A two-step process is involved in determining whether a punitive damage award in Arkansas is excessive:  1) does the award violate state law; and 2) the award is evaluated under the due process analysis contained in BMW v. Gore, 517 U.S. 559 (1996) which focuses on the reprehensibility of the defendant’s conduct and other factors.

In a case decided by the Arkansas Court of Appeals on January 21, 2007, the court found that the “approximate 7-to-1 ratio” of compensatory damages to punitive damages ($35,000 to $250,000 respectively) “was well within the single digit range” and was therefore upheld.  Also, the court found there was sufficient evidence to show malice based on the numerous and varied reprehensible acts by the defendant (ie. public accusations of adultery and calling appellee a whore; blocking appellee’s path from a dumpster with her vehicle; driving by appellee’s place of business slowly; other acts).

Link to case - http://courts.state.ar.us/unpublished/2007a/20070124/ca06-240.pdf

(Feel free to print out and give to your child) 

CHILDREN’S BILL OF RIGHTS

WHEN PARENTS ARE NOT TOGETHER

Every kid has rights, particularly when mom and dad are splitting up. Below are some things parents shouldn’t forget — and kids shouldn’t let them — when the family is in the midst of a break-up.

You have the right to love both your parents. You also have the right to be loved by both of them. That means you shouldn’t feel guilty about wanting to see your dad or your mom at any time. It’s important for you to have both parents in your life, particularly during difficult times such as a break-up of your parents.

You do not have to choose one parent over the other. If you have an opinion about which parent you want to live with, let it be known. But nobody can force you to make that choice. If your parents can’t work it out, a judge may make the decision for them.

You’re entitled to all the feelings you’re having. Don’t be embarrassed by what you’re feeling. It is scary when your parents break up, and you’re allowed to be scared. Or angry. Or sad. Or whatever.

You have the right to be in a safe environment. This means that nobody is allowed to put you in danger, either physically or emotionally. If one of your parents is hurting you, tell someone — either your other parent or a trusted adult like a teacher.

You don’t belong in the middle of your parents’ break-up. Sometimes your parents may get so caught up in their own problems that they forget that you’re just a kid, and that you can’t handle their adult worries. If they start putting you in the middle of their dispute, remind them that it’s their fight, not yours.

Grandparents, aunts, uncles and cousins are still part of your life. Even if you’re living with one parent, you can still see relatives on your other parent’s side. You’ll always be a part of their lives, even if your parents aren’t together anymore.

You have the right to be a child. Kids shouldn’t worry about adult problems. Concentrate on your school work, your friends, activities, etc. Your mom and dad just need your love. They can handle the rest.

IT IS NOT YOUR FAULT AND DON’T BLAME YOURSELF.

Source:  AAML, Special Concerns of Children Committee

For what experts say is probably the first time, more American women are living without a husband than with one.  Here’s a link to the NY Times article.  http://www.nytimes.com/2007/01/16/us/16census.html?_r=2&th&emc=th&oref=slogin&oref=slogin

Many unwed mothers in paternity actions seek lying-in expenses from the putative father.  These expenses are related to the birth of the child.  A.C.A. 9-10-110 states that the court shall enter a judgment for lying-in expenses if they are being claimed by the mother.  However, the case below points out that the trial court may exercise its discretion in how much is to be awarded and that the financial means of the mother may be taken into account.

Freshour v. Abney, CA-06-80 (Ark. Ct. App. Jan. 17, 2007)http://courts.state.ar.us/unpublished/2007a/20070117/ca06-380.pdf

Do you smoke while your child is present in the vehicle with you?  Only 3 states have made it illegal at this time.  Arkansas is one of them.  Here’s the Arkansas law:

§ 20-27-1903. Tobacco use — Prohibitions 

   Effective July 21, 2006, smoking is prohibited in any motor vehicle in which a child who is less than six (6) years of age and who weighs less than sixty pounds (60 lbs.) is restrained in a child passenger safety seat properly secured to the motor vehicle in accordance with The Child Passenger Protection Act, § 27-34-101 et seq.

§ 20-27-1904. Penalty 

   (a) A person who violates this subchapter is guilty of a violation and upon conviction shall be punished by a fine not to exceed twenty-five dollars ($25.00).

(b) If a person is convicted, pleads guilty, pleads nolo contendere, or forfeits bond for violation of this subchapter, no court costs pursuant to § 16-10-305 or other costs or fees shall be assessed.

(c) Any person who proves to the court that he or she has entered into a smoking cessation program may have his or her fine eliminated for a first offense violation of this subchapter.

As you can see, the penalty is not that steep.  But it is still prohibited.  It will be interesting to see how a penalty under this law might affect a custody determination or modification proceeding.

