the order denying his motion to reconsider because the district court did not abuse its discretion.

Interest of C.A.R.

Court: North Dakota Supreme Court

Citation: 2020 ND 209

Opinion Date: October 21, 2020

Judge: Jerod E. Tufte

Areas of Law: Family Law

M.L.B. appealed a district court order denying her petition to terminate T.D.R.’s parental rights. M.L.B. and T.D.R. had one child together, C.A.R., born in 2015. In May 2018, M.L.B. petitioned for termination of T.D.R.’s parental rights, claiming T.D.R. had not seen C.A.R. since February 2017 and T.D.R. failed to pay child support except for one payment in January 2018. In a separate action, M.L.B.’s husband, A.G., petitioned to adopt C.A.R. After a September 2019 hearing, the district court found T.D.R. had not abandoned C.A.R. The court found T.D.R.’s lack of contact with C.A.R. was justified because T.D.R. relied on his counsel’s advice during the pendency of his criminal case. The court also found T.D.R.’s failure to financially support C.A.R. before a child support order was in place did not support an intent to abandon C.A.R. The court found a child support order was not in place until August 2017, after its entry T.D.R. maintained substantial compliance, and T.D.R. was current on his support payments at the time of the hearing. The court thus denied M.L.B.’s petition to terminate T.D.R.’s parental rights. The North Dakota Supreme Court concluded the district court did not abuse its discretion in denying M.L.B.’s petition to terminate T.D.R.’s parental rights. The court’s findings had support in the record, and it did not act in an arbitrary, unconscionable, or unreasonable manner in making its decision.

Blake v. Petrie

Court: Vermont Supreme Court

Citation: 2020 VT 92

Opinion Date: October 16, 2020

Judge: Eaton

Areas of Law: Civil Procedure, Family Law

Damon Petrie appealed the family division’s denial of his motion to dismiss his ex-wife, Angela Blake’s, attempt to enforce a judgment she obtained in their divorce action. Petrie claimed enforcement of the judgment was barred by the applicable statute of limitations because the judgment was not renewed within the required time. In denying the motion, the family division found Blake had complied with the family division rules for enforcement proceedings and with 12 V.S.A. 506. It then granted Petrie’s motion for interlocutory appeal to the Vermont Supreme Court. The Supreme Court agreed that Petrie’s motion to dismiss should have been granted and therefore reversed and entered judgment in his favor.

In re A.M. & G.M.

Court: Vermont Supreme Court

Citation: 2020 VT 95

Opinion Date: October 16, 2020

Judge: Carroll

Areas of Law: Family Law, Government & Administrative Law

Parents appealed the termination of their rights in A.M. and G.M., ages five and four. Parents struggled with substance abuse and were incarcerated periodically during the underlying proceedings. In January 2018, the Department for Children and Families (DCF) filed a petition alleging the children were in need of care or supervision (CHINS) based on parental neglect, including squalid living conditions, and parental substance-abuse concerns. The children were initially placed with their maternal grandmother pursuant to a conditional custody order (CCO), and then with mother pursuant to a CCO. In April 2018, with parents’ agreement, custody of the children was transferred to DCF. Parents stipulated that the children were CHINS, and following a June 2018 disposition hearing, the parties stipulated to continued DCF custody and to DCF’s disposition case plan, which contemplated reunification by November 2018 or adoption. Parents were required to take various action steps to achieve reunification. The children did not see mother after June 2018 and they stopped seeing father before that time. As of September 2018, the children were placed together in the same foster home. Appealing the ultimate termination of the parental rights to their children, Parents challenged the trial court's treatment of voluntary guardianship petitions filed during the pendency of the juvenile proceedings. Mother also argued the court erred in terminating her rights. Finding no abuse of discretion or other reversible error, the Vermont Supreme Court affirmed termination.

