Family Law Update for September 2016

In this Issue …

A Word from Gregg Herman
Other services available; alcohol issues and divorce

Wisconsin Courts Updates
Unpublished (but citeable) paternity case

Decisions Across The Nation
Standing to seek visitation, Arbitration agreement, Maintenance provision in Post-Nuptial agreement, Premarital cohabitation of same-sex couple and effect on support and property division, Delegation of court’s authority for placement decision, UCCJEA, Custody of children who are undocumented immigrants, Hague Convention on the Civil Aspects of International Child Abduction case and more.

Legislative Watch
Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance

Family Law Online
Memorial Day, Labor Day, Fourth of July – Divorce Style

Embryo Donation

A Word from Gregg Herman …

While being a divorce lawyer remains my “day job,” now that I am certified as a family law mediator, that service is available to lawyers who are looking for an experience practitioner in such a role.

There are also a few other services which I have offered over the years and I’ve just added a brief description of them on my office Web site.

Can you use assistance in any of those areas? If so, give me a call or send me an email, and let’s explore how I may able to help.

In this month’s Thoughts on Family Law video, I discusses the issues surrounding the use/abuse of alcohol by parties to divorce, and approaches toward mitigating its impact on settlement and child placement.

Wisconsin Courts Update

Editor’s Note: The following case is not recommended for publication, but may be cited for its persuasive value under Wis. Stat. 809.23(3).

On August 3, 2016, the District II Court of Appeals issued their opinion in In Re the Paternity of L.C., No. 2015AP1508, which affirmed in part; reversed in part and cause remanded with directions the orders rendered by the Honorable J. Mac Davis and the Honorable Michael O. Bohren (Waukesha County).

The circuit court adjudicated K.S.C. the father of eight–year–old L.C. and gave him exclusive placement of her upon the default of the mother, R.C., who failed to produce L.C. for genetic testing and fled the jurisdiction. R.C. claims this was error because her husband, R.S., whom she married a month before litigation was commenced, should have been presumed the father. R.C. also contends there was insufficient evidence upon which to adjudicate K.S.C. the father because R.C. engaged in sexual intercourse with two men – one supposedly being R.S. – during the conceptive period.

For the first eighteen months of the litigation, R.C. did not allege that R.S. was the biological father of L.C.; to the contrary, she repeatedly indicated that R.S. was not the father. The Court of Appeals found the circuit court did not err in declining to apply the statutory presumption that R.S. was the father, and there was sufficient evidence to adjudicate K.S.C. the father. The exclusive placement of L.C. with K.S.C. – clearly a temporary measure until R.C. returned to the jurisdiction with L.C. – was not an erroneous exercise of discretion, since R.C. was unreasonably interfering with the relationship between L.C. and K.S.C. Further, the Court of Appeals found the circuit court did not err in determining that R.C. did not show that she was coerced into agreeing to genetic testing of L.C.

Finally, R.C. claimed it was error to award K.S.C. attorney fees for the entire litigation and going forward based on her misconduct because until she failed to appear she had not engaged in misconduct. Since the circuit court’s reasoning for awarding attorney fees to K.S.C. from the inception of the litigation and going forward was not evident, the Court of Appeals reversed in part and remanded so that the circuit court could explain its reasoning.

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.

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.

Brooke S.B. v. Elizabeth A. C.C.
2016 N.Y. Slip Op. 05903
New York Court of Appeals
August 30, 2016

“These two cases call upon us to assess the continued vitality of the rule promulgated in Matter of Alison D. v. Virginia M. (77 N.Y.2d 651 [1991] ) — namely that, in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child’s “parent” for purposes of standing to seek custody or visitation under Domestic Relations Law § 70(a), notwithstanding their “established relationship with the child” (77 N.Y.2d at 655). Petitioners in these cases, who similarly lack any biological or adoptive connection to the subject children, argue that they should have standing to seek custody and visitation pursuant to Domestic Relations Law § 70(a). We agree that, in light of more recently delineated legal principles, the definition of “parent” established by this Court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships. Accordingly, today, we overrule Alison D. and hold that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.”

