Divorce Law Journal

"Gay Marriage Looms as 'Battle of Our Times'"

Look at today's Christian Science Monitor for a perspective on this issue. As Congress takes it up this month, we will post more.

Two Interesting Articles Relating to Domestic Violence

Florida's Janet Langjahr has two recent postings relating to domestic violence. Last week on FlaDivorceLawBlog she wrote about a study reported in Forbes, that found victims were more apt to confide the abuse to a computer than to a physician, leading advocates to the recommendation that health care providers use computerized questionnaires. Yesterday, she posted Domestic Violence- Smart Spending, providing insight into how dollars can best be used to eradicate this problem in society. Kudos, Janet.

Termination of Parental Rights Reversed Even Though Parent Did Not Object

In a story in yesterday's Lexington Herald-Leader, the recent unpublished opinion of V.S. v. Commonwealth was the topic. It is newsworthy because of the ongoing investigation into "quick-trigger" adoptions.

Non bio dad has standing to seek visitation

A South Carolina case last month held that a man had standing to pursue visitation, even though not biologically related to child. Mom was estopped from contesting standing because of multiple year relationship she permitted to develop between man and child. Middleton v. Johnson.

NPR Spotlights Relocation Case (with oral argument) before MA Supreme Court

Tovia Smith, on yesterday's NPR Legal Affairs, reported on the relocation case of Mason v. Coleman, which is pending before the MA Supreme Court. The online version has the oral arguments posted, linked to Suffolk University Law School.
Some comments:
1. I don't know how long the online link will remain "live", so if you are interested, click while the clicking is good.
2. Wonder if Kentucky had had such national exposure before the sorry decision of Fenwick was rendered, whether the result would have been different?
3. When will we ever get easy access to oral arguments and court of appeals briefs? Supreme court briefs before the decision is rendered would be nice, too.
4. The web posting of the NPR article links to Laura Morgan's state-by-state status of the law at her Family Law Consulting site.

Wedding Planner Mediation

We don't make this stuff up! From the Online Guide to Mediation Blog:"The marrying kind: wedding planning mediators help couples steer clear of conflict"


Later this year you will be hearing much about the AAML's newest project, "Focus on Forever", aimed at helping couples work through difficult life questions before marrying, in an effort to prevent divorces. I don't think pre-marital mediation will part of the program.

Nature or Nurture:Mississippi requires genetic testing for paternity

In a case this month from the Mississippi Supreme Court, Downs v. Downs,Download CO34307.pdf
it was decided that gentic testing was required when paternity of a child born to a divorcing couple is questioned. However, the decision may be based on the wording of a MS statute, and the court may still consider best interests after the paternity results are known.

"Mom's House, Dad's House", from San Francisco Family Law Blog

We're read and recommended Ricci's original book and look forward to reading this one.Mom's House, Dad's House for Kids: Feeling at Home in One Home or Two

"Excerpt: 'Separation and divorce are a little like a long road trip. The destination is a new version of normal family life - one that is different from what you knew before but is still right for your family.' "

More Divorce Tunes For The Holiday Weekend

The ABA Family Law Listserve has a recent thread on songs relating to divorce. There are many to add to the posting of country music divorce songs we did a few weeks ago. Thanks to all for permission to reprint!

The top 25 according to Charlie Abut, New Jersey, publisher of the New Jersey Family Law blog:
25. Get Your Tongue Outta My Mouth 'Cause I'm Kissing You Goodbye
24. Your Teeth Was Stained, But Your Heart Was Pure
23. How Can I Miss You If You Won't Go Away?
22. I Don't Know Whether To Kill Myself Or Go Bowling
21. I Just Bought A Car From The One That Stole My Love, But The Car
Don't Run, So I Figure We Got An Even Deal
20. I Keep Forgettin' I Forgot About You
19. I Liked You Better Before I Knew You So Well
18. I Still Miss You, Baby, But My Aim's Gettin' Better
17. I Wouldn't Take You To A Dog Fight, Not Even If You Had A Chance To
Win
16. I'll Marry You Tomorrow But Let's Honeymoon Tonight
15. I'm So Miserable Without You, It's Like Having You Here
14. I've Got Tears In My Ears From Lyin' On My Back and Cryin' Over You

