Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Monday, September 30, 2013

Divorce Lawyer's New Book

From the New York Times blog:

Divorce is becoming “crazier,” according to the Los Angeles lawyer Laura Wasser, though that could have something to do with the clients she has represented, including Kim Kardashian, Maria Shriver and Ashton Kutcher. Men have a reputation for being scoundrels, but Wasser said she increasingly sees women behaving badly. “Wives end up cheating with the math tutor or the swim coach, then snapping, ‘You deserve it! You neglected me!’”

Her new book, "It Doesn't Have to Be That Way" (out Oct. 1 from St. Martin’s Press; $25.99), is meant as a corrective. In it, she offers tips for divorcing like adults, along with a smorgasbord of juicy divorce stories (no names, naturally). Wasser, who has been in the business for 20 years, was once married herself and admits that she’s a sucker for a good wedding. Here, she offers 10 rules for how to get divorced in a civilized manner.

Read more here.


Hat Tip: Naomi Cahn

September 30, 2013 | Permalink | Comments (4) | TrackBack (0)

Saturday, September 28, 2013

Adoption of Embryos

From Time:

As the use of IVF to treat infertility rises rapidly—more than 154,000 cycles were performed in 2011, compared with roughly 146,000 in 2010, according to the Society for Assisted Reproductive Technology—couples are often faced with the agonizing decision of what to do with their leftover embryos. Do they donate them, give them to research, discard them or leave them in storage indefinitely?

In theory, embryo donation seems like the ideal solution: You have embryos you don’t want. Other people desperately want them. But of course, it’s hard to for many couples to get past knowing that someone else would be raising their biological children (or their siblings unknowingly mating with them—a risk known as “accidental incest”).

Read more here.

September 28, 2013 | Permalink | Comments (1) | TrackBack (0)

Friday, September 27, 2013

Facebook Adoption

Read about a family adopting thanks to Facebook here.


September 27, 2013 in Adoption | Permalink | Comments (3) | TrackBack (0)

Thursday, September 26, 2013

Lawsuit challenges Kentucky same-sex marriage ban

From The Jurist:

The Kentucky Equality has filed a lawsuit  to overturn Kentucky's amendment banning same-sex marriage. The constitutional amendment, passed in 2004 with approval of 75 percent of voters, allows only a marriage between man and woman to be valid or recognized. The lawsuit, filed Tuesday, argues that this amendment was passed in violation of the Equal Protection and Due Process clauses of the US Constitution. In addition, the organization claims that such violations are prohibited by Section 2 of Kentucky's Constitution, guaranteeing freedom from "absolute and arbitrary power."

For the full text of the article, click here.



September 26, 2013 | Permalink | Comments (1) | TrackBack (0)

Adoptions from Foster Care on Rise

From USA Today:

The percentage of kids adopted from foster care is swinging upward, a new report suggests.

Last year, 13.1% of children in foster care were adopted, an increase from 12.6% in 2011, according to statistics released today by the Department of Health and Human Services' Administration for Children and Families. The report highlights data from the Adoption and Foster Care Analysis and Reporting System.

Read more here.


September 26, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 25, 2013

International adoption- Saving orphans or child trafficking?

Kevin Voight has published International adoption: Saving orphans or child trafficking?  on  

Srey Powers' earliest memories in Cambodia are "waking up each morning, climbing trees to forage for fruit and berries with my cousins, and sitting around a fire each night with the one meal provided," the 19-year-old said.

Born in a refugee camp, Powers remembers traveling at age 6 for two days by moped, car and foot "only to be left at a building with many infants and toddlers and strange adults," she said.

At the orphanage, she met her new American family -- Claudia and Patrick Powers from Long Island, New York.

"From day one, I had a bond with my mother. Our first language was through playing soccer," recalled Powers, who was named most valuable player after leading her high school to the 2010 girls soccer state championship.

Powers was adopted from Cambodia in 1999.

Two years later, the U.S. closed Cambodia to adoptions due to allegations of corruption.

The U.S. adoption story of another 19-year-old is different.

