Divorce Law Journal

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

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

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

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

The Morning After Bio-Dads Lose Big In Kentucky

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

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

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

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

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

Judge Montano's Passing; Courts Closed On Friday

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

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

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

Father Who Claims To Be Atheist Sues To Keep Son Out Of St. Xavier High School

Front page news in the Courier-Journal today, Atheist father sues to keep son out of St. Xavier High School. As Sandra Ragland represents mom, I'll stay mum on this blog.

Court Orders Blog Post By Divorce Litigant Removed

Thanks to Indiana Law Blog for spotting and posting HUSBAND POSTS ABOUT PENDING DIVORCE IN BLOG, COURT ORDERS POSTING REMOVED. Check it out.

Sad News

Last night the home of Tulsa attorney spouses Jim Lang and Sharon Corbitt caught fire. Jim is dead and Sharon is hospitalized in serious condition. As many of you may know, Sharon is a past chair of the ABA Family Law Section and an AAML Fellow.
UPDATE:
Associated Press - December 19, 2007 2:25 PM ET
TULSA, Okla. (AP) - The death toll from the ice storm is up to 28 with the death of a Tulsa attorney who was critically injured in a house fire that already killed her husband. Friends of Sharon Corbitt say Corbitt has died of injuries suffered in the fire.
Corbitt's husband and fellow Tulsa attorney Jim Lang also died in the fire.
What a huge, sad loss for the family law bar.

Courier-Journal Reports On KY Duped Dad Decision

Andrew Wolfson's story, Man who was deceived about paternity retains custody online in today's Courier-Journal reports:

The Kentucky Supreme Court has ruled that people who deceive their spouses into thinking that a child is theirs cannot later contest their right to custody -- even if DNA tests show they are not the parent.

The court unanimously upheld a lower court ruling granting primary custody to Ren Ricky Hinshaw, whose wife led him to believe he was the father of their child until they divorced and she produced genetic testing showing the child wasn't his.

What caught my eye in the article was the statement, The Supreme Court said that if Hinshaw had known that he wasn't the father when the child was born, he could have tried to adopt him. Perhaps this footnote us some insight into where the court is heading as it considers the other husband/bio dad pending case argued the same day but not yet decided.

DLJ reported on the Hinshaw decision and linked to the opinion here. A long list of posts concerning this case and the companion case in the Kentucky Supreme Court can be found be clicking on the "paternity" category on the left sidebar.

Shaming Child Support Obligors Into Paying; Jailing The Deadbeats

By all accounts, the program of Irv Maze, Jefferson County Attorney in threatening to publicize the names of child support obligors who are six months delinquent is very successful. A long list appeared in a supplement to today's Courier Journal. 20% of the deadbeats are women, so let's lay to rest the phrase "dead beat dads." The flyer impressively listed other consequences of nonpayment including suspension of driver, professional, sporting and concealed deadly weapon licenses, impounding tax refunds and passports and imposing liens on boats, cars and houses.
By coincidence, Mary T. Wagner, assistant district attorney in Sheboygan County, WI wrote in the WashingtonPost.com a couple of weeks ago:

My standard speech is always the same. I can't make a guy be a good father. I can't make him walk the floor with a sick child, drive to soccer games, run to Walgreen's at midnight to pick up a prescription, help with homework, go to a Boy Scout potluck dinner or even smile. What I can do is squeeze him hard enough that money comes out. Or ask a judge to send him to prison.

There's never time for oratorical polish. I'm usually giving this speech rapid-fire to a dazed and confused custodial parent about five minutes before I walk into another preliminary hearing in Wisconsin state court, where I work, where I'll hold a deadbeat dad's feet to the fire for failing to support his kids. I'm always reminded of the limits of what I can do as a state prosecutor targeting those who choose to float away and let somebody else pick up the tab. I'm also reminded that when a father skips out on his family, it has lifelong repercussions for a lot of lives.

Once I've opened a felony nonsupport case, it's just a matter of time before the guy somehow trips the radar somewhere -- a speeding ticket, a bar fight, a domestic disturbance -- and makes the return trip to Wisconsin on a prison bus. One got snared when, after 20 years of otherwise perfectly respectable and law-abiding life in another state, he walked into a police station to report a missing wallet. Oops.