13. If I Can't Be Number One In Your Life, Then Number Two on You
12. If I Had Shot You When I Wanted To, I'd Be Out By Now
11. Mama Get A Hammer (There's A Fly On Papa's Head)
10. My Head Hurts, My Feet Stink, And I Don't Love You
9. You Ran Off With My Best Friend And I Sure Do Miss Her/Him
8. Please Bypass This Heart
7. You Got The Ring And I Got The Finger
6. You Done Tore Out My Heart And Stomped That Sucker Flat
5. You're The Reason Our Kids Are So Ugly
4. If The Phone Don't Ring, You'll Know It's Me
3. You're Actin' Single and I'm Drinkin' Doubles
2. You're Looking Better After Every Beer
1. I Haven't Gone To Bed With Anybody Ugly But I've Sure Woke Up With A
Few"

From Kristin Schuler-Hintz:
"To this I add:

50 Ways to leave your Lover
After the Love is Gone
Ain't No Sunshine
All by Myself
Paradise by the Dashboard Light (Meatloaf)
Another one bites the dust (Queen)

Every Day a Little Death (from A Little Night Music. Actually come to think of it, add the whole soundtrack "Now Later Soon" Glamorous Life; Remember? You Must Meet My Wife; Liaisons, In Praise of Women, Every Day a Little Death, Weekend in the Country, It Would Have Been Wonderful, Perpetual Anticipation, Send in the Clowns, Miller's Son

La Boheme - We all meet, fall in love, use other people, and eventually die
Madama Butterfly - Marry the wrong guy, get left with nothing, give up your son and die

And the one that we all think every day "People are Strange" The Doors.

I actually have a playlist on IPOD of "Office Music" all the music that is break up related. I play it softly in the background. I thought of suggesting that we put in our hold music................."

And from David Schaffer,Naperville, Ilinois:
"Need songs with lyrics, too, please."

From John Crouch, Arlington, Virginia

"There's a pop song called "I won't pay". I think it's British. It expresses vehemently the modern attitude that spouses have an obligation to support themselves, not each other.

Louis Jordan, "Somebody done changed the lock on that door."
Ray Charles, 'Hit the road, Jack."
[above are performers, not necessarily the songwriters]

"Don't you want me baby" -- prissy, annoying song that begins, 'She was working as a waitress in the local bar'

Then there's the one where the tag line is "That Ain't My Truck." That's my house, my kids, my woman, my dog, but that ain't my truck.

Bob Noone -- who should be required listening for anyone who has read this far, has recorded "Breakin' Up Is REALLY Hard To Do", "UPWARDLY MOBILE LOVE", "BLAME IT ON THE VIAGRA". See http://www.lawsongs.com/

Finally, my cousin Philip Heald, former deejay/family lawyer/general practitioner in Ironton, Ohio, has a great song about domestic violence called "I am the Man in Charge of You." I don't know if he has recorded it. "

Thanks to all!

John Helmer's Comment on Personal Identifiers

Thanks to John H. Helmers, Jr. for his comment on this proposed change to the civil rules:
"It seems classic overkill to eliminate the use of the names of children from every pleading (Petitions for Dissolution of Marriage, Motions, Custody Evaluations, Affidavits) to prevent identity theft. Have there been verified instances where individuals have used names of children to steal identities? I tend to believe that the use of initials for children depersonalizes the proceedings and the fact that Family Court is dealing with the lives of real children."

More On Same Sex Adoption in Indiana

More on Same Sex Adoption from the Indiana Law Blog:

 

Ind. Decisions - More on: AG asks Supreme Court to hear same-sex adoption question

Post Nuptial Agreements and Fiduciary Duties of Spouses

From the Family Law Profs Blog: Case Law Development: No Presumption of Undue Influence in Post Marital Agreements Absent Proof of Unfair Advantage

"Wife filed for divorce. The couple then decided to try to reconcile and, as part of their resolution, they drafted a post nuptial agreement to settle their financial affairs. Four years later when Wife again filed for divorce, she challenged... "

Proposed Civil Rule Change: Where to File Family Court Appeal

Where to file an appeal has frustrated many taking an appeal from Family Court. It you know which courts are established pursuant to Ky. Const. section 110 (5) (b) and section 112 (6), this proposed rule change will clear everything up:

CR 73.01 (2): All appeals shall be taken to the next higher court by filing a notice of appeal in the court from which the appeal is taken. Appeals from family courts that are established pursuant to Ky. Const. Section 110(5)(b) or Ky. Const. Section 112(6) shall be taken to the Court of Appeals. After such filing...

Last month we digested Thorn v. Commonwealth and Sirley Robinson.

