Family Law Attorneys' Letter to Santa Claus

Not California-centered, but pretty good anyway.    Tip of the red hat with the pom-pom to Gregg Herman.

Celebrity Divorce Without Tabloids: It Can Be Done!

Without noise, paparazzi, or even appearance on a public docket, Tim Duncan and his ex finalized their divorce by settling it, in a non-public document.  As with the Schwarzenegger/Shriver settlement, they decided that a long bitter public court battle wasn't anyone's best career move.

...and incidentally, an acknowledgement for the pointer and a hat tip, to Peter Salem of the AFCC,  whose (co-edited) Family and Divorce Mediation: Models, Techniques and Applications was name-checked in the Onion article about Duncan!

Death Row Inmates and Custodial Rights

29 year old Nancy Gonzalez was a federal corrections officer when she was impregnated by death row inmate Ronell Wilson who has been convicted of murdering two police officers. Their son, Justus, is now seven months old is in the custody of one of Gonzalez’s relatives. Wilson request for parental rights has been denied since he is already "civilly dead". Gonzalez has lost custody of Justus since she intentionally became pregnant during the commission of a crime (having sex with a death row inmate while a correction’s officer), knowing that neither parent could care for the child.

Gonzalez also admitted to going through an "alcohol and cocaine binge" when she was eight months pregnant and to also driving while intoxicated with Justus in the car at least twice. 

http://www.nydailynews.com/new-york/guard-impregnated-killer-loses-custody-baby-article-1.1521047

So it appears, at least in New York, death row inmates lose custodial rights to their children since they are considered "civilly dead". 

Duty to Disclose

Stuart Strumwasser and Jennifer Johnson got a divorce in New York in 2007. Shortly before filing for divorce, Johnson told Strumwasser that she was going to San Francisco to visit her brother. While in San Francisco, Johnson purchased stock in Twitter. She filed for divorce six months later. The stock was never disclosed or addressed in the divorce settlement. Strumwasser discovered the stock well after the divorce was finalized. As part of the divorce settlement, Johnson was ordered to pay $2,465 per month in child support although he was making a modest income because Johnson demanded he pay support based on income substantially higher than his actual income.

That Twitter stock is now valued at between $10 and $50 million. Strumwasser is requesting $120,000 plus 30% of her Twitter shares.

http://www.nydailynews.com/new-york/brooklyn/twitter-investor-hid-earnings-child-support-dad-article-1.1530653

In California, if a spouse fails to disclose an asset, it is considered an omitted asset. The court reserves jurisdiction (the power to resolve the issue) over the disposition of omitted assets even after a judgment is entered. If the court finds that the omission was intentional or fraudulent, then there are consequences to the party who fails to disclose. Such consequences  can include assigning the entire asset or the entire value of the asset to the other spouse regardless of whether that asset would have been considered community or separate property. Since the penalties can be this severe, it’s important to always disclose everything during a dissolution. In California, spouses not only have a duty to disclose everything (assets and debts) to the other party, they have a duty to update any financial information if it changes during the case. 

Family Law Goes To The Movies

There’s a “Winter RomCom” which bears on family law this season: Vince Vaughn’s comedy of assisted-reproductive-technology, “Delivery Man” (short non-spoiler synopsis: he’s been a artificial insemination donor, and discovers that, due to a paperwork snafu, he’s the father of 500+ children). Haven’t seen it yet, but I’m hoping it has a bit more of legal reality infused in it than past “family law” movies, comic or serious, including “Mrs. Doubtfire”, “Kramer v. Kramer”, “Intolerable Cruelty” (a prenup comedy) and “Next Best Thing”, a fairly dismally received film (Rotten Tomato-meter: 19%)  on which, I must admit, I received a screen credit (I and my partner are right there, between the caterer and Madonna’s yoga consultant), but couldn’t manage to get director to make the courtroom scenes quite right.