Under Wisconsin's system, if you've gone four months in a row without sending home any child support, your options change from cooling your heels in the local jail on a civil commitment to prison, where you can't buy your way out by finally paying what you owe. That's where I come in, with a full arsenal of police powers, criminal charges, arrest warrants, extraditions and, ultimately, a compelling speech at the sentencing hearing.

The case is never about whether the deadbeat dad failed to make any payments for 120 consecutive days, earning himself up to a year and a half of "maximum confinement" in prison and two additional years of "extended supervision" reporting to a probation agent. It's about how the parent who stayed with the children had to work two jobs, never caught a break and sometimes had to take government assistance, and how the kids in the middle of it all felt abandoned -- how their world fell apart when Dad left.

Sometimes it's about a 10-year-old child coming to court with Mom, smiling but nervous with anticipation, wondering if the father who's been gone for years will recognize her in the gallery as he sits on a bench up front, wearing an orange jumpsuit and chains, waiting for our dance to begin. Those scenes never end well.

And the costs echo through the years. It's alarming, even spine-chilling, how often I can pick up the file in a nonsupport case that I've charged, walk over to the other side of the office, look up the last name and find the children snared in juvenile court.

Statistics on the Web site of the federal Administration for Children and Families show that the federal and state partnership governing child support enforcement carried a caseload of 15.9 million families in fiscal 2005. Those numbers reflect the mandatory inclusion of parents who have custody and receive some kind of government benefits, and other custodial parents who voluntarily seek state help in getting their child-support orders enforced.

During that fiscal year, more than 11 million of those cases were listed as having some kind of child support arrears due -- and only a little more than half of those were listed as having payments coming in toward the arrears in child support. That's a lot of money not sent or spent on shoes, school supplies, haircuts or summer camp.

I hope that all of you who think about skipping out on your child-support obligations, to cut your losses or simplify your lives, keep in mind that I, or someone else working in a generic government office, will eventually haul you back to face the music. But if you think at all about what really matters, that should be the least of your worries.

The more remedies, the better. And, remember, it isn't just dads who are not paying court ordered child support.

Vienna Divorce Fair Touts DNA Tests, Lawyers for Fed-Up Spouses

ABA Journal, Law News Now reports, Divorce Fair Offers Legal Services and More, linking to an online Bloomberg article today. Some quotes from Bloomberg:

At the two-day event in Vienna, fed-up spouses can contract private detectives to spy on philandering mates, hire real estate agents to find a new homes and book vacation packages designed for the newly separated. They can even hire a DNA sampling lab to see if it will really be necessary to pay child support.

``New Beginnings'' is the world's first divorce fair, according to Anton Barz, 37, a wedding organizer who came up with the idea after realizing that half of all unions were doomed.

``Austria's divorce statistics are shocking,'' Barz said in a café near Sigmund Freud's former home in the Austrian capital. ``People get a wedding certificate more easily than a driver's license and have no idea of the consequences when they crash.''

Around 500 people are expected to attend the fair at the Vienna Marriott Hotel, where 20 vendors -- including a local law firm hunting for new clients -- will ply them with advice about how to settle their partnership problems.

Thanks to Marci Oddi of Indiana Law Blog for her eagle eyes.

Alienation Of Affections

All lawyers remember their first jury trial. Mine was a dreadful alienation of affections case about which I reported here, on the death of E. Michael Runner. Thankfully the tort has since been abolished in Kentucky. Seven states still allow lawsuits by people who claim someone stole their wife or husband, Hawaii, Illinois, New Mexico, North Carolina, South Dakota, Utah and Mississippi. Associated Press reports here today about a Mississippi case affirmed by the Mississippi Supreme Court which in which apparently U.S. Supreme Court review is sought.
While Judge Potter presided in my case, word got 'round the courthouse and other judges came to observe portions of the trial, to my horror. The late Justice McAnulty was a Circuit Court Judge at the time and for years teasingly threatened to write an article in ATLA about the circus.

