Family Law Update for February 2019

In this Issue …

A Word from Gregg Herman
AAML Seminar

Thoughts on Family Law Video
Effect of Domestic Violence Law

Wisconsin Courts Updates
No New Cases

Decisions Across The Nation
Two relocation cases (with different results), Condition on placement that stepmother not be present, Joint and final decision making, Habitual residence, Conviction for sexual assault and economic fault, Adoption subsidy and child support, MBA degree as marital property and more.

Family Law Online
Relatives Should Be Included In Child Placement Cases, The Rise of Gray Divorce: Why and Why Not? and Referendum to Remove Divorce Restrictions

Family Law Related Articles and Publications
The ABA FLS publication, Family Advocate issue is on “Technology for Lawyers: Tools and Traps”

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A Word from Gregg Herman …

The annual American Academy of Matrimonial Lawyers seminar, Divorce Wisconsin Style, will be held on March 15, 2019 from 7:45 a.m. – 4:30 p.m. at the Pfister Hotel in Milwaukee.

This year’s program will include a panel on ADR and parenting; an overview the Our Family Wizard service; family court commissioners panel; judges panel; hot tips presentation and an overview of family law caselaw, legislation and literature.

The cost the seminar is $249.00 per person. Brochure and registration form are located on the AAML-WI website.

Thoughts on Family Law

My video this month is about an article which appeared in the December issue of Wisconsin Lawyer entitled Domestic Abuse: Little Impact on Child Custody and Placement that questions why the law requiring courts to take domestic violence into account in custody and placement cases is not working. I also put together a column for Wisconsin Law Journal detailing my thoughts that’s posted on my firm website.

After watching the video, contact me by using this form to let me know if you agree with me — or not.

Wisconsin Courts Update

— No New Cases

• • •

Subscribe to Wisconsin Family Law Case Finder at 10% Off!

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: Some decisions are posted in Adobe Acrobat (PDF) format.

In re Marriage of Fatkin
No. 123602
Illinois Supreme Court
January 25, 2019

Trial court’s decision allowing custodial father to relocate was supported by the evidence where there was a three day trial during which the trial court conducted a thorough in camera interview with the parties’ son to ascertain his thoughts and feelings about both the relocation and his relationship with his parents; the father’s desire to relocate stems from a good-faith desire to give his children a better quality of life and that his belief that Virginia will provide that is reasonable and rationally based; although the children enjoy a “good” relationship with the mother, their relationship with their father is “exceptional,”; although there is little evidence with which to evaluate the academic quality of the relevant Virginia Beach schools relative to the schools in Galesburg, the children will undoubtedly benefit from Virginia Beach’s greater ethnic and cultural diversity; whereas the children have no extended family in Illinois, they will be living with their paternal grandparents in Virginia; relocation’s impact on the parties’ son is likely to be insignificant, as he “specifically stated a preference for residing with his father who he views as the more stable, nurturing parent and clearly stated that he could adapt to not seeing his mother at the current level,”; relocation’s impact on the parties’ daughter is likely to be greater, as she “has a stronger bond with her mother than [her brother] does; upon relocation, a reasonable allocation of parental responsibilities can be fashioned so that both parties continue to enjoy a significant presence in and responsibility for the children’s lives; the parties’ son “clearly stated his preference for the granting of the petition for relocation and did so as an extremely articulate, mature 13-year-old who expressed reasoned and independent preferences as to relocation.”

In re G.M.N.

No. DA 18-0195
Montana Supreme Court
January 22, 2019

District Court did not err in affirming standing master’s decision determining it was in child’s best interest to remain in home community, rather than moving to mother’s home State with mother; standing master determined father and mother to have equally strong relational ties with child and to be good parents each equally capable of meeting the daily demands of parenting and time the parents spent with child was nearly equal, recognized increased job opportunities existed for mother in her home State and child had a strong relationship with mother, but found those factors did not override or outweigh the considerable benefits to child of remaining on a primary basis in home community, especially in light of her very positive relationships with father, father’s other daughter, and father’s girlfriend.

McMahon v. McMahon

No. And-18-74
Maine Supreme Court
January 24, 2019

After father’s relationship with his two eldest children began to deteriorate, in part because of conflicts between the children and his new wife, it was not an abuse of discretion for the court to determine, based on previous interactions between the two eldest children and the new wife, that it was in the best interests of the children to impose a condition on the father’s visitation with them that the stepmother not be present.

