Divorce Law Journal

Atheist Father Who Objected To Son Attending Catholic High School Appeals Ruling

We briefly mentioned Andrew Wolfson's article in the Courier-Journal here. As an update here is his follow up piece reporting that Judge Timothy Feeley permitted the teenager's mother to make his school decision. An appeal to the Kentucky Court of Appeals has been filed.

Gaskill v. Robbins Ky Supreme Court Oral Arguments Set June 11, 2008

Having access to case status throughout the pipeline is enabling lawyers to be better advocates. How? Well, if you represent a physician, do you think you want to try that case before Gaskill v. Robbins is decided? And, if you must mediate or try your case before then, perhaps the oral arguments may help you get a feel for where the law is headed.

On June 8, 2008 at 10am the Kentucky Supreme Court will hear oral arguments in Gaskill v. Robbins. We have posted about this case involving business valuations many times. The issue is whether the capitalization of excess earnings method of professional practice valuation measures personal goodwill rather than enterprise goodwill. You can watch the oral arguments live at the link here. We'll post the briefs as soon as we learn they are available.

Ky AAML Awards To Hon. Bruce Petrie and Steven Kriegshaber

The Kentucky Chapter of the American Academy of Matrimonial Lawyers presented its 11th Annual Family Law Seminar on April 17 and 18, 2008. We enjoyed the presentations by our national President-Elect, Gary Nickelson, and the provocative and dynamic duo of Lynne Gold-Bikin and Dr. Jonathan Gould. The seminar was well attended and included several of our Family Court Judges. The day long custody piece likely changed the face of custodial evaluations in Kentucky. We were also delighted to have Mel Frumkes return to speak on divorce taxation issues.

Hon. Bruce Petrie of Boyle and Mercer Counties was presented the 2008 Judge of the Year Award.

Steven Kriegshaber, Louisville, (on the right) was honored with the 2008 “Raising the Bar Award.”

This is a photo of some of our members and speakers.

And, finally, a snapshot of some in the crowd taking in Dr. Gould's presentation.
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No To Be Published Ky COA Opinions May 2, 2008

Time Magazine Reports Ky Bio-Dad Decision And Putative Father's Plan To Go To U.S. Supreme Court

The story is online here. Some quotes: Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital "I do" mean a lot more than DNA.

The report continues, But unlike the past, such allegations these days are often backed by science, introducing certainty where none before existed. As of a result, the prohibition on third-party challenges to paternity has begun to weaken. By 2000, at least 33 states had adopted rules that allowed challenges by fathers with genetic proof of their paternity, usually restricting such efforts to the first two years of a child's life. The advent of DNA testing has tread a similarly disruptive course in other areas of law, including criminal cases where exonerations once thought impossible are becoming routine. A few states have even begun allowing ex-husbands to present DNA evidence that they were duped by cheating spouses to avoid child support obligations.

What's next? Rhoades said he plans to appeal to the U.S. Supreme Court on constitutional grounds. But he faces long odds there, given that the high court has already ruled once, in 1989, on the same issue, upholding California's explicit bar against paternity challenges like his. That decision too was divided and contentious. The biological father in that case did not get to see his daughter till she had turned 21. "Well, obviously I am not going to give up and say, 'Oh well I lost,'" Rhoades says. "I believe I have a fundamental right to be in my son's life." The trouble is: nature's law isn't the law of the land.

Comments To The Morning After Bio-Dads Lose Big

Comments tend to get lost on this blog. I thought the following exchange was interesting enough to post separately:
Ms. Kates...I respectfully disagree with your analysis as you neglect to consider that individuals under the U.S. Constitution are afforded the right to due process, which I've been denied in this case. In addition, the U.S. Supreme Court has recognized that when there is a relationship between a parent and child it is to be preserved and protected. In the case at issue, I am not a stranger to my son as I had a relationship for the first few months of his young life. Furthermore, the Supreme Court have recognized that natural parents have a fundamental liberty interest in the care, custody, and management of their children that does not evaporate, Santosky v Kramer. There are procedural safeguards when someone tries to terminate a natural parents rights without a hearing, parents and childrens' rights are fundamental in regards to termination of parental rights. Of course you are arguing that no man who is not married to a woman should have any rights. If I've understood your position correctly. Under the recent KY Supreme CT ruling if a married man gets a single woman pregnant and takes possession of the child, as long as his wife and him do not dissolve their marriage the biological mother has no parental rights. In theory I believe this would be correct, but of course we know that would never happen because it goes against common sense. Regardless, we will just have to see how the U.S. Supreme Court feels about the rights of a biological parent who happens to be a parent. I'm one of many who believe the truth does matter and should still play a role in justice.
Posted by: James Rhoades

