The area of Louisiana father's rights (and also around the country) has prompted more comments about The Fix Is In article and more discussion in the Family Law Forum than any other family related subject. Feel free to add your own comments at the bottom of this article.
For a list of Louisiana deadbeat parents (it is a long, long, list) go here.
The Fix Is In
No Man Can Count On Justice In Family Court, Argues An Angry Professor
Trevor Gallahan's father is going to jail. He has not been charged with any crime. He is not behind in child support. He has not battered anyone. Yet Ken Gallahan could conceivably remain in jail for the rest of his life. What is his infraction? He does not have $15,000 to pay a lawyer he never hired. He was already jailed indefinitely when he could not pay a psychotherapist he also had not hired and was released only when his mother paid the fees.
Debtors' prisons were theoretically abolished long ago, but this does not stop family court judges from using the bench to shake down fathers who have done nothing wrong and funnel everything they have into the pockets of the court's cronies. In fact the looting and criminalization of fathers like Ken Gallahan is now routine in divorce courts.
Family courts are the arm of the state that routinely reaches farthest into the private lives of individuals and families, yet they are answerable to virtually no one. By their own assessment, according to Robert W. Page of the New Jersey Family Court, "the power of family court judges is almost unlimited." Others have commented on their vast and intrusive powers less charitably. Malcolm X once called family courts "modern slavery," and former Supreme Court Justice Abe Fortas termed them "kangaroo" courts. One father was told by a judicial investigator in New Jersey, "The provisions of the US Constitution do not apply in domestic relations cases, since they are determined in a court of equity rather than a court of law."
The plunder of fathers invariably begins with the taking of their children. Despite formal legal equality between parents, some 85-90% of custody awards go to mothers. This is despite the fact that it is usually the mother who seeks the divorce, and most often without grounds of wrongdoing by the father. In fact a mother can have a half-dozen previous divorces, she can commit adultery, she can level false charges, she can assault the father, in some cases she can even abuse the children, and none of these (except in extreme cases the last) has any bearing on a custody decision.
A mother who consults a divorce attorney today will be advised that her best strategy is simply to take the children and their effects and leave without warning. If she has no place to go, she will be told that by accusing the father of sexual or physical abuse (or even simply stating that she is "in fear") she can obtain a restraining order immediately forcing him out of the family home, often without so much as a hearing. She will also learn that not only can she not be punished for either of these actions, they cannot even be used against her in a custody decision. In fact they work so strongly in her favor that failure to apprise a female client of these options may be considered legal malpractice.
Mothers who abduct children and keep them from their fathers are routinely rewarded with immediate "temporary" custody. In fact this is almost never temporary. Once she has custody it cannot be changed without a lengthy and expensive court battle. The sooner and the longer she can establish herself as the sole caretaker the more difficult and costly it is to dislodge her. The more she cuts the children off from the father, alienates them from the father, slings false charges, and delays the proceedings, the more she makes the path of least resistance (and highest earnings) to leave her with sole custody. In short, the more belligerence she displays and the more litigation she creates, the more grateful the courts will be for the business she provides.
For a father the simple fact of his being a father is enough for him to be summoned to court, stripped of all decision-making rights over his children, ordered to stay away from them six days out of seven, and ordered to make child support payments that may amount to two-thirds or more of his income. Like Ken Gallahan, he can also be forced to pay almost any amount to lawyers and psychotherapists and summarily jailed if he is unwilling or unable.
What is happening to fathers in divorce courts is much more serious than unfair gender bias. An iron triangle of lawyers, judges, and women's groups is finding it increasingly easy - and lucrative - to simply throw fathers out of their families with no show of wrongdoing whatever and seize control of their children and everything they have. Family courts have in effect declared to the mothers of America: If you file for divorce we can take everything your husband has and divide it among ourselves, with the bulk of it going to you. We can take his children, his home, his income, his savings, and his inheritance and reduce him to beggary. And if he raises any objection we can throw him in jail without trial.
The astounding fact is that, with the exception of convicted criminals, no group today has fewer rights than fathers. Even accused criminals have the right to due process of law, to know the charges against them, to face their accusers, to a lawyer, and to a trial. A father can be deprived of his children, his home, his savings, his livelihood, his privacy, and his freedom without any of these constitutional protections. And not only a divorced father or a unmarried father: Any father at any time can find himself in court and in jail. Once a man has a child he forfeits his most important constitutional rights.
The words "divorce" and "custody" have become deceptively innocuous-sounding terms. We should remind ourselves that they involve bringing the coercive apparatus of the state - police, courts, and jails - into the home for use against family members. When we recall that those family members may not even be charged with any legal wrongdoing we can begin to grasp the full horror of what is taking place and how far the divorce machinery has been fashioned into an instrument of terror. As citizens of communist Eastern Europe once did, it is now fathers who live in fear of the "knock on the door."
So what can a father do to escape the fate of Ken Gallahan and millions like him? Very little, and divorce manuals encouraging fathers with advice on how to win custody are not doing them any favors. The latest wisdom informs fathers that the game is so rigged that their best hope of keeping their children is not to wait for their day in court but to adopt the techniques of mothers: If you think she is about to snatch, snatch first. "If you do not take action," writes author Robert Seidenberg, "your wife will. If this advice is sound, the custody industry has turned marriage into a "race to the trigger," to adopt the terms of nuclear deterrence replete with the pre-emptive strike: Whoever snatches first survives.
If you don't have the stomach for this, then you probably should not marry and not have children.
http://www.la-legal.com/modules/article/view.article.php?c4/16
Thursday, June 7, 2007
Relocating children after divorce
One of the hardest issues to resolve after a divorce is what happens to the children when a custodial parent wants to, or has to, move? The courts are left in the position of having to decide between the fundamental right of an American to live wherever they choose with the rights of the children and of the ex-spouse to be near the children.
The La-Legal Family Law Forum has several threads dealing with the issue of moving out of state after a divorce or even during the divorce process. Take a look at the issue from the perspective of people who are actually facing the problem at our Family Law Forum and then search on the topics "move" or "moving."
In a recent Louisiana case, the conflicting rights of parents and children were spelled out together with a discussion as to how to arrive at a decision. It has to be admitted that there is no "solution" in these cases. That is, no matter what decision is made there will still be a negative impact on at least one of the parties. However, the Louisiana courts have at least come to some conclusions as to how the problem should be approached.
Children on the move after a divorce in LouisianaIn Hodges v. Hodges (827 So.2d 1271) decided in October of 2002, the court was faced with deciding how to handle the petition of a divorced father ("Dan") who wanted to move from Louisiana to Virginia with his children. The trial court denied his request which meant he would either have to move without the children or stay in Louisiana. In fact, the children had spent much of their time in Virginia and that is where the father's job was. There were many other factual issues in the case, including the mental stability of the mother ("Lily") and, apparently, a great deal of acrimony between the mother and father.
The Third Circuit Court of Appeals reversed the trial court and found that the father should have been allowed to move to Virginia with the children. One of the important features of this case is the way it spells out the existing law in Louisiana and the way the law should be applied. The court said:
This state's "relocation statute" requires a parent with primary custody to give notice to the non-domiciliary parent of the intent to relocate the primary residence of the minor child within their care. The non-domiciliary parent who is given adequate notice then has the opportunity to initiate a hearing wherein he or she can set before the court any objection to the relocation.
The relocating parent has the burden of proving: 1) the proposed relocation is in good faith; and 2) it is in the best interest of the child. La.R.S. 9:355.13. La.R.S. 9:355.12 sets forth the factors a court shall consider when determining a relocation issue. These factors are:
(1) The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child's life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child's preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) Any other factors affecting the best interest of the child.
It is evident from our review of the record that Dan carried his burden of proof in both establishing that this proposed relocation is in good faith and that it is in the best interest of the children.
In this particular case, it was found that the trial judge did not properly analyze the facts from the perspective of 1) good faith, and 2) whether the move was in the best interest of the children. Once these two factor are determined, then the considerations contained in paragraphs (1) through (8) should be addressed. In Hodges, the appeals court then found from the evidence and testimony that each of the factors favored the father's petition to relocate.
