Wednesday, February 13, 2013
From the Jurist:
France's lower house of parliament, the National Assembly, approved a bill on Tuesday which extends marriage and adoption rights to same-sex couples. The bill was approved by a vote of 329 in favor to 229 against, with 10 abstaining, and must ultimately be approved by the senate in order to become law. The senate, which is dominated by Socialists, is expected to approve the measure. Despite being backed by French Socialist President Francois Hollande, the bill has been controversial, and last month 350,000 demonstrators took to the streets to protest its passage. If the bill becomes law, France will become the twelfth country to approve same-sex marriage.
Read more here.
Hat Tip: Angelique Devaux
There was a time in this country when family law was cut and dry. Custody cases were decided with children going to one parent or the other, with the one that lost the case getting some or no visitation rights.
When family laws were created all those years ago, no doubt the ones making the laws had no idea how things would change so radically over the next decades.
These days, family law covers everything from marriage to divorce, from adoption to custody, and from alimony to child support. Add in patchwork laws that differ from state to state about gay rights, same-sex benefits and children with multiple sets of parents and it is easy to see how laws in Illinois may differ from the same court in Connecticut.
Think about how someone could be affected by a custody case involving three mothers. By now you might scratch your head and wonder how someone could have three mothers. Let’s take this as an example. The first woman may want to get pregnant, but her own eggs for some reason do not fertilize properly with her partner’s sperm. So a second woman comes in, offers to be the egg donor, and the first woman is implanted with the second woman’s egg.
Now let’s say that something happens where the first woman decides not to keep the child. Maybe something takes place where she breaks up with the boyfriend or decides to divorce the husband, and the man doesn’t contest any parental rights – in short, he abdicates his responsibility. Here comes the entrance of a third woman that wants to adopt a child.
Not exactly cut and dry, is it? The days of one mother and one father deciding custodial rights aren’t over, but they have been joined by other factors.
Same-sex marriage and civil unions are becoming more popular and accepted around the country, but there are still many states where this is not allowed. So if a same-sex couple gets married in a legal state and moves to another state where same-sex marriage isn’t recognized, divorce laws or custody rules (if one of the women has a child) may not apply. Understand that same-sex couples would not likely move to a state where their marriage was not recognized, but it might be because of career or job reasons, etc.
Veteran lawyers will need to set the protocol for cases like this to gain more of an audience in the future. In his years with King and Spalding, Mr. Steven Guynn handled a variety of different law cases and took the initiative to lead the way into a new future for the law field. Visionary attorneys need to handle cases like same-sex marriage, shared custody, etc.
Family law may change 10 years from now. It may be much different than it looks today.
Studying for custody battles may take a lot more cracking the law books than usual.
Forbes contributor Jeff Landers discusses the complex problems individuals face in divorces involving dual citizenship. More importantly, these divorces can become extremely complicated and messy if children are involved, especially if the two divorcing individuals can't agree on a single country to reside. Landers answers questions relating to divorce and dual citizenship.
Read more here.
Tuesday, February 12, 2013
From the New York Times:
Neither Ms. Hope nor Mr. Williams is interested in a romantic liaison. But they both want a child, and they’re in serious discussions about having, and raising, one together. Never mind that Mr. Williams is gay and that the two did not know of each other’s existence until last October, when they met on Modamily.com, a Web site for people looking to share parenting arrangements.
Mr. Williams and Ms. Hope are among a new breed of online daters, looking not for love but rather a partner with whom to build a decidedly non-nuclear family. And several social networks, including PollenTree.com, Coparents.com, Co-ParentMatch.com, and MyAlternativeFamily.com, as well as Modamily, have sprung up over the past few years to help them.
Read more here.
Hat Tip: Naomi Cahn
Monday, February 11, 2013
Article author Mosi Secret reveals in his article even though Robert Sand, a man well-known for dodging his child support payments for almost 20 years, was arrested for owing his ex-wife Lisa Sand and his two children $1 million in payments, Ms. Sand is being faced with a tough choice: does she want her husband to go to jail, or does she want to see him work and "pay his debt to me and my children?" Mr. Sand had been hiding out in Thailand before he was arrested upon arriving back in the United States on December 18, 2012.
Read more here.
Saturday, February 9, 2013
Efforts to amend permanent alimony payments are gaining steam in Florida, and many members of the Family Law section of the Florida Bar are speaking out in opposition. The amendments are being sought to "become more fair and equitable for all parties in a divorce."
Read more here.
Friday, February 8, 2013
According to the U. S. Census Bureau, almost 60% of parents do not receive as much child support as they should receive, and in Florida, this is true for over half a million parents. The majority of cases in the state see men owing women money, with only 5.8% of cases seeing women owing men child support (according to the Florida Department of Revenue).