We share DNA with all living things, yet even some of our very close relatives, such as siblings and grandparents, are not assumed to have automatic legal familial rights. We also recognize parentage that arises from other than biology, e.g. adoption, surrogacy, and gamete donation. We also have institutionalized marriage, which at its inception is the formation of nonbiological "family" which is not dependent at all upon the existence of children before the couple is recognized to be "family" to each other.
In no other area of the law do we recognize property rights in biological body parts, or following body parts that have left the body, whether cells from which vaccines have been made, or hair, or donated organs. In order to consider sperm and ova differently, we would have to make an arbitrary assumption about these half-cells that they are in some way different. Mostly, that assumption is not founded in reason, but in the premises of some (and not all) cultural and religious traditions.
I would argue that the United States constitution recognizes the liberty interests of actual families, families in fact, families that still would exist as coresidential and ocmmitted social units in the absence of law -- and not the asserted property rights of individuals in and to the products of their discarded gametes.
I think it is an unwarranted presumption that sperm donors (or egg donors) automatically, and without more, have emotional attachments to other human beings they may have never met. We may inculcate some kind of real emotional issue for individuals in how they view their own genes and so forth, but this idea to me is what is the "property rights" (posssessory) versus "relationship" perspective.
I would suggest instead that the government's intrusion into actual marriages and functioning families in order to elevate this pretense into an artificial notion of "family" founded on biology actually denigrates exactly what it is that the constitution recognizes and respects as the family.
"Family" is not DNA, a material so widely shared that the differences between members of an entire species are miniscule. Rather, it is the coresident social unit of individuals whose relationship "bonds" are evidenced in the way they live, by their actual emotional attachments born out of their habitual association with and knowledge of each other over time, and by their mutual support of and involvement with each other in a real family group -- the kind that would exist even in the absence of law... or paternity testing technology.
Posted by: Elizabeth J. Kates, Esq.

Ms. Kates you can't be serious? So you think biological fathers should have no rights and just because they share a genetic bond with their children the law should suppose they don't carry affection towards their children? I know my viewpoint is skewed because the case involves my son who I care deeply about but I think your viewpoint is ridiculous. Surely you would never promote your interpretation regarding a biological mother? You have opinion makes children a piece of property and be damned with their best interest. And let's throw Constitutional rights out the window too if a man was a child out of wedlock and petitions for his rights as a father. In all due respect, the Kentucky Supremes were totally inconsistent in the majority opinion. Cunningham had assumed biological fathers have a right to custody and visitation even without having their parentage ajudicated in his Hinshaw v Hinshaw opinion when he talked about Mrs. Hinshaw seeking to terminate the biological fathers rights so Hinshaw could have adopted the child. Seems kind of weird that Justice Cunningham would write that one biological father in one paternity case has rights while writing another opinion saying this biological father has no rights. Shouldn't Cunningham be a little more consistent?
James Rhoades Real Father in Recent KY Sup Ct decision
Posted by: James Rhoades

The Kentucky decision was correct, and I am glad to see it. With the advent fairly recently of DNA testing, we have forgot that providing reproductive gametes is not necessarily what determines legal parentage, or is in fact sufficient to presume affection, responsibility, or enduring relationship ties. It is unfortunate that in this one area of the law, largely confused by religious and political agendas, and consequent erroneous precepts underlying child support theory, that even as we embrace broader definitions of "family" in some respects, so many legal scholars have simultaneously moved in the inconsistent direction of making unwarranted assumptions that equate legal rights and responsibilities with a tracing of bodily effluence.
Elizabeth Kates

No To Be Published Family Law Ky COA Opinions April 25, 2008

More From The Kentucky Supreme Court Yesterday

The kentucky Supreme Court released its opinion yesterday in Horvath v. Horvath, online here, regarding claimed satisfaction of a temporary maintenance obligation from marital property. A digest will follow.

JNR and JFR v. Honorable Joseph O’Reilly, Judge, Jefferson Family Court

JNR and JFR v. Honorable Joseph O’Reilly, Judge, Jefferson Family Court
and JRG, Real Party in Interest, ___ S.W.3d ___ (Ky. 2008)
2007-SC-000175-MR

JGR (James) filed a custody and support petition, alleging DNA confirmed him to be the biological father of a child who lived with his mother, JNR (Julia), who was married to JFR (Jonathan). After the family court refused to dismiss the petition, Julia and Jonathan were denied a writ of prohibition in the Court of Appeals and appealed to the Kentucky Supreme Court. The Supreme Court ruled 4 to 3 in favor of Julia and Jonathan in five separate opinions.

