Divorce Law Journal

No New KY "To Be Published Cases" This Week

Kentucky Court of Appeals decisions for the week are published each Friday at 2 p.m. and appear online on its website at 2-30 p.m. Of the opinions released today and designated to be published, none are family law cases.

The Battle Between Abuse and Alienation:Assessment, Diagnosis and Interventions

Association of Family and Conciliation Courts presents at
University of Baltimore, Maryland, The Battle Between Abuse and Alienation:Assessment, Diagnosis and Interventionson December 5-6, 2007. From the brochure description:

A two-day training for judges, lawyers, custody evaluators, mediators and other professionals who work with high-conflict families.
Frequently in complex child custody cases the sides line up with allegations of abuse in one corner and allegations of alienation in the other. Often people take sides and they find themselves lost in the battle and in so doing, they lose sight of the children, as it becomes a war between the two A’s – abuse and alienation. How do we know the Truth that is behind why a child rejects his or her parent? Once we know that, there is even more to know, and that is what to do about it and how to intervene. This workshop will address these issues, current research, and describe best practices for evaluating these families and the interventions that best serve them.
Participants in this two-day training will:
• Learn how to assess alienation and abuse and to make a distinction between the two;
• Learn where on the continuum of abuse and of alienation behaviors a particular family falls;
• Learn ways to assess for safety issues and how to put the child first;
• Learn ways to help facilitate a “child-centered” custody evaluation;
• Learn how to delineate a child’s vulnerabilities and strengths dependent upon his or her age and stage of development;
• Understand the research on abuse and alienation and what we know from it about children, parenting, and attachment issues;
• Learn how to apply the AFCC Model Standards, APA’s Guidelines for Evaluations of Parenting Responsibility, APA’s Specialty Guidelines for Forensic Psychology and APA’s Ethics Code as well as state and local rules of court to cases with these complex issues; and
• Facilitate the creation of interventions in these cases that emphasize accountability, accountability, and even more accountability.
AGENDA
Wednesday, December 5, 2007, 8:30 am-4:00 pm
1. Context and Definitions: Why do children reject parents? The possible roots of rejection. What is abuse, estrangement, alienation?
2. Investigation, Assessment, and Evaluations: Safety first, the child’s perspective, best interests, and a Decision Tree approach while looking for strengths and vulnerabilities.
3. Resources and Research: what we know and how to use it.
Thursday, December 6, 2007, 8:30 am-4:00 pm
1. Application of professional ethics, guidelines and standards.
2. Application of What We Know: Creating interventions that work.
3. Practical Application to Cases – The How To’s: How to prevent a child rejecting a parent and how to fix it when they do.
Presented by Leslie M. Drozd, Ph.D., editor of Journal of Child Custody and a psychologist in
private practice. She has authored, co-authored, or co-edited numerous books and articles
including Psychological Testing in Child Custody Cases, Child Sexual Abuse Allegations in Child Custody Cases, Relocation Issues in Child Custody, Self as the Mediator in the Psychopathology of Children of Alcoholics; Safety First: A Model for Understanding Domestic Violence in Child Custody and Access Disputes; Is It Abuse, Alienation, and/or Estrangement? Domestic Violence: True or False, and the National Council of Juvenile and Family Court Judges’ Bench Book for Family and Juvenile Court Judges on Navigating Domestic Violence in Child Custody Cases.

Registration and info (608)664-3750, afcc@afccnet.org, www.afccnet.org

Nation's Leading Divorce Lawyers Finding More Cases Settled Before Trial

CHICAGO, Sept. 25 /PRNewswire/ -- A majority of the respondents to a
recent poll of American Academy of Matrimonial Lawyer (AAML) members cited
an increase in divorce cases being settled before trial. In all, 58% of the
attorneys said that they have seen more cases being resolved without trial
during the past five years.

"A growing number of couples are having more success negotiating
settlements with the assistance of their lawyers," said Gaetano "Guy"
Ferro, president of the American Academy of Matrimonial Lawyers.
"Negotiated settlement gives the spouses more input into their divorce
judgment than does letting a judge decide the issues. It affords the
opportunity for more creative resolutions which can minimize adverse tax
consequences. Settlement is almost always less stressful for the spouses
than trial and, where there are children, makes it more likely that the
parties will be able to effectively co-parent."

The number of attorneys who noted an increase in the number of divorces
being resolved without a trial during the past five years was significantly
greater than those who felt there were fewer negotiated settlements taking
place. Only 12% of the respondents reported fewer cases being settled
before trial.

About AAML
Founded in 1962, The American Academy of Matrimonial Lawyers (AAML) is
committed to encouraging the study, improving the practice, elevating the
standards, and advancing the cause of matrimonial law, in order to better
protect the welfare of American families.

Comprised of the top 1,600 matrimonial attorneys throughout the nation,
AAML members are recognized experts in the specialized areas of matrimonial
law, including divorce, prenuptial agreements, legal separation, annulment,
child custody, property valuation and division, alimony, support, and the
rights of unmarried couples.

Discretionary Review Granted By Kentucky Supreme Court In Another Relocation Case; It Makes Three Move Away Cases Pending

When we link to a case (usually by simply highlighting the case in red, although that may change soon to make it more obvious) if the status of the case has changed, the link will be to the newest online version. That's how we discovered discretionary review was granted August !5, 2007 in Rankin v. Coffman, digested here. Unless the parties have the same last name or the case involves initials or the case name rings a bell, it is difficult to quickly note of the grants of discretionary review which involve family law. While the case indicates it is about jurisdiction, it really is about relocation of a child. The child was moved from Hardin County to Louisville when the relocation was granted and then forced by the court to return to Hardin County. We hope this case gets expedited and heard with Frances v. Frances, digested here and Pennington v. Marcum, digested here. Post Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003), a real mistake if there ever was one, relocation law has been a nightmare, evidenced by the large number of appeals on this issue. What could be so difficult about articulating a standard that if a parent wants to move a child, he/she must give a certain amount of notice and that the standard to be applied will be the best interests of the child? Um, well, our statutes have caused havoc.
In Robinson v. Robinson, 211 S.W.3d 63,68 (Ky. App. 2006) the court noted:

Child custody relocation litigation is not a new phenomenon in Kentucky. See, e.g., Duncan v. Duncan, 293 Ky. 762, 170 S.W.2d 22, 154 A.L.R. 549 (1943)( “[S]ole question presented ... is whether the chancellor erred in modifying the judgment so as to permit [the custodial parent] to move to Pennsylvania and take the children with her.”). The arrival of the 21st century, however, heralded an accelerated evolution in this area of the law. This is true nationally as well as in Kentucky where our courts continue to address increasing numbers of such cases. Unfortunately, despite Kentucky's recent legislative efforts, Chapter 403 of the Kentucky Revised Statutes (Dissolution of Marriage Child Custody) fails to specifically address the special problem faced by our courts when custodial parents desire to relocate with their children subsequent to divorce.
The vast majority of state legislatures has passed a wide variety of laws directly addressing the relocation issue; nearly half require a relocating custodial parent to give advance notice of the move to the other parent, the court, or both. Kentucky is among the minority of states that have no specific statute. Therefore, until our legislature aligns with the majority of states, we are compelled to address relocation/custody issues by applying the general custodial modification statutes, KRS 403.340 and KRS 403.350.
KRS 403.340(2) states:

No motion to modify a custody decree shall be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe that:

(a) The child's present environment may endanger seriously his physical, mental, moral, or emotional health; or
(b) The custodian appointed under the prior decree has placed the child with a de facto custodian.

KRS 403.340(2). The companion statute, KRS 403.350, states, in pertinent part:
A party seeking ... modification of a custody decree shall submit together with his moving papers an affidavit setting forth facts supporting the requested ... modification and shall give notice, together with a copy of his affidavit, to other parties to the proceeding, who may file opposing affidavits.... The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.

[1] Taken together, these statutes establish certain clear prerequisites to the modification of a prior custody decree where the modification is sought earlier than two years after its entry. Specifically, the motion to modify “must be accompanied by at least two affidavits. [Citation omitted]. If the applicable requirement is not met, the circuit court is without authority to entertain the motion.” Petrey v. Cain, 987 S.W.2d 786, 788 (Ky.1999). The filing of affidavits, therefore, is a jurisdictional requirement. Crouch v. Crouch, 201 S.W.3d 463, 465 (Ky.2006)(“[T]rial court had no jurisdiction to modify the [permanent custody] order unless a motion to modify, along with a supporting affidavit, was filed in the case.”).

The court also foot-noted the following:

FN4. Linda D. Elrod, Feature, States Differ on Relocation, 28 Fam. Advoc. 8, 8 (Spring 2006)(“Lawyers and judges have noticed the increase in the number of custody disputes in which relocation is an issue. The reasons are many: the steady high-divorce rate; the number of joint-custody and shared-residency arrangements; the shifting job market; remarriages; and the mobility of today's society.”).

FN5. Despite the Supreme Court's comment in Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003) that “the relocation issue, at least in the context of sole custody, has been addressed and settled in Kentucky for more than a decade,” Id. at 784, Kentucky law in this area continues to evolve at a fast pace. Since 2000, the Kentucky appellate courts have addressed relocation/custody issues in some form in the following cases: Crouch v. Crouch, 201 S.W.3d 463 (Ky.2006); Brockman v. Craig, 205 S.W.3d 2444 (Ky.App.2006), mot. for disc. rev. filed, (Ky. Aug. 15, 2006) (No. 2006-SC-587-D); Bowman v. Bowman, --- S.W.3d ----, 2006 WL 658938 (Ky.App.2006)(Opinion Final, May 5, 2006); Allen v. Devine, 178 S.W.3d 517 (Ky.App.2005); Cox v. Cox, 170 S.W.3d 389 (Ky.2005); Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky.App.2004); Fenwick v. Fenwick, 114 S.W.3d 767, 779 (Ky.2003); Scheer v. Zeigler, 21 S.W.3d 807 (Ky.App.2000). We could add to that list a fair number of unpublished opinions.

