Berman & Asbel, LLP

March 2010 Archives

Federal court: school district violated lesbian student's rights by canceling prom

A federal court in Mississippi has issued a significant ruling that a school district violated a lesbian student's rights when it canceled the prom after the student requested to bring her girlfriend to the prom and to wear a tuxedo at the event.  In the case of Constance McMillen v. Itawamba County School District, the court ruled that Constance's rights were violated though the court declined to issue an injunction against the school district. You can read the opinion by clicking here. First the background.  Constance is a senior at the Itawamba Agricultural High School in Fulton, Mississippi.  She has been openly identified as a lesbian since she was in 8th grade.  As is common across America, the high school had a prom scheduled during the spring.  The school district has a policy that includes provisions that students attending the prom may only bring a date who is of the opposite sex and that girls must wear dresses.  Constance went to school officials and asked for permission to bring her girlfriend, who is also a student at the same school, as her date and to wear a tuxedo.  She explained that to be forced to bring a boy as her date and to wear clothing traditionally associated with female gender would be to deny her true identity.  The school district refused Constance's request and told her that she was not allowed to show up with her girlfriend (though they could both come if they came with boys) and that if they slow danced together and anyone complained, they would be thrown out of the prom. Constance then sought the assistance of the American Civil Liberties Union (ACLU) which took up her case.  The ACLU sent a letter to the school district demanding that it accept Constance's request about her date and her clothing.  The school board held a special meeting and decided instead to cancel the prom altogether and to publicly request that private individuals organize a prom for the junior and senior students. Constance, through her  attorneys, filed suit against the school district seeking an injunction ordering the school district to reinstate the prom and to allow her to bring her girlfriend as her date and to allow her to wear the clothing she wished.  The United States District Court for the Northern District of Mississippi Eastern Division denied the request for an injunction but did find that the school district violated Constance's rights.  The court engaged in a four-part analysis of determining whether to issue an injunction: 1. The court found that Constance had a protected First Amendment right which the school district violated.  The court held that the act of bringing a date of the same sex and wearing clothing not traditionally associated with women were acts of communication of viewpoint which were protected by the First Amendment of the United States Constitution.  The court cited other instances of conduct such as the U.S. Supreme Court decision wearing black armbands to protest the Vietnam War back in the 1960s was a form of protected political speech.  The court found that the school district canceled the prom for the express purpose of preventing Constance from exercising her First Amendment rights. 2. The court found that the school district was irreparably harming Constance's rights by canceling the prom. 3. The court found that Constance's First Amendment rights outweighed the school district's stated interest in effective governance of the schools and providing public education to all students.  The Court found that there was no evidence in the record to support the district's claim that allowing Constance to attend the prom with her girlfriend and to wear a tuxedo would harm the school district's interests. 4.  The court did not, however, issue an injunction because it found that doing so would not serve the public interest.  By the time the court was making its ruling, a privately sponsored prom had already been organized which will take place on April 2.  The court was satisfied that all junior and senior students, including Constance, would be permitted to attend this prom without the restrictions imposed by the school district previously.  To force the school district to reinstate the original prom at this late date would cause confusion and create a waste of the efforts of the private individuals who organized the April 2 prom. Having said that, however, the court stated that Constance's case is still a live legal action and the court gave Constance leave to amend her complaint against the school district to seek monetary damages and other relief to compensate for the violation of her rights. Although  an injunction did not issue, this is a very significant ruling.  A federal court has ruled that the act of a same-sex couple attending a public event as a couple is protected by the First Amendment.  This case could have future implications in other cases such as lawsuits challenging the federal Defense of Marriage Act since it can be argued that there is a right under the First Amendment to be recognized as married, particularly where a state has given such a couple a marriage license. As for what happens next in Constance's case, it would appear that the next step is up to her.  There does not seem to be a basis for the school district appeal at this point since they technically won on the decision to not grant an injunction.  If Constance decides to proceed with her case and seek money damages, then further decisions by this court and appeals could follow.  Constance has gained wide-ranging support including over 400,000 fan supporters on a Facebook page called Let Constance Take Her Girlfriend to Prom! dedicated to her cause. Meanwhile, this case may already have started ripple effects elsewhere.  According to a report from Georgia, Derrick Martin, a senior at Bleckley County High School sought permission to bring his boyfriend as his date to the prom. (Permission is required regarding any date who is not a student in that county).  At first, the principal told him no.  Then last week, the principal reversed herself and indicated that since there was no specific policy against this, Derrick could bring whomever he wanted as his date for the prom. More interesting developments are sure to follow.  In the meantime, best wishes to all prom-goers for a fun and safe celebration.

What are grandparents' rights for child custody in Pa.?

