Divorce Law Journal

First Birthday For Divorce Law Journal

It has been one year since the creation of this blog. Hundreds of posts and you do not want to know how much time later, it is now one year old. The fact there was no decline in my office productivity is a sorry testament to much evening and weekend work.

Many purposes have been served, not the least of which was acquiring some badly needed rudimentary tech skills. It is somewhat painful to go back and read the posts from the first several weeks. I don't plan to delete them because someone may gain confidence that the first small steps do not have to be perfect. Nor could I delete the very first comment to a very early post: YAY for meghan!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! hehe i am proud of u mommy.

One of the reasons I created this blog was to archive and easily access information that may be useful at some later time. You read an article, need it later, but where is it? Now we have archived categories in which to find it. Blog technology has had a significant impact on the ability to deliver family law cases and news with lightning speed. All published family law cases in Kentucky for the last two years have been posted, digested, archived, and linked to the online decisions. Practicing attorneys are reading and using it, and their clients are reaping the benefits. Financial professionals and mediators whose work overlaps that of attorneys in helping divorcing couples also now have an easy way to stay up to date, the serendipitous consequence of plowing into an area without a clue where it would lead.

While this blog is owned by Kentucky Divorce Consulting, LLC, the only member is yours truly. Although this is my 25th year of family law practice, this blog has taught me more in the past 365 days than I have learned during the last 10 years. I have long been a staunch believer in the adage that you learn best what you teach. After 545 posts since the beginning of this site, I can now say that what I learned teaching seminars is peanuts compared to what I have learned being accountable to the world. This was an entirely unexpected benefit of hosting this site.

An editorial last Saturday in The Courier-Journal began, No one knows better than newspaper editors the risk of putting things in writing. There's always a reader who has saved something we wish had been thrown away. A few gaffes have been made here with surely more to follow. The best I can promise is that I will be quick to correct. To not have forged ahead notwithstanding the risks would have been a big loss.

The rewards have been rich, the best being many new friendships. I can't say that I have ever before become friends with a person whom I had not met face-to-face. Early on I gathered together the Kentucky lawyers who blog, because I needed to pick some brains to minimize the time consuming proverbial reinvention of the wheel and I really wanted to put a face behind their blogs. My teenage daughter who posted that first comment has been warned of making internet acquaintances, and was later aghast that I had invited perfect strangers to our home for dinner. When introduced to the one who had emailed me a Google satellite map, she said "So, you're the stalker!" We have come a long way since then and now some of those perfect strangers, including Michael Stevens (Kentucky Law Blog), and Ben Cowgill (Ben Cowgill's Legal Ethics Newsletter), and others I have met along the way, including Stan Billingsly (LawReader) are friends as well as mutual and steadfast sounding boards. There are many new legal blogs in Kentucky and if I haven't called you to meet yet, not to worry (nor to breathe a sigh of relief!); we all will get together again. Let's pencil in May 10, 6pm and see if that will work.

Plans are in the works to cure getting to know some of the out-of-towners soon. This summer I plan to land on the doorsteps of Marcia Oddi (Indiana Law Blog), Jeanne Hannah (Updates In Michigan Family Law) and Victoria Pynchon (Settle It Now Negotiation Blog). Beware in year two. I will be taking my inhospitable child on college campus visits, so if you are near a university you may well end up on my "will call upon" list.

I must say that I appreciate the tolerance of the Kentucky Bar Association for not giving us the fits that lawyers in some other states face. I know they are watching our conduct carefully and are no doubt scared out of their wits worrying where this will all lead. I hope all lawyers blogging will keep the ethical requirements of our profession in the forefront of each judgment call before hitting the "publish" button. The lines are often blurry. I believe the test will be whether we do good or we do harm. The best blogs are often controversial, but surely we can discuss controversies and learn from each other for the benefit of the law. So far, so good. Thanks for permitting us to give this medium a try.

Thanks to all who are reading Divorce Law Journal, thanks to those who have shared thoughts, comments and ideas, and thanks for the friendship and support of all the online community who have helped this project blossom, morph, grow and improve. I cannot name everyone in a single post who has helped me, but the mediation community, including Geoff Sharp (Mediator blah...blah...) from New Zealand whom I find the best wit on the web, Diane Levin (Online Guide To Mediation) from the Boston area and known as the mediation matriarch, and Victoria Pynchon (Settle It Now Negotiation Blog) from Beverly Hills, L.A. (a great writer, thinker, and fabulous at finding photos and graphics) has been especially inspiring. I am so glad to know you, and we haven't even spoken by phone. Michelle Eisenmenger Mapes in my office digested most of the 2005 cases and continues to brief some family law cases for Kentucky Cases. Sarah Jost Nieslen (she will be added to our firm website when we update it next month but we introduced her here) digested the rest of the 2005 cases and all of 2006, and I could not have posted the amount of content without their help. Sandra G. Ragland has helped edit when I have asked, and I can assure you if I had asked her more often, this blog would be a breathtakingly beautiful work of the written word. All of us have bills to pay and families to attend, so I think we have stretched admirably, all things considered. Rita Horton, my able, loyal and treasured assistant for the last 15 years has not grumbled once as I added to her burden.

The next major stretch for this blog will be hosting Blawg Review #101 (a Dalmatian theme, maybe?) on March 26, 2007. In that the word "blog" was nowhere to be found in my 2006 New Year's Resolutions, I am not about to predict what will happen beyond that.

