A Review of the Year in Family Law 2012-2013: A Banner Year for Same-Sex Couples LINDA D. ELROD* & ROBERT G. SPECTOR ** I. Introduction The United States Supreme Court heard three significant family law cases this year. The most-discussed, United States v. Windsor, struck portions of the Defense of Marriage Act (DOMA) thereby allowing same-sex married couples to obtain federal benefits given to spouses. I Another Supreme Court case interpreted the application of the Indian Child Welfare Act to an out-of-wedlock child and a third examined whether a return order made an appeal moot under the Hague Convention on the Civil Aspects of International Child Abduction. Federal courts continued to interpret the Hague Abduction Convention as to defining habitual residence and defenses to return as well as hearing bankruptcy, ERISA, and tax cases. While state cases ran the predictable course in the usual topics, this year some areas saw more activity than before. For example, a large number of cases discussed alternative dispute resolution, surrogacy contracts, same-sex parenting issues, and jurisdiction to grant a divorce. There seemed to be fewer cases in the areas of premarital agreements, factors for child custody, income for child support, and torts. * Richard S. Righter Distinguished Professor of Law, Washburn University School of Law, and Editor of the Family Law Quarterly since 1992. ** Glenn R. Watson Chair and Centennial Professor of Law Emeritus, University of Oklahoma and Associate Editor of the Family Law Quarterly. 1. United States v. Windsor, 133 S. Ct. 2675 (2013). Same-sex marriage is now available in California, Connecticut, Delaware, D.C., Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Washington. Cases in Oklahoma, Utah, and Virginia are on appeal in federal courts. See Kitchen v. Herbert, 2013 WL 6697874 (D. Utah Dec. 20, 2013). 505 506 Family Law Quarterly, Volume 47, Number 4, Winter 2014 II. Federal CourtslLaws A. Defense of Marriage Act [N]o legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.2 The United States Supreme Court made that statement in its first samesex marriage decision striking section 3 of DOMA, 1 U.S.c. § 7 in a case involving estate taxes. After the death of her same-sex spouse whom she had married in Canada, Edith Windsor sought to claim the federal estatetax exemption for surviving spouses. Because DOMA section 3 excluded her same-sex partner from the definition of "spouse," Edith paid the $363,000 tax and then filed suit in federal district court seeking a refund and challenging the definition of marriage in DOMA as unconstitutional on due process and equal protection grounds. The Department of Justice elected not to defend. The federal district court and the court of appeals found section 3 to be unconstitutional. The Supreme Court agreed. Justice Kennedy, in a five-to-four decision, noted that under principles of federalism, the domestic relations law of husband and wife traditionally has been reserved to the states. New York, the state in which the couple lived, recognized the Canadian marriage resulting in the couple being married under state law and unmarried under federal law. The majority found that the essential purpose of DOMA was to interfere with the dignity of samesex marriages. DOMA identified a subset of state-sanctioned marriages and made them unequal, depriving those families of more than 1,000 federal rights, benefits, and responsibilities. The resulting injury constituted a deprivation of a liberty interest protected by the Fifth Amendment, and violated basic due process and equal protection principles. The decision left intact the other part of DOMA, which provides that states do not need to give full faith and credit to marriages from other states that are not between a man and a woman. 3 The United States Supreme Court in a second same-sex marriage case found that proponents of California's Proposition 8 had no standing to appeal the federal district court's judgment, which found it unconstitutional. The Court dodged the larger issues as to whether there could be an equal protection challenge to the state marriage laws, whether there is a fundamental right for same-sex couples to marry, or to the level of scrutiny required for sexual orientation-based classifications. 4 It left intact the federal district court's ruling that Proposition 8 was unconstitutional. 2. Id. 3. Id. 4. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). A Review of the Year in Family Law 507 The constitutionality issues are being played out in federal district courts across the country. By the end of the year, same-sex couples could marry in eighteen states and the District of Columbia. On the basis of Windsor, federal courts in Oklahoma, Utah, and Virginia have struck state laws barring same-sex marriage as a violation of equal protection. New Mexico determined its law was gender neutral and thus it would allow same-sex marriages; and New Jersey found its civil union law denied same-sex couples equal protection because they could not get federal benefits from a civil union, only a marriage. 5 B. Hague Abduction Convention The United States Supreme Court handed down a unanimous decision that a father's appeal from a federal court's return order under the International Child Abduction Remedies Act (ICARA), directing the child's return to Scotland, was not moot even though the mother and child had returned to Scotland. 6 The father's prospects for obtaining are-return order went to the merits and were not pertinent to the mootness inquiry. The Chafin ruling allowed the court to review the lower court's decision that Scotland was the child's habitual residence. At the hearing, the lower court's decision to return the child to Scotland as the place of habitual residence was found to be proper. 7 1. HABITUAL RESIDENCE Habitual residence is a practical way of returning a child to the country where the child customarily lives. The term is not equivalent to the American legal concept of family, which relies primarily on intent. The petitioner has the burden of establishing by a preponderance of evidence of a child's habitual residence at the time of contested removal. s When parents move temporarily to another country without agreeing to change the child's principal residence, the parent claiming the new location must show the child has acclimated. 9 Where shared intent is determinative, a family's intent to move to the United States when the father's residency 5. Garden State Equality v. Dow, 82 A.3d 336 (N.J. Super. Ct. Law Div. 2013); N M Griego v. Oliver, 316 P.3d 865 (N.M. 2013). 6. Chafin v. Chafin, 133 S. Ct. 1017 (2013). 7. Chafin v. Chafin, 742 F.3d 934 (lIth Cir. 2013). 8. Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012). 9. Guzzo v. Cristofano, 719 F.3d 100 (2d Cir. 2013) (finding parties' settlement agreement showed shared intent to live in United States, father did not prove mother agreed to settle in Italy, and the child had acclimated). See also Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013) (finding the parties' children's habitual residence was Canada, because the children had not acclimated to their new location in New York); Headifen v. Harker, 2013 WL 2538897 (W.D. Tex. June 7, 2013) (unpublished) (finding Texas was child's habitual residence where there was no shared intent to stay in New Zealand even though parties had been there since 2009). 508 Family Law Quarterly, Volume 47, Number 4, Winter 2014 ended to earn more money meant that when the mother moved with the child, habitual residence shifted from Italy to the United States. 1O A child's habitual residence shifted to England when the child lived with her parents for fourteen months prior to the mother's removal of the child back to Puerto Rico. II Even in circuits that prioritize parental intent, the last shared intent does not always determine habitual residence. 12 In the Sixth Circuit, the intent of the parents is not usually relevant to a determination of habitual residence. 13 2. RIGHTS OF CUSTODY A father who resided in Turkey petitioned for his children who lived in the United States with their mother to be brought to Turkey for courtordered visitation. The father retained custody rights under Turkish law, and the children had been wrongfully removed. ICARA created a federal right of action to secure the effective exercise of rights of access. 14 Mother's removal of children from Switzerland did not revoke any custody rights that father retained at time of removal. Mother had sole right to remove under governing court order. Mother had legitimate reasons to come to the United States. IS A federal district court, applying the law of England, found that the English court would apply Puerto Rican law to determine whether the father had a right of custody.16 An Australian father did not clearly and unequivocally abandon his children at the time of their allegedly wrongful retention in the United States because he kept regular contact with the children by speaking to them weekly and sought to secure custody and 10. Prouse v. Thoreson, 2012 WL 5199182 (W.D. Wis. Oct. 22. 2012) (unpublished). 11. Patrick v. Rivera-Lopez, 2013 WL 708947 (D.P.R. Feb. 26, 2013) (unpublished) (noting that the mother had obtained a relocation order from a local court in Puerto Rico so that the child's stepbrother could accompany the family to their new home). 12. Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013) (noting that although American mother and Irish father agreed their son would be raised in Ireland, Illinois was son's habitual residence where he had lived all but seven and a half months in infancy). See also Aly v. Aden, 2013 WL 593420 (D. Minn. Feb. 14, 2013) (unpublished) (finding child's habitual residence was the United States, even though born in Belgium). 13. Selo v. Selo, 929 F. Supp. 2d 718 (E.D. Mich. 2013) (finding the child's eighteen-month stay in Michigan turned that state into the child's habitual residence). See also Jensie v. Jensie, 2012 WL 5178168 (E.D. Ky. Oct. 18,2012) (unpublished) (mother's decision to relocate to the United States from Sweden following her divorce did not affect the determination that the child's habitual residence was in Sweden). 14. Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013). 15. White v. White, 718 F.3d 300 (4th Cir. 2013) (not ordering return). See also E. Sussex Children's Servo V. Morris, 919 F. Supp. 2d 721 (N.D. W. Va. 2013) (twelve-year-01d's habitual residence was United Kingdom, so child should be returned to Social Service Agency exercising rights of custody). 16. Patrick V. Rivera-Lopez, 708 F.3d 15 (lst Cir. 2013) (finding that when the parents married after the birth of the child, the father had a right of custody). A Review of the Year in Family Law 509 visitation when first learning the mother intended to file for divorce. I? 3. DEFENSES a. One year and well-settled One of the hot button issues under the Hague Abduction Convention is the issue of tolling. If one parent hides a child from the other for long enough, can he or she take advantage of the well-settled defense? Granting certiorari from a Second Circuit decision, the United States Supreme Court has agreed to address whether a district court considering a petition for the return of an abducted child may equitably toll the running of the one-year period associated with Article 12's "well-settled" defense when the abducting parent has concealed the whereabouts of the child from the left-behind parent. 18 Some circuits have rejected equitable tolling. 19 The Eleventh Circuit, however, found the one-year period in Article 12 is subject to tolling so that a mother who hid the child from the father since her arrival in Florida in 2011 cannot take advantage of the defense. 2o In one case, a court determined that the children were "well settled" in their father's residence in the United States despite the father's unsettled immigration status because the mother delayed in filing a petition for return of the children for more than one year. By that time, the children had resided with their father for more than two years in the same residence, had strong bonds with their teachers, and had made significant progress in their educations. 21 Another court denied a fifteen-year-old child's return to Hungary filed eighteen months after she was removed to the United States. The child was well settled, doing well in school, had good family relations, and was of sufficient age and maturity that the court could take into account her views and objections to return. 22 17. Walker v. Walker, 701 F.3d 1110 (7th Cir. 2012). 18. Lozano v. Alvarez, 697 F.3d 41 (2d Cir. 2012), aff'd by 2014 WL 838575 (2013) (also deciding that a child's illegal immigration status in the abducted-to country did not bar finding that the child was now settled). 19. See Yaman v. Yaman, 730 F.3d 1 (1st Cir. 2013) (as a matter of first impression, oneyear period associated with now settled defense was not subject to equitable tolling); MatasVidal v. Libbey-Aguilera, 2013 WL 3995300 (D. Utah Aug. 5, 2012) (unpublished) (finding that equitable tolling did not apply even though the mother hid children from the father for over two years). 20. Fernandez-Trejo v. Alvarez-Hernandez, 2012 WL 6106418 (M.D. Fla. Dec. 10,2012) (unpublished). 21. Aranda v. Serna, 911 F. Supp. 2d 601 (M.D. Tenn. 2013). 22. In re D.TJ., 956 F. Supp. 2d 523 (S.D. N.Y. 2013). 510 Family Law Quarterly, Volume 47, Number 4, Winter 2014 b. Grave risk of harm or intolerable situation In a comprehensive opinion discussing the Article 13(b) defense, the Second Circuit concluded that it did not apply to a child taken by his mother from Singapore, notwithstanding prior instances of father's abuse of the mother. The child expressed unqualified love for both parents; the father had honored all custody orders issued by the Singapore courts; and there was no showing that the father ever physically disciplined the child, or that the child witnessed any spousal abuse, or that the child would likely lose his mother upon repatriation. 23 On the other hand, a grave risk was found where the eight-year-old child witnessed the mother having sex, was left alone, slept in bed with mother and her boyfriends, and her baby sister died from smoke inhalation from a fire pit mother lit in the house. 24 Clear and convincing evidence showed that the father's inability to control his temper outbursts presented a significant danger that he would act irrationally toward himself and his children, exposing the children to a grave risk of harm were they returned to Peru. The father did not show that an undertaking could be imposed sufficient to protect the children. 25 A father's membership in an Israeli community that condones polygamy and considers women subservient to men is not a basis for denying his petition for his daughter's return. 26 A court rejected a mother's claim that the child would be placed in an "intolerable situation" if returned to Mexico because of drug trafficking activity in the proximate location of the family's home, because she failed to show how the child would be personally threatened or in immediate danger if returned. 27 4. ATTORNEY'S FEES The fact that the prevailing petitioner's attorneys were employed by a legal aid entity did not preclude an award of attorneys' fees to the petitioner. The court found ICARA's fee-shifting provision did not in any way limit the scope of entities that could recover under it, and there was no indication that Congress intended to cut off legal-aid entities. 28 In a 23. Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013). 24. Londres v. Mateo, 2013 WL 1741979 (W.D. Tex. Apr. 23, 2013). 25. Acosta v. Acosta, 725 F.3d 868 (8th Cir. 2013) (noting there was evidence the father assaulted a taxi driver in the children's presence, verbally abused the mother in their presence, and shoved one of the children). 26. Walker v. Kitt, 900 F. Supp. 2d 849 (N.D. Ill. 2012) (finding return would not place her in an intolerable situation and rejecting an Article 20 defense because return of the child would not utterly shock the conscience of the court or offend all notions of due process). 27. Fernandez-Trejo v. Alvarez-Hernandez, 2012 WL 6106418 (M.D. Fla. Dec. 10,2012) (unpublished). See also Rovirosa v. Paetau, 2012 WL 6087481 (S.D. Tex. Dec. 10, 2012) (unpublished). 28. Saldivar v. Rodela, 894 F. Supp. 2d 916 (W.D. Tex. 2012). See also Geiger v. Herback, 2012 WL 5994935 (D. Minn. Nov. 30,2012) (unpublished). A Review of the Year in Family Law 511 remand from the Second Circuit, the court found that the mother had maintained an objectively reasonable legal position throughout the case and had noted concerns that by bringing a Hague action, rather than filing a proceeding in a Turkish court, the father may have been forum shopping. After reviewing various Turkish court orders issued prior to the father's Hague action, the district court determined that mother had a reasonable basis for believing she could remove the children from Turkey without his consent. "[A]lthough such a mistake of law was not a defense to the return action itself, it is 'a relevant equitable factor,' when considering whether a costs award is appropriate."29 C. Indian Child Welfare Act (ICWA) The United States Supreme Court heard the first ICW A case since Mississippi Band of Chocktaw Indians v. Holyjield 30and limited the applicability of the Indian Child Welfare Act (ICWA).JI ICWA provides that if a child is eligible for enrollment or membership in a Native American tribe or is enrolled, notice must be given to the child's tribe of any termination of parental rights or adoption proceedings. The tribe could then intervene and, based on placement preference priorities of ICW A, make a claim for placement of the child with tribe-selected adoptive placement. In the case of a non-Indian, unwed birth mother texted the birth father, who had Indian heritage, asking whether he wanted to pay child support or relinquish rights. He chose the latter. After the child's birth, mother placed the child who was 1.2% Cherokee (31256ths) with the adoptive parents who had supported her throughout the pregnancy. When the prospective adoptive parents filed a petition to adopt the child, the father sought custody and to have the tribe intervene. In a five-to-four opinion, the United States Supreme Court held the heightened burden under 25 U.S.C. 1912(f) (evidence beyond a reasonable doubt that continued custody of child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child) does not apply when the relevant parent never had custody of the child. The Court reasoned ICWA was meant to counteract removal of Indian children from Indian families. When a non-Indian parent with sole custodial rights voluntarily and lawfully initiates the adoption of an Indian child, "ICWA's primary goal of preventing the unwarranted removal of Indian children and the dissolution of families is not implicated."32 Similarly, the Court held subsection (d), 29. 30. 31. 32. In re S.E.O. 2013 WL 4564746 (S.D. N.Y. Aug. 28, 2013). 490 U.S. 30 (1989). Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013). Id. at 2561-62. 512 Family Law Quarterly, Volume 47, Number 4, Winter 2014 referring to the "breakup of the Indian family," does not apply when the parent abandoned the Indian child before birth and never had custody of the childY The dissent countered that the statutory language in subsections (d) and (f) should be interpreted as part of the whole, rather than focusing on a single phrase. In addition to the goal of avoiding the removal of children from Indian families, § 1901 (3) notes "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe."34 The dissent argued that to focus on intact families begs the question of what Congress set out to accomplish with ICWA and reserves ICWA's substantive protections for only those families that fit the majority's custodial-parent mold. Though never referred to in the majority opinion, its rationale resembles the "existing Indian family" doctrine, which several states used until the last five years. 35 Alaska determined that ICWA preempted its adoption rules. After a mother's parental rights were terminated, ICW A required placement of the child with a family member unless there was clear and convincing evidence for departing from ICWA preferences. 36 Arizona found good cause to deviate from the ICW A adoptive placement preferences in favor of a non-Indian foster family with whom the child had bonded and who would expose the child to his Navajo culture. 3? South Dakota found that the Department of Social Services provided sufficient "active efforts" to both the incarcerated and nonincarcerated parent to justify terminating his parental rights to the Indian children. 38 D. Bankruptcy A bankruptcy debtor's adoption tax credit for special needs children was a refundable tax credit and exempt as a form of public assistance. 39 A 33. Id. at 2562-64. 34. Id. at 2572-73, 2584 (Sotomayor, J., dissenting). Joining in the dissent, Justice Scalia argued further "continued custody" in subsection (f) could also refer to custody in the future and that this connotation is much more in accord with the rest of the statute. Id. at 2571-72 (Scalia, J. dissenting). 