Family Law Update for March 2018

In this Issue …

A Word from Gregg Herman
WAM seminar on "Emerging Issues in Mediation" and annual AAML Seminar on "Divorce: Wisconsin Style"

Thoughts On Family Law Video
Changing Attorney Perceptions Toward Mediation and Launch of Wiscosnin Family Law Case Finder

Wisconsin Courts Updates
No new cases.

Decisions Across The Nation
Same sex parentage, Effect of cohabitation on spousal support, Relocation, Professional football player’s signing bonus and child support, Immigration status, Sanctions for intercepting communications, UCCJEA, Uniform Parentage Act (UPA) and more.

Family Law Online
"I Know Where You’ve Been: Digital Spying And Divorce In The Smartphone Age." and "The Sick Reason Many Miserable Married People Are Pondering Divorce In 2018"

A Word from Gregg Herman …


On March 16, 2018, the Wisconsin Association of Mediators will have their annual program in Madison on "Emerging Issues in Mediation – 2018."

I’ll be speaking on "Preaching Against the Choir : What Attorneys Don’t Like About Mediation and How We Can Change Their Perceptions"

For more information and to register, download the program brochure.

• • •

The annual AAML seminar “Divorce: Wisconsin Style” will be held at the Pfister Hotel in Milwaukee on March 23, 2018. For more information and to register, please visit the AAML-WI web site.


Thoughts on Family Law Video

In this month’s video I discuss what attorneys don’t like about mediation and approaches to changing those perceptions. Last, but certainly not least, I discuss the launch of Wisconsin Family Law Case Finder, a new legal research service specifically designed for family law attorneys.

Wisconsin Courts Update

— No New Cases —

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.

Hawkins v. Grese
No. 0841-17-1
Virginia Court of Appeals,
February 13, 2018

The former same-sex partner of a child’s biological mother petitioned for custody of the child who was born during the parties’ relationship. The trial court awarded the biological mother full custody of the child, and the same-sec partner appealed. The appellate court did not recognize the same-sex partner as a "parent" under the custody statute, where the parties were not married when the child was born or there was no adoption. There is a rational basis for limiting the term "parent" to the relationship to a child through either biological procreation or legal adoption, and, thus, denying the biological mother’s former-same sex partner the status as a "parent" when considering the same-sex partner’s petition for custody of child, who was born during parties’ relationship through artificial insemination, did not violate equal protection. The definition does not discriminate between same-sex and opposite-sex couples, and the parties without the required qualities retained a fair legal method to intervene if a parent was unfit. (Ed. note: Virginia has consistently rejected the notions of de facto parent or psychological parent.)

Onstot v. Onstot
298 Neb. 897
Nebraska Supreme Court
February 9, 2018

A trial court cannot condition the termination of spousal support upon cohabitation with another person. Such matters are public policy issues for the Legislature, not the courts, to decide. However, cohabitation, together with a showing that such arrangement improved a former spouse’s overall financial condition, might warrant a modification of spousal support.

In the Matter of White
No. 2017-0133
New Hampshire Supreme Court
February 9, 2018

The father’s child support obligation for two children did not automatically terminate, without further legal action, as to the older child upon child’s emancipation; the father needed to move to review/modify. Further, the order calculating the new child support amount based on older child’s emancipation was a modification of the father’s prior child support obligation that could not be applied retroactively to accrued arrearages.

Bonk v. Bonk
No. 2017-321
Vermont Supreme Court
February 9, 2018

Mother’s relocation to different county and purchase of home there, with plan to open business there, presented real, substantial, and unanticipated change of circumstances that warranted modification of parent-child contact schedule; mother’s move made it impossible for father to exercise mid-week parent-child contact schedule, as mother’s move was for indefinite duration and mother’s home was two and one-half hours away from father’s.