As an example, when discussing factor (5) as to the conduct of the parties, the court said:
With regard to factor five, it is clear that Dan has attempted to cooperate with visitation. It is equally clear that Lily has been uncooperative and worked at thwarting visitation and has punished the children for her perception that they side with their father. Lily has assigned as error the trial court's determination that Dan is the parent most likely to encourage and continue the children's relationship with the other parent. As noted above, the record supports the trial court's determination.
http://www.la-legal.com/modules/article/view.article.php?c4/33
The La-Legal Family Law Forum has several threads dealing with the issue of moving out of state after a divorce or even during the divorce process. Take a look at the issue from the perspective of people who are actually facing the problem at our Family Law Forum and then search on the topics "move" or "moving."
In a recent Louisiana case, the conflicting rights of parents and children were spelled out together with a discussion as to how to arrive at a decision. It has to be admitted that there is no "solution" in these cases. That is, no matter what decision is made there will still be a negative impact on at least one of the parties. However, the Louisiana courts have at least come to some conclusions as to how the problem should be approached.
Children on the move after a divorce in LouisianaIn Hodges v. Hodges (827 So.2d 1271) decided in October of 2002, the court was faced with deciding how to handle the petition of a divorced father ("Dan") who wanted to move from Louisiana to Virginia with his children. The trial court denied his request which meant he would either have to move without the children or stay in Louisiana. In fact, the children had spent much of their time in Virginia and that is where the father's job was. There were many other factual issues in the case, including the mental stability of the mother ("Lily") and, apparently, a great deal of acrimony between the mother and father.
The Third Circuit Court of Appeals reversed the trial court and found that the father should have been allowed to move to Virginia with the children. One of the important features of this case is the way it spells out the existing law in Louisiana and the way the law should be applied. The court said:
This state's "relocation statute" requires a parent with primary custody to give notice to the non-domiciliary parent of the intent to relocate the primary residence of the minor child within their care. The non-domiciliary parent who is given adequate notice then has the opportunity to initiate a hearing wherein he or she can set before the court any objection to the relocation.
The relocating parent has the burden of proving: 1) the proposed relocation is in good faith; and 2) it is in the best interest of the child. La.R.S. 9:355.13. La.R.S. 9:355.12 sets forth the factors a court shall consider when determining a relocation issue. These factors are:
(1) The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child's life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child's preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) Any other factors affecting the best interest of the child.
It is evident from our review of the record that Dan carried his burden of proof in both establishing that this proposed relocation is in good faith and that it is in the best interest of the children.
In this particular case, it was found that the trial judge did not properly analyze the facts from the perspective of 1) good faith, and 2) whether the move was in the best interest of the children. Once these two factor are determined, then the considerations contained in paragraphs (1) through (8) should be addressed. In Hodges, the appeals court then found from the evidence and testimony that each of the factors favored the father's petition to relocate.
As an example, when discussing factor (5) as to the conduct of the parties, the court said:
With regard to factor five, it is clear that Dan has attempted to cooperate with visitation. It is equally clear that Lily has been uncooperative and worked at thwarting visitation and has punished the children for her perception that they side with their father. Lily has assigned as error the trial court's determination that Dan is the parent most likely to encourage and continue the children's relationship with the other parent. As noted above, the record supports the trial court's determination.
http://www.la-legal.com/modules/article/view.article.php?c4/33
Grandparent visitation rights
Part two
Damien Cave continues with the article "My grandparents were pioneers in the battle for visitation rights."
It was like that from the start. Before my dad drove east, they offered non-stop advice, sent every baby accessory imaginable, regularly visited and kept every memento they could find. All the earliest pictures of me come from their camera.
Such hovering couldn't have helped my parents' marriage. But once my dad met Colette, my stepmother whom I've always called Mom, the focus shifted. My grandparents no longer sought to augment their daughter's efforts. They aimed to get as much time with me as possible, for my mother and for themselves.
"It was just an insurance policy," Grandpa told me when I asked last week why they sought visitation rights. "We didn't even know we could do it until someone told us. We went for them because up until that time, we had been lied to, often. We just wanted to ensure that we had the 'pleasure' [sarcasm is his] of spending time with you."
What they really feared was a disappearance, Grandma told me. They saw me often before the split, but once Dad took off, the visits became erratic. Dad had become a massage therapist and we moved often. He rarely told anyone where we'd gone.
In Saratoga, about a year after he came East, he filed for divorce, claiming abandonment and seeking full custody. At the time, my grandparents had hired a private investigator. He never found us, but a friend of my grandparents did. He was a lawyer who happened to be in court near Albany on the day of a hearing. He saw my mother's name on the docket, then told the judge that he knew the family. They'd never let Damien go without a fight, he said.
He was right. When the custody battles finally ended, I was 8. Dad said he didn't strongly oppose my grandparents' rights, largely because he didn't take them seriously, and he just wanted the divorce to be over. With my grandparents' help, my mother won broad rights as well, and that concerned him more.
Eventually, however, she drifted further into alcoholism and out of my life. She would often call and promise a visit, then never show, nor even call. Between ages 8 and 18, I saw her less than a dozen times. She's sober now and I see her more often, but in the meantime, my grandparents replaced her. In her absence, they called almost weekly, and made plans six months in advance. Every winter, the three of us would go skiing for a week, and every summer I visited them in Scarsdale. From there we either took a trip, such as to Niagara Falls, or did the New York thing -- museums, plays and Yankees games.
Their consistent presence was exactly what I needed. Combined with the domestic routine my stepmother brought to Dad and me, those visits made me feel like I belonged to a normal family, one that wouldn't disappear or drastically change without warning. Slowly, I outgrew my fears and shame. My emotional muscles relaxed, and I simply grew up. A family, I began to see, was a patchwork of support systems, not a couples-based, genetic flowchart.
My father and stepmother largely encouraged that feeling, and the visits. But tensions often arose over gifts. We lived a frugal, blue-collar life, so whenever I returned to our rundown apartment with the latest Atari game, or the hippest Nikes, they worried. "They're trying to buy your love," Dad would say.
Truth is, my grandparents -- both entrepreneurs who pulled themselves through the Depression -- didn't know any better. The gifts weren't as much about gaining my love as showing their own. Still, I was a brat who was poor but manipulative enough to know how cool those games or sneakers would make me. My dad and stepmother's fears that I would become a stinking materialist were not totally unwarranted.
Sadly though, those fears grew to epic proportions. The result was the cold-war battle I mentioned earlier. To this day, my father and stepmother are convinced that I've gone over to the dark side, fallen in love with a rich, Jewish, sophisticated snobbery, thus snubbing the Christian hard work that they've come to revere. When I asked my dad if he ever felt jealous of my relationship with my grandparents, he said, "No," but admitted that "money is control." The wealth I saw when visiting my grandparents influenced me more than it should have, he said.
By the same token, my grandfather has a hard time believing that my father has taught me anything worthwhile. Like "The Swede" of Philip Roth's "American Pastoral," he is cut from the cloth of a post-World War II era. He didn't understand why my parents got married in the first place, can't fathom the simple, religious life my father now lives and -- above all else -- finds it appalling that my father did not take on debt to help me pay for college.
Ultimately, these issues of class are not relevant to every story of grandparents' rights. But underlying them are several simple truths. First, and this should come as no surprise, grandparents' values often don't coincide with parents'. Second, because of such disparities, fights are inevitable, particularly when grandparents are given a legal foot in the door. And third, a parent-grandparent mix of influence creates a parent-grandparent child. This is not necessarily a boon to a child's development, but judges should have the freedom to decide the issue. Tying their hands, limiting their vision to parents alone, will only hurt the thousands of children who, like myself, need the stability that an older generation offers.
In the long run, that stability is what will last. Without my grandfather, I would never have learned the joy of classical music or the taste of a Brooklyn Danish. Without Grandma, I might never have come to appreciate modern art, nor have been told about the importance of birth control. Together they pushed me to study at Oxford, and trusted my decision to forego law school to become a writer.
But ultimately, their love and consistency have been their greatest gifts. Neither would have been possible without the habit of visits mandated by the courts. There have been problems, but also great moments of strength. In the words of my grandmother: "We're dysfunctional, but so is everyone else. What counts is that we're there for each other."
http://www.la-legal.com/modules/article/view.article.php?c4/39
Damien Cave continues with the article "My grandparents were pioneers in the battle for visitation rights."
It was like that from the start. Before my dad drove east, they offered non-stop advice, sent every baby accessory imaginable, regularly visited and kept every memento they could find. All the earliest pictures of me come from their camera.