So you have it right at hand, here are the sections of the Kentucky Constitution mentioned at the outset:
Section 110 (5) (b) The Chief Justice of the Commonwealth shall be the executive head of the Court of Justice and he shall appoint such administrative assistants as he deems necessary. He shall assign temporarily any justice or judge of the Commonwealth, active or retired, to sit in any court other than the Supreme Court when he deems such assignment necessary for the prompt disposition of causes. The Chief Justice shall submit the budget for the Court of Justice and perform all other necessary administrative functions relating to the court.

Section 112 (6) The Supreme Court may designate one or more divisions of Circuit Court within a judicial circuit as a family court division. A Circuit Court division so designated shall retain the general jurisdiction of the Circuit Court and shall have additional jurisdiction as may be provided by the General Assembly.

Comment: This is not how the rule came out of the Civil Rules Committee of the Supreme Court. Adding Section 110 (5)(b) adds nothing. Rather than refer to Section 112(6) it would be better to spell it out.

Proposed Civil Rule Change: Accelerating Appeals of Paternity, Dependency, Abuse, Neglect, Domestic Violence and Juvenile Status Offense

The Court of Appeals is already, by order, putting most of these matters on a fast track, as well as child custody cases. The proposed rule would provide:

CR 71.12(2)(a), (3)(b) and (4)(c) and (d) Briefs

Proposed Civil Rule Change: Personal Data Identifiers

The following proposed civil rule change is on the docket for the KBA June Seminar:

CR 10.01 Caption; names parties - personal data identifiers

Technical Difficulties

Most of our category content is down, so what you see is not all you get. We'll be working on the fix.
Update: Fixed. Typepad tech support was quick!

Dealing With Difficult Attorneys

Several years ago, at the behest of Gary Lowen, some local family lawyers began having informal "You Piss Me Off" dinners. The thought was that if we could get together, establish some real basis for getting to know each other on a personal level, and could vent at one another (in the presence of a few other listening ears) for perceived wrongs committed, that we could improve the collegiality and professionalism. The only problem is the dinners became too much fun and too many people wanted to come. We now have large gatherings for drinks and appetizers a couple of times a year, "hosted" by about ten attorneys at $100 each with a cash bar and still call them "You Piss Me Off" parties. They are good and most of the Family Court judges come, but we aren't really dealing with the problem behavior of some lawyers.

 

So, last year I invited a few attorneys I like very much and a few more who are perpetual problems for a small "You Piss Me Off" dinner at my home.That was more effective than what we are doing in large groups, but I should have invited someone who could be a great facilitator.  

 

 

We have Rules of Professionalism, but unfortunately they are aspirational. We have the Supreme Court ethics rules, but no lawyer wants to initiate bar complaints against other attorneys.

 

We can’t take bad behavior personally, but we have to keep working to raise the bar.

Any suggestions?

Rayborn v. Rayborn, 185 SW3d 641(Ky., 2006)

Rayborn v. Rayborn, 185 SW3d 641, (Ky., 2006)
The actual distribution of remaining marital property and
sale thereof did not result in the sort of substantial change in
circumstances that could render a maintenance obligation
nconscionable. Even if the initial divorce decree was done
incorrectly and without adequate findings, the remedy is
a direct appeal from the decree. These sorts of defects cannot
serve as a basis for a later action to modify the maintenance
obligation.

Indiana Law Blog

The Indiana Law Blog published this piece yesterday:
"Two Kentucky law blogs added to ILB blog list

The ILB has added two Kentucky law blogs to the list of links in the right-hand column, directly below the list of Indiana law blogs. They are the Kentucky Law Blog and the Kentucky Divorce and Family Law Blog.

Take a look at the entry in the Kentucky Divorce Blog titled "Nature or Nurture: Should Genetic Test Results Be Admissible To Rebut The Presumption Of Paternity?" (unfortunately, there does not seem to be a way to link to it directly).

The Indiana Law Blog has long wanted to add links to good law blogs in all the states bordering Indiana. We try to cover interesting or important law news from not only Louisville, but Cincinnati, Chicago, etc. However, other than Kentucky, we have not run across law blogs that meet our criteria. Suggestions would be welcome."

We are grateful for the inclusion and would love to know Marcia's criteria. In the meantime, we will continue to link to all Kentucky blawgs and to all Family Law related blogs, but have added a new category called "Great Legal Blogs Outside Kentucky", in which the Indiana Law Blog is the first listed. There are several very good legal blogs out there. If there is a criteria you'd like applied or sites you'd like to suggest we include, post a comment!