Paperless Family Courts: The Pluses And The Perils

As Miami's family courts prepare to go paperless, a law.com article Family Court Embarks on Paperless Odyssey, by Billy Shields, Daily Business Review, October 22, 2007, available online discusses:
The Pluses
1. Miami-Dade Clerk of the Courts Harvey Ruvin recently announced a plan to make much of the division paperless sometime in January. It's a move he estimates will cost about $4 million to implement but save the court system at least $1 million a year by conservative estimates. A similar project that introduced optical imaging technology to the Traffic Division in 1998 saved the court system an estimated $30 million after costing $18 million, according to Ruvin.

2. Ruvin points out that paper documents have two other major disadvantages -- they are both unreliable and inaccessible.
"Paper is the least secure of all formats," Ruvin said. "Paper can only be viewed by one person at one place at one time."
Angry litigants occasionally rip out affidavits or other documents that can go missing -- in violation of the law. Especially with family court cases that drag on for decades, stacks of case files sometimes need to be viewed almost simultaneously by more than one judge.
"In the Family Division, a lot of cases don't end," said Miami-Dade Family Judge Joel Brown, who administers the division. "Family is paper intensive, and there's a need to share files. That's why the paperless system saves time."

3. As Ruvin pointed out, there are obvious benefits to an electronic filing system, especially in Miami. In a courthouse whose basement extends beneath the water table, it's risky to store paper files too low on shelves for fear they'll get soaked in a flood. This has happened already and court workers had to freeze-dry the documents to keep them intact.

The perils
1. More than 60 percent of Family Division users are pro se parties, according to Tilson. In areas such as child support, about 90 percent of the litigants are pro se. Computer illiteracy and other shortcomings associated with the other side of the widening chasm between the online and paper spheres has some observers worried that a whole class of people could eventually be left behind.

2. With the advent of the Internet, electronic fraud became a bigger problem, and court systems have become the unwitting accomplices of identity thieves. Social Security numbers and credit card information that were once squirreled away in obscure files on dusty shelves are often readily available on court Web sites.
The Florida Supreme Court has placed a moratorium that limits what kinds of documents can be displayed on a Web site, and by statute the court system in Florida has until Jan. 1, 2011, to redact private information from public documents, James said. Miami-Dade County courts already are redacting information like Social Security numbers.

3. There are also glitches that accompany any complex electronic system. Ironically, Miami-Dade's Circuit Court Web site was down during the period this article was being researched.

4. A docket composed entirely of electronic documents -- with no originals remaining -- may cause concern in the arena of public access to court filings as well.
In recent years, the Daily Business Review and The Miami Herald uncovered situations in South Florida where court dockets have been sealed without explanation at the federal and state circuit levels. It remains to be seen what effect a fully electronic docket would have on court secrecy.
Judges and clerks still would have discretion over what documents are added or removed from a case file. In the federal system -- which has been largely electronic for years -- court secrecy in South Florida came to a head in 2003, after the Daily Business Review reported that the U.S. District Court system was hiding cases from the public. In one instance, drug defendant Nicholas Bergonzoli was convicted, sentenced and imprisoned in total secrecy in 2002.
In another case, a court file made it into the federal PACER online document system, and then was removed shortly afterward.

What Price Does The Company Pay In An Executive's Divorce Or Custody Battle?

Check out the Metropolitan Corporate Counsel magazine interview with Lynne Z. Golk-Bikin, What Price Does The Company Pay In An Executive's Divorce Or Custody Battle? It is available online.

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.

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.

Best Wishes To Indiana's Law Blog Matriarch, Marcia Oddi

Marcia Oddi’s class and courage at Indiana Law Blog, in her post here, letting her friends and readers know of her breast cancer diagnosis and upcoming treatment regime is to be commended. Her “gold standard” law site, Indiana Law Blog, sponsored by the Indiana Bar Association and honored by the Indiana Judges Association, is bound to be an indispensable resource for all Indiana lawyers. It is my hope that her readers will remain loyal, as I know if she can post, she will post. It is surely difficult for a very private person to have to explain anticipated down time.
I hope Marcia finds that friends and admirers are a godsend of help and hope through tough battles and trying times, yet respectful of her need to deal with this on her own terms and in her own time. Good luck and best wishes, Marcia.

