Family Law Prof Blog

Fewer Children In Foster Care In NC County Promotes Child Welfare and Saves Money

Guilford County (North Carolina) has employed a multi-prong approach to family preservation, and has reduced the number of children in foster care by 31%.  In this Greensboro (NC) News-Record article, county officials and national experts agree that the children who have remained with their families have avoided the unnecessary trauma of being separated from their families, and note the cost-savings of prevention programs as compared to out-of-home care.

(MIF 04-17-2009)

Second Parent Adoption, DOMA, and Genetic Child

This case presents important questions about the ways in which a child’s “parents” are defined and legally constituted, and how the parent/child relationship can be protected in a transient, cross-border society.  Answers implicate assisted reproductive technologies (ARTs) and an out-dated statutory scheme which fails to anticipate the relations created by those technologies, New York’s evolving jurisprudence of same sex relationships, equal protection, full faith and credit, and the effects of the federal Defense of Marriage Act (“DOMA”) (Pub L No 104-199, 110 US Stat 2419 [1996], codified at 1 USC § 7 [2000] and 28 USCS § 1738C [2000]).  This court concludes that although petitioner already has a legally protected parental relationship with Sebastian and, even in the absence of that legal relationship, could utilize several less intrusive, expensive and time-consuming methods of establishing one, the only remedy available here that will accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law (“DRL”) § 111 et seq.

So begins In re Sebastian, an opinion by New York Surrogate Kristin Booth Glen, in a case that sounds as if it might be a Family Law exam:

Ingrid A. is a Dutch citizen who works at the United Nations.  Mona A. is of Somali/Yemeni heritage, had an international upbringing and practices international law at a New York firm.  Ingrid and Mona have been in a committed relationship for more than eleven years, and on December 24, 2004 they were legally married in the Netherlands. Desirous of establishing a family, and one which would reflect their ethnic and racial diversity, Mona donated her ova which were fertilized  in vitro2 by an anonymous sperm donor chosen for his similarities to Ingrid’s Dutch Italian ethnicity.   The fertilized ovum was successfully implanted in Ingrid’s uterus, and on January 27, 2008 she gave birth to Sebastian, with Mona at her side.   A birth certificate was issued by New York City’s Department of Health and Mental Hygiene naming Ingrid alone as Sebastian’s parent.  Since then Ingrid and Mona continue to live together and co-parent Sebastian, who they consider to be the child of each of them.  Notwithstanding their marriage and Mona’s unquestioned genetic relationship to Sebastian, Mona here seeks to adopt the child.

Glen grants the second-parent adoption as the only way in which the parental rights would be protected across state and national borders, but only after exploring the other possible avenues and concluding that they do not provide sufficient certainty:

Sebastian’s genetic mother has other potential legal avenues:  first, to be listed on Sebastian’s birth certificate; second, with her partner, Ingrid, to execute a statutorily prescribed acknowledgment of paternity [filiation]; and third, to obtain a judicial order of filiation. Only the last of these is presumptively subject to Full Faith and Credit.  This court, however,  lacks jurisdiction to confer legal parentage in any way other than by granting the adoption requested by the parties.  And, although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the entire United States.

 
This is an erudite opinion by Surrogate Glen, former family law professor (and former dean at CUNY School of Law), that is worth reading for professors, practitioners, and students alike. The opinion is available as a pdf here.

RR

Recent Scholarship: Tax Time & Divorce

For your tax time reading, some recent scholarship on taxes and families:

Professor Michael Waggoner of the University of Colorado Law School, argues that similar tax treatment should extend to other support payments, including child support, in his article, "IRC Section 71 May Impoverish Children, Endanger Ex-Wives, and Disrupt Federalism" which appeared in 46 Family Court Review 574 (2008) and is available online at SSRN. 

For an overview of tax policy and family law, see the article by Professor Patricia Cain (Santa Clara) entitled, "Taxing Families Fairly, in 48 Santa Clara L. Rev. 805 (2008) also available online at SSRN.

Professor Theodore Seto (Loyola-LA) argues in "The Unintended Tax Consequences of Gay Marriage", 65 Wash & Lee L. Rev. 1529 (2008) that "the only way to ensure that gay couples will be taxed no more favorably than heterosexual married couples is to list gay marriage as one of the proxy relationships that automatically invokes pertinent anti-abuse rules--in other words, to treat gay marriage as marriage for federal income tax purposes."  The article is available online at the Washington & Lee Law Review website

Same-Sex Marriage: New York

According to a NY Times blog here, New York's Governor Paterson will announce on Thursday morning that he intends to introduce a same-sex marriage bill in the NY Legislature.  States bordering New York have legalized same-sex marriage.

RR

Conference: CHANGING FAMILIES

Conference at:

"Our Changing Families"

Dedicated To The Influential Work of

                                        former [NY Ct of Appeals]

                                      Chief Judge Judith S. Kaye

Date: Friday, April 17, 2009
Time:  8:30 a.m. - 3 p.m.
Location: Albany Law School, 1928 Building, Room 200
Registration:  The symposium is free and open to the public. Registration is, however, preferred. To register contact Lauren Hunt 518-445-3320 or lhunt@albanylaw.edu. 
Continuing Legal Education: This symposium has been certified as a source of 5 credit hours for both transitional and non-transitional areas of professional practice for attorneys in the State of New York. Cost: $75. CLE registration is required.

More info here.

RR

Case Law Update: Tax Time and Divorce

Tax day is around the corner and you and your students may be turning your syllabus to tax issues upon divorce. 

One often-litigated issue is the tax treatment of alimony payments. The tax code provides that alimony will be deductible to the payor and taxable to the payee. 

Characterization issues are the most commonly litigated issue in this area.  For alimony to be deductible it must truly be alimony - as opposed to child support or property division and, for purposes of I.R.C. § 71 and I.R.C. § 215, the support must terminate on ex-wife’s death.  So for example, the tax court in Swening v. Comm'r,  T.C. Summary Opinion 2009-7 (Jan. 8, 2009) held that an ex-husband's unallocated support payments were not deductible because they lacked these essential terms and the state's divorce statutes did not suppy the missing terms.

A recent tax court opinion notes that, in order to take the deduction, the payor must have actually paid the alimony.  In Jonas v. Comm'r, T.C. Memo 2009-49 (March 5, 2009) the ex husband was ordered to pay support to the ex-wife.  While he did not make those payments for two years, he did take deductions for alimony paid.  The IRS disallowed those deductions and it's decision was upheld by the court.  The court held that husband had not made a "payment" by virtue of the fact that husband's property, which had been subject to a lien to secure the alimony, was sold and the proceeds placed in a trust securing the alimony.

Finally, the California court recently addressed a couple's attempt to transfer some of the payee's liability for taxes on alimony: When a marital settlement agreement, which has been incorporated into a divorce decree, requires that Husband pay half of Wife's tax liability resulting from marital support, does the ex-wife have a duty to choose the filing status that will result in the lease tax liability?   The California Court of Appeals recently held that there was not an implied contractual duty of fair dealing in an agreement that has been incorporated into a divorce decree and that it would not imply such a requirement into the decree. Corona v. Corona, (California Court Appeals April 7, 2009)  (all websites last visited April 12, 2009 bgf)