In the legal world of child custody cases, we usually think of these as cases between the parents.  This is not always the case as sometimes grandparents have an interest in these matters.  In Pennsylvania, it is the general rule that the rights of parents usually are given priority over any other relatives but there are exceptions. Pennsylvania has enacted legislation providing for grandparents' rights in several situations.  First, it is important to note the difference between partial custody and visitation.  Under the Pennsylvania law, "partial custody" is the right to take possession of a child away from the custodial parent for a certain period of time.   On the other hand, "visitation" is the right to visit a child but it does not include a right to remove a child from the custodial parent's control without permission. Thus, a person who has a right of partial custody can take the child to their home or another location by right but a person who only has visitation may be limited by the custodial parent to seeing the child in the custodial parent's home or other location permitted by the custodial parent. Pennsylvania gives grandparents the right to go to court to request an order granting partial custody or visitation of a grandchild in three situations:
1. If a parent of a child is deceased, the parents or grandparents of the deceased parents of the child may be granted partial custody or visitation; 2. If there is an action for divorce pending between the child's parents or the child's parents have been separated for six months or longer; or 3. If the child resided with the grandparents or great-grandparents for 12 months or longer and the parents subsequently removed the child from the home of the great-grandparents. In all of these situations, grandparents or great-grandparents are not given access to the child automatically.  Rather, it must be determined by the court that partial custody or visitation is in the child's best interest and that it would not interfere with the parent-child relationship. It is also possible for a grandparent or great-grandparent to seek primary physical and legal custody of a child if the grandparent or great-grandparent has:
1. genuine care and concern for the child;
2. the relationship began with the consent of the child's parent or due to a court order; and
3. for a period of 12 months or longer has assumed the role of parent for the child by providing for the child's needs or has assumed responsibility for the child under a legal determination that the child is "dependent" under the juvenile law code or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness. Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration and Social Security.

In 38 states, you can set aside money for your pet - even after you are gone

Perhaps you know the old expression, "It's a dog's life" but it may be that no dog ever made out better than a Maltese named Trouble, the beloved pet of the late, though not necessarily so beloved, Leona Helmsley.  When Mrs. Helmsley died in 2007, she left $12 million for Trouble in her will.  It was the largest single gift in Mrs. Helmsley's will. Well, you don't have to be a multi-millionaire to leave a legacy for the care of your beloved pet.  In fact, 38 states plus the District of Columbia have statutes on the books specifically authorizing creation of trusts for the purpose of caring for pets.  The Pennsylvania pet trust statute allows trusts for one or more animals that was alive during the lifetime of the settlor (person creating the trust).  The trust ends upon the death of the last of the animals for which the trust was created. Now is this a good idea for every pet owner who wants to make sure that Rover or Fido is well cared for?  Not necessarily.  While a trust can provide a legal mechanism to direct funds to the care of a pet, there are costs involved as well.  Trusts are separate legal entities and can be subject to the need to file taxes and other forms plus the expenses of meeting those requirements.  It may be easier and less expensive to simply find someone you really trust to care for your beloved pet and leave that person a gift in your will for the stated purpose of covering the costs of caring for the pet. Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration. 

After divorce, what happens if your ex is still named beneficiary on accounts?

In a divorce, it is common to have to deal with who gets rights to various assets acquired during the marriage.  Let's suppose those issues have been resolved.  Now you have your IRA or your insurance policy and your divorce settlement says your ex has no claim to it.  However, before you get a chance to remove your ex from being listed as the beneficiary, you unfortunately die.  What happens?  Does your ex receive that money? In Pennsylvania, section 6111.2 of the Probate, Estates and Fiduciaries Code deals with this issue for accounts like a IRA,  insurance policy or other account in which there is a beneficiary named.  This law says that when the owner of the account and the beneficiary become divorced, the beneficiary designation naming the former spouse becomes ineffective and the account is handled as if the former spouse had died before the owner.  The exception is if there is clear indication to the contrary that the former spouse should remain the beneficiary such as clear wording that the designation was intended to survive a divorce, a court order from the divorce case or a contract between the former spouses providing for the beneficiary designation to survive the divorce. Another big exception to this rule is in accounts which are covered by the federal ERISA (Employment Retirement Income Security Act) law - like a 401(k).  These are generally accounts that one gets as a benefit through employment.  For those accounts, federal law trumps state law and the federal law is to go by the written designation, even if a divorce occurred.  While the state law is helpful for non-ERISA accounts, the best way to avoid any future problems in this area is to promptly change one's beneficiary designations after a divorce is completed.  While you are at it, updating one's will after a divorce is also a great idea just to make sure your estate plan is really what you want. Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

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