The opinion of the Court by Justice Minton in which Chief Justice Lambert concurred held that the family court was without subject matter jurisdiction to determine paternity claims brought by a biological father where there is no evidence or allegation that the marital relationship ceased ten months before the child’s birth. Because a showing of irreparable injury and lack of adequate remedy by appeal is not required for issuance of a writ of prohibition when the trial court is acting outside its jurisdiction, the Court of Appeals erred in denying the writ of prohibition. Although the parties debated the due process and equal protection rights of the unmarried biological father, the constitutional claim was not perfected by serving a challenge on Kentucky’s Attorney General.

Justices Cunningham and Scott concurred in the result only, and each wrote separate opinions in which the other joined. Justice Scott opined that only the parties to a marriage can challenge the presumption of legitimacy under KRS 406.011 and there is no constitutional right of a “stranger to the marriage” to assert paternity under such circumstances. Justice Cunningham wrote that this case is squarely about the legal status of marriage and about a married couple’s right to be left alone from the allegations of an interloper asserting the claim of fatherhood.

Justice Abramson dissented by an opinion in which Justice Schroder joined and wrote that the Supreme Court erred grievously in its holding. She distinguishes “marital relations,” the sexual aspects of marriage with the “marital relationship,” the broader aspect of emotional, physical, social, and moral dimensions characterized by a monogamous bond. She believed the “marital relationship between the husband and wife” referenced in KRS 406.011 can certainly be said to “cease” when the wife is having sexual intercourse with another man. While the marriage may still exist as a matter of law and sex may still occur between the spouses on occasion, the monogamous “marital relationship” ceases when the third party enters the picture. She focuses on the words actually used by the legislature as the operative concern and notes that it also makes common sense. A child born to a married woman and a lover who is not her husband is indeed born out of wedlock. The evidence which would show a cessation of the marital relations would need to be assessed on a case by case basis but would encompass the situation, as here, where the putative father has had a visitation with the child through the mother’s cooperation and has secured DNA testing establishing biological fatherhood.

Justice Abramson challenges the majority belief that its holding protects the integrity of the family. If a mother alone can harbor the secret of paternity so long as it serves her purposes, there is no societal disincentive to conceiving a child outside the bounds of marriage. Secondly, she notes that there are tens of thousands of blended families in Kentucky who cope with shared parenting. The only variable in this case is that the only child who has a parent outside the home is the younger as opposed to the older child or children. Finally, she notes the medical and psychological consequences to a child who should have a right to know his parentage.

Justice Noble dissented by separate opinion writing that the majority confused a statutory element of proof as a requirement for standing. One does not have to prove an element in order to have the right to plead it. She believes the majority jumped over the hurdles of proper pleading and procedure to the evidentiary merits of the case, noting that even on writ procedures from the Court of Appeals, the Kentucky Supreme Court is not the fact finder. She wrote that this case is one example of evolving legal questions that arise when a new type of court is instituted. Under KRS 406.021, a putative father has standing. Once a party has standing, then certain elements of proof must be established to rebut the presumption that a child born during the marriage is the child of the husband. One does not have to prove an element of a claim to have the right to plead it. She opined that James clearly has a due process right to at least be heard, because he does have standing.

The Morning After Bio-Dads Lose Big In Kentucky

I would have loved to have been a fly on the wall as the Kentucky Supreme Court deliberated this four to three decision which we reported on yesterday here. I am unaware of another family court case creating such a split among the justices. The 47 pages reveal highly charged emotions. The Opinion of the Court by Justice Minton and joined by Justice Lambert appears to try to take the emotion out of the debate but splits hairs to reach the result. Justice Abramson’s dissent in which Justice Schroder joined is passionate and I think well reasoned. If a child carries the DNA of a man other than the husband, it is common sense that the child is not born of the marriage. The concurring Opinion by Justice Cunningham fumes about the morality of it all, interjects words like “interloper” (but declines to judge the wife’s infidelity), and I wonder how his opinion would have been written if the husband and wife were divorcing rather than reconciled. His regret over the abolition of the tort of alienation of affections leaving the “innocent victim of betrayal” without “recourse against the interloping adulterer” is telling. My first jury trial 25 years ago was an alienation of affections case and I can tell you Kentucky abolished that tort none too soon.

The legislature could deal with this result by adoption of the Uniform Parentage Act, bringing Kentucky into the mainstream of states across the country. This act has been endorsed by both the American Academy of Matrimonial Lawyers and the American Bar Association.

