Posted on 05/30/2008 5:34:10 PM PDT by festus
SAN ANGELO, Texas - A plan to begin reuniting parents with more than 400 children removed from a polygamist group's ranch has been thrown into doubt because a judge and the families are clashing over proposed restrictions.
Texas District Judge Barbara Walther has refused to sign an order restoring custody to the parents until they agree to more restrictions than state child-welfare officials have proposed.
Walther was directed by an appeals court to reverse her ruling last month putting all children from the Yearning For Zion Ranch into foster case. The Texas Supreme Court affirmed the appeals court's decision Thursday and rejected the state's argument that all the children were in immediate danger from what it said was a cycle of sexual abuse of teenage girls at the ranch.
See #118. LOL.
The situation would be even further complicated by the fact that a marriage once recognized in one state, may or may not be recognized in another.
If, for example, a child of 14 is legally married in one state and then moves to another state, does the marriage become invalid? Great Britain is finding itself welcoming the multiple wives of some Muslims, I believe, and yet polygamy for residents isn't necessarily tolerated.
I find myself wondering what happens if a non-Muslim British citizen visits a nation that permits polygamy. Can the citizen then return to Great Britain with multiple spouses? I really think that government needs to get out of the marriage business because I don't think the situation is going to get any better by passing more laws. (DNA testing can help sort out questions of parentage when they become an issue.)
Is your church approved by the BATFE?
LOL, and you beat me by THREE seconds!
You are describing my great-grandmother, and why do you care?
By that do you mean that the act is forbidden and can be punished as a crime, or do you mean that regardless of intent, no such marriage can exist and it is not legally recognized?
LOL, I win.
So which is funnier, 101 or 117?
I liked 101 better, but both were good. :)
The state of Texas does recognize common law marriage. Here is the applicable legislation:
The policy of the state of Texas regarding marriage is contained in section 1.101 of the Texas Family Code which states the following:
“in order to promote the public health and welfare and to provide the necessary records, this Code specifies detailed rules to be following in establishing the marriage relationship. However, in order to provide stability for those entering into the marriage relationship in good faith and to provide for an orderly determination of parentage and security for the children of the relationship, it is the policy of this state to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable. Therefore, every marriage entered into in this state is presumed valid unless expressly made void by Chapter 6, Suit For Dissolution of Marriage, or unless expressly made voidable by Chapter 6, and annulled as provided by that Chapter. Texas Family Code §1.101.
I’ve seen summaries that state that in Texas, in order to “prove” common law marriage:
1. First, you must have “agreed to be married.”
2. Second, you must have “held yourselves out” as husband and wife.
3. Third, you must have lived together in this state as husband and wife.
Now, here is the text of the Texas law concerning bigamy (and by extension, I suppose, polygamy.) Note the phrases “purports to marry” or “lives under the appearance of being married.” It would seem the additional marriage licenses aren’t necessary for the crime to occur in Texas. (That may or may not be true in other states.)
TITLE 6. OFFENSES AGAINST THE FAMILY
CHAPTER 25. OFFENSES AGAINST THE FAMILY
§ 25.01. BIGAMY. (a) An individual commits an offense if: (1) he is legally married and he:
(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor’s prior marriage, constitute a marriage; or
(B) lives with a person other than his spouse in this state under the appearance of being married; or
(2) he knows that a married person other than his spouse is married and he:
(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person’s prior marriage, constitute a marriage; or
B) lives with that person in this state under the appearance of being married.
(b) For purposes of this section, “under the appearance of being married” means holding out that the parties are married with cohabitation and an intent to be married by either party.
(c) It is a defense to prosecution under Subsection (a)
(1) that the actor reasonably believed that his marriage was void or had been dissolved by death, divorce, or annulment.
(d) For the purposes of this section, the lawful wife or husband of the actor may testify both for or against the actor concerning proof of the original marriage.
(e) An offense under this section is a Third Degree Felony.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974 .
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended September 2005.
We may be hearing more about this. What legal justification did CPS have for taking DNA samples from all these children, given that they had insufficient legal justification for having the children in custody at all?
The answer would appear to be "none". There is nothing to stop law enforcement from obtaining the DNA of anybody at the ranch given a proper warrant to do so. The next legal step of the lawyers for the children may be to demand that the privacy of the children be protected by the surrender or the destruction of all DNA taken without justification.
I certainly wouldn't expect to have to give up DNA samples of my children without a warrant.
http://tlo2.tlc.state.tx.us/statutes/fa.toc.htm
Texas Family Code...
its all in there
§ 2.401. PROOF OF INFORMAL MARRIAGE. (a) In a
judicial, administrative, or other proceeding, the marriage of a
man and woman may be proved by evidence that:
(1) a declaration of their marriage has been signed as
provided by this subchapter; or
(2) the man and woman agreed to be married and after
the agreement they lived together in this state as husband and wife
and there represented to others that they were married.