Believe Half of What You See*: The "Skier's Fetus Custody Case", And Other Internet Rumors

To say that the Uniform Child Custody Jurisdiction and Enforcement Act   (UCCJEA) isn't usually the stuff of the internet tabloids, and the "entertainment news" shows and sites is an understatement.   So when it does make an appearance,  it's frankly not horribly surprising when the tabloids, reputable online news outlets, and even the "Grey Lady" of American news media, don't get the details exactly right.

The short version of the story (and I haven't read the full trial court record either in New York or in California) seems to be that in May, a New York judicial officer made an odd, and fairly clearly wrong-headed decision on the issue of custody jurisdiction, kicking the case back to California.  A judge in California, faced with an apparent "we don't want it!" from the New York court, then decided to act, since, at that point, no other court was willing to do so.  Several months later, the appellate court in New York, in what is characterized as a "scathing" opinion, reversed the New York trial court's mistake.

Is any of this really news?   Judges (and other judicial officers) sometimes make wrong decisions.  Sometimes, they even make stupidly wrong decisions.  That's what the appellate process is about.






*"People say believe half of what you see, and none of what you hear."   Norman Whitfield and Barrett Strong:   Heard It Through the Grapevine

Demographics of Child Support Collection

According to the U.S. Census, of the $37.9 billion owed in child support, only $14.4 million was paid in 2011. Where the child had contact with the non-custodial parent, the full amount was received 49.1 percent of the cases. Where the child did not have contact with the non-custodial parent, the full amount of child support was only received 30.7 percent of the time. 

Most custodial parents (81.7%) are mothers. According to the Census study, the more contact a child has with the non-custodial parent, the more likely the custodial parent will receive the full amount of child support. Other factors which were found to be associated with a higher likelihood of receiving the full amount of child support, according to the Census study, were the custodial parent having at least a bachelor’s degree (50.6%), being divorced (48.4) and being age 40 or older (48.4). 56.3 percent of parents sharing joint physical or legal custody received/paid the full amount of child support. This was the highest observed rate in the study.

Factors associated with a lower likelihood of receiving the full amount of child support, according to the study, were being under 30 years old (36.6%), having less than a high school education (36.4%) and never having been married (35.1%).

http://www.census.gov/newsroom/releases/archives/children/cb13-191.html

Custody while Incarcerated

Dorothy Maraglino, 38, was pregnant when she was put in jail in May 2012 and charged with the murder of Brittany Killgore, a 22 year old marine’s wife whose husband was stationed in Afghanistan at the time of the murder. The child, a girl, was born in July 2012. Louis Ray Perez, 47, also a marine, is the father of the child. Perez is also charged with the murder, conspiracy, kidnapping, torture and attempted sexual battery of Killgore.

Maraglino gave custody of her child to Becky Zagha, 38. She says that she didn’t know Zagha well, but Perez asked her to give custody to her. Problems arose when, according to Maraglino, Zagha broke her promise to live in San Diego County and bring the child to weekly visits. Zagha moved to central California soon after the child was born. Zagha apparently also visited Perez and Maraglino frequently before the baby was born, but visits significantly decreased after she took custody.

Last month, Maraglino attempted, in a Fresno Court, to remove the child from Zagha and place her with Maraglino’s sister in South Carolina. The Court declined the request. Maraglino is now appealing that decision.
http://www.utsandiego.com/news/2013/Nov/02/marine-wife-accused-killer-custody/

A parent that is incarcerated doesn’t necessarily immediately lose their parental rights. Depending on their crime, and assuming that it doesn’t involve violence towards the other parent or the children, the incarcerated parent may retain, at least legal custody (decision-making) rights. Visitation can be more complicated and, obviously, overnight visits cannot typically happen. If both parents are incarcerated, in the absence of other arrangements regarding the custody of the children, the state will take custody of the child(ren) and they will be placed in foster care. Similar to any other custody dispute, unless there are written court orders for visitation, there won’t necessarily be visitation unless the custodial parent/guardian chooses voluntarily, to bring the child to the incarcerated parent.

While Zagha may have "promised" to bring the child to Maraglino every week, if there weren’t court orders, then there is no remedy if she doesn’t do that. Once Marglino and Perez gave Zagha custody without any other orders, Zagha was not obligated to bring the child to either parent for visits.

