LegalMatch: Family Law

Divorcing Couples Continue to Battle Over Legal Issues Surrounding Frozen Embryos

Nearly 40 years ago, the world’s first IVF baby was conceived. For many couples, having a child on their own isn’t possible and turning to alternative methods of having a child is their saving grace.  The success rate of IVF procedures has increased over the past 30 years, from 10% to 30% with more than 65,000 births resulting from assisted reproduction, and with that increase in success comes an influx of couples wanting to complete the treatment. As these numbers continue to increase, so do the potential complexities and legal implications.

Certainly not the first, Risa Levine and her ex-husband are just one example of a couple that went through the IVF procedure and, before they could conceive a child, split up. The couple was left with 4 frozen embryos to dispute over in the resulting divorce. Levine wanted to keep the embryos, but her ex-husband wanted them destroyed.  Now, this isn’t your typical point of contention in a divorce proceeding and you may be wondering why this would even be an issue. A little history on the IVF process might be helpful.

In Vitro Fertilization (IVF) is a process in which eggs are extracted from a woman, manually fertilized with sperm in a laboratory dish (which creates an embryo), and then the embryo is transferred back to the female uterus. Embryos can be cryopreserved so they can be thawed and used at a later date.  Herein lies the issue for divorcing couples.  When you have a preserved embryo with the DNA of both spouses, what happens when one spouse doesn’t want to use it anymore? 

In this case, the ex-husband didn’t want a child out there, presumably, that would legally require him to pay child support. That seems like a pretty fair argument but, at the same time, the embryos were half Levine’s and she still wanted the chance to have a baby of her own. Levine eventually conceded to her ex’s wishes and the embryos were destroyed. 

Regulations Are Few and Far Between

What would have happened in court if Levine hadn’t agreed to destroy the embryos? Although it’s been around for nearly 40 years, it’s still a relatively new area that isn’t heavily regulated. Currently, Canada, France, Finland, Germany, and the UK are the only countries with laws and statutes covering the legal issues that surround fertility treatment.  

Here in the U.S., the federal government has removed discriminatory barriers to access IVF treatments, requires laboratories to be certified and to report their data to the CDC, and 5 states have laws that offer guidance in terms of donated embryos, but everything else is pretty much fair game. Many clinics require consent forms, but since most couples going through the IVF process plan to stay together, what happens to the embryos when the couple splits aren’t issues typically addressed.

So, again, where does that leave couples who spend thousands of dollars to go through the process of freezing their embryos and then wind up getting a divorce? The big question is, what exactly is an embryo?  Who owns them?  It’s not just a matter of a property question in terms of who it belongs to; it’s also a social issue. 

With Little Guidance from Legislation, Decisions Seem to Sway One Way Over Other

Levine isn’t alone. As more and more couples begin using IVF treatments, more issues are beginning to pop up surrounding embryonic custody once couples split up. These cases are gradually starting to make their way into the courts and they seem to be favoring one side over the other.

A Michigan judge ruled in favor of the husband in a similar situation and found that the husband, although the wife wanted to keep their embryos to possibly have more children, had a right not to have more children if he didn’t want to. In Washington, a couple formed embryos by using donor eggs with the husband’s sperm.  When they divorced, the husband wanted to donate the embryos to a couple outside their state for adoption, but the wife wanted to raise the children on her own. The court again, sided with the husband. Just last year, a California judge ruled in favor of a husband to destroy embryos because the couple had signed a binding contract with the clinic, which called for their disposal in the event of divorce. 

Although the majority of cases seem to favor towards the party wanting to destroy the embryos, a recent ruling shows just how split this topic is getting. Just this year, the U.S. Supreme Court refused to hear an appeal from an Illinois court, which ruled against Jacob Szafranski, who was trying to prevent his former girlfriend from using frozen embryos the two had created together during their relationship.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Do Our Family Courts Practice Institutional Sexism Towards Men?

Institutional sexism is no new concept. One place we might not expect to see it is in the family court system. Unfortunately, it’s prevalent in our courts, even if it’s unintentional and we see it most often negatively impacting men in child custody arrangements and alimony awards.

Historically, family structures were different than they are now—women traditionally stayed at home with children, while men traditionally went to work. It was only natural the family court system developed in a more favorable way towards women when it came to child custody and financial disputes. The system is lagging to catch up to the way family dynamics have changed over the years. 

