child custody

Guess what? You are not the mother, the kids are mine!

HLN (formerly “Headline News”) recently called me to help them explain/discuss the legal issues in a very interesting case about whether a “surrogate” mother is also a legal mother (To see the interview, click here: /video).

The case arose when a woman who could not have kids of her own agreed to have a child with a long time male friend.  They decided to use a donor egg, his sperm and she would carry the baby.   But when she gave birth, she was immediately served with papers saying that he was the only legal parent and would be raising the child with his male lover/partner.   They even obtained a restraining order to prevent her from breastfeeding.  We don’t know what documents were signed (but it was likely a “surrogacy” agreement disclaiming any rights to the child, probably thinking she was merely signing documents needed to get the donated egg), but no matter what, she was devastated.  And the interesting legal point is: Is a surrogate mother a legal mother?  What happened? What did she sign? Was she defrauded? Do the normal rules of contracts (meeting of the minds, absence of fraud) even apply, or should there be a higher standard to meet before the father can enforce such a contract.  As of the time I was interviewed, the father had custody and the woman (should we call her the mother?) was suing to get rights to the children.

So why is this such a new thing? Because artificial insemination is only thirty years old.  Before that there was no possibility of such a problem.  And even then, it was all very controlled.  Now that surrogacy and ART (Artificial Reproductive Technology) is becoming commonplace, this issue, and many like it are arising and challenging us.  Law vs morality.  Social values vs. strict contract terms.  And that is where we as lawyers can help.  Until the legislatures of the states and perhaps of the United States can predict and resolve all such dilemmas in advance, great lawyering and judging will have to get us through.

Divorce Insurance? Why not a prenup?

I was recently asked to comment for CNN (click here to see the video clip of my appearance on “Newsroom” with Don Lemon) about a new fad: Divorce Insurance. My first reaction, as I told Anchor Don Lemon, is that the best insurance against divorce is not getting married. Of course that was said “tongue in cheek”, but really, if you plan to get married and want to pay, monthly, for divorce insurance, it seems very strange if not counterproductive to the goal of a long-lasting marriage. Let’s explain it this way. If a couple, or even just one spouse is considering a divorce, AND they know the expenses of a divorce are already paid for by insurance, isn’t that just one more thing that facilitates them moving forward with divorce? It is almost like saying “hey, we paid the insurance, let’s collect on it”.

Prenuptial and postnuptial agreements can predetermine division of assets and alimony. Once those things are decided, only issues related to children remain. And how can you predict the cost of issues relating to children. There are so many variations on parenting time, decision making, travel expenses, etc. How can we insure against all such costs?

Yes, divorce insurance sounds like a nice, safe bet. Why not limit your exposure? But when you start to think about the concept, it unravels. For instance, if I want to be sure I have the best divorce lawyer, is there any guarantee that the best lawyer will accept my insurance company (since insurance companies typically pay reduced rates to lawyers)? And what about a wealthy spouse who can afford a good lawyer and then, when the other spouse says “well, I need a good lawyer too”, the court’s reply may be “You have insurance so use that”?

I am all about prevention, but smart, effective prevention. To me, that is a prenuptial agreement. A prenuptial, or post nuptial agreement forces a party to think about all of the possibilities specifically. It is unclear to me how divorce insurance can address evrything, but if it makes someone more comfortable getting married, then perhaps it is not that bad. But for the best protection, I would suggest a consultation regarding a prenuptial agreement (which of course must be prepared and reviewed by an attorney in the proper jurisdiction, and I am certainly offering advice since prebuptial agreement laws vary from state to state). And besides, isn’t it nice flying without a safety net sometimes? Yes, I am a divorce lawyer saying that. Perhaps the thrill of a good marriage is that each spouse is voluntarily continuing to commit without fear of consequence. But if that thrill has been spoiled once by a bad divorce, then perhaps a prenup is right for round two.

International custody

There are hundreds if not thousands of horror stories about international custody/kidnapping and support. This entry will not cover the Sean Goldman case or many of the other ones recently in the news, but I decided to write this post when I read an article about a man in Germany who has finally been relieved of paying child support for a child wrongfully taken from him, 10 years ago.

While getting off the hook for child support may be a relief, the big issue of retrieving an unlawfully removed child still remains. This is an issue that not only causes much pain and suffering for children and their parents, but also haunts many family law attorneys who have been unable to effectuate the release or return of a client’s wrongfully taken child. During my year as Chair of the Family Law Section of the American Bar Association I intend to work on this issue and shine more light on this problem. There are International Laws, but not every country has agreed to them, and the rules are not applied uniformly and consistently. Educating our politicians is one good way to start and I hope the ABA can help in that regard and others.

For those of you who are lawyers practicing in Georgia, we will try to address this issue at our annual Family Law Institute which I urge you to attend next Spring. On a national level, we will try to also address it at future Continuing Legal Education Seminars throughout the country. These cases are so important and time passes so fast that unless we as family law attorneys understand the rules and laws, children may go unreturned for too long, and in many cases they may never be returned. We must all be diligent, as citizens, and those of us in the legal business, must remain educated and up to date on this issue and the rules and laws in this area.

When should 3rd parties step in to protect children?

Apparently a Southwest Airlines Flight Attendant stepped in to take a young child away from a mother who may have slapped the child (click for link to the story).

Given all of the news about parents harming their children, such as the South Carolina mother who appraently suffocated, then drowned her children, perhaps we should revisit our rules and laws allowing third parties to protect children.

Many of us like to say “how can our government let that happen?” Or “why didn’t the appropriate government agency step in?” But why don’t more individuals step in? Perhaps for fear of “getting involved”. But getting involved is important. Not just when an obvious issue arises (like child abuse in public), but also in custody and visitation disputes. Most custody cases end up being “he said-she said” with each parent pointing the finger at the other but no other witnesses (except maybe a close family member). True, being a witness is inconvenient and time consuming. But in custody or visitation cases, the true benefiiciary of the witness’ time and effort is the child. So why not get involved? All it costs is a little time, and it may help ensure a child grows up with the best possible chance to succeed in life.

Gay adoption in Florida

I was asked to appear on a CNN owned network (Tru TV, formerly Court TV) yesterday to comment on the rights (or lack of rights) homosexuals have to adopt and/or seek custody or visitation with children. It was an interesting show, and while preparing for it, I learned a bit more about Florida’s law. Florida’s statute actually forbids adoption by anyone engaged in homosexual activity. Apparently, if one is homosexual, but not “engaging in homosexual activity” the ban does not apply. Well guess what? As a divorce lawyer I am confident there are many heterosexual couples no longer engaging in heterosexual activity. In other words, the distinction Florida seems to draw is between homosexuals who have sex and those who don’t.

Recent court decisions have upheld Florida’s law saying basically that the legislature could have rationally believed that such a law was based on a legitimate government objective. That objective was to place children in an environment where there was a legitimate chance for them to end up in a “typical” home with a mother and father, since a gay adoptive parent was unlikely (and in Florida, unable) to marry someone of the opposite sex. This theory of course, omits the possibility that a gay man may decide to coparent with a woman with whom he is friends, or that a single heterosexual may never marry, thereby leaving the child to be raised by one person, when two people might be able to raise the child with twice the love, twice the time and twice the resources to give the child.

But the law may soon change. In the case of In Re Gill, a foster parent was allowed by the trial court to adopt children for whom he had provided foster care. The case is on appeal and oral arguments were held last August. A decision could be made any day. It will be interesting to see what happens, but the national trend seems to favor allowing adoption, regardless of sexual preference.

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