FN6. In 2001, child custody litigation in Kentucky was significantly affected when the state legislature amended KRS 403.340. The effect of the amendment was to soften custody modification requirements when a motion for modification is filed more than two years after the decree is entered. Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky.App.2004). For modification within two (2) years of the award of permanent custody, the standard remains as strict now as prior to the amendment.

FN7. The following states require 30 days' notice prior to relocation: Florida (Fla. Stat. § 61.13001(3)(2006)), Georgia (Ga.Code Ann. § 19-9-1 (2006)), Kansas (Kan. Stat. Ann. § 60-1620 (2006)), Maine (Me.Rev.Stat.Ann. tit.19-A, §§ 1653(14) & 1657 (2006)), Montana (Mont.Code Ann. § 40-4-217 (2006)), New Mexico (N.M. Stat. § 40-4-9.1 (2006)), and Virginia (Va.Code Ann. § 20-124.5 (2006)). These states require 45 days' notice: Alabama (Ala.Code § 30-3-163 to 167 (2006)), California (Cal. Fam.Code § 3024 (2006)) and Maryland (Md.Code Ann., Fam. Law § 9-106 (2006)). States requiring 60 days' notice are: Arizona (Ariz.Rev.Stat. § 25-408 (2006)), Louisiana (La.Rev.Stat. Ann. § 9:355.4 (2006)), Missouri (Mo.Rev.Stat. § 452.377 (2006)), New Hampshire (N.H.Rev.Stat. Ann. § 458:23-a (2006)), Tennessee (Tenn.Code Ann. § 36-6-108 (2006)), Utah (Utah Code Ann. § 30-3-37 (2006)), Washington (Wash. Rev.Code §§ 26.09.405, et seq. (2006)), West Virginia (W.Va.Code § 48-9-403 (2006)) and Wisconsin (Wis. Stat. § 767.481 (2006)). The 2006 session of the Indiana legislature recently enacted a 90-day notice requirement (Ind.Code Ann. § 31-17-2.2-3 (2006)). “Reasonable” notice is required in Colorado (Colo.Rev.Stat. Ann. § 14-10-129 (2006)) and Oregon (Or.Rev.Stat. Ann. § 107.159 (2006)). Finally, the following states specifically address the relocation issue without implementing a notice requirement: Illinois (750 Ill. Comp. Stat. Ann. § 5/609 (2006)), Iowa (Iowa Code Ann. § 598.21D (2006)), Massachusetts (Mass. Gen. Laws ch. 208, § 30 (2006)), Michigan (Mich. Comp. Laws § 722.31 (2006)), Minnesota (Minn.Stat. § 518.195, Subd. 7 (2006)), Nevada (Nev.Rev.Stat. § 125C.200 (2006)), New Jersey (N.J. Stat. Ann. § 9:2-2 (2006)) and North Dakota (N.D. Cent.Code § 14-09-07 (2006)).

It's clearly time for our legislature to address the problem. (The AMML Model Relocation Act, anyone?) Meanwhile, we'll see if our Supremes have a magic wand.

Caucused Mediation Inherently Deceptive?

Take this 2000 mediate.com article by JAMS neutral and former U.S. Magistrate John W. Cooley, Defining the Ethical Limits of Acceptable Deception in Mediation for a spin.

This article proceeds from the premise that consensual deception is the essence of caucused mediation.

This statement should not come as a shock to the reader when it is considered in the context of the nature and purpose of caucusing. Actually, it is quite rare that caucused mediation, a type of informational game, occurs without the use of deception by the parties, by their lawyers, and/or by the mediator in some form. This is so for several reasons.

First, a basic groundrule of the information system operating in any mediated case in which there is caucusing is that confidential information conveyed to the mediator by any party cannot be disclosed by the mediator to anyone (with narrowly limited exceptions).

This means that:

each party in mediation rarely, if ever, knows whether another party has disclosed confidential information to the mediator; and
if confidential information has been disclosed, the nondisclosing party never knows the specific content of that confidential information and whether and/or to what extent that confidential information has colored or otherwise affected communications coming to the nondisclosing party from the mediator.
In this respect, each party in a mediation is an actual or potential victim of constant deception regarding confidential information -- granted, agreed deception -- but nonetheless deception. This is the central paradox of the caucused mediation process. The parties, and indeed even the mediator, agree to be deceived as a condition of participating in it in order to find a solution that the parties will find "valid" for their purposes.

Lifted entirely from Victoria Pynchon's Settle It Now Negotiation Blog, with thanks. Fascinating, especially in these parts where almost all we see is caucused mediation.
UPDATE:
Comment from Geoff Sharp at Mediator blab...blah...:

Diana, I'm interested in your comment that most of what you see in your neck of the woods is caucused mediation. I'm always suspicious of mediators who work in this way.

I believe that usually, it's either laziness or a lack of confidence/competence. The brain surgery of mediation is in joint session - that's where we ply our trade.

Other views?

Divorce Planning Tip - Securing Communications

From Shannon Cavers at Houston, Texas Divorce and Family Law Attorney Blog:

An important question I ask of all clients is whether they have a secure e-mail address and a "safe place" to receive mail from my office. When spouses are in the beginning phases of the divorce process, accidentally alerting the other spouse to divorce plans can have a negative impact ranging from tipping one's hand early too early or up to and including domestic violence in extreme cases.

If you plan to correspond with your attorney via e-mail, make absolutely sure that your spouse cannot access your e-mail account. You might consider changing your password or opening a new e-mail account.

In terms of "snail mail," you might consider renting a PO Box through a United States Post Office location or a private company such as the UPS Store, or Mailboxes, etc. This is an inexpensive way to make sure your confidential communications with your attorney are not compromised.

May I add dialing *67 before the phone number when the lawyer or staff member returns the call of a prospective client?

Parenting Coordination: Helping High Conflict Parents Resolve Disputes

Association of Family and Conciliation Courts is presenting a two day seminar December 3-4, 2007 at the
University of Baltimore, Maryland, titled Parenting Coordination: Helping High Conflict Parents Resolve Disputes. It will be presented by Joan B. Kelly, Ph.D., clinical psychologist and former Executive Director of the Northern California Mediation Center. Dr. Kelly has published more than 80 articles and chapter, and her book, Surviving the Breakup: How Children and Parents Cope with Divorce, remains a classic resource Here is the description of the program:

A two-day training for parenting coordinators, mediators, custody evaluators, lawyers and other professionals who work with high-conflict families.
Parents with continuing disputes and chronic litigation about their children, following separation or divorce, present a difficult problem for courts, lawyers and mental health professionals. This training will focus on the parenting coordination structure and process, including the range of disputes resolved, practical and ethical issues, effective court orders, case examples, and the parenting coordinator role in cases with alienated children and relocation issues. Participants in this two-day training will:
• Understand the most recent empirical research on who high conflict parents are, and why they continue to have entrenched disputes regarding their children;
• Identify the types of conflict most destructive for children, and what buffers have been identified that help protect children from parental conflict;
• Understand the rationale for combining education, mediation, and arbitration in the Parenting Coordination models used for continuing g high conflict parents;
• Understand the relationship between the authority described in the order or consent agreement for the PC and the types of disputes typically addressed by Parenting Coordinators;
• Distinguish between Parenting Coordination and psychotherapy/assessment or serving as a representing lawyer and the role boundaries in functioning as a Parenting Coordinator;
• Understand the value of including children in Parenting Coordination processes, from research, interview material, and discussion;
• Learn the importance of precise, clear writing of decisions for court orders or consent agreements by discussing examples written by several PCs following either mediation or arbitration of parenting disputes;
• Identify the various ways in which Parenting Coordinators can intervene effectively in relocation, child alienation, and special needs cases; and
• Describe ethical situations that arise in Parenting Coordination practice, and the need for case consultation and mentoring.
AGENDA
Monday, December 3, 2007, 8:30 am-4:00 pm
1. Continued Parental Conflict after Divorce – Who and Why?
2. Empirical Research on Impact of High Conflict on Children’s Adjustment
3. Parenting Coordination: Definitions, Objectives, Disputes, Roles and Qualifications
4. Legal Frameworks and Models of Parenting Coordination
5. Critical Elements in Court Orders for Parenting Coordination
6. Referrals, Setting up Cases, Parental Informed Consent and Beginning the Case
Tuesday, December 4, 2007, 8:30 am – 4:00 pm
1. Including Children in the Parenting Coordination Process
2. Negotiation, Decision-making and Drafting Decisions
3. Ethical and Clinical Issues in Serving as Parenting Coordinators
4. Types of Parenting Coordination Cases
5. Specialized Interventions with Parents to Reduce Conflict
6. Parenting Coordination in Child Alienation and High Conflict Relocation Cases.

Registration and info (608)664-3750, afcc@afccnet.org, www.afccnet.org

Clark v. Clark, Maintenance, Marital And Nonmarital Property

Clark v. Clark, ___ S. W. 3d ___ (Ky. App. 2007)

DESIGNATED TO BE PUBLISHED: AFFIRMING IN PART; VACATING AND REMANDING IN PART
PANEL: ACREE PRESIDING; KELLER AND LAMBERT CONCURRING;
COUNTY: JEFFERSON
DATE RENDERED: 9/21/2007

Ex-Wife appealed from TC’s Order assigning value to a 2002 Ford Taurus, not valuing or dividing certain certificates of deposit (CD’s) and reducing her maintenance. Parties separated after eighteen years of marriage. At the time of their divorce, Ex-Wife was 70 years old and Ex-Husband was 78. Prior to their marriage, Ex-Husband owned a home, land and livestock. Ex-Husband sold his livestock shortly after the marriage and purchased CD’s with the proceeds. During their marriage, the parties lived on Ex-Husband's social security and pension benefits and, once Ex-Wife reached 62, her social security benefits.

While Ex-Wife's dissolution petition was pending, Ex-Husband was ordered to pay $300.00 per month pendente lite maintenance. After trial, TC found a Taurus to be marital property and awarded it to Ex-Wife with a value of $12,000.00. The CD’s were neither assigned nor awarded since Ex-Wife failed to present any evidence that they existed at the time of the parties' divorce. After dividing all marital property, TC reduced Ex-Wife's maintenance award to a monthly sum of $100.00. Ex-Wife filed this appeal. Subsequently, Ex-Wife filed a CR 60.02 Motion for TC to consider new evidence reflecting that Ex-Husband had cashed out CD’s prior to dissolution but after separation. TC denied this motion. CA indicated that any appeal of that Motion must be separate from this appeal.