Many states are trying to fix this issue by passing equal parenting time laws and with alimony reform.  Florida recently tried to pass, albeit unsuccessfully, a bill that would both reform current child custody laws to a shared parenting plan and nix permanent alimony.  At least 20 states in total have considered passing equal parenting time laws, but lawmakers don’t quite seem ready for such a change and we’ve got a long way to go. 

Child Custody Rights are Often Biased

Even though fathers’ rights are gradually progressing, there’s still a presumption that mothers are the better caregivers and it’s most often the father that gets gipped out of time with their children. Roughly 83% of mothers receive custody of their children over fathers in a divorce.  On top of that, fathers are statistically awarded less child support than mothers in the cases when they do get more custody. Recent studies suggest that unequal parenting time isn’t in the best interest of the child—so it’s not just fathers that are harmed by this bias.

Children living with both parents are statistically less stressed and fare better, emotionally and behaviorally, than those living with primarily one parent. Increased time with each of a child’s parents promotes strong bonds and gives children access to more resources, including social circles, a larger family structure, and, of course, financial and material goods.  Opponents of shared parenting plans suggest that shared parenting plans significantly cut down the amount of child support received, but when a child is spending more time with each parent, then the expenses will inevitably be split more evenly. 

Men Pay More Alimony

It doesn’t just come in the form of child custody awards either. Roughly 400,00 people in the U.S. receive some form of spousal maintenance, or alimony and only 3% were men.  Yet, if you consider 40% of households are headed by female breadwinners, it definitely suggests there’s a problem when men eligible to receive alimony just aren’t getting it. 

When it comes to spousal support, the attitude towards men is usually to buck up and get a job and that can sometimes even come from a judge. It’s not unheard of to see cases where the female is a high-earning executive while the male is the stay-at-home father taking care of the kids and, upon divorce, the father only gets a 6-month award of support when, if the situation were reversed, the mother would have easily been awarded years of alimony before being cut off.

On top of the bias towards men receiving support, permanent alimony still exists in at least 7 states throughout the U.S.—New Jersey, Oregon, Vermont, Connecticut, North Carolina, West Virginia, and Florida. That’s permanent alimony, not just an alimony award for an extended period of time! These awards in permanent-alimony states often go on even if the woman remarries. Again, it comes down to traditional gender roles and plain sexism, whether it comes from the courts or the laws in place that the courts are required to follow.  

The Court System Isn’t Entirely to Blame

At least 51% of custody arrangements are agreed upon between parents without the aid of the court. But, how much of that agreement comes from the threat of a custody battle in court?  Although a good portion of fathers may make the decision on their own, often times a settlement agreement is reached only to avoid a possibly worse custody arrangement that the law give the judge the power to hand down.

Although many men eligible for spousal support turn down the option simply on macho pride and a sense of own financial freedom, consider the father that turns down a possible alimony award he’s entitled to in order to smooth over a custody dispute.  That’s not to say it’s their fault either because the bigger issue comes from the actual laws themselves.  Even if you have a completely unbiased judge, the judge can only do what the law of their locality allows them to do.

Shouldn’t we be asking a change to come from legislation rather than solely from the court system? These problems aren’t entirely the result of the court system, it’s just a result of how our society has viewed gender roles in the past and those stuck in the biases of that tradition.  A change needs to come from legislation first before the court system can completely catch up.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Custody Battles between American and Foreign Parents

A Russian citizen, Olga Pimanova, was recently arrested in Cook County, Illinois on charges of civil contempt that stemmed from a custody battle between her and her ex-husband, Jorge Castillo, a U.S. citizen.

Pimanova reportedly arrived in the U.S. with her Russian-born infant, Arianna, where she soon after met Castillo. The couple married shortly after.  At some point at the end of their relationship, but prior to any decree of divorce, Pimanova left the country with Arianna.  Castillo filed for divorce, where he was found to be the father of Arianna and Pimanova was ordered to bring the child back to the states.

Pimenova returned to the U.S., but without her daughter and was immediately arrested upon landing in Chicago. Pimanova claims Castillo is not the child’s father and that she never received notice of the divorce filing. However, case activity from court records show that when Castillo filed for divorce, he provided notice of his petition via publication, presumably because he was unaware of her whereabouts. Although numerous publications were made regarding case status, it appears Pimanova never participated in the divorce proceedings until after the divorce was granted and Castillo was given custody rights.  