35. The existing Indian family doctrine was started in In re Adoption of Baby Boy L., 643 P.2d 168 (Kan. 1982). In 2009, the Kansas Supreme Court expressly overruled the case and found the doctrine to be at odds with the clear language of ICWA, which makes no exception for children with one non-Indian parent, and tribal interests in preservation of their most precious resource, their children, drove passage of ICWA. In re A.J.S., 204 P.3d 543 (Kan. 2009). 36. Native Village of Tununak v. State, 303 P.3d 431 (Alaska 2013). 37. Navajo Nation v. Arizona Dep't of Econ. Sec., 284 P.3d 29 (Ariz. Ct. App. 2012). 38. In re S.H.E., 824 N.w.2d 420 (S.D. 2012). 39. In re Johnson, 480 B.R. 305 (Bankr. N.D. Ill. 2012). A Review afthe Year in Family Law 513 former husband who did not have a regular source of income did not qualify for Chapter 13 bankruptcy so could not discharge divorce debts.40 Chapter 13 debtor's ex-wife brought adversary proceeding to except debt from discharge and judgment on defalcation claim. Court found that no marital trust relationship is established at the time of marriage under Washington law. Although ex-husband debtor unilaterally liquidated and spent funds from community account other than for support of the community around the time of separation, it did not constitute "defalcation."41 Questions continue to arise as to what constitutes a domestic support obligation (DSO). Courts found the following to be DSOs and nondischargeable: the husband's payment of the line-of-credit-debt, which was in part for the wife's benefit;42 a man's obligation in his divorce decree to make monthly payments to compensate his ex-wife for half of their total debt, which she paid off in their joint bankruptcy filing during their marriage;43 and money that a mother owes to a state social services agency to reimburse it for foster care provided to one of her children. 44 A debtor's obligation to pay a portion of his pension benefits to his ex-wife was not a DSO, but was in the nature of a property settlement. The pension settlement remained his property, was part of his bankruptcy estate, and was dischargeable upon completion of his Chapter 13 plan. 45 In another case, a woman's divorce-related obligation to pay a portion of her ex-husband's federal income. taxes was not automatically discharged in her bankruptcy proceeding because a divorce debt is not automatically discharged in bankruptcy and payments to third parties can be a divorce debt. 46 E. ERISA and Federal Pension Issues The parties' agreement to divide the husband's Tier 1 railroad retirement benefits is unenforceable because parties may not agree to divide that which federal law says is not divisible. 47 A couple of cases dealt with waiver of rights and designation of beneficiaries. Under ERISA, the rights of the surviving spouse of a 401(k) plan participant did not yield to the participant's designation of his parents as beneficiaries. The premarital agreement between the participant and his then-wife was ineffective to 40. In re Loomis. 487 B.R. 296 (Bania. N.D. Okla. 2013). 41. In re Mele, 501 B.R. 357 (B.A.P. 9th Cir. 2013). 42. Henderson v. Henderson, 389 S.W.3d 260 (Mo. Ct. App. 2012). 43. In re Fitch, 2013 WL 3005217 (Bania. E.D. Ky. 2013) (unpublished). 44. In re Hernandez, 496 B.R. 553 (B.A.P. 8th Cir. 2013). 45. Steele v. Heard, 487 B.R. 302 (Bania. S.D. Ala. 2013). 46. In re Mason, 58 A.3d 1153 (N.H. 2012). 47. Dapp v. Dapp, 65 A.3d 214 (Md. Ct. Spec. App. 2013); Kelley v. Kelley, 2012 Ark. App. 653 (Nov. 14,2012) (unpublished). 514 Family Law Quarterly, Volume 47, Number 4, Winter 2014 waive her right to funds in that plan. Even if she waived her right to plan funds, she did not acknowledge the effect, so her consent did not satisfy the statutory acknowledgment requirement. 48 Federal law governing military and civil service retirement plans did not preempt family court from ordering the designation of the wife as the beneficiary of survivor's benefits under husband's plans. The language of governing statutes expressly permitted court-ordered designation of beneficiaries. 49 A deceased pension plan participant's daughter is not entitled to survivorship benefits because the participant's husband, whom she had not seen for forty years, did not waive his rights to the benefits.50 Several years ago a presenter at a continuing education program prophesied that the seeds of tomorrow's litigation were being planted in the divorces with QDROs. He was correct. There are a growing number of cases involving QDROs. A domestic relations order (DRO) received by a pension plan after the participant's death seeking past child support payments is not a QDRO because under the plan, the deceased's surviving spouse was receiving benefits. Therefore, the DRO was too late. 51 The fully subsidized early retirement benefit payable under an employer's ERISA-governed retirement plan to qualifying participants who had not yet reached normal retirement age, who were effectively forced to retire before age sixty-five due to a reduction-in-force, and who executed a general release was an "employer subsidy for early retirement" within the meaning of the provision of a QDRO. Therefore, a retiree's ex-wife was entitled to 53% of the retiree's normal retirement benefit plus 53% of the value of any employer subsidy for early retirement. 52 Under ERISA, surviving spouse benefits generally vest at the time of the pension plan participant's retirement. A DRO issued after a plan participant's retirement that requires the distribution to an alternate payee of some or all of a surviving spouse benefit that is payable to another beneficiary under the form of benefit then in effect cannot be qualified because it requires a pension plan to pay the alternate payee a type or form of benefit not otherwise provided by the plan. 53 48. MidAmerican Pension & Emp. Benefits Plans Admin. Comm. v. Cox, 720 F.3d 715 (8th Cir. 2013) (citing 28 U.S.C. 1055(c)(I)(A)(iii)). 49. Barber v. Barber, 738 S.E.2d 845 (S.C. Ct. App. 2013). 50. Igoe v. 1199 SEIU Health Care Employees Pension Fund, 2013 WL 3467028 (S.D. N.Y. July 10,2013). 51. Bd. of Tr. Ind. State Council of Plasterers & Cement Masons Pens. Fund v. Steffens, 2012 WL 5207499 (E.D. Mo. Oct. 22, 2012) (unpublished). 52. Gruber v. PPL Retirement Plan, 520 Fed. Appx. 112 (3d Cir. 2013) (unpublished). 53. Langston v. Wilson-McShane Corp., 828 N.W.2d 109 (Minn. 2013). A Review of the Year in Family Law 515 III. State Cases A. Adoption 1. CONSENTS A perennial issue is when one parent can unilaterally consent to a child's adoption by a stepparent or by others. Where a parent abandons his or her children by not acting as a parent for a period of time, the parent's consent to adopt is not necessary.54 Even if he or she is incarcerated, a parent must try to communicate meaningfully with the child or his or her consent will not be necessary.55 A trial court order denying biological father's motion to intervene in adoption proceeding was immediately appealable, and the case was remanded to determine if he took prompt action to assert his rights. 56 If a putative father fails to file a timely notice of objection to a proposed independent adoption, it is an irrevocable deemed consent to the termination of his parental rights. 57 A father satisfied the support and communication requirement of the adoption consent statute by living with the mother both during and after her pregnancy, even if he did not know of the pregnancy.58 In a stepparent adoption, the trial court properly found that the biological father was withholding his consent to adoption, contrary to the best interests of the child, where the child has been integrated into the home of mother and stepfather, and other factors favored the adoption of the three-year-old. 59 A mother who voluntarily consented to termination of her rights to allow stepmother to adopt could not try to revoke the consent a year later even though she alleged the father had promised to forgive her child support obligation and to provide postadoption visitation, which were not 54. In re Adoption of Angelina K., 964 N.Y.S.2d 343 (App. Div. 2013) (father's consent was unnecessary where he had been given supervised visitation but had not seen the children for over three years, did not send gifts, and did not make child support payments for two years). See also In re De'Von M.F.C., 962 N.Y.S.2d 622 (App. Div. 2013) (finding father's consent to adoption unnecessary where he had not maintained substantial and continuous contact with child through support of visitation). 55. David S. v. Jared H., 308 P.3d 862 (Alaska 2013) (allowing grandparents to adopt the child). See also In re J.MJ., 404 S.W.3d 423 (Mo. Ct. App. 2013) (allowing grandparents to adopt where mother had willfully abandoned and neglected child). 56. In re S.DW., 745 S.E.2d 38 (N.C. Ct. App. 2013) (remanding for hearing on whether biological father took prompt steps after discovering existence of child to assume parental responsibility). 57. In re Sean M., 63 A.3d 28 (Md. 2013). 58. In re Adoption of S.K.N., 735 S.E.2d 382 (N.C. Ct. App. 2012). 59. In re J.C.F., 73 A.3d 1007 (D.C. 2013) (noting father's unmet mental health needs, compulsive dishonesty, ongoing domestic violence issues, ongoing gambling addiction among other things, including recent criminal history). 516 Family Law Quarterly, Volume 47, Number 4, Winter 2014 disclosed to the court. 60 A fiancee of the father could not adopt his child without the mother's consent. The court interpreted the notice to father's requirement to mandate sufficient notice to mother. 61 Technical noncompliance with the statute did not invalidate a mother's consent to a private adoption. 62 2. WHO CAN ADOPT Alabama refused to allow a same-sex spouse to adopt her spouse's child. Citing the Defense of Marriage Act, the court found it did not have to recognize the marriage or allow the adoption. 63 A Michigan court found that even if the trial court lacked jurisdiction to grant an adoption to the same-sex partner of the biological mother, the adoption was not void. 64 A former husband could not adopt his former stepchild, even with the mother's consent as in the child's best interest, because Kansas does not recognize second-parent adoption and allow the biological parent to also retain rights. 65 Foster parents had mixed results on trying to get standing to adopt. 66 While Minnesota law requires the court to consider the adoption petition of a relative before considering one of a nonrelative, the law does not require a preference when determining the best interests of the child. 67 3. MISCELLANEOUS Adopted children inherit the same as biological children and an adoptive child's right as a beneficiary of her adoptive father's will and two irrevocable trusts had vested when the widow placed the child for adoption again eight years after the father's death68 Adult mother's adoption by her relatives terminated visitation rights that maternal grandmother had been granted with mother's child. Visitation rights of grandmother were derived from mother, but upon mother's adoption, statute effected the termination of all legal relationships between adopted individual and her 60. In re Ibanez, 834 N.W.2d 306 (S.D. 2013). 61. In re Adoption of J.T.A., 988 N.E.2d 1250 (Ind. Ct. App. 2013). 62. In re Eliyahu, 961 N.Y.S.2d 124 (App. Div. 2013) (adoptive parents' failure to get certification of their qualifications before taking custody did not invalidate the mother's consent or prevent adoption). 63. In re Adoption of K.R.S., 109 So. 3d 176 (Ala. Civ. App. 2012). 64. Usitalo v. Landon, 829 N.W.2d 359 (Mich. Ct. App. 2012). 65. In re Adoption of I.M., 288 P.3d 864 (Kan. Ct. App. 2012). 66. Compare Youngblood v. S. Carolina Dep't Soc. Servs, 741 S.E.2d 515 (S.C. 2013) (finding foster parents not statutorily able to adopt after child had been removed); MS v. People, 303 P.3d 102 (Colo. 2013) (finding foster parents had no constitutionally protected liberty interest) with In re J.C., 399 S.W.3d 235 (Tex. App. 2012) (finding foster parents could adopt because termination of parental rights also terminated standing of grandparents). 67. In re S.G., 828 N.W.2d 118 (Minn. 2013). 68. In re Svenningsen, 959 N.Y.S.2d 237 (App. Div. 2013). A Review of the Year in Family Law 517 biological relatives, such that they were strangers for all purposes. 69 The more specific adoption jurisdiction provision of the Kansas Adoption and Relinquishment Act controlled a stepparent adoption where mother and stepfather had lived in Kansas for several years, even though father still lived in Mississippi, the divorce decree state. 70 An adult adoption from Pennsylvania is entitled to full faith and credit in Florida, even if the adoption could not have taken place in Florida. 71 Equitable adoption is extremely difficult to prove. To contest a will, the plaintiff must prove an intent to adopt and that the adoptive parent acted consistently with that intent. Merely treating a foster child or stepchild lovingly and on an equal basis with his or her natural or legally adopted children is not enough.72 B. Agreements 1. PREMARITAL The Uniform Premarital and Marital Agreement Act, approved by the Uniform Law Commission and the American Bar Association, has been enacted in Colorado, effective July 2014, and in North Dakota. Premarital agreements can be set aside if they are involuntary or if there is fraud. 73 Courts look carefully at spousal waivers.74 A waiver of spousal support was unconscionable due to the great disparity in the parties' respective incomes, assets, education, and inequality in bargaining power. Although the support waiver was not illegal as a matter oflaw, it was unenforceable and unconscionable at the time of enforcement where wife had not worked in long-term marriage and husband had over $10 million. The waiver, however, was severable from the agreement. 75 69. Scudder v. Ramsey, 2013 WL 992446 (Ark. Mar. 14,2013). 70. In re Adoption of H.C.H., 304 P.3d 1271 (Kan. 2013). 71. Dennis v. Kline, 120 So. 3d 11 (Fla. Dist. Ct. App. 2013) (probate law treated adopted persons, young or adult, equally with their biological counterparts). 72. DeHart v. DeHart, 986 N.E.2d 85 (Ill. 2013) (allowing plaintiff, whom testator had held out for sixty years as his son, to contest will on equitable adoption theory). 73. Cioffi-Petrakis v. Petrakis, 960 N.Y.S.2d 152 (App. Div. 2013) (evidence supported finding that husband fraudulently induced wife to execute prenuptial agreement and noted that the trial court found that wife's testimony was "credible," "convincing," "unequivocal," and consistent with additional corroborative evidence, and by contrast, found husband's "credibility to be suspect," due in part to his "patent evasiveness"). 74. In re Marriage of Melissa, 151 Cal. Rptr. 3d 608 (Ct. App. 2012) (upholding the trial court's invalidation of a spousal support waiver in the parties' 1985 premarital agreement as violating public policy at the time of execution). 75. In re Marriage of Facter, 152 Cal. Rptr. 3d 79 (Ct. App. 2013) (finding Harvard-trained attorney husband who drafted the agreement had income and assets greatly exceeding wife's at time of agreement; agreement provided that none of the property acquired during marriage would be community; wife would get $100,000 in event of divorce; another $100,000 if married fifteen years). 518 Family Law Quarterly, Volume 47, Number 4, Winter 2014 Washington found that a premarital agreement is not valid if it is both substantively and procedurally unfair. Where there was full disclosure and the contract was entered voluntarily, the court upheld the agreement. 76 Where a choice-of-Iaw provision in a premarital agreement does not expressly address issues, those issues are decided by the forum state. 77 2. MARIT ALiPoSTMARIT AL Courts are dealing with more cases involving marital or postmarital agreements. The Kansas Court of Appeals set out the differences between a premarital, separation, and postmarital agreement. The appropriate standard for assessing the enforceability of a postmarital agreement is a court review of the agreement to determine whether (l) each party had an opportunity to obtain separate legal counsel of each party's own choosing, (2) there was fraud or coercion in obtaining the agreement, (3) all material assets were fully disclosed by both parties before the agreement was executed, (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce, (5) the terms of the agreement were fair and reasonable at the time of execution, and (6) the terms of the agreement are not unconscionable at the time of dissolution. The court upheld a postmarital agreement under the circumstances, which gave wife most of the assets and found she was entitled to attorneys' fees under an indemnity provision. 78 Pennsylvania upheld a postnuptial agreement where the wife had waived full disclosure and there was no showing of fraud or duress. 79 3. SEPARATION OR PROPERTY SETTLEMENT A settlement agreement is unconscionable because the wife was unable to read it when the husband presented it for signing because of the medications she was taking for fibromyalgia and bipolar disorder, which severely impaired her cognition. 80 Parties' oral open-court stipulation to their property settlement agreement (PSA) satisfied the rule governing conditions under which a court may, on motion, enforce an agreement to settle pending litigation such that the trial court could later enter a divorce decree incorporating the PSA, even without the husband's signature. He had acknowledged, under oath, the PSA's key terms, he had reviewed it, 76. Kellar v. Estate of Kellar, 291 P.3d 906 (Wash. Ct. App. 2012). 77. O'Connor v. Miroslaw, 388 S.W.3d 541 (Mo. Ct. App. 2012). 78. In re Marriage of Traster, 291 P.3d 494 (Kan. Ct. App. 2012), appeal pending. See also In re Estate of Wilber, 75 A.3d 1096 (N.H. 2013) (noting the modem view is that spouses may enter into contractual relationships and courts will uphold them if they satisfy the criteria of contract formation and are otherwise fair). 79. Lugg v. Lugg, 64 A.3d 1109 (Pa. Super. Ct. 2013). 80. In re Callahan, 984 N.E.2d 531 (Ill. App. Ct. 2013). A Review afthe Year in Family Law 519 and he had agreed to its terms. 81 Invalidity of the child support provision in settlement agreement or not complying with state child support laws invalidated entire agreement. The provisions pertaining to child support constituted the main objective of the agreement. 82 Parol evidence was admissible to clarify marital-settlement-agreement provision regarding distribution of husband's military retirement benefits. Agreement was ambiguous as to whether former wife was entitled to 50% of full benefits or only 50% of benefits earned during the marriage. 83 The fact that a divorced couple's separation agreement contains a specific performance clause does not mean that they are automatically entitled to such a remedy because the party seeking relief must satisfy the prerequisites for specific performance in order to be entitled to it. 84 C. Alimony 1. ORIGINAL AWARD Several states are looking at alimony guidelines. Colorado enacted Act Concerning Guidelines for the Determination of Spousal Maintenance, which will apply to all new cases filed after January 1, 2014. Georgia ruled that a person in a void bigamous marriage is not entitled to alimony.85 A New Jersey court, while noting that fault is normally not part of the alimony determination, found that there is an exception for "egregious fault," which may have occurred when the wife embezzled a large sum of money from the family business. 86 Most courts look at the need of one spouse as opposed to the ability of the other to pay.87 One key issue then is income. Maryland determined that the fact that the wife is receiving Social Security disability benefits is not prima facie evidence of her inability to work. 88 Evidence was sufficient to support trial court's imputation of income to wife who claimed she was unable to work full-time due to debilitating, progressive, and observable medical conditions. No physician found wife to be medically disabled, and competent substantial evidence, including testimony of vocational expert, supported findings that wife was able to earn $15,196 81. Grisham v. Grisham. 289 P.3d 230 (Nev. 2012). 82. David v. Cruz, 960 N.Y.S.2d 29 (App. Div. 2013). 83. Toussaint v. Toussaint, 107 So. 3d 474 (Fla. Dist. Ct. App. 2013). 84. Reeder v. Carter, 740 S.E.2d 913 (N.C. Ct. App. 2013). 85. Wright v. Hall, 738 S.E.2d 594 (Ga. 2013). 86. Clark v. Clark, 57 A.3d I (N.J. Super. Ct. App. Div. 2012). 87. Boyle v. Boyle, 290 P.3d 456 (Ariz. Ct. App. 2012) (finding sixty-five-year-old wife with serious health issues leaving a thirty-three-year marriage was eligible for alimony). 88. Hiltz v. Hiltz, 73 A.3d 1199 (Md. Ct. Spec. App. 2013). 520 Family Law Quarterly, Volume 47, Number 4, Winter 2014 annually in available jobs accommodating her medical limitations without any additional credentials, and between $15,000 and $20,000 a year in suitable available jobs after receiving vocational skills training and rehabilitation. 89 Evidence established that husband's income was more than $400,000 per year due to taxable distributions, rather than only $208,000, which husband received as wages from his S corporation. The accountant explained that the corporation sometimes distributed additional money to shareholders, including husband, in the form of loans, but there were no documents to show a loan and husband's individual tax returns, as well as corporate tax returns and balance sheets, suggested that his income was greater than merely his wages. 