Family Law Update for June 2019

In this Issue …

A Word from Gregg Herman
VIDEO: Grandparent visitation case

Wisconsin Courts Updates
Supreme Court decision in Michels v. Kelsey

Decisions Across The Nation
Sanctions, UCCJEA, Life insurance and suicide and more.

Legislative Watch
Proposed child support and placement laws, Access to track proposed legislation for State Bar FLS members

Family Law Online
8 Tips To Help Dads Prepare For A Custody Battle, Divorce Litigant Charged in Stabbing of Lawyer at Deposition, “I Do” or “I Don’t” – Estate Plan Considerations as a Result of Marriage or Divorce and Social Security Considerations After Divorce

The Growth of Surrogacy to Build Families

Tax Tip Corner
Dependency exemption and IRS Form 8332

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A Word from Gregg Herman …

It is rare that the Wisconsin Supreme Court decides a family law case and even more rare that a family law case has a constitutional aspect to it. In addition, grandparent visitation issues raise highly emotional levels (like a lot of other issues in this field of practice). So, I will be paying extra attention to the decision which came down this week in Michels v. Kelsey.

In addition to the video message, I will be co-speaking with Dane County Family Court Commissioner Mark Fremgren at the State Bar of Wisconsin Annual Meeting in Green Bay on June 14, 2019.

And, for some of my more uncensored comments, look for my next column in the Wisconsin Law Journal.

Be Sure to Like and Subscribe to Loeb & Herman’s YouTube Channel

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The following case is not recommended for publication, but may be cited for its persuasive value under Wis.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 May 24, 2019, the Wisconsin Supreme Court issued its decision in Michels v. Kelsey, 2019 WI 57, the grandparent visitation case.

The majority opinion, authored by Justice Rebecca Dallett, vacated the circuit court order which granted the grandmother (Kelsey) limited visitation with her grandaughter. The court held that Wis. Stat. §767.43(3) (the “Grandparent Visitation Statute”) is unconstitutional as applied because Kelsey did not overcome the presumption in favor of the parents’ visitation decision by clear and convincing evidence that the visitation was in the child’s best interests. However, the court declined to find the statute facially unconstitutional.

In the case, the parents never married, but agreed that Kelsey should not have court ordered visitation with her granddaughter. The circuit court granted visitation nonetheless and the court of appeals certified the matter to the Supreme Court.

The Supreme Court held that parents have a fundamental liberty interest in the care and upbringing of their child. Overcoming a fundamental interest must withstand strict scrutiny and be narrowly tailored to serve a compelling state interest. The court found that the grandparent statue is sufficiently narrowly tailored because a grandparent must over come a presumption in favor of a fit parent’s visitation decision with clear and convincing evidence the parents’
decision is not in the child’s best interest.

In this case, Kelsey did not overcome the presumption to the requisite decree, so the court vacated the order of the circuit court.

Justice Rebecca Bradley concurred, joined by Justice Daniel Kelly. They opined that the statute is facially unconstitutional, not just unconstitutional as applied. They believe that is not in the interests of a child – either emotionally or financially – to even try to devise a compelling state interest which would overrule the fundamental rights of parents.

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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 by using this form.

Please Note: Some decisions may be posted in Adobe Acrobat (PDF) format.

In re Marriage of Deamon
No. D073667
California Court of Appeals, Fourth Dist., Div. 1
May 17, 2019

Wife appealed sanctions of $10,000. Appellate court affirmed, holding that live testimony was not necessary, and the motion could be decided on papers.

In re Marriage of Kent
California Court of Appeals, Fourth Dist., Div. 1
May 17, 2019

Sua sponte, the appellate court held that the trial court did not have jurisdiction to modify a child custody order under the UCCJEA (the father still resided in North Carolina), although the trial court below held otherwise and the jurisdiction was not on appeal.

In re Adoption of A.T.V.
No. 120204
Kansas Court of Appeals
May 24, 2019

Father was unable to overcome presumption that he failed to pay his child support and thus termination of parental rights was in the best interests of the children.