Conflicting laws between Countries

It’s not surprising Russian officials are upset about Pimanova’s arrest, as cross border disputes between the U.S. and Russia aren’t a new topic—Russia has recently passed laws (2012) banning all adoptions between Russian children and American parents.

In the U.S., notice via publication is appropriate in circumstances when no other alternative is available and the petitioning party has no known information about the responding party’s whereabouts. The Chicago court found Arianna to be Castillo’s daughter and as a result, awarded him custody rights.  With Russia’s attitude towards their young children being handed over to Americans, it begs the question of whose law controls here?

The Hague Convention

When jurisdictional disputes arise here in the U.S., we have what’s known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Act grants jurisdiction in child custody cases to whichever state is the child’s “home state.”  Unfortunately, this only applies to states within the United States, which means it doesn’t apply in foreign disputes. However, when a custody dispute arises and one parent decides to remove the child to another country, parents can invoke the protections under The Hague Convention, which applies the same basic principles as the UCCJEA. 

The Hague Convention is a treaty developed to provide a method for return of a child that was internationally abducted by a parent from one country to another. The treaty’s primary purpose is to preserve the status quo for the child, which means returning them to whatever country was their “habitual residence.” Although the treaty only applies to children under the age of 16, it’s meant to act as a deterrent for parents looking to cross international waters for the purpose of seeking a more sympathetic and favorable court.

Home State Advantages

The treaty doesn’t provide substantive custody rights, but deals primarily with procedural and jurisdictional aspects of judicial proceedings that must take place in order to return the child to their home country. Generally, wherever is considered the child’s home state is going to have controlling authority, but there’s a process that parents must go through in order to determine that home state advantage.

If there’s been a violation of custody rights, a parent must file with their own local court to invoke The Hague Convention. When a child is brought into the U.S. from another country, the case is handled here in the U.S. at the state or federal level—petitioners have the option to choose. If the child is taken from the U.S., a case would have to be filed and heard in the locality where the child was taken, which would require hiring a local attorney familiar with their country’s custody laws.

If both countries, the parent invoking the Convention and the country where the child is located, are signatories, the case will be heard and a parent must prove the child was a “habitual resident” of that country. In order to qualify as a “habitual resident,” a child needs to have lived primarily in that country prior to being removed. In determining habitual residency, courts will look to the shared intentions of the parents, the history of the child’s locations and residences, and the settled nature of the family prior to the removal/retention.  A parent must further prove that the child was wrongfully removed to another country.

The United States and Russia, among 92 others, are both on the list of signatory states party to the convention. Although Arianna was born in Russia, it appears she was primarily living in the U.S. prior to her removal. It will be interesting to see how Russia responds and if their actions will be contrary to the Hague Convention.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Will Florida Parents Get Equal Custody Rights?

A Florida bill that would give divorcing parents equal custody rights is on its way to Governor Rick Scott’s desk for approval. The new legislation would require judges to consider equal custody of children, while still allowing room for judicial discretion when equal parenting time is not in the child’s best interest.

Proponents of the bill believe taking custody concerns out of the mix will result in less fighting between the couples.

Senator Tom Lee, sponsor of the bill, stated an equal custody presumption would create “greater predictability and reliability” in custody cases. Further, Lee believes that because women are increasingly becoming the major breadwinners in families, a change in the law would “reduce litigation costs in the family law system.”

What Would the Bill Mean For Divorcing Parents?

For starters, the presumption would be equal custody rights. If divorcing parents cannot come to a custody agreement without the aid of the court, it means each parent would walk into that courtroom on equal ground.

It would be up to each party to present the facts of their case and then up to the judge to decide whether to deviate from the presumption of equal custody. Judges would have a list of 22 factors (20 of which are already in law) to be treated as guidelines when making a decision. The judge would have to put his or her reasoning in writing explaining why they are choosing to deviate from the presumption.

Sharing Custody Is a Positive

Too many times I’ve seen a parent just as capable as the other of parent get the shaft when it comes to custody. Although states are becoming more and more progressive towards father’s rights, it’s most often the father that gets gipped out of equal parenting time. Recent research suggests that this isn’t in the best interests of the child.

The Journal of Epidemiology & Community Health published a study that suggests children living with both parents are less stressed than children living with just one parent. The study examined national data of 150,000 12-15-year-old students and studied a number of health-related problems. The researchers looked at the children’s psychosomatic health problems, including sleep problems, difficulty concentrating, loss of appetite, headaches, stomachaches and feeling tense, sadness, and dizziness.