90 A trial court erred when it determined that it could either divide the husband's business as marital property or use the income from the business for alimony, but not both. 91 South Dakota upheld a monthly award of $5,000 in alimony to a wife of fifteen years until death or remarriage and attorney's fees of $14,419. The husband had a business and earned over $19,000 a month, whereas wife's earnings were ten to twelve dollars an hour.92 An Arizona court upheld a spousal maintenance award of $50 a month. 93 A Florida court stated that because lump-sum alimony is nonmodifiable, it requires a special necessity and unusual circumstances above and beyond the justifications for an award of permanent alimony. In the case, the wife had been awarded all equity in the marital residence ($380,000) as lump-sum alimony, but she remarried four months after the divorce. The court found no special circumstances, and the husband had not had proper notice of the hearing. 94 2. MODIFICATION, TERMINATION, ENFORCEMENT As a general rule, alimony can be modified based upon a material change of circumstances. Sometimes parties agree to make alimony nonmodifiable, often to one party's detriment. Maryland upheld the parties agreed-to alimony provision making it nonmodifiable, even though the ex-husband is now permanently disabled, unemployed, has no income, and has filed for bankruptcy.95 In another case with a marital settlement agreement providing that spousal support was not modifiable except for 89. Broemer v. Broemer, 109 So. 3d 284 (Fla. Dist. Ct. App. 2013). 90. In re Marriage of Schenkelberg, 824 N.W.2d 481 (Iowa 2012). 91. Loutts v. Loutts, 826 N.W.2d 152 (Mich. Ct. App. 2012). See also Griffith v. Griffith, 2013 WL 1452930 (Iowa Ct. App. Apr. 10,2013) (unpublished). 92. Hagedorn v. Hagedorn, 822 N.W.2d 719 (S.D. 2012). 93. Boyle v. Boyle, 290 P.3d 456 (Ariz. Ct. App. 2012) (awarding nominal maintenance was not improper attempt to retain jurisdiction; wife was statutorily eligible for maintenance). 94. Taylor v. Taylor, 114 So. 3d 283 (Fla. Dist. Ct. App. 2013) (wife's remarriage ended entitlement to permanent alimony). 95. Bradley v. Bradley, 76 A.3d 395 (Md. Ct. Spec. App. 2013). A Review o/the Year in Family Law 521 specific circumstance resulting in a reduction of support to $2,000, the trial court erred in reducing alimony to less than $2,000 due to obligor's disability.96 A modification of alimony generally requires a material change of circumstances that makes the award inequitable or less necessary. Often this is because of remarriage or cohabitation of the obligee who now has someone else to rely on for support. Alabama determined that a divorced man's obligation to provide his ex-wife with health insurance coverage was alimony and it terminated when she remarried. 97 In Delaware, alimony can be terminated if the recipient and another person are regularly residing together, which means "living together with some degree of continuity," i.e., which may be in each other's residence. 98 In South Carolina, when the husband has his paramour stay with him five nights a week, he is continuously cohabiting and therefore his alimony may be terminated. 99 A wife's collection of after-tax proceeds of a million-dollar lottery prize she won from a lottery ticket she purchased from her separate funds after the husband had filed a divorce action constituted a substantial change of circumstances, and the pendente lite order awarding wife temporary maintenance could be modified.lOo Ex-husband's deteriorating health from a chronic illness and his resulting unemployment and bankruptcy were sufficient to support a reduction in the amount of his incapacity spousal maintenance obligation based on ex-wife's physical incapacity, even if there had been no improvement in ex-wife's medical condition where ex-wife had a current ability to earn some part-time income, which was not present at the time of the divorce. 101 Wife was able to get modification of decree to award alimony in solido and attorney's fees after she had been given all marital debt because husband discharged his liabilities in bankruptcy. 102 In making a determination of whether maintenance payments should be modified, the court may consider the extent to which a party's relevant expenses have been reduced as a result of a new marriage; however, this consideration is only relevant to determine if the existing award should be 96. In re Marriage of Hibbald, 151 Cal. Rptr. 3d 553 (Ct. App. 2013) (disability was not unforeseeable since he'd been suffering for eight years). 97. Peace v. Peace, 2012 WL 5077142 (Ala. Civ. App. Oct. 19,2012). 98. Paul v. Paul, 60 A.3d 1080 (Del. 2012). But see Charette v. Charette, 60 A.3d 1264 (Me. 2013) (former wife's cohabitation with boyfriend was not ground for modification of spousal support obligation set by agreement, but a showing of how boyfriend provided financial support). 99. McKinney v. Pedery, 749 S.E.2d 119 (S.C. Ct. App. 2013). 100. Questel v. Queste1, 960 N.Y.S.2d 860 (Sup. Ct. 2013). 101. Banks v. Banks, 980 N.E.2d 423 (Ind. Ct. App. 2012). 102. Yattoni-Prestwood v. Prestwood, 397 S.W.3d 583 (Tenn. Ct. App. 2012). 522 Family Law Quarterly, Volume 47, Number 4, Winter 2014 reduced, not increased.103 In Minnesota, the parties cannot agree to a retroactive modification of alimony beyond that which is authorized by statute. 104 Administrator of former wife's estate filed contempt action against former husband for nonpayment of alimony. The former husband was required to continue making post-remarriage payments following former wife's death, where payments appeared to be intended for the support and schooling of wife's children, not for former wife herself, and payments were voluntary contractual obligations agreed upon by former husband. 105 An Iowa judgment determined that unpaid alimony constitutes a lien against the payor's estate in case of death and does not need to be offset with the amount of Social Security benefits that the ex-wife will receive due to the ex-husband's death.106 D. Alternative Dispute Resolution 1. MEDIA nON The Texas Supreme Court endorsed the use of mediation as a means of resolving parental disputes. The court noted: Encouragement of mediation as an alternative form of dispute resolution is critically important to the emotional and psychological well-being of children involved in high-conflict custody disputes. * * * Children involved in these disputes-tellingly, referred to as "custody battles"-can face perpetual emotional turmoil, alienation from one or both parents, and increased risk of developing psychological problems. * * * For the children themselves, the conflict associated with the litigation itself is often much greater than the conflict that led to a divorce or custody dispute. The Legislature has thus recognized that, because children suffer needlessly from traditional litigation, the amicable resolution of child-related disputes should be promoted forcefully.107 When the parents have entered into a mediation agreement and have been represented by counsel as required by Texas law, the trial court commits error if it substitutes its judgment of what is in the best interests of the child. Only if there is demonstrated harm to the child should the agreement not be entered as a judgment. 108 The Indiana court noted that judicial policy strongly urges the amicable resolution of disputes and embraces a robust policy of confidentiality 103. Tudor v. Tudor, 399 S.W.3d 791 (Ky. Ct. App. 2013) (finding trial court erred in considering obligor's new wife's income in determining whether to grant his motion to decrease his maintenance to ex-wife). 104. Leifur v. Leifur, 820 N.W.2d 40 (Minn. Ct. App. 2012). 105. Goodell v. Oliver, 740 S.E.2d 170 (Ga. 2013). 106. Schober v. Schober, 2013 WL 4506413 (Iowa Ct. App. Aug. 21, 2013) (unpublished). 107. In re Lee, 411 S.w.3d 445, 450 (Tex. Dec. 6, 2013). 108. Id. A Review afthe Year in Family Law 523 of conduct and statements made during negotiation and mediation. 109 The trial court's sanctioning of a father who agreed to mediation in the parenting plan but failed to attend mediation as he was ordered to do on two separate occasions did not violate his procedural due process rights. 11O 2. ARBITRATION Arbitration in family law matters is gaining momentum partly because of the explosion in family law cases, pro se litigants, and decreasing court budgets. The Uniform Law Commission has appointed a drafting committee for a new Family Law Arbitration Act. Professor Barbara Atwood is the chair, and Linda Elrod is the reporter. The committee had its first meeting in October 2013, and the act will have its first reading in the summer of 2014. Drafts are available on the Uniform Law Commission website. An increasingly popular provision in a marital settlement agreement is that the parties will submit future disputes to arbitration. The purposes of the arbitration agreement are speed and convenience. Arbitrability of a dispute is determined by examining the arbitration agreement between the parties. If the reviewing court can fairly say that the parties' arbitration agreement covers the dispute, the inquiry ends because Washington strongly favors arbitration. The court determines whether the parties have agreed to arbitrate a particular dispute but cannot decide the merits of the controversy. Enforceability of the parties' stipulated agreement, like the parties' dispute regarding the substance of the spousal maintenance provision in the agreement, was a matter for an arbitrator and not a court. I I I In a Colorado case, the parties agreed to resolve their dispute through mediation and arbitration. If they could not reach agreement in mediation, the mediator would become the arbitrator. They reached a parenting agreement through mediation but submitted the property distribution to arbitration. The arbitrator affirmed the parenting provisions and ruled on property issues. When a party timely requests a de novo hearing on the parenting-time provision in an arbitration award, the trial court has the discretion to schedule a permanent orders hearing to determine if the arbitration award is in the best interests of the child. If no timely request is made, the trial court's authority is limited to confirming the award in its entirety. 112 New Jersey has indicated that once an arbitrator has functioned as a mediator, he may not thereafter resume the role of arbitrator and con109. Homer v. Carter, 981 N.E.2d 1210 (Ind. 2013) (finding that husband's purported oral statements made during mediation fell within the express inadmissibility of mediation evidence in a hearing on his petition to modify the mediated settlement). 110. Geiss v. Geiss, 835 NW.2d 774 (Neb. Ct. App. 2013). 111. In re Marriage of Pascale, 295 P.3d 836 (Wash. Ct. App. 2013). 112. In re Marriage of Rivera & Rivera, 300 P.3d 994 (Colo. App. 2013). 524 Family Law Quarterly, Volume 47, Number 4, Winter 2014 duct arbitration. The trial court was not permitted to maintain involvement in a case after the parties agreed to binding arbitration. 113 Financial issues in a matrimonial action were subject to arbitration in a rabbinical court. The stipulation of settlement provided that all disputes related to matters addressed in stipulation would be subject to arbitration before a rabbinical court, and arbitration was not barred on public policy grounds as issues of custody and visitation were not raised. 114 3. PARENTING COORDINATORS A trial court's allowance of parenting coordinators to resolve child custody dispute between parents, so long as access to the court is allowed for ultimate resolution of the dispute, is not an improper delegation of judicial power. 115 A court could terminate the use of a parent coordinator even though the original order had been for ten years. 116 When a marriage dissolution decree requires divorcing parents to engage a parenting consultant to resolve parenting disputes, the consultant is entitled to quasi-judicial immunity against either parent's claim for civil damages. ll7 E. Assisted Reproduction Several cases dealt with surrogacy contracts. In one case, the surrogate mother, her husband, and the child's biological father jointly filed an agreed-to petition to establish biological father's paternity and disestablish surrogate mother's maternity. The Indiana Court of Appeals held that the agreed-to petition was sufficient to overcome a presumption that surrogate mother's husband was father but did not disestablish surrogate mother's maternity.ll8 The Wisconsin Supreme Court found enforceable a parental agreement between a husband, wife, and a surrogate and her husband to carry a baby. The husband's sperm and surrogate's egg were used. After birth, the surrogate changed her mind. Although the trial court had refused to recognize the agreement, the Supreme Court found that surrogacy agreements are valid contracts and largely enforceable if not contrary to the best interests of the child. The agreement could not require the surrogate mother to terminate her parental rights, but the unenforceable provisions were severable. 119 113. 114. 115. 116. 117. Minkowitz v. Israeli, 77 A.3d 1189 (N.J. Super. Ct. App. Div. 2013). Wieder v. Wieder, 963 N.Y.S.2d 372 (App. Div. 2013). Dieterle v. Dieterle, 830 N.W.2d 571 (N.D. 2013). Mullendore v. Mullendore, 288 P.3d 948 (Okla. 2012). Van Gelder v. Johnson, 827 N.W.2d 430 (Minn. Ct. App. 2012). 118. In re Paternity of Infant T., 991 N.E.2d 596 (Ind. Ct. App. 2013). 119. In re F.T.R., 833 N.W.2d 634 (Wis. 2013). A Review of the Year in Family Law 525 A biological father brought an action to establish paternity and parental rights with respect to a child who was conceived using a "do-it-yourself' artificial insemination procedure. He had donated sperm so his sister's partner could have a baby. The Florida District Court of Appeals held he was a sperm donor who had no parental rightS. 120 On the other hand, the Florida Supreme Court found that a woman who donated her ova so her then partner could have a baby had standing to seek custody and visitation of the resulting child. The statute requiring a donor to relinquish parental rights violated due process and statutory differentiation between heterosexual and same-sex couples with respect to the requirement that a donor of biological material relinquish parental rights violated equal protection. 121 Virginia found that its law providing that the parent-child relationship may be established by genetic testing directly conflicts with the assisted conception statute. Paternity to be established solely on the basis of biological ties circumvents the artificial insemination statute that sperm donors cannot establish parentage by genetic testing. Unmarried female egg donor who is also gestational mother may be considered a parent under assisted conception statute. The fact that a male is unable to be the gestational carrier of the fertilized ovum as a result of biology is not discrimination under the Equal Protection Clause. 122 The Kansas Supreme Court upheld a coparenting agreement between lesbian partners. One partner conceived the children by artificial insemination. Denying a child conceived by artificial insemination the opportunity to have two parents through a coparenting agreement does not comport with the constitutional mandate to provide substantive legal equality for all children regardless of the marital status of their parents. A coparenting agreement between biological mother and same-sex partner was enforceable by the district court to the extent that it was in the best interests of the children; agreement contained no element of immorality or illegality and did not violate public policy, but rather was for the advantage and welfare of the children in that it provided them with substantive legal equality, regardless of the marital status of their parents. 123 Former same-sex partner could assert a common-law contract and promissory estoppel cause of action seeking custody and visitation of children conceived by artificial insemination and born to other partner. 124 120. A.A.B. v. B.O.C., 112 So. 3d 761 (Fla. Dist. Ct. App. 2013). 121. D.M.T. v. T.M.H., 79 So. 3d 787 (Fla. Dist. Ct. App. 2013), aff'd in part, 129 So. 3d 320 (Fla. 2013). 122. L.F. v. Breit, 736 S.E.2d 711 (Va. 2013). 123. Frazer v. Goudschaal, 295 P.3d 542 (Kan. 2013). 124. In re T.P.S., 978 N.E.2d 1070 (Ill. App. Ct. 2012). 526 Family Law Quarterly, Volume 47, Number 4, Winter 2014 F. Attorneys Cases involving attorneys this year discussed conflicts of interest, attorneys' lack of competence and diligence, as well as overt misconduct. As to conflict of interests, a brief conversation with the wife three years ago did not require disqualification of the attorney from representing the husband. 125 An attorney who confused his role as defense counsel in a juvenile delinquency proceeding with that of a guardian ad litem had a conflict of interest requiring reversal of the adjudication, even without a showing of any adverse impact on his performance. 126 Attorney, who had assisted husband in obtaining lawful permanent resident immigration status for husband's wife, was not required to obtain his informed consent before drafting marital separation agreement as wife's attorney. Any confidential information shared between husband and attorney in immigration matter was not substantially related to and therefore could not have been used to the detriment of husband in drafting separation agreements. 127 It was a conflict of interest for a lawyer to represent a husband in divorce and a wife in proceedings before the EEOC. 128 More disciplinary panels dealt with serious attorney misconduct. Lawyers found themselves in disciplinary difficulties for not being reasonably diligent or competent. 129 For example, an attorney obtained a divorce for a client in March 2009 and was to complete the findings of fact, conclusions of law, and judgment of divorce and file with the court. The client needed the QDRO and a reference. Lawyer failed to timely prepare the QDRO. In another case he had dismissed the divorce without client's consent and without notifying her. 130 District court's finding that an attorney committed extrinsic fraud when responding to his wife's discovery in his own protracted divorce had a preclusive effect in subsequent lawyer disciplinary proceeding. 131 Several cases deal with attorneys vio125. In re Marriage of Perry, 293 P.3d 170 (Mont. 2013). 126. In re Austin M., 975 N.E.2d 22 (Ill. 2012). 127. Shih Ping Li v. Tzu Lee, 62 A.3d 212 (Md. Ct. Spec. App. 2013). 128. Bd. Prof'! Responsibility v. VanVleet, 306 P.3d 1042 (Wyo. 2013). 129. See In re Disciplinary Proceedings Against Dade, 827 N.W.2d 86 (Wis. 2013) (sixtyday suspension where attorney failed to respond to client's phone calls regarding adjournment of trial date for divorce and also failed to file final financial disclosure statement and trial brief); Kentucky Bar Ass'n v. Thornton, 392 S.W.3d 399 (Ky. 2013) (l85-day suspension for, among other things, failure to keep client informed about status of her divorce case); Disciplinary Counsel v. Bogdanski, 985 N.E.2d 1251 (Ohio 2013) (incompetent representation of divorce client including late filing of complaint, failure to appear for hearings, and failure to explain that if client filed for bankruptcy the divorce case would be stayed pending completion). 130. In re Disciplinary Proceedings Against Haries, 25 N.W.2d 285 (Wis. 2013) (suspending lawyer for six months). 131. Iowa Sup. Ct. Att'y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169 (Iowa 2013) (suspending attorney for sixty days). A Review of the Year in Family Law 527 lating the "no sex" with client rules. 132 A basis for discipline that is becoming more common is "conduct prejudicial to the administration of justice and conduct reflecting adversely on fitness to practice law." In one case, the lawyer used threats and intimidation tactics against opposing counsel, the judge assigned to the case, the lawyer investigating an ethical complaint, and the deputy disciplinary administrator. 133 The trial court has broad discretion to award attorney's fees to one party, and its award is presumed to be correct. 134 Often attorney's fees may be awarded when the fees are incurred due to the other party's egregious litigation misconduct. Divorce had been issued over default where one party failed to appear and then died. His administrator filed multiple baseless motions. Fees are appropriate when (1) one party does not have ample liquid assets to pay, or (2) failure to award fees will undermine the other award. So the question is whether there was bad faith.135 If the parties have agreed to provisions in a settlement agreement that govern the award of attorney's fees, the agreement's provisions, rather than the statutory provisions, control. 136 Connecticut held that an attorney's charging lien can arise by operation of law to be applied to the assets or an interest in the assets assigned to a party in a dissolution of marriage action. 137 A law firm was not required to comply with the rule on lawyer-client business transactions when it obtained a promissory note for 132. Disciplinary Counsel v. Detwieler, 989 N.E.2d 41 (Ohio 2013) (attorney sent sexually explicit texts to client he was representing in divorce case). See also In re Alberg, 294 P.3d 1192 (Kan. 2013) (disbarring lawyer who had sex with divorce client, comingled funds, and charged a contingency fee in another divorce case); Md. Att'y Grievance Comm'n v. O'Leary, 69 A.3d 1121 (Md. 2013) (disbarring lawyer who acquired an improper proprietary interest in an ongoing divorce case when she began cohabiting with her client and sharing his child support obligations while trying to get them reduced). 