Does a civil servant’s “religious freedom” trump the duty to follow the law?

Controversial Kentucky Clerk Kim Davis has made headlines after she was incarcerated (and later released) for refusing to follow a court order requiring her to issue marriage licenses to gay and lesbian couples.   Ultra-conservative presidential candidates Mike Huckabee and Ted Cruz have lined up in support of Davis, arguing that her right to religious freedom (i.e., her Christian belief that marriage should be between a man and a woman only) trumps any requirement under Kentucky and Federal law that she issue licenses to those entitled to one under the law.   This New York Times op-ed piece highlights several opinions against Davis’ position as well as those in support of the purported “religious freedom” Davis argues she is entitled to.    ...

The Complications of International Custody Disputes

The media has recently focused on an international custody dispute involving actress Kelly Rutherford and her former husband Daniel Giersch after Rutherford was ordered by a New York judge to return her two children to Monaco, where Giersch resides. Giersch and Rutherford filed for divorce in 2008, and have been involved in a custody dispute ever since a 2012  California court ordered the children shall primarily reside with Giersch in Monaco after Giersch’s United States’ Visa expired, and shall visit Rutherford in the summers in New York, with Rutherford having the ability to exercise timesharing with the children in Monaco. Per that California court order, Rutherford was to return the children to Monaco in early August 2015 and failed to do so, at which time Giersch filed in the New York Court seeking a Writ of Habeas Corpus for the immediate return of the children to Monaco.  On August 11th a New York judge chastised Rutherford for disobeying the court order and ordered the children be immediately returned to Monaco, with Giersch’s mother accompanying the children on the flight from New York. Further complicating matters for Rutherford and Giersch are the multiple jurisdictions involved in the case at the present time. Rutherford previously attempted in July 2015 to have the California court reconsider the 2012 order allowing the children to primarily reside in Monaco, but the California court responded it no longer has jurisdiction over the case to modify its own order since Giersch has instituted custody proceedings in his primary residence of Monaco and because the California court now considers Rutherford a New York resident, despite Rutherford’s argument to...

In Florida, Infidelity in your Marriage Probably Does Not Matter (Legally) as Much as you Think it Does

Undoubtedly one of the first things we are told in consultations with potential clients who are seeking a dissolution of marriage is whether the potential client or their spouse have been unfaithful in the marriage.   While infidelity can often be a fundamental reason why a spouse seeks a divorce, the actual infidelity is rarely a fact that is legally relevant. Certainly from a morality standpoint, the majority of people would agree that faithfulness to a spouse or long-term partner is essential to a trusting, happy, and successful relationship together.   Yet many potential clients are surprised when we inform them that Florida is a “no-fault” divorce state, meaning that a spouse’s infidelity need not be alleged in order for a Florida court to grant a dissolution of marriage. Rather, a Florida court simply requires that a party swear that the marriage is “irretrievably broken” as part of obtaining a dissolution. Often clients want the court to see which spouse was”wrong” and want it known that they were the faithful spouse.   In reality, however, it is often irrelevant to the court.  For example, while recently appearing in Miami-Dade Domestic Violence Court, a party opened their testimony by alleging that an argument began over the other party’s purported unfaithfulness.  The court immediately cut the testimony off and admonished the entire courtroom that testimony regarding infidelity was not at issue and therefore would not be considered by the Court.   While that was a domestic violence-specific hearing, it is indeed rare that fidelity is an issue that is important for the family court’s consideration.  In fact, one of the few exceptions relating to a...

Marriage Equality and the Impact on Transgender Rights

Many by now have heard of the landmark United States Supreme Court ruling last month in Obergefell v. Hodges, making same-sex marriage a Constitutional right on the federal level.  The ruling further protects individuals seeking same-sex marriages and offers protection from any state attempt to interfere with this clear fundamental right. A less publicized, but equally-relevant question is how the ruling applies to transgender individuals.    J. Courtney Sullivan writes in a recent New York Times Op-Ed about a Texas widow named Christie Littleton who, in 1996 after her Husband’s death at age 35 of a misdiagnosed blood clot, filed a medical malpractice suit under a state statute permitting surviving spouses to do so. Defense attorneys fighting against Littleton’s malpractice suit successfully argued in a pretrial motion to dismiss the suit that because Christie Littleton was born a man, she therefore could not be another man’s spouse, citing to the Defense of Marriage Act passed by Congress in 1994.  The Judge in Littleton’s malpractice suit agreed, ruling that Christie Littleton had no standing under the state statute to file a medical malpractice suit on behalf of her deceased husband.  Incredibly, Christie Littleton’s sex reassignment procedure at age 28 had already been acknowledged by the state of Texas, as her birth certificate and driver’s license with the state both reflected that she was a female, and the Littleton’s had obtained a marriage license in the state. J. Courtney Sullivan sees Obergefell v. Hodges as a victory for transgender individuals moving forward, citing Justice Anthony Kennedy’s majority opinion that 14th Amendment equal protection extends to “intimate choices that define personal identity and beliefs.”  Case law in state...

How to Talk About Dying and Why

The New York Times has recently run a series of op-ed pieces dealing with end of life  discussions that many of the authors navigate through their personal experiences and what they would have done differently for loved-ones in terms of planning for death and health decisions prior to death. In a particularly moving piece, Ellen Goodman writes that her and her mother shared conversations about everything in life, but as her mother’s health slowly deteriorated, they never had a conversation about how her mother wished to live in her final years and what decisions she would make for herself.  This led to Goodman having to make crucial medical decisions on her mother’s behalf that caused uncertainty for Goodman as to how her mother would have decided which created a feeling that Goodman may not have been respecting her mother’s true wishes. Goodman cites to a variety of reasons why people do not have these discussions, including that many feel it is “too soon” to have the conversation or feel uncomfortable talking about the issue with loved ones.  Goodman  points out  that one of the best ways to honor and preserve the memory and dignity of a person is to attempt to follow their wishes as much as possible when they can no longer make decisions for themselves. The best way to ensure that your loved one’s wishes are followed in terms of medical care, funeral arrangements and disposition of property upon death is to meet with a professional with experience in estate planning.    If you have more questions about these matters, you should not hesitate to schedule a consultation with our...