4000 Answers

I just answered my four thousandth question on Avvo.  Think I'll rest.

Child Support Obligation for a Sperm Donation?

A Kansas man, William Marotta, responded to a Craigslist ad placed by a same sex couple seeking a sperm donor. One of the woman impregnated herself using a catheter and syringe without any physician’s assistance. A child was born from this process in 2009, she is now 4 years old. Marotta and the couple, Angela Bauer and Jennifer Schreiner, signed a written agreement where Marotta relinquished any and all parental rights and Bauer and Schreiner held him harmless for any child support claims raised by any entity or person. The couple split up in 2010 and share joint custody their eight children, including the one that Marotta biologically fathered.

Due to some health issues resulting in financial troubles, Bauer and Schreiner applied for public assistance. The Kansas Department for Children and Families demanded that they disclose the identity of the sperm donor or else the child would lose health insurance. The couple released Marotta’s name and the state opened a child support case against him. The state argues that the written agreement signed by the couple and Marotta is invalid because the insemination was not performed by a licensed physician.

Marotta and his wife are fighting any obligation owed for this child. The Kansas court is likely to reach a decision by the end of this year. 

http://usnews.nbcnews.com/_news/2013/10/25/21150280-kansas-judge-hears-arguments-in-case-of-sperm-donor-sued-for-child-support

Non-traditional couples and parenting are becoming increasingly more common. Kansas, at least in the articles I have seen, has not raised the issue of going after the non-custodial, non-biological parent for reimbursement, or acknowledging that the non-birth parent was the other parent of this child rather than the biological father who, all parties agree, has had no contact with this child, and has no relationship with the child or Bauer or Schreiner. Kansas is not the only court that has addressed the issue of holding a sperm donor responsible for child support for their biological children resulting from the donation. Most of those cases that do hold the donor liable involve a father who has an active role in the child’s life or who holds himself out to be the child’s father.

Legal Parents

In June 2008, in Carson City, Nevada, partners Sha’Kayla St. Mary and Veronica Lynn Damon had a child. Damon’s egg was used with donor sperm. St. Mary carried the child. St. Mary was listed on the child’s birth certificate on the mother and a year later, she signed an affidavit naming Damon as the biological mother.

The mothers had a co-parenting agreement and broke up when the child was about a year. St. Mary petitioned for custodial rights. A lower court judge ruled that St. Mary had no biological or custody rights since she was only the surrogate and they refused to consider a joint parenting agreement both mothers signed before the child was born. The Nevada Supreme Court disagreed. The Court ruled that the joint parenting agreement was more than a surrogacy agreement and St. Mary assets that she is the legal mother of the child in addition to Damon, not instead of Damon. Nevada’s Parentage Act does not prevent a child from having two legal mothers.
http://www.ajc.com/news/ap/nevada/surrogate-mom-can-seek-child-custody/nbFSj/

In California, Jerry Brown just recently signed a bill that allows a child to have more than two legal parents. This bill is in response to the changing family structure and the increasing number of same sex couples having children. The bill is to allow a courts to recognize the roles of all parents and to not separate a child from a figure that he/she knows as a parent.
http://www.latimes.com/local/la-me-brown-bills-parents-20131005,0,7226241.story

Spousal Privilege in Same Sex Couples

Bobbie Jo Clary entered into a civil union in Vermont with her domestic partner Geneva Case in 2004. Bobbie Jo is now a defendant in a murder case in Kentucky. Judge Susan Schultz Gibson is not allowing Geneva Case to assert spousal privilege in order to refuse to testify against Bobbie Jo. Prosecutors claim that Clary admitted to Case that she killed a man and that Case saw Clary cleaning blood from his van a couple of years ago.

