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.

New law-Custody for Military Families

A new law was enacted this week in the Georgia Legislature. It grants certain protections to military personnel in their custody and visitation disputes. An AJC article outlines it well (click here for the article). The bill was passed with overwhelming support and prevents final orders changing custody to be entered simply because a parent is deployed. A draft of the proposed Act can be accessed by clicking here.

For years advocates for military personnel have complained that armed services members were often penalized for simply serving our country. The delicate balance is between rights of those serving our country and the best interests of children. No answer will be perfect for every situation, but this bill was drafted, considered, reviewed, debated and finally passed. No law is perfect, but hopefully this law will help military families and their children, and hopefully does not reduce the emphasis that must always be placed on ensuring that we do what is in the best interests of the child.

Why not seal divorce records?

Why shouldn’t we allow divorce records to be sealed? Since when is the public’s right to know more important than a couple’s right to keep private the division of their assets and the whereabouts of their children. Married people need not publicly disclose how they share assets or time with their children. So why must divorcing couples be subject to public scrutiny of their most personal dealings?

This has always seemed odd to me. In Georgia a few years ago, much was made of the Speaker of the House’s divorce being sealed (click for wikipedia info). But I think the outcry was not so much about his case being sealed, but more about why was his case sealed, when many others weren’t. The answer should have been: “Let’s seal them all”. Instead, the opinion of the majority seemed to be: “no special treatment for him”.

Currently, as reported by the Washington Post, the Montana Supreme Court is considering restricting public access to such records (click for story). As a family law attorney, I think the potential benefits are tremendous. Why should information about where children are being dropped off be public? What about agreements to sell property for a certain price? It may take a philosphical shift about court records, but family law is different. The parties, if they have children, will continue to interact and be somewhat interdependent on each other after the divorce. Why allow more roadblocks, like allowing outsiders to know their private business, to make their life any harder than it already will be?

International child related issues on the rise.

As the Chair Elect of the ABA’s Family Law Section, I have made it clear that one of my priorities will be to focus on international custody issues. Given the many widely reported cases of international kidnapping and custody battles, such as the Goldman case, it seems we must focus more on these situations to protect all children.

But now there are much more complex issues relating to children across the globe which go beyond mere custody battles. Issues such as surrogacy and adoption. What if one country’s laws do not allow for a certain type of adoption or a certain type of articifial insemination? There are now ways to work around laws in one country by using another country as a vehicle for certain procedures. And this can be dangerous.

A recent Wall Street Journal article entitled “Assembling the Global Baby” discussed these issues in fine detail (click here for a link to the story). There are American companies orchestrating surrogacy and reproductive technology across the globe. While the term “orchestrating” may sound negative, that was not my intent. My intent was to demonstrate the internationalization of child related issues. What body or organization will set the rules? Is this something for the United Nations to look at? Conferences like The Hague will certainly look at these issues, but then a country’s willingness to sign a treaty is purely voluntary.

This internationalization of child birth, adoption and reproduction may be a very good thing. It seems very well intended. The problem is with the unintended consequences. When things go wrong, who is accountable? Which country’s laws apply? Is it more important where the birth occurs, where the semen was taken, where the parties live or which country the egg came from? These are fascinating issues that we must consider before they overwhelm us. I have no idea where we go from here, but I am sure that we need to start asking the right questions which will hopefully lead us to the right answers, or at least to the right forums and formats for seeking comprehensive answers to these emerging issues.

Temporary Custody should not automatically = Permanent Custody

Often in divorce court, a temporary ruling on the issue of custody means there is a near certainty the same result will follow the final trial. But this is not what the law suggests or even allows as a presumption. Nonetheless, many divorcing parties and/or their lawyers focus heavily on temporary custody so that they may be in a much better position to achieve an award of custody on a final basis (I know, I hate the terminology like “achieve” or “winning” when we are talking about the lives of children). However, a recent Georgia case has made it very clear that a trial judge may not simply “do the same thing, based on what he or she already heard at the temporary hearing”. The case is Pace v. Pace, in the Supreme Court of Georgia and has been given the number No. S10F0843 (Oct. 4, 2010).

