Family Law Update for May 2017

In this Issue …

A Word from Gregg Herman
Judicial recusal

Wisconsin Courts Updates
No new cases

Decisions Across The Nation
Grandparent visitation, Laches and child support, Acknowledgment of Paternity, Sexual orientation as a factor in parenting, Relocation, Availability of trust distributions for child support.

Family Law Online
“Three Perspectives On Keeping the House, Or Not” and “4 Benefits Of Being A Child Of Divorce.”

Family Law Related Articles and Publications
Family Advocate issue on Uniform Laws for Family Law

A Word from Gregg Herman …

Gregg Herman While it’s not strictly a family law issue, it affects all lawyers and parties who have to litigate (even if we settle most of our cases). The “it” here is to what extent are judges biased because a lawyer contributed to his or her campaign?

Last week, the Wisconsin Supreme Court summarily denied a petition brought by 54 retired judges. Should the court have, at a minimum, listened to arguments – or even adopted the proposed rule?

Watch my video below for my thoughts on the controversy surrounding the issue and the Court’s decision.

Play Video

Wisconsin Courts Update

— No New Cases … Again. Sigh —

Decisions Across the Nation

The following cases are provided courtesy of Contributing Editor Laura Morgan, Family Law Consulting. Laura is available for consultation, brief writing and research on family law issues throughout the country. She can be reached through her Web site or via e-mail.

Please Note: Most decisions are posted in Adobe Acrobat (PDF) format.

Smith v. Martin
NO. 2014-CT-00040-SCT
Mississippi Supreme Court
April 20, 2017

Under statute providing that grandparents may petition for grandparent visitation after the death of the parent of a minor child, award of custody to one of the parents, or termination of parental rights of one of the parents, the chancellor’s consideration of the child’s or children’s best interest is not limited to the determination of the amount of grandparent visitation, but must be considered in determining whether the grandparents should receive visitation in the first place; abrogating Martin v. Coop, 693 So.2d 912.

Mitchell v. Krieckhaus
Docket: Cum-16-375
Maine Supreme Court
April 18, 2017

Trial court was required to hold an evidentiary hearing on the issue of whether the parties provided substantially equal care of their son prior to issuing child support order in divorce proceedings; finding of substantially equal care was not based on a limited list of statutory factors, but instead on an open-ended inquiry requiring findings regarding the extent to which the parents participate in the child’s total care.

Wynn v. Craven
S17A0580
Georgia Supreme Court
April 17, 2017

Doctrine of laches did not bar divorced mother from collecting more than $72,000 in unpaid child support that had accrued over the course of 15 years due to mother’s decision to seek only $100 per week in child support from father rather than 20% of his gross weekly income with a minimum of $100 per week as called for by the divorce decree; forgiveness of father’s arrears would constitute an improper retroactive modification of the child support award, and mother could not waive child’s right to child support.

Petit v. Adrianzen
133 Nev. Adv. Op. 15
Nevada Supreme Court
April 13, 2017

Best interests of child supported hyphenating child’s surname to include both parents’ surnames, in initial naming dispute case between married parties; father raised surname issue in divorce action he filed within two months of the child’s birth, there had been no agreement or acquiescence to mother’s unilateral decision to give child her surname, trial court noted that hyphenated name would allow child to identify with both parents, and father testified that in many Hispanic families children have hyphenated surnames.

K v. C
New York Supreme Court, New York County
April 11, 2017

Petitioner, a former same-sex partner who had lived with respondent partner pursuant to a cohabitation agreement, did not prove by clear and convincing evidence that petitioner and respondent had a plan to adopt and raise a child together that continued unabated, as would be required for petitioner to have standing to seek joint custody of and visitation with child adopted by respondent after petitioner and respondent had entered into a separation agreement; rather, the clear and convincing evidence was that before child was identified for adoption as well as after finalization of adoption by respondent, petitioner herself acknowledged repeatedly that she did not want to be a parent, that the plan to adopt a child with respondent died with their relationship, that she had no parental role in child’s life, that respondent denoted her as a godmother, and that she acquiesced in that title precisely because respondent objected to any recognition of her as co-parent.