133. In re Small, 294 P.3d 1165 (Kan. 2013) (suspending for six months the lawyer who also personally attacked his own client in a letter to another lawyer). 134. In re Marriage of Geske, 2013 WL 4556752 (Mo. Ct. App. Aug. 28, 2013). See also Schieffer v. Schieffer, 826 N.W.2d 627 (S.D. 2013) (denying mother's request to relocate to New York and for attorney's fees of $370,000 where both parties had sufficient assets to pay their own fees and mother had increased her costs by calling numerous experts). 135. Berzins v. Berzins, 51 A.3d 941 (Conn. 2012). See also Cave v. Scheulov, 64 A.3d 190 (D.C. 2013) (noting the. bad-faith exception permits an award of attorney's fees against a party who acted in bad faith, vexatiously, wantonly, or for oppressive reasons connected to the litigation); Goins v. Goins, 406 S.W.3d 886 (Mo. 2013) (awarding $7,500 to ex-wife to pay appellate attorney's fees where attorney ex-husband represented himself, had greater financial resources, and his twelve points on appeal were improperly phrased and difficult to analyze, causing her to incur more fees). 136. Fenster v. Fenster, 966 N.Y.S.2d 899 (App. Div. 2013) (agreement provided that if either defaulted and the injured party incurred attorney's fees and costs related to enforcing the agreement, the defaulting party would pay such fees). 137. Olszewski v. Jordan, 71 A.3d 1276 (Conn. App. Ct. 2013). 528 Family Law Quarterly, Volume 47, Number 4, Winter 2014 unpaid fees from a former client in the course of reestablishing an attorney-client relationship with her. 138 A woman has no cause of action against her former husband's lawyers for using her medical records-which they obtained from their client-to impeach her during cross-examination in a child custody trial. 139 G. Child Custody 1. JURISDICTION-UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) The UCCJEA sets out the basis for child custody jurisdiction with the preference going to the child's home state. New Mexico was child's "home state" and had jurisdiction over child custody although a divorce action had been filed in Texas first. The child was born in New Mexico and always lived there. Divorce and custody determinations involved different inquiries, and custody determinations were governed by the UCCJEA, regardless of whether there was an ongoing divorce. 14o Washington was deemed the home state of a child who lived in Iowa with the father for fifteen months, regardless of the mother's intent. 141 A child did not live in California for six consecutive months immediately before the commencement of a dependency proceeding, when the mother was arrested in California and deported to Mexico to be tried for murdering the child's father twenty-eight days before the dependency proceeding was commenced. 142 Georgia had jurisdiction to terminate the rights of adoptive parents of a child who came from Zambia to Georgia for extensive medical procedures and had lived in Georgia for more than six months with persons acting as parents. 143 It was error to determine home state jurisdiction on the basis that the child had a "cumulative presence" in West Virginia for seven months over a two-year span. The court should have determined whether West Virginia was the home state at any time six months prior to the commencement of the proceeding. 144 A child who was born in Costa Rica to Kansas residents, who returned with him to Kansas when he was six weeks old, was "temporarily absent" from the state for purposes of determining home state jurisdiction over the parents. Both parents were Kansas residents and had the child in Costa 138. Rafel Law Group PLLC v. Defoor, 308 P.3d 767 (Wash. Ct. App. 2013). 139. Yeager v. Dickerson, 391 S.W.3d 388 (Ky. Ct. App. 2013). 140. In re Dean, 393 S.w.3d 741 (Tex. 2012). 141. In re Marriage of Pereault, 829 N.W.2d 192 (Iowa Ct. App. 2013). 142. In re Gloria A., 152 Cal. Rptr. 3d 550 (Ct. App. 2013). 143. In re E.E.B.W., 733 S.E.2d 369 (Ga. Ct. App. 2012). 144. In re K.R., 735 S.E.2d 882 (W.Va. 2012). A Review a/the Year in Family Law 529 Rica so child would have dual citizenship. 145 New Jersey had jurisdiction over biological father's child custody suit under the UCCJEA if it had jurisdiction of the same type North Carolina had. Biological father had instituted suit in New Jersey where petition for adoption by mother's husband was pending. 146 Trial court did not err in dismissing petition for dissolution of marriage on ground of inconvenient forum, even if trial court had subject matter jurisdiction on basis that petitioner, a German citizen who had moved to Florida with her daughter in order for daughter to study there, also sought child custody and child support. Trial court found no rational basis to assume jurisdiction over a German court, in which the husband had filed a prior dissolution petition, in a case involving German citizens, a minor child who was a German citizen, and marital real and personal property interests in Germany.147 A Kentucky family court was divested of continuing exclusive jurisdiction to hear mother's motion to relocate to Texas and modify father's visitation where mother, child, and the father had relocated to Ohio before mother filed her petition to relocate. 148 2. FACTORS The standard used to award parenting time between parents is the best interests of the child. If same-sex parents are married or have entered into a civil union, both are considered parents the same as a heterosexual married couple. 149 The factors are varied, but generally include such things as stability for the child, the parenting capacity of each parent, health issues, child's preference, presence of domestic violence, ISO and ability of the parents to foster a relationship with the other parent. Generally, trial courts have discretion whether to interview children, and whether to do it in camera, as to their preferences for custody. lSI The child's preference, even if obtained, is only one factor and not deterrninative. 152 145. In re Marriage of McDermott, 307 P.3d 717 (Wash. Ct. App. 2013). 146. Jones v. Whimper, 736 S.E.2d 170 (N.C. 2013). 147. Rudel v. Rudel, 111 So. 3d 285 (Fla. Dist. Ct. App. 2013). 148. Wahlke v. Pierce, 392 S.W.3d 426 (Ky. Ct. App. 2013). 149. See Frazer v. Goudschaal, 295 P.3d 542 (Kan. 2013); Hunter v. Rose, 975 N.E.2d 857 (Mass. 2012) (recognizing a California registered domestic partnership as equivalent to Massachusetts marriage on principles of comity so that children were presumed to be both parties' children and awarding primary physical care to same-sex female partner who had not given birth to the child). 150. Mallory D. v. Malcolm D., 290 P.3d 1194 (Alaska 2013) (finding equal culpability precluded invoking the rebuttable presumption against either parent's custody). 151. Helen S. K. v. Samuel M. K., 288 P.3d 463 (Alaska 2012). 152. Mullendore v. Mullendore, 288 P.3d 948 (Okla. 2012) (no error in keeping two children 530 Family Law Quarterly, Volume 47, Number 4, Winter 2014 Morality is usually not a factor unless it has an adverse impact on the child. 153 Alabama found that a trial court may in an initial custody determination consider a parent's sexual conduct as it relates to that parent's character, without a showing that the conduct has been detrimental to the child. The court may also consider the fact that parent does not regularly attend church. 154 Kentucky found that a trial court violated mother's due process and equal protection rights when it used her sexual orientation as a determinative factor when awarding sole custody of the children to the father. Text messages exchanged between husband and wife's partner were admissible not to prove the truth of the matter, but to demonstrate the hostility between the parties. ISS Trial court granted father primary physical custody of out-of-wedlock child. After weighing all the factors, finding that the father was more likely to encourage a relationship with mother than mother would with father, and father would better attend to child's educational needs. 156 3. JOINT CUSTODY The last decade has seen strident attempts to enact statutes that mandate joint and shared residential custody. Trial judges have been careful to note that the best interests of the child is the primary consideration. A Louisiana court reiterated that even if a state statute requires joint custody and even when joint custody is in the best interest of the child, the statute does not mandate an equal sharing of physical custody.157 A trial court must find that joint physical custody is in the best interest of the child if neither has requested joint custody. Trial court erred in awarding without conducting a hearing. Father who had children five of fourteen days, plus one additional night, had de facto joint physical custody, and child support should be set. 15S Noting that joint custody is under age eight from testifying as father was not prejudiced); Hamrneren v. Hamrneren, 823 N.W.2d 482 (N.D. 2012) (no error in declining to interview ten-year-01d as to preference). See also Zubizaretta v. Hemminger, 967 N.Y.S.2d 423 (App. Div. 2013) (finding child's wishes not determinative and attorney's statement that child did not want to visit father was not sufficient evidence to terminate visitation). 153. Benson v. Loffelmacher, 824 N.W.2d 82 (S.D. 2012) (awarding custody of a sevenyear-old child born out of wedlock to the father where mother's live-in relationships with three different men in rapid succession were detrimental to the child). 154. D.M.P.C.P. v. T.J.C., Jr., 2012 WL 6554383 (Ala. Civ. App. Dec. 14,2012). 155. Maxwell v. Maxwell, 382 S.W.3d 892 (Ky. Ct. App. 2012). 156. MJ.M. v. MJ.G., 63 A.3d 331 (Pa. Super. Ct. 2013). 157. Moore v. Moore, 111 So. 3d 1120 (La. Ct. App. 2013) (finding no abuse of discretion to allow mother to move to Houston and to not award equal physical custody given the distance to Shreveport). 158. Hill v. Hill, 827 N.W.2d 304 (Neb. Ct. App. 2013) (the amount of time children spend with each parent is less important than how time is allocated in determining joint physical custody). A Review of the Year in Family Law 531 encouraged as a voluntary alternative for relatively stable, amicable parents behaving in a mature, civilized fashion, a New York court found that joint legal custody was not appropriate given the antagonism and hostility of the parents and awarded mother sole legal and physical custody.159 Joint physical custody is not mandatory. Trial court did not abuse its discretion in awarding joint custody of child born out of wedlock but naming the mother as domiciliary parent. 160 A Maryland court awarded joint custody but gave mother tie breaking authority.161 A North Dakota trial court needed to make findings of fact as to why joint physical custody was in a child's best interests because usually rotating custody is not. 162 A minor child of divorced parents who had a legal residence in both parents' houses and who was injured in an automobile accident could be domiciled in only one household for purposes of determining which parent's automobile insurance provided personal injury protection benefits for child under No Fault Act. 163 When a parent who shares joint custody of his or her child enters into the fictitious address program for domestic violence victims, the custodial parenting issues become intertwined with the victim's need for protection. The rights of a custodial parent to know where his or her child resides must be balanced against the important state interest in protecting victims of domestic violence served by the state's fictitious address program. By demonstrating that he or she shares joint legal custody with participant in Nevada's fictitious address program for domestic violence victims, a parent may meet the initial burden of proving that he or she has a right to know the coparent program participant's home address where the child is living during his or her custodial period with that parent. 164 When joint custody was no longer feasible due to an inability to communicate, court awarded mother sole legal and physical custody of eldest child; father was awarded custody of two younger children. 165 In an unusual case, the New York court terminated joint custody, giving sole custody and primary residency to the father where the mother had mental health issues, could not deal with the eldest child, and posted disparaging things about him on social media. 166 Trial court acted within its discretion 159. Wright v. Kaura, 964 N.Y.S.2d 573 (App. Div. 2013). 160. Sanders v. Brown, 110 So. 3d 1237 (La. Ct. App. 2013) (court should not have de novo review of trial court; substantial time, rather than strict equality of time, is objective of joint custody). 161. Reichert v. Hornbeck, 63 A.3d 76 (Md. Ct. Spec. App. 2013). 162. Hammeren v. Hammeren, 823 N.W.2d 482 (N.D. 2012). 163. Grange Ins. Co. of Mich. v. Lawrence, 835 N.W.2d 363 (Mich. 2013). 164. Falconi v. Sec'y State Nev., 299 P.3d 378 (Nev. 2013). 165. Mahoney v. Regan, 955 N.Y.S.2d 241 (App. Div. 2012). 166. Melody M. v. Robert M., 962 N.Y.S.2d 364 (App. Div. 2013). 532 Family Law Quarterly, Volume 47, Number 4, Winter 2014 in finding that mother's cohabitation with a registered sex offender neither presented significant risk to the children nor otherwise warranted modification of parties' divorce decree that had awarded father and mother joint legal and physical custody of their two children. !67 The court modified joint physical and legal custody to give mother primary custody of twin six-year-old girls who had allergy and urinary tract infection problems. Father allowed them to both be with the dog and smoked in their presence. Mother was more involved with activities and took them to the doctor. 168 4. VISITATION Reasonably probative evidence is required before a parent's visitation rights can be curtailed. A Georgia court found a protective order preventing the father from taking a deposition of the thirteen-year-old girl he was alleged to have abused was premature. !69 A court erred in denying the mother all visitation solely because she was incarcerated. The court should have considered whether the visits would endanger the children's health or safety.!70 A court cannot delegate its responsibilities to determine the visitation schedule to third parties. The trial court had ordered visitation with the noncustodial parent, which would increase over time depending on the opinions of a therapist and pediatrician. While third parties can determine time and place, they cannot determine whether to allow "progressive visitation."!7! The court properly ordered exchange of children at police station where prior exchanges with father never occurred on time and often caused conflict.!72 A prison regulation denying inmate visitation did not violate due process where the parent was convicted of sex offenses involving minors. 173 5. MODIFICA TION/RELOCA TION Courts modify custody when there has been a material change of circumstances and the children's best interests would be served by the change. 174 The fact that the father became a better parent after custody 167. Watkins v. Watkins, 829 N.W.2d 643 (Neb. 2013) (noting mother had resided with the boyfriend for approximately eighteen months, he was in his ninth year of a fifteen-year registration period, had been married since his offense and had two children; in addition, the parties' oldest child, who was emancipated testified that when she lived with mother and her boyfriend, she did not have any problems with him). 168. Tidmore v. Tidmore, 114 So. 3d 753 (Miss. Ct. App. 2013). 169. Galbreath v. Bralea, 733 S.E.2d 412 (Ga. Ct. App. 2012). 170. In re Marriage of Stewart, 302 P.3d 818 (Or. Ct. App. 2013). 171. Engel v. Engel, 71 A.3d 1124 (Vt. 2012). 172. In re Regan v. Regan, 48 A.3d 920 (N.H. 2012). 173. Mitchell v. Smith, 817 N.W.2d 742 (Minn. Ct. App. 2012). 174. Mulkey v. Mulkey, 118 So. 3d 357 (La. Ct. App. 2013) (finding change of circum- A Review of the Year in Family Law 533 was awarded did not entitle him to a change of custody where there was no harm to the child in the mother's household. 175 In one case there was a transfer of custody to the father when the child born out of wedlock was fourteen. Mother's family has been referred to a "home-based therapy program" due to stepfather's behavior. 176 Relocation issues that arise at the time of the initial custody order are usually determined on a best-interest-of-the-child standard, rather than using special statutory relocation standards that come into play in modification cases.177 Wyoming changed its presumption in favor of allowing the custodial parent to move and found that when a mother proposed to move the children to Virginia, it was a change of circumstances justifying a hearing on whether the move was in the best interests of the child. 178 In looking at the best interests of the child, courts are concerned with the benefits the child will derive directly or indirectly from the enhancement of the relocating parent's general quality of life. In a Louisiana case, the court allowed the mother to move to Houston to be near her family where she would be better able to support herself with her limited job skills and her father, who worked for an airline, could travel more easily (and for free) to visit. 179 The Connecticut Court of Appeals upheld the trial court's denial of a mother's request to relocate with her son to Boston. The parents had joint legal custody, but mother had primary residential custody. The parties had agreed that the mother would not move more than 32.5 miles without a court order or father's consent. She had remarried and had two children with her new husband who lived in Boston. While the trial court found that there was a legitimate purpose, it found the move was not in the child's best interest. 180 6. THIRD-PARTY CUSTODY AND VISITATION A third party can petition for custody if he or she can demonstrate abandonment, abuse, or extraordinary circumstances. That a third party would stances in nine years with dynamics of both households changing); Sano v. Sano, 949 N.Y.S.2d 780 (App. Div. 2012) (finding mother's newfound interest in occult not sufficient change of circumstances). 175. In re Marriage of Epler, 309 P.3d 1133 (Or. Ct. App. 2013). 176. Roth v. Haag, 834 NW.2d 337 (S.D. 2013). 177. Kremer v. Kremer, 827 N.W.2d 454 (Minn. Ct. App. 2013). See also Estopina v. O'Brian, 68 A.3d 790 (D.C. 2013) (awarding mother custody and allowing her to move to Virginia). 178. Amott v. Amott, 293 P.3d 440 (Wyo. 2012). 179. Moore v. Moore, III So. 3d 1120 (La. Ct. App. 2013). 180. Regan v. Regan, 68 A.3d 172 (Conn. App. Ct. 2013) (court did not require mother to prove physical location was economic necessity nor punish her for marrying out-of-state husband). 534 Family Law Quarterly, Volume 47, Number 4, Winter 2014 be a better custodian is not an extraordinary circumstance,181 nor is a parent's undocumented immigration status. 182 A paternal grandparent could petition for visitation under paternity provisions, even though parties executed a recognition of paternity form. 183 A paternal grandmother could not use grandparent visitation statute to seek visitation where father had murdered mother of children and was in jail. 184 On petition for grandparent visitation, trial court must presume that fit parent makes decisions that are in the child's best interest. Therefore, the grandmother had the burden of overcoming the presumption by clear and convincing evidence that visitation was in the child's best interest. The right of paternal grandmother to petition for visitation of child after father's death was not limited to statute authorizing noncustodial visitation to grandparent who assumed financial support of child. 185 Award of third-party visitation to maternal grandmother on alternating weekends, alternating holidays, and every Christmas Day was more than minimally intrusive of mother's parental rights and thus impermissibly impinged on her fundamental constitutional right to make decisions concerning the care, custody, and control of her child; weekend-visitation schedule placed child with maternal grandmother nearly twenty percent of the time, not counting the additional holiday time. 186 Colorado found that a great grandmother of a child lacked standing in dissolution action to seek visitation because a great grandmother was not a grandparent. 187 H. Child Support 1. INCOME Even though "all income" is considered for child support, as a general rule, an inheritance is not considered income unless the child's needs are not being met. 188 An unemployed father's lottery winnings and interest generated from the investment of those winnings could be considered in calculating his child support, in addition to potential income that could be earned by imputing employment income. 189 The trial court did not err in including the father's overtime wages in child support calculation. 