Custody Case No Slam Dunk for Dr. J’s Son

By Greg Land

JUDGES IN GEORGIA and Pennsylvania are trying to sort out which state has jurisdiction in a dispute over the grandchildren of former basketball great Julius “Dr. J” Erving.

At issue are the 6-year-old and 3-year-old children of Philadelphia resident Kira Clifford and Julius Erving III, who calls himself “J.” One thorny question is whether a Fayette County judge’s order demanding that Clifford return to Georgia with the children is binding.

Attorney Randall M. Kessler, who is representing the younger Erving along with Mark J. Issa, said Clifford moved from Philadelphia to Fayetteville last August with the two kids. A month later Erving followed, relocating his music and entertainment management business to Atlanta.

Erving, 32, said in an interview that he had given Clifford, with whom he had lived until about three years ago, $50,000 toward a house and $3,400 a month “on time, every month.”

On Jan. 5, Clifford filed for determination of paternity in Fayette Superior Court, seeking a permanent order for child support and insurance for the children. That case is Kira Clifford v. Julius Erving III, No. 2007V-0017E.

In his response, Erving acknowledged paternity and agreed to allow the court to set the terms.

“Our lawyers were communicating trying to work out a settlement,” said Erving, “and we got to the point where we had basically shaken hands on an agreement and were ready to ink a deal.”

A hearing was scheduled for Feb. 23 but, according to Kessler, was cancelled the day before because both sides were in settlement negotiations and about to reach an agreement.

“The following weekend, she said there was a funeral in Philly she wanted to go to,” said Erving. “So I said fine. That was the 27th of February.”

On March 2, Clifford and the children left for Philadelphia and have never returned, despite a March 9 order by Fayette County Superior Court Chief Judge Paschal A. English Jr. demanding that Clifford bring the children back.

Once back in Pennsylvania, said Kessler, Clifford asked a Philadelphia court for an emergency ruling on jurisdiction, said Kessler. “A hearing was set for last week, and our client was never even served,” said Kessler.

Clifford’s local counsel, Atlanta sole practitioner Deanna H. Powell, said her client did not wish to discuss the case or allow her attorneys to do so.

Powell also expressed concern that the matter was being discussed publicly.

“I try my cases in court,” she said.

Shiel G. Edlin, who chairs the State Bar of Georgia’s family law section, said the case is “tremendously complex” due to the short time the children were in Georgia, and because of Clifford’s return to Pennsylvania after filing here.

“[The children] were here less than six months, so the court’s not going to see Georgia as home,” he said. “[But] you can’t just file suit and run; I’d be interested to hear her reasons for leaving … the court’s going to take a dim view of that.”

Pennsylvania Court of Common Pleas Judge Idee C. Fox is expected to issue an order in the matter, said Kessler, after she and English decide which court has jurisdiction. English did not respond to a call for comment by press time, and Fox is on vacation, said her clerk.

According to Kessler, both Georgia and Pennsylvania are signatories to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which lays out the process for reaching just such a decision.

“This type of case is exactly why Georgia adopted the UCCJEA,” said Kessler. “There’s been nothing filed in Georgia to ask the judge to move the case at all; I don’t think there’s even a legal basis for the court to consider transferring or dismissing the case, because in Georgia, the last document filed was the order for her to come back down here with the children. There’s been no request by [Clifford’s] Georgia lawyers for J. to go to Philadelphia; there’s not even been a request by the out-of-state lawyers for us to come up there …

“The law is very clear that this case should be heard in Georgia,” he said. “The UCCJEA gives ‘home state’ jurisdiction priority, and [Clifton] filed her motion for paternity and visitation here first, so Georgia obviously had jurisdiction first.”

By filing in Georgia, said Erving’s Philadelphia attorney, Saul Levit, “[Clifford] has already picked her jurisdiction.”

Sears taking marriage message to New York

Chief Justice took on issue when she saw domestic cases dominate dockets

AS LEAH WARD SEARS prepared for a lecture she will give this week on her “strengthening marriage” initiative, organizers of the New York University School of Law event said alumini had a question.

Was her speech about gay marriage?

Sears, the chief justice of the Supreme Court of Georgia, is familiar with the issue; re-election challengers in 1998 and 2004 used some of her writings to paint her as a gay rights candidate. But in her speech, the only thing she planned to say about gay marriage was that her initiative is not about gay marriage.