Finally, to link to a posting, go to archives and then to the post. At the bottom you will see a Permalink. Right click and save the link. Very cool to be able to teach someone esle something for a change. We have been on the receiving end too long.

Kentucky Law Blog

Mike Stevens has been posting about our postings in the Kentucky Law Blog:
Ky Family Law: Same Sex Custody

Here are two recent postings from www.LouisvilleDivorceLawBlog.com on a case pending at the Kentucky Supreme Court (SCOKY) on same sex custody battle. Same Sex Custody in Kentucky,B.F. v. T.D.; 2005 WL 857093 More On Supreme Court Same Sex Defacto Custody FYI: The LouisvilleDivorceLawBlog is not just about divorce, but is also about family and matrimonial law matters. It is developing a useful database of categorized decisions that are significant in these areas....

Thanks for the kind words,Mike.

Proposed Change in Civil Rule for Citation of Unpublished Decisions

The Kentucky Supreme Court has proposed an Amendment to the Kentucky Rules of Civil Procedure regarding the citation of unpublished decisions, as follows:

The proposed amendments to section (4)(c) of CR 76.28 are:

(c) Opinions that are not to be published shall not be cited or used as [authority] binding precedent in any other case in any court of this state, however such unpublished decisions rendered after January 1, 2003, may be cited for consideration by the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed documents and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.

This rule change, among others, will be considered in an open session on Wednesday, June 14, 2006, at 9:30 a.m., in connection with the KBA Annual Meeting. The hearing will occur in ballroom (A-E) at the Northern Kentucky Convention Center in Covington.

It is important to emember that this is a proposed rule change. Only after discussion and reconsideration by the court will a new rule be finally adopted. In the interim, citiation to unpublished opinions continues to be improper.

Tips To Uncover Income and Missing Assets

Tips to Uncover Unreported Income and Hidden Assets

as reported by Janet Jangjahr, in her Florida Divorce blog.

Divorce Online has published this handy article containing tips on finding Unreported Income and Hidden Assets.

James W. Hart also reported the link on his Florida Family & Divoce Law Blog as well. Nice to see the Florida lawyers supporting each other.

More About Nature, Cheating, and DNA

The Art of Divorce Blog has a great posting about this:
A new study by a dating website claims that nearly half of all spouses cheat. Although this number may be skewed on the high side given the demographics of those who use dating sites, there are probably a few who cheat that claimed not to do so. Although the studies vary, there are consistently reports over [...]

Taking Care of Business (and ourselves)

Sorry the .pdf link with Judge Potter's special Jury Instructions cannot be opened, which we referenced in the posting about Mike Runner yesterday. Will fix asap. Beginners goof-up. This is a good time to mention, however, that you may notice a slight slow down of posting in the next week, and to a lesser extent over the summer. Let me explain.
First, two of our four lawyers are off to the ABA Family Law Trial Advocacy Institute. I have heard numerous times that this grueling boot camp adds five years experience to any family lawyer's practice in just eight days. So, I am delighted that Melinda Whitton and Michelle Eisenmenger Mapes are hunkered down in Houston with premier instructors. Melinda was sorely dissapointed that she was was third on a wait list last year, after applying several months in advance, and nothing opened up. Look for them kicking it up several notches upon their return.
But, they took the laptop that I use from home to do my blogging. I can't do much during the day, and over the next week Sandy Ragland and I have to hold down the fort for us all.
Then comes summer. After taking Fridays off for several summers, one summer went by without a single Friday off. At the end of that year I found I had been no more productive than in the years I treated myself to summer Fridays off. So, you will soon see blogging only Mondays through Thursdays until after Labor Day.
We'll be taking care of business, but taking care of ourselves, too.

Nature or Nurture: More Comments

From Paul C. O'Bryan:
The Ct. of Appeals, in S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky. App., 2005) discusses the theory of paternity by estoppel. I think the "best" chance (absent a new statute) is to argue that if a court can force a father from denying (when he is not the biological father) to get out of child support why can’t the mother be estopped from denying paternity (or “legal” paternity) of the only father the child has known for 8 years.

The court set out the factors of the doctrine of equitable estoppel: “(1) Conduct, including acts, language and silence, amounting to a representation or concealment of material facts; (2) the estopped party is aware of these facts; (3) these facts are unknown to the other party; (4) the estopped party must act with the intention or expectation his conduct will be acted upon; and (5) the other party in fact relied on this conduct to his detriment.”