Such hovering couldn't have helped my parents' marriage. But once my dad met Colette, my stepmother whom I've always called Mom, the focus shifted. My grandparents no longer sought to augment their daughter's efforts. They aimed to get as much time with me as possible, for my mother and for themselves.
"It was just an insurance policy," Grandpa told me when I asked last week why they sought visitation rights. "We didn't even know we could do it until someone told us. We went for them because up until that time, we had been lied to, often. We just wanted to ensure that we had the 'pleasure' [sarcasm is his] of spending time with you."
What they really feared was a disappearance, Grandma told me. They saw me often before the split, but once Dad took off, the visits became erratic. Dad had become a massage therapist and we moved often. He rarely told anyone where we'd gone.
In Saratoga, about a year after he came East, he filed for divorce, claiming abandonment and seeking full custody. At the time, my grandparents had hired a private investigator. He never found us, but a friend of my grandparents did. He was a lawyer who happened to be in court near Albany on the day of a hearing. He saw my mother's name on the docket, then told the judge that he knew the family. They'd never let Damien go without a fight, he said.
He was right. When the custody battles finally ended, I was 8. Dad said he didn't strongly oppose my grandparents' rights, largely because he didn't take them seriously, and he just wanted the divorce to be over. With my grandparents' help, my mother won broad rights as well, and that concerned him more.
Eventually, however, she drifted further into alcoholism and out of my life. She would often call and promise a visit, then never show, nor even call. Between ages 8 and 18, I saw her less than a dozen times. She's sober now and I see her more often, but in the meantime, my grandparents replaced her. In her absence, they called almost weekly, and made plans six months in advance. Every winter, the three of us would go skiing for a week, and every summer I visited them in Scarsdale. From there we either took a trip, such as to Niagara Falls, or did the New York thing -- museums, plays and Yankees games.
Their consistent presence was exactly what I needed. Combined with the domestic routine my stepmother brought to Dad and me, those visits made me feel like I belonged to a normal family, one that wouldn't disappear or drastically change without warning. Slowly, I outgrew my fears and shame. My emotional muscles relaxed, and I simply grew up. A family, I began to see, was a patchwork of support systems, not a couples-based, genetic flowchart.
My father and stepmother largely encouraged that feeling, and the visits. But tensions often arose over gifts. We lived a frugal, blue-collar life, so whenever I returned to our rundown apartment with the latest Atari game, or the hippest Nikes, they worried. "They're trying to buy your love," Dad would say.
Truth is, my grandparents -- both entrepreneurs who pulled themselves through the Depression -- didn't know any better. The gifts weren't as much about gaining my love as showing their own. Still, I was a brat who was poor but manipulative enough to know how cool those games or sneakers would make me. My dad and stepmother's fears that I would become a stinking materialist were not totally unwarranted.
Sadly though, those fears grew to epic proportions. The result was the cold-war battle I mentioned earlier. To this day, my father and stepmother are convinced that I've gone over to the dark side, fallen in love with a rich, Jewish, sophisticated snobbery, thus snubbing the Christian hard work that they've come to revere. When I asked my dad if he ever felt jealous of my relationship with my grandparents, he said, "No," but admitted that "money is control." The wealth I saw when visiting my grandparents influenced me more than it should have, he said.
By the same token, my grandfather has a hard time believing that my father has taught me anything worthwhile. Like "The Swede" of Philip Roth's "American Pastoral," he is cut from the cloth of a post-World War II era. He didn't understand why my parents got married in the first place, can't fathom the simple, religious life my father now lives and -- above all else -- finds it appalling that my father did not take on debt to help me pay for college.
Ultimately, these issues of class are not relevant to every story of grandparents' rights. But underlying them are several simple truths. First, and this should come as no surprise, grandparents' values often don't coincide with parents'. Second, because of such disparities, fights are inevitable, particularly when grandparents are given a legal foot in the door. And third, a parent-grandparent mix of influence creates a parent-grandparent child. This is not necessarily a boon to a child's development, but judges should have the freedom to decide the issue. Tying their hands, limiting their vision to parents alone, will only hurt the thousands of children who, like myself, need the stability that an older generation offers.
In the long run, that stability is what will last. Without my grandfather, I would never have learned the joy of classical music or the taste of a Brooklyn Danish. Without Grandma, I might never have come to appreciate modern art, nor have been told about the importance of birth control. Together they pushed me to study at Oxford, and trusted my decision to forego law school to become a writer.
But ultimately, their love and consistency have been their greatest gifts. Neither would have been possible without the habit of visits mandated by the courts. There have been problems, but also great moments of strength. In the words of my grandmother: "We're dysfunctional, but so is everyone else. What counts is that we're there for each other."
http://www.la-legal.com/modules/article/view.article.php?c4/39
Wednesday, June 6, 2007
Grandparent visitation rights
Part three
The following article was originally printed in Around the Bar, the monthly publication of the Baton Rouge Bar Association.
This article is intended for attorneys and therefore has a more "scholarly" approach that may be less easy to read. However, for the lawyer or for the layman with a serious interest in the subject, this article presents a complete review of current Louisiana law on grandparent visitation.
Grandparent Visitation Rights in Louisiana
What rights should grandparents have to see their grandchildren? Should it make a difference if the parents are divorced or if one of the parents is dead or in jail? Can the states have legislation allowing grandparent visitation, or is there an absolute constitutional right for a parent to be free from any interference in the way the parent decides to raise the child?
At the present time, it looks like the Louisiana First and Third Circuit Courts of Appeal and the United States Supreme Court may be in disagreement on these issues. Will the Louisiana Supreme Court and/or the Louisiana Law Institute arrive at a solution? Stay tuned….
Troxel v. Granville
At the heart of the dispute is the U.S. Supreme Court case decided in June of 2000 that put many state legislatures into panic mode (Jennifer Troxel v. Tommie Granville 530 U.S. 57). At issue was a Washington State law (Section 26.10.160(3)) that permits “any person” to petition a superior court for visitation rights “at any time” and authorizes the court to grant visitation when it would “serve the best interest of the child.”
Tommie Granville and Brad Troxel had two daughters. They never married and ended their relationship in 1991. Brad lived with his parents, Jennifer and Gary Troxel, and regularly brought his daughters to the Troxels’ house for weekend visitation during a two-year period. Brad committed suicide in 1993, but the Troxels continued to see their granddaughters on a regular basis after their son’s death. Late in 1993, Tommie Granville informed the Troxels that she would not allow any further visitation except for one short visit per month. The Troxels sued for visitation rights in Superior Court under Washington’s statute and asked for two weekends of visitation each month and two weeks in the summer. Granville did not oppose visitation entirely, but wanted to allow only one day of visitation each month without any time overnight. In 1995, the Superior Court awarded the Troxels one weekend per month, one week during the summer, and four hours on each grandparent’s birthday.
Granville appealed during which time she married and her new husband adopted the daughters. Eventually, the case was heard by the Washington Supreme Court which found that the statute under which the Troxels gained visitation unconstitutionally infringed on the fundamental right of parents to rear their children. The U.S. Supreme Court granted certiorari in 1999 and affirmed the Washington judgment. The majority (there were three strong dissents) found that the Fourteenth Amendment provides that no state “shall deprive a person of life, liberty, or property” and that “The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by the Court.”
Of course, it could also be argued that this decision has the effect of substituting a court’s understanding of family relationships with the understanding of elected bodies, thereby allowing a mother, for whatever motives, to sever all relations to one-half the bloodline of the children. As Justice Scalia said in his dissent: “I think it obvious—whether we affirm or reverse the judgment here, or remand as Justice Stevens or Justice Kennedy would do—that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.”
If you look at the many amicus briefs filed in Troxel, you can see how the wagons have been circled for future disputes over this issue. Filing briefs on behalf of the mother were: Northwest Women's Law Center et al; Coalition for the Restoration of Parental Rights; American Academy of Matrimonial Lawyers; Lambda Legal Defense and Education Fund et al; and nine others. Filing briefs on behalf of the grandparents were: American Association of Retired Persons; Grandparent Caregiver Law Center: National Conference of State Legislatures et al; and two others.
Louisiana Statutory Law
Louisiana has three statutes that control the issue of grandparent visitation. These statutes may or may not run afoul of Troxel, depending on how you wish to argue and, perhaps, whether you are in the Third Circuit or the First Circuit.
