Wednesday, May 28, 2014

Incarcerated Birth Parents' Rights to Their Children

    Kim and Dave Hodgin became the foster parents of Sonya before she was two.  She was adopted by them in 2008.  Before the adoption was finalized, Sonya’s birth father, John McCaul pled guilty to transporting firearms and was sentenced to 15 years in federal prison.  Under Tennessee law, parents who are incarcerated for more than ten years do not have any rights to a child under the age of 8, so McCaul’s custody rights to Sonya were terminated.  McCaul later cut a deal by providing information that he had about a homicide and his sentence was reduced to 7 ½ years which allowed him to assert his parental rights and fight to reverse the adoption.

    In November 2009, the adoption was reversed but Sonya continued to live with the Hodgins while both sides disputed custody.  In January 2014, a judge returned Sonya, now 9 years old, to McCaul’s custody.  Sonya has moved from the Hodgins’ home in Tennessee and now lives in Omaha, Nebraska with McCaul.  According to the Hodgins, Sonya has been begging to come home.  The Hodgins have filed a petition in Tennessee requesting that Sonya be returned to their custody.

    Both these article imply that there were no visits between Sonya and her biological father during his incarceration, so she essentially has no memories of him and as the Hodgins state, he is a stranger to her.  It is surprising to me that custody was changed so drastically and so suddenly.  I am not implying that this was the wrong decision, only that I am surprised that the judge ordered Sonya to live with essentially a stranger without some type of transitional period.  While McCaul will remember Sonya, the reverse isn’t true and I would imagine there would be a slightly less traumatic way to transition Sonya into McCaul’s custody gradually.

Monday, May 19, 2014

No More Babies if You Owe Support?

    In September 2012, an Ohio man, Asim Taylor, 36 years old now, pled guilty to four charges of non-payment of child support for his four children and was sentenced to five years of probation.  In January 2013, Taylor agreed and was ordered to pay $1,700 of his $96,000 arrearage by October 16, 2013 or else he would serve 30 days in jail (a process called a “purge”).  Taylor failed to pay the purge amount and was sent to jail.

    The court ordered that Taylor was not to get any other women pregnant until he could support the four children that he already has.  Specifically Taylor was ordered to “make all reasonable efforts to avoid impregnating a woman during community control or until such time that [Taylor] can prove to the court that he is able to provide support for his children he already has and is in fact supporting the children or until a chance in conditions warrant the lifting of this conviction.”

    Taylor appealed this decision arguing that the probation condition that he could not procreate was unreasonable and unconstitutional.  On appeal, the Ninth Circuit upheld the lower court’s decision but found that they were unable to determine the merits of the sentence.  The record was not adequate for a complete review and to determine the circumstances behind the court’s imposition of probation.  Taylor pled guilty so there was no trial record and the sentencing record was minimal.  The trial court was to determine probation conditions with reference to the purpose of probation and the circumstances of the case.  The appellate court was unable to determine, based on the record provided, whether the condition was reasonably related to rehabilitation, had a relationship to the crime, and relates to future criminal activity.

There is a duty for parents to support their children. The premise of the Judge's orders appears to be to ensure that Taylor doesn't have more children until he can financially support the children that he has already fathered.  As an order restricting someone's ability to procreate, however, there might be some constitutional issues.  Also, it is unclear how the order would be enforced, or the penalties if violated (if he does, in fact, have another child).  

Tuesday, May 13, 2014

Validity of Custody Orders Issued by a Tribal Court

    Layla Billie and Kevin Stier had two children. Billie is a Native American part of the Miccosukee tribe in Florida.  Stier is non-Native American.  They were never married and it’s unclear whether they ever lived together.

    Billie initiated custody proceedings in Miccosukee Tribal Court on October 1, 2012.  The Tribal Court accepted jurisdiction and awarded Billie temporary custody and set a hearing for November 5, 2012.  The only notice that Stier received was a mail addressed to his mother’s house.  He appeared at the hearing with an attorney, but his attorney was not allowed to attend the proceedings.  Stier was allowed to attend, but they were largely conducted in the Miccosukee language which he doesn’t understand.  He wasn’t provided an interpreter.  At the end, Stier was given a short synopsis of Billie’s testimony, then the Tribal Court extended Billie’s temporary custody.