Here’s an article on a new law in Maine along the same lines.   http://news.findlaw.com/ap/o/51/01-09-2007/e20100076bb1f6ae.html

The Arkansas Supreme Court’s recent case of In the Matter of the Adoption of A.M.C., A Minor, Case No. 06-820 (Ark. Sup. Ct., Opinion Delivered January 4, 2007), focused primarily on two issues:  1) the petitioner’s proof needed to show that consent by a biological parent may be dispensed with under A.C.A. 9-9-207; 2) the Indian Child Welfare Act and its impact on an adoption in Arkansas. 

Indian Child Welfare Act

The ICWA (codified at 25 U.S.C.A. 1901 through 1963) was enacted to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” (Sec. 1902 (2006))  Paraphrasing, it provides that an Indian child may not have his/her parents’ rights terminated unless it is shown beyond a reasonable doubt (yes, that’s the standard) that the bio-parent’s continued rights to the child are “likely to result in serious emotional or physical damage to the child.”  You can see why the Indian biological father in this case was so determined to get this powerful provision of the ICWA to apply to this adoption, and thereby give him more ammunition to keep his parental rights.

However, the court determined that the child to be adopted was not an “Indian child” and therefore the ICWA did not apply.  The reason?  The father’s Indian tribe was not an “Indian tribe” for purposes of the ICWA because it was not “recognized as eligible for services provided to Indians by the Secretary…” which is part of the “Indian tribe” definition in 25 U.S.C.A. 1903(8).  So the ICWA did not apply to this adoption.

Practice note: Be sure to check A.C.A. 9-19-104 when dealing with an Indian child adoption.  Jurisdiction and other issues may be affected.

Consent 

Consent of a biological parent is normally preferred in order for an adoption to proceed without incident.  However, consent is not required in certain circumstances.  A.C.A. 9-9-207(a)(2) provides that consent is not required of a parent whose child is in the custody of another if “the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree.”

The court decided that consent of the bio-father in this case was not needed.  The bio-father was incarcerated for a period of time and undisputedly did not pay child support for more than a one year period.  Although it should be pointed out that he did pay child support prior to his incarceration.  It is also undisputed that the bio-mother (who had remarried and her new husband was the petitioner herein) actively tried to keep the child away from the bio-father by changing her phone number and claimed he was harassing her by calling and trying to get visitation with the child.  (The bio-father immediately made attempts to get visitation upon his release from prison and the bio-mother refused.)

Practice note: Clear and convincing evidence must be provided in order to dispense with consent.

Link to case… http://courts.state.ar.us/opinions/2007a/20070104/06-820.pdf

Peter Benchley, the author of the novel Jaws, died in 2006.  Although he was mostly pleased with Steven Spielberg’s motion picture based on his novel, he was not entirely thrilled with the way sharks were portrayed in the movie.  A conservationist at heart, Benchley was always quick to remind people that the ocean was the home of the sharks, and that we as humans were the intruders.  Not the other way around.

Do you ever tread in areas that you should avoid?

In domestic relations cases I often counsel clients that the more opportunities you give your spouse (or ex-spouse) to communicate with you, the more opportunities there will be for arguments to ensue.  Or worse, domestic violence.  If your spouse or ex-spouse always seems to argue with you, even about the smallest of issues, it may be best to avoid communication altogether.  The problem is that many clients continue to stay in contact with the other person, thereby providing opportunities for the spouse or ex-spouse to create chaos with their words and actions.

If you are in this situation, don’t play the game.  Don’t give your spouse or ex-spouse airtime.

Don’t get me wrong.  I always encourage clients to work with their spouse towards a peaceful resolution of their divorce - PROVIDED they are on good terms and are able to talk with each other rationally and civilly.  This is always the best way if its feasible.  However, if bitterness and other negative emotions are prevalent, then communication usually makes the situation worse instead of better.

One of the more common questions that I encounter concerns the ex-spouse that is not complying with the court’s orders (this includes the divorce decree).  This takes many forms - not paying child support or alimony; not turning over property as ordered by the court; failing to bring the children back from visitation on time, or pick them up on time; and numerous other examples.

Orders from the court, including the divorce decree, are binding on the parties even after the final hearing in a case.  Not complying with the court’s orders is known as contempt of court.  Basically, it means that the court has ordered a party to do something, and that party is not doing it.  The court has many options available to make a party comply with its orders, ranging from a slap on the wrist (”don’t do that again”) to throwing the party in jail.  Every judge is different and your domestic relations attorney will be able to tell you the likelihood of punishment for your ex-spouse given the particular judge in your case.

One of the more persuasive punishments is having to pay your ex-spouse’s attorney’s fee.  This seems to get under the skin of most people.  They would rather pay a fine that is double the amount than pay their ex-wife’s (ex-husband’s) attorney’s fees.  In fact, being held in contempt for failing to pay child support brings a mandatory attorney’s fee award for the prevailing party. (A.C.A. 9-13-233)

The bottom line is that if your ex-spouse is not complying with the court’s orders, there are remedies available to help you - but only if you take the initiative.  Be sure to seek competent legal advice.

Excellent article for all divorcing parents.  Those you love will be glad you read this… http://www.aaml.org/i4a/pages/Index.cfm?pageID=3559