The study divided the children into 3 groups: nuclear families, shared-parenting families, and children that lived with only 1 parent. Of the 150,000 children, 69% of them lived in nuclear families, while 19% of the children lived with both parents, and 13% lived with only one parent. Children in the nuclear families reported the fewest psychosomatic problems, while the ones in the shared-parenting families reported significantly fewer problems than the children who lived with only one parent.

Everyday contact with both parents seems to be the key in determining a child’s stress factor. Not only does increased time with each parent promote strong bonds with both parents (rather than just one), but also the shared parenting approach gives the children access to more resources. Exposing children to parents’ social circles, families, and material goods makes a child less vulnerable and stressed.

Just imagine the financial implications of living with one parent. Yes, the custodial parent is likely receiving child support, but that’s never enough to cover all the actual expenses of raising a child. Putting a kid with one parent is essentially cutting their access to money in half. It’s not about giving the children money; it’s more about them reaping any benefits more money may provide. 

For example, when divorced parents are constantly fighting with each other over who pays for the child’s soccer equipment or prom dress, the child is going to be stressed anytime those types of money issues come up.

What’s the Downside?

Well, for starters, children can sometimes constantly go back and forth between homes in shared custody situations. This can cause children to have a hard time adjusting to a normal routine, especially for young children who prefer stability or a child with a disability.

Sometimes, shared or joint custody can lead to more arguments between the parents. Often times, important daily decisions need to be made which requires more frequent discussions between the parents and, let’s be honest, divorced couples don’t always see eye-to-eye on parenting issues, especially when personal emotions can get in the way.

If a couple is divorcing, it’s likely it’s because there are issues that cannot be resolved. It may be hard for some couples to move on with their own lives if they are in constant contact with the ex-spouse and this can create more stress for the child.

Shared Custody Arrangements Outweigh Any Negatives

Despite the negatives, shared custody arrangements are a great idea; better for the child and, ultimately, easier and better on the parents. Not only does each parent’s involvement play a role in the best interests of a child, but also taking custody arguments out of the mix would reduce litigation costs for the parents. The key in this type of legislation is maintaining judicial discretion in the cases that equal parenting is not in the best interests of the child.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Who’s in Charge of Paying Your Child’s Car Insurance After a Divorce?

Navigating through the ins-and-outs of a divorce can be tough. There are often expenses that arise that you may not have initially thought of—your child’s car insurance payment is one of them. Child support laws vary greatly by each state, so it’s important to check your own state’s guidelines when trying to determine which parent is in charge of covering a child’s car insurance. Some guidelines cover just the basic necessities, while others are a bit more detailed.

A basic child support payment does not typically cover things like extracurricular activities, college expenses, medical insurance and/or uninsured medical expenses, which are generally agreed upon within a settlement agreement. This includes car insurance.

Who Covers the Child’s Car Insurance Coverage?

Car insurance companies will generally require a parent to list their child on their insurance policy if that child is a licensed driver living in their home. In that case, the burden can often fall on the custodial parent (the parent with the most custody time). If the parents share joint custody, it’s typically whichever parent has the most custody time, or the parent that has the child the most during the school year. Usually, but not always, this is the parent receiving the child support. Some companies even require parents sharing joint custody to cover the child on both policies.

The parent required to list the child on their insurance may not always be the same parent in charge of paying for the car insurance. Again, states vary greatly, but car insurance is not typically covered within a basic child support order, which means you must negotiate it as part of a settlement agreement during the divorce.

Many Take the Mentality That Child Support Should Cover Everything

There’s a misconception that once the non-custodial parent pays the custodial parent child support, then the non-custodial parent no longer has to pay anything else for the child. Child support is not a one-time payment and you’re done.  It’s meant to cover basic necessities, such as food, shelter, clothing and other basic living expenses while the child is with the custodial parent. Unplanned or un-thought of expenses inevitably always come up.

Let’s be reasonable though. Parents can come to an agreement before the divorce is finalized. It doesn’t make sense to require the custodial parent receiving child support to carry the burden entirely by himself or herself. Think of all the other costs the parent has to use the money for: groceries, food, clothing, uninsured medical expenses, small incidentals, and many others.

Remember, child support is for the child, but that money can go towards providing a roof over your child’s head. So often times, a basic child support payment is not enough money to cover all the expenses of a child. This is why divorce is expensive!