Divorce In Same Sex Marriage And Attack On No-Fault Divorce Laws

How states will deal with divorces between same-sex partners legally married in another state or country is an issue family lawyers are watching and busy planning strategies. I doubt anyone thought that meant dealing with an attack on no-fault divorce as advanced by "the nationally known conservative lawyer, James Bopp Jr., who received $15,000 in public money to write the friend-of-the-court brief" in a Rhode Island case, as reported by Providence Journal Staff writer Edward Fitzpatrick, online here.

Wife Entitled To $184 Million, 50%, In Illinois Decision Monday

Many equitable division states, including Kentucky, do not have an automatic equal division of marital property. Rather, marital property is divided in just proportions. Generally where wealth is involved, the greater the estate earned by the working spouse, the less likely the non-working spouse will receive 50%, particularly when their are no children. Some quotes from CNN.com:

Michael Polsky's attorneys contended that he was responsible for the couple's great wealth and said they will likely appeal Monday's decision.

"He intends to test this decision on appeal because he's always believed that this shouldn't have been a 50-50 split," attorney Joseph Tighe said.

David Meyer, a law professor at the University of Illinois at Urbana-Champaign, said the Polsky case is "remarkable and historic" because of the size of the award and Boyd's decision to split the estate equally.

"Those are huge numbers," Meyer said. "When you get these cases of extraordinary wealth, it really puts to the test this notion of marriage as a complete partnership."

Gaetano Ferro, president of the American Academy of Matrimonial Lawyers, said he wasn't aware of a bigger award in the U.S.

Michael Polsky launched the company that eventually would become Northbrook-based SkyGen Energy, a leading independent power producer that sold in 2000 for about $450 million. He is now president and CEO of Invenergy Wind LLC, a Chicago-based wind energy company.

I share the sentiments of New YorK Divorce Report :"It is disappointing that this couple did not follow the lead of Blixseths, who divided their fortune amicably 'over a bottle of wine." He is referring to Tim and Edra Blixseth, the Beverly Hills couple who amicably divided their $2 billion fortune amassed during 25 years of marriage, as the Wall Street Journal reported:

Rather than fighting over every piece of silver, the Blixseths decided to keep what's most important to each of them and split the difference. Life's too short, they figured. And why give the lawyers all the money if you can work it out yourselves?

Family Law "Super Lawyers" Announced in Kentucky

For the first time, Super Lawyers has published a Kentucky directory, listing who it believes are the top five percent of the state's 14,000 attorneys based on peer recognition and professional achievement. Not surprisingly, ten of the twelve family lawyers selected are Fellows of the American Academy of Matrimonial Lawyers: Mitchell A. Charney, Sandra M. Dawahare, Douglas S. Haynes, William L. Hoge, III, Steven J. Kriegshaber, Martha A. Rosenberg, Louis I. Waterman, Natalie S. Wilson, Catesby Woodford, and yours truly. In fact, of the Louisville family lawyers listed, all are AAML members. Moreover, the top 25 women lawyers in the state, from all disciplines, were listed and three of our AAML family lawyers were included, Natalie S. Wilson, Lexington, Martha A. Rosenberg, Lexington and me. They claim impeccable surveying and independent research. There are many, many great lawyers not listed, but I didn't notice any slackers among those picked.

Yet, I can't see what void this publication fills; Martindale Hubbell has offered peer reviews for decades. "Super Lawyers" does offer some ego feeding for a price: $259 plaques to hang and $495 profiles for the website that get you listed at the top. That may be a bargain compared to a paid listing on Martindale-Hubbell. Kentucky's picks are not yet up on the website www.SuperLawyers.com.

Some big firms already have updated their own websites with the news and have sent out press releases. Lawyers in Kentucky are not generally permitted to compare themselves to other lawyers. Past posts about the related ethical issues have appeared on this site here and here. Kentucky Law Review has posts here and here. The Indiana Law Blog has posted about it here and links to a number of its pasts posts on the topic here.

I guess I better submit this post to the KBA Advertising Commission with a check for 50 bucks and see what happens. If it is not approved, I'll take the post down. It's not a bone I want to pick. But, I'll let you know.

UPDATE: Here's the resonse I recieved from the KBA Advertising Commission.

The AAC has reviewed advertisement # 04602, your Superlawyers Blog submission. The Commission does not consider this an advertisement for legal services, pursuant to SCR 3.130(7.02) and has asked that I refund your $50.00 filing fee.
I have requested the Kentucky Bar Association accounting department prepare a check and for $50.00 and send it to you. It should be forthcoming.