While same sex marriages are recognized in Vermont, they are not in Kentucky. Despite that, Judge Gibson indicates that the partners needed to take further action to convert their civil union into a marriage which they did not do. So, technically, they aren’t married under Vermont law either. Judge Gibson does not have to consider the constitutionality of the marital privilege for same sex couples because they are not technically married in any state.  Still, this raises an interesting issue of what Kentucky would have done if these parties had converted their union into a marriage. 

http://www.abajournal.com/news/article/spousal_privilege_doesnt_apply_to_woman_testifying_in_same-sex_partners_mur/?utm_source=maestro&sc_cid=130925BF&utm_campaign=weekly_email&utm_medium=email

Medical Marijuana and Custody

With medical marijuana becoming more common, both in growing and in prescriptions, it has raised the issue of the effect of medical marijuana and child custody. The general rule in California is the best interest of the child(ren). Despite having a valid prescription/license, there are an increasing number of custody disputes involving medical marijuana. This does not appear to be state specific and is becoming an issue in many states.

For example:
In Michigan, after deeming their home unsafe for a child because both parents are medical marijuana patients and marijuana growers, the state removed six month old Brielle from her parents' custody.
 http://www.wlns.com/story/23486257/state-takes-medical-marijuana-caregivers-child-away

http://www.mlive.com/lansing-news/index.ssf/2013/09/lansing_marijuana_caregiver_fi.html

In San Diego County, California, two children were removed from the home of Michael Lewis and Lauren Taylor. Lewis, a Gulf war veteran was exposed to chemicals that cause debilitating migraines has a prescription for medical marijuana. Taylor tested negative in every drug test given and there was no evidence of neglect or abuse.
http://www.courthousenews.com/2013/08/12/60182.htm

In Colorado, a couple claims that were denied custody and were not allowed to adopt their ten month old great-granddaughter because both are medical marijuana patients. The child lived with them for five months before being removed by her mother. The state intervened and placed the child in foster care.
http://www.koaa.com/news/couple-claims-they-were-denied-custody-because-of-medical-marijuana-use/#_

 Since this is a relatively new change, even though there is a steadily increasing number of medical marijuana patients and growers, there isn’t a law in California that addresses medical marijuana specifically.   While there is no set definition of "best interest of the child", a court uses a set of factors to make this determination, as well as any other information it deems relevant.  One of the factors used in deciding the best interest of the child(ren) is the "habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent" (Family Code 3011(d)). For now, it’s best to treat medical marijuana use like any other prescription medication. The general "rules" for prescription medication apply here, such as do not smoke in front of the children, keep it in a safe place out of reach of the children, do not ingest so much that you will be unable to properly care for the children, do not drive the children while under the influence, and so on.

Choose your Monitor Wisely!

A Maine woman is charged with endangering the life of a child in a child abduction case. Jennifer Dore from Maine was supervising a visit between BethMarie Retamozzo and her children last month. Retamozzo drove away with the children and was lost in traffic. Dore did not report the incident to the authorities and spoke with them more than five hours later when the police contacted her. 

The children were reported missing by their grandmother on August 15. Retamozzo and the children were found more than 1,100 miles away sleeping in their car at a rest stop on Interstate 95 in South Carolina. The police went to South Carolina and returned the children to Maine on August 26.

Dore was not a professional monitor, she was an acquaintance of the family and was selected by the parties to monitor the visits. She was not paid for her services. She is scheduled to appear in court on November 5.

http://www.pressherald.com/news/child-visitation-supervisor-charged-in-abduction-case_2013-08-29.html

In California, you also have an option to select a non-professional monitor to supervise visits. There can be a number of benefits in selecting a family friend or relative to monitor visits: it’s cheaper, there can more flexibility in time and locations of visits, the children may be more at ease in front of people they already know just to name a few. That said, be careful in selecting a monitor. If supervised visits are appropriate, then there are concerns about the children’s safety while with that parent. In selecting a monitor, the person must be someone you trust and that will protect the children, even if that requires preventing the supervised parent from doing or not doing something. Especially with family friends and/or relatives of the supervised parent, this can be difficult to do since they may feel loyalty to that parent. 

Being a monitor is a big responsibility and it’s important that you explain their duties and responsibilities. If they are unwilling to perform those duties, then you’re better off selecting a different monitor or paying a professional monitor.

Until Death, or Sorcery, Do You Part...