190 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. Veldheer v. Peterson, 824 N.W.2d 86 (S.D. 2012). Ramirez v. Luna, 830 N.W.2d 163 (Minn. Ct. App. 2013). Christianson v. Henke, 831 N.W.2d 532 (Minn. 2013). In re Guardianship of A.JA, 991 N.E.2d 110 (Ind. 2013). Walker v. Blair, 382 S.W.3d 862 (Ky. 2012) (overruling prior cases). T.w. ex reI. R.w. v. T.H., 393 S.W.3d 144 (Mo. Ct. App. 2013). In re M.D.E., 297 P.3d 1058 (Colo. App. 2013). Crawford v. Schulte, 829 N.W.2d 155 (S.D. 2013). McMurchie v. McMurchie, 304 P.3d 751 (Or. Ct. App. 2013). Williams v. Dep't Human Servs., 116 So. 3d 176 (Miss. Ct. App. 2013). A Review a/the Year in Family Law 535 Child support rule defining adjusted annual income as "the parent's total income from all sources minus child support for children from prior relationships living with the parent" did not entitle biological father to a deduction for one out-of-wedlock child, for the support he provided to a later-born child of another woman with whom he had a long-term relationship. The father's support obligation for the first child arose on the date of the child's birth; the date of inception of the prior relationship was immaterial. 191 Determination of whether undistributed earnings of an S corporation are attributable to the parent-shareholder must be made based on the particular circumstances presented in each case. The court looks at the shareholder's level of control over corporate distributions as measured by (1) the shareholder's ownership interest, (2) legitimate business interests justifying retained corporate earnings, and (3) evidence of an attempt to shield income by means of retained earnings. Regardless of a parent-shareholder's ownership percentage in an S corporation, the parent shareholder has the burden to present evidence that he or she does not have access to retained income, in order to demonstrate that such income is not available for purposes of determining income available for child support. 192 Evidence was sufficient to impute income to a father who lost a $68,000-a-year job prior to divorce. He had paid $5,080 for a motorcycle repair, rather than his child support arrearage of $800, so the court found he was able. 193 When a trial court bases child support on a party's earning capacity, the court must determine the specific dollar amount of the parent's earning capacity.194 2. DEVIATIONS Settlement agreement and the order effectuating it, which purported to opt out of the basic child-support obligations set forth in the Child Support Standards Act (CSSA), was invalid. The agreement failed to recite that the parties were aware of the CSSA guidelines, failed to set forth the basic child support obligation, and failed to set forth the reasons for deviating from the guidelines. 195 A parent who has primary physical custody of a child in a shared-custody arrangement where the time is not equally divided is the custodial parent and cannot be ordered to pay child support to the noncustodial parent. Only the noncustodial parent can be directed to pay child support. 196 191. 192. 193. 194. 195. 196. Coleman v. McCullough, 290 P.3d 413 (Alaska 2012). Tuckman v. Tuckman, 61 A.3d 449, 459 (Conn. 2013). In re Muller, 62 A.3d 770 (N.H. 2013). Tanzman v. Meurer, 70 A.3d 13 (Conn. 2013). David v. Cruz, 960 N.Y.S.2d 29 (App. Div. 2013). Rubin v. Della Salla, 964 N.Y.S.2d 41 (App. Div. 2013). 536 Family Law Quarterly, Volume 47, Number 4, Winter 2014 An order of zero dollars for either parent in split custody was reversible error. 197 Several courts dealt with upward deviations. Trial court should have analyzed the propriety of upward deviation of child support even though the residential parent could provide children with predissolution lifestyle. 198 Sufficient evidence supported trial court's conclusion that an upward deviation from the presumptive amount of child support would be in the best interests of the children based on their more expansive needs. Absent an upward deviation, the two younger children would miss out on trips, camps, and other comforts of life they used to enjoy. There was a large disparity between the parties' household budgets, especially for entertainment, with mother's household budget lower than it should be. 199 In a case where income exceeded the $20,000 guidelines by nine times, the court ordered father to pay $2,815 base support and did not extrapolate. The children were to live with him half the time, and the father had to pay 95% of special-needs child's therapy costs and health costs, estimated to be $15,800 a month. The court did not allow additional child support. 2OO Trial court's award of child support in an amount that was an upward deviation of only $900 per month from the presumed level of $2,102 per month was not clearly erroneous in divorce action, although husband's income exceeded highest enumerated monthly income of $12,500 per month. Wife did not present any specific evidence of child's appropriate needs, and wife did not propose specific amount for upward deviation in child support. 201 Child's enrollment at community college to make up credits required for his high-school graduation constituted enrollment in a secondary school. Father's obligation to pay child support extended past age eighteen. 202 Alabama upheld trial court's award to require father to pay living-expense assistance for adult child who was mentally and physically disabled. 203 A Missouri court used common sense in noting that the trial judge could award all four dependency exemptions to the mother. However, if that would mean that one or two would go unused, the court should reevaluate that award and should attempt to structure the award to maximize the overall financial benefit of the exemptions to the family unit. 204 197. 198. 199. 200. 201. 202. 203. 204. Parker v. Parker, 745 S.E.2d 605 (Ga. 2013). Nash v. Nash, 307 P.3d 40 (Ariz. Ct. App. 2013). Nuveen v. Nuveen, 825 N.W.2d 863 (N.D. 2012). Schieffer v. Schieffer, 826 NW.2d 627 (S.D. 2013). Hoverson v. Hoverson, 828 N.W.2d 510 (N.D. 2013). Richardson v. Boozer, 57 A.3d 1028 (Md. Ct. Spec. App. 2012). Ruberti v. Ruberti, 117 So. 3d 383 (Ala. Civ. App. 2013). Kohl v. Kohl, 397 S.W.3d 510 (Mo. Ct. App. 2013). A Review of the Year in Family Law 3. 537 MODIFICATION/TERMINATION Evidence that husband's gross monthly income had increased by nearly $2,000 and that his net worth had increased by nearly $3 million during period between entry of final divorce decree and wife's petition for modification of child support was sufficient to authorize an upward modification of his child support obligation. 205 Trial court could not prohibit mother from applying for governmental assistance for children as a condition to award of child support from father. The condition had nothing to do with present financial circumstances of the parties or the needs of their children, did not represent any statutorily authorized basis for a deviation from the presumptive amount of child support, but was an improper attempt to make a predetermined finding about an alleged future change in the financial circumstances of the parties that would justify a modification of child support. 206 When a complaint seeking modification of a child support order is filed, modification is presumptively required whenever there is an inconsistency between the amount of child support that is to be paid under the existing support order and the amount that would be paid under the guidelines. To warrant a modification of child support, the statute governing child support orders for children of divorced parents does not require that the discrepancy or inconsistency between the existing order and the guideline amount of child support result from a material and substantial change in circumstances. 207 If lump-sum support is ordered for more than one child, the parent should ask for modification when children age out. A father was not able to get child support paid as overpayment offset in regard to youngest child because that would result in a retroactive modification of child support. 208 A Kansas Supreme Court found that a court was not authorized to vacate a temporary child support order that had resulted in arrearages. Modification could only go back one month.209 An eighteen-year-old daughter's conduct toward her father was so extreme that the court terminated the father's obligation to contribute toward her college expenses. The daughter had joined with the mother in trying to terminate his parental rights and had refused to see him for two years. 210 205. 206. 207. 208. 209. 210. Odom v. Odom, 733 S.E.2d 741 (Ga. 2012). Singh v. Hammond, 740 S.E.2d 126 (Ga. 2013). Morales v. Morales, 984 N.E.2d 748 (Mass. 2013). Heumiller v. Heumiller, 821 N.W.2d 847 (S.D. 2012). In re Marriage of Brown, 291 P.3d 55 (Kan. 2012). Stasny v. Wages, 116 So. 3d 195 (Miss. Ct. App. 2013). 538 4. Family Law Quarterly, Volume 47, Number 4, Winter 2014 ENFORCEMENT Supplemental security income (SSI) is not attachable to satisfy a child support obligation because it is not money received for employment. 211 A New Hampshire court upheld the parties' court-approved stipulation that father would maintain an $800,000 life insurance policy for children's benefit. 212 The Kansas Supreme Court, however, found that a court could not require a child support obligor to cooperate with obligee's efforts to get life insurance on the life of the obligor. It is against public policy if the obligor objects to the order. 213 The Due Process clauses of the Ohio and United States constitutions do not guarantee an indigent parent the right to appointed counsel at a civil contempt purge hearing involving nonpayment of child-support obligations. The parent's interest in personal liberty is diminished by the time of the purge hearing because parent's continued freedom has been conditioned on compliance with purge requirements, it is highly unlikely that purge hearing will result in an erroneous decision, and government has a strong interest in ensuring that parents financially support their children and in resolving those matters as quickly as possible. 214 Equitable principles embodied in the Uniform Interstate Family Support Act (UIFSA), as well as traditional common-law principles of comity, required family court to enforce Canadian child support order providing for award of interest on child support arrears, absent a showing of fraud in the procurement of the judgment or that recognition of the judgment would do violence to some strong public policy. 215 Duration of father's child-support obligation was a nonmodifiable aspect of the Florida divorce judgment. The trial court lacked authority under UIFSA to extend father's child-support obligation after children had reached the age of majority under Florida law, even if children would have been entitled to continued support under post-eighteen provisions of Massachusetts child support law. 216 I. Cohabitants Colorado has civil unions as of May 1, 2013. Washington found that the intent of one party to end an intimate committed relationship is sufficient to dissolve the relationship. Mutual intent to end is not needed.217 211. 212. 213. 214. 215. 216. 217. Sykes v. Bank of America, 723 F.3d 399 (2d Cir. 2013). In re Regan, 48 A.3d 920 (N.H. 2012). Hall v. Hall, 286 P.3d 210 (Kan. 2012). Liming v. Damos, 979 N.E.2d 297 (Ohio 2012). Jasen v. Karassik, 956 N.Y.S.2d 92 (App. Div. 2012). Freddo v. Freddo, 983 N.E.2d 1216 (Mass. App. Ct. 2013). In re O.W.F., 285 P.3d 208 (Wash. Ct. App. 2012). A Review afthe Year in Family Law 539 The Kansas Supreme Court found that the district court has inherent equitable authority to divide the property of same-sex cohabitants, which was jointly acquired or intended to be jointly acquired.218 A man who was required to pay the mortgage on his home as part of an Alaska domestic violence order, while his cohabitant lived in the home, is not entitled to reimbursement in the couple's property division, although it would have been within the court's discretion to do so.219 Vermont refused to impose a constructive trust to give a woman an interest in shared property when she was separating from a cohabitant. The majority seemed concerned that she had engaged in fraud by transferring her interest to others to qualify for SSDI. 220 Although they were not married, parties who had been in a relationship for twelve years formed a domestic partnership and intended to share in the fruits of their relationship as though married, thereby justifying an equal division of their property. 221 J. Divorce 1. JURISDICTION This year saw a large number of cases challenging the jurisdiction of a court to grant a divorce. In one case, the fact that the husband underwent gender reassignment surgery before the divorce petition was filed did not impact the fact that when the marriage contract was entered into, the husband was a man and the wife was a woman. Therefore, the trial court had jurisdiction to grant a divorce, even though the state constitution and statutes precluded the recognition or validity of a marriage contracted between two persons of the same sex. 222 A New York court held that a wife established that her multiple changes in residency were only physical and that she never at any time intended to change her domicile from New York. The husband failed to submit proof that she had abandoned her New York domicile and intended to adopt a new one.223 Evidence supported trial court's finding on the basis of comity that it lacked subject matter jurisdiction to hear former wife's petition for dissolution of marriage in Connecticut, despite her allegation that the foreign 218. Frazier v. Goudschaal, 295 P.3d 542 (Kan. 2013). 219. Reed v. Parrish, 286 P.3d 1054 (Alaska 2013). 220. Shattuck v. Peck, 70 A.3d 922 (Vt. 2013). 221. Reed v. Parish, 286 P.3d 1054 (Alaska 2012) (finding parties made many joint financial decisions, jointly leased an apartment, jointly purchased a vehicle and obtained insurance for it, reporting their marital status as "M" on the paperwork, held themselves out as married on several occasions, referred to each other as husband and wife in public, and signed a health insurance domestic partnership affidavit to obtain coverage). 222. In re Burnett Estate, 834 N.W.2d 93 (Mich. Ct. App. 2013). 223. Black v. Black, 968 N.Y.S.2d 722 (App. Div. 2013). 540 Family Law Quarterly, Volume 47, Number 4, Winter 2014 judgment was procured by fraud. Former husband's affidavit and copy of Lithuanian appellate court decision provided undisputed facts that former wife petitioned for dissolution in Lithuania, Lithuanian court entered divorce decree from which former wife appealed seeking to excuse or defer her payment obligation under the dissolution agreement. She did not allege fraud on part of former husband, and Lithuanian appellate court found no merit in her appeal as former wife received "greater share" of marital property under Lithuanian divorce decree and retained benefits from that portion of the award.224 A divorce action filed in Illinois by a resident of that state after her husband filed for divorce in India need not be dismissed on procedural grounds, forum non conveniens, or comity grounds, nor in order to avoid duplicative litigation. 225 A trial court acted within its discretion in finding that a husband had the mental capacity to end his marriage because even though the husband had been diagnosed with dementia, he was within the statutory presumption of capacity to make a reasoned decision to end a marriage and the court observed the husband's demeanor and mental state first hand. 226 2. FAULT AND No FAULT DIVORCE A trial court's order divorcing a couple in a fault-based proceeding violated state law, because it was based only on their stipulation without any proof of the grounds for divorce being presented or considered. 227 A divorce court did not abuse its discretion in finding that spouses who had accused each other of adultery and had each denied the other's accusation failed to establish it and thus were not entitled to a divorce on that ground. 228 In South Carolina, a trial court properly granted a divorce on the basis of habitual drunkenness because the evidence showed the husband drank alcohol to excess on a regular basis during the latter part of their marriage; became loud, rude, and verbally abusive when he drank and behaved worse with every drink; refused to seek professional help; and routinely went to bed drunk at 8:00 p.m. 229 K. Domestic Violence A trial court acted within its discretion in renewing a domestic violence restraining order against an ex-boyfriend based on evidence that he vio224. 225. 226. 227. 228. 229. Zitkene v. Zitkus, 60 A.3d 322 (Conn. App. Ct. 2013). In re Marriage of Murugesh and Kasilingam, 993 N.E.2d 1109 (Ill. App. Ct. 2013). In re Marriage of Greenway, 158 Cal. Rptr. 3d 364 (Ct. App. 2013). Dubose v. Dubose, 2013 WL 2451335 (Ala. Civ. App. 2013). Fore v. Fore, 109 So. 3d 137 (Miss. Ct. App. 2013). Curry v. Curry, 741 S.E.2d 558 (S.c. Ct. App. 2013). A Review of the Year in Family Law 541 lated the restraining order by going to the ex-girlfriend's workplace to talk with a friend who was experiencing a substance abuse relapse. 23o Illinois upheld its prohibition against stalking, which was under attack as unconstitutionally vague.231 Absent exigent circumstance that prevents a petitioner's appearance, due process mandates that the trial court convene an ex parte hearing prior to entering a temporary protection from abuse order, rather than simply conduct in camera review of the petition. When compared to the requirement that an alleged victim appear before the trial court during an ex parte proceeding, the practice of relying upon the petitioner's verification and acknowledgment that any false statements are subject to penalties is inadequate protection against fabricated allegations of abuse. 232 A trial court was without authority to order the victim of domestic abuse in a same-sex relationship to undergo a psychological evaluation, even though it had the authority to refer her to a psychologist, because requiring a victim of domestic violence to undergo a psychological evaluation would impose a substantial financial and emotional burden on the victim and would have a chilling effect on victims of domestic violence in seeking the protection of the courtS.233 As a coparent, an unwed father could seek the disclosure of a mother's fictitious address, pursuant to Nevada's fictitious address program for domestic violence victims, by extraordinary writ. In determining whether to grant the writ, the district court had to consider whether the mother could establish that the father was a perpetrator of domestic violence, and if established, the burden shifted to the father to show that, despite the domestic violence, disclosure was in the child's best interest. 234 In a very interesting case, a District of Columbia court was required to enforce a Maryland consent decree in which the husband promised that he would "endeavor" to dismiss his District protection order because the decree was entitled to full faith and credit and, even if it was not, it should be enforced on the basis of comity.235 L. Marriage Same-sex marriage states nearly doubled from 2012-13. Same-sex marriage is now allowed in California (2008,2013), Connecticut (2008), Delaware (2014), the District of Columbia (2010), Hawaii (2014), Illinois 230. 231. 232. 233. 234. 235. Lister v. Bowen, 155 Cal. Rptr. 3d 50 (Ct. App. 2013). Nicholson v. Wilson, 993 N.E.2d 594 (Ill. App. Ct. 2013). Ferko-Fox v. Fox, 68 A.3d 917 (Pa. Super. Ct. 2013). Touchet v. Jones, 2013 WL 4224095 (Fla. Dist. Ct. App. Aug. 16,2013). Falconi v. Sec'y State Nev., 299 P.3d 378 (Nev. 2012). J.J. v. B.A., 68 A.3d 721 (D.C. 2013). 542 Family Law Quarterly, Volume 47, Number 4, Winter 2014 (2014), Iowa (2009), Maine (2012), Maryland (2012), Massachusetts (2004), Minnesota (2014), New Hampshire (2010), New Jersey (2013), New Mexico (2013), New York (2011), Rhode Island (2013), Vermont (2009), and Washington (2012). In Wisconsin, there is a distinction between a suit for an annulment and a petition for a declaration of invalidity of a marriage. The latter can be brought after the death of one of the parties to the marriage. 236 An Ohio court found that the parties did not have a present agreement to marry in praesenti as required to establish a common law marriage prior to the date it was prohibited in Ohio. 237 M. Names The New Jersey Supreme Court eliminated the presumption that a custodial parent's decision to change the surname of a child was presumptively in the child's best interest. In renaming disputes between parents who agreed on a child's surname at birth but find themselves later in a dispute over whether to alter the child's surname, the standard to be applied is the best interests of the child whether or not the parents were married at the time of the child's birth. 238 A determination that changing child's surname to include biological father's surname was in the best interest of the child was adequately supported by trial court's findings that mother and child no longer shared the same surname after mother married, that change would strengthen the bond between father and son, and would ensure that child bonded with father's family.239 In New Hampshire, name changes are determined on a best-interest test without the use of presumptions. 24o N. Parentage Courts are still struggling with when to grant a request for genetic testing. In one case, where parentage was established by stipulation between the mother and her male partner, the court entered a parentage order naming partner as the father. The court found the putative father did not have standing to seek paternity establishment by genetic testing. 