Yeah!

Copyright Briefs And Pleadings? And, Are CPAs A Step Ahead Of Lawyers?

A year or two ago an accountant prepared some spreadsheets for a case which divided assets but also extrapolated the income those assets would earn so we could very easily next address the maintenance issue by comparing the income from assets to the spouse's budget. I was surprised to see that the CPA had imprinted the spreadsheets with the copyright symbol, date and firm name. Leave it to our neighbor to the north, Marcia Oddi of Indiana Law Blog to keep us up-to-date with what lawyers are doing. Check out her post, Is It OK for Lawyers to Copy Complaints?" And what about copyrighting briefs?

Court Orders Sperm Donor To Pay Support

In an article by Paula Reed Ward today, the Pittsburgh Post-Gazette reports Court orders sperm donor to pay support, Death of father complicates complex case.
Some quotes:

The Pennsylvania Superior Court, in a recent decision, ordered that a sperm donor who had a close relationship with the two children he fathered must pay child support.

It is an interesting decision for a number of reasons.

First of all, Pennsylvania has no laws that address reproductive issues such as this, which resulted in a first-ever court ruling that recognizes three adults as parents and having financial responsibilities for the same children.

In addition, the sperm donor was not anonymous but a friend of the biological mother, and he eventually sought partial custody of the children.

To further complicate matters, the donor died while the court case was pending.

The article goes on to report these comments from attorneys:

Cases like these -- and others involving surrogacy and similar issues -- could more easily be settled, all the lawyers said, if the state Legislature would write laws to address them.

Pennsylvania is one of only a handful of states that do not have laws to address the parental rights of sperm donors.

Harry Tindall, a family law attorney in Houston, who helped write the Uniform Parentage Act, was outraged by the Superior Court's decision in the Jacob case.

"Donors are not parents. Why should we hurt someone for trying to do good?" he asked.

But more than that, he was frustrated, like the others, at the lack of legislation.

"Pennsylvania won't pass laws on this issue, so courts don't have any guidance," he said. "Shame on a legislature that doesn't have the values to address this issue."

Mr. Kalikow, who chairs the subcommittee on assisted reproductive technologies under the Joint State Government Commission, hopes state lawmakers will soon do that.

He noted that the state does have laws related to reproductive issues in dog breeding.

Mr. Kalikow believes there are no state laws related to these questions with humans because the issues are too emotional.

"It implicates these very sensitive, social, religious and then, political, issues," he said.

Those include the idea of extraordinary conception -- like sperm donation and in vitro fertilization -- as well as encouraging single parenthood and the possibilities of same-sex couples adopting, Mr. Kalikow said.

"There is no way to isolate from religious and social conservatives concerns that this is promoting unconventional family building," he said. "You're going to get a lot of heat."

Thanks to Marcia Oddi of the Indiana Law Blog for letting me know of this article.

IdeaFestival Returning To Louisville, Kentucky

It's only natural that IdeaFestival caught the attention of Stephanie West Allen at Idealawg. From her post

Founded in 2000, the IdeaFestival is a world-class event that attracts diverse and leading thinkers from across the nation and around the globe to explore and celebrate innovation and cutting-edge ideas.

IdeaFestival is designed to stretch people's thinking, utilizing multiple venues to showcase and discuss important ideas in science, the arts, design, business, film, technology, education, etc.

The Festival is designed to appeal to a broad cross-section of people - and presenters are selected for their ideas and accomplishments, and their ability to communicate to a wide-ranging audience.

Last year was the first year that Louisville, Kentucky hosted the event and I learned about it too late to attend. That will not happen this year. The dates of September 13-15, 2007 have been on my calendar since last September.

KBA President Responds to Courier-Journal Paternity Articles

Robert C. Ewald, President, Kentucky Bar Association, writes in a letter to the editor:

Andrew Wolfson’s excellent article about the thorny questions of paternal rights (‘Ky cases pose question: What defines a father?’ March 18) well demonstrates the extraordinarily difficult issues our judges face when resolving disputes that have such an enormous effect on the litigants involved.

In a time when it seems to be accepted sport to condemn judges for their ‘activist’ decisions, perhaps the article will help those would-be critics understand how difficult some judicial determinations are and how decent and honorable are the men and women who must decide these complex cases.

