Family Law Prof Blog

For Sale

From the New York Times:

Lucky are the few who move out of their houses simply because they have tired of the view or suddenly possess the means to trade up. More often, it is a change in life circumstances that pushes people out into the housing market, something like a new job, a new husband or a new baby.

And lurking with quiet devastation behind many “for sale” signs is the big, sad shift that almost always requires that somebody move out: divorce.

Read more here.

MR

FMLA

People in support of family-friendly workplace policies are continuing to speak out about the shortcomings of the Family and Medical Leave Act (FMLA), “the only federally mandated policy covering families in the workplace.”  For instance, the FMLA only applies to businesses employing 50 or more people.  However, many employers feel the FMLA does not need to go any further because almost 60% of U. S. workers are covered by the policy, and the provisions have been used in excess of 100 million times to help workers manage newborn care and family health crises, according to the National Partnership for Women and Families.  Opponents of the proposed changes argue extending coverage to small businesses would do more harm than good, imposing heavy financial burdens on “mom-and-pop” businesses.  Per the Labor Department, about 35% of national employers offer paid maternity leave for all or most employees and about 30% offer paid paternity leave for all or most employees.  However, amongst large corporations and law firms that offer paid maternity and paternity leaves as perks to help obtain top talent, it is important to note “employers tend not to offer the paid leave to lower-skilled workers, surveys show.”

Read more here.

MR

Divorce on Finances

This article here outlines five (sometimes unexpected) ways in which divorce can impact your finances:  legal expenses, childcare expense(s), taxes, retirement planning, and insurance. 

MR

Kids of Divorced Parents Smoke More

From the Atlantic:

Out of 19,000 U.S adults, the odds of having smoked 100 or more cigarettes increased by 48 and 39 percent for sons and daughters, respectively, of separated or divorced parents.

Read more here.

MR

Same-Sex Divorce

From Forbes:

Among the issues raised by the gay marriage debate is tax equality. Yet the right to file joint tax returns is nothing compared to what happens when a relationship dissolves. When a married couple splits, there’s no limit on the money or property the two can transfer tax-free between them.

Read more here.

MR

Adult Adoption Nullified

From USA Today:

A Florida appeals court has nullified a polo mogul's adoption of his 42-year-old girlfriend in an apparent bid to tap his children's trust fund and shield his assets from the family of a student he killed in a drunken crash.

The 3rd District Court of Appeal ruled Wednesday that John Bailey Goodman, founder of the International Polo Club in Palm Beach, had not notified his two children, their mother, their guardian or the parents of 23-year-old Scott Wilson, who had sued him for wrongful death over the February 2010 crash and were seeking damages.

Read more here.

MR

Biggest Divorce Settlement in History?

From Forbes:

Fast forward to 2013, when a prenuptial agreement is again at the center of a very public billionaire divorce. This time, the jilted wife in question could get, well, “everything”, or near enough: the biggest settlement in history, worth over $5 billion.

Read more here.

MR

Justice Sotomayor Discusses Marriage and Divorce

From the Huffington Post:

After graduating from Princeton University, Sonia Sotomayor married her high school sweetheart, Kevin Noonan. Seven years later, the couple divorced. In this clip from her sit-down with Oprah for "Oprah's Next Chapter," Supreme Court justice Sotomayor opens up about her divorce, the price of success and what life is like for those on the nation's highest court.

Read more and see the video here.

MR

New Family Law TV Shows

The Huffington Post reports that Bravo has new series coming on the newlywed year and divorce.

Read more here.

MR

Stroke after Donating Eggs

From the National Post:

A young Florida woman who suffered a stroke after donating her eggs to a Canadian couple is suing a Toronto fertility doctor and a U.S. egg donor agency for alleged negligence.

Kylee Gilman, 24, says that within hours of having 45 eggs removed from her ovaries at the CReATe clinic, in Toronto, she felt nauseous and began vomiting. The following day, Nov. 12, 2011, she suffered a stroke.

Read more here.