Smith v. Smith
Nos. 2018-32, 2018-248
Rhode Island Supreme Court
May 16, 2019

After the husband deliberately sought to deceive the court, refused to comply with discovery requests, and engaged in vexatious litigation practices by filing a multitude of frivolous motions and appealing nearly every decision by the general magistrate, the trial court made an equitable distribution of property that favored the wife. On appeal, the husband argued “that the Family Court did not have jurisdiction to grant plaintiff’s complaint for divorce, as well as his counterclaim for divorce, because doing so would violate his religious right to the sacrament of marriage.” He was appropriately sanctioned.

Woytas v. Greenwood Tree Experts
No. A-31-18
New Jersey Supreme Court
May 6, 2019

Christina Woytas and Timothy G. Woytas were married for seventeen years and had three children. The couple divorced after entering into a Marital Settlement Agreement that required Timothy to pay both alimony and child support. To secure Timothy’s child support and alimony obligations, the Agreement required that he “maintain” life insurance policies naming Christina and their three children as beneficiaries. The life insurance policies Timothy purchased included a “suicide exclusion” barring recovery of benefits if the insured were to commit suicide within two years of purchase. Timothy committed suicide within two years of acquiring the policies. As a result, the insurance companies did not pay the face value of the life insurance policies, instead offering a return of premiums plus interest.

Interesting Cases in the News

And Finally …

Legislative Watch

Proposed Changes to Child Support and Placement Statutes

There are a number of proposals for changes in child support and placement statutes arising from the legislative study committee. For a summary, as posted to WisBar by Attorney Tiffany Highstrom, please visit WisBar.

• • •

Use BillTrack50 to Track Legislation

The State Bar is now offering a new benefit that will enable members of any lobbying section to track legislation from the Section web page.

This new software, BillTrack50, will load legislation that has been introduced in the current session onto the Section web page.This legislation will be filtered to sections’ specific practice areas and as a member, you will be able to view and click on any legislation for further details including:

  1. Bill summary
  2. Bill sponsors
  3. Date last action was taken
  4. Link to the official document
  5. Any bills that a Section has taken a position on will be tagged with either a green or red bar in the left margin, depending on the position taken.

Please note that you will be able to access only the web pages of the sections that you are a member. Visit the Family Law Section homepage.

Family Law Online

The following articles are provided as informational sources for our subscribers. If you would like to submit a link for consideration, please contact Atty. Gregg Herman by using this form.

8 Tips To Help Dads Prepare For A Custody Battle

When it comes to child custody battles, the deck is often stacked against dads. There are numerous gender stereotypes that work against fathers in all family law matters, but they seem especially pronounced in child custody issues. (Dads Divorce)

Divorce Litigant Charged in Stabbing of Lawyer at Deposition

Police have arrested a divorce litigant for allegedly stabbing a Florida lawyer multiple times during a deposition May 1. (ABA Journal)

“I Do” or “I Don’t” – Estate Plan Considerations as a Result of Marriage or Divorce

You recently got married… or divorced… Do you need to review and update your estate plan? The answer is yes. These major life changes – for you or your children – can have a significant impact on various components of your estate plan that should not be ignored. (The National Law Review)

Social Security Considerations After Divorce

If you’ve been married, spousal benefits can be a significant component of Social Security. Even if you’ve never worked or have low earnings, you can collect up to half of your spouse’s full benefit if he or she qualifies for Social Security. Moreover, you don’t necessarily lose that benefit if you’re divorced. Therefore, it’s helpful to know your rights, as the benefits you’re able to collect following a divorce may impact your individual retirement plan. (Forbes)


The 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.

The Growth of Surrogacy to Build Families

Back in the late 1980s, the Baby M. case in New Jersey became the first highly publicized court case at an appellate level dealing with surrogate parenthood. At the time, there were virtually no laws on the subject. Medical science had far outstripped the development of laws to support it.

In Baby M., the surrogate successfully fought for parental rights in spite an agreement from the outset that she not have such rights. Until 2018, New Jersey remained one of a few states that was not friendly to surrogacy as a concept. That changed when Governor Phil Murphy signed into law a comprehensive surrogacy bill.