1) Mom’s conduct concealed the fact
2) Mom was aware he was not the biological father
3) Neither Junior nor Dad knew the truth
4) Mom knew that Dad would act upon this lie
5) Both Junior and Dad relied on the lie to their detriment (both emotional and financial)

Thanks, Paul

On The Passing Of E. Michael Runner

We were saddened by the death last week of our Louisville colleague, E. Michael Runner, a former AAML Fellow.
Mike was opposing counsel in an alienation of affection case early in my career, a tort which has, thankfully, since been abolished in Kentucky. It was quite a circus and Mike did a masterful job. Judge John W. Potter presided. While the jury was deliberating, Judge Potter handed us Alternate Jury Instructions. If you wonder why I saved these instructions all these years, you will just have to download and read them!

Condolences to Mike's wife, Connie, and to his good friend and law partner, Keith Laurin.
Download Runner.pdf

Nature or Nurture Thread; Keep Those Comments Coming!

Sarah Almy, a Louisville family law attorney, in response to our "Nature or Nurture" posting on genetic testing, posted the following comment:

" I strongly agree with your position. A statutory amendment would be a helpful tool for attorneys facing the situation of a vindictive mom such as your hypothetical Mary who would be willing to traumatize her own child. Recently discovered your blog and it is terrific."

We are very much interested in comments and discussion. Our hope is that as this blog grows, it can be a great melding of ideas and impetus for change when needed. The dynamic potential of a blog is awesome, but readers have to make it happen! Thanks, Sarah, for leading the way for input from family lawyers in Kentucky.

Volunteer Lawyers Needed by Legal Aid for Uncontested Divorces

Mike "Buck" Morris, Managing Attorney of the Legal Aid Volunteer Lawyer Program is seeking attorneys to help them. Here's the email I received for their program, "Pursuing Justice Restoring Hope">

The Volunteer Lawyer Program is in need of volunteers to accept UNCONTESTED DIVORCE CASES (No Children/No Property) for low-income clients. If you are interested in providing free legal service to a client who would otherwise have no other means of receiving legal representation please respond to this e-mail. Thank you in advance for your time and consideration.
Andrea Y. Robbins, Program Assistant
VOLUNTEER LAWYER PROGRAM
425 W. MUHAMMAD ALI BLVD.
LOUISVILLE, KY 40202
PHONE: (502) 585-6980 EXT. 243
FAX: (502) 584-8014

I have never been able to figure out in advance what kind of case will truly be uncontested. Sandy Ragland recently took one of these cases on, and Legal Aid can't apparently predict any better than me! It has some interesting issues. It's a good way to get your minimum 50 hours pro bono work done and to help some people in need.

DNA Testing- Cheap

Stephen C. Knight of Nashville posted on his blog, Knight on Family Law, a source for cheap DNA testing, linking to an article in the Memphis Daily News and a testing company promising results in 48 hours, Test Express, Inc. In the "nature or nurture" discussion, it seems that nature is much cheaper and quicker to come by.

Relocation: A CA bill to codify Fenwick type Criteria for Move Withdrawn Due to Intense Opposition

A Califonia bill which would have permitted a primary residential parent to relocate a-la-Fenwick was withdrawn after more than 4,000 complaints. Here's the scoop from the
San Francisco Law Blog.

Nature or Nurture: Should Genetic Test Results Be Admissible To Rebut The Presumption Of Paternity?

John and Mary were a typical couple. Married for twelve years, they had an eight-year-old son, John, Jr. John had been ecstatic when Mary became pregnant and enthusiastically participated in the prenatal preparations. He attended Lamaze classes with his wife and converted his den into a nursery. He coached Mary in the delivery room and cut the umbilical cord. John's name appeared on the birth certificate as the father of the boy, who was named John, Jr. The father sleepily delivered his share of middle-of-the-night bottles and developed his diaper-changing skills. As the boy got older, Dad taught him to ride a bicycle, bait a hook and throw a baseball overhand. John coached peewee baseball teams and taught Sunday School classes. Father and son shared a deep emotional bond. John knew the marriage wasn't perfect, but the couple had never been separated and he never suspected she had been unfaithful. He was stunned when Mary announced she was leaving and was filing for divorce. He was even more surprised by her parting shot: "And by the way, you're not Junior's father!" John was about to discover that under Kentucky law, he could be relegated to the sidelines of his son's life and designated a" legal stranger" to the child he had nurtured since birth.