2007 Session (KY) Legislative Family Law Updates

Senate Bill 140 (Study feasibility of voluntary acknowledgement-of-paternity
registry):
Introduced by Sen. Richard L. Roeding on February 8, 2007. Passed in the Senate
(35 to 0) on February 26, 2007, to direct the Cabinet for Health and Family
Services to appoint a panel, which may include members of the blue ribbon panel
on adoption, to evaluate issues related to establishing and implementing a
voluntary acknowledgment of paternity registry; require the cabinet to report on
findings by December 31, 2007.
Details and Comments here.

Senate Bill 141 (State pays for counsel in certain custody cases):
Amendment offered by Sen. Ernesto Scorsone on February 16, 2007, to require
counsel fees to be set by the court.
Details and Comments here.

Senate Bill 141 (State pays for counsel in certain custody cases):
Substitute offered in the Senate on February 14, 2007, to require the Court of
Justice to establish administrative procedures relating to juvenile court cases;
delete language requiring judges to explain procedures to parents.
Details and Comments here.

Senate Bill 198 (Expand duties of RN's and PA's) (note from editor, yes, you read that correctly):
Amendment offered by Sen. R.J. Palmer, II on February 26, 2007, to require the
Cabinet for Health and Family Services to provide a means by which information
pertaining to divorces can be electronically filed.
Details and Comments here.

Thanks to Kentucky Votes.org for the updates.

Denzik: The Floodgates Are Opening

Denzik v. Denzik, about which we reported here and digested here, permitted a husband to recoup child support payments many years later, in a civil action for damages, when he was found not to be the biological father of the child born during the marriage. Where will it end? Who knows, but now the Court of Appeals, in a case not yet final but designated to be published, has addressed whether a father who acknowledged paternity has recourse to avoid contempt for non-payment and for recoupment. In short, it was remanded to determine whether there was fraud or misrepresentation, in which case accrued child support may be avoided. Prediction: This is the tip of the iceberg.

Wheat v. Com., Cabinet for Health and Family Services__S.W.3d__, 2007 WL 490946 Ky.App.,2007. February 16, 2007
John Wheat appeals from a Findings of Fact, Conclusions of Law and Order of the Barren Circuit Court, Family Court Division, holding him in contempt of court for failing to pay a child support arrearage. The court imposed a sentence of 180 days in jail, to be suspended on the condition that Wheat begin paying the arrearage. Wheat argues that DNA testing proved that he is not the biological father of the child in question, and that as such the family court erred in ordering him to pay any child support. Pursuant to Denzik v. Denzik, 197 S.W.3d 108 (Ky.2006), issued after the trial court made its ruling, we reverse and remand the matter to the Barren Family Court for further findings of fact on one issue, as set out herein....

If a man is not the biological father of a child and cannot be held on equitable grounds to be the legal father, we acknowledge that there is a strong argument, based on simple fairness, that he should not be required to pay child support. There is, however, another issue in this case, legal rather than equitable, which we must consider. In fact, the trial court in its order did not evaluate this matter from an equitable standpoint at all. It rather indicated a belief that it was bound by a line of cases such as Clay v. Clay, 707 S.W.2d 352 (Ky.App.1986); Stewart v. Raikes, 627 S.W.2d 586 (Ky.1982) and Whitby v. Whitby, 306 Ky. 355, 208 S.W.2d 68 (1948), overruled in part on other grounds, Knight v. Knight, 341 S.W.2d 59 (Ky.1960), which held that past child support obligations, once accrued, may not be modified. In the language of the Whitby court, quoted by the court in Stewart:
"We perceive that no distinction can be made between a judgment based upon a claim for alimony or maintenance and a judgment based upon any other legal right. After the judgment is entered, although it may be subject to modification at a subsequent date, it is binding and final until modified; and any payments which may have become due previous to such modification constitute a fixed and liquidated debt in favor of the judgment creditor against the judgment debtor." Whitby, 208 S.W.2d at 69; Stewart, 627 S.W.2d at 588.

Thus, if there is no exception to this rule, Wheat has no recourse, regardless of the equities of the matter. However, after the trial court issued its order in this case, the Kentucky Supreme Court rendered its opinion in Denzik v. Denzik, supra, holding that a father could recover back from his former wife child support payments previously made to her because the support obligation arose from her fraudulent and years-long claim that he was the child's biological father. Though the facts in Denzik differ somewhat from those at bar-the plaintiff in Denzik did not file a motion to recover past child support payments in his divorce case, but rather in a separate civil suit for fraud-we believe Denzik supports Wheat's contention that past child support payments are voidable in some circumstances.

Denzik did not overrule Clay and the line of cases relied on by the trial court. Neither did it carve out an exception to the rule set out in these cases for every situation where a subsequent paternity test proves that the man paying the child support is not the biological father. However, we believe it did recognize an exception to that rule in the event of fraud or misrepresentation. The Supreme Court in Denzik stated:

"This ruling does not in any way conflict with our precedents on erroneous amounts paid in child support, because error is not fraud.
Cases involving excess child support payments made by judicial error have determined that recoupment or restitution of the excess payments is inappropriate unless there exists an accumulation of benefits not consumed for support. See, e.g., Clay v. Clay, 707 S.W.2d 352 (Ky.App.1986).... However, in the case of fraud and misrepresentation of expenses to the spouse, the court has ordered restitution.... In this case, it was determined that somebody other than the father of the child was paying child support thereby giving this case a different character than the others.
In short, the facts of this case can only be repeated with fraud, not with a floodgate of paternity tests." Denzik, 197 S.W .3d at 112,113.

