Court Rules Attorney-Client Privilege ≠ Colorado GAL-Attorneys

Last week, the Colorado Supreme Court ruled that the attorney-client privilege does not apply to conversations between guardians ad litem and the children they represent in child abuse, child welfare and custody cases. In Colorado, a guardian ad litem is an attorney appointed to represent a child who has been abused or neglected or is in foster care. They are also appointed for children are accused of crimes or involved in a custody fight. In a very controversial 5-2 decision, the Court held that “because a child who is the subject of a dependency and neglect proceeding is not the client of a court-appointed guardian ad litem, neither the ...

Life After Death: Survivor Benefits for Posthumously Conceived Kids

Last week, a federal appeals court ruled that children born though in virto fertilization long after their father died cannot be denied Social Security survivor benefits solely because they could not inherit under state law. "It goes without saying that these technologies were not within the imagination, much less the contemplation, of Congress when the relevant sections of the act came to be, and that they present a host of difficult legal and even moral questions . . . . We [] cannot help but observe that this is, indeed, a new world." U.S. Circuit Judge Maryanne Trump Barry said in Capato v. Commissioner of Social ...

Judicial Stupidity – It’s Okay to Sue a Four Year Old Child

Justice Paul Wooten of State Supreme Court in Manhattan presumably doesn't have children. He also apparently doesn't have any common sense because he recently ruled that: Infants under the age of 4 are conclusively presumed incapable of negligence, Juliet Breitman, however, was over the age of 4 at the time of the subject incident. For infants above the age of 4, there is no bright-line rule. Juliet was 4 years 9 months old when her tricycle when she struck an 87-year-old woman who was walking in front of the building. Judge Wooten added that any “reasonably prudent child,” who presumably has been told to look both ways before crossing a ...

Sexting Subterfuge – Miller v. Skumanick Decided

The long awaited decision in the first sexting case to reach a federal appeals court was issued yesterday by a unanimous Third Circuit. The verdict: "appearing in a [sexting] photograph provides no evidence as to whether that person possessed or transmitted the photo." In other words, as I correctly opined here in December, a minor depicted in a sexting image is only guilty of a child pornography offense if the prosecutor can prove that they possessed or distributed their image; a teen's appearance in a sexting image (even an image of bona fide child pornography) is not, in and of itself, a violation of current law. As the Third Circuit stated: Ass...

The Rights of Foster Children – legal update

Appellate decisions regarding foster care are rare and decisions that focus on foster children are rarer still. So when two decisions appear in the space of about a week they deserve some commentary. One is from the Maryland Court of Appeals, Maryland's highest court, and addresses an issue of great interest: under what circumstances and to what extent does a foster child's attachment to foster parents impact the rights of the biological parents when such parents are confronting the termination of their parental rights? The other case, from the New York Appellate Division, also addresses an issue of interest: can foster children sue foster parents ...

First Amendment Fiasco – Student Speech Confusion

From The Legal Intelligencer: Lawyers were scratching their heads on Thursday over a federal appellate court's seemingly conflicting rulings in a pair of closely watched student-speech cases that both involve high school students who were suspended for creating fake MySpace pages on their home computers to ridicule their principals. Although the cases appeared at first glance to raise nearly identical legal questions about the limits on a school's power to discipline students for off-campus speech, the 3rd U.S. Circuit Court of Appeals sided with the student in Layshock v. Hermitage School District and with the school in J.S. v. Blue Mountain ...

A Bold Gambit to Reduce Demand for Child Porn

From today's Christian Science Monitor: Federal prosecutors and New York lawyer James Marsh are persuading courts to order anyone caught with illicit images to pay financial restitution to child victims. Federal prosecutors are embracing an aggressive approach to fight the spread of child pornography on the Internet, urging judges across the country to order full restitution to identified child victims in cases where the defendant possessed the images but played no role in their creation. Generally, restitution is awarded in cases where a defendant's direct actions caused the injuries suffered by the victim. In a child pornography case, the person ...

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