The presumption that a woman's husband is the father of children born into a marriage is one of the

More On Supreme Court Same Sex Defacto Custody

From John E. Harding at the California Divorce Blawg,

 

U.S Supreme Court Allows Lesbian To Seek Parental Rights

The Supreme Court said Monday it would not block a lesbian from seeking parental rights to a child she helped raise with her longtime partner.  The ruling reinforces the laws in those states that have recognized parental rights of same sex partners.  California is one of those states.  Click here for more.

The Detroit Free Press also covered the case this morning. You can find the case, Britain v. Garvin at 2006 WL271809.

Same Sex Custody in Kentucky,B.F. v. T.D.; 2005 WL 857093

No wonder I couldn't find this case in a prior post; it was still in the draft stage pending ruling by the Kentucky Supreme Court on discretionary review, although we did refer to it in a story on the Supreme Court elections in Kentucky. As a general rule, we intend only to publish cases that are final with S.W.3d cites. With the U.S. Supreme Court rulling in Britain v. Carvin,___S. Ct. ___(2006) 2006WL271809, May 15, 2006, its pending status is again newsworthy:

B.F. v. T.D.; 2005 WL 857093
Not final - discretionary review granted by Kentucky Supreme
Court in custody case between same sex parents, qualification
as de facto custodian and constitutional right to cross-examination.

This case involved same sex parents. Because Kentucky law does not permit joint adoption by same sex couples, T.D. alone adopted the child. T.D. became the sole "natural parent" but both mothers raised the child and contributed to the child's financial, emotional and physical care. B.F provided the majority of the financial support while T.D. was more involved with the child's daily activities. When the relationship dissolved, T.D. left the home taking the child with her and refused to allow B.F. to have contact. B.F. filed a petition seeking joint custody and visitation.

Judge Garvey granted B.F. temporary, supervised visitation and scheduled a hearing solely on the issue of whether B.F. qualified as a de facto custodian. The court limited the hearing to two hours and refused counsel's request for cross-examination.

The Court of Appeals affirmed that two hours was sufficient to establish de facto custodianship because of the limited elements outlined in KRS 403.270.

Similarly, the Court of Appeals affirmed the judge's refusal of her request for cross examination, holding that the constitutional rights for confrontation is only guaranteed in criminal cases, CR 43 does not mention the right to cross-examination and KRE 611 only states that a party "may" be cross-examined.

The Court of Appeals also affirmed the trial court finding that B.F. did not qualify as a de facto custodian because Consalvi v. Cawood held that to qualify as a de facto custodian an individual must be the primary caregiver.

Same Sex Parents Custody Standing in U.S. Supreme Court

We first saw the BIG news of the day at The Art of Divorce blog which linked to an AP story reporting on the U.S. Supreme Court's refusal to block a lesbian woman from pursuing a custody claim to a child conceived by her partner through artificial donor insemination. The case arises from Washington state, and the state court opinion holding there is a common law right of defacto parents to pursue custody is linked here. We don't yet have the U.S. Supreme Court opinion, but it's all over the news, the International Herald Tribune, Seattle Post Intelligence, and you can subscribe to the latest with Google Alerts.
It was interesting to see that Courtney Joslin wrote an amicus brief at the Washington State Supreme Court level. She is with the National Center of Lesbian Rights and is counsel, pro hac vice, in the case pending before the Kentucky Supreme Court, which we digested previously and which is posted below. Maybe now that the U.S. Supreme Court has issued its opinion, the Kentucky pending matter will be rebriefed or reargued? We'll report more after reviewing the U.S. Supreme Court case.

Same Sex Adoption and Joint Adoption by Unmarried Couples in Indiana

The Indiana Law Blog posts thoughtful excerpts from an editorial in today's Fort Wayne News Sentinel concerning adoption by same sex couples.
The Indiana Law Blog also reports today that the Indiana Supreme Court has been asked to review a decision permitting joint adoption by an unmarried couple, citing conflicting lower court rulings

Tax Issues Related to Qualified Domestic Relations Orders

Alan Pearlman, who writes the Chicago Family Law Blog, has a great article on the tax side of dividing retirement assets upon divorce:

Tax Issues Related to Qualified Domestic Relations Orders and Divorce

It is reprinted below. Thanks, Alan.

Copyright and Giving Credit Where Credit is Due

Kevin Kelly’s article, Scan This Book! , in today’s New York Times Sunday Magazine (also available online at AOL, Keyword:NYT magazine) is a fascinating look back to the misguided origin of copyright law and its numerous extensions (which the Supreme Court in 2003 called dumb but constitutional) and a look forward to the time when all writings will be scanned and the collective knowledge link will transform our knowledge base and creativity.