Sears acknowledged last week that some people may think she’s taken on the mantle of encouraging marriage and two-parent families for political reasons.

“I’m not in it for a political thing at all,” she said in an interview in her chambers, “because I really care about this.”

Besides, she added, she’s taken some hits for embracing the issue of encouraging marriage. “It’s become politically correct not to talk about family dysfunction,” she said.

Sears said she has had trouble getting people to take her work seriously.

When she first became chief in 2005, Sears started making comments on the issue but sensed the media viewed it as something light, so she pulled back.

The results of her subsequent behind-the-scenes efforts were the creation of a court Commission on Children, Marriage and Family Law last summer and the drafting of a white paper on the breakdown of families and the ensuing cost to the state.

Sears said that she began looking at the issue when, as part of her assessment process upon becoming chief, she examined caseload statistics. According to the white paper, 65 percent of all civil cases heard at the superior court level in Georgia involve issues regarding families and children—outnumbering not only all other civil cases but all criminal cases, as well.

But she’s not just talking about costs to the state resulting from divorce. She highlights statistics on out-of-wedlock births, particularly among the black population. She calls marriage “one of the best anti-poverty programs we have going.”

Now she’s taking what she says is a serious message to a serious audience. Thursday night, she’ll be the speaker at the annual Justice William J. Brennan Jr. lecture on state courts and social justice at NYU.

Acting like a lawyer preparing for oral argument, Sears said she planned to give her speech the moot-court treatment—getting her law clerks to ask tough questions so she can refine the speech if her message is not getting through.

Sears said that after the Washington Post published an op-ed piece by her entitled “A Case for Strengthening Marriage” last October, she got negative feedback from “northeastern” professors. Some people thought she was trying to make things more “Ozzie and Harriet,” she said.

Not so, she said. “I tell people we’re not trying to take families back to the ’50s” such that women can’t get divorced.

Sears, who has been divorced and is remarried, is careful to say she’s not judging those whose marriages may have failed and wants to encourage not marriage at any price but healthy, stable marriages. “I’m not a Cro-Magnon,” she said. “I don’t want to condemn anybody … but we’ve gone too far in the other direction.”

She’s ready with a quick answer to anyone who might have qualms about her efforts on the grounds that it’s more government meddling in intimate relationships: “That would be fine if they didn’t ask [the government] to meddle in their lives when things go bust … we just want to encourage them to make it healthy,” she said.

There’s also a note in the commission white paper indicating a sensitivity toward domestic violence issues, saying the commission “in no way seeks to encourage abusive or other unhealthy relationships.”

“I say you ought to run [if] you find yourself in a relationship where there’s abuse or addiction,” she said.

Sears said she’s limited in what she can do because of the branch of government in which she sits. For example, Sears doesn’t have a position on waiting periods for no-fault divorce—“other than it would be nice if they were studied” by the Legislature or her group.

But she said the commission can highlight the problems and educate lawyers and judges. Officially, the commission’s goals as set forth in the white paper are to identify steps the judicial system could take to increase the proportion of children being raised by their married mothers and fathers, reduce the statewide domestic relations caseload, establish measurements for whether goals for child abuse, neglect and juvenile delinquency cases are being met, improve the quality of legal representation in juvenile court cases and expedite the appeals process for termination of parental rights matters.

The commission is comprised of more than 30 judges, professors, lawyers, business people, legislators and other state officials. Sears said the commission already has met and will spend its first six months learning about the issues. It’s set to meet again March 16.

Randall M. Kessler, an Atlanta family lawyer not on the commission, said good family law practitioners want people to get along, and Sears is on the right track with her idea of promoting education and counseling.

“But,” he said, “some marriages just aren’t meant to be.”

Kessler named One of Georgia’s Top Lawyer’s 2007

Randal Kessler named One of Georgia’s Top Lawyer’s for 2007 as published in Georgia Trend.

Kessler Honored by Young Lawyers Division of ABA for assistance during 2006-2007

Kessler Honored by Young Lawyers Division of ABA for assistance during 2006-2007

Child Support Changes Go Into Effect in State

Law bars stampede to court, but may motivate parents to seek new orders

NEW CHILD SUPPORT guidelines went into effect Monday, but that’s not supposed to provide a basis for parents to seek modification of child support orders.