Children’s Code Article 1264 is aimed exactly at the situation in Troxel where a parent is deceased and the children are adopted by a new parent:
Art. 1264 Post-adoption visitation rights of grandparents
Notwithstanding any provision of law to the contrary, the natural parents of a deceased party to a marriage dissolved by death whose child is thereafter adopted, and the parent of a party who has forfeited the right to object to the adoption of his child pursuant to Article 1245 may have limited visitation rights to the minor child so adopted.
Title 9 of the Civil Code Ancillaries allows grandparent visitation where the visitation would be in the best interest of the children:
LSA R.S. 9:344 Visitation rights of grandparents and siblings.
A. If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage, the parents of the deceased, interdicted, or incarcerated party without custody of such minor child or children may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
B. When the parents of a minor child or children live in concubinage and one of the parents dies, or is incarcerated, the parents of the deceased or incarcerated party may have reasonable visitation rights to the child or children during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
C. If one of the parties to a marriage dies or is incarcerated, the siblings of a minor child or children of the marriage may have reasonable visitation rights to such child or children during their minority if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
D. If the parents of a minor child or children of the marriage are legally separated or living apart for a period of six months, the grandparents or siblings of the child or children may have reasonable visitation rights to the child or children during their minority, if the court in its discretion find that such visitation rights would be in the best interest of the child or children.
Finally, Civil Code Article 136 gives visitation rights, under extraordinary circumstances, to a relative by blood or affinity (which, of course, includes grandparents). Where Article 136 conflicts with R.S. 9:344, the provisions of R.S. 9:344 shall supersede Article 136. Before granting visitation under Article 136, the court must consider such things as 1) the length of time and quality of the relationship; 2) whether the child needs guidance which can be best provided by the relative; 3) the preference of the child, if the child is mature enough to express a preference; 4) the willingness of the relative to promote a close relationship with the parent; and, 5) the mental and physical health of the child and the relative.
These three statutes set the scene for the conflict that some courts believe exists with the decision of the U.S. Supreme Court in Troxel.
Louisiana Grandparent Visitation Cases
The Third Circuit narrowly avoided having to rule on the constitutionality of Louisiana’s visitation statutes in State In Re: Satchfield v. Guillot (La.App. 3 Cir. 06/26/02) 820 So.2d 1255. After acknowledging that the case would have to be examined in light of the Troxel decision, the Court concluded that 9:344 did not apply since the parents were together and that the requirement of Civil Code Article 136(B) that there be extraordinary circumstances, upon which the trial court relied, was “a substitution of its judgment for the judgment of Sebastian’s parents without a showing that the parents’ decision is detrimental to the child.” Finding that there were not sufficient extraordinary circumstances, the Court concluded that it did not have to rule on the constitutionality of Article 136(B).
In Dupre v. Dupre (La.App. 3 Cir. 12/30/02) 2002-0902, the Third Circuit had to face the constitutionality of R.S. 9:344 squarely since the father was sentenced to life in prison and the provisions of R.S. 9:344 were certainly applicable to the issue of grandparent visitation. The trial court awarded one weekend per month visitation to the grandparents and the mother appealed. In its decision, the Third Circuit analyzed Troxel and concluded that 9:344, which only allows visitation to the parents of a deceased, interdicted or incarcerated parent, provided it be found to be in the best interest of the child, is easily distinguishable from the ‘breathtakingly broad” statute found unconstitutional in Troxel.
Our own First Circuit has had more trouble deciding where Louisiana’s grandparent visitation statutes stand in relation to the Washington statute found unconstitutional by the U.S. Supreme Court. In Galjour v. Harris (La.App. 1 Cir. 03/28/01) 795 So.2d 350, the First Circuit had no problem distinguishing the Louisiana statutes allowing grandparent visitation from the Washington statute. In Galjour, the mother was deceased and the grandparents petitioned for visitation claiming they had a statutory right under R.S. 9:344 to seek visitation. The father filed an exception claiming the statute was unconstitutional under the Troxel ruling. At trial the grandparents were given visitation on every third weekend subject to some restrictions. The father appealed, claiming the statute was unconstitutional and claiming that the trial court erred in not giving him any special weight in determining what was in his child’s best interest. The court decided that R.S. 9:344 was sufficiently different and limited in its scope from Troxel and “Additionally, the statute’s grant of visitation does not contemplate a significant intrusion upon the child’s relationship with the other parent or interference with said parent’s fundamental right to make childrearing decisions.”
The following year, the First Circuit seems to reverse itself in Wood v. Wood (La.App. 1 Cir. 09/27/02) No. 2002 CU 2819. In this case, the father was incarcerated and the mother and grandparents entered into a stipulated judgment giving the grandparents visitation on the first weekend of each month, one Sunday every other month, and one night on all major holidays. By agreement, the grandparents also paid child support. Because of apparent problems with visitation arrangements, the grandparents asked for and received additional visitation of one week in the summers. The mother appealed the award of the additional one week visitation and the First Circuit reversed the trial court’s award of additional visitation.
The first thing the First Circuit had to do in Wood was justify how it arrived at a different conclusion the year before in Galjour. The court cited the fact that the Legislature, after the Galjour decision, passed a resolution requesting that the Louisiana Law Institute study the effect of Troxel on the Louisiana statutes on child visitation and “report its findings and recommendations to the legislature on or before January 1, 2003.” The First Circuit noted that the request by the Legislature was an expression of concern “for protecting the fundamental rights of parents” rather than the broader and more obvious conclusion that the resolution was a request for guidance as to where Louisiana stood and what (if anything) should be done legislatively.
The Court next addressed the constitutionality of R.S. 9:344, even though the issue was not brought up at the trial level. Finally, the Court determined that the trial judge had put an unfair burden on the parent to show that the additional visitation would be detrimental to the child. In his dissent, Judge Bob Downing pointed out that no such burden had been placed on the parent to show the additional visitation was detrimental. The record showed that the trial court addressed the issue properly: the child’s best interest. There was evidence presented that the child enjoyed her visits, that she visited cousins while at her grandparents’ house, and that she is happy there. Judge Downing then discussed the finding in Galjour that R.S. 9:344 does not represent a significant intrusion on the parent’s rights and observed: “I do not see how an additional one-week of visitation during the summer would be a significant intrusion on the child’s relationship with her mother or an interference with her right to make child-rearing decisions.”
Wood v. Wood has been appealed and the Louisiana Law Institute had scheduled hearings for January 31, 2003, on the issue of Troxel in relation to the Louisiana visitation statutes. As of the writing of this article, no decision has been rendered on Wood and no recommendations have been made by the Law Institute. As for the grandparents in Troxel, the newly discovered constitutional right in that case effectively took away the grandchildren they helped raise and severed all living links to their dead son. Louisiana’s existing statutes, reasonably interpreted, would avoid that particular injustice.
http://www.la-legal.com/modules/article/view.article.php?c4/40
The following article was originally printed in Around the Bar, the monthly publication of the Baton Rouge Bar Association.
This article is intended for attorneys and therefore has a more "scholarly" approach that may be less easy to read. However, for the lawyer or for the layman with a serious interest in the subject, this article presents a complete review of current Louisiana law on grandparent visitation.
Grandparent Visitation Rights in Louisiana
What rights should grandparents have to see their grandchildren? Should it make a difference if the parents are divorced or if one of the parents is dead or in jail? Can the states have legislation allowing grandparent visitation, or is there an absolute constitutional right for a parent to be free from any interference in the way the parent decides to raise the child?
At the present time, it looks like the Louisiana First and Third Circuit Courts of Appeal and the United States Supreme Court may be in disagreement on these issues. Will the Louisiana Supreme Court and/or the Louisiana Law Institute arrive at a solution? Stay tuned….
Troxel v. Granville
At the heart of the dispute is the U.S. Supreme Court case decided in June of 2000 that put many state legislatures into panic mode (Jennifer Troxel v. Tommie Granville 530 U.S. 57). At issue was a Washington State law (Section 26.10.160(3)) that permits “any person” to petition a superior court for visitation rights “at any time” and authorizes the court to grant visitation when it would “serve the best interest of the child.”
Tommie Granville and Brad Troxel had two daughters. They never married and ended their relationship in 1991. Brad lived with his parents, Jennifer and Gary Troxel, and regularly brought his daughters to the Troxels’ house for weekend visitation during a two-year period. Brad committed suicide in 1993, but the Troxels continued to see their granddaughters on a regular basis after their son’s death. Late in 1993, Tommie Granville informed the Troxels that she would not allow any further visitation except for one short visit per month. The Troxels sued for visitation rights in Superior Court under Washington’s statute and asked for two weekends of visitation each month and two weeks in the summer. Granville did not oppose visitation entirely, but wanted to allow only one day of visitation each month without any time overnight. In 1995, the Superior Court awarded the Troxels one weekend per month, one week during the summer, and four hours on each grandparent’s birthday.