Apparently, traditional marriages contracted in Swaziland cannot be dissolved.  Ever.  Unless the wife is found to have committed adultery, or witchcraft, at which point her husband can return her to her "parental homestead".

Thanks and a hat tip to Jeremy Morley.

Parents: your legal guide to Kids and The Law: (free from the California State Bar!)

Just in time for school!   Here it is!

SAME-SEX UNIONS: THE STATE IN THE STATES

    A decade ago, my (law) partner* and I worked on writing same-sex “union” contracts from scratch.**   There’s been a sea-change since then, but the wave is still rolling in, and exactly where it is on a given day, and what we’re advising our clients on a given day, is still very fluid.

IN CALIFORNIA

    In 2004, California adopted “new” Registered Domestic Partnerships (NDP’s).  California NDP’s were thereafter to be treated as having the same legal rights and responsibilities as spouses under California law.  

    This was, however, the era of state and Federal “Defense Of Marriage” Acts.   Under Federal law, and under the law of (then most other) states, NDP’s were not recognized as “spouses” for any purpose, notwithstanding whatever California law had to say about the subject.  By a rough count at that time, Federal laws and regulations referred to “spouses” in a couple of thousand places. This meant, among other things, that California NDP’s had no spousal federal tax rights or benefits, had no spousal rights in connection with any employee benefit plan covered by ERISA, could not file a joint bankruptcy, had no spousal or family rights in regard to immigration, and that none of the spousal rights California conferred were necessarily “portable” to any other state. 

    Following years of court battles, California now permits same-sex couples to marry, i.e., they’re “spouses” not just in effect, but by actual label.  The NDP framework however, still remains available and in place.

IN THE REST OF THE COUNTRY: LABELS STILL MATTER

   
    Federal law and Federal practice, in regard to same-sex partnerships, is slowly changing.  Since Congress has not yet acted to make wholesale changes in Federal law, or to explicitly repeal all parts of the Federal DOMA, these changes are still being made on a department-by department basis.  As noted elsewhere on the blog, both the Treasury Department (IRS) and the Labor Department (ERISA) have now stated that they will recognize any couple designated as “spouses” by the law of a state to be “spouses” for purposes of their Federal regulations.      To date, they have indicated that couples labeled as something other than “spouses” by the law of the state or country where they “contracted the relationship” will not be treated as spouses.

    Exactly how and when remaining Federal laws, regulations, and practice will change remains unclear; equally unclear is whether any of the changes will be given any retroactive effect.

    It also seems likely, after the Supreme Court next addressees the issue that states will no longer be able to decline to recognize “marriages” contracted between same-sex couples from other states.  This result too will probably not carry over to “civil unions”, “domestic partnerships” etc., since those states don’t recognize such status for their own citizens.

    So, for the moment, “labels still matter”.

*Not my law partner any more, but still my wife, now a judge...
**or from duct tape and general contract law.  See Gould-Saltman, D. J., and Gould-Saltman, R.F. (2002) "Gay and Lesbian Marriage and Its Alternatives"  2002 Family Law Update, Brown, R. and Morgan, L. eds,  Aspen Law & Business.

Visitation Rights with Children Conceived by Rape

In Massachusetts, a rape victim became pregnant from the rape and gave birth a child in 2009. She was 14 years old at the time, the father, Jamie Melendez, was 20 at the time she got pregnant. Melendez was convicted of rape in 2011 and sentenced to 16 years of probation. One of the conditions of his probation was that he had to initiate proceedings in family court and comply with the court orders until the child becomes an adult. One of the orders made by the court was that Melendez pay $110 per week in child support.  

       Once he was ordered to pay child support, Melendez requested visitation rights with the child. He offered to withdraw the request for child support if he did not have to pay the support. 

     Massachusetts, along with 30 other states currently have no laws preventing fathers being given parental rights to children they fathered through a rape. California is not one of the 31 states and has a specific statute that restricts the visitation rights of pedophiles, convicted rapists, and also denies visitation rights to people convicted of rape with any children conceived from that rape. Federal legislation, the Rape Survivor Child Custody Act, was introduced in July 2013, encourages the states to adopt a judicial mechanism to terminate specific parental rights of fathers with their children conceived through rape.