Legislation passed in 2005 said the adoption of the new rules was itself a reason for a parent to ask for a new child support order. But under the law signed by Gov. Sonny Perdue last spring, a parent must show a substantial change in financial circumstances or the needs of the child to justify a change in support.

Nonetheless, said Atlanta domestic relations attorney Randall M. Kessler of Kessler, Schwarz & Solomiany, parents who arguably have changes in circumstances that would allow a modification may have more impetus to seek a new order than they had under the old guidelines.

“There’s more motivation to go back to court,” he said, “because it used to be we’d say, ‘You’re not going to get that much of a reduction.’”

That doesn’t necessarily mean more cases will go to trial, Kessler and other practitioners said. As before, many of those actions for modification may be settled.

But the upshot of the new law is that high-income parents will pay less in support than they did under the old rules, said Kessler, while some people in lower income brackets may pay slightly more. And that has parents who pay child support calling their lawyers to see if they might get a break under the new rules.

The bills that changed the rules are long and complicated. At the heart of the legislation is a shift to what’s called an “income shares” model, which considers the income of both parents. Under the previous system, child support obligation was calculated as a set percentage of the payor parent’s income based on the number of children to be supported.

Now the combined income of both parents will be plugged into a statutory table to determine how much support the child needs, with the noncustodial parent to pay a pro rata share of that support corresponding to the parent’s share of the combined parental income. Health insurance and work-related child care costs are then factored in.

While the prior law said that “special circumstances” could provide a basis for a support award different from that calculated under the statutory percentage, the new law allows for specified “deviations” from the calculated pro rata share, such as travel expenses.

The General Assembly passed sweeping legislation switching to the income share model in April 2005. Republican backers of the legislation said that it would remedy inequities in the old system that placed too great a financial burden on noncustodial mothers and fathers. Critics called it a “mad dad” bill that would hurt women.

A new version approved by the Legislature and Perdue the following spring did away with some significant elements of the legislation. In addition to providing that the new legislation itself was not a basis for a modification of support, the 2006 bill eliminated specified reductions in child support based on the number of days the noncustodial parent spent with the child each year.

Because the new rules apply not just to cases filed after Monday but also to previously filed cases that didn’t reach final judgment before that date, parents seeking a modification under the new rules have already begun to file lawsuits, said Kessler, who is editor of the State Bar’s Family Law Review. He said he had clients who had already done so—and already settled the matter.

Catherine M. Knight of Boyd Collar Knight in Atlanta said she’d been getting calls about modifications. “But it’s not a hurry, because the new law’s not going away,” she said, explaining that there was time to run the numbers and see if a request for modification would be worth the effort.

The law has caused a bit of a rush on another front, however, she said. Knight said Thursday that she had been getting calls from panicked lawyers all over the state worried that child support settlement agreements might be subject to renegotiation under the new rules if they were not signed by a judge before the close of 2006. “Some judges are really scrambling to try to get everybody in because they don’t want to reopen the deals,” she said.

Knight said that while there may be more litigation over requests for modification of orders—both those entered under the old law and those rendered under the new—cases may be settled at the same rate as before.

For those who want to go to court, she said, the deviations provided for under the new law will provide a basis for argument. “The people who will want to argue are still going to argue,” she said, “but often appropriately so, because the deviations are a meaningful part of the guidelines. There are good reasons to deviate, often.”

Kessler also said he didn’t think there would necessarily be more people going to trial over child support issues under the new law. Human nature won’t change, he said, and someone who’s averse to fighting in court will still feel that way, with uncertainties in the law breeding settlement.

On the other hand, said Kessler, the new law provides something for those who want to fight. “Whenever there are more words in a statute, there’s more to fight over,” he said.

“There definitely are people who are on a mission, who really feel like they’ve been wronged,” he continued, “and those people are going to be at the forefront of the litigation.”

How judges will handle the allowed deviations is one of the big question marks hanging over the new statute, said Athens attorney John F. Lyndon, a member of the executive committee of the State Bar’s Family Law Section.

Specifically, Lyndon wondered whether judges would pay little attention to the deviations—“a lot of us have felt that they didn’t pay much attention to the special circumstances” under the old law, he said—or would use the allowed deviations as a way to make awards at levels similar to those given under the old law.

“I think a lot of it is going to depend on how the judges are applying them, and I think that we will get some consistency in how the judges do apply them. … so I don’t think it’s necessarily going to increase litigation,” he said.