I am surprised the article didn’t mention the Creative Commons license, which many bloggers are using, including this blog. We don’t have the logo displayed as we triage our growing “learn how to do” list, but the concept of permitting others to use your work as long as attribution is given seems sound.

The first piece of advice Mike Stevens of KentuckyLawBlog gave as this blog was launched was to  “give credit where credit is due.” Simple. Practical. He didn’t need to go to Congress or to the U.S. Supreme Court to come up with  this gem.

Just in case you are OC, however, there are lots of blogs on the topic, including the Creative Commons Blog and Plagiarism Today. Or, if you want legal advice about the topic, this isn’t it. You wouldn’t go to a  Kentucky divorce lawyer for intellectual property advice, would you? As the big guns and litigious slug it out in the courts, I think Mike’s motto is all I really need to know. I’ll save my worry beads for something else.

Domestic Violence Against Men

The Contra Costa Times has an article on domestic violence against men. Thanks to Janet Langjahr's FlaDivorceLawBlog, for reporting on this. Janet was also kind enough to give me a couple of tips for linking and better describing other family law blogs, which we put in place this weekend.

There are many women who act violently (32% of arrests are of women, as we learned in the AAML/LBA seminar last month). DVO petitions filed by men are about 25% of the total. But, contrary to the article posted by Janet, other studies show 90-95% of victims of domestic violence are female. Men are generally more physically strong or are able to control with the pretense of strength. The context of the relationship must be examined. The essence of domestic violence is the use of power and control.

However, because it is certainly true that many men are victims of domestic violence, services offered should be gender neutral.

Our laws enjoining domestic violence and abuse are designed to prevent further acts of violence, which tend to escalate. No attorney wants a dead client and no judge wants a dead litigant who could have been protected. We all need to assess factors influencing lethality:

Severity of abuse
Patterns of control (Isolation, creating severe economic dependency, stalking and spying)
Suicidal threats (If you leave me, I'll kill myself) are highly indicative
Threats of homicide
Loss of job
Separation is the biggest factor
Destruction of property and Violence against pets also are relevant

A.W., a Child v. Commonwealth, 163 SW3d 4 (Ky., 2005)

A.W., a Child v. Commonwealth, 163 SW3d 4 (Ky., 2005)
KRS 635.060 does not act as a limitation on the length of
sentence a Juvenile Court may impose in the appropriate
exercise of its inherent contempt powers for violation of
its orders. A juvenile can be held in contempt for violating
the conditions of probation.

C.M.C. and C.L.C. v. A.L.W.; P.L.S.; and B.R.C.S.,a Minor; S.A.S. and T.L.S. v. A.L.W.; P.L.S.; and M.P.W., a Minor; S.A.S. and T.L.S. v. A.L.W.; P.L.S.; and A.L.W. II, a Minor, 180 SW3d 485 (Ky., App., 2005)

C.M.C. and C.L.C. v. A.L.W.; P.L.S.; and B.R.C.S.,a Minor;
S.A.S. and T.L.S. v. A.L.W.; P.L.S.; and M.P.W., a Minor;
S.A.S. and T.L.S. v. A.L.W.; P.L.S.; and A.L.W. II, a Minor,
180 SW3d 485 (Ky., App., 2005)
Adoption without the consent of living biological parent is
by its very nature a proceeding seeking the termination of a
parental right. When statutes conflict, the more specific statute
prevails. Held that a party denied right to adopt has a right of
appeal.

Commonwealth v. C.J., a Child; 156 SW3d 296 (Ky., 2005)

Commonwealth v. C.J., a Child; 156 SW3d 296 (Ky., 2005)
There is no right of appeal from a Juvenile Court ruling that
a case is to be resolved by informal adjustment.

Stratton v. Commonwealth of Kentucky, 182 SW3d 516 (Ky., 2006)

Stratton v. Commonwealth of Kentucky, 182 SW3d 516
(Ky., 2006)
Actions of Cabinet for Families and Children in investigating
allegations of child abuse are discretionary, therefore, Cabinet
has immunity from negligence claims.

Wright v. Wright and Fraley v. Fraley, 181 SW3d 49, (Ky.App., 2005)

Wright v. Wright and Fraley v. Fraley, 181 SW3d 49
(Ky.App., 2005)
A full evidentiary hearing must be afforded by the
Court before entering or denying a DVO.
The Court of Appeals reversed the entry of a DVO in Wright and the dismissal of an EPO in Fraley, holding that due process required each party be given a meaningful opportunity to be heard. It was error in the Wright case for the Court to ask no questions of either party and to impermissibly rely upon extrajudicial evidence. In the Fraley case, movant's counsel was not given a full opportunity to develop evidence of the prior violent incident.