The trial judge may rely on evidence adduced at the temporary hearing, with advance notice to all, presumably so that the parties will know what evidence the court has in front of it even before the final trial begins. But the court may do so only after “notifying the parties of its intent to do so [rely on evidence from the temporary hearing]”.

One thing the Pace decision did not clarify, is what amount of weight the evidence from the temporary hearing should be given: “Neither the statutory provisions nor the court rules governing the conduct of child custody proceedings addresses the extent to which a trial court may rely on evidence from the temporary hearing in reaching its determination on permanent custody.” The court did however point out how limted temporary hearings can be and that final trials offer the parties a much better ability to present evidence.

Another thing the Pace case did not emphasize, is that even if the evidence was strongly in favor of a custody award to one party at the temporary hearing, things change. Child custody and visitation decisions must always be made with an eye toward what is going on presently. There are many parents who have done bad things. This goes for parents who are not in a divorce or custody struggle. But the real question should be what is in the child’s best interests right now and going forward. Yes the past is important, but if there were poor decisions made years ago that have not been repeated, we should closely examine how best to ensure a good future for the child or children instead of punishing a parent who has made mistakes in the past. There is no question that custody decisions are difficult. No one can predict the future. But if we, and importantly the judges, can know the very present, then we are more likely to formulate plans for our children that will work now, and hopefully into the future.

Divorce and birth rates down?

A Georgia Public Broadcasting article suggests birth rates and divorce rates are down in this poor economy. But is this a good thing? We must remember that divorce, is a legal proceeding, not a determinative identification of which marriages are stable and which are not. Perhaps the economy is preventing some folks from filing legal papers or hiring lawyers, but does that really mean more people are staying together (and if so, happily?). I think not. From my perspective, many people who have struggled for years trying to maintain a marriage have had it. On top of years of marital or relationship troubles, the stress of a poor economy puts many couples over the top. The economy may be the proverbial “last straw”.

Couples who are in distress, especially those living in separate residences, often need the court’s assistance to decide how funds are shared between the parties and how time with the children is allotted. But in a poor economy, many cannot afford an attorney so they often ignore the legal process and engage in self help. This may work on an ad hoc basis, but troubles are inevitable. And if we do see a decrease in divorce, unfortunately, in my opinion, we will see a rise in other legal areas, such as child kidnapping, criminal claims of abandonment and even domestic violence as people take out their frustrations on each other (frustrations which a “good divorce” or “good divorce agreement” might have avoided).

So, the real issue is not whether divorce rates are down, but are marriages healthier? Are people now staying together and resolving their issues. Or are they simply not able to afford the safeties and resolution mechanisms divorce courts provide?

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.

Summer Visitation and Custody Issues

Each summer, thousands of parents reach for their custody papers.  They need to re-read them to confirm which week is theirs, or if their ex can really insist on a certain schedule with the children.  Inevitably, visitation issues arise which were not anticipated, or for which no arrangements had been made.  While many standard visitation schedules include parenting plans and “notice” provisions to ensure each parent may have some uninterrupted time with the children, there are always things which were not considered or planned for.  For instance, family weddings and funerals.  These events happen, and it often seems that they happen when the party who wants the children to attend them does not have parenting time scheduled with the children.  So what can be done?  Obviously foresight is the best plan.  Adding language to settlement agreements that allows a party to have the children at such events may help.  But the next best option is to always consider what is best for the children.  Even though a parent may have the right to have the children during a certain time period, if it is best for the children to go with the other parent (due to a wedding or other event), then hopefully an accommodation can be made.  This issue will almost always come back eventually and hopefully a favor will be returned.

Another related issue is what to do about step, or half siblings?  While a non-custodial parent may prefer to only take their own biological child to Disney World, if there is a step or half brother, perhaps that child should come along too?  That certainly will not always be best or even possible, but from a child’s perspective, think of the dilemma for the child.  They get to go to Disney World or somewhere fun while their sibling stays home and becomes jealous.  Wouldn’t it be better, in some cases, to let them both go, so they could both enjoy it and reminisce together about the fun trip they had?  Certainly there are other issues that go along with this, but perhaps the parents, and step-parents ought to at least consider this, even if it means spending money on their “ex’s other child”.  That child is also their child’s brother or sister.