LaFrance v. Lodmell
Nos. 19614, 19615
Connecticut Supreme Court
September 6, 2016

An arbitration agreement entered into as part of a prenuptial agreement was subject to the statutory provision governing agreements to arbitrate in an action for dissolution of marriage; thus, the trial court properly determined the scope of the parties’ agreement to arbitrate, and that it would be fair and equitable to arbitrate only those issues that were within the scope of the parties’ prenuptial agreement. (Read Concurrence)

Maddaloni v. Maddaloni
2016 N.Y. Slip Op. 05851
New York Supreme Court, Appellate Division, Second Department
August 24, 2016

Maintenance provision of postnuptial agreement between husband and wife, which provided wife with $50,000 in maintenance in full satisfaction of all claims if the parties divorced after five years of marriage, was unconscionable by the time final judgment of divorce was entered more than 25 years later, and thus terms would not be enforced by court; at the time the parties executed the postnuptial agreement, husband owned, among other things, a jewelry business worth at least $3 million, and he was in contract to buy a shopping center, thereafter, during the many years of their marriage, husband’s jewelry business underwent tremendous growth while wife worked there, and the parties lived a lavish lifestyle that included numerous high-end automobiles, a yacht, and frequent international vacations.

In re Ross
No. 2015-0345
New Hampshire Supreme Court
August 23, 2016

Husband’s adulterous behavior after wife had filed for divorce, but prior to final decree, could be used as basis for wife’s defense of recrimination to husband’s cross-petition for fault-based divorce. (Ed. Note: A wholly unenlightened opinion.)

In re Munson and Beal
No. 2015-0253
New Hampshire Supreme Court
August 19, 2016

In a same-sex divorce case, premarital cohabitation is a factor that court may consider in divorce proceedings when determining whether to depart from presumption that equal division is equitable distribution of property. Here, the trial court did not exercise the full breadth of its discretion when it failed to consider parties’ lengthy premarital cohabitation in dividing marital property and determining amount of alimony in gay couple’s divorce proceeding, even if couple could have entered into civil union or marriage earlier in neighboring states.

Hardin v. Hardin
No. A16A1210
Georgia Court of Appeals
August 18, 2016

Self-executing change in custody provision, which permitted mother to resume visitation with son in form of weekly therapeutic sessions upon mother’s completion of eight weeks of therapy and submission of report to trial court by counselor, constituted impermissible delegation of trial court’s authority to determine timing of custody transitions or modifications to counselor, and thus was invalid; transition in custody was automatic, trial court did not retain ultimate responsibility for reviewing report to determine whether it sufficiently evidenced mother’s progress and completion of required therapy, and order lacked flexibility needed to adapt to unique variables that had to be assessed to determine best interests of child.

Blumenthal v. Brewer
No. 118781
Illinois Supreme Court
August 18, 2016

Homeowner, who jointly owned home with former same-sex domestic partner, filed complaint for partition of home. Former domestic partner filed counterclaim seeking common law remedies, including constructive trust, unjust enrichment, restitution, and quantum meruit, to equalize parties’ assets. Held: former domestic partner’s claim for restitution was barred by public policy implicit in statutory prohibition on common-law marriage; and prohibition on unmarried cohabitants bringing common-law claims based on marriage-like relationship did not violate due process or equal protection.

Kar v. Kar
132 Nev. Adv. Op. 63
Nevada Supreme Court
August 12, 2016

Even though, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), trial court that initially made child custody determination lost exclusive jurisdiction over custody matter when child and child’s parents moved out of the state and to other countries, court retained jurisdiction to ensure that another more appropriate forum existed to resolve dispute.

Castellanos v. Recarte
36 N.Y.S.3d 217, 2016 N.Y. Slip Op. 05755
New York Supreme Court, Appellate Division, Second Department
August 10, 2016

Family Court in custody proceeding should not have dismissed mother’s custody petition without conducting hearing and considering best interests of children who were undocumented immigrants, although mother was presumptively entitled to custody of children as surviving parent after father died, rather, Family Court should have conducted hearing on petition, which sought custody order as well as order making special findings so as to enable children to petition United States Citizenship and Immigration Services for special immigrant juvenile status as means to obtain lawful permanent residency.

