<img src="//bat.bing.com/action/0?ti=5189112&amp;Ver=2" height="0" width="0" style="display:none; visibility: hidden;">

    Family Law Legal Research Blog

    FAMILY LAW: Constitutionality of Grandparent Visitation Statutes

    Posted by Brett R. Turner on Tue, Jan 19, 2016 @ 13:01 PM

     The Lawletter Vol 40 No 12

    Brett Turner, Senior Attorney, National Legal Research Group

         One of the hardest issues in all of family law is grandparent visitation. In Troxel v. Granville, 530 U.S. 57 (2000), the U.S. Supreme Court struck down a Washington state statute allowing the court to award grandparent visitation based only upon the best interests of the child, finding that such a broad standard violates the liberty interest of the parents in having custody of their children.

         But Troxel did not decide what the proper standard for grandparent visitation is; it decided only what that standard is not. Case law since Troxel has disagreed substantially as to what grandparents must prove in order to be awarded visitation.

         No state has written more opinions in fewer cases on this issue than Alabama. In Ex parte E.R.G., 73 So. 3d 634 (Ala.2011), a nine-judge court wrote six separate opinions on the subject. The end result was that the court struck down Alabama Code section 30-3-4.1, which allowed the court to award grandparent visitation on a pure best-interests basis.

         The legislature then added the following language to the statute: "If the child is living with one or both biological or adoptive parents, there shall be a rebuttable presumption for purposes of this section that the parent or parents with whom the child is living know what is in the best interests of the child." Ala. Code § 30-3-4.1(d).

         The constitutionality of the modified statute arose recently in Weldon v. Ballow, No. 2140471, 2015 WL 6618983 (Ala. Civ. App. Oct. 30, 2015) (not yet released for publication), in a case in which the child lived with a biological parent, so that the statutory presumption applied. The issue was whether the presumption saved the statute. Answering this question required a five-judge court to write four opinions. But when the votes were tallied, the statute was held unconstitutional for a second time.

         The first opinion, signed by two judges, construed Troxel to provide that grandparent visitation cannot be awarded based on a best-interests-of-the-child standard alone, regardless of the burden of proof. "Under the 2011 amendments," while the burden of proof is reversed when the child is living with a parent, "a court can still award grandparent visitation over the objection of a custodial parent if the court decides that it is in the best interests of the child. The [Grandparent Visitation Act], as amended, continues to invade the fundamental rights of parents to make their own determinations as to the best interests of their children." Id. at *14.

    Read More

    Topics: family law, Brett R. Turner, grandparent visitation statutes, constitutionality, best-interests standard

    FAMILY LAW: Delegation of Power to Decide Custody and Visitation

    Posted by Brett R. Turner on Thu, Oct 1, 2015 @ 15:10 PM

    The Lawletter Vol 40 No 8

    Brett Turner, Senior Attorney, National Legal Research Group

         In In re Marriage of Iqbal & Khan, 2014 IL App (2d) 131306, 11 N.E.3d 1, the two parties, of the Islamic faith, signed a separation agreement ("PNA"). The PNA named a prominent member of the local Islamic community as Counselor. It then provided:

         Husband and Wife agree that an unreasonable divorce (without Counselor's express written approval) is a violation and contrary to the purposes and intents of this agreement, and an unreasonable divorce sought by either party will forfeit their rights to custody of the children and any rights conveyed in this agreement. If either party seeks an unreasonable divorce, they hereby agree to surrender full custody rights to the other, and agree to only reasonable visitation rights to the Children.

    Id. ¶ 28, 11 N.E.3d at 10 (quoting PNA).

         The trial court held that the PNA was completely unenforceable, and the appellate court affirmed. To begin with, by providing that a party who sought an "unreasonable divorce" lost custody, and by giving the Counselor exclusive power to define "unreasonable," the PNA delegated to the Counselor the power to determine custody. Such delegation violated public policy:

    Read More

    Topics: family law, Brett R. Turner, Islamic separation agreement, unenforceable agreement, public policy violation

    FAMILY LAW: Did Actions of Alleged Father in Response to Custody Petition Amount to Consent to Court's Exercise of Personal Jurisdiction?

    Posted by Gale Burns on Wed, Sep 16, 2015 @ 15:09 PM

    The Lawletter Vol 40 No 7

    Sandra Thomas, Senior Attorney, National Legal Research Group

         In a recent decision of the Court of Special Appeals of Maryland, Maryland's intermediate appellate court addressed the question of whether a New York resident could be subject to personal jurisdiction in a Maryland paternity and support action based on his filing of an answer to the original complaint for custody, his request for genetic testing, and his request for discovery. Friedetzky v. Hsia, No. 1187 Sept. Term 2014, 2015 WL 4081290 (Md. Ct. Spec. App. July 6, 2015).