241 In another case, the Virginia court found that the law providing that the parent-child relationship may be established by genetic testing directly conflicts with the assisted conception statute, which says mere donors cannot establish 236. In re Estate of Laubenheimer. 833 N.W.2d 735 (Wis. 2013) (alleging lack of mental capacity). 237. Keefe v. Doomweerd, 984 N.E.2d 1105 (Ohio App. Ct. 2013). 238. Emma v. Evans. 71 A.3d 862 (N.J. 2013). 239. Riggins v. Stirgus, 738 S.E.2d 635 (Ga. Ct. App. 2013). 240. In re Goudeau, 55 A.3d 1008 (N.H. 2012). 241. Columbia v. Lawton, 71 A.3d 1218 (VI. 2013). A Review afthe Year in Family Law 543 parentage. The unnamed female donor who is also the gestational mother may be considered a parent. The fact that a sperm donor cannot establish parentage is a result of biology, not insemination under choice. 242 The presumption of parentage statute, which did not require the listing of a nonbirthing female spouse on birth certificate, violated equal protection under Iowa constitution as applied to a married lesbian couple. 243 Kansas found that a female same-sex partner was an interested party under the Kansas Parentage Act and could claim to be a presumptive mother under the Act. 244 The trial court clearly erred when it focused solely on biology, rather than on the best interests of the child, when it overcame the presumption of legitimacy and removed husband's rights as legal father of the child. Even though he was not the child's biological father, he, along with mother, signed a voluntary acknowledgment of patemity.245 Biological father abandoned his opportunity interest in developing parent-child relationship with child born out of wedlock, such that granting of his petition for legitimation of child was an abuse of discretion. The father waited more than four years after conclusively learning that child was his daughter before deciding that he would like to have parent-child relationship with her and filing petition. There was no evidence that any action by child's mother or mother's family prevented him from filing petition earlier, and his own voluntary commission of criminal acts resulted in eighteen months of incarceration and residential drug treatment during which he was purportedly unable to contact mother. 246 The Illinois Supreme Court distinguished the presumptive right to visitation under the Marriage Act to preserve existing bonds from the "privilege" to visit under the Parentage Act. 247 0. Property 1. CLASSIFICATION OF PROPERTY A divorce court erred in awarding a husband's taxicab owner's license to his wife as a division of marital property since it was not really property of the husband. The court did not abuse its discretion in awarding his taxicab to her. 248 242. 243. 244. 245. 246. 247. 248. L.F. v. Breit, 736 S.E.2d 711 (Va. 2013). Gartner v. Iowa Dep't of Public Health, 830 N.W.2d 335 (Iowa 2013). Frazier v. Goudschaal, 295 P.3d 542 (Kan. 2013). Van Weelde v. Van Weelde, 110 So. 3d 918 (Fla. Dist. Ct. App. 2013). Neill v. Brannon, 738 S.E.2d 724 (Ga. Ct. App. 2013). In re Parentage of I.W., 972 N.E.2d 826 (Ill. App. Ct. 2013). Bahta v. Eqube, 2013 WL 1303521 (Ohio Ct. App. Mar. 29, 2013) (unpublished). 544 Family Law Quarterly, Volume 47, Number 4, Winter 2014 A husband's postdivorce waiver of his municipal pension in order to receive tax-free disability benefits does not change the amount of money he must pay his wife every month to effectuate the divorce decree's division of the pension. 249 Illinois has held that a nonvested discretionary bonus to be issued to the husband after entry of the divorce did not constitute marital property because it was a mere expectancy. The husband was an at-will employee and all bonuses and awards were discretionary.25o A husband failed to carry his burden, in action for divorce, of establishing what portion of personal injury settlement received by him was attributable to his personal injuries, as required for finding that such portion constituted his separate property. He presented no evidence establishing which portion of settlement was attributable to his personal injury, as opposed to loss of marital earnings and any reimbursement for expenses paid from marital assets. The evidence demonstrated that a portion of settlement monies were meant to reimburse the parties for loss of marital earnings, compensation for expenses paid from marital assets, and compensation for loss of consortium.251 Order denying allocation to husband of any portion of wife's share in business she obtained with separate property to which husband devoted labor and skill without compensation, was adequately supported. The trial court's findings in the record were that all of wife's contributions to business derived from her separate property. There was no evidence in the record that husband's labor contributed to an increase in business's value. 252 Settlement proceeds from a divorcing husband's tort action against his former employer, which had commenced prior to the divorce proceeding and was finalized before the end of it, were properly considered to be marital property.253 A four-year military credit, which applied to a husband's California Public Employees' Retirement System (CalPERS) benefits, was based on military service the husband completed prior to the marriage. Thus, the credit was the husband's separate property, except to the extent that the community contributed to the cost of obtaining the credit. 254 A third party who holds a partial legal title to the marital residence must be joined as a party to the divorce action before the marital equity in the 249. 250. 251. 252. 253. 254. Dickau v. Dickau, 824 N.W.2d 142 (Wis. Ct. App. 2012). In re Marriage of Wendt, 995 N.E.2d 439 (Ill. App. Ct. 2013). Barrientos v. Barrientos, 2013 WL 500505 (Ohio App. Ct. Feb. 11, 2013). Devries v. Ga11io, 290 P.3d 260 (Nev. 2012). Edwards v. Bonilla-Vega, 983 N.E.2d 619 (Ind. Ct. App. 2013). In re Marriage of Green, 302 P.3d 562 (Cal. 2013). A Review a/the Year in Family Law 545 house can be divided.255 Legal services provided to one spouse ill a divorce proceeding are neither a community debt nor necessaries for which the other spouse is statutorily liable to pay.256 2. TRANSACTIONAL PROBLEMS In Florida, when a wife jointly titles two burial plots she received from a relative during her marriage, the plots are presumed to be marital property.257 Clear and convincing evidence existed to rebut a presumption that husband intended to gift to the marital estate two properties purchased with his separate funds for the benefit of his daughters from a previous marriage, even though title was taken as joint tenants. The closing company in charge of handling the transaction erroneously placed the properties in joint tenancy, mortgagee testified that husband was to take title in his individual name, sales contracts indicated buyer as husband's trust, and wife did not dispute that properties were purchased with husband's separate property. 258 The District of Columbia held that a trial court did not abuse its discretion in finding that a husband's separate real property that shared a common wall with the marital home had been "transformed," such that the two structures together were "marital property." The house located on one parcel of land had been annexed to the contiguous marital home through creation of a passageway enabling the family to use the two structures as a single dwelling. The marital home had been rebuilt without a kitchen, a defect that meant it could not be used as a separate residence without converting a room to a kitchen. 259 The court found that the right to receive trust distributions underwent transmutation into marital property where the trust was created with the intent to provide for the husband and wife for the rest of their lives and distributions were deposited into an account and used for support during the marriage. Husband attended yearly meetings discussing the performance of that account and the parties' anticipated future needs. The parties intended from the time the trust was created to treat the right to receive distributions as marital property.260 A gift from a third party is presumed to be a gift to the marriage. Clear 255. Graves v. Graves. 51 A.3d 521 (D.C. 2012). See also In re Muller, 62 A.3d 770 (N.H. 2013) (a divorce court has authority to divide the net equity in a couple's marital home, but it does not have jurisdiction to disregard or invalidate a third party's claim of interest in such property). 256. Tedder v. Gardner Aldrich, 2013 WL 2150081 (Tex. May 17,2013). 257. McKee v. Mick, 120 So. 3d 162 (Fla. Dist. Ct. App. 2013). 258. Smith v. Villareal, 298 P.3d 533 (Okla. 2012). 259. Araya v. Keleta, 65 A.3d 40 (D.C. 2013). 260. Wilburn v. Wilburn, 743 S.E.2d 734 (S.c. 2013). 546 Family Law Quarterly, Volume 47, Number 4, Winter 2014 and convincing evidence is necessary to rebut the presumption. 261 The court considers the following factors in determining whether to exempt a spouse's gift or inheritance from division: (1) contributions of the parties toward the property, its care, preservation or improvement; (2) the existence of any independent close relationship between the donor or testator and the spouse of the one to whom the property was given or devised~ (3) separate contributions by the parties to their economic welfare to whatever extent those contributions preserve the property for either of them; (4) any special needs of either party; and (5) any other matter that would render it plainly unfair to a spouse or child to have the property set aside for the exclusive enjoyment of the donee or devisee. The Iowa Supreme Court found that the inherited property was given to the husband and wife jointly.262 Vermont held that a court may return assets to a couple's marital estate that were allegedly dissipated by one spouse if it finds that the expenditures involved financial misconduct coupled with a purpose unrelated to the marriage 263 3. VALUATION AND DISTRIBUTION Although marital property is normally valued as close to the date of the divorce as possible, a Utah court found that when the increase in the husband's pension is primarily due to his employer's contributions post-separation, the trial court may value the pension as of the date of separation. 264 A divorce court erred when, in dividing the military pension of an active duty servicemember, it used an amount based on the husband's pay grade at the time of the dissolution instead of the actual value of his pension at the time of his projected retirement seven years after the divorce. 265 Trial court was justified in assigning a value of zero to husband's interests in companies that owned either a hotel or land, all of which had a negative value, for purposes of equitable distribution of marital property in a divorce case. Simply because companies' debts exceeded their assets at a given point in time did not mean that the companies had a negative value, nor did it mean that companies were incapable of generating profits or that they did not have a positive cash flow capable of paying off any debt. Instead, it merely showed that at the time of valuation, the companies had more debt than assets.266 261. 262. 263. 264. 265. 266. In re Krejci, 297 P.3d 1035 (Colo. App. 2013). In re Marriage of McDennott, 827 NW.2d 671 (Iowa 2013). Felis v. Felis, 72 A.3d 874 (Vt. 2013). Donnelly v. Donnelly, 301 P.3d 6 (Utah Ct. App. 2013). In re Malpass, 296 P.3d 653 (Or. Ct. App. 2013). Patel v. Patel, 740 S.E.2d 35 (Va. Ct. App. 2013). A Review of the Year in Family Law 547 Courts distribute the marital property based on numerous factors, with length of the marriage and the relative positions of the parties among the most important. The trial court acted within its discretion in dividing marital property so as to award the wife 53% and the husband 47% ofthe marital assets despite the husband's nonmarital contribution of $70,000 toward the parties' first home because the husband's economic situation was much better than the wife's.267 In Virginia, the value of separate property is irrelevant to equitable distribution analysis. The court should not have awarded mother the marital property retirement account just because father had separate retirement property.268 In Virginia, a court need not divide property with a negative equity but may leave the parties as tenants in common subject to foreclosure or sale. 269 Iowa determined the court could require the husband to mortgage the family farm if he wished to keep it, rather than sell it, to ensure the wife received her equity from the farm yo A divorce court did not abuse its discretion in directing a husband to pay his wife the value of her allotted portion of his accrued sick leave benefits and vacation time when he chooses to retire rather than at the time of the final divorce hearing.271 A North Dakota trial court's property division, which awarded the wife a share of the husband's entire business property based on the percentage of time that the parties were married during the husband's entire business career, was not clearly erroneous.272 In a divorce action, despite a lack of information and consequent inability to determine as of the date of dissolution the exact amount of wife's share of husband's nonqualified, nonfunded retirement plan, trial court did not abuse its discretion when it employed the present division method of deferred distribution of husband's retirement plan, rather than the reserved jurisdiction method. The division provided that if, and when, husband retired, or otherwise began to receive benefits from the plan, a coverture fraction would be applied to the entire benefit that was vested as of the date of dissolution to determine the marital portion.273 A Texas court held that a husband's Social Security benefits, though previously received and at the time of divorce held in accounts, were exempt from division in a divorce. 274 Court should consider the tax consequences aris267. 268. 269. 270. 271. 272. 273. 274. Valentine v. Valentine, 400 SW.3d 14 (Mo. Ct. App. 2013). Wiencko v. Takayama, 745 S.E.2d 168 (Va. Ct. App. 2013). Fox v. Fox, 734 S.E.2d 662 (Va. Ct. App. 2012). In re Marriage of McDermott, 827 N.W.2d 671 (Iowa 2013). Bergman v. Bergman, 2013 WL 784636 (Ohio Ct. App. Mar. 1,2013) (unpublished). Hoverson v. Hoverson, 629 N.W.2d 573 (N.D. 2013). Cunningham v. Cunningham, 59 A.3d 874 (Conn. App. Ct. 2013). In re Marriage of Everse, 2013 WL 3362054 (Tex. App. June 18,2013) (unpublished). 548 Family Law Quarterly, Volume 47, Number 4, Winter 2014 ing from a divorce judgment when the tax consequences have been raised and evidence is in the record.275 4. ENFORCEMENT The question of whether a man has standing to bring a contempt action in order to compel his ex-wife to make certain payments on a marital debt pursuant to their decree depends on whether he would be liable if she did not make them.276 A provision in the divorce decree, ordering the former wife "to assume and pay and hold [husband] harmless" from the mortgage on the marital home, indemnified husband against liability. The wife's obligation extended beyond simply making mortgage payments and required the wife to fulfill the parties' joint obligations under the mortgage so as to prevent other fiscal injury that might foreseeably befall the husband, such as the kind of damage to his credit rating that could result from payments that are chronically late.277 Trial court lacked jurisdiction to modify a final judgment of dissolution by increasing wife's percentage share of former husband's pension benefit after he began receiving Social Security retirement payments and his pension benefit was reduced. Former wife's monthly pension benefit was reduced. There was no indication in the final judgment that former wife would receive an increased percentage share of pension in the event her monthly pension benefit was reduced when former husband entered into Social Security system. 278 Although wife accepted a cash portion of the distribution award that was part of a stipulated judgment of divorce, it was not in satisfaction of the judgment and wife could continue with appeal for postdecree motion for reallocation of marital assets and debts.279 P. Torts Husband, who worked for the same employer as wife, sued his employer and former supervisor for negligence and negligent infliction of emotional distress. Employer and former supervisor filed motions to dismiss for failure to state a claim upon which relief could be granted. The court held husband's claims were disguised claims for alienation of affections and, thus, relief could not be granted on the claims. 280 When an ex-husband found out that he was not the biological father of his child, public 275. 276. 277. 278. 279. 280. LJ.S. v. J.E.S., 982 N.E.2d 1160 (Mass. 2013). Pinzone v. Pinzone, 2012 WL 6727339 (Ohio Ct. App. Dec. 24, 2012) (unpublished). Gardner v. Gardner, 294 P.3d 600 (Utah Ct. App. 2012). George v. George, 93 So. 3d 464 (Fla. Dist. Ct. App. 2012). Sateren v. Sateren, 826 N.W.2d 303 (N.D. 2013). Moseng v. Frey, 822 NW.2d 464 (N.D. 2012). A Review of the Year in Family Law 549 policy did not preclude him from bringing an intentional fraud claim against the ex-wife who had misrepresented that he was the biological father. 281 IV. Conclusion The biggest sea change has been in attitudes and laws applying to same-sex couples. In 1996 when DOMA was enacted, 68% of Americans opposed gay marriage. In June 2013, a Gallup Poll reported that 53% favored gay marriage. 282 In addition to the Supreme Court's ruling striking part of DOMA, eight more states in 2012 and 2013 now allow samesex marriages. Many states, even red ones like Kansas, have recognized coparenting agreements between same-sex couples if they are in the best interest of children. While currently there are challenges to bans on samesex marriage in several federal courts, the next set of challenges will be gaining recognition of these relationships in states that still prohibit them. 281. Hodge v. Craig, 382 S.W.3d 325 (Tenn 2012). 282. Richard Wolf & Brad Heath, Rainbow Rulings, USA TODAY, June 27, 2013, at AI, 2. 550 Family Law Quarterly, Volume 47, Number 4, Winter 2014 Charts Chart 1: Alimony/Spousal Support Factors Statutory STATE Alabama ALA. COOE § 30-2-51 ALA. CODE § 30-2-52 List* Marital Fault Relevant X Standard of Living X Status as Custodial Parent Considered Alaska ALASKA STAT. § 25.24.160 X X Xl Arizona X X X Xl Xl ARIZ. REV. STAT. § 25-319 Arkansas ARK. CODE ANN. § 9-12-312 California CAL. FAM. CODE § 4320 thru 4326 CAL. FAM. CODE § 4336 CAL. FAM. CODE § 6211 X X X Colorado COLO. REV. STAT. § 14-10-114 X X X Connecticut X X2 X X X Xl X Xl District of Columbia D.C. CODE § 16-913 X X2 X Xl Florida FLA. STAT. § 61.08 X X X X Georgia X X X CONN. GEN. STAT. § 46B-82(A) Delaware DEL. CODE ANN. TIT. 13 § 1512 GA. CODE ANN. § 19-6-1 GA. CODE ANN. § 19-6-5 Hawaii X X X Xl Xl X X HAW. REV. STAT. § 580-47 Idaho IDAHO CODE ANN. § 32-705 X Illinois X X 750 ILL. CaMP. STAT. 51504 Indiana X3 X IND. CODE § 31-15-7-2 Iowa X Xl X X X X IOWA CODE § 598.21 A Kansas KAN. STAT. ANN. § 23-2902 Kentucky Ky. REv. STAT. ANN. § 403.200 X Louisiana X X4 X LA. CIv. CODE ANN. ART. 112 Maine X X X ME. REV. STAT. TIT. 19-A § 951-A Maryland MD. CODE ANN. FAM. LAW § 11-106 X Massachusetts MASS. GEN. LAWS. CH. 208 § 34 MASS. GEN. LAWS. CH. 208 § 48-55 X X X Xl Michigan MICH. CaMP. LAWS § 552.23 Minnesota X X Xl Xl X X MINN. STAT. § 518.552 X5 Mississippi MIss. CODE ANN. § 93-5-236 Missouri X X X X X X Mo. REV. STAT. § 452.315 Mo. REV. STAT. § 452.335 Montana MONT. CODE ANN. § 40-4-203 X A Review a/the Year in Family Law STATE Nebraska NEB. REV. STAT. § 42-365 Nevada NEV. REv. STAT. § 125.150 New Hampshire N.H. REv. STAT. ANN. § 458:19 New Jersey N.J. STAT. ANN. § 2A:34-23 New Mexico N.M. STAT. ANN. § 40-4-7 New York N.Y. DOM. REL. LAW § 236B(6) North Carolina N.C. GEN. STAT. § 50-16.3A North Dakota N.D. CENT. CODE § 14-05-24.1 Ohio OHIO REV. CODE ANN. § 3105.18 Oklahoma OKLA. STAT. TIT. 43 § 121 Oregon OR. REv. STAT. § 107.105 Statutory List* Marital Fault Relevant X Standard of Living Status as Custodial Parent Considered X X X X X X X X X X X X6 X X X X X X X X X X X X X X X X X X X X X X X X Pennsylvania 23 PA. CONS. STAT. ANN. § 3701 X X X Xl Rhode Island R.1. GEN. LAWS § 15-5-16 South Carolina S.C. CODE ANN. § 20-3-130 South Dakota S.D. CODIFIED LAWS § 25-4-41 Tennessee TENN. CODE ANN. § 36-5-121 Texas TEX. FAM. CODE ANN. § 8 Utah UTAH CODE ANN. § 30-3-5 Vermont VT. STAT. ANN. TIT. 15 § 752 Virginia VA. CODE ANN. § 20-107.1 Washington WASH. REV. CODE § 26.09.090 West Virginia W. VA. CODE § 48-6-301 W. VA. CODE § 48-8-104 Wisconsin WIS. STAT. § 767.56 Wyoming Wyo. STAT. ANN. § 20-2-114 X X X X X X X X X" X X X X X X X X X X X' X X X X X X X X X X X X 551 X X X X X X X X X * Although there is a statutory list of factors, the court may in its discretion consider other factors under the particular circumstances of the case. 1. This factor may not be in the list of statutory factors but may be considered because the court may look at any relevant factors in the individual case, including the financial obligations of each party. 2. The court can consider the causes or circumstances leading to the dissolution of the marriage. 3. Status as custodial parent is considered if the parent is required to forgo employment because of the child's mental or physical incapacity. 4. Only fault on the part of the party seeking alimony. 