Ex-Wife first argues the trial court abused its discretion when it assumed facts not in evidence about the value of the 2002 Ford Taurus, and further arguing that Ex-Husband had purchased the car as a gift for her and, thus, it was not marital property within the definition of Kentucky Revised Statute (KRS) 403.190(2). At trial, Ex-Husband disputed that the Taurus was purchased as a gift to Ex-Wife and, indeed, the car was titled in both parties' names. At trial, neither party testified as to the current value of the Taurus. TC found that Ex-Wife failed to meet her burden of proving that the car was her nonmarital property. The car was awarded to Ex-Wife and assigned the $12,000.00 value listed as its NADA book value in Ex-Husband's mandatory case disclosure. Ex-Wife contends it was incumbent upon Ex-Husband to introduce evidence of the car's value at trial, since he argued it was a marital asset, citing CR 43.01(1), which states, “The party holding the affirmative of an issue must produce the evidence to prove it.” Ex-Wife claimed Ex-Husband’s failure to introduce evidence of its value at trial deprived her of the opportunity to refute this figure. Thus, she argues the burden of refuting the Taurus' supposed value of $12,000.00 never fell to her. She asked CA to assign a value of zero dollars to the car or, in the alternative, to allow her to present evidence contradicting the value assigned by TC. CA disagreed with Ex-Wife’s contentions. CA noted that Ex-Wife had filed her own MCD but failed to assign any value to the Taurus because she contended it was her nonmarital property value as $12,000.00, was filed in the record on June 30, 2004. Ex-Wife had notice that Ex-Husband was characterizing the car as marital property and also of its asserted value. It appears that, instead of introducing her own evidence regarding the car's value, Ex-Wife relied on her ability to persuade TC of the car's nonmarital character. CA found no error in TC’s decision on this issue.

Ex-Wife next argues that TC’s division should have recognized and divided the CD’s between the parties. At trial, Ex-Wife introduced records showing existence of CD’s in 2001. She did not testify to the source of the funds, and offered no proof that the CD’s still existed. Ex-Husband testified that all of the funds used to purchase the CD’s came from the sale of his nonmarital livestock and that the CD’s were exhausted during the marriage.TC found that it was unable to award or assign an asset whose existence was unproven. Ex-Wife asked CA to consider evidence she presented in support of her CR 60.02 motion that Ex-Husband had cashed out the CD’s shortly after the parties separated. However, CA noted that it had issued a previous order that issues related to this Motion must be contained to a timely appeal of that Motion, and Ex-Wife failed to timely appeal that Motion. CA found no error in TC’s order on this issue.

Finally, Ex-Wife argued TC abused its discretion when it reduced her maintenance award, as it set her permanent maintenance so low that she would be dependent upon others for the means to meet her basic needs. At trial, Ex-Wife told TC that she was currently obliged to live with her daughter, and, as a result, TC subtracted her rent and telephone bills from her monthly living expenses. CA held that a TC’s failure to award a sum sufficient to allow a spouse to meet her needs without requiring that she depend on the generosity of family and friends was plainly an abuse of discretion. CA held that TC clearly erred, as its Order did not address the issue of Ex-Wife's current standard of living versus the lifestyle she shared with Ex-Husband during their marriage. TC’s order affirmed in part, vacated in part, and remanded with instructions to TC to review maintenance award.
As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

M.B. v. D.W., Termination Of Parental Rights Of Transgendered Parent

M.B. v. D.W. ___S.W. 3d ___ (Ky. App. 2007), decided September 21, 2007.

TC granted a petition for adoption, which thereby terminated Father’s parental rights. The TC held, pursuant to statutory authority, that termination was appropriate because the child had suffered neglect and emotional harm. TC reasoned that the harm resulted from father’s failure to appropriately prepare the child, mentally, for the effects of his gender reassignment surgery. Due to the harm inflicted on the child it was in her best interest to grant the petition for adoption. Additionally, the TC held that Father had failed to financially support the child because he had not been paying his share of her insurance and medical expenses.
CA held, TC’s decision was supported by substantial evidence. Therefore, the court's decision to terminate parental rights and grant the adoption was not clearly erroneous. CA also opined that Father failed to preserve his argument that less drastic measures should have been taken. Regardless, CA reasoned that TC had made an implied finding that there were no less drastic measures. Finally, CA stated that it was not holding that gender reassignment is itself grounds for termination of parental rights. Instead, the CA stated that it was upholding TC’s decision because all of the statutory elements were meet and supported by substantial evidence.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates.

Bissell v. Baumgardner, DVO and Emergency Custody Jurisdiction; Recusal

Bissell v. Baumgardner, ___S.W. 3d ___ (Ky. App. 2007), decided September 21, 2007

Husband appealed a DVO, which awarded temporary custody of the parties’ child to Wife. Husband argued the court did not have personal or subject matter jurisdiction to enter the order. Husband also argued the judge should have recused himself. CA held that the court did have jurisdiction and the judge's failure to recuse himself was not error.
The parties lived in KY but moved to UT. Eventually, they filed for divorce and Wife moved back to KY. While returning the parties’ child to Wife, after weekend visitation, Husband threatened to shoot Wife. Wife filed a domestic violence petition and an EPO was granted. Wife’s stepfather, a former judge, attended the DVO hearing with Wife. Husband requested the judge recuse himself because Wife’s stepfather had contributed to the judge’s campaign. The judge refused to recuse himself and entered a DVO awarding Wife temporary custody of the child. The judge orally stated that the temporary custody order was subject to modification by the UT court. The judge, however, did not include this finding in his written order.
CA held that the TC had both personal and subject matter jurisdiction to enter the order. CA opined that TC had subject matter jurisdiction because KY courts have jurisdiction to enter EPOs and DVOs to anyone who is a resident of KY or has fled to KY to escape domestic violence. CA reasoned that Wife had re-established her KY residency, therefore, the TC had subject matter jurisdiction. CA also opined that the TC had personal jurisdiction because Husband made the threat on Wife’s life in KY. The CA, however, remanded the case and instructed the TC to alter its’ written order to reflect that the temporary custody award was made based on TC’s temporary emergency jurisdiction. Also, the written order should acknowledge that any other custody issues should be addressed by the UT court. Finally, CA held that the TC judge’s refusal to recuse himself was not error. There was no indication from the record that the judge was biased and a judge is not required to recuse himself just because a party or their counsel has made contributions to the judge’s campaign.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates.

Shown v. Shown, Teacher's Retirement Exclusion Where Other Spouse Has SEP IRA

Shown v. Shown, ___S.W.3d__ (Ky. 2007)

PUBLISHED: REVERSING
PANEL: SCOTT PRESIDING; MINTON, NOBLE AND SCHRODER CONCURRING; CUNNINGHAM CONCURRING IN RESULT ONLY; ABRAMSON NOT SITTING
COUNTY: OHIO
DATE RENDERED: 9/20/2007

Ex-Wife appealed to SC from CA opinion that affirmed TC’s order providing that Ex-Husband’s Kentucky Teacher's Retirement Account would be fully excluded from classification and division of the parties’ marital property pursuant to KRS 161.700(2). Ex-Wife argued to SC that both TC and CA erred in failing to give effect to the provisions set forth in KRS 403.190(4).

At time of trial, Ex-Husband had approximately $81,410 in his KTRS account while Ex-Wife had approximately $1,896 in her Fidelity Simplified Employee Pension (SEP-IRA). Ex-Husband argued to TC that his KTRS account was exempt from classification and division as marital property under KRS 161.700(2), while Ex-Wife argued her SEP-IRA qualified as a retirement account and therefore KRS 403.190(4) overrode KRS 161.700(2) and operated to limit the amount of the KTRS funds that Ex-Husband could claim as exempt. CA affirmed TC’s opinion, holding that KRS 403.190(4) and KRS 161 .700(2) were in conflict, and thus, pursuant to principles of statutory construction, the exemption provisions set forth in KRS 161.700(2) would control over the provisions set forth in KRS 403.190(4). CA held that, alternatively, KRS 403.190(4) is inapplicable unless both spouses have an account that qualifies as a "retirement-benefit" as is defined in KRS 403.190(4), and held that Ex-Wife’s SEP-IRA was not such a "retirement benefit" as defined in that statute.

SC found no conflict between the two statutes. SC held that KRS 161.700(2) specifically exempted the KTRS retirement benefits accumulated by Ex-Husband during the marriage from being classified and divided upon divorce, but that the language set forth in KRS 403.190(4) clearly anticipates statutes such as KRS 161.700(2) and thus, by the plain language of the statute, KRS 403.190(4) is meant to be read in conjunction, not in conflict with, KRS 161.700(2). Furthermore, SC held that any retirement plan that is covered by ERISA is subject to the application of KRS 403.190(4), and as Ex-Wife’s SEP IRA was an employer funded plan covered by ERISA, KRS 403.190(4) applied to the classification and divisibility of the parties’ retirement accounts.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

Building a Successful Family Law Practice: ABA Tel Seminar September 26, 2007

Over lunch a few years ago at an ABA Family Law Section meeting in Seattle, I remember Mark Chinn singing the praises of his business coach, Atticus. You can hear Mark Chinn and Mark Powers of Atticus in a telephone seminar on Wednesday, September 26. Registration here. Info on Mark Chinn from his website:

Mark Chinn operates a four lawyer firm in Jackson, Mississippi dedicated solely to Family Law and is author of How to Build and Manage a Family Law Practice, published by the American Bar Association in 2006, and The Constructive Divorce, published by the ABA in 2007. He is also a contributing author in How to Capture and Keep Clients, published by the American Bar Association General Practice Solo Section in 2005 and 101 Practical Solutions for the Family Lawyer, published by the ABA Family Law Section.