Wisconsin has no such statutory law, but does have the Rosecky v. Schissel case, 2013 WI 66, 833 N.W.2d 634, supporting the enforceability of parentage agreements between a surrogate or gestational carrier and intended parents. Rosecky involved what is called a “traditional” surrogacy, the type of family building engaged by Abraham and Sarah in the Bible, Genesis 16. The surrogate provided eggs which, when combined with the sperm of the intended father, created a fetus and eventually a child. (Ishmael in the Bible.) Because the surrogate provided eggs, she was the biological mother of the child. As a consequence, early courts gave recognition to parental rights of the surrogate. Today legal and medical professionals strongly discourage the use of traditional surrogacy. They recommend that carriers have no biological connections to the child whom they will eventually bear. Thus today, anonymous and non-anonymous egg donors help create embryos that may later be carried either by the intended mother or by a surrogate.

Courts in Wisconsin and elsewhere are determining parentage based on biology and/or based on intent when the parties have entered into a written contract in which intended parental rights are spelled out. The eventual court decision and issuance of a birth certificate in the names of the intended parents represents the culmination of a series of actions that began when the intended parents and the carrier were first brought together, entered into a parentage agreement determining the rights and responsibilities of the parties, then participating in the medical procedure which resulted in the embryo belonging to the intended parents being transferred to the carrier to carry to term. There are a more than a half dozen infertility clinics in Wisconsin and northern Illinois that now provide the medical services necessary to create the child.

Tax Tip Corner

The following is provided courtesy of Contributing Editor Scott B. Franklin, Certified Public Accountant and Attorney. You can reach Scott via email.

Cook v. Commissioner of Internal Revenue

The US Tax Court recently issued a decision in Cook v. Commissioner of Internal Revenue, TC Memo 2019-48 regarding a non-custodial parent claiming the child as a dependency exemption and using that child to further: 1) qualify for head of household filing status, 2) claim the Child Tax Credit, and 3) claim the Earned Income Credit. Although the year involved was 2012, the concepts remain valid even in the post-Tax Reform world.

Father and Mother were never married, but they had a Child.

The Child lived with the Mother (and her husband) exclusively during 2012, and the Mother received child support from the Father. Father claimed the Child for the purposes of a dependency exemption, head of household filing status, the child tax credit, and the earned income credit. He did not attach a Form 8332 from the Mother to his tax return. The family court support order was silent as to the dependency issue, but there apparently was an oral understanding between the parents that Father could claim the exemption. One can surmise that the Mother did not abide by this oral agreement as the Court’s decision does reflect that someone else also claimed the Child’s exemption, which is what generated the tax dispute.

The Tax Court reviewed the criteria for claiming a dependency exemption…one of which is the Child having the same principal place of abode as the taxpayer for more than half the year or having a Form 8332 in lieu of such a living arrangement.

The rules are clear and the Tax Court agreed that absent the Form 8332, the Father could not claim the exemption for the Child who did not live with him. The preceding criteria is used to designate a child as a Qualifying Child. An alternative to claiming a dependency exemption is having a Qualifying Relative; in this case, since the Child was the Qualifying Child of the Mother (having lived with her for the whole year among other requirements), the Father could not use this alternative approach to claim the exemption either, since a parent with a Qualifying Child trumps a parent with a Qualifying Relative in order to claim the exemption.

As for Father’s use of the head of household filing status, the Tax Court reiterated the rule that, among other criteria, one needs to have a Qualifying Child to be head of household.

And, since he did not have a Qualifying Child, he could not be head of household. Furthermore, the Father could not claim the Child Tax Credit or Earned Income Credit since he did not have a Qualifying Child for those purposes either.

Thus, he was 0-for-4 on using the child to his (tax) advantage. Remember to always have a signed Form 8332 prior to filing (and attach it to the filed return) if a non-custodial parent is claiming the child(ren) for any tax purposes, otherwise any use of the child(ren) for tax benefits will fail if the custodial parent also make such a claim.

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.