Read more here.
Thursday, February 7, 2013
A group of supporters is traveling across North Carolina in hopes of gaining support for a bill called "Kilah's Law." This group, named after little Kilah Davenport who, in May, was beaten so horrifically by her step-father that 90% of her brain was damaged, hopes to gain support in strengthening the punishment for child abuse. In this state, the strictest punishment one can receive is a mere 7 1/2 years in prison, a Class C felony. They hope to increase it to a Class B felony, meaning guilty parties could receive 25 years to life in prison for the most brutal cases.
Read more here.
Wednesday, February 6, 2013
Piero Corsi, an Italian Catholic priest recently created controversy when he posted a flyer on his church's bulletin board that seems to suggest women who don't take care of their homes are partly to blame for their husband's violence. An excerpt of the translated text reads:
Babies left to themselves, dirty houses, cold meals and fast food at home, soiled clothes. So if a family ends up in a mess and turns into crime (a form of violence which should be condemned and punished firmly) often the responsibility is shared.
The flyer also blamed women for dressing provocatively. Corsi has made offensive comments in the past, though. Both the mayor of the church's village and the bishop of the province have denounced the flyer.
Read more here.
Tuesday, February 5, 2013
Russian President Vladimir Putin signed a controversial measure on Friday, December 28 banning the adoption of Russian children by U. S. families. This is a significant blow to those wishing to adopt a child, as Russia is the third most popular country for U. S. citizens to adopt. The law also "bars any political activities by nongovernmental organizations receiving funding from the United States" if the activities could affect Russian interests and "imposes sanctions against U. S. officials thought to have violated human rights." The law goes into effect on January 1.
Read more here.
Monday, February 4, 2013
Brian King is a Certified Family Law Specialist in North Carolina. King Law Offices has locations in Western North Carolina and upstate South Carolina. Fore more information on custody issues, visit http://kinglawoffices.com/.
Our clients often come to our office in a panic. The mother or father of their children have taken the children and will not return them. This leads to an often complicated process of obtaining the children back through legal means.
On the other hand, many of our clients come to the office saying the child of a custody order no longer wants to go visit the other parent. In these cases, our clients are concerned what the child is doing is putting them in violation of the court order.
This process is made even more aggravating when our client has already gone through the process of getting a court order. However, if there is a court order on the issue, an attorney can take immediate action to have the children returned.
While many attorneys will ask clients to wait for a hearing on the issue, the Court of Appeals of North Carolina in Wolfe v. Wolfe, 67 N.C. App. 752, 314 S.E.2d 132 (1984) held that the trial court has authority to issue an order, ex parte (meaning with only one party present). This order may require a party to relinquish custody of the children to an adverse party and to appear and show cause why he or she should not be held in contempt for violating a valid custody order. In that case, the Court held that way even though the last custody order was on appeal at the time the ex parte order was entered.
Based on the Wolfe matter, a parent can go to the court without a hearing and have the Court order the children to be returned. Remember, any time an attorney appears before the court ex parte, that attorney has a duty to tell the court every detail—including those that are against the client that attorney represents.
Once the ex parte order is entered, the Court will set a hearing on the motion to show cause for a later date. Law enforcement is given this new order and will take the offending party into custody if so ordered, and return the children.
This applies even to cases beyond the jurisdiction of North Carolina. Even if North Carolina law enforcement is not involved, another state’s law enforcement will enforce the order. If a North Carolina court made the order, then jurisdiction of contempt applies to the residents of other states. Morris v. Morris, 42 N.C. App. 222, 256 S.E.2d 302 (1979).
Once an ex parte order is entered, the other parent cannot be punished if they return the child prior to the return hearing on the merits. Ruth v. Ruth, 158 N.C. App. 123, 579 S.E.2d 909 (2003).
There are defenses. First, if the parent who is trying to enforce the order caused the problem (for instance, threatening the other parent or children), then there will be no finding of contempt. Scott v. Scott, 157 N.C. App. 382, 579 S.E.2d 431 (2003).
Before disobedience to an order can be grounds for holding a party in contempt, it must be shown that the disobedience was wilful. There have been times when the courts of North Carolina said that if the parent with the child is under a belief that they legally had custody, it is not willful. Campen v. Featherstone, 150 N.C. App. 692, 564 S.E.2d 616 (2002) and Sowers v. Toliver, 150 N.C. App. 114, 562 S.E.2d 593 (2002).