Kentucky Supreme Court and Court of Appeals Published Decisions This Week

We are going to try to get you the new "to be published" family law cases sooner than in the past. Digests will follow, but here are the three Court of Appeals cases released today and one Supreme Court decision from yesterday, in case you want to link to the entire opinions.
M.B. v. V. W., transgender parent's parental rights involuntarily terminated and adoption by step-parent permitted without consent of transgender parent.
Bailey v. Bailey, maintenance award cannot include consideration of college expenses for child (court can't do indirectly what it cannot do directly.)
Clark v. Clark, geriatric couple's maintenance and property decision affirmed in part, vacated and remanded in part.
Yesterday, the Kentucky Supreme Court released Shown v. Shown, an important teacher’s retirement case.

AAML Chicago Annual Meeting And Seminar, November 7-10, 2007

Here is the seminar agenda for the AAML Chicago meeting:

THURSDAY, NOVEMBER 8, 2007

8:30 – 9:45 a.m.

Topic: “IMPAIRMENT AFFECTING THE CLIENT LITIGATOR, Or SELF INCLUDING BIPOLAR DISORDER, DEPRESSION, BORDERLINE PERSONALITY DISORDER and SUBSTANCE ABUSE (Prescription Drugs, Designer Drugs, Street Drugs and alcohol)”

Speaker: Barbara Nunneley
Hurst, TX

9:45 – 10:15 a.m. PANEL DISCUSSION

Topics: “DRUG TESTING INVOLVING URINALYSIS, 5 PANEL HAIR FOLLICLE TESTS and the SWEAT PATCH”

“RECOGNIZING, TREATING and DEALING WITH the IMPAIRED CLIENT
(OR OPPOSING COUNSEL)”

“ISSUES and SOLUTIONS FROM the LAWYER’S PERSPECTIVE, the PSYCHIATRIST'S PERSPECTIVE, and the HEALTH CARE PROVIDER’S PERSPECTIVE”

Speakers: Phyllis Ambile
Chicago, IL

Barbara Handschu
Buffalo, NY and NYC

Barbara Nunneley
Hurst, TX

FRIDAY, NOVEMBER 9, 2007

8:30 – 10:00 a.m. “FINDING and ANALYZING ELECTRONIC EVIDENCE”

Speaker: Sharon D. Nelson, Esquire
John Simek
Seinsei Enterprise, Inc.
Fairfax, VA

10:15 – 11:00 a.m. “ADMISSIBILITY OF ELECTRONIC EVIDENCE”

Speaker: Professor Kenneth Broun
University of North Carolina
School of Law
Chapel Hill, NC

11:00 – 12:00 noon “IDENTITY THEFT”

Speaker: Detective Bruce Peterson
Fairfield Police Department
Fairfield, CT

SATURDAY, NOVEMBER 10, 2007

8:30 – 12:00 noon

Topic: “LATEST DEVELOPMENTS in FAMILY LAW TAXATION MATTERS”

Speaker: Melvyn Frumkes
Miami, FL

Topic: “COLLABORATIVE LAW vs. TRADITIONAL CLIENT REPRESENTATION –
PROS AND CONS”

Speakers: Joan Jenkins
Houston, TX

Charles Shainberg
Philadelphia, PA

Baird v. Baird, Re-Issuance of Domestic Violence Orders

Baird v. Baird, ___S.W.3d__ (Ky. App. 2007)

Ex-Husband appealed from TC’s order reissuing domestic violence order against him, arguing that there was no evidence to support the DVO. Parties’ 34-year marriage culminated in an incident in which Ex-Husband threw Ex-Wife against a shower wall and held a gun to her head. Ex-Wife moved out of marital residence and the parties divorced in 1997. In 1998, a DVO was entered against Ex-Husband after he threatened to kill Ex-Wife and all her co-workers. DVO expired in 2001, at which time Ex-Husband again began following and threatening Ex-Wife. Another DVO was entered in early 2003, to expire in 2006. A few weeks before this DVO expired, Ex-Wife filed a motion to extend it for another three years. TC did so after a brief hearing. Ex-Husband appealed to CA, and CA rendered unpublished opinion in 2006 vacating the DVO and remanding to TC, noting that what appeared to be the sole ground for re-issuance of the DVO was Ex-Wife’s testimony that life had been “much more peaceful” with DVO in place, and that, on remand, TC should give proper consideration to the restrictiveness of a DVO as well as all the facts and circumstances surrounding the case before rendering a decision. TC held second hearing, and again re-issued DVO. Ex-Husband appealed again.
CA held that TCs have authority to reissue DVOs even in the absence of additional acts of domestic violence and abuse during the prior period. However, there must be some showing of a continuing need for the DVO. CA recognized that TC considered history of domestic violence in the parties’ marriage; that Ex-Husband’s conduct after the marriage left in Ex-Wife in fear; that during the time post-marriage when no DVO was in place, Ex-Husband again began to harass Ex-Wife; and that when CA’s last opinion on this matter was rendered, Ex-Husband attempted to retrieve his guns from the Sheriff’s office even before TC received notice that DVO had been vacated. Thus, CA found that there existed sufficient evidence to reissue the DVO.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

Parenting Coordinators: A Referee for Mom and Dad

A Referee for Mom and Dad: Increasingly, Divorced Couples Enlist Professionals to Help Resolve Parenting Disputes is the title of the article by Rachel Emma Silverman in the Wall Street Journal, September 19, 2007; Page D1 (subcription required for online access). We have no statute in Kentucky regarding parenting coordinators, but in Jefferson County they are authorized by JFRP 707 at pp 85-86, available here. Note that the authority of the PC is only to make recommendations to the court unless the appointment is by agreement. Some quotes from the WSJ:

Generally, parenting coordinators are recommended by family-court judges or lawyers to ex-spouses who are in longstanding disputes. But in some places, such as Oklahoma, courts can mandate the use of a parenting coordinator even if the parents object. The service can get expensive, with coordinators typically charging anywhere from about $50 to $350 an hour.

Some of the issues parenting coordinators help resolve may be minor, but if left unaddressed, they can be the source of nasty fights that wind up in the courthouse, cost thousands of dollars in legal fees and clog family-court dockets. Robert Ross, supervising judge of the Nassau County, N.Y., matrimonial courts, had a case several weeks ago in which one parent was furious that the other parent was taking their child to McDonald's rather than Burger King.

"We have a limited amount of time during the day to deal with really important stuff," says Judge Ross. In the past few years, he says, parenting coordinators have helped reduce visits to his court over relatively small issues.

The article continues,

In the past decade, more states and counties have put in place statutes or programs spelling out rules and qualifications for parenting coordinators, though practices still vary widely across the country. About a dozen states, including Colorado, North Carolina and Oklahoma, now have statutes giving authority to parenting coordinators, most of them also setting rules for how they should practice, says Barbara Bartlett, a Tulsa, Okla., attorney who has tracked the laws. A growing number of jurisdictions, such as some counties in New York and New Jersey, use coordinators regularly even without state statutes.

The Association of Family and Conciliation Courts, a group of family-law and mental-health professionals, issued guidelines in 2005 outlining appropriate practices and training. The group, based in Madison, Wis., also holds parenting-coordinator training sessions around the country. Still, states have yet to adopt formal licensing or accreditation for parenting coordinators.

As the field grows, with wide variation among states and counties in how the coordinators are used, some parents and legal professionals are becoming concerned. Some coordinators may not be well-equipped to handle extremely high-conflict parents or really tough situations involving domestic violence, substance abuse or severe mental illness.

The AFCC guidelines can be accesssed here. The article concludes,

There are some issues that are considered off-limits for parenting coordinators. Generally, courts don't allow them to address major issues that can substantially change the terms of the divorce agreement or affect the rights of parents, such as custody arrangements, relocation decisions or substantial decisions regarding religion. They typically can only decide a range of issues that the parents and the court agree on.

Despite these caveats, some clients say the service has been invaluable.
Jennifer Johnston was divorced several years ago and got along decently with her ex-husband. Earlier this year, however, their young son was in an accident and needed to have part of his leg amputated. "When this came up, there were some pretty big decisions that had to be made. Our communication with each other bottomed out," says Ms. Johnston, 37, an information-technology manager in Atlanta.

Susan Boyan, an Atlanta parenting coordinator and psychologist, helped the two parties work on their communication, encouraging them to limit oral communication and use emails. She also recommended that they tone down sarcasm in emails and avoid using all-capital letters.

"A parenting coordinator has the ability to defuse the emotion," says Ms.
Johnston. "She kept us out of court." That, she notes, is "hugely beneficial to our son. Anything we can do to keep him away from additional conflict and keep his life stable is good." Her ex-husband didn't respond to a request for an interview via an intermediary.

Shively v. Shively, Division of Marital Property, Post Separation Team Effort

Shively v. Shively,___S.W.3d___(Ky. App. 2007)

Ex-Wife appealed TC’s division of marital property, arguing that division was not in “just proportions,” as TC’s division of property earned between date of separation and date of decree was not equal. While working full-time for Brown & Williamson during marriage, Ex-Husband attended law school and Brown & Williamson paid his law-school tuition and expenses. In 2003, he began work at a law firm where B&W was his primary client while B&W closed its Louisville, KY offices to move out of state. Ex-Husband’s income drastically increased as a result of this work to over $500,000 in 2004. However, by the time of the trial, B&W’s move was nearly complete and Ex-Husband received very little income from this source and was building up a construction law practice. During the marriage and at the time of the trial, Ex-Wife was employed as a senior tax manager, earning approximately $115,000 annually. After the parties’ separation in October 2004, Ex-Wife discontinued contributions to utilities and mortgage payments on the marital residence, and both parties continued to share homemaker and parenting duties until the time of trial. TC equally divided property earned up to the date of separation; however, although it declared that the property earned between the date of separation and the date of decree was marital property, it allocated a substantially larger portion of this marital property to Ex-Husband. TC found that equal division of the property earned up to the date of separation would leave each party in good financial circumstances and that it was “just” to allow each party to keep the income earned after the date of separation and the assets purchased with that income.
Ex-Wife first contended to CA that unequal distribution of post-separation income and assets did not represent a division in “just proportions.” CA disagreed with Ex-Wife that post-separation assets must be divided in same proportion as pre-separation assets or divided equally. Citing Stallings v. Stallings, CA noted that making a division in “just proportions” requires TC to consider the factors of 403.190(1)(a)-(d), one factor of which requires consideration of the contribution of each spouse to the acquisition of the property. CA found that TC properly considered these factors in making its division, and found no error.
Ex-Wife also contended that TC failed to consider her contribution to Ex-Husband’s law degree when dividing the post-separation assets. CA noted that, although a professional degree is not marital property, it can be considered an asset of the marriage in determining the parties’ respective contributions when dividing marital property. CA held that TC appropriately considered Ex-Wife’s claim to contribution towards the law degree, and that TC properly rejected her claim, as Ex-Husband’s law school tuition was paid for by B&W, the degree was obtained without a break in his employment, he continued parenting duties while in law school, and Ex-Wife continued to advance her career during that time. TC’s division of property affirmed.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

Corrected Dates For 2008 Idea Festival

The 2008 date for Idea Festival previously posted were pulled from its website, but apparently an old version lingering out in cyberspace. Embarrassing long story short, Stephanie West Allen received a comment from a reader, passed it on to me, I called the Idea Festival office, so now you have the correct dates.