         The court of special appeals held that "by affirmatively requesting genetic testing in his answer" to the mother's custody petition and "by initiating discovery relating to matters of paternity and child support," the alleged father "triggered the UIFSA [Uniform Interstate Family Support Act] long-arm statute and waived the limited immunity otherwise afforded in a custody proceeding under the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act]." Id. at *1.

    Read More

    Topics: family law, Sandra L. Thomas, The Lawletter Vol 40 No 7, custody petition, court's jurisdiction

    FAMILY LAW: Support Guidelines and Retirement Benefits

    Posted by Brett R. Turner on Mon, Jul 27, 2015 @ 08:07 AM

    The Lawletter Vol 40 No 6

    Brett Turner, Senior Attorney, National Legal Research Group

         All 50 states have now had child support guidelines for more than a decade. Increasing numbers of states are experimenting with spousal support guidelines, especially for temporary support while a divorce case is pending.

         When applying any set of guidelines for spousal or child support, the first step is always to compute the incomes of the parties. Such computation raises a set of tricky issues when retirement benefits are involved.

         In Milinovich v. Womack, 343 P.3d 924 (Ariz. Ct. App. 2015), the father was a retired professional baseball player. His income dropped materially when his playing years ended, and he filed a motion to reduce his child support. To compute the guideline amount of support, the court had to determine the father's income.

    Read More

    Topics: family law, Brett R. Turner, retirement benefits, support guidelines

    Windsor Update: The Supreme Court Speaks

    Posted by Brett R. Turner on Fri, Jun 26, 2015 @ 15:06 PM

    Brett R. Turner, Senior Attorney, Family Law, National Legal Research Group

          On June 26, 2015, the United States Supreme Court issued its long awaited decision in Obergefell v. Hodges. In a very sharply divided 5-4 decision, the Court held that the fundamental right to marry applies to persons of the same sex.

         The majority opinion strongly resembles Loving v. Virginia, 388 U.S. 1 (1967), the landmark decision that recognized that the right to marry includes the right to marry a person of a different race or color. The opinion identified one single, unitary, fundamental right to marry, which is identified as a fundamental component of American life and, indeed, of human existence.

         The opinion then defined the question as whether this fundamental right to marry extended to same-sex relationships. The Court held that it did. Given the central importance of marriage to human existence, to refuse to recognize same-sex marriage would deeply demean gay persons:

         There is no difference between same- and opposite-sex couples with respect to [the importance of marriage]. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.

    Read More

    FAMILY LAW: How Not to Use Out-of-State Authority When Writing an Appellate Brief

    Posted by Brett R. Turner on Thu, Jun 11, 2015 @ 15:06 PM

    The Lawletter Vol 40 No 4

    Brett Turner, Senior Attorney, National Legal Research Group

         A recent Utah Supreme Court decision sets forth a good example of how not to use out-of-state authority when writing an appellate brief on a question of first impression. Johnson v. Johnson, 2014 UT 21, 330 P.3d 704.

         In a divorce case, the court issued an order dividing the husband's military pension, but the wife never obtained the qualified order necessary to have the military pay a portion of the pension directly to her. Some years after the divorce, she petitioned for such an order. The husband argued that she had waited too long, and that her request was barred by laches. The trial court prospectively granted the wife's request, and the husband appealed.

         There was no Utah authority directly on point, so the husband cited two New York cases. The court was not unwilling to look outside Utah, but it criticized the manner in which the New York cases had been discussed, and ultimately dismissed the laches issue on grounds of insufficient briefing.

    Read More

    Topics: family law, Brett R. Turner, The Lawletter Vol 40, No 4, using out-of-state cases in appellate brief, appellate procedure, relate out-of-state law to general principles

    FAMILY LAW: Laws of State of Domicile Govern Divorce of Couple Married in Another State

    Posted by Sandra L. Thomas on Mon, May 11, 2015 @ 16:05 PM

    The Lawletter Vol 40 No 3

    Sandra Thomas, Senior Attorney, National Legal Research Group

         In the first decision in the nation to address the issue, the Alabama Court of Civil Appeals has held that an Alabama trial court was under no obligation to enforce the covenant-marriage contract entered into between the parties at the time of their marriage in Louisiana where the parties subsequently moved to Alabama and sought a divorce in the Alabama court. Blackburn v. Blackburn, No. 2131043, 2015 WL 1608431 (Ala. Civ. App. Apr. 10, 2015) (not yet released for publication).