Amen.

We posted about and linked to the front page news here and here. For an exhaustive discussion of the issues, click on the Paternity category on the left sidebar.

More on: Does Avowal of Fatherhood Impose an 'Equitable Paternity' - Indiana

The Indiana Law Blog has an exhaustive post updating us on Indiana law in this area after some excellent hand-picked excerpts from Andrew Wolfson's article in yesterday's Courier-Journal. Check it out.

Courier-Journal Companion Piece On Uniform Parentage Act

In a companion Courier-Journal article to Ky. cases post question: What defines a father, Andrew Wolfson writes today Some states handle paternity with Uniform Parentage Act .
A link to the Uniform Parentage Act and the legislative fact sheet can be found at the post here. My sentiments expressed in that post: For years we can allow our families to go to lawyers who will have to give them "I don't know" answers to many questions and work our way though the courts dealing with this on a slow case-by-case basis, or we can get down to work and ask our legislature to act. We have a year until the next legislative session. Come hear Professor Mary M. Beck, University of Missouri, Columbia Law School April 19, 2007 present "Father's Registries and Why Every State Needs One" and "Putative Fathers Or Pop Up Pops." Brochure and registration info here. How timely.

Wolfson Lays Out Paternity Law Chaos

Andrew Wolfson in today's Courier-Journal reports on the husband/paternity fraud/bio-dad cases working their way though the Kentucky Courts. The front page story is here. His report is well researched, well written and accurate, as usual. Even if I had not read it while enjoying my coffee this morning, I would have known something significant had been published when I checked my email because of the Typepad comments to related prior posts waiting for approval. The Courier-Journal publishes "story chat" beneath its online story. Hope they are ready for a birrage.
We have reported on Denzik here and digested it here and discussed its progeny here. Hinshaw was digested here. We previously posted about the G.J.R - J.N.R. - J.S.R. case (now rightfully exposed by Wolfson as the Rhoades/Ricketts case) winding its way through the system here.

Father's Rights Law Firms

Law Firms Pitch Themselves As the Divorced Guy's Guys by Ann Carrens last week at The Wall Street Journal reports on the trend of law firms selling themselves as "father's rights" lawyers and the Cordell & Cordell firm in particular. We have none (yet) in Louisville. A quote that was much applauded on the ABA Family Law Section listserve:

Randy Kessler, an Atlanta family lawyer who has faced Cordell lawyers, says the firm's reputation could work against clients over time by making judges skeptical of its arguments: "It is much better to have a reputation for representing each client based on the facts of their case, regardless of their gender."

U.S. Supreme Court Declines Polygamy Case

The husband of three wives claimed the court's landmark ruling on gays applies to polygamists reports
Warren Richey, Staff writer of The Christian Science Monitor in an article today Supreme Court declines polygamy case. Some quotes:

At issue in his case was whether state prosecutors violated his constitutional right to practice his religion and maintain an intimate family relationship without intrusive government interference.

In Lawrence v. Texas, the high court declared that a state sodomy law treated gay Texans as second-class citizens. Holm's lawyers told the high court that Utah's polygamy statute does the same for certain religious fundamentalists.

In urging the high court not to take the case, Assistant Attorney General Laura Dupaix said the protections established in Lawrence v. Texas only apply to relationships between consenting adults.

A (Gasp!) 2007 Photo Of R. Gary Lowen

The image of R Gary Lowen, the recipient of the Richard A. Revell Family Law Award for 2007, about which we posted here, has finally been captured in a photo with LBA President, Tom Williams. Thanks to Kentucky Law Review for obtaining and posting the photograph.
At the awards dinner Gary told me that his children got a big kick out of the hard copy of the post I snail mailed him. It was very funny to them that a guy who doesn't do email is being written up in a blog. So now he has three posts. I'll print out this one and the one at Kentucky Law Review and send them via mail.
Here's the photo shoot!

From The Kentucky Law Review: Gary Lowen works to foster collegiality among the family court bar. He has worked to improve the working relationships among family law practitioners by creating opportunities for family law practitioners to gather together and learn more about each other on a personal level. Gary understands the stressors that all family law practitioners experience, and he works to ease these stressors through both personal and professional interaction. Gary has made great strides in making family law practitioners a family. For these efforts, he was honored with this award.