Granville appealed during which time she married and her new husband adopted the daughters. Eventually, the case was heard by the Washington Supreme Court which found that the statute under which the Troxels gained visitation unconstitutionally infringed on the fundamental right of parents to rear their children. The U.S. Supreme Court granted certiorari in 1999 and affirmed the Washington judgment. The majority (there were three strong dissents) found that the Fourteenth Amendment provides that no state “shall deprive a person of life, liberty, or property” and that “The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by the Court.”
Of course, it could also be argued that this decision has the effect of substituting a court’s understanding of family relationships with the understanding of elected bodies, thereby allowing a mother, for whatever motives, to sever all relations to one-half the bloodline of the children. As Justice Scalia said in his dissent: “I think it obvious—whether we affirm or reverse the judgment here, or remand as Justice Stevens or Justice Kennedy would do—that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.”
If you look at the many amicus briefs filed in Troxel, you can see how the wagons have been circled for future disputes over this issue. Filing briefs on behalf of the mother were: Northwest Women's Law Center et al; Coalition for the Restoration of Parental Rights; American Academy of Matrimonial Lawyers; Lambda Legal Defense and Education Fund et al; and nine others. Filing briefs on behalf of the grandparents were: American Association of Retired Persons; Grandparent Caregiver Law Center: National Conference of State Legislatures et al; and two others.
Louisiana Statutory Law
Louisiana has three statutes that control the issue of grandparent visitation. These statutes may or may not run afoul of Troxel, depending on how you wish to argue and, perhaps, whether you are in the Third Circuit or the First Circuit.
Children’s Code Article 1264 is aimed exactly at the situation in Troxel where a parent is deceased and the children are adopted by a new parent:
Art. 1264 Post-adoption visitation rights of grandparents
Notwithstanding any provision of law to the contrary, the natural parents of a deceased party to a marriage dissolved by death whose child is thereafter adopted, and the parent of a party who has forfeited the right to object to the adoption of his child pursuant to Article 1245 may have limited visitation rights to the minor child so adopted.
Title 9 of the Civil Code Ancillaries allows grandparent visitation where the visitation would be in the best interest of the children:
LSA R.S. 9:344 Visitation rights of grandparents and siblings.
A. If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage, the parents of the deceased, interdicted, or incarcerated party without custody of such minor child or children may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
B. When the parents of a minor child or children live in concubinage and one of the parents dies, or is incarcerated, the parents of the deceased or incarcerated party may have reasonable visitation rights to the child or children during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
C. If one of the parties to a marriage dies or is incarcerated, the siblings of a minor child or children of the marriage may have reasonable visitation rights to such child or children during their minority if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
D. If the parents of a minor child or children of the marriage are legally separated or living apart for a period of six months, the grandparents or siblings of the child or children may have reasonable visitation rights to the child or children during their minority, if the court in its discretion find that such visitation rights would be in the best interest of the child or children.
Finally, Civil Code Article 136 gives visitation rights, under extraordinary circumstances, to a relative by blood or affinity (which, of course, includes grandparents). Where Article 136 conflicts with R.S. 9:344, the provisions of R.S. 9:344 shall supersede Article 136. Before granting visitation under Article 136, the court must consider such things as 1) the length of time and quality of the relationship; 2) whether the child needs guidance which can be best provided by the relative; 3) the preference of the child, if the child is mature enough to express a preference; 4) the willingness of the relative to promote a close relationship with the parent; and, 5) the mental and physical health of the child and the relative.
These three statutes set the scene for the conflict that some courts believe exists with the decision of the U.S. Supreme Court in Troxel.
Louisiana Grandparent Visitation Cases
The Third Circuit narrowly avoided having to rule on the constitutionality of Louisiana’s visitation statutes in State In Re: Satchfield v. Guillot (La.App. 3 Cir. 06/26/02) 820 So.2d 1255. After acknowledging that the case would have to be examined in light of the Troxel decision, the Court concluded that 9:344 did not apply since the parents were together and that the requirement of Civil Code Article 136(B) that there be extraordinary circumstances, upon which the trial court relied, was “a substitution of its judgment for the judgment of Sebastian’s parents without a showing that the parents’ decision is detrimental to the child.” Finding that there were not sufficient extraordinary circumstances, the Court concluded that it did not have to rule on the constitutionality of Article 136(B).
In Dupre v. Dupre (La.App. 3 Cir. 12/30/02) 2002-0902, the Third Circuit had to face the constitutionality of R.S. 9:344 squarely since the father was sentenced to life in prison and the provisions of R.S. 9:344 were certainly applicable to the issue of grandparent visitation. The trial court awarded one weekend per month visitation to the grandparents and the mother appealed. In its decision, the Third Circuit analyzed Troxel and concluded that 9:344, which only allows visitation to the parents of a deceased, interdicted or incarcerated parent, provided it be found to be in the best interest of the child, is easily distinguishable from the ‘breathtakingly broad” statute found unconstitutional in Troxel.
Our own First Circuit has had more trouble deciding where Louisiana’s grandparent visitation statutes stand in relation to the Washington statute found unconstitutional by the U.S. Supreme Court. In Galjour v. Harris (La.App. 1 Cir. 03/28/01) 795 So.2d 350, the First Circuit had no problem distinguishing the Louisiana statutes allowing grandparent visitation from the Washington statute. In Galjour, the mother was deceased and the grandparents petitioned for visitation claiming they had a statutory right under R.S. 9:344 to seek visitation. The father filed an exception claiming the statute was unconstitutional under the Troxel ruling. At trial the grandparents were given visitation on every third weekend subject to some restrictions. The father appealed, claiming the statute was unconstitutional and claiming that the trial court erred in not giving him any special weight in determining what was in his child’s best interest. The court decided that R.S. 9:344 was sufficiently different and limited in its scope from Troxel and “Additionally, the statute’s grant of visitation does not contemplate a significant intrusion upon the child’s relationship with the other parent or interference with said parent’s fundamental right to make childrearing decisions.”
The following year, the First Circuit seems to reverse itself in Wood v. Wood (La.App. 1 Cir. 09/27/02) No. 2002 CU 2819. In this case, the father was incarcerated and the mother and grandparents entered into a stipulated judgment giving the grandparents visitation on the first weekend of each month, one Sunday every other month, and one night on all major holidays. By agreement, the grandparents also paid child support. Because of apparent problems with visitation arrangements, the grandparents asked for and received additional visitation of one week in the summers. The mother appealed the award of the additional one week visitation and the First Circuit reversed the trial court’s award of additional visitation.
The first thing the First Circuit had to do in Wood was justify how it arrived at a different conclusion the year before in Galjour. The court cited the fact that the Legislature, after the Galjour decision, passed a resolution requesting that the Louisiana Law Institute study the effect of Troxel on the Louisiana statutes on child visitation and “report its findings and recommendations to the legislature on or before January 1, 2003.” The First Circuit noted that the request by the Legislature was an expression of concern “for protecting the fundamental rights of parents” rather than the broader and more obvious conclusion that the resolution was a request for guidance as to where Louisiana stood and what (if anything) should be done legislatively.
The Court next addressed the constitutionality of R.S. 9:344, even though the issue was not brought up at the trial level. Finally, the Court determined that the trial judge had put an unfair burden on the parent to show that the additional visitation would be detrimental to the child. In his dissent, Judge Bob Downing pointed out that no such burden had been placed on the parent to show the additional visitation was detrimental. The record showed that the trial court addressed the issue properly: the child’s best interest. There was evidence presented that the child enjoyed her visits, that she visited cousins while at her grandparents’ house, and that she is happy there. Judge Downing then discussed the finding in Galjour that R.S. 9:344 does not represent a significant intrusion on the parent’s rights and observed: “I do not see how an additional one-week of visitation during the summer would be a significant intrusion on the child’s relationship with her mother or an interference with her right to make child-rearing decisions.”