Maryland Rejects Same Sex Marriage

All 224 pages of Maryland's highest court decision in Conaway v. Deane that there is no fundamental right to marry someone of the same sex, that same sex orientation is not a suspect or quasi-suspect class, that denial of same sex marriage is not a violation of equal protection and that denial of the right to marry someone of the same sex served a legitimate governmental objective can be found here.

More On Evolving Paternity Law

The day after the Kentucky Supreme Court held oral arguments on two paternity cases as we reported here, the Michigan Court of Appeals decided Brooks v. Brooks. Jeanne Hannah of Updates In Michigan Family Law posts Nellie Bar The Door: Part II, a sequel to Nellie Bar The Door!. Although Brooks is an unpublished decision, her alarm demonstrates Kentucky is not the only state that, having failed to enact the Uniform Parentage Act , is wrestling with these hugely important paternity questions.

Someone told me that the oral arguments held at the University of Kentucky were going to be streamed online. I haven't found them, so if they are posted, I would very much like to know where.

An interesting development is that Hon. Lisabeth Hughes Abramson, author of the Court of Appeals opinion in Boone v. Ballinger, was installed on the Kentucky Supreme Court as Justice McAnulty's replacement just days before the duo of paternity oral arguments were held. If one is looking to guess where the Kentucky Supreme Court will land on this issue, my bet is that Justice Abramson will lead.

Calling Lawyers Who Blog: Idea Festival, Louisville, Ky September 25 -27, 2008

Idealawg's Stephanie West Allen and I are coordinating a gathering of lawyers who blog at next year's Idea Festival. Of course the "Idea" in Stephanie's blawg name is no accident, and this festival is right up her alley, as she posted here. My suspicions are that most lawyers who have blogs are innovative creative thinkers who will find nirvana at this conference.

It's more than a year away, so you have several options. Mark it off on your calendar. Subscribe to the Idea Festival email to stay abreast of what will be on the agenda. If you seriously think you may want to come, make a hotel reservation at 21C Museum Hotel soon. There are many other very nice hotels in the area, of course, but if you are cutting edge and love art and the offbeat, you will be absolutely delighted by this 91 room boutique hotel.

The most you could spend at this year's festival was $260 for an all event pass, including a cocktail buffet and two dinners, and most sessions were free so it is not budget busting. You won't need a rental car because everything is within walking distance and there are courtesy Geek Squad cars for short hops. And the company? Awesome. My recommendation? Splurge on the hotel.

For past posts on the 2007 shebang, see Day 3, Day 2 and Day 1.

As our New Zealand friend Geoff Sharp of Mediator blah...blah... said a year ago in announcing the LEADR conference here, "Where The Bloody Hell Are You? ...(get outta here! no one believes you're booked up already)...Come see us, talk with us - we've poured you a beer." If you prefer, being in Kentucky, we'll make it a mint julep, albeit with foam, ladled with liquid nitrogen, garnished with a sugar encrusted sprig of mint, printed on no calorie paper. Stephanie and I look forward to meeting and to seeing you in person.

Check out Stephanie's invitation here.

Miller v. McGinty, Attorney Fees, Rules of Civil Procedure

Miller v. McGinty, ___S.W.3d___(Ky. App. 2007)

Ex-husband appealed order of TC requiring him, pursuant to KRS 403.220 and CR 37, to pay $8,500 of attorney fees to Ex-wife, claiming that TC failed to consider the financial resources of both parties as required by KRS 403.320 and that CR 37 and the holding of Lampton v. Lampton, 721 S.W.2d 736, 739 (Ky. App. 1986) were inapplicable to the facts of his case.

When Ex-Wife initially filed her Petition for Dissolution, she was unaware of Ex-Husband’s address. She therefore attempted service through a Warning Order attorney. Darren resided in Utah, was a member of the Air National Guard, and unknown to Ex-Wife, was stationed in Iraq at the time she filed for divorce. The Warning Order Attorney filed his report and, subsequently, a default hearing was held, resulting in TC’s issuance of findings of fact, conclusions of law, and decree of divorce. Ex-Husband then filed a Motion to Alter, Amend or Vacate this Order on the basis that Ex-Husband had not been properly served. TC granted the motion, Ex-Wife served Ex-Husband through Secretary of State, and new trial was held. TC divided property and debts and ordered Husband to pay $8,500 of Ex-Wife’s attorney fees.

Ex-Husband first contended that TC failed to consider the financial resources of the parties before awarding attorney's fees to Ex-Wife. CA noted that although a trial court is not required to make specific findings on the parties' financial resources, TC must consider the financial resources of the parties before ordering an award of attorney’s fees. Further, KRS 403.220 requires a showing of an imbalance in the financial resources of the respective parties. In this case, TC expressly stated that no evidence was submitted concerning the parties' financial resources, requiring the court to make assumptions from evidence submitted regarding the financial circumstances at the time of the marriage as to the status of their financial resources at the time of trial, though the parties had been separated for over 3 years and divorced for 2 years. CA held that the financial situations of the parties during their marriage were too remote in time for the court to make such a finding based on this evidence, and TC abused its discretion in making award of attorney fees without first considering the parties' financial resources at the time that the court entered its order. CA vacated attorney fee award under KRS 403.220 and remanded issue to TC.

Ex-Husband next asserted that TC erred by basing the attorney fee award on the case law of Lampton and CR 37, as they are inapplicable to a party's failure to voluntarily submit to personal jurisdiction. CR 37, which is titled "Failure to Make Discovery; Sanctions," permits a court to award attorney's fees as a sanction against a party who fails to conduct discovery or abide by discovery rules. In Lampton, CA implied that an award of attorney's fees under CR 37 is appropriate if the award is motivated by the party's obstruction of and refusal to cooperate with discovery. In this case, TC provided that an award of attorney's fees under CR 37 was appropriate due to Ex-Husband’s irresponsibility with regard to the parties' financial matters. CA held that this reasoning had no connection to discovery proceedings in the case. Furthermore, Ex-Husband’s failure to submit to TC’s jurisdiction despite his knowledge of the case also held no connection to CR 37 nor merited an award of attorney fees under any rule or statute, as there is no requirement in Kentucky that a defendant submit to the court’s jurisdiction once he gains knowledge of the action. CA reversed any portion of the attorney fee award based on CR 37.

Ex-Husband also alleged that if TC had the authority to award attorney's fees in this case, the reasonableness of the fees awarded was improperly analyzed by TC. CA held this claim to be moot as it had vacated the award.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

T.N.H. v. J.L.H., Termination of Parental Rights When Parent Is A Minor

UPDATED 11/08: The Kentucky Supreme Court has accepted discretionary review of this case. T.N.H. V. J.L.H., ___S.W.2d___ (Ky. App. 2007)

Mom appealed TC’s judgment terminating her parental rights to child, and Cabinet appealed TC’s order for Cabinet to pay mother’s appellate attorney fees and her filing fees.

FACTS:
At the age of fourteen, Mom gave birth to Son, and, shortly after the birth, Cabinet filed Petition for dependency and neglect alleging that Mom was neglecting Son. Mom and Son were initially placed in custody of maternal aunt, but one month later, both Mom and Son were voluntarily committed to Cabinet’s custody. Mom and Son were placed in a foster home. However, after Mom was disruptive at the home, ran away, did not participate in care of Son, and was dismissed from school, she was placed in the first of a series of homes for troubled teens. At each of these homes, Mom had periods of positive behavior, such as participation in counseling and parenting classes, high school classes, and part-time employment; and negative behavior, such as instigating fights and prolonged absences from the homes, during which she would have contact with an abusive boyfriend. One and a half years after the initial Petition was filed, the Cabinet filed a Petition to terminate Mom’s rights to Son, and foster parents were prepared to adopt Son. GALs were appointed for both Mom and Son. The Cabinet called only one witness, the social worker responsible for the family’s case. He testified that Mom was detached from Son and had not been fully cooperative in parenting programs. He admitted that Mom had made progress in developing parenting skills since the initial petition was filed, but that that progress was insufficient for her to act as Son’s parent. The Cabinet presented no psychological assessments, no evidence concerning Mom’s mental capacity, and no evidence regarding the likelihood that Mom might develop necessary parenting skills. Mom’s aunt testified on her behalf that Mom had made progress and was capable of caring for Son. TC terminated Mom’s parental rights. After TC denied Mom’s motion to alter, amend, or vacate, Mom requested TC to order Cabinet to pay her appellate filing fees and attorney fees. After several cross-motions, TC ultimately held Cabinet in contempt for failing to pay appellate filing fee, appointed appellate counsel for Mom and ordered Cabinet to pay Mom’s appellate counsel’s fee.