State ex rel. Secretary of Department for Children and Families v. Smith
No. 114,306
Kansas Supreme Court
April 7, 2017

Department for Children and Families filed petition for support of minor child against man who was not child’s biological father but who signed a voluntary acknowledgement of paternity. Held: (1) acknowledgment complied with statute even if signatures were not notarized; (2) acknowledgment was enforceable even though man claimed not to have read it or understood its terms; (3) man could not attempt to revoke acknowledgment more than one year after child’s date of birth; and (4) substantial evidence supported finding that it was in child’s best interests to conclude that man was child’s legal father.

In re Marriage of Black
No. 92994-7
Washington Supreme Court
April 6, 2017

The trial court abused its discretion when it considered wife’s sexual orientation as a factor when determining the parenting plan, in dissolution of marriage case where wife disclosed her homosexual orientation; the trial court found husband was the more stable parent in part because he was better suited to maintain the children’s religious upbringing, which included a belief that homosexuality was a sin, and the trial court’s restrictions that prohibited wife from discussing “alternative lifestyles” with the children assumed wife’s discussion of her sexual orientation would have a negative impact on the children.

Boatman v. Boatman
No. 113197 (companion w/113857)
Oklahoma Supreme Court
April 4, 2017

Application of mother, who had joint custody of minor child with father but was not primary physical custodian of child, to relocate to Georgia with child was made in good faith as would shift burden of proof to father to show that proposed relocation was not in best interest of child, although mother accepted new job in Georgia only days after father was made aware of her interview for job; mother had no duty to inform father that she was applying to jobs, fact that mother did inform father of job interview in Georgia demonstrated good faith, mother’s job opportunity was only motivating factor behind relocation application, and mother did not intend to harm father’s relationship with child or deprive him of visitation.

Harshman v. Harshman
Docket: Kno-16-460
Maine Supreme Court
April 4, 2017

Husband’s trust fund distributions were ongoing and, thus, part of husband’s gross income for purposes of calculating child support; historical evidence demonstrated that, despite husband’s medical and business degrees, he had supported his family, not by employment, but by utilizing trust distributions he received throughout the marriage, and even though he did not have a right to demand distributions, his sister, as trustee, gave him a trust disbursement every time he requested one.

Family Law Online

Three Perspectives on Keeping the House, or Not

“For many people their house is both a serious financial asset and an ongoing expense. And since the house is your home, it’s an asset that comes with a lot of emotional attachment. For these reasons, deciding what to do with the house often causes a great deal of conflict in a divorce. Here, a mental health professional, a financial advisor, and a lawyer give you some guidance on what questions to ask yourself in order to decide whether or not to keep your house after you divorce.” (DivorceMagazine.com)

4 Benefits of Being a Child of Divorce

“As a child of divorce, a divorced mother of two, and a long-practicing divorce lawyer/therapist, divorce is not exactly something I would advocate for improving a child’s mental health. That said, now that I am well on the other side reflecting back, I can point to at least four ways divorce can benefit (which the dictionary defines as “something that promotes or enhances well-being”) children.” (Huffington Post)

Family Law Related Articles and Publications

The Spring, 2017, edition of the Family Advocate (Vo. 39, No. 4) is on Uniform Laws for Family Law. Articles include:

What are Uniform Laws and How Do They Come Into Being?
By Richard T. Cassidy & Debra H. Lehrmann

A Practical Guide to UIFSA
By Joseph W. Booth

Understanding the UCCJA
By Kathleen A. Hogan

Enforcement of Foreign Judgments under the UEFJA
By Thad F. Woody

Protecting Children from Parental Abduction: A Practitioner’s Guide to UCAPA
By Jeanne M. Hannah

Premartial Agreements and the Uniform Acts
By Linda J. Ravdin

Using Uniform Laws to Support Your Case: Practical Research Techniques and Interpretation Methods
By Allen Gary Palmer

For ordering or subscription information (the current issue may not be available yet), please visit the Family Advocate web site.

Our contributing editors include:

We Thank Them for Their Contributions!

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.