"When I was 13, I was sold," said Tarikuwa Lemma, who grew up in Ethiopia.

She and her two sisters were adopted by an Arizona family who were told Lemma's parents died of AIDS.

"The truth was that our mother had died as a result of complications during childbirth, and our father was alive and well," said Lemma.

These tales paint the divide on which, experts say, the legal and ethical debate on international adoption rests: Do the risks of abuse in a minority of cases outweigh the larger good that most adoptions provide?

For the full text of the article, click here.



September 25, 2013 | Permalink | Comments (1) | TrackBack (0)

Stay-At-Home Dads

From the Atlantic:

Every so often, a trend piece comes along that heralds the rise of the stay-at-home dad. More fathers are choosing childcare over career, we're told, and it represents yet another shift towards gender equity in the age of the female breadwinner.  

Today, while perusing a bit of Census data, I was reminded of why those stories are making a big deal out of a microscopic trend.

Read more here.


September 25, 2013 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Tuesday, September 24, 2013

Alimony reform advocates retooling legislation

From the Sun Sentinel:

Permanent alimony soon may be a thing of the past for Floridians who get a divorce.

Florida lawmakers are looking into rewriting the state's comprehensive divorce law, which some critics call archaic.

Some other key changes being considered include:

• Seeking a reduction in payments when divorcees retire.

• Automatic payment cuts if an ex-spouse loses a job or takes a salary reduction.

• Changing the way child custody is awarded.

• How to calculate alimony.

"Both sides agree that additional reform is necessary," said Alan Frisher, a Melbourne-based financial adviser who heads the group Florida Alimony Reform and has been pressing for legislation for two years.

For the full text of the article, click here.




September 24, 2013 | Permalink | Comments (1) | TrackBack (0)

Pro Bono Collaborative Divorce in FL

Florida has its first pro bono collaborative divorce: the case is part of a joint project of the Collaborative Divorce Institute of Tampa Bay, Bay Area Legal Services, Hillsborough County Bar Association Collaborative Law Section, and Tampa Bay Collaborative Divorce Group.

Here and here are press coverage.  Here is the coverage by the Tampa Bay Times:

Pamela Burton and Tyler Nelson became the first in Florida, at least according to their (collaborative) lawyers, to have a pro bono collaborative divorce. This meant their counsel, plus a psychologist and an accountant involved in reaching a mutually agreeable settlement instead of engaging in a traditional court fight, all worked for free.


September 24, 2013 | Permalink | Comments (2) | TrackBack (0)

Monday, September 23, 2013

In Re Adoption of C.B.M.: Adoption Must Be Set Aside When Termination Order Is Reversed

In a recent opinion handed down by the Supreme Court of Indiana, the adoption of twin children was set aside after a reversal of the termination of the birth mother’s parental rights.  In re Adoption of C.B.M.,  ---N.E.2d ----, (Ind. 2013).

C.B.M. and C.R.M., fraternal twins who were determined to be children in need of services were removed from their natural mother’s home in 2006.  Id. at *1. Approximately eighteen months later, the termination of parental rights (TPR) proceedings began and were granted six months later “over the strong objections of the twins’ guardian ad litem.”  Id.  The natural mother promptly appealed the judgment.  Id.  A few months later, the foster parents petitioned to adopt the children and the petition was granted approximately ten weeks after that.  Id.  However, after a couple of months had passed, the court of appeals reversed the judgment terminating the birth mother’s parental rights. Id.

The dispute in the supreme court centered on two issues: “whether the adoption mooted Natural Mother’s TPR appeal because of her failure to seek a stay of the TPR judgment pending appeal,” and “whether letting the Twins be adopted without Natural Mother’s notice or consent violated her Due Process rights.”  Id. at *3.  The court considered the situation “no-win” but eventually concluded that the “no-consent adoption that followed on [the] heels” of the TPR judgment “became voidable;” thus the trial court abused its discretion in failing to set aside the adoption. Id. at *8. 