5. See Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993) for list of factors used in determining alimony. 6. Fault is only relevant in limited circumstances. 7. See case law for list of factors. E.g., Anderson v. Anderson, 655 N.W.2d 104 (S.D. 2002). 8. The Utah legislature has defined "fault" as: (c) Fault means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship: (i) engaging in sexual relations with a person other than the party's spouse; (ii) knowingly and intentionally causing or attempting to cause physical harm to the other party or minor children; (iii) knowingly and intentionally causing the other party or minor children to reasonably fear life-threatening harm; or (iv) substantially undermining the financial stability of the other party of the minor children. (d) The court may, when fault is at issue, close the proceedings and seal the court records. 552 Family Law Quarterly, Volume 47, Number 4, Winter 2014 Chart 2: Custody Criteria* Joint Custody Presumption in Favor of Cooperative Domestic Authorized Joint Custody Parent Violence*"'* Attorney Statutory Factors** Child's Wishes Alabama ALA. CODE § 30-3-131 ALA. CODE § 30-3-152 X Xl X X2 X X Alaska ALASKA ALASKA ALASKA ALASKA X X X X3 X X X X X X X X X X X X X X X X X X X X Colorado COLO. REv. STAT. § 14-10124 X X X4 X X X Connecticut CONN. GEN. STAT. § 46B-54 CONN. GEN. STAT. § 46B-56 X X X X X X Delaware X X X X X X District of Columbia D.C. CODE § 16-914 X X X X X X Florida FLA. STAT. § 61.13 FLA. STAT. § 61.401 X X X X X X Georgia GA. CODE ANN. § 19-9-3 X X X X X Hawaii X X X X X Idaho IDAHO CODE ANN. § 32-704 IDAHO CODE ANN. § 32-717 IDAHO CODE ANN. § 32-717B X X X X X Illinois 750 ILL. CaMP. STAT. 5/601 750 ILL. CaMP. STAT. 51602 750 ILL. CaMP. STAT. 5/602.1 X X X X X STATE STAT. STAT. STAT. STAT. or GAL"'*"'''' § 25.20.060 § 25.20.070 § 25.20.090 § 25.24.150 Arizona ARIZ. REV. STAT. § 25-321 ARIZ. REV. STAT. § 25-403 Arkansas ARK. CODE ANN. § 9-13- 101 California CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE X4 § 3010 § 301 I § 3020 § 3027 § 3027.5 § 3028 § 3030.5 § 3031 § 3040 § 304 I § 3041.5 § 3042 § 3044 § 3046 § 3047 § 3048 § 3064 § 3080 § 3081 § 3085 § 3120 § 3150 § 6323 X2 DEL. CODE ANN. TIT. 13 § 721 DEL. CODE ANN. TIT. 13 § 722 X5 HAW. REV. STAT. § 571-46 X X A Review afthe Year in Family Law Joint Statutory Child's Factors** Wishes STATE Custody Authorized Indiana IND. CODE § 31-17-2-8 IND. CODE § 31-17-2-15 IND. CODE § 31-17-6-1 X X X Iowa IOWA CODE § 598.12 IOWA CODE § 598.41 X X X Kansas KAN. STAT. ANN. § 23-2219 KAN. STAT. ANN. § 23-3203 KAN. STAT. ANN. § 23-3206 X X X Kentucky Ky, REV. STAT. ANN. § 403.270 X X X X X X X X X4 X7 Louisiana LA. elV. CODE ANN. ART. Presumption in Cooperative Domestic Favor of Joint Custody Parent Violence*** 553 Attorney or GAL**** X X X X X X X X X X6 X X X X X X X X X X X X X X X X X X X X X X 131 132 134 LA. REv. STAT. ANN. 9:345 LA. REv. STAT. ANN. 9:364 LA. CIv. CODE ANN. ART. LA. elV. CODE ANN. ART. Maine ME. REv. STAT. TIT. 19-A § 1507 ME. REv. STAT. TIT. 19-A § 1653 Maryland MD. CODE ANN. PAM. LAW § 9-101.1 MD. CODE ANN. PAM. LAW § 1-202 MD. CODE ANN. PAM. LAW § 5-203 Massachusetts MASS. GEN. LAWS CH. 208 § 28 MASS. GEN. LAWS CH. 208 § 31 MASS. GEN. LAWS CH. 208 § 31A MASS. GEN. LAWS CH. 209C §1O MASS. GEN. LAWS CH. 215 §56A X Michigan MICH. COMPo LAWS § 722.23 MICH. COMPo LAWS § 722.24 MICH. COMPo LAWS § 722.26A X X X Minnesota X X X X2 X8 X X2 X X X9 X X X § 518.17 MINN. STAT. § 518.165 MINN. STAT. Mississippi MISS. CODE ANN. § 93-5-23 MISS. CODE ANN. § 93-5-24 Missouri Mo. REv. Mo. REv. Mo. REV. Mo. REV. STAT. STAT. STAT. STAT. X § 452.375 § 452.385 § 452.410 § 452.423 Montana 10 MONT. CODE ANN. § 40-4205 MONT. CODE ANN. § 40-4212 554 Family Law Quarterly, Volume 47, Number 4, Winter 2014 Chart 2: Custody Criteria* (continued) Joint Statutory Child's Factors"'''' Wishes STATE Presumption in Favor of Cooperative Domestic Authorized Joint Custody Parent Violence"'** Custody Nebraska NEB. REv. STAT. § 42-358 NEB. REv. STAT. § 42-364 NEB. REv. STAT. § 43-2923 X X X Nevada NEV. REv. STAT. § 125.480 NEV. REv. STAT. § 125.510 X Xll X New Hampshire N.H. REv. STAT. ANN. § 461-A:6 X4 X New Jersey N.J. STAT. ANN. § 9:2-4 X New Mexico N.M. STAT. ANN. § 40-4-8 N.M. STAT. ANN. § 40-4-9 N.M. STAT. ANN. § 40-4-9.1 X X X X X X X X X X X X X X X X X X X X X New York N.Y. DOM. REL. LAW § 240 XI2 North Carolina N.C. GEN. STAT. § 50-13.1 N.C. GEN. STAT. § 50-13.2 X13 X X Attorney or GAL"''''** X X North Dakota N.D. CENT. CODE § 14-09-06.2 N.D. CENT. CODE § 14-09-06.4 X X X X X X Ohio OHIO REV. CODE ANN. § 3109.04 X4 X XI4 X X X X X14 X X X Oklahoma OKLA. STAT. TIT. 43 § 109 OKLA. STAT. TIT. 43 § 112 Oregon OR. REV. STAT. § 107.137 X X 15 X I6 X X Pennsylvania 23 PA. CONS. STAT. ANN. § 5328 23 PA. CONS. STAT. ANN. § 5334 X X X X X X XI7 X XI7 X X X X X X XI8 X X X X X XI4 X X X 20 X 21 X X X X X X X Rhode Island R.I. GEN. LAWS § 15-5-16 R.I. GEN. LAWS § 15-5-16.2 South Carolina S.c. CODE ANN. S.c. CODE ANN. S.c. CODE ANN. S.C. CODE ANN. § 63-3-530 § 63-3-810 § 63-15-30 § 63-15-40 South Dakota S.D. CODIFIED LAWS § 25-4-45 Tennessee X X TENN. CODE ANN. § 36-4-132 TENN. CODE ANN. § 36-6-101 TENN. CODE ANN. § 36-6-106 Texas TEX. FAM. CODE ANN. § 107.002 TEX. FAM. CODE ANN. § 153 Utah UTAH CODE ANN. UTAH CODE ANN. UTAH CODE ANN. UTAH CODE ANN. X § § § § 30-3-10 30-3-10.02 30-3-10.10 30-3-11.2 X A Review of the Year in Family Law STATE Statutory Child's Factors*'" Wishes Joint Custody Presumption in Favor of Cooperative Domestic Authorized Joint Custody Parent Violence"''''* 555 Attorney or GAL***'" Vermont VT. STAT. ANN. TIT. 15 § 594; 665; 665A X X22 X X X X Virginia VA. CODE ANN. § 20-124.2; 20-124.3 X X X X X X23 Washington WASH. REv. CODE § 26.09.013 WASH. REV. CODE § 26.09.187 WASH. REV. CODE § 26.09.220 X X X X X X West Virginia W. VA. CODE § 48-6-206 W. VA. CODE § 48-9-209 W. VA. CODE § 48-9-302 X X X X X X Wisconsin WIS. STAT. § 767.41 WIS. STAT. § 767.407 X X X X X X Wyoming WYO. STAT. ANN. § 20-2-201 X X 2• X X X x * The chart looks at child custody detenninations during a divorce or separation. The statutes cited do not necessarily affect child custody decisions in other situations. ** Although there is a statutory list of factors, the court may in its discretion consider other factors under the particular circumstances of the case. *** The jurisdiction has enacted a statute pennitting the consideration of domestic violence in conjunction with child custody. The statutes vary from making domestic violence a factor in custody determinations, to imposing presumptions against custody in batterers or imposing special procedural considerations in cases inv01ving domestic violence. **** This column indicates whether a state has statutory authority for appointment of a guardian ad litem or attorney for a child specifically in child custody cases. I. By case law. See, e.g., Naudit v. Haddock, 882 So. 2d 364 (Ala. Civ. App. 2003). 2. There is a presumption that joint custody is in the best interest of the child if both parents request joint custody. 3. Presumption in favor of joint physical custody during the pendency of a divorce, unless there has been DV or it is not in the best interest of the child. "Weak" presumption in favor of joint legal custody, according to our supreme court, (but not if there has been DV or the parties cannot communicate effectively (the latter by case law). 4. Does not use the term "child custody," but instead uses the terminology, such as "parental responsibilities and rights," "legal custodian," or other similar terminology. 5. Fla. Stat. § 61.13(2)(c)(2)-"The court shall order the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child." 6. Domestic violence is not addressed in the statute but has been considered by courts as a factor in case law. 7. By case law. See, e.g., Hild v. Hild, 157 A.2d 442 (Md. 1960); Wagner v. Wagner, 674 A.2d I (Md. Ct. Spec. App. 1996); Montgomery Cnty. Dep't of Soc. Services v. Sanders, 381 A.2d 1154 (Md. Ct. Spec. App. 1977). 8. Factors considered in custody decisions are listed in case law. See Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). 9. Public policy encourages participation of both parents in decisions, and statute directs that "the court shall determine the custody arrangement which will best assure both parents participate in such decisions ... so long as it is in the best interests of the child." This statute, however, does not create a presumption in favor of joint custody. In re Marriage of Kroeger-Eberhart v. Eberhart, 254 S.W.3d 38, 2007 Mo. App. LEXIS 1661 (Mo. Ct. App. 2007). 10. In Montana, the words "custody," "joint," "primary parent," or "visitation" are not used when referring to child custody. Parents are considered to have identical rights as to the child, but their parenting times may differ. II. Nevada will consider a child's wishes, among other factors, if the child is of sufficient age and capacity to fonn an intelligent preference as to custody. 12. By case law. See Gant v. Higgins, 203 A.D.2d 23 (N.Y. App. Div. 1994). 13. By case law. See, e.g., Harris v. Harris, 115 N.C. 587 (1894); Brooks v. Brooks, 184 S.E.2d 417 (N.C. Ct. App. 1971). 14. Uses the term "shared parenting." 15. By case law. See In re Marriage of Tuttle, 660 P.2d 196 (Or. Ct. App. 1983). 16. The court may only order joint custody if both agree to joint custody. The court may not order joint custody over the objection of either parent. 17. By case law. See, e.g., Africano v. Castelli, 837 A.2d 721 (R.I. 2003); Pettinato v. Pettinato, 582 A.2d 909 (R.!. 1990). 18. See Price v. Price, 61IN.W.2d 425 (S.D. 2000). 19. It is presumed that joint custody is in the best interest of a minor child where the parents have agreed to joint custody or agree to joint custody in open court. 20. By case law. See Vazquez v. Vazquez, 292 S.W.3d 80 (Tex. App. 2007). 21. Texas uses the language "sale or joint managing conservator" rather than "sale or joint custody." 22. By case law. The court is not required or forbidden to consider the preference of the child. See Cameron v. Cameron, 398 A.2d 294 (Vt. 1979). 23. Discussed further in Verrocchio v. Verrocchio, 429 S.E.2d 482 (Va. Ct. App. 1993). 24. By case law. See JRS v. GMS, 90 P.3d 718 (Wyo. 2004). 556 Family Law Quarterly, Volume 47, Number 4, Winter 2014 Chart 3: Child Support Guidelines Extraordinary STATE Alabama ALA. CODE § 30·3·1 Income Share Percent of Income X Medical Deduction XP Child·Care Deduction College Support' XM Shared Parenting Time OITset2 D XM X D XM XP 0 XD XD 0 X XM XM 0 X XM XM 0 X XD X Alaska ALASKA STAT. § 25.27.060 Arizona ARIZ. REV. STAT. ANN. § 25·320 Arkansas ARK. CODE ANN. § 9·12·312 ARK. CODE ANN. § 9·14·106 California CAL. FAM. CODE § 3585 CAL. FAM. CODE § 4001 CAL. FAM. CODE § 4050 CAL. FAM. CODE § 4076 Colorado COLO. REv. STAT. § 14·10·115 Connecticut CONN. GEN. STAT. § 466-81 X X D XM XM D DEL. CODE ANN. TIT. 13 § 1513 District of Columbia D.C. CODE § 16·916.01 X XD X 0 Florida X XP XM X XP XM X XM2 X Delaware FLA. STAT. § 61.30 Georgia GA. CODE ANN. § 19·6·15 Hawaii HAW. REV. STAT. § 571·52.5 HAW. REv. STAT. § 576·07 Idaho IDAHO CODE ANN. § 32·706 X X Dlinois XP XP XD XD XP D X D 0 0 X D XM X 0 XM X 0 750 ILL. CaMP. STAT. 5/505 Indiana X IND. CODE § 31·16·6·1 Iowa X IOWA CODE § 598.21 Kansas KAN. STAT. ANN. § 38·1595 X Kentucky X XM Ky. REV. STAT. ANN. § 403.212 Louisiana LA. RS. § 9:315 X XM XM D Maine X XM XM 0 XM D XP 0 ME. REv. STAT. ANN. TIT. 19 § 2007 Maryland MD. CODE ANN. FAM. L. § 12·204 Massachusetts MASS. GEN. LAWS CH. 208 § 28 Michigan MICH. CaMP. LAW § 722.27 Minnesota MINN. STAT. §§ 518A.26·.78 Mississippi MISS. CODE ANN. § 43·19·101 Missouri X XM XM 0 X XM X 0 X XM XM 0 XM 0 X X X Mo. REv. STAT. § 452.340 Mo. REv. STAT. § 452.370 Montana MONT. CODE ANN. § 40-4·204 Nebraska NEB. REv. STAT. § 42·364 Nevada NEV. REV. STAT. § 125B.070 NEV. REv. STAT. § 125B.080 New Hampshire N.H. REv. STAT. § 458·C:3 N.H. REV. STAT. § 458·C:5 I(a) New Jersey X X XD XD X D X X X D XM XM 0 XD XM D X XM XD 0 X X X X D X X 0 X N.J. STAT. ANN. § 2A:34·23 New Mexico N.M. STAT. ANN. 1978 § 40·4·1l.l X X XD 0 A Review afthe Year in Family Law Income Share STATE New York Percent of Income X Extraordinary Medical Child-Care Deduction Deduction XM XM XM College Support l 557 Shared Parenting Time Offset2 D DOM. REC. § 240 North Carolina N.C. GEN. STAT. ANN. § 50-13.4 North Dakota N.D. CENTURY CODE ANN. § 14-09-09.7 Ohio OHIO ST. § 3119 Oklahoma OKLA. STAT. TIT. 43, § 118 Oregon OR. REV. STAT. § 107.108 Pennsylvania PA. R. CIv. P. § 1910.16-1 PA. R. CIv. P. § 1910.16-6 23 PA. CONS. STAT. ANN. § 4322 Rhode Island R.L GEN. LAWS § 15-5-16.2 South Carolina S.c. CODE ANN. § 20-3-160 South Dakota S.D. CODIFIED LAW § 25-7-6.2 X X XM X 0 X X X D X XA XM 0 X XP XM X X MID XM 0 X XD XM 0 X XD XM 0 X XD XD 0 Tennessee TENN. CODE ANN. § 36-5-10 1 Texas TEx. PAM. CODE ANN. § 154.121 Utah UTAH CODE ANN. § 30..3-5 X XM XM XD D X XM XMJP 0 Vermont X XM XM 0 X X X 0 04 VT. STAT. ANN. TIT. 15 § 654 Virginia X XA XA X XM XM 0 VA. CODE ANN. § 20-108.2 Washington X D WASH. REv. CODE § 26.09.170 West Virginia W. VA. CODE § 48-6-301 XM XM 0 X XM XD 0 X XD XD 0 X Wisconsin WIS. STAT. § 767.57 Wyoming WYo. WYO. WYO. WYO. STAT. STAT. STAT. STAT. X ANN. ANN. ANN. ANN. § 20-2-304 § 20-2-305 § 20-2-307 § 20-2-401 A =mandatory add-ons M = mandatory deduction P = permissive deduction D = deviation factor 1. In all states, college support may be voluntarily agreed by the parties, in which case it is contractually enforceable thereafter. 2. Every state provides for some kind of offset, either by formula or deviation. D =deviation, 0= offset. 3, Credit given for actual cost of health care insurance premium paid for children. 4. Support may be increased or decreased if the obligor spends more or less than 80 days (the putative normal amount of time) with a child. 558 Family Law Quarterly, Volume 47, Number 4, Winter 2014 Chart 4: Grounds for Divorce and Residency Requirements* STATE No Fault No Fault Added to Sole Ground Traditional Living Separate Incompatibility and Apart Alabama ALA. CODE § 30·2·1 ALA. CODE § 30·2·2 ALA. CODE § 30·2·5 X X Alaska ALASKA STAT. § 25.24.050 X X Xl X Xl X2 Arizona X 2 years Durational Residency Judicial Separation Requirements** X 6 months None X 90 days x 60 days ARIZ. REV. STAT. ANN. § 25·312 ARIZ. REV. STAT. ANN. §25·313 ARIZ. REV. STAT. ANN. § 25·903 Arkansas 18 months ARK. CODE ANN. § 9·12·301 ARK. CODE ANN. § 9·12·307 California CAL. CAL. CAL. CAL. FAM. FAM. FAM. FAM. CODE CODE CODE CODE § § § § X Xl4 X 6 months X Xl X 91 days 2310 2311 2312 2320 Colorado COLO. REV. STAT. § 14·10·106 COLO. REv. STAT. § 14·10·110 Connecticut CONN. GEN. STAT. § 46BAO CONN. GEN. STAT. § 46BA4 X X 18 months X 12 months Delaware DEL. CODE ANN. TIT. 13 § 1503 thru § 1505 X X 6 months X 6 months 6 months X 6 months X 6 months District of Columbia D.C. CODE § 16·902 D.C. CODE § 16·904 X Florida FLA. STAT. § 61.021 FLA. STAT. § 61.052 X or 1 year4 Georgia GA. CODE ANN. § 19·5·2 GA. CODE ANN. § 19·5·3 Hawaii HAW. HAW. HAW. HAW. REV. REV. REV. REV. X X X STAT. STAT. STAT. STAT. 6 months X X 2 years Idaho IDAHO CODE ANN. § 32·603 IDAHO CODE ANN. § 32·610 IDAHO CODE ANN. § 32·701 X X6 5 years Illinois 750 ILL. CaMP. STAT. 5/401 750 ILL. CaMP. STAT. 5/402 X X6 2 years or 6 months 7 Indiana X IND. IND. IND. IND. CODE CODE CODE CODE X 6 months § 580·1 § 580Al § 580·42 § 580·71 6 weeks 5 X 90 days X X 6 months 8 X X None9 X X 60 days X 180 days § 31·15·2·2 § 31·15·2·3 § 31·15·2·6 § 31·15·2·7 Iowa X IOWA CODE § 598.5 IOWA CODE § 598.17 Kansas KAN. STAT. ANN. § 23·2701 KAN. STAT. ANN. § 23·2703 Kentucky Ky. REV. STAT. ANN. § 403.050 Ky. REv. STAT. ANN. § 403.140 Ky. REV. STAT. ANN. §403.170 X X X 60 dayslO A Review afthe Year in Family Law No Fault STATE Louisiana LA. CIv. CODE ANN. LA. CIv. CODE ANN. LA. CIv. CODE ANN. No Fault Added to Sole Ground Traditional Living Separate Incompatibility and Apart Xl ART. ART. ART. 180 days orl yearl,ll 102 103 103.1 X Maine X 559 Durational Judicial Residency Separation Requirements** Xl2 None X 6 months X I year ME. REV. STAT. ANN. TIT. 19-A § 901 ME. REV. STAT. 19-A § 902 ANN. TIT. Maryland MD. CODE ANN. FAM. L. § 7-101 tbru § 7-103 X Massachusetts MASS. GEN. LAWS CH. 208 § I MASS. GEN. LAWS CH. 208 § IA MASS. GEN. LAWS CH. 208 § IB MASS. GEN. LAWS CH. 208 § 2 X 12 months I year l3 X Michigan MICH. COMPo LAW § 552.6 MICH. COMPo LAW § 552.7 MICH. COMPo LAW § 552.9 X Xl4 X 180 days Minnesota MINN. STAT. §518.06 MINN. STAT. §518.07 X X X 180 days X Mississippi MISS. CODE ANN. § 93-5-1 MIss. CODE ANN. § 93-5-2 MIss. CODE ANN. § 93-5-5 Missouri Mo. REV. STAT. § 452.305 Mo. REV. STAT. § 452.320 X l5 6 months X I6 Montana MONT. CODE ANN. § 40-4-104 MONT. CODE ANN. §40-4-105 X X Nebraska NEB. REV. STAT. § 42-349 NEB. REV. STAT. § 42-350 NEB. REV. STAT. § 42-353 X X 180 days X 90 days X 90 days X I year XI7 X 1 year lS X X 2 years X I year New Jersey N.J. STAT. ANN. § 2A:34-2 N.J. STAT. ANN. § 2A:34-3 N.J. STAT. ANN. § 2A:34-10 X X I9 18 months2O X I year New Mexico N.M. STAT. ANN. § 40-4-1 N.M. STAT. ANN. § 40-4-2 N.M. STAT. ANN. § 40-4-5 X X New N.Y. N.Y. N.Y. X X21 Nevada NEV. REV. STAT. § 125.010 NEV. REV. STAT. § 125.020 NEV. REV. STAT. § 125.190 New N.H. N.H. N.H. N.H. Hampshire REv. STAT. § 458:5 REV. STAT. § 458:7 REV. STAT. § 458:7-A REV. STAT. § 458:26 York DOM. REL. § 170 DOM. REL. § 200 DOM. REL. § 230 North Carolina N.C. GEN. STAT. ANN. § 50-6 N.C. GEN. STAT. ANN. § 50-7 X 6 weeks 6 months I year22 X I year/ 2 years23 1 year X 6 months 560 Family Law Quarterly, Volume 47, Number 4, Winter 2014 Chart 4: Grounds/or Divorce and Residency Requirements * (continued) No Fault STATE Sole Ground North Dakota N.D. CENTURY CODE ANN. § 14-05-03 thru § 14-05-09 N.D. CENTURY CODE ANN. § 14-05-17 Ohio OHIO ST. OHIO ST. OHIO ST. OHIO ST. § § § § No Fault Added to Traditional Living Separate Judicial Durational Residency Incompatibility and Apart Separation Requirements** X X X 6 months X'4 X25 X 6 months X X X 6 months X X 6 months I year 3105.01 3105.03 3105.17 3105.61-65 Oklahoma OKLA. STAT. TIT. 43 § 101 thru 43 § 103 Oregon OR. REV. STAT. § 107015 OR. REV. STAT. § 107.025 OR. REV. STAT. § 107.075 X 26 Pennsylvania X X 2 years X X 3 years 6 months 23 PA. CONS. STAT. ANN. 3301 23 PA. CONS. STAT. ANN. 3104 Rhode Island R.l. GEN. LAWS R.l. GEN. LAWS R.l. GEN. LAWS R.l. GEN. LAWS § § § § X 1 year 15-5-2 15-5-3 15-5-3.1 15-5-12 I year!3 months 27 South Carolina S.c. CODE ANN. § 20-3-10 S.c. CODE ANN. § 20-3-30 X South Dakota S.D. CODIFIED LAW § 25-4-2 S.D. CODIFIED LAW § 25-4-17.2 S.D. CODIFIED LAW § 25-4-30 X X X X 2 years Texas TEX. FAM. CODE ANN. § 6.001 thru § 6.007 TEX. FAM. CODE ANN. § 16.301 X X 3 years Utah UTAH CODE ANN. § 30-3-1 UTAH CODE ANN. § 30-3-4.5 X X 3 years X 3 months Vermont X 6 months X 6 months! Tennessee TENN. CODE ANN. X I year X None X 6 months § 36-4-101 thru § 36-4-104 6 months 1 year28 VT. STAT. ANN. TIT 15 § 551 VT. STAT. ANN. TIT IS § 555 VT. STAT. ANN. TIT IS § 592 1 year29 X Virginia 6 months Va. Code ANN. § 20-91 VA. CODE ANN. § 20-97 Washington WASH. REV. CODE § 26.09.030 West Virginia W. VA. CODE § 48-5-103 W. VA. CODE § 48-5-105 W. VA. CODE § 48-5-201 thru § 48-5-209 W. VA. CODE § 48-6-201 Wisconsin WIS. STAT. § 767.301 WIS. STAT. § 767.315 Wyoming WYo. STAT. ANN. § 20-2-104 thru § 20-2-107 X' 5 X X X X X None X 1 year X I year X3() 12 months X 6 months X 60 days X A Review afthe Year in Family Law 561 * Some states require the parties to wait for a specified period of time before they can file their first pleading in the divorce case. Of those states, some require an additional waiting period after the filing of the first pleading before the judgment can be entered, whereas other states allow the judgment to be entered almost immediately after the filing of the first pleading in the case. Other states make the parties wait for a specified period of time after filing the initial pleading but have no additional "waiting" requirement after the petition/complaint has been filed. ** State residency time period required before the filing of a divorce petition. 1. Covenant marriage statutes establish specific grounds for divorce for covenant marriages. 2. Arkansas uses the term "general indignities" rather than "incompatibility." 3. Colorado's only ground for divorce is the no-fault claim of the irretrievable breakdown of the marriage. Colorado does not use the term "incompatibility." 4. Six months if the parties have mutually and voluntarily lived separately and apart, otherwise they must have lived separately and apart for one year. 5. Petitioner must be a resident for six weeks. 6. Uses the term "irreconcilable differences," rather than the term "incompatibility." 7. Requirement of two years' living separate and apart can be waived if parties have lived separate and apart for six months and both stipulate in writing. 8. Must have been a resident of the state for six months and a resident of the county for three months. 9. No durational residency requirement if Respondent is in Iowa, but there is a one-year residency requirement if only Petitioner is in Iowa. 10. Parties can obtain a divorce based on irretrievable breakdown, but only if the parties have been living separate and apart for at least sixty days. 11. One year if there are minor children. 12. Judicial separation only exists for covenant marriage. 13. One year residence required depending on the grounds for divorce. 14. The term "breakdown of the marriage relationship" is used rather than "incompatibility." 