Family Law Update for May 2018

In this Issue …

A Word from Gregg Herman
New legislation

Thoughts On Family Law Video
Wisconsin Legislature Passes “Sara’s Law.”

Wisconsin Courts Updates
Child’s name.

Decisions Across The Nation
UCCJEA, Uniform Mediation Act, Severance payments received after divorce, Rights of Non-gestational mother, Third party custody and more.

Legislative Watch
Removal bill is now law.

Family Law Articles & Publications
Family Advocate issue on “Parentage and the Modern Family.”

A Word from Gregg Herman …

Herman

The legislature has been busy!

In addition to the changes to the removal law, the legislature adopted “Sara’s Law,” which is intended to promote safety for lawyers and changes to certain discovery rules.

I’ve discussed these in my monthly video below

 

Thoughts on Family Law Video

On April 11, 2018, Governor Scott Walker signed “Sara’s Law,” which expands legal protections for guardians and attorneys in family law proceedings. In this month’s video, I discuss its potential effect on both groups.

Wisconsin Courts Update

On April 19, 2018, the District IV Court of Appeals issued their opinion in Scace v. Schulte, No. 2016AP2413, which reversed the order rendered by the Honorable Duane M. Jorgenson (Green County).

Sara Scace, who was unmarried, gave birth to a child in 2014. At birth, as reflected on the birth certificate, the child was given only the mother’s surname. At or near the time of birth, Bryan Schulte signed a voluntary acknowledgment of paternity form and therein asserted that he was the father of the child. Scace commenced an action to resolve disputes between the parties about custody, visitation, child support, and the surname of the child. All issues were resolved by stipulation, except the issue of changing the child’s surname. After briefing, the court determined that it had the authority to change the child’s surname and that it was in the best interests of the child to hyphenate the child’s surname. Scace appealed.

Scarce argued that the court lacked the statutory authority to order the child’s name change and that, even if the court had authority to change the child’s name, the court erred in determining that the name change was in the best interests of the child. The Court of Appeals determined that the circuit court lacked the authority to change the child’s name. Here, in contrast to the statute that governs paternity judgments through direct action, the statute that governs determinations of paternity based on acknowledgments does not authorize a circuit court to change the child’s name. From this difference as well as the clear language and the context of the statutes, it necessarily follows that the legislature intended that the circuit court did not have the authority to change the child’s name in this fact situation. Put more specifically, the legislature intended not to grant the circuit court authority to change a child’s name where paternity is determined through voluntary acknowledgment. The circuit court’s decision was reversed and the order changing the child’s name was vacated.

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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 via e-mail.

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

State ex rel. Garrett v. Costine
No. 2017-0801, 2018-Ohio-1613
Ohio Supreme Court
April 26, 2018

West Virginia court entered order granting grandmother visitation with child, and neither West Virginia court nor Ohio court had made determination that relevant persons no longer resided in West Virginia. West Virginia thus had exclusive continuing jurisdiction over custody of a child under its version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and therefore Ohio court lacked authority to enter order granting adoption petition filed by child’s guardian.

McBride v. Worth
Yor-17-314, 2018 ME 54
Maine Supreme Court
April 19, 2018

Trial court did not abuse its discretion when it chose to enforce ex-husband’s spousal support obligation in divorce judgment by way of income withholding order, rather than ordering lump-sum payment, where ex-wife had been chasing spousal support for few years, and it was not until she was able to implement income withholding order that she began receiving regular ongoing payments. However, trial court’s income withholding order was unclear regarding the amount to be withheld from ex-husband’s paycheck for his spousal support obligation pursuant to divorce judgment, and thus, matter would be remanded for further proceedings to allow trial court to clarify its intentions; although judgment purported to continue in effect ongoing spousal support payments of $150 every two weeks, ex-husband’s ongoing obligation under divorce judgment was $150 each week, and judgment required ex-husband to pay additional $150 every two weeks toward arrears, but income withholding order only required ex-husband’s employer to withhold $300 every two weeks.