McKinney v. Hamp
No. 2016-CA-00844-SCT, No. 2016-CA-01299-SCT
Mississippi Supreme Court
February 8, 2018

The father signed on to a professional football team, earning a substantial signing bonus. The court held: (1) the signing bonus was "gross income" for purposes of child support; (2) evidence supported a child support award against the professional football player based on 14 percent of income guideline; the chancellor considered both parents’ ages, health, incomes, and living expenses and the child’s age, expenses, and future needs related to move to Memphis for the mother to attend nursing school, and nothing seriously undercut mother’s testimony on daycare or potential apartments; (3) however, the Chancellor improperly decided to alternate child tax exemption between the father and the mother, where the mother had no apparent significant independent income from which she would enjoy any tax advantage.

Turrubiartes v. Olvera
No. 01-16-00322-CV
Texas Court of Appeals, Houston (1st Dist.)
February 6, 2018

Mother’s immigration status, standing alone, was not probative of mother’s fitness to be a parent to her children so as to deny her joint managing conservatorship, where there was no evidence regarding any detention or immigration-related charge or any pending removal proceeding or that mother was a subject of any criminal prosecution.

Crocker C. v. Anne R.
Index No. Redacted, 2018 N.Y. Slip Op. 50182(U)
New York Supreme Court, Kings County
February 5, 2018

Husband installed spyware on Wife’s phone to obtain all communications, including privileged conversations between wife and her attorney. Husband also engaged in spoliation of the evidence of his hacking, while simultaneously claiming Fifth Amendment privilege for his actions. The trial judge struck ALL Husband’s pleadings as an appropriate sanction.

V.C. v. L.P.
No. 2012 EDA 2017, 2018 PA Super 21
Pennsylvania Superior Court, Northampton County
February 2, 2018

The Court of Common Pleas lacked subject matter jurisdiction, under Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA), to modify a foreign court’s order granting child custody to grandmother, and thus the Court of Common Pleas lacked authority to find the maternal grandmother in contempt, although the Court of Common Pleas determined that it would be more convenient forum, where foreign court did not determine that it no longer had exclusive, continuing jurisdiction or that the Court of Common Pleas would be more convenient forum.

W.S. v. S.T.
No. H042611, 18 Cal. Daily Op. Serv. 1226
California Court of Appeal, Sixth District
February 1, 2018

Statute providing that a person is a presumed parent if he receives the child into his home and openly holds out the child as his natural child requires something more than a man’s being the mother’s casual friend or long-term boyfriend; he must be someone who has entered into a familial relationship with the child: someone who has demonstrated an abiding commitment to the child and the child’s well-being regardless of his relationship with the mother. In this case, the biological father failed to demonstrate that he was child’s "natural parent" under Uniform Parentage Act (UPA), and thus biological father did not have parent-child relationship with child and was not entitled to grant of reasonable visitation rights as a "parent," under statute providing for parental visitation unless it was shown that the visitation would be detrimental to the best interest of the child; UPA defined parent and child relationship as legal relationship between child and child’s natural or adoptive parents, parent and child relationship could be established between child and natural parent by proof of giving birth to child or by other means including presumed parentage, and biological father had failed to establish presumed parentage.

Rose v. Rose
No. 432, Sept. Term, 2017
Maryland Court of Special Appeals
February 1, 2018

Evidence was sufficient to support trial court’s finding that former wife was not cohabitating, as grounds for terminating former husband’s alimony obligation on his motion. Although the parties did not dispute that former wife had established a common residence and maintained a long-term intimate relationship with someone other than former husband, the court found wife and that other person had not shared any assets beyond the house, there were no joint contributions to household expenses, and they had not held themselves out as a married couple by celebrating an unofficial marriage ceremony, the wearing of wedding rings, or the use of each other’s names.

Family Law Online

I Know Where You’ve Been:
Digital Spying and Divorce in The Smartphone Age

It was the summer of 2016, and M was worried her ex-husband was stalking her. She would get out of town and stay with friends. But, as she noted in court documents, her ex seemed to know exactly where she was and whom she visited — down to the time of day and street. (National Public Radio)

The Sick Reason Many Miserable
Married People
Are Pondering Divorce In 2018

The sweeping new tax law that President Donald Trump signed in December could soon make paying alimony more expensive for some members of the roughly 800,000 couples getting divorced each year, according to government data. And divorce attorneys say that’s spurring a spike in clients considering divorce this year, thinking they might want to get it done before the new alimony provision takes effect in 2019. (Moneyish)

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.