Poor Parenting Choices: This Just in From Minnesota

If your 12 year old daughter gets poor grades, it's probably a bad parenting idea to shave her head, and make her run around outside in a diaper, as a means of disciplining her.

Same-Sex Marriage Tax Problems (Partially) Eliminated

The President has announced that the Treasury Department will give Federal recognition to same-sex marriages for tax purposes.  It's unclear whether this decision will apply to "civil unions", "registered domestic partnerships", etc.  Stay tuned...

Can You Kiss Your Cousin?

A recent Slate advice column inquiry about the impending marriage of two people who are cousins, but don't know it, has led to a fascinating discussion over at Volokh Conspiracy about the circumstances under which such a marriage might, or might not be legal. 
A tip of the late August panama hat (supplied by Meyer the Hatter of New Orleans) to Doc Volokh.

Child Abduction in Custody Disputes

The number of child abduction cases that involve a child custody dispute has increased from 9% in 2009 to 50% in 2012.  The cases included in these statistics are those where a non-custodial parent takes a child(ren) from the custodial parent against the will of the child(ren) or custodial parent. Sometimes the motivation might be to retaliate against the custodial parent, sometimes it’s an effort to reconcile. Apparently, children under the age of three are at the greatest risk of being taken by a non-custodial parent against their or the custodial parent's will.

Early reporting of an abduction to the proper authorities will minimize the likelihood of harm to the child. If there is a history or domestic violence or threats of taking the child(ren), perhaps restraining orders or restricted and/or monitored visitation is appropriate. There are additional steps to reduce the chance of custodial issues or potential abduction or harm to the child(ren) such as always keeping a copy of the entered order at all times, dropping a copy of it off at all the schools, the local police station, and the day care or any other place the children spend time.

Hot Mid-Summer Action! (or something like it)

Custody and Dollars

In a somewhat troubling decision, the Illinois Appellate Court has reversed a trial court and ordered that a "move-away" be permitted, where the finding that re-location was in the child's best interest was built on the economic benefit Mom  (the moving parent) would receive when she married her fiance. 
  
 L.C. has two parents who are too poor to support him. His mother, a part-time   waitress,  receives child support in the amount of $67 bimonthly from his father, who, it appears, lives in a basement room of his mother’s and stepfather’s house.   We hasten to add that there is no correlation between money and human worth and that we do not intend the least denigration of either parent. Nevertheless, such economic hardship is not to be taken lightly. Poverty can be grim and corrosive, and social mobility in the United States is not what it used to be. We do not mean to subscribe to an iron-clad determinism, but the opportunities L.C. has during his childhood probably will determine the opportunities he has for the rest of his life.
 .....
 All in all, it strikes us as unfair to L.C. to jeopardize his good fortune by diminishing the means by which [would-be step-father] can help him materially.  

Since Illinois applies a substantially higher threshold requirement in out-of-state relocation cases for the "moving away" parent than California applies, it's not clear that the result would have ultimately have been different in California.  The "economic realities" of the case were such, however, as to demand that the court disclaim doing exactly what they were, ultimately, doing, which was tying the court's custody decision to the as-yet-unrealized marriageability of Mom.


Same-Sex Marriage Dust-Up Continues

Meanwhile, the dust on same-sex marriage continues to swirl around local courthouses, and city halls (or wherever they issue marriage licenses these days).  An Ohio Federal court seems poised to determine that whether or not Ohio is required to provide same-sex marriage, it cannot refuse to recognize same-sex marriages contracted in states in which such marriages are authorized, and in Kentucky Federal court, a suit has now been filed by a pair of same-sex spouses and adoptive parents, challenging that state's refusal to recognize the marriage, and to permit the Kentucky adoption to proceed as an adoption by a married couple.