Thus, since Denzik, if the mother was guilty of fraud or misrepresentation, even child support obligations that have already accrued may be modified. The Commonwealth appears to recognize this and asserts in its brief that, “[t]here is simply no evidence of the unmarried woman deliberately concealing material facts in this case.” This is accurate only in the limited sense that the trial court did not hear any testimony. The parties advised the court that the facts were not in dispute. However, neither the court

Jefferson County (KY) Family Division Committee Meetings

Jefferson (KY) Circuit Court, Family Division has scheduled upcoming committee meetings and notified attorneys on their list by email. Since I do not know whether the judges will be accompanied by their sheriffs, I did not include the location of each meeting. If you are interested in attending, the contact info is noted.

The Family Division has reorganized its subcommittees, and would like to invite you to attend any of the upcoming meetings listed below. If you have suggested agenda topics or need further information, please contact Jim Birmingham, Family Court Administrator, at 595-4392/Fax 595-3472 or [email protected].

Please click beneath the fold for the committees, dates and times.

Black History Month; Marriage (and Divorce) Among Slaves

While the horrible custom of slavery was mentioned when I was in school, Black History was not taught. Our shameful past was glossed over because we were still a racist society. Those of a certain age need to learn history for the first time. How our laws treated marriage and divorce among blacks not all that long ago is important as we examine marriage and divorce among our citizens now, particularly when wrongful conduct is justified by religious beliefs.

I was thinking about this when I saw Pam Platt’s insightful article in the Courier-Journal last Sunday. Then I stumbled upon Mocha Diva. You will find the Diva’s very moving site here. You must check out the beautiful "jumping the broom" image. I have never seen a website or blog that quite so clearly sets the mood and tone of the site's subject matter. Here are some quotes:

Imagine this if you will. Once upon a time in a land called the United States, prior to the abolishment of slavery, negroes, as we were called then, were unable to a large degree to enjoy the sacrament of marriage. While many slaves considered themselves man and wife, living together as such

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.

Who Pays The Warning Order Attorney In An In Forma Pauperis Proceeding?

Spees v. Kentucky Legal Aid 2006 WL 1791154 (Ky. App.)

Discretionary review granted 2/22/07

Issue and Holding:

Whether court appointed attorney is statutorily entitled to be paid for his services. The Court held yes, court appointed attorney was entitled to compensation, however no responsible party existed to pay the attorney.

Facts:

A wife, represented by Kentucky Legal Aid, filed a petition for dissolution of marriage. The family court granted her in forma pauperis status under KRS 453.190. Since the wife told the court that her husband was not a resident of Kentucky, the family court appointed a warning order attorney, Spees, to notify the husband of the pending action.
As required by CR 4.07 Spees filed his warning order attorney report in a timely manner, noting that he was unsuccessful in contacting the husband. Spees filed a motion for $150 fee, asking that the wife or Kentucky Legal Aid pay his fee. The wife argued that her in forma pauperis status exempted her from paying the fee and argued that either her husband, who was not personally before the court, or the Commonwealth, who was not a party, should pay the fee.
The family court denied Spees’ motion for his fee, finding that the wife was not required to pay and that the Commonwealth was not required to pay. Two weeks prior to the court granting the dissolution of marriage, Spees filed an appeal.

Analysis:

First, the Court dismissed Kentucky Legal Aid as a party to the appeal, since they were not a party below. Second, the Court affirmed that Spees had standing to bring an appeal even though he was not a party below, since the Court has consistently required attorneys to become parties on appeals from judgments involving attorney fee disputes. Third, the Court held that Spees’ premature filing of the appeal fell under the “relation forward” doctrine, and therefore did not dismiss his appeal.
As for the merits of the appeal, the Court found that Spees suffered a taking of his property without just compensation under the Fifth Amendment to the United States Constitution and section 13 of the Kentucky Constitution. However, the Court also found that no party was responsible for paying the fee. The Court found the wife was exempt due to her in forma pauperis status, Kentucky Legal Aid was exempt because they were not a party to the action, the husband was exempt since the family court had no personal jurisdiction over him, and the Commonwealth was exempt since it was not a party to the action.
Accordingly, the Court affirmed the lower court’s order denying Spees’ request for fees.

Not Law But Interesting; Thumbs Up To Meghan Steinberg

To borrow a phrase from Marcia Oddi at Indiana Law Blog, "Not Law But Interesting", the first posts on this blog 363 days ago included one about Meghan Steinberg.
Her dad, Jerry(L), a Louisville attorney, had a general practice including family law, and lives across the street from me. Her mom, Freeda Clark, is also a lawyer. The night before I had attended Meghan's first fundraising event. Just seven months post stem cell transplant, this young woman was trying to raise money for the Leukemia and Lymphoma society. She could appear only briefly because of the risk of infection. Jerry led the ceremonies. It was a big success.