ANALYSIS:
Standard of review in termination of parental rights cases is the clearly erroneous standard based upon clear and convincing evidence. In addition to several claims of error based on procedural flaws, rejected by CA, Mom also claimed that because the filing of the Petition was not in Mom’s best interests, the Cabinet breached its duty to her. CA found that where both parent and child are in Cabinet’s custody and the Cabinet seeks termination of the parent’s rights, there should be a statutory procedure for appointment of an independent person to protect the parent’s best interests, and that it would be appropriate for the legislature to take up the matter. However, CA held that the more problematic issue in this case was the Cabinet’s failure to meet its burden of proof, which was Mom’s last contention of error. CA held that, “It is well established in our law and recognized in society in general that juveniles are often plagued by their inexperience, poor decision-making skills, and lack of appreciation for the consequences of their actions. As a result, a juvenile is not held to the same standards of conduct as an adult or to the same punishments. Yet, in this case, we are convinced that mother's rights were terminated based solely on her past conduct as a juvenile with no consideration as to her future parenting abilities. Just as incarceration alone cannot serve as the basis for termination, nor can the young age of the parent, by itself, be sufficient. In cases such as this, where the parent's age and emotional immaturity undeniably contribute to her lack of parenting skills, we believe that termination must not be based solely on the parent's prior behavior without some objective assessment of her psychological and mental capacity to develop the required abilities to effectively parent a child.” In response to the Cabinet’s argument that termination was founded on Mom’s abandonment of Son, CA found that because Mom had relinquished custody of Son to the Cabinet when he was three months old and since that time had never had custody of the child, there was no clear and convincing evidence of abandonment. Cabinet’s remaining ground for termination was that Son had been in foster care under the responsibility of the Cabinet for fifteen of the most recent twenty-two months. CA held that although this fact was not in dispute, it was attributable to mother's age rather than any action on her part. CA expressed concern that if the time of commitment can serve as a basis for termination in cases such as this, young parents would be discouraged from committing their children to the Cabinet, though this may be in his or her child’s best interests for the short term. CA suggested that patience with the parent/child was required in such instances so that the state does not prematurely terminate the parent's rights. CA recommended that, in the future, in similar cases, the Cabinet should present TC with expert testimony as to the likelihood that when the teen reaches adulthood, the parent would not be able to effectively parent the child. Termination judgment vacated.

CA agreed with the Cabinet that the award of appellate filing and attorney fees to Mom constituted error and reversed this Order. By statute, the maximum award of $500 serves as the cap on attorney fees, whether the services are rendered at trial, or on appeal, or both. KRS 610.060(4) specifically states that the “fact that a child is committed to a state agency shall not be cause for the court to order that agency to pay for counsel.” There is no contrary provision for wards in termination proceedings. CA held that since $500 is the maximum that could be awarded to appointed counsel and, since that was exhausted at the trial level, TC erred when it ordered the Cabinet to pay mother's appellate attorney fees. TC also ordered the Cabinet pay her appellate filing fee. CA found no statutory provision which permits the court to require that the Cabinet pay the fee. CA held that as an indigent, mother should have filed a motion to proceed in forma pauperis in the circuit court, and could have thus avoided the fee. Order awarding attorney fees and appellant filing fee vacated.

DISSENT:
“Where the statutory factors under KRS 625.090 are otherwise met, unlike the majority, I am not of the opinion that if a parent's negative behavior is attributable to her immaturity, that termination is premature where the parent is reasonably likely to develop necessary parenting skills with a reasonable time after entering adulthood. I appreciate the majority's qualifier of “reasonableness” in reference to time limitations for a young parent to develop parenting skills. However, my view is that age does not excuse the mother from any of her parenting duties whatsoever for any time period, and especially does not excuse her for her overall failure to be a responsible parent for almost all of her son's entire life.”

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Idea Festival Day 3

The day began with The Internet is NOT Flat . Ethan Zuckerman was joined by international bloggers Amira Al Hussaini, former news editor of leading Bahrain newspaper Gulf Daily News and now Middle East and North Africa editor of Global Voices and Georgia Poppelwell to discuss fascinating international bridge building and discourse occurring on the internet. Al Hussaini blogged here about her appearance on Thursday in a slot on a panel vacated by Iranian Nobel Prize laureate Shirin Ebadi after the Mullas in Iran refused to give her permission to attend. You can read a nearly verbatim account of Zuckerman's talk here. Wayne Hall covers the trio here. It was the only presentation where I felt a bit of an equal, as I watched the same glazed eyes in this audience that I see when I talk about RSS feed!

My smugness was promptly shattered by the next talk, Parallel Worlds, Higher Dimensions, Time Warps and more...by Michio Kaku, leading theoretical physicist at City University of New York and author of several best- selling books including Hyperspace: A Scientific Odyssey Through Parallel Universes, Time Warps and the Tenth Dimension and Visions: How Science Will Revolutionize the 21st Century. Wayne Hall digests the talk here and continues with the next presentation, Jeffrey Schwartz on the Mind and Brain here.

Next up was Louisville's own Dan Gediman, executive producer of NPR's This I Believe series. The 30,000 essays he has received to date are up on the website, indexable in a variety of ways.

At the Kentucky Center For The Arts Bombard concert hall psychiatrist and extraordinary pianist Richard Kogan presented West Side Story at 50: The Mind and Music of Leonard Bernstein. Dr. Kogan was quite the raconteur, funny and insightful, and the music was breathtakingly beautiful.

Not much of a science fiction fan, I skipped the dinner with Ray Bradbury, but now wish I had stayed to see him "beamed in" by hologram. His presentation was covered by the Courier-Journal and the IF Blog.

You might ask, who in the world assembled these world class speakers and puts on this annual event? Kris Kimmel, president of Kentucky Science and Technology Corporation. He may have a host of other talents, but he certainly is an event planner extraordinaire. Most of the events were free.
UPDATE: In my corner of the blogosphere, Stephanie Allen West at Idealawg posts Talks by Ray Bradbury, Jeffrey Schwartz, Michio Kaku, Laurence Gonzales, and more

Tell-All PCs and Phones Transforming Divorce

Here are some quotes from a front page New York Times article today, Tell-All PCs and Phones Transforming Divorce.

Divorce lawyers routinely set out to find every bit of private data about their clients’ adversaries, often hiring investigators with sophisticated digital forensic tools to snoop into household computers.

“In just about every case now, to some extent, there is some electronic evidence,” said Gaetano Ferro, president of the American Academy of Matrimonial Lawyers, who also runs seminars on gathering electronic evidence. “It has completely changed our field.”

Privacy advocates have grown increasingly worried that digital tools are giving governments and powerful corporations the ability to peek into peoples’ lives as never before. But the real snoops are often much closer to home.

“Google and Yahoo may know everything, but they don’t really care about you,” said Jacalyn F. Barnett, a Manhattan-based divorce lawyer. “No one cares more about the things you do than the person that used to be married to you.”

The article continues,

Divorce lawyers say their files are filled with cases like these. Three-quarters of the cases of Nancy Chemtob, a divorce lawyer in Manhattan, now involve some kind of electronic communications. She says she routinely asks judges for court orders to seize and copy the hard drives in the computers of her clients’ spouses, particularly if there is an opportunity to glimpse a couple’s full financial picture, or a parent’s suitability to be the custodian of the children.

Lawyers must navigate a complex legal landscape governing the admissibility of this kind of electronic evidence. Different laws define when it is illegal to get access to information stored on a computer in the home, log into someone else’s e-mail account, or listen in on phone calls.

Divorce lawyers say, however, if the computer in question is shared by the whole family, or couples have revealed their passwords to each other, reading a spouse’s e-mail messages and introducing them as evidence in a divorce case is often allowed.

Lynne Z. Gold-Bikin, a Pennsylvania divorce lawyer, describes one client, a man, who believed his wife was engaging in secret online correspondence. He found e-mail messages to a lover in Australia that she had sent from a private AOL account on the family computer. Her lawyer then challenged the use of this evidence in court. Ms. Gold-Bikin’s client won the dispute and an advantageous settlement.

Lawyers say the only communications that are consistently protected in a spouse’s private e-mail account are the messages to and from the lawyers themselves, which are covered by lawyer-client privilege.

Perhaps for this reason, divorce lawyers as a group are among the most pessimistic when it comes to assessing the overall state of privacy in the digital age.

“I do not like to put things on e-mail,” said David Levy, a Chicago divorce lawyer. “There’s no way it’s private. Nothing is fully protected once you hit the send button.”

Ms. Chemtob added, “People have an expectation of privacy that is completely unrealistic.”

James Mulvaney agrees. A private investigator, Mr. Mulvaney now devotes much of his time to poking through the computer records of divorcing spouses, on behalf of divorce lawyers. One of his specialties is retrieving files, like bank records and e-mail messages to secret lovers, that a spouse has tried to delete.

“Every keystroke on your computer is there, forever and ever,” Mr. Mulvaney said.

He had one bit of advice. “The only thing you can truly erase these things with is a specialty Smith & Wesson product,” he said. “Throw your computer into the air and play skeet with it.”

I was pleased to see Guy Ferro, AAML president quoted in the article as well as Lynne Gold-Bickin who is coming to present at our seminar in Louisville next April and David Levy, who was here this past April and with whom I am co-counseling on a case. I may post more in the coming days about the law in this area. Meanwhile, thanks to Marcia Oddi at Indiana Law Blog for spotting this article and posting about it here while I was out having a grand old time at Idea Festival.

Idea Festival Day 2

My favorite quotes of the day include "A master in the art of living draws no sharp distinction between work and play" (source anonymous but shared by robotics whiz, James McLurkin), "Why fill my mind with useless facts when I can look it up?" (Einstein, who didn't know his own phone number) and "it takes creativity to make something, it takes moxie to make it matter" by New Zealand fashion designer Karen Walker. Dr. Neville-Manning from Google distilled his wisdom into five simple concepts: 1. think broadly, 2. enable others, 3. use deep technology, 4. build for scale and 5. detect trends.