The Indiana Supreme Court held that the birth mother was not required to file a stay of the TPR action “to preserve a meaningful appellate remedy” and that the birth mother was “entitled to relief from the adoption judgment when the TPR was ‘reversed or otherwise vacated’ on appeal.”   Id. at *5-6. 

 For the text of the opinion, click here.


September 23, 2013 in Adoption | Permalink | Comments (3) | TrackBack (0)

Guest Post by B. Robert Farzad: California Adoption and Its Impact on Ongoing Co-parenting and Visitation Rights

California adoption seems simple enough. The adoptive parents adopt the child and take over all parental obligations. Generally, that is the way it works. From the time the adoption takes place, the adoptive parents typically take over the formal and legal relationship of being parents to the child. That legal relationship means one hundred percent of the rights and one hundred percent of the duties that go with it.

Separately, the birth parents of the adopted child are relieved of all of their parental duties and responsibilities and no longer have any parental rights over the adopted child.

California Family Code 8616 and 8617 are helpful reading on this topic.

That is the general rule. Are there exceptions? In this article, we will discuss a couple.

First, let’s be clear on what section 8617 states:

“The birth parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the adopted child, and have no right over the child.”

Clear enough right?                                        

But now let’s look at something called “second-parent adoption”. One of the leading California cases on the subject is called Sharon S. v. Superior Court. It’s a 2003 California Supreme Court decision. In that case, the Court held:

“Most people who place their children with unrelated adoptive parents presumably desire to be "relieved of all parental duties towards, and all responsibility for, the adopted child," as section 8617 declares, once the adoption is final. But, as noted, section 8617 neither prohibits a birth parent and another qualified adult from jointly waiving application of the statute in order to coparent an adoptable child, nor prohibits a court under such circumstances from ordering an otherwise valid adoption.”

See what the Court did? The Court essentially stated that, under certain circumstances, the biological and adoptive parents can choose to agree to a different set of rules than laid out in section 8617 by “jointly waiving” it. Of course, it is very important to get experienced adoption lawyers involved to make sure the correct language is drafted and signed and clearly states the intent of all of the parents.

The second way is a “kinship adoption agreement.” These can get complicated but the basic premise is, under specific circumstances, biological parents and other birth relatives can continue to have contact and even visitation after the child is adopted if a proper kinship adoption agreement is approved by the court in the actual adoption proceeding.

Reading Family Code section 8714.7 is a good starting point for understanding such agreements.

So it seems ongoing visitation rights as a result of an adoption are not always black and white. Both the adoptive and biological parents have options available to them and we have briefly discussed two of those in this article.


About the Author: B. Robert Farzad is a divorce and family law attorney and president of Farzad Family Law, APC. He loves helping spouses and parents through difficult chapters of their lives. Have questions, contact him at 1851 East 1st Street, Suite 1150, Santa Ana, CA 92705. (714) 937-1193.

Nothing contained in this article is intended nor should it be construed as legal advice. This article only discussed certain aspects of California law. Please consult with an attorney in your State if you have any legal questions about your specific situation or case.

September 23, 2013 | Permalink | Comments (4) | TrackBack (0)

Sunday, September 22, 2013

Overseas adoptions rise -- for black American children

From CNN:

Elisa van Meurs grew up with a Polish au pair, speaks fluent Dutch and English and loves horseback riding -- her favorite horse is called Kiki but she also rides Pippi Longstocking, James Bond, and Robin Hood.

She plays tennis and ice hockey, and in the summer likes visiting her grandmother in the Swiss Alps.

"It's really nice to go there because you can walk in the mountains and you can mountain bike ... you can see Edelweiss sometimes," said the 13-year-old, referring to the famous mountain flower that blooms above the tree line.

It's a privileged life unlike that of her birth mother, a woman of African American descent from Indianapolis who had her first child at age 15. Her American family is "really nice but they don't have a lot of money to do stuff," said Elisa, who met her birth mother, and two siblings in 2011. "They were not so rich."

While the number of international adoptions is plummetting-- largely over questions surrounding the origin of children put up for adoption in developing countries -- there is one nation from which parents abroad can adopt a healthy infant in a relatively short time whose family history and medical background is unclouded by doubt: The United States.