    Stier filed a Petition for custody on November 1, 2012 in the Circuit Court of Miami-Dade County, Florida.  In March 2013, Billie filed for permanent custody in the Tribal Court and simultaneously filed a motion in the Circuit Court requesting a dismissal of Stier’s Petition on the grounds that the Circuit Court lacked jurisdiction under the UCCJEA (Uniform Child Custody Jurisdiction Enforcement Act).  The Circuit Court determined that it had proper jurisdiction because the Tribal Court didn’t substantially comply with the jurisdictional requirements of the UCCJEA.

    Billie appealed the order.  The Court of Appeals affirmed the circuit court.  According to the Court of Appeals, the Tribal Court was not in substantial conformity with the UCCJEA for five main reasons, 1) Stier didn’t receive proper notice of the Tribal Court proceedings pursuant to Florida law and hadn’t submitted to jurisdiction of the Tribal Court, 2) Stier didn’t have an opportunity to be heard at the temporary custody hearing; 3) Stier’s attorney wasn’t allowed into the Tribal proceedings; 4) The proceedings in the Tribal Court were conducted in the Miccosukee language, Stier wasn’t given an interpreter; 5) Billie testified in Miccosukee for over 20 minutes, the Tribal Court gave Stier only a two minute summary in English before granting temporary custody to Billie.

    What I find interesting about this case is that while the Circuit Court doesn’t have to comply with the orders of the Tribal Court, the Tribal Court doesn’t necessarily have to comply with the decision of the Circuit Court or the Court of Appeals.  Presumably, the Tribal Court isn’t within the American court system and they were found to not be in substantial conformity with the UCCJEA. I would suspect that the decisions of the Circuit or Appellate Court are not binding on them and they can still issue rules under their own jurisprudence.  If Billie chooses to disregard the Court of Appeals ruling and to live with the children on Miccosukee land and if additional orders are issued from both courts, I imagine there may be an issue of enforcement in both directions of both sets of orders.

Monday, May 5, 2014

"Coupling" and "Uncoupling", Conscious Or Not

“Conscious Uncoupling” is the most recent "flavor of the month”  to be launched into the popular terminology and fashion in divorce, following on the heels of “Integrative divorce”, “collaborative divorce”, and  the division of “mediation” among “transformative”, “evaluative”, “facilitative”, and “adjudicative” mediation.

Leaving aside for a moment some of the more eccentric and New-Age-y thoughts* of the authors from whom Ms. Paltrow drew the phrase, the term suggests, as the other bookend, “conscious coupling”.  That is a concept which I have been advocating and will advocate as long as I continue to have folks willing to listen to, or read, my thoughts on the subject. **

Those who’ve read this blog know that I believe and advocate that the closest someone about to marry can get to a policy of “marriage insurance” is making sure that both spouses-to-be have the same understanding and expectations of “the Deal”, the contract they sign on for when they say “I do”.     Competent financial planners, when interviewing married potential clients, routinely ask both spouses to separately answer questions about financial philosophy, risk aversion, etc., and this occasionally uncovers widely divergent views, often to their clients’ dismay.  Likewise, clergy whom I respect, regardless of denomination, often
will want, before performing a wedding for their congregants,   to have a serious pastoral discussion with them about their mutual understanding of their “covenant” (which is just an old word for a contract.)

If there’s more “Conscious Coupling”, there’ll probably be less “uncoupling”, conscious or otherwise.

             * “The creation of insects was a failed attempt by nature to evolve a higher form of consciousness”, “Anthroposophic Medicine” and my favorite,  “The misunderstandings involved in divorce also have much to do with the lack of intercourse between our own internal masculine and feminine energies. Choosing to hide within an endoskeleton and remain in attack mode requires a great imbalance of masculine energy. ” This latter is obviously intended to assist those who have considered developing an exoskeleton to hide in when they get divorced; Paging Gregor Samsa....

**Just passed my 25th anniversary, so I claim some personal, as well as professional expertise.

Common Financial Issues In Divorce

    Interesting read about the some common issues in divorces identified by financial experts from the financial perspective.  For the most part, I agree with everything these experts say.  Often, I will advise clients to consult with a financial advisor before so that they can resolve many of these common issues or determine whether these will even be a problem based on the particular assets and debts of a case and their potential division.