In the absence of similar legislation I would not be surprised to see perfected constitutional arguments raised, perhaps yet in this case. The Kentucky Supreme Court expressly declined to rule on the due process and equal protection arguments because they were not procedurally addressed in the trial court. By the way the opinion of the court was written I wonder if Justice Minton might be a “swing vote” on this issue. Even had he not announced his resignation, unless his thinking changed, I would not have expected Chief Justice Lambert to join ranks with the dissenters because of his comment in another case that some things should just be kept secret. Maybe this case was the last straw?

Andrew Wolfson reports in today's Courier Journal Court Rejects Paternity Rights For Man In Affair, online here. I didn't see a peep about it in the Lexington Herald-Leader.

The bio-dad left the following comment yesterday, which I have edited slightly to remove certain allegations that I am unable to verify: As the REAL father, I'd like to say that today is a very sad day for everyone who believes truth and honesty hold value. It was through deception, a lengthy extra-marital affair, that my son was conceived and now Kentucky's highest court believes such deception should not end. I long ago accepted that having a 1 1/2 year affair with Julia Ricketts was wrong but this decision absconds her from any responsibility. I believe this ruling if not overturned will have a detrimental effect upon the rights of biological fathers in Kentucky. Essentially, my rights as a biological father have been terminated without a day in court. This puts absolute power in the hands of mothers.

Putative Father Lacks Standing To Assert Paternity Of Child Born During Marriage In Kentucky

The Kentucky Supreme Court decided J.N.R and J.S.R v. Joseph O’Reilly and J.G.R, Real Party in Interest, commonly known as the “Rhoades v. Ricketts” case today, online here), an unprecedented 4-3 decision with two concurring opinions and two dissenting opinions. 47 pages in all. The opinion of the Court by Justice Minton in which Chief Justice Lambert joined held that the paternity court lacked subject-matter jurisdiction to hear the biological father’s claim for custody and visitation because KRS Chapter 406 limits its applicability to cases of children “born out of wedlock” and that term is defined by statute, when the child is born to a married woman, to paternity claims by a man other than her husband “where evidence shows that the marital relationship between the husband and wife ceased ten months prior to the birth of the child.” Since there was no allegation or proof that the marital relationship had ceased within ten months prior to the child, the Court lacked subject-matter jurisdiction. Interestingly, the Court seemed to invite constitutional challenges to the paternity statute. Although the parties to that case debated an unmarried biological father’s due process and equal protection rights, the constitutionality of the statute was not challenged nor served on Kentucky’s Attorney General. I suspect that we have not seen the end of this case.

Two concurring Justices, Scott and Cunningham, believe that the biological father’s status as a “stranger to the marriage” is the fundamental reason for the legislative language and there is no Constitutional right of a “stranger to the marriage” to assert paternity. Justice Cunningham in his separate opinion went so far as to say the “severely wounded institution of marriage in Kentucky surely protects the parties from unwanted interlopers claiming parenthood of a child conceived and born during their coverture.”

Justice Abramson wrote a brilliant opinion, but unfortunately it was a dissenting one. A full digest of the case will follow.

Fixed Fees for Divorce (Updated)

I have followed with interest the mounting clamor for fixed fees in divorce cases. I loved North Carolina attorney Lee Rosen’s quote in an ABA Journal e•report, “If someone at Lockheed can put a price on a jet, a lawyer can put a price on a case – the variables they deal with are so much more complicated than those we deal with… We should be expert enough in our areas of law so that we can do it.” After many years I cannot predict with much accuracy. How do you know after one interview whether the client or spouse has good records or any records tracing that nonmarital interest? You have never met the spouse and probably don't know who is representing him/her so it is virtually impossible to gauge whether the case will proceed with open and forthright discovery and a cooperative sense of collegiality or whether you will be in court often and taking many depositions. How to know whether this is the case that will have a child related issue after every exchange of the children? What we can do, however, is spread the risk. Under fixed fees some cases will be financial losers and others will be profitable.

Rosen’s website has a fee calculator so prospective clients who answer a few questions can find the range for legal fees they would pay his firm. Once the few simple questions are answered “yes” or “no,” a range of fees can be found for cases that settle without filing a lawsuit and a separate range can then be accessed for litigation fees. The actual fee, of course, is set in a meeting with the client because the web based calculator cannot cover all scenarios. The ranges were developed after Rosen lawyers analyzed five years of their cases. At first blush they appear to be a very reasonable approach.