For the full article, click here.


September 22, 2013 in Adoption | Permalink | Comments (1) | TrackBack (0)

Saturday, September 21, 2013

WI Supreme Court Enforces Surrogacy

From World News Report:

The question of whether surrogacy agreements are valid in Wisconsin has had no clear answer until recently. On July 11, the Wisconsin Supreme Court announced that traditional surrogacy contracts are enforceable, ruling on a case in which a surrogate mother who decided during pregnancy to seek custody and placement of the child she was carrying. The court's decision clears up an area of law that has not been settled by statute or case law for decades.

Read more here.


September 21, 2013 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Friday, September 20, 2013

Pa. judge orders clerk to stop issuing marriage licenses to same-sex couples

From the Christian Science Monitor:

Marriage licenses will no longer be given out to same-sex couples in Pennsylvania, a state judge has ruled, putting into limbo the legal status of more than 100 couples who married recently despite a long-standing ban on same-sex marriage in the state.

Pennsylvania Commonwealth Court Judge Dan Pellegrini ordered Montgomery County Register of Wills D. Bruce Hanes on Thursday to stop issuing the licenses, which 174 couples received since July 31.

Judge Pellegrini ruled that Mr. Hanes did not have the power to violate the state law defining marriage as between a man and a woman, which has been in place since 1996. Pennsylvania is one of 37 states that ban, or do not recognize same-sex marriage.

For the full text of the article, click here.


September 20, 2013 | Permalink | Comments (1) | TrackBack (0)

High Income Earners & Child Support

From NHBR:

Recently enacted changes to the state’s child support formula and guidelines should have a dramatic effect on the amount paid by high-income earners.

The amendment – enacted in the previous legislative session -- took effect July 1. It was the result of a 2009 economic analysis/study prepared by the University of New Hampshire.

Under the previous formula and guidelines, an obligor paid child support based on a percentage of his or her net income. The percentage was based on the number of children of the parties – 25 percent of net income for one child, 33 percent for two children, 40 percent for three, and 45 percent for four or more.

The previous guidelines failed to incorporate in a substantive way the obligee’s income in determining the amount to be paid by the obligor.

Read more here.


September 20, 2013 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Thursday, September 19, 2013

Decade-long visitation battle rages on between alleged insider trader and whistle-blowing ex-wife

Decade-long visitation battle rages on between alleged insider trader and whistle-blowing ex-wife

From the ABA Journal:

More than 10 years and 600 court motions later, David Zilkha and his ex-wife, Karen Kaiser, are still fighting over the visitation plan for their two children, a set of twins now 12 years old.

The divorce was filed in 2003, and granted in 2005. Zilkha, a former investment advisor, told the Associated Press that he hasn’t seen his children in four years. Kaiser maintains that Zilkha can see the children under supervised visitation, and has refused to do so. Zilkha says that Kaiser refused to schedule "unification therapy" for Zilkha and the children. A British citizen who now lives in London, Zilkha also claims that the conditions of the supervised visitation cost more than $5,000 per visit. Kaiser and her lawyer declined to discuss the case with the AP.

... child visitation isn’t the only issue to cause strife with the former couple. In 2009, Kaiser gave the Securities and Exchange Commission emails she’d taken from Zilkha’s home computer. The SEC alleged that Zilkha, a former Microsoft employee who later joined Pequot Capital Management, provided insider information about Microsoft to Pequot, which resulted in the company making more than $14 million in Microsoft trades. Company founders agreed to settle the insider trading charges for $28 million, according to the AP, and the SEC also got a $250,000 judgement against Zilkha.

For the full text of the article, click here.


September 19, 2013 | Permalink | Comments (1) | TrackBack (0)

Grandparents as Primary Caregiver

From LA Times:

As American parents have grappled with financial peril and other woes over the last decade, grandparents have stepped in to help. Grandparents were the main caregivers for more than 3 million children in 2011 — a 20% increase from the turn of the millennium, the Pew Research Center reported Wednesday.