Spousal Support and Child Abuse

Ed Abar was convicted of raping his stepdaughter over 16 years starting when she was 9 years old. When her mother, Carol Abar, found out what was happening to her daughter, she divorced Ed. Since Carol was the higher earner, she was ordered to pay Ed spousal support of $1,300 per month. Ed spent more than a year in jail for the rapes. A judge stayed the spousal support payments when he was in jail. He is now out of jail and seeks the reinstatement of the $1,300 per month in addition to approximately $30,000 in back-pay. At the time he was sent to prison, Carol had already paid him $22,000.

http://losangeles.cbslocal.com/2013/05/06/mother-forced-to-pay-spousal-support-to-man-who-raped-daughter/

It does not appear that the judge has granted Ed’s request for spousal support, but the case caught the attention of Assemblywoman, Melissa Melendez who has introduced legislation (AB 681) which would prohibit spousal support from being awarded to a spouse who has been convicted of a violent sexual felony of a child of the marriage. Currently, while domestic violence between the spouses is taken into account when determining spousal support, child abuse is not technically a factor to be considered.

http://losangeles.cbslocal.com/2013/06/21/cbs2-report-inspires-legislation-that-would-prohibit-spousal-support-in-child-sex-abuse-cases/

Collecting Child Support Internationally?

On June 18, 2013, the House passed H.R. 1896, International Child Support Recovery Improvement Act of 2013. This Bill, in part, amends the Social Security Act, to allow the United States to comply with the Hague Convention for the International Recovery of Child Support and Other Forms of Family Maintenance. This bill will allow child support to be collected when one parent and the child(ren) live in one country and the other parent lives in a different country as long as both countries are members of the Hague Convention.

http://www.gpo.gov/fdsys/pkg/BILLS-113hr1896ih/pdf/BILLS-113hr1896ih.pdf

The next step to ratify the bill is for the Senate to adopt and enact similar legislation for this treaty. The Department of Health and Human Services is already working on moving the legislation forward.

http://www.acf.hhs.gov/programs/css/resource/july-2013-child-support-report

This should make collecting child support easier because, if passed, the custodial parent may be able to receive some assistance and take advantage of some of the collection resources provided by the non-custodial parent’s country of residence in order to collect child support from the non-custodial parent.

Celebrity Support Woes.

Charlie Sheen is trying to reduce his child support payments to ex-wife Brook Mueller. Mueller and Sheen’s four year old twins were taken from Mueller by social workers in early May and placed with Sheen's other ex-wife, Denise Richards. Richards is expected to extend the temporary custody another six months while Mueller completes her rehab program and completes the necessary classes to regain custody.

Sheen currently pays Mueller $55,000 per month in child support for the twins and $30,000 per month in mortgage, taxes and insurance payments for the house that the twins and Mueller live in. Sheen requests a reduction in child support since the twins are not in Mueller’s custody. Sheen is a high earner at $739,075 per month, and he already pays the twins’ school and medical expenses and therapy. Sheen argues that Mueller has no expenses for the children at this time since he is covering all the expenses and she does not have custody of them.

There may be authority for Sheen’s argument and he cites the case involving his former co-star, Jon Cryer who made a similar request in 2009 when his ex-wife was arrested for allegations of abuse and the court reduced her visitation to monitored visitation. Cryer was able to reduce the child support from $10,000 to $8,000 per month.

http://www.nydailynews.com/entertainment/gossip/charlie-sheen-brooke-mueller-doesn-deserve-child-support-article-1.1396536

Health Care and Child Support

To follow up on my post from last week about health insurance, there are other options other than allowing coverage to lapse. There are assistance programs available at low cost.  Health care does have an effect on child support. One or both parents are often required to maintain heath insurance coverage for any minor children as long at it’s available at no or little cost through their employer. "Available at no or little cost" is loosely interpreted and essentially any out of pocket expenses will be considered reasonable under this definition. Through the Affordable Health Care Act, various options may be available to parents who need assistance for health insurance coverage for minor children.

Starting as early October 1, 2013, parents can choose new insurance options through Covered California. (See http://www.coveredca.com/). This will be for coverage that will start January 1, 2014. The program shall allow financial assistance for qualifying families including Medicaid, Children’s Health Insurance Program (CHIP) and through tax credits that will help pay the premiums.

http://www.acf.hhs.gov/programs/css/resource/june-2013-child-support-report

Health Insurance after Divorce.