15. Available as grounds for divorce if petition is filed jointly. 16. Grounds for divorce under Mo. Rev. Stat. § 452.305 is "irretrievably broken." However, if one party denies this allegation, the petitioner must satisfy the court that one of five enumerated grounds exist for a finding of irretrievably broken. Those grounds are adultery that the petitioner cannot tolerate, respondent has "behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent," abandonment for six months, and separation for twelve months (if by consent) or twenty-four months (nonconsensual separation). Mo. REV. STAT. § 452.320. 17. Grounds for divorce are limited to three situations. 18. Living separate for one year is not required if the petitioner pleads incompatibility. 19. New Jersey requires that irreconcilable differences cause the breakdown of the marriage for six months. 20. Only required for some grounds for divorce. 21. New York requires that the marriage has broken down irretrievably for a period of at least six months and one party has so stated under oath. 22. New York requires that the parties live separate and apart after the execution of a written separation agreement. 23. New York permits jurisdiction if both parties and the cause of action occurred in the state. It requires one year of residency if the parties were married in the state or resided in the state as husband and wife. At least one party must have resided in state if the parties were not married in the state. 24. Ohio does not use the term "no fault divorce." There is a separate cause of action called dissolution, which requires no allegation of grounds. 25. Incompatibility is a ground for divorce and for legal separation, but only if there is no objection from the opponent. 26. Fault is not a factor unless it is associated with waste of marital assets, i.e .. , gambling, chemical abuse, etc. 27. South Carolina's one-year residency requirement only applies where the plaintiff is a resident, but the defendant is not. If both parties are residents of South Carolina, the durational requirement is three months. 28. Vermont law states either party to the marriage has resided within the state for a period of six months or more, but a divorce shall not be decreed for any cause, unless the plaintiff or the defendant has resided in the state one year preceding the date of final hearing. 29. Only six months is required for couples that have a separation agreement and no minor children. 30. Wisconsin uses the term "irretrievable breakdown." 562 Family Law Quarterly, Volume 47, Number 4, Winter 2014 Chart 5: Property Division Only MaritaV Community Community Property STATE Alabama ALA. CODE § 30-2-51 X2 Arizona ARIZ. REv. STAT. ANN. § 25-211 ARIZ. REV. STAT. ANN. § 25-318 X Arkansas ARK. CODE ANN. § 9-12-315 § 2550 Ibru Statutory List of Factors X Alaska ALASKA STAT. § 25.24.160 ALASKA STAT. § 25.24.160 (a)(4) California CAL. FAM. CODE § 2551 CAL. FAM. CODE § 2604 CAL. FAM. CODE CAL. FAM. CODE CAL. FAM. CODE Property Divided X3 X X X X X Nonmonetary Economic Contribution Contributions Misconduct to Education Xl Xl X X X4 X X X5 x5 § 2602 tbru § 2622 (b) § 2627 § 2641 Colorado COLO. REV. STAT. § 14-10-113 X Connecticut CONN. GEN. STAT. § 46B-81 X X X X5 Delaware DEL. CODE ANN. TIT. 13 § 1513 X X X District of Columbia D.C. CODE § 16-910 X X X Florida FLA. STAT. § 61.075 X X X X X Georgia GA. CODE ANN. TIT. 19 (DaM. REL.) X X6 X X X X X5 X X5 X7 X X Hawaii X HAW. REv. STAT. § 580-47 Idaho IDAHO CODE ANN. § 32-712 Illinois 750 ILL. CaMP. STAT. 5/503 X X X X X X X X X X X X Indiana IND. CODE § 31-15-7-4 IND. CODE § 31-15-7-5 Iowa IOWA CODE § 598.21 Kansas KAN. STAT. ANN. § 23-2802 Kentucky Ky. REv. STAT. ANN. § 403.190 Louisiana LA. LA. LA. LA. X X X X X X X X X X REV. STAT. ANN. § 9:2801 Ctv. CODE ANN. ART. 121 Ctv. CODE ANN. ART. 2354 Ctv. CODE ANN. ART. 2369.3 Maine ME. REv. STAT. ANN. TIT. 19-A § 953 Maryland MD. CODE ANN. FAM. LAW § 8-205 Massachusetts MASS. GEN. LAWS CH. 208 § 34 Michigan MICH. CaMP. LAW § 552.18 MICH. CaMP. LAW § 552.23 MICH. CaMP. LAW § 552.401 X X X X X X X X X X8 X9 A Review afthe Year in Family Law Community Property STATE Only MaritaV Community Statutory List Property Divided of Factors X Minnesota XlO 563 Nonmonetary Economic Contribution Contributions Misconduct to Education X X X" XII Xii X X X XI2 X X X X X MINN. STAT. § 518.58 Mississippi MISS. CODE ANN. § 93-5-23 X Missouri Mo. REV. STAT. § 452.330 Montana MONT. CODE ANN. § 40-4-202 X\3 Nebraska X NEB. REv. STAT. § 42-365 X Nevada X I5 XI4 NEV. REv. STAT. § 125.150 New Hampsbire X X X X X X X X X X X X X X X17 X X X X X XIS XI9 X20 X X X X XIS N.H. REv. STAT. § 458:16-A New Jersey N.J. STAT. ANN. § 2A:34-23 N.J. STAT. ANN. § 2A:34-23.1 New Mexico N.M. STAT. ANN. N.M. STAT. ANN. N.M. STAT. ANN. N.M. STAT. ANN. N.M. STAT. ANN. N.M. STAT. ANN. X XI6 § 40-3-8 § 40-3-9 § 40-3-9.1 § 40-3-12 § 40-4-3 § 40-4-7 New York N.Y. DOM. REL. § 236B(5) North Carolina N.C. GEN. STAT. ANN. § 50-20 North Dakota N.D. CENTURY CODE ANN. § 14-05-24 Ohio OHIO ST. § 3105.171 X Oklahoma OKLA. STAT. TIT. 43 § 121 X Oregon OR. REv. STAT. § 107.105 Pennsylvania X X X X X X X X X X X X X X X X X X X 23 PA. CONS. STAT. ANN. 3501 23 PA. CONS. STAT. ANN. 3502 Rhode Island R.I. GEN. LAWS § 15-5-16.1 South Carolina S.c. CODE ANN. § 20-3-620 S.C. CODE ANN. § 20-3-630 South Dakota S.D. CODIFIED LAWS § 25-4-44 S.D. CODIFIED LAWS § 25-4-45.1 S.D. CODIFIED LAWS § 25-4-55 X Tennessee TENN. CODE ANN. § 36-4-121 Texas TEX.FAM.CODE.ANN.§7 Utah X X X X X X21 X22 UTAH CODE ANN. § 30-3-5 Vermont X X X X X X X X17 15 VT. STAT. ANN. § 751 Virginia VA. CODE. ANN. § 20-107.3 X 564 Family Law Quarterly, Volume 47, Number 4, Winter 2014 Chart 5: Property Division (continued) Only Marital! Community Community STATE Washington WASH. REV. CODE ANN. § 26.09.080 Property Property Divided X Statutory List of Factors Nonmonetary Economic Contribution Contributions Misconduct to Education X West Virginia X X X X X X X X W. VA. CODE § 48-7-103 Wisconsin X WIS. STAT. § 767.61 Wyoming X X23 Wyo. STAT. ANN. § 20-2-114 1. Case law establishes tbat the court may look at any factors in the particular case when making an equitable division of property. 2. Parties may contract to make some or all of their marital property community property. 3. Court has explicit power to bring either party's premarital property, including retirement assets, if it is necessary to achieve equity. 4. Community property must be divided equally unless the parties agree otherwise. 5. Not specifically listed in statutory factors, but the court is authorized to consider all factors that are relevant to each specific case. 6. The alimony statutory factors also function as factors in dividing marital property. 7. See Estate of Hull v. Williams, 885 P.2d 1153 (Idaho Ct. App. 1994). 8. Spouse may be awarded a share of other's separate property when he or she contributed to its "acquisition, improvement, or accumulation." Korth v. Korth, 256 Mich. App. 286, 662 N.W.2d III (2003) (sweat equity); Hanaway v. Hanaway, 208 Mich. App. 278, 527 N.W. 792 (1995) (contribution of homemaker). 9. Court, with detailed findings, can award up to one-half of a spouse's nonmarital property to other spouse to address an award tbat is so inadequate as to "work an unfair hardship." 10. See Postema v. Postema, 189 Mich. App. 89,471 N.W.2d 912 (1991). 11. By case law. See Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994). 12. "[Nlot expressly listed in tbe statutory factors but the statutory factors are expressly nonexclusive and courts may consider contributions to education." Reese v. Reese (In re Reese), 155 S.W.3d 862, 872 (Mo. Ct. App. 2005). 13. Noted in cases, but not specifically noted in tbe statute. 14. The court may make an unequal disposition of the community property if tbe court finds a compelling reason to do so and sets forth tbe reasons in writing. Also, if a party has made a contribution of separate property to the acquisition or improvement of property held in joint tenancy, the court may provide for tbe reimbursement of tbat party for his or her contribution. 15. Although economic misconduct is not specifically listed as a factor to consider in dividing property, in various cases financial misconduct was a justification for unequal disposition of property. 16. Marital debt is divided in tbe same manner as marital property, except gambling debt that is considered separate. 17. Assuming education from factor 7, it is worded as "to the career or career potential of tbe otber party." 18. Not established by statute, but by case law. 19. Not established by statute, but case law states Ruff-Fischer guidelines need to be considered in determining equitable distribution of property in a divorce action. 20. However, separate (nonmarital) property of a spouse may be awarded to tbe otber spouse "to facilitate, effectuate or supplement a division of marital property" or "to achieve equity between the spouses, if the court determines that a division of tbe marital property in kind or in money would be impractical or burdensome." OHIO ST. § 3105.17I(E); Parker v. Parker, 2000 UT App. 30,][12 (dissipation). 21. Case law mandates property distribution of marital property. See Boyer v. Boyer, 259 P.3d 1063 (Ut. Ct. App. 2011). 22. By case law. See Dunn v. Dunn, 802 P.2d 1314 (Ut. Ct. App. 1990). 23. Considered in case law. See Grosskopfv. Grosskopf, 677 P.2d 814 (Wyo. 1984). STATE Stepparents GrandparentsGrandparents, Generally' After Death of Their Chlld X Alabama l ALA. CODE § 30-3-4.1 X GrandparentsGrandparentsAfter Their Child Divorces Parents Never Married X X Alaska ALASKA STAT. § 25.20.065 X X2 Arizona ARIZ. REv. STAT. § 25-409 ARIZ. REv. STAT. § 25-415 X3 X X X X X X X X Arkansas ARK. CODE ANN. § 9-13-102 ARK. CODE ANN. § 9-13-103 ARK. CODE ANN. § 9-13-107 California CAL. FAM. CODE § 3040 thru § 3041 CAL. FAM. CODE § 31oo!hm § 3105 Colorado COLO. REv. STAT. § 19-1-117 COLO. REv. STAT. § 14-10-123 COLO. REv. STAT. § 14-10-123.3 X X4 ("') ::" X X X XO X X X X X C> :l ~ X X ~ X z: ...~ ~ X5.6 X Connecticut CONN. GEN. STAT. § 468-56 CONN. GEN. STAT. § 468-57 CONN. GEN. STAT. § 468-59 ~ ~. 5' ;: X Delaware DEL. CODE. ANN. TIT. § 24105 Florida FLA. STAT. § 752.01 5 X X Georgia GA. CODE ANN. § 19-7-3 X7 X Hawaii HAW. REV. STAT. § 571-46 HAW. REv. STAT. § 571-46.3 5 X Idabo IDAHO CODE ANN. § 32-719 X Illinois 750 ILL. COMPo STAT. 5/607 Any Interested After Tennination Party of Parental Rights or Adoption ~ ~ <::: '(;;." ~ ~ s. '~" ... X $:) X s· ~ ;;! ~ ~ X ~ X X X X X8 lJt 0\ lJt STATE Stepparents Indiana X Grandparents, GrandparentsGenerally' After Death of Their Child X GrandparentsGrandparentsAfter Their Child Divorces Parents Never Married X X8 U1 Any Interested After Tennination Party of Parental Rights or Adoption XIO X9 0\ 0\ ~ IND. CODE § 31-17-5-1 IND. CODE § 31-17-5-9 ~ X Iowa ~ X IOWA CODE § 600c.1 Kansas KAN. STAT. ANN. § 23-3301 KAN. STAT. ANN. § 23-3302 X Kentucky Ky. REv. STAT. ANN. § 405.021 Louisiana X X X X Xii X X X X X X ::!' ;;l X l3 ~ 't; X \:l Maryland MD. CODE ANN. FAM. LAW § 9-102 X Massachusetts MASS GEN. LAWS CH. 119 §§ 26B, 39D X ~ ::; Michigan MICH. COMPo LAWS § 722.27B X X X X X X X X X Mississippi MISS. CODE ANN. § 93-16-3 X X X X Missouri X X X '"S· XI4 X X X XI5 XI6 X S" ;:, "S· c ;:, '" ,s ." $::) ...,~ '? ~ ~ ~ '" _'l """ f:~ ~ ...,'" -""" ~ ;: .... ..., '" N Mo. ANN. STAT. § 452.402 Nevada NEV. REv. STAT. ANN. § 125C.050 ..=... XI2 ME. REv. STAT. TIT. 19 § 1803 Nebraska NEB. REV. STAT. § 43-1802 NEB. REv. STAT. § 42-364 t'"l co Maine Montana MONT. CODE ANN. § 40-9-102 MONT. CODE ANN. § 40-4-228 ~ to :;: LA. CIV. CODE ANN. ART. 136 LA. REv. STAT. ANN. § 344 LA. REV. STAT. ANN. § 344 Minnesota MINN. STAT. § 257c ~ X a X XI7 X '- X X X X X X X XI8 """ X STATE New Hampshire N.H. REv. STAT. ANN. § 461-A:6 N.H. REv. STAT. ANN. § 461-A:13 Stepparents GrandparentsGrandparents, After Death of Their Child Generally' X X X X X XI9 New Mexico N.M. STAT. ANN. § 40-9-2 X X New York N.Y. DoM. REL. § 72 N.Y. FAM. CT. Acr § 651 X X North Carolina N.C. GEN. STAT. ANN. § 50-13.2 N.C. GEN. STAT. ANN. § 50-13.2A X X20 Oregon OR. REV. STAT. ANN. § 109.119 X2I X X X X Rhode Island R.I. GEN. LAWS ANN. § 15-5-24.1 IhTU § 15-5-24.4 South Dakota S.D. CODIFIED LAWS § 25-4-52 S.D. CODIFIED LAWS § 25-4-54 X X Pennsylvania 23 PA. CONS. STAT. § 2733 23 PA. CONS. STAT. § 5325 South Carolina S.c. CODE ANN. § 63-3-530 X X Ohio OHIO REv. CODE ANN. § 3109.11 OHIO REv. CODE ANN. § 3109.051 Oklahoma OKLA. STAT. ANN. TIT. 43 § 109.4 OKLA. STAT. ANN. TIT. 10 § 75051.5(A) Any Interested After Tennination Party of Parental Rights or Adoption X New Jersey" N.J. STAT. ANN. § 9:2-7.1 North Dakota N.D. CENT. CODE ANN. § 14-09-05.1 GrandparentsGrandparentsAfter Their Child Divorces Parents Never Married X23 X X X X X X X X X X X X24 X X22 X I9 X X25 V1 0\ 00 STATE Tennessee TENN. CODE ANN. TENN. CODE ANN. TENN. CODE ANN. TENN. CODE ANN. Stepparents X GrandparentsGrandparents, Aller Death of Their Child Generally' X X26 GrandparentsGrandparentsAller Their Chlld Divorces Parents Never Married X Any Interested Party ~ Aller Tennination of Parental Rights or Adoption ;; ~ X ~ § 36-6-302 § 36-6-303 § 36-6-306 § 36-6-307 ~ X Texas TEX. FAM. CODE ANN. § 153.432 thru § 153.434 Utah UTAH CODE ANN. § 30-5-2 UTAH CODE ANN. § 30-5A-102 UTAH CODE ANN. § 30-A- 103 West Virginia W. VA. CODE ANN. W. VA. CODE ANN. W. VA. CODE ANN. W. VA. CODE ANN. W. VA. CODE ANN. X (") =~ X X X X27 X X X X X28 ~ ~ I:> q X28 ~ §-, X X S' ;:: "S· C X X ;:: X § 48-10-301 § 48-10-401 § 48- 10-402 § 48-10-702 § 48-10-902 Wisconsin WIS. STAT. ANN. § 767.43 WIS. STAT. ANN. § 54.56 WIS. STAT. ANN. § 48.92 5 Wyoming Wyo. STAT. ANN. § 20-7-101 :l :!' :;;J Vennont VT. STAT. ANN. TIT. 15, § 1011 VT. STAT. ANN. m. 15, § 1012 VT. STAT. ANN. TIT. 15, § 1016 Virginia VA. CODE ANN. § 20-124.1 VA. CODE ANN. § 20-124.2 Washington29 to ;;:: ;: '" ~ l:l ....~ '? ~ !2 ;; ('\) "".'-1 ~ ;; \J"' ('\) .... .""- ~ ;::: ~ .... tv X30 X X C ...... X ""- X X3I A Review afthe Year in Family Law 569 * Grandparents may obtain visitation when the parents are alive and regardless of their marital status. Many of these statutes contain requirements, such as the establishment of a substantial relationship, the best interests of the child, the existence of a residential relationship, the parent's unreasonable denial of visitation, or a combination of these. ** This New Jersey statute is flagged unconstitutional. 1. The grandparent visitation statute has been found to be unconstitutional as of December 2011. See Burnett v. Burnett, 2011 WL 6117944 (Ala. Civ. App. 2011). 2. Third-party-visitation burden of persuasion for a grandparent raised to clear and convincing (Evans v. McTaggart). Also case law permits a "psychological parent" to seek custody, and Evans v. McTaggart raised proof to clear and convincing. 3. Assuming that the factors set forth in the nonparental custody and visitation statute are satisfied, including a finding that visitation is in the child's best interests, the court can order reasonable visitation upon the establishment of in loco parentis status. A person who stands "in loco parentis," who is a "de facto," "equitable," or "psychological parent," or who has a substantial residential relationship with a child may seek visitation or custody without showing that a parent is unfit or other extraordinary circumstances. Some statutes impose a time requirement for the duration of the relationship before visitation or custody may be sought. New York requires proof of "extraordinary circumstances." 4. The petitioner has the right to visit any brother or sister, regardless of the degree of blood relationship, whose parents have denied such access. 5. A court of the state has declared the statute unconstitutional either on its face or as applied. 6. The court must scrutinize an application to determine whether it contains specific, good faith allegations of both relationship and harm, namely that nonparent has a relationship with child that is similar in nature to a parent-child relationship and that denial of visitation will cause real and significant harm to child, and if the application does not contain such allegations, the application must be dismissed. 7. Grandparent visitation statute violates constitutionally protected liberty interest of parents to raise their children without undue state interference. The State may only impose that visitation over parents' objections on showing that failing to do so would be harmful to child. 8. Visitation rights of paternal grandparents to child born out of wedlock are subject to establishment of paternity. 9. Third party must establish existence of custodial and parental relationship with child. 10. Visitation rights survive adoption of child by either a stepparent or any person related to child. 11. Visitation may be granted to grandparents of a child if the grandparents' son or daughter is deceased and the grandparent has assumed the financial obligation of child support owed by deceased parent. 12. La. Rev. Stat. Ann. § 344 provides visitation rights to siblings in the event of the death or incarceration of a parent or the legal separation of the parents. 13. If the parents are not deceased, grandparents may get visitation rights if there is an existing relationship between the grandparent and child or a sufficient effort to establish a relationship has been made. 14. Sibling visitation may be granted once minor children are placed in family foster care. 15. Third-party visitation for any interested party may be granted as long as the child has resided with them for a period of two years or more, and meet the other criteria applicable for all third-party visitation requests. 16. Visitation rights for grandparents in a stepparent adoption. 17. When the stepparent stands in loco parentis. See Hickenbottom v. Hickenbottom, 477 N.W.2d 8, 16 (1991) (citing NEB. REV. STAT. § 42-364). 18. "If the child has resided with a person with whom the child has established a meaningful relationship." NEV REV. STAT. ANN. § 125C.050. 19. Allows visitation rights for siblings and grandparents when a "spe~ial relationship" exists or existed between the grandparent(s) and the child(ren). 570 Family Law Quarterly, Volume 47, Number 4, Winter 2014 20. McAllister v. McAllister, 779 N.w.2d 652 (N.D. 2010). 21. In an adoption, the adoptive parents may enter into a visitation agreement with "birth relatives." OKLA STAT. ANN. TIT. 10, § 7505-1.5(A). A stepparent is considered a birth relative. Id. at § 7505-1.5(B). . 22. A prospective adoptive parent of a child may enter into an agreement with a birth relative of the child to permit continuing contact or communication between the child and the birth relative or between the adoptive parent and the birth relative. 23. See Dodge v. Dodge, 505 S.E.2d 344 (S.C. App. 1988). (Stepfather joined with maternal grandparents in custody dispute; the court did not rule on the stepfather's standing alone). 24. When court-ordered grandparental visitation, in addition to the noncustodial parent's visitation periods, borders on divided custody, it will not be approved absent exceptional circumstances. Brown v. Earnhardt, 396 S.E.2d 358 (1990); 21 S.C. JUR. CHILDREN AND FAMILIES § 151. 25. See Moore v. Moore, 386 S.E.2d 456, 458 (S.C. 1989), citing Kay v. Roland, 331 S.C.2d 781, 782 (S.C. 1985) (Court places substantial burden on a third party attempting to take custody over biological parent recognizing, "superior rights of a natural parent in a custody dispute with a third party. Once the natural parent is deemed fit, the custody is decided.") 26. For the purposes of this section, if the child's parent is deceased and the grandparent seeking visitation is the parent of that deceased parent, there shall be a rebuttable presumption of substantial harm to the child based upon the cessation of the relationship between the child and grandparent. TENN. CODE ANN. § 36-6-306. 27. Court may grant custody to individuals other than a parent in certain circumstances. "Person other than a parent" includes only (a) siblings; (b) aunts; (c) uncles; (d) grandparents; or (e) current or former step-parents, or any of the persons in Subsections (2)(a) through (d) in a step relationship to the child. UTAH CODE ANN. § 30-5a-102. 28. Grandparents cannot initiate a proceeding on their own unless the child's parent has died. They can file a petition in ongoing custody proceedings, including divorce, and marital status of parents doesn't matter, but only for ongoing proceedings. 29. See In re Custody of Smith, 969 P.2d 21 (1998); In re Parentage of C.A.M.A., 109 P.3d 405 (Wash. 2005) (found third- party-visitation-rights statutes unconstitutional). 30. If one or both parents of a minor are deceased and the minor is in the custody of the surviving parent or any other person, a grandparent or stepparent of the minor may petition for visitation privileges with respect to the minor, whether or not the person with custody is married. WIS. STAT. ANN. § 54.56 31. To receive visitation rights, the individual has to have been the primary caregiver for the child for a period of not less than six (6) months within the previous eighteen (18) month. If the court finds, after a hearing, that visitation would be in the best interest of the child and that the rights of the child's parents are not substantially impaired, the court shall grant reasonable visitation rights to the primary caregiver.