Claiming Indian Child Welfare Act Protections: The Sooner, the Better

May 23, 2016

The Indian Child Welfare Act, 25 USC §§ 1901-1963, <http://www.nicwa.org/Indian_Child_Welfare_Act/ICWA.pdf&gt;, is a federal law designed to protect Native American and Alaskan Native families from unnecessary breakup by requiring notice to tribes in divorce, child custody, and child welfare cases involving native children and by imposing procedural protections in such cases. This law was adopted because Congress thought that state child welfare officials were too aggressively interfering with native families. For the protections of the Act to apply, however, either the courts or the state child welfare agencies have to be aware they are dealing with native children. A recent case from Oregon, Dept. of Human Resources v. S.R.H., 278 Or. App. 427 (2016),, <http://www.publications.ojd.state.or.us/docs/A157952.pdf>, offers an example of why early notice and early confirmation of a child’s status as Native American or Alaskan Native is important. Failure to ensure that proper notice is given and confirmed before a court acts may result in an involuntary breakup of the family and placement of children with a non-native caregiver when that could have been avoided. Read the rest of this entry »


Making Premarital Agreements More Likely to Be Enforced

May 16, 2016

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The actress Kaley Cuoco’s divorce became final in California recently. News reports (<http://www.huffingtonpost.com/entry/kaley-cuoco-keeps-72-million-fortune-in-divorce-from-ryan-sweeting_us_5731d049e4b016f37896e314>) indicate that although her Big Bang Theory contract is worth $72 million, and that California requires a 50-50 division of community property, she got to keep almost all of her earnings, both the couple’s houses, and the future contract rights, while her husband got $165,000 and Cuoco covering $200,000 in personal training bills. Why? She and her husband signed a premarital agreement in which he waived his claim to an equal share of community property. Read the rest of this entry »


Why Your Lawyer May Ask You to Appear in Court to Read a Settlement Into the Record

May 9, 2016

It is not uncommon after a lawsuit is settled for a stipulated judgment to be submitted to be signed by a judge. Sometimes, this stipulation is signed by the parties or their lawyers before it is given to the judge. Other times, the lawyers will take the parties before the judge to read the terms of the settlement into the record. The judge will then usually ask the parties to confirm that they agree to the settlement. Two recent cases from Oregon, Aska and Hasson, 278 Or App 48 (2016), <http://www.publications.ojd.state.or.us/docs/A158263.pdf>) and Hoogendam and Hoogendam, 273 Or App 219, 359 P3d 376 (2015), <http://www.publications.ojd.state.or.us/docs/A155813.pdf>), help explain why.

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Arbitration – Use It or Lose It

May 2, 2016

As part of a general policy of easing the courts’ workload, the law strongly favors agreements to arbitrate disputes. Federal law specifically encourages agreements to arbitrate in disputes affecting interstate commerce, and defendants who ask the courts to enforce an agreement usually get their wish granted. A recent case from Washington (Schuster v. Prestige St, Mgt.., L.L.C., No. 33242-0-III, Wash. Ct. App., Apr. 28, 3016), <www.courts.wa.gov/opinions/pdf/332420.pub.pdf>), however, highlights one major exception. Waiting too long to long to ask for arbitration after a case has been started will usually result in the court ruling that the arbitration clause has been waived. Read the rest of this entry »


Do Transgender Restroom Bills Violate Federal Law?

April 25, 2016

In recent weeks, North Carolina has enacted a law to require transgendered persons to use restrooms of their birth gender. Although a suit to hold the law unconstitutional was filed almost immediately, several other states are considering such bills. A recent case from a federal appeals court for the circuit including North Carolina (G.G. v. Gloucester Co. Sch. Bd., No. 15-2056, 4th Cir., Apr. 19, 2016), <http://www.ca4.uscourts.gov/Opinions/Published/152056.P.pdf&gt;), however, strongly suggests that federal regulations probably already require treatment of transgendered persons according to their own gender identification. Under the Constitution’s Supremacy Clause, federal law overrides conflicting state law, so this would knock out most transgendered restroom bills. Read the rest of this entry »


Substantial Restrictions on Recourse for False Allegations of Child Abuse

April 19, 2016

The law in Washington and Oregon immunizes the person who reports child abuse from liability, if the report is made in good faith. On the other hand, Washington does allow, in very narrow circumstances, suits against the police and the Department of Social and Health Services (SHEDS) for negligence in investigating child abuse reports. A recent case (McCarthy v. County of Clark, No. 46347-4-II (Wash. App., Apr. 12, 2016), https://www.courts.wa.gov/opinions/pdf/46347-4.16.pdf) has narrowed the circumstances to an even narrower range than might have been thought. Read the rest of this entry »


When Is an Agreement Not an Agreement?

April 12, 2016

A major part of the law involves determining whether parties have formed an enforceable agreement and how that agreement should be enforced. A recent federal case underscores a core principle of forming agreements: the parties must agree to be bound by the agreement. Read the rest of this entry »


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