The trial judge has power to make an order forcing a child to visit a noncustodial parent, but only when the circumstances are compelling, and only after he has afforded the parties hearing in accordance with due process. The court creating the order must make factual findings and conclusions of law to justify and support entry of an order, and made findings must include, at minimum, that the drastic action of incarceration of a parent is reasonably necessary for promotion and protection of best interests and welfare of child. Mintz v. Mintz, 64 N.C. App. 338, 307 S.E.2d 391 (1983).
It was held that the evidence was insufficient to support a finding that the plaintiff willfully refused to allow the defendant his visitation with the parties' child. The trial court therefore erred in holding the plaintiff in contempt, where there was no evidence that the plaintiff acted purposefully and deliberately or with knowledge and stubborn resistance to prevent the defendant's visitation with the child. She had prepared the child to go, encouraged him to visit with his father, and told him he had to go, yet the child refused. The evidence showed that the plaintiff did everything possible short of using physical force or a threat of punishment to make the child go with his father, but the child refused to go. Hancock v. Hancock, 122 N.C. App. 518, 471 S.E.2d 415 (1996); Horton v. Horton, 12 N.C. App. 526, 183 S.E.2d 794 (1971), trial court changed custody from mother to father based upon contemptuous behavior of mother.
Where the custodial parent does not prevent visitation from taking place, but takes no action to force visitation when the child refuses to go, the proper procedure is for the noncustodial parent to ask the court to modify the order to compel visitation. However, the trial court's order in this case, though an attempt at an order of forced visitation because it sentenced the plaintiff to jail, but allowed her to purge herself of contempt by delivering the child over to the defendant each and every time he was entitled to visitation, nevertheless failed because there were no findings that the incarceration of the plaintiff was reasonably necessary to promote and protect the best interests of the child. Walleshauser v. Walleshauser, 100 N.C. App. 594, 397 S.E.2d 371 (1990), where the husband was properly held in contempt of temporary child custody visitation order, where he violated the order by not allowing the wife to visit the children during the holidays and by requiring that he be present during her visits.
When a party is dissatisfied with a custody or visitation order, the proper remedy is a motion in the cause to modify the order based upon changed circumstance. However, sometimes parties simply take the law into their own hands and refuse to abide by the terms of a valid order. Despite the fact that paternal grandparents were provided visitation in an order, the plaintiff was in wilful contempt for not obeying the order. The evidence supporting the court's finding of contempt included findings that the plaintiff had the ability to comply with the terms of the order, but had never given the grandparents a useful telephone number, had refused to let them talk to the child when they discovered the correct number, and had refused to allow in-person visitation. The court noted that the parties may not cease compliance with judgments at whatever time they may see fit.[FN17] However, in a civil proceeding in which the defendant mother was held in contempt of court for her failure to comply with the terms of visitation in a custody order, the evidence was insufficient to support the trial court's findings of fact and conclusions of law that: (1) the defendant's failure to inform the plaintiff of her new address was deliberate, intentional, and calculated to deprive the plaintiff of communication with the child; and (2) the defendant's refusal to permit the child to visit with the plaintiff when a request was made by the plaintiff's mother as his agent was deliberate, intentional and contemptuous.[FN18]
In addition to the remedy of enforcement by contempt, N.C. Gen. Stat. § 50-13.3(b) provides that any court of this State having jurisdiction to make an award of custody of a minor child in an action or proceeding therefor, shall have the power of injunction in such action or proceeding as provided in Article 37 of Chapter 1 of the General Statutes and N.C. Gen. Stat. § 1A-1, Rule 65.[FN19]
Even though trial court withheld punishment for the adjudged contempt, it was held that a party was entitled to appeal from an order adjudging her in contempt of a prior custody order.[FN20] While an appeal from an order providing for the custody of a minor child removes cause from the trial court to the appellate court, and pending the appeal the trial court is without jurisdiction to punish for contempt, the taking of an appeal does not authorize a violation of custody order. In fact, if the order is upheld by the appellate court, the violation may be inquired into in a contempt proceeding when cause is remanded to the trial court.[FN21] The trial court had the power to issue, while a previous order awarding custody of children to the father was on appeal, an ex parte order requiring the mother to relinquish custody of the children to the father and appear and show cause why she should not be held in contempt of court for violating the previous order. The father had made a showing that the mother was in violation of the order and wrongfully had custody of the children. The mother was not entitled to notice or an opportunity to be heard prior to hearing on the ex parte order requiring the mother to relinquish custody of her two minor children to the father and to appear and show cause why she should not be held in contempt for violating a valid custody order. Wolfe v. Wolfe, 67 N.C. App. 752, 314 S.E.2d 132 (1984).