The Court of Appeals recognized the immense impact the DVO can have upon victims and the devastating impact it can have on an alleged perpetrator holding that a full evidentiary hearing must be afforded to the parties.

T.D., a Child v. Commonwealth and D.B., a Child v. Commonwealth of Kentucky; 165 SW3d 480, (Ky.App., 2005)

T.D., a Child v. Commonwealth and D.B., a Child v.
Commonwealth of Kentucky; 165 SW3d 480, (Ky.App., 2005)
Complaints charging juveniles as habitual truants should have
been dismissed for lack of jurisdiction. KRS 159.140 requires
the director of pupil personnel to perform a home assessment.
KRS 630.060(2) provides that no complaint shall be received
unless an adequate assessment of the child has been performed
pursuant to KRS 159.140.

Blitz of Final Decisions with SW3d Cites

We have been slowly doling out the final KY decisions of the last year as we build our online database, so we can keep the blawg interesting with other material. Now we're ready to move on to the latest and greatest, so you will see a blitz of the final decisions of the last year over the weekend. Stay tuned to Michael Steven's KyCases and KentuckyLawBlog for cases as they are decided. There is often a long lag before cases become final, because of motions for rehearing or discretionary review. We will only publish the law as it is final and officially published, unless we deem it a hot topic to discuss. There are several of those cases which we are watching and will share with you. As the Supreme Court considers a rule change regarding unpublished opinions, we will cover the public debate, any rule change ultimately adopted, and then make editorial decisions accordingly.

Wheeler v. Wheeler, 154 SW3 291 (Ky.App., 2005)

Wheeler v. Wheeler, 154 SW3 291 (Ky.App., 2005)
Where first maintenance modification motion was denied,
and no modification resulted, the trial court must look at change
of circumstances since the original agreement or decree.
Res judica does not preclude the court from looking at facts and circumstances
occurring prior to the first motion for modification when no
modification was granted. In modifying an agreement
that is subject to further orders of court, the court must
examine the factors set out in Combs v. Combs to determine
whether cohabitation justifies a reduction in maintenance.

Jeffrey v. Jeffrey, 153 SW3d 849 (Ky.App., 2005)

Jeffrey v. Jeffrey, 153 SW3d 849 (Ky.App., 2005)
KRS 454.220, enacted in 1992, supersedes prior case law
and permits a divorce court in Kentucky to assert long arm
jurisdiction to distribute marital property, wherever located,
and to set spousal support where Kentucky was the matrimonial
domicile and the action was filed within one year of the date the
respondent became a non-resident of Kentucky.

Helping Parents Reduce the Conflict; An Interesting Resourse

There is an online site to help parents eliminate the conflict and put their children's interest first, Up To Parents. Looks like these folks have the right idea! Michelle Eisenmenger Mapes learned of this resource on the Indiana Bar listserve.

Waiver of Tax Advice in Agreements?

The Tax Code is law. We are lawyers. Why, then, do we see so many agreements that say "The parties acknowledge that their attorneys have not provided any tax advice, blah, blah, blah?" Yes, it is an attempt at an exculpatory clause for the attorneys. However, did you know that such language could be used to preclude your client from tax deducting legal fees in the instances where fees are tax deductible in divorce? We learned tax law in law school. It was on the bar exam. If you practice family law, you need to keep up a working familiarity with it, and even so, should consider consulting with tax experts so you can be sure you and your client understand all tax implications.

I have touted Mel Frumkes and his book, Divorce Taxation, in this blog. Another resource is the Family Law Taxation Blog. While it hasn't been updated the past few weeks, I have been assured it was only because of these "taxing times" and it will be up and running again soon.

Just as important, and probably more so to your client, is to make sure your client has a tax professional to follow though after the agreement. Such expert assistance can be valuable to both of you though the divorce, and your client will benefit long after he forgets about you.

Need Research or a Brief, but are Understaffed ?

Several Kentucky divorce attorneys, including yours truly, have used Laura (the "goddess") Morgan's Family Law Consulting Service. She has been so generous with her time coming to KY to teach at our seminars, meeting with our Child Support Commission, answering our telephone questions, and magically appearing with "white papers" at precisely the right time, that I am pleased to spread the word that she provides a great brief writing and legal research service. Her website lists what others say about her...