One could quibble that the lowest fees published on the website are too high; most of us handle many cases for less than $6,000. This has the probably intended effect of discouraging calls from those who cannot afford his firm's services. For clients with a fixed fee retainer, however, $6,000 may be on spot as the hourly rate mitigates huge numbers of phone calls and emails. On the other hand, the fee calculator does not take into account complicating issues such as relocation, hidden assets, multiple businesses, legal questions of first impression, and personality disorders. Perhaps before settling on a definitive fee in the interview, the lawyer takes such matters into account.

All in all, it’s a good step in the right direction. We are in the process of analyzing our historical fees and considering whether to offer clients a fixed fee option. We could do it today and use Rosen's numbers and methodology if I could satisfy myself that those fees are fair. I would prefer to have my own basis for the numbers. Some clients would end up paying more with a fixed fee as opposed to an hourly rate and some would save money, but for those who justifiably want a sum certain, the time has come.

UPDATE: A comment from William Wilson, Indiana Family Law:
The worry about getting the fixed fee "right" stems from our brains looking at everything in terms of hours having value. If we can break that habit, then fixed fees aren't so worrisome.

An analogy (albeit a poor one) is a car: for the most part, auto makers can produce a $15,000 car in the same amount of time that they can produce a $50,000 car, yet they do not charge us based upon the number of hours that went into making the car. They charge us based upon the value of what they sell and we want to buy.

For clients, it's easier for them to say "yeah, it's worth $2,500 for me to get this divorce" than to say "I'm willing to have you put X hours into the case." The other side of the coin is the lawyer saying "the work I did was worth $2,500" or "the work I did was probably worth more than $2,500."

We all have cases where we put more time in than we thought we would, but many of those cases also end up with unpaid client bills. The end result is the same--our expectation of being paid a fair amount was not met.

But, on the flip side, there are those cases where we can quote a $2,500 fee and get it done quickly. We shouldn't feel bad about "making more" than we would have under an hourly rate--for the client, the end result is the same.

In a nutshell, hourly billing has many flaws. Some things we do as lawyers can be done very quickly, but are worth more than the time it takes to do them. It's easier for clients to understand the value of achieving a goal--like obtaining the divorce--than to understand how much time goes into doing discovery and the resulting fees based on an hourly rate.

I hope that makes sense--I haven't had my morning OJ yet.

Don't be afraid of flat fees. I've been making that move, and clients seem very comfortable with the concept. I figure I will quote the fee a little higher, and in the end, if I feel the fee was a bit high, I can always reduce it--and you can imagine how much clients will appreciate that.

Judge Montano's Passing; Courts Closed On Friday

Through her family law private practice and during her tenure as a Jefferson County Family Court judge, most Louisville family law attorneys knew and loved Judge Kathleen Voor Montano. Her death at age 46 is heartbreaking.

All Jefferson County Court dockets except the Family Court Emergency Docket are cancelled on Friday, April 25, 2008 so that the judges can attend Judge Montano's funeral at 11:00 a.m. The Emergency Docket for Family Court, all divisions, will be held in Family Court 8 at 1:00 p.m. A senior judge from out of county will be covering that docket.

Judicial funerals in this state are respectful pagentries honoring judicial service with all living past and present judges, in black robes, filing in together. Following Justice McAnulty's funeral just a few months ago, we are not ready for another, especially not for a youthful jurist with such promise.

ABA-APA Joint Conference, No Respect For The Kentucky Derby

The ABA-APA Joint Conference, Reconceptualizing Child Custody: Past, Present and Future, will be April 30-May 3, 2008 in Chicago. The summary provided by the ABA: Family lawyers and psychologists are often confronted with issues of mutual concern, including working with high-conflict families; participating in custody evaluations; relocation; representation of children; and allegations of alienation, sexual abuse, and domestic violence.

The 34 plenaries and breakout sessions will span three full days and allow attendees the opportunity to learn from judges, lawyers, psychologists, researchers, and academicians in a number of settings, including a mock hearing.
Register online here. The tentative agenda is here.

AICPA/AAML National Conference on Divorce

The fourth Biennial AICPA/AAML National Conference on Divorce will be May 8-9, 2008 at Caesar’s Palace in Las Vegas. There will be an optional Wednesday afternoon pre-conference workshop. The stellar lineup is as follows: Emerging Issues in Discount Rates, Capitalization Rates and Valuation Discounts, Types of Business Organizations and Related Tax Attributes, Case Law Update, Computer Forensic Techniques, Dissecting a Business Valuation Report, Clash of Tax and Divorce Planning, Hot Tips Panel, Ethical Conundrums, Reading Tax Returns, Collaborative Law, Review of Rules of Evidence, and Asset or Income, Double Dip; Concept of Income in Divorce.

For more information call 1-888-777-7077.