[FN4] Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999). See also, Beck v. Beck, 64 N.C. App. 89, 306 S.E.2d 580 (1983), mother could be held in civil contempt where father was unable to exercise his visitation rights because of the willful, deliberate and wrongful acts of the mother.
[FN6] N.C. Gen. Stat. § 5A-11(a)(3). For discussion of the use of criminal contempt, see Atassi v. Atassi, 122 N.C. App. 356, 470 S.E.2d 59 (1996).
[FN7] Mather v. Mather, 70 N.C. App. 106, 318 S.E.2d 548 (1984), contempt proceeding brought against divorced wife alleging that she violated custody agreement was to determine whether wife was in “criminal contempt” and procedure governing criminal contempt would be applied, since court ordered arrest of wife, which would be available only in criminal contempt proceedings.
[FN15] Hancock v. Hancock, 122 N.C. App. 518, 471 S.E.2d 415 (1996); Horton v. Horton, 12 N.C. App. 526, 183 S.E.2d 794 (1971), trial court changed custody from mother to father based upon contemptuous behavior of mother. See, Interference by custodian of child with noncustodial parent's visitation rights as ground for change of custody, 28 A.L.R. 4th 9.
[FN16] 28 A.L.R. 4th 9. See also, Walleshauser v. Walleshauser, 100 N.C. App. 594, 397 S.E.2d 371 (1990), where the husband was properly held in contempt of temporary child custody visitation order, where he violated the order by not allowing the wife to visit the children during the holidays and by requiring that he be present during her visits.
[FN19] See, Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986), trial judges have authority to enforce orders providing for visitation by contempt proceedings and by injunction. For discussion of injunctive relief, see § 20:7.
Saturday, February 2, 2013
Marian Robinson’s status as the live-in First Grandmother is an example of a growing trend in the United States - the multigenerational family. The 2010 United States Census Data reflects that the number of households with multiple generations living under one roof has increased by 25% this decade. Mrs. Robinson also reflects another new development in American families: grandparents helping their adult children with caregiving. More than 70% of grandparents are taking care of their grandkids on a regular basis, and 13% are primary caretakers. Many grandparents treat their role as caregiver like a profession, and they sacrifice jobs, residences, money, time, and part of their autonomy in order to ‘retribe’ their family. Often times, these grandparents are not as fortunate as Mrs. Robinson, and their selfless commitment to family not only reduces their current income, but also negatively affects their retirement funds and ability to care for themselves in the future. As the number of citizens over the age of sixty-five increases and the average age of grandparents decreases, these fundamental changes in the family caregiving network pose a threat to a significant portion of our population, particularly women, who make up the majority of grandparent caregivers.
The impact of this family evolution on the older generation has yet to be examined from a legal perspective that goes beyond the traditional spectrum of family law. This article fills a gap in the legal analysis of family law reform in that it focuses on two underdeveloped topics: grandparents who are an integral part of the family, and the impending crisis of a significant aging population. This Article explores how employment, tax, and housing laws discourage intergenerational caregiving. Although research shows that grandparent involvement in their grandchildren’s lives results in multiple positive outcomes, government support for the extended family network lags behind the social framework of today. This Article examines how other modern countries in Europe and Australia have adopted laws that reduce the economic strain of grandparent caregiving. It further argues that the transubstantive nature of family law requires advocacy for grandparents beyond custody and visitation rights. Expanding social welfare for grandparent caregivers will revise the concept of the system of laws that supports family care work and can reform the administration of federal, state, and local regulations governing work and family.
Friday, February 1, 2013
Melissa L. Breger (Albany Law School) has posted "The (In)Visibility of Motherhood in Family Court Proceedings," 36 New York University Review of Law & Social Change, 555 (2012) on SSRN. Here is the abstract:
Issues of bias in Family Court in the context of race and overrepresentation of people of poverty have been extensively explored in academic literature. There is arguably a parallel overrepresentation of women, and particularly mothers, in our Family Courts. I question whether the Family Court would function as it currently does without mothers as its core litigants. Specifically, I delve into the implicit gender biases inherent in societal expectations of mothers as all-knowing, ever-nurturing, and ever-protective of their children – expectations that often ignore the complexities and nuances of motherhood. To illustrate my thesis, I focus on a case that I was involved in over a decade ago, which was subsequently featured in Professor Dorothy Roberts’ book: Shattered Bonds: The Color of the Child Welfare System. Through this narrative, the Article raises critical questions regarding the influence of implicit gender bias and the construct of motherhood in Family Court proceedings. As a result of its predominance, has the gender of Family Court litigants become virtually invisible? How might we identify, confront, and address this (in)visibility in our family justice system?