Wood v. Wood has been appealed and the Louisiana Law Institute had scheduled hearings for January 31, 2003, on the issue of Troxel in relation to the Louisiana visitation statutes. As of the writing of this article, no decision has been rendered on Wood and no recommendations have been made by the Law Institute. As for the grandparents in Troxel, the newly discovered constitutional right in that case effectively took away the grandchildren they helped raise and severed all living links to their dead son. Louisiana’s existing statutes, reasonably interpreted, would avoid that particular injustice.
http://www.la-legal.com/modules/article/view.article.php?c4/40
Tuesday, June 5, 2007
FCC Acts to Prohibit Franchising Authorities from Unreasonably Denying Competitive Cable Franchises
The Commission has released a Report and Order and Further Notice of Proposed Rulemaking ("FNPRM") regarding its authority to regulate with respect to the Communications Act’s prohibition against local franchising authorities ("LFAs") unreasonably refusing to award competitive franchises for the provision of cable services. Following is a summary of the Commission's decision.
The Commission found that the current operation of the local franchising process in many jurisdictions constitutes an unreasonable barrier to entry that impedes the achievement of the interrelated federal goals of enhanced cable competition and accelerated broadband deployment. In this regard, it explicitly stated its "concern ... that traditional phone companies seeking to enter the video market face unreasonable regulatory obstacles, to the detriment of competition generally and cable subscribers in particular."
The Commission first determined that it is authorized to act. Although a fundamental premise of its decision, this is an issue that almost certainly will be subjected to judicial scrutiny. Indeed, two of the five Commissioners dissented. Commissioner Adelstein characterized the FNPRM as "legislation disguised as regulation" and "an arrogant case of federal power riding roughshod over local governments." He noted that states and municipalities already have introduced franchise reform where needed, that a national remedy is unnecessary, and that many of the specific determinations are unwarranted by the anecdotal evidence presented.
The Commission adopted rules determining that all of the following would constitute an unreasonable refusal to award a competitive franchise:
* an LFA's failure to issue a decision on a competitive application within explicit timeframes – 90 days for entities with existing authority to access rights-of-way and six months for those without such authority;
* an LFA's refusal to grant a competitive franchise because of an applicant’s unwillingness to agree to unreasonable build-out mandates;
* an LFA demanding certain specified costs, fees and other compensation unless such costs are counted toward the statutory 5 percent cap on franchise fees;
* an LFA's denial of an application based upon a new entrant's refusal to undertake certain obligations relating to public, educational and government ("PEG") and institutional networks ("I-Nets") channels; and
* an LFA's refusal to grant a franchise based on issues related to non-cable services or facilities.
Failure to act within the prescribed time limits will result in the grant of an interim franchise based on the terms proposed in the application. The interim grant will remain in effect until final action is taken on the application.
The FNPRM seeks comment on how its findings should affect existing franchisees.
The Commission also preempted local laws, regulations and requirements, including level-playing-field provisions, to the extent they permit LFAs to impose greater restrictions on market entry than the rules adopted in this item.
The Commission found that certain build-out conditions can have an entry-deterring effect. It identified several instances where a build-out requirement would be unreasonable.
* Absent other factors, to require a new competitive entrant to serve everyone in a franchise area before it has begun providing service to anyone.
* To require facilities-based entrants, such as incumbent LECs, to build out beyond the footprint of their existing facilities before they have even begun providing cable service.
* Absent other factors, to require more of a new entrant than an incumbent cable operator by, for instance, requiring the new entrant to build out its facilities in a shorter period of time than that originally afforded to the incumbent cable operator, or requiring the new entrant to build out and provide service to areas of lower density than those to which the incumbent cable operator is required to build out and serve.
The Commission also identified reasonable build-out requirements that an LFA could consider:
* the new entrant's market penetration.
* benchmarks requiring the new entrant to increase its build-out after a reasonable period of time had passed after initiating service and taking into account its market success.
The Commission clarified that cable operators cannot be required to pay franchise fees on revenues from non-cable services. It also held that non-incidental franchise-related costs required by LFAs, such as attorney’s and consultant’s fees, must count toward the 5 percent franchise fee cap. It found that the term "incidental" should be limited to those costs itemized in the Act as well as certain other minor expenses. It also held that requests made by LFAs that are unrelated to the provision of cable services by a new competitive entrant are subject to the statutory 5 percent franchise fee cap.
The Commission further clarified that the Act grants LFAs jurisdiction only with respect to the provision of cable services over cable systems and that it would be unreasonable for an LFA to deny a franchise based on issues unrelated to such services. The Commission makes it clear that LFAs may not use their video franchising authority to regulate a local exchange carrier's network beyond the provision of cable services.
http://www.wcsr.com/default.asp?id=114&objId=226
The Commission found that the current operation of the local franchising process in many jurisdictions constitutes an unreasonable barrier to entry that impedes the achievement of the interrelated federal goals of enhanced cable competition and accelerated broadband deployment. In this regard, it explicitly stated its "concern ... that traditional phone companies seeking to enter the video market face unreasonable regulatory obstacles, to the detriment of competition generally and cable subscribers in particular."
The Commission first determined that it is authorized to act. Although a fundamental premise of its decision, this is an issue that almost certainly will be subjected to judicial scrutiny. Indeed, two of the five Commissioners dissented. Commissioner Adelstein characterized the FNPRM as "legislation disguised as regulation" and "an arrogant case of federal power riding roughshod over local governments." He noted that states and municipalities already have introduced franchise reform where needed, that a national remedy is unnecessary, and that many of the specific determinations are unwarranted by the anecdotal evidence presented.
The Commission adopted rules determining that all of the following would constitute an unreasonable refusal to award a competitive franchise:
* an LFA's failure to issue a decision on a competitive application within explicit timeframes – 90 days for entities with existing authority to access rights-of-way and six months for those without such authority;
* an LFA's refusal to grant a competitive franchise because of an applicant’s unwillingness to agree to unreasonable build-out mandates;
* an LFA demanding certain specified costs, fees and other compensation unless such costs are counted toward the statutory 5 percent cap on franchise fees;
* an LFA's denial of an application based upon a new entrant's refusal to undertake certain obligations relating to public, educational and government ("PEG") and institutional networks ("I-Nets") channels; and
* an LFA's refusal to grant a franchise based on issues related to non-cable services or facilities.
Failure to act within the prescribed time limits will result in the grant of an interim franchise based on the terms proposed in the application. The interim grant will remain in effect until final action is taken on the application.
The FNPRM seeks comment on how its findings should affect existing franchisees.
The Commission also preempted local laws, regulations and requirements, including level-playing-field provisions, to the extent they permit LFAs to impose greater restrictions on market entry than the rules adopted in this item.
The Commission found that certain build-out conditions can have an entry-deterring effect. It identified several instances where a build-out requirement would be unreasonable.
* Absent other factors, to require a new competitive entrant to serve everyone in a franchise area before it has begun providing service to anyone.
* To require facilities-based entrants, such as incumbent LECs, to build out beyond the footprint of their existing facilities before they have even begun providing cable service.
* Absent other factors, to require more of a new entrant than an incumbent cable operator by, for instance, requiring the new entrant to build out its facilities in a shorter period of time than that originally afforded to the incumbent cable operator, or requiring the new entrant to build out and provide service to areas of lower density than those to which the incumbent cable operator is required to build out and serve.
The Commission also identified reasonable build-out requirements that an LFA could consider:
* the new entrant's market penetration.
* benchmarks requiring the new entrant to increase its build-out after a reasonable period of time had passed after initiating service and taking into account its market success.
The Commission clarified that cable operators cannot be required to pay franchise fees on revenues from non-cable services. It also held that non-incidental franchise-related costs required by LFAs, such as attorney’s and consultant’s fees, must count toward the 5 percent franchise fee cap. It found that the term "incidental" should be limited to those costs itemized in the Act as well as certain other minor expenses. It also held that requests made by LFAs that are unrelated to the provision of cable services by a new competitive entrant are subject to the statutory 5 percent franchise fee cap.
The Commission further clarified that the Act grants LFAs jurisdiction only with respect to the provision of cable services over cable systems and that it would be unreasonable for an LFA to deny a franchise based on issues unrelated to such services. The Commission makes it clear that LFAs may not use their video franchising authority to regulate a local exchange carrier's network beyond the provision of cable services.
http://www.wcsr.com/default.asp?id=114&objId=226
Recording Industry Legal Action Against College Students
On February 28, 2007, the Recording Industry Association of America ("RIAA") announced that it would escalate its efforts to deter illegal music sharing by sending "pre-litigation" letters to approximately 400 college students at 13 colleges and universities with the highest incidents of illegal music file sharing according to the RIAA. These 400 letters represent the first step in an increased effort by the RIAA to take legal action against college students. In announcing its new approach, the RIAA is enlisting the aid of university administrators to deliver the "pre-litigation" letters to the students whose IP addresses match the RIAA’s records of illegal file sharers. The pre-litigation letters offer the allegedly offending students terms of settlement at a "discounted settlement rate" to avoid litigation. The students must accept the settlement terms within 20 days from the date of the letter to accept the offer and avoid litigation.