(b) If a proceeding in which a marriage is to be proved as
provided by Subsection (a)(2) is not commenced before the second
anniversary of the date on which the parties separated and ceased
living together, it is rebuttably presumed that the parties did not
enter into an agreement to be married.
(c) A person under 18 years of age may not:
(1) be a party to an informal marriage; or
(2) execute a declaration of informal marriage under
Section 2.402.
(d) A person may not be a party to an informal marriage or
execute a declaration of an informal marriage if the person is
presently married to a person who is not the other party to the
informal marriage or declaration of an informal marriage, as
applicable.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Amended by Acts 1997, 75th Leg., ch. 1362, § 1, eff. Sept. 1,
1997.
Amended by:
Acts 2005, 79th Leg., Ch. 268, § 4.12, eff. September 1,
2005.
Pretty much what we said still holds true.
Thank you, I will be here all week - please remember to tip your waitress...
Actually, 117 is more profound. The TX SC really treated the DNA argument like a stinky fart at a black-tie dinner.
A week ago, I was wondering where that would go myself.
But...I did some reading on it.
It seems that there is very little burden of proof required for parents to estabish parenthood in law. You ask the kid, “Is the your mommy?” - and if the kid says yes, done. Case proven.
So for CPS to argue that they cannot return the kids without DNA proof was the legal equivalent of a stinky fart during a black-tie dinner.
Interesting.
does not work that way under our Full Faith and Credit clause.
For example a couple common law married in TX could DO have their marriage recognized in other states for purposes of divorce.
nitpicking this is pointless.
The law is clear and this judge facilitated the CPS screw up. The judge HAD to do full evidentiary hearings. The judge HAD to factor in the fake first call for whatever it was worth.
The USA does not recognize polygamous marriage for immigration. In fact you only get to have one wife for spousal visas. Has been since there was an immigration service.
Of course the homosexuals are using the Full Faith and Credit to bypass the 1996 DMA. This is what NY is doing with homosexual marriage from Canada Calif. and Mass.
I believe there are 8-10 states with common law marriage still on the books. (states that outlawed it just had a drop dead date from which point old common law marriages would stand but new attempts would not be allowed)
My thoughts have centered around the individual hearings and the lack there of. If this was not the law, why did the state appoint attorneys for the mothers, even those that weren’t minors, AND an attorney ad litem for EACH child?
Obviously they knew what was required and chose to ignore it.
Unless there exists a specific warrant, ordering DNA tests of all the children while in custody, the DNA of the children is inadmissable in court.
Which, is another reason to fault TX in this action - CPS did do some things right. Medical exams, vaccines, DNA tests - if you dropped a baby in my house, I would do all those things as a mater of course.
Like getting a stray dog a rabies shot, once you adopt it.
Of course, since the custody was illegal - so was the rest of it.
I tried humor a couple of times on these threads. Either mine was no understood or I had tried to lighten up some of those that refuse to lighten up.
Anyway, I gave up and at times gave up completely on posting.
I agree that there appears to be no requirement for a license.
The FLDS might attempt to make the case that a "spiritual marriage" is not intended to be a marriage, in fact. I don't know that a judge would have to grant that, nor would a jury; certainly not in a case in which children have resulted.
The problem would seem to be that the circumstances of a married person cohabiting with someone other than the spouse, including having children, would seem to be quite common nationwide and seldom prosecuted. The courts should be quite reluctant to allow selective prosecution of the FLDS for a crime which the people might quickly legalize if prosecution was uniform.
There is a saying that "hard cases make bad law", recognizing that law enforcement and the courts can get a bit creative when they get frustrated. This is certainly one of those cases.
Never give up - armchair speculation on law is a healthy and vigorious education, if daunting.
I used to hate law, until I started reading.
Heck, I was to busy with math to care.
Now I think it is fascinating.
And OMG, the distortions that are published - folks quote news articles that are pages long about the TX SC order, but can’t be bothered to read the 1/2 page order, itself.
Actually, it was not even an order.
The TX SC denied a petition per curiam for a writ of mandemus - which left the 3rd appeals court order standing.
Now, for fun, google “TX SC orders FLDS children returned”, or the like, and tell me which news rag does not describe it as an order.
The ignorance in this country is amazing.
Oh, I got rejuvenated when I went to the cemetery last weekend. They never gave up, nor will I. ;)
Except for the night.
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