Winegeart v. Winegeart
No. 28243
South Dakota Supreme Court
April 11, 2018

As a matter of first impression, the Uniform Mediation Act did not permit mediator to disclose the terms of alleged oral agreement arising out of husband and wife’s mediation during divorce proceeding; mediation statute provided that mediation communication was privileged and was not subject to discovery, and an exception to the mediation communication privilege existed for a written agreement, which implied that nonwritten agreements were not excepted from the mediation communication privilege.
Schultz v. Schultz
No. 1055 EDA 2017
Pennsylvania Superior Court
April 11, 2018

Severance payment made to husband by his former employer was not marital property, for purposes of equitable distribution of marital estate, where husband received severance payment two days after parties separated, and, further, payment was in exchange for husband’s agreement not to compete with former employer for 12 months following termination of his employment, which occurred after parties separated.

Strickland v. Day
No. 2016-CA-01504-SCT
Mississippi Supreme Court
April 5, 2018

Gestational mother was equitably estopped from challenging non-gestational mother’s parental rights as to child born through the use of artificial insemination from anonymous sperm donor, in action brought by non-gestational mother seeking a divorce from gestational mother, who was her same-sex spouse, and a determination that non-gestational mother was child’s parent; gestational mother made numerous representations that non-gestational mother was an equal coparent to child, including sending out birth announcements which held out child as their own, non-gestational mother signed an acknowledgment to undergo the artificial insemination treatment with gestational mother as “a couple,” served as child’s primary caretaker for at least the first year of child’s life, and gave child her last name, and non-gestational mother took on all the responsibilities and rewards that accompany parenthood. (PerIshee, J., with three justices concurring and one justice concurring separately.)

Fitzpatrick v. McCrary
Docket: Aro-17-330, 2018 ME 48
Maine Supreme Court
April 5, 2018

Maine, rather than Pennsylvania, had exclusive continuing jurisdiction over mother’s motion to modify parental rights and responsibilities, despite “interim order” issued by Pennsylvania court that purported to “supersede all prior orders in any jurisdiction” and which provided that jurisdiction over issues of child custody would remain with Pennsylvania court, where district court in Maine had issued original decree ordering shared parental rights with primary residence awarded to mother, it granted father’s subsequent motion to modify parental rights and responsibilities after parties agreed to order changing primary residence from mother to father, and although father and child resided in Pennsylvania, mother continued to reside in Maine.

Bowers v. Bowers
No. SC 96545
Missouri Supreme Court, en banc
April 3, 2018

Fact that husband, who was not the biological father of husband and wife’s child, was already a party to marriage dissolution proceeding did not preclude trial court from also designating husband as third party who could receive award of third-party custody within dissolution proceeding, where husband did not raise any equitable parenting claims or premise his claim for custody on any status as stepparent, and husband alleged that wife and biological father were unfit and unsuitable to be child’s custodians.

Legislative Watch

Wisconsin’s New Child Removal Law

AB 551, The State Bar of Wisconsin’s Family Law Section initiative regarding parent relocation, was signed into law by Governor Walker as Act 203. For the text, go to:Wisconsin’s new child removal law.

Family Law Articles & Publications

The Spring, 2018 edition (Vol. 40, No. 4) of the ABA FLS publication Family Advocate is dedicated to Parentage and the Modern Family. Articles include:

The Evolution of the Legal Ramifications of Parentage: An Overview
By Harry L. Tindall and Elizabeth H. Edwards

Parentage and Modern Family: The Only Constant Is Change
By Meg Nemeth Ledebuhr

The New Uniform Parentage Act of 2017
By Jamie D. Pedersen

UPA 2017: The Science of It All
By George C. Maha

Presumptions in Paternity Cases: Who Is the Father in the Eyes of the Law
By James J. Vedder and Brittney M. Miller

De Facto Parentage and the Modern Family
By Courtney G. Joslin

How Many Parents?
By Tiffany L. Palme

Test Tube Parents: Cryopreservation and The Fertile Corpse – A Retrospective
By Bruce L. Wilder

On Talking with Young Children about Their Nontraditional Families
By Robert A. Simon

For subscription information, call 1-888-859-8081

Contributing Editors

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.