Highlights included Google World, presented by Dr.Craig Nevill-Manning of Google. This morning's Courier Journal covered Apple co-founder Wozniak lives life full of bright ideas, but great in-depth coverage can be found, not surprisingly, on blogs. Ethan Zuckerman, a research fellow at Harvard Law School, Day 3's opening speaker and a founder of Global Voices, extensively posted on Day 2's events:
Idea Festival: Woz. Wow.
Idea Festival: Swarmed by Robots
Idea Festival: Barrington Irving, flying solo
Idea Festival: Tiffany Shlain’s web of ideas
Idea Festival: Craig Nevill-Manning and the secrets of Google’s success
He also posted on a Day 1 event that I haven't previously mentioned:
Idea festival: Pictures of peace
Evgeny Morozov posted about:
Ned Kahn at Idea Festival: Master of Turbulence
Karen Walker at Idea Festival: Meaning of Fashion
James McLurkin at Idea Festival: Distributed Robotics and Swarm Behavior
Tiffany Shlain at Idea Festival: Interdependence and Colony Collapse Disorder
and from Day 1, Cameron Sinclair at Idea Festival: Creating Social Capital Through Architecture
Wayne Hall posted Karen Walker's fashion rules, James McLurkin: Dances with Robots, The aesthetics of turbulence , Laurence Gonzales on "intelligent mistakes" and Geek Squad blogging IF.
This festival is fabulous. Not only will I return next year, but we will close the office so everyone can attend.

Bailey v. Bailey

Bailey v. Bailey, ___S.W. 3d ___(Ky. App. 2007)

Wife filed an action against Husband seeking to enforce their Separation Agreement which required him to pay for their children’s health and dental insurance and for the parties to split any remaining amounts owed. Also, she sought monetary damages resulting from Husband’s failure to transfer the marital residence to her as required by the Separation Agreement. Finally, she sought reimbursement for half of the funeral expenses incurred due to the death of one of their children.
On appeal, Wife argued that TC erred when it applied principles of equity in its interpretation of enforcing the separation agreement rather than enforcing it as a contract. CA held that TC should have enforced the agreement as contract terms. CA reasoned that the separation agreement was found by the original TC not to be unconscionable. Therefore, the agreement could not be modified unless shown to be unconscionable and there was no such showing. Additionally, by statute the terms of the agreement are enforceable as contract terms.

With regard to the medical bills, CA held that TC erred in its findings that Wife did not present adequate evidence that husband failed to maintain health insurance on the children. Additionally, CA found TC erred in finding that Wife had not provided husband with sufficient notice of the amounts he owed. Wife introduced evidence that the children had received medical treatment and the bills were submitted to Husband’s insurance. However, the bills were not paid because the coverage was not active at the time the treatment was rendered. Also, Wife produced bills showing that she carried health insurance on the children. CA opined that TC’s finding that Wife did not present sufficient evidence to prove her claim that Husband failed to maintain health insurance on the children was clearly erroneous. Furthermore, TC’s holding that it would be inequitable to award Wife damages for past medical bills was in error. Again, CA stated that it was improper to apply principles of equity in interpreting the parties Separation Agreement.

Next, CA addressed the requirement, set forth in the Settlement Agreement, that Husband transfer his interest in the marital residence to Wife. The Settlement Agreement required Husband to sign a quitclaim deed within 10 days of entry of the Decree, which he failed to do. Wife’s employer offered her an opportunity to relocate. As part of the relocation plan, Wife’s employer would pay some of the expenses of selling her home. Husband signed the quitclaim deed in time for the closing on the home. However, this was four years after he was supposed to deed his interest to Wife. Wife claimed this failure cost her a substantial amount of money. TC found that Wife was not entitled to reimbursement because Husband signed the deed in time for the home to be sold and in time for Wife to qualify for reimbursement from her employer. CA held yet again, that the Settlement Agreement was a contract and it was clearly erroneous for TC to find that Husband did not breach the Agreement. CA remanded for a hearing to determine if Husband’s breach of the contract caused Wife to incur economic damages.

Finally, CA held TC’s dismissal of Wife’s claim for half of the funeral expenses was clearly erroneous. The parties signed a contract with the funeral home agreeing that they would each pay half of the funeral expenses. Wife’s family initially paid the funeral home and then wife repaid her family. She argued that Husband had never paid his portion of the expenses. TC dismissed Wife’s claim opining that Husband correctly raised the defense of res judicata. CA reasoned that because res judicata is an affirmative defense it can be waived if not properly asserted. CA found that there was nothing in the record showing Husband raised the affirmative defense of res judicata. Therefore, TC’s holding was clearly erroneous.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates.

Idea Festival Day 1

There's no telling when anyone at Idea Festival had a more inspiring, thought-provoking day. Who wants to have a contest guessing the average IQ of the speakers? While I took my laptop, there was just too much to absorb and enjoy that I didn't want to write while listening. Running interference at the office by phone and email during breaks didn't allow any other time. Further, two more long days lie ahead. I can't wait to get there tomorrow. Luckily, others were blogging.
Wayne Hall posts:
Money circulation science. (This was a fascinating presentation by Dirk Brockmann, a renowned physicist at Max Planck Institute in Germany. He is using math to predict the spread of infectious disease. His model is premised on, of all things, Wheresgeorge, the web site that tracks dollar bills across time and geography. His colleagues laughed him silly when he first mentioned his hypothesis, teaching us the value of courage in going forward with our ideas, as he has been able to show that by tracking the movement of people by following the money, scientists will more likely to be able to predict the spread of infectious disease. It is also a good lesson in interdisciplinary thinking and research.
Homaro Cantu: eat the menu. (I ate at his Chicago restaurant, Moto, last year while at the AAML conference and was wowed by his chemistry approach to cuisine. The surprise today was that he was an engaging, energizing speaker, inspiring us all to unleash creativity.)
Kristoff speaks on Darfur
Ethan Zuckerman also posted Idea Festival: Kristof on Darfur
In a mere ten minutes each I picked up tons of thoughts for weeks to come with these presentation:Unlocking Your Creative Self: Understanding The How and Why, by Harry Pickens
The First Step to Becoming a Genius...Active Listening: The proven keys to active listening/questioning/probing and how this leads to ideas/solutions that delight and WOW customers!

So, there are a few words and links about three hours and twenty minutes of an exhilarating day. If there's interest, I'll post later about the remainder, all of which was as memorable. Otherwise, I am pretending I am on a great mind vacation.

Cameron v. Cameron

Cameron v. Cameron
Not to be published but accepted for discretionary review.

This divorce action arose out of husband and wife’s second marriage to one another. In the course of divorce proceedings, Husband’s attorney drafted an Agreement dividing all marital and non-marital property equally. Both parties signed the Agreement. Wife was not represented by counsel when she signed. Additionally, the Agreement was not filed at the time of execution. Eventually, Wife filed an answer and counter petition in response to Husband’s petition. She attached the Agreement as an exhibit. Husband contested the Agreement and argued the parties had reconciled after they signed the Agreement or, alternatively, the Agreement was unconscionable. The TC found the parties did not reconcile and the agreement was not unconscionable. The Agreement was incorporated into the final decree. CA affirmed the decision of the TC.
CA reasoned that when an agreement is fully executed, reconciliation does not abrogate the agreement unless that is the parties’ intent. When the terms of an agreement are executory, reconciliation and resumption of cohabitation nullifies the agreement. However, in all instances, “the most important factor in determining whether there has been a reconciliation is the parties’ intentions.”
Husband and Wife had taken a couple of trips to Mexico. Also, Husband testified they had started looking for a house so they could move back in together. Wife testified she had spent the night at husband’s house after the Agreement was signed but her intentions were never to cohabitate again. CA held an attempted reconciliation does not abrogate the Agreement. Therefore, it upheld the decision of the TC.
Also, CA found the Agreement was not unconscionable. Husband argued he thought signing the Agreement would dismiss the divorce action. Wife testified she thought the Agreement explained her portion of the property settlement if they should divorce. CA held that the Agreement may have been a bad bargain, but it was not unconscionable.
Digest by Linda Dixon Bullock, Diana L. Skaggs + Associates

R.V. v. Commonwealth of KY

R.V. v. Commonwealth of KY, ___S.W.3d___, (Ct.App. 2007)

Mother and Father’s parental rights were terminated following a dependency, neglect and abuse action. When the action was initiated in district court, the parents were each appointed counsel. The adjudication and disposition hearings were held together and the court found the child had been neglected. A family case plan was developed and the permanency goal was to return the child to the parents. The parents were ordered to cooperate with the Cabinet and complete all programs and counseling required by the Cabinet. Eventually, the parents’ appointed attorneys were relieved of their duties. Following this, a permanency review was conducted and the goal was changed from return to parent to adoption. At this hearing, the parents were not represented by counsel. Hence, the Cabinet filed a petition for involuntary termination.
Before hearing the termination action, the circuit court appointed separate counsel for the parents. The circuit court then terminated both parents’ parental rights. In its opinion, the circuit court commented that the lack of counsel at the district court hearing changing the goal to adoption was probably a violation of due process. However, the court found this error was not fatal and terminated parental rights. The CA reversed and held it was a violation of due process to change the goal without providing counsel to the parents. The court opined that parents are entitled to “a meaningful opportunity to be heard, including the right to consult with counsel, at goal change and permanency hearings.” Therefore, parental rights may not be terminated unless parents are represented by counsel at every critical stage of the proceeding.
Digest by Linda Dixon Bullock, Diana L. Skaggs + Associates

Nordike, Now Holcomb v. Nordike

Nordike, now Holcomb v. Nordike, ___S.W.3d____ (Ky, 2007)