Who Gets to Make the Decision About Driving?

Coming up with the money is typically the bigger issue, but at some point the parents have to decide whether their child should begin driving. What happens when one parent wants the child to drive and the other doesn’t?

Just as it is with adults, driving is considered a privilege and no child is “entitled” to drive. The decision will be entirely up to the parents.  Which means a judge typically won’t force a parent to pay for a child’s car insurance.

If an agreement truly can’t be reached, the parents can always request the court to intervene and settle the disagreement for them. Most courts don’t like being involved in small issues like this, so it’s best to come to an agreement between yourselves or with the help of your family law attorneys. If the issue is brought before the judge, it’s going to be on a case-by-case basis. 

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

SCOTUS Gives Full Faith and Credit to Same-Sex Adoption

The Alabama Supreme Court is on the losing end of a continuing fight against LGBT rights. After the Supreme Court ruled in favor of same-sex marriages, Chief Justice Roy Moore of the Alabama Supreme Court prohibited probate judges in Alabama from performing same-sex marriages. 

In another attempt to further quash any movement forward for LGBT rights, the Alabama Supreme Court recently refused to give full faith and credit to an out-of-state judgment allowing a same-sex partner to adopt her partner’s children.

Georgia Allowed Woman to Adopt Partner’s Children

E.L. is the biological mother of three children and V.L. was her same-sex partner who raised the children as a joint parent.  Wanting to give legal status to V.L., the couple rented a house in Georgia where they subsequently filed an adoption petition.  E.L. never relinquished her rights as the mother, but rather the petition asked V.L. to be a second parent to the children.  The Georgia court found that the couple had complied with all the requirements under Georgia law and allowed V.L. to adopt the children.

After a move to Alabama and 7 years of co-parenting the children, the couple split up. V.L. alleged the biological mother was denying her access to the children as a result of the breakup and subsequently filed a petition with an Alabama circuit court to register the Georgia adoption decree so she could exercise her parental rights.  After being transferred to a family court, the court ruled in favor of V.L. and awarded her visitation with the children.

The case was appealed all the way up to the Alabama Supreme Court, which ultimately ruled Georgia did not have proper jurisdiction under Georgia’s law to enter the adoption decree in the first place. In other words, the Alabama Supreme Court held that the courts were not required to give full faith and credit to the Georgia judgment and, therefore, refused to recognize the adoption and V.L.’s parental rights.

The U.S. Supreme Court got their hands on the case and reversed Alabama’s ruling, finding that Alabama must afford full faith and credit to the Georgia judgment. V.L.’s rights as an adoptive parent of the children were confirmed and her parental rights restored.

What is the Full Faith and Credit Clause?

Article IV, Section 1 of the U.S. Constitution is known as the Full Faith and Credit Clause and provides that “Full Faith and Credit shall be given in each State to the public acts, Records, and judicial Proceedings of every other State.” Each state must recognize the judgments made by other state’s courts.

Additionally, a state may not inquire into the actual merits of another case or judge why another state made a particular judgment or decision. Further, it may not question the validity of the state’s legal principles applied to base the decision. 

The Exception to Full Faith and Credit

An exception applies. The state can inquire into jurisdictional issues on a limited basis. States are not required to afford full faith and credit to another state’s judgment if that judgment was not rendered under proper jurisdiction. 

Alabama was looking to the merits of the case, rather than jurisdictional issues. The Alabama Supreme Court improperly reasoned that Georgia lacked jurisdiction to order the adoption decree because they tried to interpret Georgia’s laws and how they applied to the original judgment. 

It didn’t matter why or how the Georgia court came to the ruling it did. It only mattered that the Georgia court had the proper jurisdiction to make the decision.

What Does This Mean For LGBT Issues Outside of Marriage?

The case is more about the Full Faith and Credit Clause of the U.S. Constitution than it is about same-sex adoptions or other LGBT issues. As LGBT issues continue to be at the forefront of issues in our country, those opposing any furtherance of LGBT rights will continue to fight the issue, especially cases like this where an out-of-state judgment clashes with their own laws and principles. 

Regardless, the ruling should still be considered a victory for the LGBT community because it will affect future LGBT decisions and how they are honored by other states. This case ensures states have to honor out-of-state judgments, including those judgments made in favor of LGBT rights. 