The numbers surged during the economic downturn and have leveled off in its aftermath, Pew said in a report based on an analysis of U.S. Census Bureau data. Sixty percent of those children still have at least one parent at home, but grandparents are responsible for most of their needs.

Read more here.


September 19, 2013 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Wednesday, September 18, 2013

Scharf: "Psychological Parentage, Troxel, and the Best Interests of the Child"

Rebecca Scharf (UNLV, William S. Boyd School of Law) has published Psychological Parentage, Troxel, and the Best Interests of the Child in the Georgetown Journal of Gender and Law, 13 Geo. J. Gender & L. No. 3, 615 (2012).

Here is the abstract:

This article explores the many ways children are harmed by the law’s failure to ensure that the bonds they have developed with their psychological parents are not broken; it therefore proposes ways that courts can better protect children from the psychological harm of having an individual who has acted as their parent permanently removed from their life. It suggests that what is needed is a framework that allows continued contact by “psychological parents” with whom children have formed attachments without unnecessarily intruding on the fundamental liberty interest of parents at issue in Troxel v. Granville – that is, “the interest of parents in the care, custody, and control of their children.” Such a framework would not only bestow standing on a psychological parent to petition for visitation, but also grant standing for the child himself to petition for visitation with a psychological parent.

In the landmark Troxel v. Granville case, the U.S. Supreme Court struck down a Washington state third party visitation statute allowing any person to petition for visitation at any time as “breathtakingly broad,” but failed to articulate a clear standard under which third parties could petition for visitation, if at all. Without such a provision, however, thousands of children across the country face the frightening possibility that their legal parents may suddenly and permanently remove a psychological parent from their lives, often causing tremendous hardship to the child.

Although other scholarship has focused and critiqued Troxel’s failure to articulate a clear standard for third party visitation, this article focuses much more on the social science and psychological research related to the attachments children form with these “psychological parents” and the risk of significant harm to the child when those attachments are broken, often permanently. Set against this background, it serves to highlight the urgency behind ensuring that courts provide an avenue for both third party psychological parents and the children affected by the potential severing of those attachment bonds, to petition for legal visitation which would allow that bond to continue.

Thus, what is needed is a provision that allows both children and third parties standing to petition for visitation when that third party meets the qualifications to be deemed a psychological parent. Furthermore, once the court has found that there is standing, it would then still make a separate determination as to whether to grant visitation. In doing so, in recognition of the legal parent’s Constitutional rights as a parent, the court would employ a rebuttable presumption that the parent’s wishes are in the best interests of the child. In assessing, however, whether the petitioner has rebutted the presumption, the court would be required to make specific findings of fact as to the psychological harm the child would likely suffer should visitation be denied and all contact with the psychological parent cut off. Only by requiring the court to specifically focus on this specific potential harm, rather than merely engaging in a generalized “best interest of the child” analysis, will the child’s interest in not having the attachment bond with the psychological parent severed be protected.


September 18, 2013 | Permalink | Comments (1) | TrackBack (0)

3 in 10 UK Parents Live with Adult Child

From the Guardian:

Three out of 10 parents (27%) have at least one adult child, aged between 21 and 40, still living with them at home, said the National Housing Federation. Two-thirds of those parents (66%) said this was because their son or daughter could not afford to rent or buy their own place.

The survey of more than 1,100 parents of adult children found that nearly nine out of 10 people (89%) believe there is not enough affordable housing in the UK.

Read more here.


September 18, 2013 | Permalink | Comments (1) | TrackBack (0)

Tuesday, September 17, 2013

Dwyer: "The Relationship Rights of Children"

James G. Dwyer (William & Mary Law School) has published The Relationship Rights of Children, Cambridge University Press (2006).

Here is the abstract:

This book develops a comprehensive and foundational account of children's moral and constitutional rights in connection with state decisions to create or dissolve legal and social relationships between children and adults. The theory creates a framework for critiquing laws governing parentage (paternity, maternity, adoption), custody of children by parents and non-parents, child maltreatment intervention, and termination of parental rights.


September 17, 2013 | Permalink | Comments (2) | TrackBack (0)