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!