MR

Hat Tip: NC

Nanny Tax

From Jacoba Urist, writing for the New York Times:

If you want to hear a pin drop, ask a room of parents whether they report employment taxes for their baby sitter or nanny. My (admittedly unscientific) conclusion, drawn from four years of Manhattan motherhood, is that many families do not. In a 2011 discussion of nanny compensation on Park Slope Parents, most families reported paying their caregivers completely off the books, while very few said they paid the tax. Susan Fox, founder of Park Slope Parents, suspects the off-the-books number among her readers is well over half.

Read more here.

MR

Guest Post by King: Incarcerated Parents in Department of Social Services Court

By Brian King, King Law Offices

In our years working with the Department of Social Services, both as an attorney for the Department and representing parents, we have often had respondent parents whom have found themselves incarcerated.

In these types of cases, the situation is dire but not impossible. The key is to make reasonable arrangements for child care while in prison. A parent in this situation must make reasonable efforts while incarcerated to protect their constitutionally protected status as a parent.

In In re P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005), the Court held, “N.C. Gen.Stat. § 7B–101(9) (2009) defines a “[d]ependent juvenile” as “[a] juvenile in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.” In determining whether a juvenile is dependent, the trial court “must address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements.”

In In re L.H., 708 S.E.2d 191, (N.C.App., 2011), the Court held, “Respondent father does not dispute that he is unable to parent, but contends that the trial court erred in finding that DSS, and not he, placed Luke with the maternal grandmother. Respondent father further argues that, in any event, the trial court's finding that “neither parent has offered an alternative placement for the juvenile” is not sufficient to establish that he lacks an appropriate alternative child care arrangement. According to respondent father, whether DSS arranged the placement of Luke with his maternal grandmother “should not have a bearing on whether there was an appropriate, alternative child care arrangement.”

In re P.L.P., 618 S.E.2d 241 (NC, 2005) is the leading case on incarcerated parents. In that case, the court held that "Incarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision." In re Yocum, 158 N.C.App. 198, 207-08, 580 S.E.2d 399, 405 (2003). "The key to a valid termination of parental rights on neglect grounds where a prior adjudication of neglect is considered is that the court must make an independent determination of whether neglect authorizing the termination of parental rights existed at the time of the hearing." In re McDonald, 72 N.C.App. 234, 241, 324 S.E.2d 847, 851 (1984). Where "a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect[,] . . . because requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible." In re Pierce, 146 N.C.App. 641, 651, 554 S.E.2d 25, 31 (2001). "The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984).

Essentially, the court has made it clear that the respondent parent who is incarcerated in the State of North Carolina can protect themselves, even in times where they are incarcerated. A parent should (and should be encouraged) to attend parenting classes while in the Department of Corrections, send letters to the children, and most importantly make arrangements for the care of the children. The arrangements for care must be made and present even if the child is in foster care.

Having an attorney that understands this important case law and argument is vital, as the Department of Social Services will often move to terminate the rights of parents in this situation. While difficult, a parent can prevail even in these circumstances.

 

“Baby Veronica” Forum

An announcement from Professor Cynthia Godsoe of Brooklyn Law School:

We are excited to let you know about an online forum about the ICWA “Baby Veronica” case, before the Supreme Court next Tuesday.  It can be found here: http://familyinlaw.typepad.com/

The forum is a discussion among experts on family law, Indian law and adoption including Barbara Atwood; Elizabeth Bartholet;  James Dwyer; Joan Hollinger; Kevin Noble Maillard; Solangel Maldonado; Barbara Bennett Woodhouse.

We hope you enjoy it, and feel free to add a comment (at the bottom). Also, check in again on Tuesday for more discussion.

CA Litigation

Litigants in the family law context in California are challenging the Vexatious Litigant Statute (VLS).  Read the federal court complaint here.

MR

Florida's Alimony Law

Proposed changes to Florida's alimony law are discussed here.

MR

Same-Sex Marriage in France

From Jurist:

France's Senate [official website, in French] on Thursday commenced debate of a bill [text, in French] that would legalize same-sex marriage [JURIST backgrounder] and allow same-sex couples to adopt children.

Read more here.