In light of the escalated approach by the RIAA, we recommend that colleges and universities take the following actions:
* Review and update their peer-to-peer (P2P) network policies to include information about the RIAA’s new approach
* Distribute the updated P2P policies to faculty and students
* Consult with legal counsel regarding communications to students identified in the RIAA "pre-litigation" letters
* Consult with legal counsel to determine which of the other actions suggested by the RIAA are appropriate for institutions to take
Under the Digital Millennium Copyright Act, network operators, including colleges and universities that provide networks for faculty and student use, are protected from liability for the infringing activities of third parties who post or transfer infringing materials on or through the network, as long as the network operators follow the procedures set forth in the Act for removing the infringing material upon notice that it is infringing. However, institutions that know of and promote, or profit from, infringing conduct on their networks may be found liable for contributory or vicarious infringement. For this reason, colleges and universities must work closely with legal counsel in responding to the recent RIAA announcement and in preparing and implementing their policies relating to infringement on their networks.
Jennifer Collins is a member of the Firm’s Intellectual Property Practice Group. Her practice includes counseling clients with respect to copyrights and other intellectual property. She chairs a team of transactional lawyers who assist clients in negotiating agreements involving intellectual property.
http://www.wcsr.com/default.asp?id=114&objId=229
In light of the escalated approach by the RIAA, we recommend that colleges and universities take the following actions:
* Review and update their peer-to-peer (P2P) network policies to include information about the RIAA’s new approach
* Distribute the updated P2P policies to faculty and students
* Consult with legal counsel regarding communications to students identified in the RIAA "pre-litigation" letters
* Consult with legal counsel to determine which of the other actions suggested by the RIAA are appropriate for institutions to take
Under the Digital Millennium Copyright Act, network operators, including colleges and universities that provide networks for faculty and student use, are protected from liability for the infringing activities of third parties who post or transfer infringing materials on or through the network, as long as the network operators follow the procedures set forth in the Act for removing the infringing material upon notice that it is infringing. However, institutions that know of and promote, or profit from, infringing conduct on their networks may be found liable for contributory or vicarious infringement. For this reason, colleges and universities must work closely with legal counsel in responding to the recent RIAA announcement and in preparing and implementing their policies relating to infringement on their networks.
Jennifer Collins is a member of the Firm’s Intellectual Property Practice Group. Her practice includes counseling clients with respect to copyrights and other intellectual property. She chairs a team of transactional lawyers who assist clients in negotiating agreements involving intellectual property.
http://www.wcsr.com/default.asp?id=114&objId=229
The Upswing Is In Lawsuits
As the housing market slows, buyers & sellers are increasingly at odds.
It's no secret that the housing market has slowed in recent months. According to the National Association of Realtors, new home sales in 2006 were estimated at 1.06 million, the fourth highest annual total on record. In contrast, experts predict that new home sales will decline to 961,000 in 2007 and then rise only slightly to 971,000 in 2008.
This downturn in the housing cycle is not just making things difficult for sellers. It’s also creating an environment of increased adversity between buyers and sellers of residential development projects and spawning a flurry of litigation.
In recent years, when the housing market was on a consistent upswing, residential home developers were clamoring to snatch up property to add to their inventory. When residential developers entered into contracts to purchase land for development, they were willing to conduct the required due diligence in as few as 30 to 90 days. And even if issues turned up that could increase the development costs, purchasers then had more flexibility in their anticipated profit margins to overlook the problems.
They were willing to take these risks on the assumption that the accelerating sale prices of the homes to be built on the property would be more than enough to absorb any unexpected increases in development costs. Residential developers were also willing to expedite their land acquisitions by waiving conditions to closing so as not to delay the time line for construction of the new homes that were then so highly in demand. Trying to hold on to their real-estate contracts, purchasers were quick to file suit to force the sale if they heard of any attempts by a seller to break a deal and sell instead to a competing bidder.
NOT SO FAST
However, since the housing market entered its cyclical downturn, the buyers of residential development projects are no longer analyzing deals under fast and furious trajectories of increased new home prices. Profit margins have tightened, and developers’ flexibility to take on the risk of increased development costs has correspondingly declined.
In this environment, residential developers can no longer assume that issues affecting their development costs will not financially strain a project. They now expect sellers, who are typically sophisticated parties in these types of transactions, to share more in the financial risks. Many residential home developers have also found themselves holding excess inventory—and their interests have shifted from acquiring property to depleting the supply that they hold. Sellers, on the other hand, no longer have a line of back-up bidders knocking at their doors and have lost much of the leverage they previously held over their buyers.
In short, as the housing market has slowed, tensions between purchasers and sellers with diverging interests have mounted, and a new wave of litigation is spinning off from residential land development deals gone sour. So what is all the fighting about?
The crucial fact is that the typical land acquisition deal for the construction of new homes involves a due-diligence period during which the purchaser studies the feasibility of the project. At the conclusion of the due-diligence period, the buyer typically decides if it wants to go forward with the contract or to exercise an option to walk away from the deal. Once the purchaser (the developer) commits to the project, the seller is usually obligated to complete the process of subdividing the land into buildable lots, with all required governmental approvals, before the purchaser has an obligation to close. These two periods—due diligence and the subdivision development process—are breeding grounds for disputes.
In today’s market, disagreements between buyers and sellers are arising as early as the due-diligence period. Developers are now taking more time with their due diligence than they did when new home sales were burgeoning and are more closely scrutinizing the economics of a project before committing to it.
The discovery of issues that can affect the costs, complexity,and time line for the intended development is causing developers with narrower profit margins to proceed with caution. For example, if a developer discovers the presence of a hazardous material that requires remediation on the site, it may seek an extension of the due-diligence period to see whether the hazardous material might lead to increased costs or delay. A developer may try to renegotiate the deal for a reduced purchase price reflecting the increased risk or may demand that the seller share the risk by bearing some or all of the remediation costs. Such demands to rewrite a deal or share costs tend not to sit well with sellers, who are anxious to close their deals as quickly as possible to convert their asset to cash.
Other tensions related to due diligence arise out of the sellers’ obligations to disclose information known to them about the property. While buyers expect sellers to fully disclose information about conditions on the property that might affect its development, sellers also have a disincentive to come forward with information that may have an adverse impact on the buyers’ willingness to purchase the property. In fact, sellers may delay making their disclosures until late in the study period to diminish the amount of time the buyer has to consider the information. But that can lead to further problems: Once the buyer is committed to the contract but may still want to get out of the deal, the buyer may look to the seller’s nondisclosure of any important information as a means for declaring the seller in default.
THE GREAT DIVIDE
The subdivision process is the next phase in the development process place where disputes are on the rise. The contracts typically require the seller to apply for and obtain approval of the planned development from the required governmental authorities. This process often means the seller must submit plans for the new residential development to the locality’s land-use or planning commission. It may also mean that the seller must apply to rezone the property to maximize the allowable density of lots, thereby increasing the number of lots the seller can sell and the number of new homes the purchaser can build.
The sellers are also typically responsible for coordinating the provision of water, sewer, utilities, and roadway access to the site, responding to the locality’s comments and conditions to approval for the project, working with transportation departments on roadway approvals, and working with environmental, wetlands, engineering, or archaeological consultants to analyze and address factors that can affect the development of the land.
These activities can give rise to countless obstacles. It’s these obstacles that are giving rise to disputes. For example, the presence of wetlands or environmentally protected areas may limit exactly where residential lots will be permitted on the property. And with a reduced area of usable land, the number of buildable lots the property will yield might be cut to an amount less than the minimum number of lots required by the contract. In circumstances like this, if buyers cannot negotiate a sharing of the risk or resolution of the issue, they often seek to get out of the deal. Sellers, on the other hand, may attempt to avoid this obstacle and simply allow time to pass in hopes that the purchaser will become more willing to rework the project once the market bounces back. As the economics of a project start to fail, the developers are not hesitating to immediately hold sellers in default and terminate deals. Sellers resist, and litigation is under way.