Gag Orders Against Parents

May a court prohibit a parent from discussing religious beliefs with a child? An audio of the NPR interview with UCLA constitutional law professor Eugene Volokh last weekend is available online. Last year we posted Parent-Child Speech Restrictions; Will Best Interests Withstand Constitutional Challenge? linking to Prof. Volokh's significant piece of legal scholarship, Parent-Child Speech Restricitions. Prof. Volokh has a number of related posts at Volokh Conspiracy.

Italian Government Approves Bill to Grant Legal Rights to Cohabitants

From The Family Law Prof Blog: Italian Government Approves Bill to Grant Legal Rights to Cohabitants. Whether their parliment will pass it appears to be a coin toss.

Family Law Expert Tells ABC News How Courts Might Address Questions of Child Custody, Paternity, Inheritance and Liability

From ABC News, February 10, 2007: Anna Nicole Smith Left Tangled Legal Web.

ABC News' Law and Justice Unit asked prominent family law professor Jeff Atkinson at DePaul University College of Law for a quick overview of the web of legal issues that follow Anna Nicole Smith's death.

Atkinson, who also works with the American Bar Association and the National Conference of Commissioners Uniform States Law, offered his thoughts on how the courts now will handle the legal battles over the fortune of Smith's deceased husband, J. Howard Marshall, and the custody of Smith's infant daughter, Dannielynn. Multiple people claim they fathered Dannielynn, including Smith's former boyfriend, Larry Birkhead, and her companion, Howard K. Stern.

The questions Prof. Atkinson addresses include:
Would a will signed by Anna Nicole decide custody of Dannielynn?
Was Anna Nicole married at the time of her death?
What law decides who will have custody of Dannielynn?
What court has jurisdiction to decide the custody and paternity of Dannielynn?
What happens to the dispute over the estate of J. Howard Marshall?
What happens to the legal claims against TrimSpa and Anna Nicole?
As he is quick to note, however, all the facts are not yet known and the law in many instances will turn on the facts.

Legislative Proposals Elsewhere

These bills/ballot measures introduced in state legislatures may be a bit ahead of their time, from The Family Law Prof Blog:

Washington Initiative to Require Couples to Have Children

The Washington Defense of Marriage Alliance acknowledged on its Web site that the initiative was ''absurd'' but hoped the idea prompts ''discussion about the many misguided assumptions'' underlying a state Supreme Court ruling that upheld a ban on same-sex marriage. The measure would require couples to prove they can have children to get a marriage license. Couples who do not have children within three years could have their marriages annulled. All other marriages would be defined as ''unrecognized,'' making those couples ineligible for marriage benefits.

The paperwork for the measure was submitted last month. Supporters must gather at least 224,800 signatures by July 6 to put it on the November ballot." A.P., N.Y. Times

Connecticut Ban Smoking if Child Present?

Connecticut legislators have introduced a bill that would ban smoking in cars when a minor is present. This legislation, the brainchild of 9-year-old Justin Kvadas from East Hartford, is ostensibly being written to protect young children from exposure to the alleged dangers of secondhand smoke." By Gary Nolan, N.Y. Times

Opening Court Proceedings Involving Minors

Lexington Herald Leader, February 6, 2006: Open hearings an issue in parental rights
LEGISLATURE TO CONSIDER ADOPTION LAW CHANGES
By Beth Musgrave And Valarie Honeycutt Spears
HERALD-LEADER STAFF WRITERS

Same day. Same argument.

Two different judges, two different answers.

The legal argument Louisville lawyer John Helmers was pushing yesterday in Louisville Family Court was a prickly one. The courts, he argued, should open hearings concerning the termination of the parental rights of three of his clients to the public.

Those hearings and all hearings involving children in Kentucky -- from juvenile delinquency cases to abuse and neglect cases -- have always been closed.

Jefferson Family Court Judge Jerry Bowles ruled against Helmers yesterday, saying the issue on whether the courts should be open is one for the legislature to decide.

Just an hour and a half later, Family Court Judge Stephen George said he would take the issue under advisement and issue a ruling later, adding that the courts should err on the side of openness.