The U.S. Supreme Court made the distinction simple—courts only need to ask one question when determining whether to afford full faith and credit to an out-of-state judgment.

Now, Alabama is not only recognizing out-of-state adoption, but the Alabama Supreme Court has conceded and is now issuing same-sex marriage licenses.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Family Law Basics

Family Law Basics

Open Letter to Darth Vader

Editor's Note: In anticipation of the new Star Wars movie, we thought it might be fun to use the movie franchise as a metaphor for common legal issues. May the Force Be With You!

I understand you are trying to find out if the adoption of Luke and Leia was legal. Adoption is a court procedure allowing someone to become legally recognized as the parent of a child who isn’t biologically related to him. Since you returned to Jedi ideals, I’ll call you Mr. Skywalker. Before I answer your questions, I’d like you to keep in mind one the adoption cases of Chris Emanuel. Unfortunately, the news isn’t good for you.

Question 1: What Could Obi-Wan Have Done to Obtain custody Over Baby Luke After You Went Homicidal Cyborg?

After Padme’s death, Obi-Wan had a decision to make on Tantive IV. He could have informed you Luke and Leia were alive. Keep in mind that probably wasn’t an option since you were with Emperor Palpatine. You’d already committed mass murder by then. He could have gone to court to obtain guardianship of the twins. 

Legal guardianship is established by the court and allows an individual to watch over the minor and protect them. Obi-Wan would have acted as a parent to the twins providing shelter, food, and care. The twins would have been “wards” of the court. The term refers to the fact the parents of the minor wasn’t capable of taking care of him or her. There are several types of legal guardianship including:

• Temporary guardianship
• Adult guardianship
• Emergency guardianship

Regardless of the type of guardianship Obi-Wan chose, you would still retain your parental rights. Also, anyone can be a legal guardian as long as they have the ability to take care of the child’s needs such as education, food, shelter, and medical care. Would Obi-Wan be granted legal guardianship? Well, that decision would be left up to the family court. The court only considers what’s in the best interest of the child.

Question 2: If Obi-Wan and Senator Organa Had Gone Through Legal Adoption Channels, Would the Judge Have Agreed to Split Up Luke and Leia?

This is a good question. I’ll reserve the huge complication with Obi-Wan and Senator Organa going through legal channels to adopt Luke and Leia for later. For now, I’ll focus on the latter part of the question.

Separating siblings to adopt them out is not a common practice except if it would be in the child's best interest. A judge could have split Luke and Leia up if he felt it was in their best interest to do so. The judge may have thought Leia going to Alderaan to live with Bail and Queen Organa was better than living with Owen and Beru. The judge may have thought Beru and Owen were better parents for Luke than his sister. However, this case was still unusual because there was little evidence to suggest Luke would have done worse with the Organas or that Leia would have done worse living with her Aunt and Uncle. The only explanation is that the twins had to be separated to keep them away from their violent and murderous father.

I’ve mentioned the term “what’s in the interest of the child” quite a few times. It’s important to explain it completely. The term usually critical in child custody, visitation, and guardianship. It’s also used in adoption. It basically means, when making decisions about a child, he or she is the sole focus. The judge doesn’t consider parents’ desires, wants, or needs pertaining to where the child lives.

Since the twins were infants at the time Obi-Wan and Senator Organa would have adopted them, the court would have the following to determine best interest:

• Child’s background
• Environmental considerations like community safety and schools
• Health and maturity of each adoptive parent
• Each adoptive parent’s ability to provide emotional and financial support for the infants
• Social background and lifestyle of each parent

Again, the judge could have split Luke and Leia to allow them to be raised by different families. Now, I’d like to focus on the legal adoption aspect of the question. Unfortunately, a big myth in adoption cases involve father’s rights. Many believe birthfathers don’t have the right to know about their children going up for adoption. They also have the right to contest the adoption.

It is a risk for birthmothers and adoptive parents to continue with the adoption if the adoptive father can’t be located or informed about the birth. In some jurisdictions, if the father’s whereabouts are unknown, some sort of legal notice must appear in the newspaper.

That’s what happened in the Emanuel case. His daughter was returned to him after he found out she was adopted by couple. He wasn’t told she was being placed for adoption.

Question 3: Could You Obtain Custody Over Your Children?

Child custody involves having physical and/ or legal custody over a child. If you did have to go to court to talk custody of Luke and Leia, you will have an uphill battle. The court will look at what’s in the best interest of the twins to determine if you were fit to have retain custody. The court will also consider each parent’s background and ability to provide children with a safe, stable environment.