         In January 2013, Mr. Blackburn filed a complaint for divorce in an Alabama trial court, alleging as grounds incompatibility of temperament and an irretrievable breakdown of the marriage. Several days later, Mrs. Blackburn filed an answer and counterclaim also seeking a divorce and also alleging incompatibility of temperament, and further alleging that the husband had committed acts of domestic violence.

    Read More

    Topics: family law, domiciliary state, subject-matter jurisdiction

    FAMILY LAW: Spousal Support in No-Guideline States

    Posted by Brett R. Turner on Thu, Mar 19, 2015 @ 08:03 AM

    Brett Turner, Senior Attorney, National Legal Research Group

         No field of family law is as diverse or controversial as that of support payments made by one spouse for the support of the other after a marriage has ended in divorce. The law in this area is so divided that the states cannot even agree on the name of the payment. Some states use the traditional name, "alimony." Other states follow the lead of the Uniform Marriage and Divorce Act and call the payment "maintenance." Still other states call the payment "spousal support."

         Disagreement over the label is matched by disagreement over the purpose of the payments. Most states recognize several different types of spousal support. Traditional support is awarded after a long-term marriage so that the less wealthy spouse does not suffer a drop in living standard. Rehabilitative support is awarded when it will help the less wealthy spouse to develop a higher earning capacity. It differs subtly from time-limited support, which is awarded when the marriage was not long enough to justify a traditional support award. Reimbursement support is awarded when one spouse made contributions during the marriage to the other's earning capacity, such as by supporting a spouse through graduate or professional school. Some states even recognize transitional support to bridge the gaps between other forms of support.

    Read More

    Topics: family law, spousal support, no-guidelines states

    FAMILY LAW: Modification of Alimony Agreement

    Posted by Gale Burns on Mon, Feb 2, 2015 @ 13:02 PM

    The Lawletter Vol 39 No 11

    Sandra Thomas, Senior Attorney, National Legal Research Group

         The Appeals Court of Massachusetts has affirmed a trial court's dismissal of a complaint filed by a former husband seeking to decrease or terminate his alimony obligation because he had reached "full retirement age," defined under Massachusetts statute as "the payor's normal retirement age to be eligible to receive full retirement benefits under the United States Old Age, Survivors, and Disability Insurance program," i.e., Social Security. Lalchandani v. Roddy, No. 13-P-1988, 2014 WL 7447305, at *4 n.6 (Mass. App. Ct. Jan. 5, 2015) (quoting Mass. Gen. Laws ["M.G.L."] ch. 208, § 48 (inserted by St.2011, c. 124, § 3)).

         The parties divorced in 1992 after more than 20 years of marriage. The separation agreement entered into between the parties was incorporated, but not merged, into the judgment of divorce and thus retained independent legal significance. Included in the agreement was a provision that the husband would pay $4,333.33 per month to the wife as alimony until the death of either party or the wife's remarriage. The agreement allowed the parties to modify its terms by written agreement. In 1996, the wife filed a complaint for contempt against the husband for, among other things, unpaid alimony.

    Read More

    Topics: family law, modification of alimony agreement, retirement

    Windsor Update: Not with a Whimper, but a Bang—U.S. Supreme Court Accepts Same-Sex Marriage Cases

    Posted by Gale Burns on Mon, Jan 19, 2015 @ 10:01 AM

    Brett R. Turner, Senior Attorney, National Legal Research Group

         Just a few months ago, the U.S. Supreme Court denied review over two same-sex marriage cases, creating a possibility that same-sex marriage might become the law of the land through a series of denials of certiorari, without any further opinions from the Court.

          But the Sixth Circuit then rejected the concept of a broad federal right to same-sex marriage. On January 16, 2015, the Supreme Court accepted petitions for certiorari in four separate same-sex marriage cases, thus agreeing to address directly the Circuit Court split and to decide whether federal law requires recognition of same-sex marriages. The cases will together constitute perhaps the highest-profile litigation in the Court's 2015 term.

         The four cases are Obergefell v. Hodges from Ohio, Tanco v. Haslam from Tennessee, DeBoer v. Snyder from Michigan, and Bourke v. Beshear from Kentucky. All were decided in the Sixth Circuit, which is presently the only Circuit holding that states may restrict the right of same-sex persons to marry.

    Read More

    Topics: family law, Windsor update, same-sex marriage, certiorari granted

    New Call-to-action
    Free Hour of Legal Research  for New Clients
    Seven ways outsourcing your legal research can empower your practice