Husband and Wife’s divorce and custody actions were filed and orders were entered in Kansas. Following a move by Husband to another state, Wife moved to Kentucky. Once in Kentucky, Wife motioned the Kansas court to surrender jurisdiction to Kentucky. Kansas granted Wife’s motion because Kentucky was the current home state of the child, and Kansas was no longer a convenient forum. Wife then sought to register the Kansas decree in Kentucky. Eventually, the parities entered into an agreed order transferring jurisdiction to the Warren Circuit Family Court pursuant to UCCJA. The agreed order stated, “the petition for registration was accepted and all future matters pertaining to custody or visitation of this minor child shall be brought within the Warren Circuit Court.” Following entry, Husband repeatedly availed himself of the Kentucky forum. However, the court only ever addressed the issues of custody and visitation. At some point Wife sent Husband some interrogatories and requested documents seeking financial information. Husband objected arguing that the Kentucky court only had jurisdiction over custody and visitation and the information requested was not relevant to those issues. The TC agreed that the previously entered order only dealt with the issues of custody and visitation and it was unclear what the interrogatories had to do with those issues. Then wife sought to have the court amend its order to include jurisdiction over all issues of child support. She argued that child support was mistakenly omitted from the original order. Husband argued the Kentucky court did not have jurisdiction to hear the child support issue. TC agreed with Husband and held it did not have personal jurisdiction to hear the case. Wife appealed. CA held that the TC lacked both personal and subject matter jurisdiction. The Kentucky S.Ct. then heard the case on discretionary review.
The S.Ct. held that both the TC and CA were correct that the issue was that the TC lacked jurisdiction. However, the S.Ct. opined that there was no justiciable controversy, therefore the TC did not have jurisdiction. This is because there was no action pending before the TC. Wife was not seeking to actually have the child support order modified. Instead, she was requesting that the court modify its original order so that she might in the future have the issue of support addressed. To modify support, Wife needed to either have the Kansas child support decree registered and enforced in Kentucky or registered and modified in Kentucky. Either way, she needed to ask the court to actually do something rather than ask the court to say that it would in the future be willing to do something. Wife was essentially asking the court for an advisory opinion.
Digest by Linda Dixon Bullock, Diana L. Skaggs + Associates

16th Biennial Family Law Institute

University of Kentucky College of Law
Lexington, Kentucky
Thursday, November 1, 2007

Here’s the lineup for this always outstanding seminar:

8:20 a.m. Welcome and Announcements
Tracy J. Taylor
Assistant Director, UK/CLE
Mike Davidson
Davidson & Oeltgen, PLLC
Lexington, Kentucky

8:30 a.m. Biennial Case Law and Legislative Update in Family Law
Professor M. Louise Graham
University of Kentucky
College of Law
Lexington, Kentucky
Professor Andrea Dennis
University of Kentucky
College of Law
Lexington, Kentucky

9:30 a.m. Estate Planning Issues for the Domestic Relations Attorney
Eugene L. Mosley
Mosley, Sauer & Townes
Louisville, Kentucky

10:30 a.m. Morning Break

10:45 a.m. Top Ten Guide/Procedural Primer of Basics in Divorce Practice
Anita M. Britton
Stoll Keenen Ogden PLLC
Lexington, Kentucky

11:30 a.m. 39 Ways to Improve Your QDRO Practice
David Clayton Carrad
QDRO Solutions, Inc.
Augusta, Georgia

12:30 p.m. Lunch Break

1:30 p.m. What’s the Difference?
Corporate, Military and Civil Service Plans
David Clayton Carrad
QDRO Solutions, Inc.
Augusta, Georgia

2:15 p.m. Best Practices for the Difficult
Ethical Dilemmas in Family Practice
Bonnie M. Brown
Attorney at Law
Louisville, Kentucky

3:15 p.m. Afternoon Break

3:25 p.m. Income Tax Refresher for the Domestic
Relations Attorney
Mike Reynolds
Darling & Reynolds, P.S.C.
Lexington, Kentucky

4:15 p.m. Revisiting Fenwick
Louis I. Waterman
Fore, Miller & Schwartz
Louisville, Kentucky
Other Panelists To Be Announced

5:15 p.m. Adjourn Institute

For more information and registration call (859) 257-2921.

Mediation: 40 Sites In 40 Minutes

For presentation at the 9th LEADR International Dispute Resolution Conference, Wellington, NZ later this month, Mediator Blah...Blah...'s Geoff Sharp has scoured the internet and accumulated a great list of mediation and negotiation sites for his topic, 40 Sites In 40 Minutes, online here. You don't have to travel around the world to get the benefit of his leg work.

Idea Festival

I am looking forward to the Idea Festival in Louisville this Thursday, September 13, 2007 through Saturday, September 15, 2007, a time to immerse in creativity, imagination, and pondering the future. This event encourages blogging and even has its own blog, Idea Festival Blog. It's not too late to give the brain an energy boost although a few events are sold out. Passes to all other are available here.

ABA Family Law CLE, Memphis, October 10-13, 2007

2007 Fall CLE Conference, The Peabody, Memphis, TN
Online registration here.
Now for the lineup:

Plenary Sessions

It's Not Just About E-mail: What the Family Trial Lawyer Needs to Know About Electronic Evidence Prior to and During a Trial
This session will address the duties of the client and counsel regarding electronic evidence, what to look for during discovery, and related ethical considerations including preventing the spoliation of electronic evidence. This program will discuss trial admissibility issues that arise concerning electronic evidence as well as issues regarding the Federal Electronic Signatures Act.

Now I Know That the Retainer Was Set Too Low . . . Handling Difficult Substance Abuse and Mental Health Issues
Even difficult issues can be easy to handle when opposing counsel is settlement oriented and the parties are reasonable. However, a substance abuse or mental health issue can make any case a nightmare to handle. With insight from substance abuse and mental health professionals, as well as advice from the trenches, this program will address how to recognize, confront and handle these difficult issues, whether they are occurring with the opposing party, your client, or even opposing counsel.

Family Law—The Intersection with Federal Law
This program will provide the family law lawyer with tools regarding what to do when presented with a family law case that intersects with federal issues such as bankruptcy, immigration, QDROs and QMESCOs.

Committee CLE Programs

Same-Sex Couples and Interstate Recognition: Family Today, Strangers Tomorrow

Post-Divorce Instructions That Your Client Needs to Know—How to Shape Them Up and Ship Them Out

Hidden Assets in the Military Divorce Cases

Beyond Basic Child Support: Financial Planning for Children

I Worked for It, Nurtured It, Sweated for It: It's Mine!

Law Office Management for Divorce Lawyers or How to Look Out for Those Who Look Out for You

Child Custody Jurisdiction: Navigating the Statutory Maze

The Details of a Domestic Violence Trial

A Financial Primer for the Family Law Attorney

Briefs Posted Re Bio-Dad/Husband Cases (KY)

As no discretionary review was sought in Boone V. Ballinger, digested here, the published decision is now final. It would have made a nice trio instead of a duo of oral arguments next week before the Kentucky Supreme Court, as we have reported here and here. Thanks to Kentucky Court Report for posting the briefs filed in the Kentucky Supreme Court.

Being A Husband and Bio-Dad Not Enough To Establish Paternity? Not In New Hampshire If Child Conceived Posthumously

The New Hampshire Supreme Court held last month that a child conceived after her father’s death via artificial insemination is ineligible to inherit from her father as his surviving issue under New Hampshire intestacy law. The facts:

Donna M. Eng and Rumzi Brian Khabbaz were married in September 1989 and, six years later, had a son together. In April 1997, Mr. Khabbaz was diagnosed with a terminal illness. Subsequently, he began to bank his sperm so that his wife could conceive a child through artificial insemination. He also executed a consent form indicating that the sperm could be used by his wife “to achieve a pregnancy” and that it was his “desire and intent to be legally recognized as the father of the child to the fullest extent allowable by law.” Mr. Khabbaz died on May 23, 1998.

Khabbaz v. Commissioner, Social Security Administration (New Hampshire Supreme Court, August 9, 2007), opinion here.

Maine Supreme Court Rules Lesbian Couple May Adopt

The Family Law Prof Blog reports:

The Maine Supreme Judicial Court ruled unanimously today that state law does not preclude unmarried couples from jointly petitioning to adopt a child. The case involved a lesbian couple who had petitioned to adopt a 10-year-old girl and her 6-year-old brother, for whom the couple had been foster parents since 2001.

The court decided the case solely as a matter of statutory construction, reasoning that if it read the statute to prohibit joint petitions by unmarried persons, the statute would still clearly allow successive petitions by unmarried persons, leading to the same end result. "With this in mind, construing section 9-301 as prohibiting a joint petition by unmarried persons elevates form over substance to an illogical degree." In terms of reading the statute to effectuate the purposes of adoption law, the court noted that joint petitions serve the best interests of children in a variety of ways, by insuring continuity of care should one parent die, by enabling access to broader range of benefits from two parents rather than one, and "Most importantly, a joint adoption affords the adopted children the love, nurturing, and support of not one, but two parents."

Adoption of MA (Maine Supreme Court August 30, 2007)

The opinion is online.

I recently met with Christine Sun, an ACLU staff attorney, about our firm doing some pro bono appellate work and this was one issue we would like to see addressed in Kentucky. Same-sex adoption is legal in Indiana as we reported here, linking to an Indiana Law Blog post.

Jefferson County, KY Pro Se Divorce Forms Now In Use

Jefferson divorce packets cut costs is the headline of Jason Riley's front page Courier-Journal story this morning, online here. Over 600 people have started using the forms. As we reported here last spring, Hon. Stephen M. George, Chief Judge, Jefferson Circuit Court, Family Division, was the 2007 recipient of the 1st Annual Family Court Judge of the Year Award presented by the American Academy of Matrimonial Lawyers Kentucky Chapter. Judge George was honored for his efforts in addressing the needs of pro se litigants, inter alia.
Steve Kriegshaber, CLE Chair, presented the award to Judge George.
Beyond helping individuals who cannot afford a divorce, these forms will hopefully help our courts process those cases of individuals proceeding without counsel. People who don't know what they are doing are contributing to the backbreaking clog in our judicial system. Kudos to Judge George and to Melanie Straw-Boone, Chair of the Louisville Bar Association Pro Bono Consortium, who spent long hours with her group developing the forms.

Perfecting Your Role As An Attorney

Robert J. Durst, Chair and Shareholder of Stark & Stark's Divorce Group (NJ Law Blog) and active AAML Fellow, authored the article Perfecting Your Role As An Attorney, for the August 13, 2007 Family Law supplement of the New Jersey Law Journal, online here. The short article is a great trial practice primer/reminder for those family law practitioners lapsing into less than stellar advocacy.

Kentucky Summit On Children; Regional Dates Announced

The Kentucky Law Review has been covering the Kentucky Summit on Children:

Here are the dates for upcoming Regional Kentucky Summits on Children

Ky Youth Summit: "Real Protection for Kids" (CJ Ed.)

Kentucky's Summit on Children Held Aug. 27-29 with Regional Summits in the future