Barriers Preventing Fathers Behaving Badly from Obtaining Custody or Stopping an Adoption

Unfortunately for you Mr. Skywalker you probably wouldn’t have a chance of invalidating the adoption or getting custody. You could return to the Force, but the judge will take into account your past. Let’s just discuss some domestic violence and family abuse events the judge will consider:

• You joined the Dark Side
• Committed mass murder after your mom’s death
• You choked your wife, Padme, in a fit of rage
• You fought your son, Luke, cutting off his hand
• You revealed you were Luke’s father in a very traumatic way
• You kidnapped and tortured your daughter Leia
• Tried to force Luke to join the Dark Side

These are all serious events and will negatively affect your rights to invalidate the adoption or gain custody of them. Yes, I do understand. When Luke was withering in agony from Emperor’s torture, you did turn against your master. You saved Luke by throwing the Emperor into the core of Death Star. That one thing wouldn’t be enough to overcome numerous things you’ve done to harm the ones you loved.

Mr. Skywalker, I hope I’ve answered your questions regarding the adoption of Luke and Leia. Good luck and may the Force be with you.

Sincerely,

Taelonnda Sewell, LegalMatch Legal Writer

Florida State Senator Wants to Change Alimony and Child Custody Laws

Florida State Senator Tom Lee insists he’s not trying to change alimony and child custody laws for himself. He’s been through a tough divorce and clashes with his ex-wife about child custody arrangements. He claims he’s doing this in the best interest in Florida Residents. In September, he tried for the third time to change the laws regarding these two issues in SB 250. All three times, the proposed bill was in favor of the spouse paying alimony and the non-custodial parent.

Alimony in Florida

Alimony, or spousal support, is defined as regular payments made from one spouse to another during and/or after divorce proceedings. The purpose of alimony is to recognize the contribution made during the marriage. It also helps the spouse receiving the alimony become financially independent.

Alimony is dependent on the length of the marriage. For example, alimony isn’t usually given in short marriages because it’s assumed the spouse had the ability to support him or herself the same way they had prior to the marriage. Most spouses receive alimony in longer marriages based on factors like income, contribution to career, property, and debts. 

Florida doesn’t have a set formula to calculate alimony. Instead, a judge will look at the different factors and decide an amount. That’s if the amount isn’t decided on by the spouses if they can agree without the help of a judge.

Lee wants Judges to Justify Alimony Payments

In the failed bill, Lee wanted a judge to justify awarding alimony with specific written findings. He also wanted to change alimony payments to become more stringent. The formula would make it harder to obtain because a judge would consider what a spouse receiving the support would make if he wasn’t underemployed or voluntarily unemployed. Another change would be made to exclude undistributed earnings on retirement accounts when determining alimony payments.

Yes, a formula is needed to determine alimony payments. Factors like standard of living during the marriage and health of spouses are generic. However, factoring in imaginary income is insane. Does a judge have time to add up what one spouse would have earned if not working at home or part-time? No. It isn’t fair for an ex-spouse to have to live off an income based on the amount he would have earned if he had worked while married.

Of course, Lee did mention the alimony change would not affect his alimony situation. He doesn’t pay alimony anymore. However, in the bill presented in 2013, he wanted similar changes and wanted them to be retroactive. This means once the bill became law, people receiving alimony would see their payments immediately drop.

Child Custody Change would Favor Parents, not Children

Child custody and visitation are established between divorcing parents and those who were never married.

In Florida, if parents can’t come to an agreement, a family court judge will make the decision for them. This decision is based on the best interest of the child. Some factors a judge will take into consideration is:

• Emotional ties between child and parents
• Parents’ moral fitness
• Willingness to encourage the child’s relationship with the other parent
• Child’s wishes, if old enough to express it

In Lee’s failed bill, things would have drastically changed. For instance, a judge traditionally looks at what’s in the best interest of the child. This means the mother isn’t automatically presumed to be the better parent for the child. Lee wanted to create a legal presumption for minor children of equal time-sharing.

It’s vital for children to have as much time with each parent as possible. However, it’s not more important than what is in the best interest of the child. It’s not about the parents’ needs, but their children’s needs. Under Lee’s bill, a child would have to spend time with one specific parent even if it harmed a child’s emotional and mental wellbeing. That’s not right.