Plummer v. Plummer
No. S18G0146
Georgia Supreme Court
January 22, 2019

Under the UCCJEA, the trial court erred in dismissing the father’s motion for modification, though he subsequently moved from Georgia to Virginia, since he lived in Georgia at the time of the filing of the petition.

Nicaise v. Sundaram
No. CV-18-0089-PR
Arizona Supreme Court
January 17, 2019

The trial court awarded joint legal decision-making to mother and father, but gave final decision-making authority to father on medical, dental, mental health, and therapy issues, ordered that child attend public school and receive certain medical, dental, and mental health treatments, and awarded attorney fees to father. The supreme court held that as a matter of first impression, trial court’s award of joint legal decision-making was not converted into award of sole legal decision-making authority as result of fact that award gave father “final” legal decision-making authority over certain matters.

Pfeiffer v. Bachotet
No. 18-13918
United States Court of Appeals, Eleventh Circuit
January 15, 2019

Where children had lived continuously in Switzerland for six years, nothing in the record indicated that the children had ever lived in, or even spent significant time in, the United States as of the date of removal, and there was no evidence that any other country could have served as the children’s habitual residence as of the date of removal, Switzerland was the children’s place of habitual residence.

Swanson v. Swanson
No. 20180158, 2019 ND 25
North Dakota Supreme Court
January 15, 2019

Husband’s conviction for sexual assault did not constitute economic fault for purposes of determining an equitable distribution of marital property in divorce, although conviction caused wife to lose her foster care license, where conviction did not result in the destruction, squandering, or waste of assets.

Green v. Green
No. 28541
South Dakota Supreme Court
January 9, 2019

Monthly adoption subsidies received by husband and wife could be treated as monthly income for purposes of determining child-support obligation, even though they were not part of statutory list of sources of monthly income that could be used to determine child-support obligations.

Lynch v. Lynch
2019 N.Y. Slip Op. 00105
New York Supreme Court, Appellate Division, Second Department
January 9, 2019

Although the husband’s MBA degree is marital property subject to equitable distribution, the wife was not entitled to any property award from that degree; “We see no error in the court’s conclusion that obtaining the MBA degree merely allowed the defendant to secure employment at a substantially similar level of compensation to what he had earned in the past.”

And finally …

A federal judge has levied sanctions on a tobacco heiress’ estranged husband for destroying evidence related to spyware that he secretly installed on his wife’s phone and used to listen in on her calls, including conversations she had with her attorney. It was the second time that a judge has hit Crocker Coulson, who is locked in a bitter divorce with Anne Resnik, with spoliation sanctions for destroying evidence of bugging Resnik’s phone.

Family Law Online

The following articles are provided for informational purposes only. If you discover an article on divorce or family law related issues that may be of interest to our subscribers, please contact me by using this form.

Relatives Should Be Included In Child Placement Cases

An appeals court says child welfare agencies in Minnesota must have a court hearing before ruling out family members as adoptive parents for neglected children. (AP via

The Rise of Gray Divorce: Why and Why Not?

Al and Tipper Gore could be the poster children for one reason why divorce for those 50 and up is on the rise. There are many other factors at play, and several financial considerations to keep in mind, too. (Kiplinger)

International Press

Referendum to be Held in May to Remove Divorce Restrictions

It is proposed that the divorce waiting period will drop to two out of three years living apart if the referendum is passed. (The Irish Times)

Family Law Related Articles and Publications

The Winter, 2019 edition (Vol. 41, No. 3) of The Family Advocate , published by the ABA Family Law Section, is dedicated to Technology for Lawyers: Tools and Traps. Articles include:

Our Top 10 Apps for Family Law Attorneys
By Randall M. Kessler & Molly Y Teplitzky

Expectations of Privacy in Audio and Video Recording in a Family Law Context
By Rose L. Hubbard

The Perils of Spyware: A Quick Overview
By Fernando M. Luna

The Technology ‘Do Not Do’ list: A Guide for Client
By Sharon D. Nelson, John W. Simek and Michael C. Maschke

Spoliation of Electronic Evidence: A Primer with Sample Spoliation Letter to Opposing Counsel
By Ike Vanden Eykel and Lindsey V. Underwood

The Trouble with Devices and the Data They Contain
By Gordon D. Curse

Managing Electronic Evidence
By Joseph W. Booth

To subscribe or for more information, visit The Family Advocate web site.

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.