When any of us takes stock of a year of accomplishments, it is instructive to look at Meghan's efforts. That first event was just the tip of an iceberg. The following is from her new website Meghan's Mountain, where you can read more and donate, and I am asking you to donate:

Meghan’s Mountain is the story of Sarah “Meghan” Steinberg’s climb to life, and her efforts to make the world aware of the devastating effects of cancer and the need for all of us to work together to raise awareness and funds to find a cure for cancer. Meghan’s Mountain, in addition to raising funds for research, reaches out to those afflicted with cancer so that they know they are not alone in their climb to life.
On January 29, 2005, Meghan, at the age of twenty-two and a student at the University of Louisville school of Justice Administration, was diagnosed with leukemia (AML). Because of her illness, Meghan had to withdraw from college, give up her part time job and begin the fight of her life-the fight to live.
After spending almost four months in and out of hospitals in Louisville to put her cancer in remission, Meghan, in June of 2005, went to the Fred Hutchinson Cancer Research Center in Seattle,

Big Brothers Big Sisters; Donate At LouisvilleDivorceKlutzes Team Page

363 days ago, on the first day of posting, our Bowl For Kid's Sake Team, LouisvilleDivorceKlutzes , benefiting Big Brothers Big Sisters was announced here. It's that time of year again and now I know how to give you a link directly to our team page. Go here to donate to our team. Kentucky Law Review is also sponsoring a team as Mike Stevens posted here yesterday. If you go to his site, you'll not only read a moving starfish story, but you'll be led to his Bowl For Kids' Sake page and see the face behind his blog, along with his wife Diane. He's counting so feel free to donate to his site. The important thing is to support the organization.

Jerry Steinberg, the dad of Meghan Steinberg about whom we are also posting today, was a Big Brother. I will remember the rest of my life going to the 1996 Olympics in Atlanta with one of my best friends, who was a Big Sister along with her Little Sister. With no tickets and no hotel arranged, we loaded them, my niece who was the same age 13, and my daughter, age 6 at the time in the my jeep and headed to Atlanta. We found a new Hampton Inn in Conyers, Ga near the equestrian venue (remember we are from horse country here in Kentucky) and so this dear Little Sister spent her first night ever in a hotel and swam in a swimming pool for the first time. As we were leaving for the stadium jumping event the next day, she was making her bed. The expression on her face when told that a housekeeper would take care of that after we departed was priceless! We take so much for granted.

P.S. We also got to see N. Korea v. Pakistan in the men's field hockey event. The multi-national crowd singing and dancing together to "Y.M.C.A." also remains a treasured memory.

Making Police Obey the Rules That Bear Her Name; A Profile Of Barbara Handschu

Barbara Handschu, the first woman President of the AAML, is highlighted in a nice article in the New York Times regional section today. We were blessed by her participation at several Louisville AAML seminars. In family law we know her as a tireless advocate for children. You may be quite interested in her fascinating life before entering family law. Check out the article. If you have met her, read Stepping Back From Anger or the AAML Model Parenting Plan, or appreciated the video, Voices of Children of Divorce, please send a get well wish. Her office address is 155 Summer St. Buffalo, NY 14222

More On Paternity Fraud: Two TN Bills Introduced

A set of new bills in the Tennessee Legislature would allow men to stop paying child support if a paternity test shows they are not the father. Tennessee House Bill HB1523 and SB1949, would amend T.C.A. section 36-5-101. If the bills become law, men who could prove they are not the biological father would be exempt from paying child support.

This issue has come to be known as Paternity Fraud. In many states even if a man can prove that he is not the biological father, he still must pay child support. The issue is exploding in the news and on the web. Tennessee Divorce and Family Law.

What would happen under these facts: Parents married 17 years, four children ages 15, 13, 11, and 2. Husband in all respects raises the children as his own. Once he's divorced he is happy to abandon the children. DNA proves husband is not the biological father. No other man is willing to step up to the plate to nurture or support the children. Maybe mom had artificial donor insemination after failed attempts to conceive and didn't tell her husband. Maybe they both had a gazillion affairs during the marriage. As our courts and legislatures consider these issues, we must keep the interests of children paramount. Piecemeal correcting wrongs to some may do more long term damage than good if we aren't careful.

Online Resources In Move Away Cases

Ben Stevens at The South Carolina Family Law Blog, posts a nice online link for a useful resource in move away cases.

One of the (many) issues that the Court considers in such cases is the quality of the schools in each location.

Fortunately, it is now easier than ever to find out necessary information about educational institutions located far away, thanks to Yahoo Real Estate. This free service allows you to research both public and private schools in any state by city name or even by zip code.

The information provided includes contact information, enrollment, student to teacher ratio, and location on an interactive map. There are also reports available on the school's test scores, students, and teachers. This resource can prove extremely helpful as a starting point when a child's education is at issue, and I urge you to check it out.

Amicus Briefs In US Supreme Court Grandparent Visitation Case

Howard Basham at How Appealing has posted amicus briefs for and against writ of certiorari in a grandparent visitation case in the US. Supreme Court, Fausey v. Hiller, No. 06-863.

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.

Legislative (KY) Update: Guardian Ad Litem Fees

Senate Bill 141 came before the Senate yesterday and was continued for additional discussions, perhaps this week. The original version of the bill reduced the cap for a GAL from $500 to $250. An amendment struck the cap entirely, leaving the amount of the fee award to the discretion of the court.

Providing good representation to abused and neglected children in dependency proceedings is highly important. As the Kentucky Law Review posted in a comment from John Helmers last week, the $500 cap on GAL fees has not been raised in 20 years.

Now is a good time to voice your concern to the legislature. You can locate your legislator here. The American Academy of Matrimonial Lawyers Kentucky Chapter has endorsed increased funding for GALs.

Should Grandma Divorce Grandpa?

Should Grandma Divorce Grandpa? By Liz Pulliam Weston appears at MSN Money. The population of divorced people over 65 has exploded in the past 15 years, and elder-law attorneys suspect money is at least partly to blame. The idea that money might be a factor in divorce isn't news. But instead of fighting over their money, these attorneys say, older people who divorce might be trying to preserve it. Christine Crawford of Aurora, Ohio, started divorce proceedings after her husband's care for dementia consumed more than $100,000 of their savings.