He also wanted a judge to consider how much time each parent spent with their children when determining custody agreement. He wanted a judge to consider how often a child would be left by a non-relative when the other parent would be available and willing to provide child care.

This change does make sense, but it does speak to a bigger issue. Parenting time should be figured out by the parents. If one parent is able to care for the children while another is at work, it makes sense to do so. Unfortunately, this works best when parents work together to figure out parenting time. It doesn’t work well when a judge has to go by parents’ itinerary to determine parenting schedules.

Lee Needs More Help in Determining Alimony and Child Custody Issues

Lee should be commended for his attempt to reform alimony and child custody issues. For many spouses and parents, the rules don’t work in their favor. They either pay too much money or aren’t allowed as much time to spend with their children. The problem with Lee is he’s trying to punish spouses and mothers and fathers who need fair reform instead a one-sided change for the worst.

Authored by Taelonnda Sewell, LegalMatch Legal Writer

Unwed Father’s Parental Rights

In early September, Chris Emanuel from South Carolina won custody of his toddler, Skylar. Skylar was secretly put up for adoption by her biological mother shortly after her birth. Emanuel and the biological mother were never married. They’d talked about marriage, but things changed after he met her parents. He alleged they were against the marriage because he was of a different race.

According to Emanuel, he knew his ex-girlfriend was having his child.  His family feared his ex-girlfriend would give the baby up for adoption. Adoption is a legal process where an adult is legally recognized as the parent of a child who isn’t biologically his. In other words, it establishes a parent-child relationship between individuals not blood related. 

Emanuel’s sister discovered that South Carolina, the state were they resided, had a registry for unwed fathers. In South Carolina, it’s known as the responsible father registry. The registry allows unwed fathers to sign up to be notified if their children are put up for adoption. At the time, Emanuel didn’t follow through with his sister’s wishes because he didn’t think his ex-girlfriend would put their child up for adoption.

Eventually though, Emanuel signed up for the state’s registry. It was one of the best decisions of his life.

Emanuel received some unexpected news after he’d planned a baby shower for his ex-girlfriend.  A messenger gave Emanuel documents showing his daughter was born a week earlier. He was also given the news that she’d been put up for adoption and placed with an adoptive family. The adoptive family lived outside of South Carolina. He refused to give up his parental rights and contacted a family attorney to contest the adoption.

The mother allegedly used a loophole in state law to place the baby for adoption out-of-state. Typically, biracial children—regardless of good health—are considered hard to adopt.

Although the adoptive parents begged Emanuel to give up his fight, he continued. The legal battle took three months before the court decided grant Emanuel custody of his daughter Skylar. According to Emanuel’s attorney, if he hadn’t registered, he wouldn’t have known Skylar was being adopted.

Father’s Rights when Not Wed to the Mother

Unmarried parents face the same legal challenges as married parents when it comes to deciding custody of children. However, unwed fathers do face different challenges than married fathers. For instance, a man married to an expectant mother is generally considered the legal father. This is true whether the couple are living together, separated, or the wife cheated.

An unwed father is considered a putative father. A putative father is a man who claims to be the father of a child, but no legal relationship has been established. He is also the alleged father to a child born to a woman he wasn’t married to at the time of the baby’s birth.

The Federal Social Security Act requires every state to have procedures for putative fathers to acknowledge the paternity of a child. These procedures include having a hospital-based program allowing the putative father to acknowledge paternity immediately before and after the birth of a child. Procedures may also include putative fathers and birth mothers receiving notice about alternatives and any legal consequences of signing the acknowledgment.

In addition, approximately 24 states have a paternity registry allowing putative fathers to indicate their intention to claim paternity of their children. These states include Ohio, Florida, and Texas. In 11 states, forms are available to voluntarily acknowledge paternity, including Kentucky, California, and Wisconsin at:

• Social service departments
• Vital statistics

Using the Registry Protects the Rights of the Unwed Father

When an unwed father places his name on the putative father registry or signs an acknowledgement of paternity, he’s afford certain legal rights. The number of rights the father receives depends on the jurisdiction. The rights include:

• Information regarding the child
• Actions to terminate parental rights
• Any petitions for adoption
• Ability to seek child support (if the child is proven to be his)

If a state doesn’t have a putative father registry or voluntary acknowledgement, an unwed father can still establish paternity via court order.

Authored by Taelonnda Sewell, LegalMatch Legal Writer