About 115,000 women per year lose private health insurance in the months following a divorce and more than half that (approximately 65,000) will lose coverage long term. 

http://www.ncbi.nlm.nih.gov/pubmed/23147653

Typically, the court cannot prevent an insurer carrier from ending coverage for a divorced spouse of the named insured because they are no longer "related to" the insured. There may be other options available such as COBRA continuation health coverage which gives former spouses the right to temporary continuation of health coverage at group rates if certain criteria are met. COBRA coverage is paid for by the beneficiary and it can be quite expensive, though it is generally less than individual private health insurance. COBRA costs for health insurance are typically the full cost of the coverage for the beneficiary including the cost to the employee and cost to the employer plus 2% for administrative costs.

COBRA conversion benefits are only available for a set amount of time and will terminate after the maximum period has ended.  If arrangements are not made in advance of COBRA ending, there will be a break in coverage. There may be options available for affordable health care and planning in advance for the anticipated lapse in health care coverage will minimize the length of time uninsured.

When can we come home? International custody issues.

Shauna Hadden from Agawam, Massachusetts divorced her husband, Donizete Machado in 2009. Hadden has full custody of their 6 year old daughter, Ava. Machado moved to Brazil where he is from. On May 21, 2013, Hadden took Ava to Brazil to visit her father and extended family.

While in Brazil, Machado who purchased the tickets, then cancelled the return flight. The police came to Hadden’s door with guns demanding her and Ava’s passport which she gave. Machado filed paperwork in Brazil for custody of Ava. A Judge denied Machado’s request for immediate custody and for someone to bring Ava to him, but granted supervised visitation with Ava. According to Hadden, Machedo has not exercised any visitation. He had until July 5 to exercise visitation under the court order.

In the meantime, Hadden and Ava have been effectively "trapped" in Brazil, unable to leave without resolution of the pending case. Her visa will expire at the end of summer.


International custody issues seem to be more common lately. Even with custody orders, issues can arise. Before taking a child or allowing a child to go to a different country, consider having orders for each particular trip with a remedy if the child is not returned.

Looks Like A Romantic Summer!

Three years after my post noting that boomers and post-boomers seem to be much more comfortable with the idea of "tailoring" their marriage by way of a pre-marital agreement, the economy is slowly emerging from the doldrums, same-sex marriages are happening again in California, and, based on the number of calls I'm getting about relationship planning and pre-nups, Cupid is working overtime.

DOMA Donesky! What Does This Mean For "Domestic Partners" and the "Civilly United"?

I'm still digesting the SCOTUS' decisions in the Federal DOMA and California Prop. 8 cases.  The short take-away is that it is probable (though I will never say certain) that the thousand-plus references to the rights/obligations of "spouses",  in Federal laws and regulations, will now include same-sex couples who are "spouses" under the laws of the state in which they contracted a "marriage".   It is not yet clear is whether or not those folks who have a state-recognized relationship which is called something other than "marriage" will fall within that umbrella.

When Should the U.S. Return A Child to a Country In Which Sharia Law Might Be Applied?

The Federal Court of Appeals for New York weighs in on whether a U.S. court must order a child returned to a "country of habitual residence" when that country is a signer, with the U.S. of the Hague Convention on child abduction, but which might possibly apply Sharia law to the adjudication of the custody dispute. Thanks and the usual hat tip to Prof.Volokh.

Three More States Vote On Same-Sex Marriage/Domestic Partnerships This Month

Rhode Island, Delaware, and Minnesota.

A Divorce App?

Per the Wall Street Journal, a new online "divorce manager"

The Breakfast of Family Lawyers?

 Huevos Divorciados, or Divorced Eggs!

Same-Sex Marriage/Partnerships in Scotland?

There's a bill pending.   Thanks and a tip of the tam o' shanter (or is it a kippeh?) to Howard Friedman at Religion Clause.