Lanfear v. Ruggerio & Fennimore

Court: Vermont Supreme Court

Citation: 2020 VT 84

Opinion Date: October 16, 2020

Judge: Carroll

Areas of Law: Family Law

Plaintiff appealed the family division’s decision declining to adjudicate her a de facto parent of J.F. pursuant to 15C V.S.A. 501(b). The family division found that plaintiff had failed to demonstrate by clear and convincing evidence four of the seven factors outlined in section 501 to be recognized as a de facto parent, namely that the person seeking de facto parentage: “undertook full and permanent responsibilities of a parent of the child without expectation of financial compensation”; held out the child as their own; “established a bonded and dependent relationship with the child that is parental in nature;” and that “continuing the relationship between the person and the child is in the best interests of the child.” Plaintiff argued on appeal of the Vermont Supreme Court that she proved the above-mentioned factors by clear and convincing evidence. Finding no abuse of discretion or other reversible error, the Supreme Court affirmed the family division’s decision.

Scheffler v. Harrington

Court: Vermont Supreme Court

Citation: 2020 VT 93

Opinion Date: October 16, 2020

Judge: Carroll

Areas of Law: Civil Procedure, Family Law

Defendant Raymond Harrington appealed the issuance of a relief-from-abuse order requiring him to have no contact with and stay a hundred feet away from plaintiff Melissa Scheffler (his sister), her residence, and their mother’s home. The trial court issued the order because it concluded that defendant stalked plaintiff, within the meaning of 12 V.S.A. 5131, by driving by her home on multiple occasions and honking his horn, which the court found constituted surveillance. On appeal, defendant argued his actions did not amount to surveillance because surveillance requires “an intent to engage in a close watch or observation.” To this, the Supreme Court agreed and reversed, because, based on the trial court’s findings, there was no evidence defendant was closely watching or observing plaintiff.

Wood v. Martin

Court: Supreme Court of Virginia

Docket: 190738

Opinion Date: October 22, 2020

Judge: Kelsey

Areas of Law: Family Law, Trusts & Estates

The Supreme Court affirmed the judgment of the circuit court awarding Tracey Martin her agreed-upon share of proceeds of John Wood's insurance policy after he committed suicide, holding that the circuit court did not err. During their divorce proceeding, Wood agreed to maintain a preexisting life insurance policy for the partial benefit of Tracey Martin. The circuit court incorporated the agreement (the agreement) into the final divorce decree. Six years later, in defiance of the court order, Wood removed Martin as a beneficiary and designated his brothers, his new wife, and a friend as beneficiaries on the policy. Wood committed suicide two days later. In a lawsuit initiated by Martin, the insurer interpleaded the policy proceeds. The circuit court awarded Martin her share of the proceeds consistent with the divorce decree. The Supreme Court affirmed, holding (1) Va. Code 38.2-3122(B) did not bar Martin's claim because the final divorce decree that ratified and incorporated the agreement created an equitable assignment; and (2) faced with competing equities, the circuit court did not err in finding Martin's beneficial interest in the interpleader proceeds to be superior to that of the new beneficiaries.

In re Dependency of A.M.-S.

Court: Washington Supreme Court

Docket: 98094-2

Opinion Date: October 22, 2020

Judge: Yu

Areas of Law: Family Law

In 2018, a dependency petition was filed alleging that A.M.-S' father had physically abused the child. Although the father denied the allegations against him, he stipulated to a finding of dependency “given the nature of the allegations and the possibility of criminal charges.” The court ordered the father to engage in a “[p]sychological evaluation with a parenting component” and reserved ruling on other possible evaluations. The father asked the trial court to go beyond the RCW 26.44.053(2)'s requirements and prohibit not only the “use” of his statements during his court-ordered evaluation but also any “derivative use” of those statements in connection with a dependency hearing. The county prosecutor objected, and the trial court denied the father’s motion. The Court of Appeals unanimously affirmed in a published opinion. The Washington Supreme Court affirmed the Court of Appeals: under these circumstances, the trial court was not required to grant derivative use immunity over the prosecutor’s objection.