MR

Hat Tip: Angelique Devaux

Guest Post by Jennifer Smith--Family Law: In the Event of an UnSafe Parent

A divorce is an unforgettable event to a child as they will feel pain and emotional conflict having to choose which parent they to whom they side and the idea that the individuals that pronounce their undying love will no longer stay present in their daily lives. The child will feel as if they are stuck between the conflict, and may see the event as a result of their doing which creates deep psychological imprints on the child.

The child, however, may not realize that the divorce is due to the result of an unfit parent. One of the parents may not provide adequate safety and security to the child which puts them at risk.

This break in safety could be the result of any number of factors:

• Inadequate home security to defend the child from home intrusion (read more about these items and how to protect on securitychoice.com)
• A parent that has little or no self-control due to addictions
• An unfit environment from the friends and relatives of the parent

Family law had been a streamlined process that allowed either parent to make their case and the result being some or no visitation rights but this is beginning to change and become difficult to conduct.

The child will generally be placed under temporary custody to one of the parents or a third-party within the family unit during the divorce process.

The custody of the child will result in the four following arrangements:

• Legal – A parent is given the responsibility for a child’s health and welfare.
• Physical – The child will go with one of the parents and may have an option for joint custody or visitation rights.
• Joint – The child has the opportunity to interact with both parents because they share custody.
• Sole – A child goes to one of the parents that makes the daily decisions of the child (but may still have joint legal custody).

The court will use a number of factors to determine which type of arrangement will come to process based on many factors such as the financial stability of a parent, location, general well-being, and safety.

Safety can be show through a variety of actions:

• Being consistent in emotions and physical contact
• Showing patience with the child
• Avoiding acquisitions and blaming
• Being forgiving
• Not being a victim of one’s lifestyle

The most important factors a family court will use in the case greatly rely on the history of violence, destructive behavior, drug/alcohol use, mental issues, or neglect. It’s unfortunate but many parents will use minor faults, or even the child, to gain custody when it’s apparent that both are fit for the job; it’s generally the result of a bitter breakup.

The child, too, may come as a factor within the decision for which parent gains custody; these factors will be taken into account and used to determine the best outcome for the child.

In all, the legal ramifications of a divorce will ripple through the lives of each individual involved and the children caught between the conflicts. The end result will find closure based on the cases presented by both sides and the history of each individual involved. A child’s well-being and mental stability should become one of the main aspects to cater throughout the process as it will have a profound impact on the child throughout their later years.

Lotto Winner with Child Support Bill

A man from New Jersey, Pedro Quezada, winner of the fourth-largest Powerball lottery drawing (held on Tuesday, March 26), settled for the one-lump sum payment of $211 million, instead of taking the $338 million prize in installments.  The day after, sheriff deputies from Passaic County knocked on his door, confronting him with his overdue child support bill (Quezaka owes $29,000 in payments).    Quezada has, so far, been unreachable, and it is not clear which or how many of his children are involved.  He did say he was going to assist his relatives with his winnings, and Sheriff Richard H. Berdnik advises Quezada to pay off the debt he owes sooner than later because his winnings could be withheld until the debt is settled, or he could be arrested.

Read more here.

MR

 

Ohio Adoptions

Proposed Ohio legislation would help adoptees get access to medical information (as well as other information) from adoption files.  House Bill 61 would allow most Ohio individuals who were adopted access their original adoption files once they become adults.  Birth parents would be able to provide family health information that would be released to the adoptee upon request; if the legislation is approved, it will not go into effect for one year “to give birth parents time to fill out the contact forms.”

As of right now, Ohio law is inconsistent with birth records for some adoptees.  Currently, people adopted before January 1, 1964 have complete access to their adoption file once they become adults; they only have to request the file and pay a $20 fee.  Those adopted from January 1, 1964 until September 18, 1996 are unable to obtain their birth certificates without a court order.

Read more here.

MR

Children's Rights in UK

From Family Law Week:

In a judgment which strongly upheld children's rights under the UNCRC, Lord Justice Moses (sitting with Mr Justice Parker) has held that the UK government's practice of treating 17 year olds as adults, the failure to inform the parents of their child's arrest and the failure to provide an independent, appropriate adult to 17 year old children when detained and questioned at a police station about alleged criminal offences is "inconsistent with the UNCRC and the views of the United Nations Committee of the Rights of the Child."

Read more here.

MR