The difference in opinion could be a bellwether of what the legislature may face as it tackles reform of key areas of the state's adoption rules. The legislature, which begins its session today, is expected to receive a series of recommendations on changing the state's adoption laws after investigations and panels showed that in some cases biological parents' parental rights are terminated too quickly.

The Inspector General, in a stinging January report about problems with foster care adoptions and termination of parental rights, recommended that termination proceedings against parents be open. The report found that social workers in the Elizabethtown office lied in court, falsified documents, acted spitefully toward parents and focused on adoptions rather than unifying children with their parents. At a meeting of the Cabinet for Health and Family Services Blue Ribbon Panel on Adoption, tasked with investigating adoption procedures in Kentucky, some family court judges suggested opening abuse and neglect hearings.

It is too early to tell whether legislators will recommend opening the courts as part of a possible reform package.

Editor's note: Divorce proceedings involving custody of children are open to the public, even when those cases involve allegations of abuse or neglect.

In a related matter, the Courier-Journal published today a letter to the editor from DAVID W. RICHART ,Executive director, National Institute on Children, Youth & Families, Inc.

Opening juvenile court

In a Jan. 31 editorial, The C-J continued its editorial goal of opening juvenile courts in child neglect and abuse proceedings….

We [child and family advocates] agree that the road to systemic reform of child protection in Kentucky, which was the subject of 1978, 1985, 1995, 2001, 2006 and 2007 exposés, is impeded by the principle of confidentiality.

Putting it bluntly: More often than not, confidentiality protects the actions of the state agency as much as it protects the identity of children and their families….

We also agree that judges should be given the ultimate responsibility for deciding whether hearings should be open. But we would qualify that recommendation by allowing the attorney for the child, the attorney for the parent, as well as the county attorney, to request a special hearing on whether a particular court proceeding should be open to the public.

Such a special hearing might allow judges to hear all of the facts, which is especially important in child sexual abuse matters.

But we have more modifications in mind. Since no attorney is appointed to represent the parent or child at the first, 72-hour hearing on accusations of child neglect or abuse, the most wildly speculative hearsay evidence reported by the state agency could be subject to full media scrutiny….

That "evidence" – while telling only one side of the story -- could be subject of sensational reporting even though it might not be true….

The second modification is to prohibit the media from having access to court and agency records. At present, these records contain information of the most speculative kind, including the name of the person who reported the incident, an action that would have a stifling effect on the public's willingness to report real abuse and neglect. So, we think records should be out-of-bounds for reporters.

Third … the media must be held accountable as well. We have suggested that the Kentucky Press Association establish voluntary guidelines providing ethical guidance for journalists so that their peers could hold reporters accountable….

For some of us, our worst nightmare is turning on our television to watch a 23-year-old cub reporter tell his audience of a "breaking news" story full of identifying information about a family -- which later turns out to be false…. It is our contention that once the media has let the wrong cat out of the bag, reversing this incorrect stereotype of children and families may be next to impossible.

The Courier-Journal has done a commendable job of raising the consciousness of the public -- and even child advocates -- about the importance of opening child abuse and neglect proceedings.

We would suggest that all of us put a bit more effort into amending the current confidentiality statute in child abuse and neglect proceedings before we change this nearly century-old provision of juvenile law.

U.S. Set to Begin a Vast Expansion of DNA Sampling

The New York Times reports today U.S. Set to Begin a Vast Expansion of DNA Sampling.

Peter Neufeld, a lawyer who is a co-director of the Innocence Project, which has exonerated dozens of prison inmates using DNA evidence, said the government was overreaching by seeking to apply DNA sampling as universally as fingerprinting.

“Whereas fingerprints merely identify the person who left them,” Mr. Neufeld said, “DNA profiles have the potential to reveal our physical diseases and mental disorders. It becomes intrusive when the government begins to mine our most intimate matters.”

Immigration lawyers said they did not learn of the measure when it passed last year and were dismayed by its sweeping scope.

“This has taken us by storm,” said Deborah Notkin, a lawyer who was president of the American Immigration Lawyers Association last year. “It’s so broad, it’s scary. It is a terrible thing to do because people are sometimes detained erroneously in the immigration system.”

Immigration lawyers noted that most immigration violations, including those committed when people ente