Crawford said she didn't want to divorce her husband, with whom she'd raised three children, but it was the only way to preserve what was left of their life savings.

"All along I kept saying, 'Absolutely not. I won't do that,' " said Crawford, whose husband died before the divorce was final. "I was so proud of the fact we'd been married for 42 years."

Trapped by aid-program rules
To understand why Crawford faced such a wrenching decision, you need to understand some background:

Medicare, the government insurance program for people 65 and over, doesn't cover long nursing-home stays.
But Medicaid, the federal health program for the poor that does cover such care, generally requires people to exhaust their financial resources before they can qualify for help.
When one spouse gets sick, many married couples face the uncomfortable prospect of having to "spend down" most of their assets to qualify for Medicaid, leaving little for the healthy spouse to live on. If the spouses divorce, however, the healthy spouse may be able to preserve more of the couple's assets.Elder-law attorneys suspect that's among the reasons the proportion of people over 65 who list their marital status as "divorced" has risen nearly 60% since 1990, compared with an 8% rise in the proportion of divorced adults overall.

The attorneys fear the trend may accelerate in coming years, at least in some states, because of recent changes in Medicaid laws that make it tougher to qualify. I outlined some of those changes in "Feds target Grandma's Medicaid."

I concur with the author's sentiments that our federal laws should not encourage divorce.

6th Circuit Affirms Dismissal For Lack Of Jurisdiction Under Alien Tort Claims Act

Taveras v. Taveraz, __ F.3d __ (6th Cir. 2007), 2007 WL 494928 (C.A.6 (Ohio)

Issue and Holding:
Whether the district court had subject matter jurisdiction over the parental child abduction action pursuant to the Alien Tort Statute. The Court held no, the district court did not have jurisdiction.

Facts:

Both parties are citizens of the Dominican Republic. During their marriage, two children were born. In 2003 the couple divorced in the Dominican Republic, and Ms. Taveraz was granted full guardianship of the children. In August 2004 Ms. Taveraz took the children under a visitor’s visa to the United States, allegedly for a two week vacation. In September 2004, Ms. Taveraz contacted Mr. Taveras and told him that she was never returning to the Dominican Republic. Mr. Taveras then discovered her and the children were living in Ohio.
Mr. Taveras filed a criminal complaint and a civil action in the Dominican Republic. In July 2005 the Santo Domingo family court ordered the return of Ms. Taveraz and the children to the Dominican Republic to appear for a hearing. However, they never returned.
In September 2005 Mr. Taveras filed an action against Ms. Taveraz in the United States District Court for the Southern District of Ohio alleging parental child abduction pursuant to the Full Faith and Credit Clause of the US Constitution, the Hague Convention of 1980, and the International Child Abduction Remedies Act. Ms. Taveraz moved to dismiss the action for lack of subject matter jurisdiction. Mr. Taveras then amended his complaint to include a cause of action under the Alien Tort Statute (hereinafter ATS). The district court granted the motion to dismiss for lack of subject matter jurisdiction. Mr. Taveras appealed only the district court’s denial of subject matter jurisdiction under ATS.

Analysis:

The United States Supreme Court held in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), that at the time ATS was enacted only three actions were generally recognized as infractions of the law of nations: piracy, offenses against ambassadors, and violations of safe conducts. The Court also held that other causes of action based upon present day law of nations may be cognizable under the ATS if the claim both “rest[s] on a norm of international character accepted by the civilized world and [is] defined with a specificity comparable to the features of the [aforementioned] 18th-century paradigms[.]” Id. at 725.
In the instant case, the Court rejected Mr. Taveras’ argument that Ms. Taveraz’s actions violated the terms for safe conducts under the law of nations. The Court noted that the purpose of the doctrine of safe conducts was to protect the safety and property of the journeying alien bearing the safe conduct privilege. Therefore, there was no violation of the terms for safe conducts under the law of nations, since there was no infraction of the safe passages of Ms. Taveraz or the children to, within, or out of the United States and there was no injury to their person or property. The Court also found, even assuming Ms. Taveraz’s entry into the United States constituted a violation of the law of nations, that there was an insufficient nexus between this violation and the alleged tort committed against Mr. Taveras. Mr. Taveras’ reliance on Adra v. Clift, 195 F.Supp. 857 (D.Md. 1961) was misplaced.
The Court also rejected Mr. Taveras’ argument that an international consensus against parental child abduction is established through the Hague Convention of 1980, the Hague Convention of 1996, and the United Nations Convention on the Rights of the Child. The Court found that Mr. Taveras failed to produce sufficient evidence that there is an international consensus that the sort of parental child abduction alleged in the complaint is a wrong so generally and universally recognized that it becomes a violation of the law of nations pursuant to ATS.
Finally, the Court held that the district court did not have federal question jurisdiction over the complaint either.
Accordingly, the Court affirmed the lower court’s dismissal of the action for lack of subject matter jurisdiction.