ONE MORE STEP
The final place where disputes are arising is the closing phase of the deals. In the closing phase, a series of conditions usually must be satisfied before the buyer is obligated to tender the purchase price on the property. For example, contracts tend to require the seller to be able to deliver a clear and marketable title free of any liens at closing. But if the seller has run short on cash and failed to pay the contractors it hired to construct the roadways and if the contractors have filed for a lien against the property, a buyer is now more likely to delay closing and demand that the seller resolve the issue on its own, rather than waive the condition or assist the seller in satisfying the obligation. Buyers who used to be willing to tie up these kinds of loose ends are now, instead, holding the sellers strictly to their obligations.
Residential developers’ increased scrutiny of the conditions to closing and decreased flexibility to take on extra economic risk are also leading to disagreements over the quality of a seller’s satisfaction of conditions. For example, the buyer who learns that a seller failed to disclose certain information about the property that will increase development costs is now more willing to declare the seller in default and refuse to close on the deal. Then, what often happens is that the seller contests knowledge of the condition, argues that the purchaser knew of the condition all along, and demands that the purchaser close. When buyers terminate or refuse to close, which they are increasingly willing to do, litigation over the deposit, at a minimum, is almost certain to follow.
We expect disputes and litigation between purchasers and sellers of land for new home development to continue until the housing market for new homes picks up again. In the meantime, residential real estate developers will probably spend a little more time with their litigation counsel than they did in past years.
http://www.wcsr.com/default.asp?id=114&objId=230
It's no secret that the housing market has slowed in recent months. According to the National Association of Realtors, new home sales in 2006 were estimated at 1.06 million, the fourth highest annual total on record. In contrast, experts predict that new home sales will decline to 961,000 in 2007 and then rise only slightly to 971,000 in 2008.
This downturn in the housing cycle is not just making things difficult for sellers. It’s also creating an environment of increased adversity between buyers and sellers of residential development projects and spawning a flurry of litigation.
In recent years, when the housing market was on a consistent upswing, residential home developers were clamoring to snatch up property to add to their inventory. When residential developers entered into contracts to purchase land for development, they were willing to conduct the required due diligence in as few as 30 to 90 days. And even if issues turned up that could increase the development costs, purchasers then had more flexibility in their anticipated profit margins to overlook the problems.
They were willing to take these risks on the assumption that the accelerating sale prices of the homes to be built on the property would be more than enough to absorb any unexpected increases in development costs. Residential developers were also willing to expedite their land acquisitions by waiving conditions to closing so as not to delay the time line for construction of the new homes that were then so highly in demand. Trying to hold on to their real-estate contracts, purchasers were quick to file suit to force the sale if they heard of any attempts by a seller to break a deal and sell instead to a competing bidder.
NOT SO FAST
However, since the housing market entered its cyclical downturn, the buyers of residential development projects are no longer analyzing deals under fast and furious trajectories of increased new home prices. Profit margins have tightened, and developers’ flexibility to take on the risk of increased development costs has correspondingly declined.
In this environment, residential developers can no longer assume that issues affecting their development costs will not financially strain a project. They now expect sellers, who are typically sophisticated parties in these types of transactions, to share more in the financial risks. Many residential home developers have also found themselves holding excess inventory—and their interests have shifted from acquiring property to depleting the supply that they hold. Sellers, on the other hand, no longer have a line of back-up bidders knocking at their doors and have lost much of the leverage they previously held over their buyers.
In short, as the housing market has slowed, tensions between purchasers and sellers with diverging interests have mounted, and a new wave of litigation is spinning off from residential land development deals gone sour. So what is all the fighting about?
The crucial fact is that the typical land acquisition deal for the construction of new homes involves a due-diligence period during which the purchaser studies the feasibility of the project. At the conclusion of the due-diligence period, the buyer typically decides if it wants to go forward with the contract or to exercise an option to walk away from the deal. Once the purchaser (the developer) commits to the project, the seller is usually obligated to complete the process of subdividing the land into buildable lots, with all required governmental approvals, before the purchaser has an obligation to close. These two periods—due diligence and the subdivision development process—are breeding grounds for disputes.
In today’s market, disagreements between buyers and sellers are arising as early as the due-diligence period. Developers are now taking more time with their due diligence than they did when new home sales were burgeoning and are more closely scrutinizing the economics of a project before committing to it.
The discovery of issues that can affect the costs, complexity,and time line for the intended development is causing developers with narrower profit margins to proceed with caution. For example, if a developer discovers the presence of a hazardous material that requires remediation on the site, it may seek an extension of the due-diligence period to see whether the hazardous material might lead to increased costs or delay. A developer may try to renegotiate the deal for a reduced purchase price reflecting the increased risk or may demand that the seller share the risk by bearing some or all of the remediation costs. Such demands to rewrite a deal or share costs tend not to sit well with sellers, who are anxious to close their deals as quickly as possible to convert their asset to cash.
Other tensions related to due diligence arise out of the sellers’ obligations to disclose information known to them about the property. While buyers expect sellers to fully disclose information about conditions on the property that might affect its development, sellers also have a disincentive to come forward with information that may have an adverse impact on the buyers’ willingness to purchase the property. In fact, sellers may delay making their disclosures until late in the study period to diminish the amount of time the buyer has to consider the information. But that can lead to further problems: Once the buyer is committed to the contract but may still want to get out of the deal, the buyer may look to the seller’s nondisclosure of any important information as a means for declaring the seller in default.
THE GREAT DIVIDE
The subdivision process is the next phase in the development process place where disputes are on the rise. The contracts typically require the seller to apply for and obtain approval of the planned development from the required governmental authorities. This process often means the seller must submit plans for the new residential development to the locality’s land-use or planning commission. It may also mean that the seller must apply to rezone the property to maximize the allowable density of lots, thereby increasing the number of lots the seller can sell and the number of new homes the purchaser can build.
The sellers are also typically responsible for coordinating the provision of water, sewer, utilities, and roadway access to the site, responding to the locality’s comments and conditions to approval for the project, working with transportation departments on roadway approvals, and working with environmental, wetlands, engineering, or archaeological consultants to analyze and address factors that can affect the development of the land.
These activities can give rise to countless obstacles. It’s these obstacles that are giving rise to disputes. For example, the presence of wetlands or environmentally protected areas may limit exactly where residential lots will be permitted on the property. And with a reduced area of usable land, the number of buildable lots the property will yield might be cut to an amount less than the minimum number of lots required by the contract. In circumstances like this, if buyers cannot negotiate a sharing of the risk or resolution of the issue, they often seek to get out of the deal. Sellers, on the other hand, may attempt to avoid this obstacle and simply allow time to pass in hopes that the purchaser will become more willing to rework the project once the market bounces back. As the economics of a project start to fail, the developers are not hesitating to immediately hold sellers in default and terminate deals. Sellers resist, and litigation is under way.
ONE MORE STEP
The final place where disputes are arising is the closing phase of the deals. In the closing phase, a series of conditions usually must be satisfied before the buyer is obligated to tender the purchase price on the property. For example, contracts tend to require the seller to be able to deliver a clear and marketable title free of any liens at closing. But if the seller has run short on cash and failed to pay the contractors it hired to construct the roadways and if the contractors have filed for a lien against the property, a buyer is now more likely to delay closing and demand that the seller resolve the issue on its own, rather than waive the condition or assist the seller in satisfying the obligation. Buyers who used to be willing to tie up these kinds of loose ends are now, instead, holding the sellers strictly to their obligations.
Residential developers’ increased scrutiny of the conditions to closing and decreased flexibility to take on extra economic risk are also leading to disagreements over the quality of a seller’s satisfaction of conditions. For example, the buyer who learns that a seller failed to disclose certain information about the property that will increase development costs is now more willing to declare the seller in default and refuse to close on the deal. Then, what often happens is that the seller contests knowledge of the condition, argues that the purchaser knew of the condition all along, and demands that the purchaser close. When buyers terminate or refuse to close, which they are increasingly willing to do, litigation over the deposit, at a minimum, is almost certain to follow.
We expect disputes and litigation between purchasers and sellers of land for new home development to continue until the housing market for new homes picks up again. In the meantime, residential real estate developers will probably spend a little more time with their litigation counsel than they did in past years.
http://www.wcsr.com/default.asp?id=114&objId=230
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