Pfannenstiehl v. Pfannenstiehl
475 Mass. 105, 55 N.E.3d 933
Massachusetts Supreme Judicial Court
August 4, 2016

Husband’s remainder interest in trust created by husband’s father for benefit of open class of beneficiaries was so speculative as to constitute nothing more than an expectancy and, thus, was not assignable to marital estate, notwithstanding requirement that trustees take husband’s standard of living into account when determining whether to make distributions; trust benefited future generations, so that trustees were unlikely to terminate trust and distribute remainder during husband’s lifetime, distributions from trust were not equal from year to year, husband received no distribution in some years, and termination of trust was contingent on trust no longer holding stock in corporations that funded trust, but husband had no authority to compel sale of stock. The power lodged in the trustee to invade principal in its uncontrolled discretion for the maintenance, support, and education of beneficiaries does not give to the beneficiaries an enforceable claim against the trust for their support.

Jones v. Jones
No. 541, 2015
Delaware Supreme Court
August 2, 2016

Wife was not disqualified from receiving alimony due to cohabitation since wife was not a party receiving alimony at the time of her alleged cohabitation; the cohabitation ended months before the alimony hearing, and wife was not attempting to deceive the court by terminating cohabitation shortly before the alimony hearing.

De Aguiar Dias v. De Souza
NO. 16-40049-TSH
United States District Court, District of Massachusetts
August 1, 2016

Father’s retention in the United States of the parties’ 13-year-old daughter, who was a native of Brazil, was “wrongful” within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act (ICARA), even if he shared custody rights with mother at the time of retention; mother would have exercised her custody rights but for father’s retention, as there was no evidence that she clearly and unequivocally abandoned her child when she permitted the child to travel to the United States to visit father under belief that child would return within a month, when asked, she declined to give father permission to keep child in the United States, she later petitioned for custody of child, and was awarded temporary custody. Father did not show by clear and convincing evidence that return of the parties’ 13-year-old daughter, a native of Brazil, to her mother’s custody in Brazil would expose her to grave risk of physical or psychological harm or otherwise place her in an intolerable situation, as would have warranted preventing her return pursuant to Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act (ICARA); although child’s father contended that areas around neighborhood where child would return were extremely dangerous and controlled by drug traffickers, mother testified that when child previously lived in Brazil, she was not allowed to walk outside without adult supervision, mother’s husband testified that house to child would return was located in calm, middle-class neighborhood, and child would attend school outside of her house, which offered extracurricular activities, including athletics. Father also failed to establish that relief was warranted under mature child defense to the return of the parties’ 13-year-old daughter, a native of Brazil, to her mother’s custody in Brazil, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act (ICARA); although it was reasonable to believe that child did not want to return to Brazil at the time of her entry into the United States, the only evidence that child currently objected to return consisted of unsupported representations by father, and child’s exemplary grades and letter from her jiu-jitsu instructor, though probative of maturity, were not sufficient to show she was of a sufficient age and maturity for the court to take her views into consideration.

Legislative Watch

Hague Convention on International Recovery of Child Support

On August 30, 2106, President Obama signed the instrument of ratification for the Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance.

Family Law Online

Memorial Day, Labor Day, Fourth of July – Divorce Style

“Everyone wants to make the most out of a long weekend, but divorced parents even more so. They don’t get every weekend as it is, so any extra time is a plus. Below are some tips that have helped me make the most out of the long weekend.” (


Following is provided courtesy of Contributing Editors Stephen Hayes and Elizabeth Neary of Grady, Hayes & Neary, LLC, Waukesha, WI. They can be reached at 262-347-2001 or via e-mail.

Embryo Donation

Today, with increasing frequency, couples seek to build their families by creating embryos using their egg and sperm or using genetic material from one intended parent and donated egg or sperm, usually by an anonymous donor. Once the embryos are formed, they are transferred to a carrier, either the intended mother or a surrogate in the hope of creating a pregnancy and eventually a child.

The embryos are often frozen so that the intended parents could make use of them to add another child to the family. Not infrequently the intended parents may freeze more embryos than they use. The question then becomes what do the intended parents do with the frozen embryos. They can be destroyed. They can be donated to medical science. They can be donated to other infertile couples to assist them in building their families.

The term embryo adoption is not a favored term in the family building field. The preferred term is embryo donation. The intended parents build their family using genetic material from others. Depending on how the child is created, the legal status of the child may be determined by act of birth alone or by legal action such as adoption following the birth. No compensation is provided for the embryo donors; however, there are costs for embryo storage, as well as the medical and legal procedures.

It is not an inexpensive way to build a family, but does represent an alternative being used more frequently today than ever before.

Contributing Editors

Our contributing editors include:

We Thank Them for Their Contributions!

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