How To Help Your Mediator Settle Your Case

After discussing Five Reasons Why Your Clients Have Unwarranted Faith in the Righteousness of their Cause Victoria Pynchon at Settle It Now Negotiation Blog give us Five Ways Your Mediator Can Help You "Depress" Your Clients' Unreasonable Expectations:

1. let the mediator know you need some help with your client. Call him ahead of time if he doesn't call you to discuss the nuances of the mediation session itself. You can be candid without giving away the store.
2. let the mediator be the "fall guy," taking the "hit" for delivering this bad news -- while you, one of the best attorneys in town, were busily developing a great case, the other side's attorney was doing precisely the same thing.
3. allow the mediator to develop as strong a personal relationship with your client as possible and permit her to ask probing questions that will gently reveal the problems with your case that have developed over the course of time.
4. be willing to break away from your client for separate session caucases with the mediator to discuss how things are going in the attorney-client dynamic so that course-change is possible.
5. let the mediator know that your client is going to need more time to digest bad news -- if your mediator doesn't offer, ask him to arrange for the offer/demand to remain on the table for a pre-determined amount of time and ask him to follow up with both parties during that period of time.
Remember: there's no such thing as impasse, only a recess in the settlement discussions.

Unless, of course, the case is a huge roll of the dice and your client is a gambler, or there is some psychopathology at play where the game is more important than the outcome. Sometimes those cases simply must be tried, but what a shame. Most people would really prefer to control their own destiny.

Blogging About Debt

The New York Times last Sunday featured an article about people who blog about their debt. What made the topic most interesting was the post at Credit Slips which describes itself as a blog on all things about credit and bankruptcy. We are six academics who will use this space to do what we like to do when we get together--discussing and debating what does happen and what should happen when consumers and businesses borrow money. From Angie Littwin, who is writing a law review article on the topic:

For those of us who are interested in debt, a few interesting points emerge. First, for these bloggers, stigma is alive and well. They are using the Internet as a clever way to circumvent it and still obtain the help they need. Many of these bloggers are revealing private information they conceal from their families and friends....Second, these bloggers have developed a self-control mechanism that aligns perfectly with cutting-edge research in behavioral economics. Just yesterday, I read an article by economists George Lowenstein and Ted O’Donoghue in the Chicago Law Review's Winter 2006 Symposium. In "We Can Do This the Easy Way or the Hard Way": Negative Emotions, Self-Regulation, and the Law, Lowenstein and O’Donoghue explain that people use negative emotions to help resist temptation. When the benefits of a decision will be realized immediately, but the costs will not occur so soon, people experience temptation, because we tend to weigh present costs and benefits more heavily than future ones....A final point is to notice what an extreme measure this is. People are revealing information they find humiliating to strangers in order to prevent themselves from spending and accumulating more debt. Perhaps these bloggers and other debtors like them could use a little help....Credit-card issuers don’t need to continue giving these borrowers enough rope to hang themselves. At least one blogger's credit-card debt exceeded her annual income. That seems like a reasonably extreme point to cut off somebody’s credit. Another option is to create easy ways for credit-card users to decline credit raises. If some debtors are resorting to blogging to resist temptation, I’m willing to bet that plenty of others would welcome less dramatic willpower reinforcements.

Some of the most difficult divorces involve division of debt.

More (KY) Family Law Legislation Introduced

Senate Bill 220 (Require prosecution of certain child support cases):
Introduced by Sen. Ed Worley on February 16, 2007, to require a prosecuting
attorney to initiate prosecution in child support flagrant nonsupport cases when
the arrearage owed is $5,000 or greater.
Details and Comments here, thanks to Kentucky Votes.org.

AFCC Conference

AFCC’s 44th Annual Conference to be held May 30-June 2, 2007 in Washington, D.C.

Professionals who work with children and families will not want to miss AFCC’s 44th Annual Conference, Children of Separation and Divorce: The Politics of Policy, Practice and Parenting, May 30-June 2, 2007. The conference will take place at the Capital Hilton in the heart of Washington D.C. and will bring together more than 700 family court, dispute resolution and mental health professionals. Click here for program information and registration form.

2007 Legal Technology Trends

A meaty five part series by Dennis Kennedy, Widening the Digital Divide in Law Practice, appears at Dennis Kennedy.com. Here's Part 1 (an overview), Part 2 (reacting to Microsoft and electronic discovery), Part 3 (making tech business decisions, security and disaster recovery), Part 4 (portability and the internet) and Part 5 (collaborative tools plus his seven bonus predictions).

Not A Good Day For A Divorce Law Blog To Post

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.

Kentucky Putative Father Registry Proposal

The text of SB140 (KY):
AN ACT relating to a voluntary acknowledgement-of-paternity registry.
Be it enacted by the General Assembly of the Commonwealth of Kentucky:

SECTION 1. A NEW SECTION OF KRS CHAPTER 213 IS CREATED TO READ AS FOLLOWS:
(1) The Cabinet for Health and Family Services shall establish a voluntary acknowledgement-of-paternity registry within the Vital Statistics Branch by January 1, 2008. The purpose of the registry shall be to record contact information for a man who wants to voluntarily claim that he may have fathered a child to whom he may claim paternity and that he wants to be notified in the event of an action for leave to adopt the child. The registration form shall include but not be limited to the man's name, the address or telephone number at which he wants to receive notice of a petition to adopt the child he claims, and the name, the address, and telephone number of the mother of the child. The cabinet shall maintain registration forms in a manner that enables it to access a registration form using either the name of the putative father or the mother. The registry shall be maintained as a confidential document and only be accessed through a formally requested search.
(2) The cabinet may establish a reasonable fee for responding to a request for information. The cabinet shall promulgate administrative regulations to establish and administer the registry.
(3) The Cabinet for Health and Family Services shall provide public notice of the voluntary acknowledgement-of-paternity registry that includes the following:
(a) Where to obtain a registration form, including a Web site address;
(b) Where to register, including electronic registration;
(c) Instructions on how to complete registration forms;
(d) The circumstances under which a putative father is required to register to entitle him to notice of an adoption; and
(e) The consequences of not submitting a timely registration.
SECTION 2. A NEW SECTION OF KRS CHAPTER 213 IS CREATED TO READ AS FOLLOWS:
(1) A man may register no later than thirty (30) working days after the birth of the child by completing and submitting a registration form as prescribed by the cabinet. The man may register before the child is born.
(2) On receipt of a completed registration form, the cabinet shall indicate on the form the date of receipt and file it in the voluntary acknowledgement-of-paternity registry within ten (10) working days of the receipt of the registration form.
(3) A man shall be responsible for:
(a) Verifying with the cabinet the accuracy of the registration; and
(b) Submitting to the cabinet an amended registration form when the information supplied by the putative father changes.
(4) If a registered man receives notification that he has been identified by the cabinet in relation to a mother whose child may be the subject of an adoption, he shall file an affidavit of paternity with the cabinet in order to retain parental rights before the notified date of an adoption hearing.
(5) A man may revoke his registration in the voluntary acknowledgement-of-paternity registry at any time by submitting a signed, notarized statement of revocation to the cabinet.
(6) A mother of a child shall attempt to notify the birth father, if known to her, that a petition for the adoption of the child has been filed.
SECTION 3. A NEW SECTION OF KRS CHAPTER 213 IS CREATED TO READ AS FOLLOWS:
(1) A mother, an attorney, an agency or person with a legitimate interest in the parent-child relationship, and other similar state paternity registries may request at any time that the Cabinet for Health and Family Services search the registry to determine whether a man is registered in relation to a mother whose child is or may be the subject of an adoption.
(2) If a petition for adoption is filed, the attorney or agency that arranges the adoption shall:
(a) Request a search of the registry at least one (1) working day after the date of filing; and
(b) File an affidavit of the registry search prepared by the cabinet with the petition for adoption.
(3) No later than ten (10) working days after receiving a request under subsection (2) of this section, the cabinet shall submit an affidavit of a voluntary acknowledgement-of-paternity registry search to the attorney or agency verifying whether a man registered no later than thirty (30) working days after the birth of the child and the cabinet shall attempt to notify the man if he was identified by the search.
Section 4. KRS 213.036 is amended to read as follows:
(1) Each county in the Commonwealth shall constitute a registration district for the purposes of carrying out the provisions of this chapter.
(2) The secretary shall, upon the recommendation of the state registrar, designate a local registrar in each registration district to aid in the efficient administration of the system of vital statistics. The local registrar shall be an employee of the local health department. The designation may be revoked by the secretary.
(3) The local registrar may designate one (1) or more employees of the local health department as deputy registrar. The local registrar may also appoint persons as deputy registrars who are not employees of the local health department if, in the opinion of the cabinet, the appointments are necessary. All appointments shall be subject to the approval of the state registrar.
(4) The local registrar shall supply blank forms of certificates to persons who require them. The local registrar shall carefully examine each certificate of birth or fetal death when presented for filing, to ensure the record has been properly completed. If the certificates are properly completed the local registrar shall sign as local registrar and attest to the date of filing. The local registrar shall also make a complete and accurate copy of each certificate to be filed and permanently preserved in the local registrar's office as the local record, in the manner directed by the Cabinet for Health and Family Services. When a birth or fetal death certificate filed with a local registrar indicates the residence of the mother or the deceased to be in another county, the registrar shall mail a copy of the certificate to the local registrar of the county of residence.
(5) The local registrar shall provide for voluntary acknowledgment of paternity services in accordance with 42 U.S.C. secs. 651 et seq., and transmit original certificates and affidavits of paternity to the Vital Statistics Branch as directed by the state registrar.
(6) The local registrar shall provide forms and instructional information on how to register with the voluntary acknowledgement-of-paternity registry, as established under Section 1 of this Act, and on how the registry operates.
Section 5. KRS 213.046 is amended to read as follows:

KY 2007 Family Law Legislation Introduced

Here are the family law related bills or those that could impact family law that have been introduced to date, thanks to Kentucky Votes.org:
Senate Bill 140 (Establish list of absent fathers; create bureaucracy and fees):
Introduced by Sen. Richard L. Roeding on February 8, 2007, to establish a
voluntary acknowledgment-of-paternity registry.
Details and Comments here.

House Bill 368 (Change interest rates on certain judgments):
Introduced by Rep. Joseph M Fischer on February 8, 2007, to change the interest
rate provided for in certain judgments.
Details and Comments here:

House Bill 369 (Change minimum monthly child support obligation):
Introduced by Rep. Rick Nelson on February 8, 2007, to increase the minimum
monthly child support obligation to $100.
Details and Comments here:

House Bill 382 (Collection of spousal maintenance):
Introduced by Rep. Ron Crimm on February 8, 2007, to permit a court to provide
for wage attachment and automatic electronic transfer of funds for payment of
spousal maintenance.
Details and Comments here:

Senate Bill 147 (Child protection training for judges):
Introduced by Sen. Julie Denton on February 9, 2007, to increase training
requirements of Circuit and District judges to include certain child protection
and custody issues.
Details and Comments here.

House Bill 396 (Domestic violence protective orders extended to dating
partners):
Introduced by Rep. Joni L Jenkins on February 9, 2007, to include dating
partners among the class of persons allowed to obtain domestic violence
protective orders.
Details and Comments here.

We previously reported on the covenant marriage proposal here.
It is now HB 110 and may be followed here.

Senate Bill 141 (State pays for counsel in certain custody cases):
Introduced by Sen. Julie Denton on February 8, 2007, to require separate counsel
for an indigent parent who does not exercise custodial control of the child in a
proceeding for adoption without parental consent .
Details and Comments here.

A press release from Kentucky State Government states legislation has been introduced adopting the recommendations of the Blue Ribbon Panel on Adoption, including:
• Require training for judges, guardians ad litem (GAL) and court-appointed counsel associated with child welfare cases.
• Require that the court appoint a GAL or an attorney before a temporary removal hearing (rather than after the hearing) so children are not removed from home without legal cause.
• Increase fee limits for GALs and court-appointed counsel.
A post and comment at Bluegrass Report.org indicates that that although the actual bill does not do this, an amendment is expected. The Kentucky Law Review has an updated post on this issue, too

The Kentucky Law Review also has a nice round-up of other legislation here and here.

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.

The Best Mediators are the Most Creative Mediators

Geoff Sharp at mediator blah...blah.... discusses decision trees in mediation and links to TreePlan®. This software builds a decision tree diagram within Excel. Now that’s what I would like to see a mediator show up with at a second or third mediation!

Diane Levin at Online Guide to Mediation hosts Blawg Review #94 this week on her site with the negotiating theme “getting to yes.” All lawyers must constantly hone negotiation skills. I was surprised to learn a fact known only to good mediators; it takes four hours of preparation for every hour of negotiation. Do that work early and you won’t be preparing for trial.

New Bar and Grill Singers have a video on Settle It Now Negotiation Blog by Victoria Pynchon, Appointed Forever, about federal court judges. Her stepson, Adam, is clerking for the 9th Circuit in Hawaii and his musical group in Austin, Texas not only entertains across the country, but has two CDs for sale on its website to benefit volunteer legal services for the indigent.

Russian Matryoshka dolls attracted me to a recent post by Dina Beach Lynch in Boston, Mediation Mensch. Those classic souvenir dolls are in my office as fond memories from a trip to St. Petersburg and Sandra Ragland sports a set of nesting dolls which resemble former presidents. From that post I learned of Laurie Israel, a mediator who originally assisted divorcing couples. Her interests in marriage, however, morphed to her current practice, mediation to stay married. This is a valuable service and niche that I would like to see spread.

And, on the light side, for those in horse country, horse nesting dolls are available.

UPDATE: Update on today’s post from Sandra Ragland: When Shannon (her son) visited Ukraine last fall, he brought me a set of nesting dolls dramatically documenting the career, rise and fall, of Elvis Presley.

Good Quotes

At I Can't Say That! Dr. Tammy Lenski posts her February quote of the month,
Having a good discussion is like having riches. Her blog on "the relationships that matter" is always a delight. Other gems from her archives:

In the middle of difficulty lies opportunity. Albert Einstein

The only difference between stumbling blocks and stepping stones is the way in which we use them. Adriana Doyle

There are two ways of meeting difficulties: You alter the difficulties or you alter yourself meeting them. Phyllis Bottome

Transformation comes more from pursuing profound questions than seeking practical answers. Peter Block

Don't fight forces; use them.Buckminster Fuller

We don't see things as they are. We see things as we are. Anais Nin

Between stimulus and response is the freedom to choose. Viktor Frankl

The wise man doesn't give the right answers, he poses the right questions. Claude Levi-Strauss

Tell me, I may listen. Teach me, I may remember. Involve me, I will do it. Chinese Proverb

Conflict is the gadfly of thought. It stirs us to observation and memory. It instigates to invention. It shocks us out of sheeplike passivity, and sets us at noting and contriving. John Dewey

To truly listen is to risk being changed forever. Sakej Henderson

Every person you fight with has many other people in his life with whom he gets along quite well. You cannot look at a person who seems difficult to you without also looking at yourself. Jeffrey Kottler

What we see depends mainly on what we look for. Sir John Lubbock

I tend to fondly remember influential people in my life by their oft-spoken quotes. Dr. Lenski's February, 2007 quote reminds me of former Jefferson Circuit Judge Rebecca Westerfield saying that she knew she had "made it" when she could afford to buy all the books she wanted to read. The listening theme within many of Dr. Lenski's archived quotes reminds me of one of Alan T. Slyn's jewels: You can't learn with your mouth open.

Kentucky Has Opportunity to Join Majority In Distinguishing Personal v. Enterprise Goodwill Per Shannon Pratt

Personal Versus Enterprise Goodwill
Gaskill v. Robbins digested here and discussed here was the subject of an article in the February 2007 edition of Business Valuation Update by Shannon Pratt: Kentucky Has Opportunity to Join Majority In Distinguishing Personal Versus Enterprise Goodwill (subscription only, not available online).
On appeal, the wife contended the family court “operated under the misconception that it was compelled to assign a goodwill value” to her practice, and the Court of Appeals agreed. While Kentucky law requires considering goodwill in the valuation of a medical practice-it does not compel it, and the case merited remand.
At the wife’s urging, the Appeals Court also considered whether Kentucky law should join the majority of US jurisdictions in distinguishing enterprise and personal goodwill in divorce actions….
As in the May case, which went through an appeals process to the highest state level, the Kentucky Court of Appeals may simply have deferred the ultimate question to the Kentucky Supreme Court. In a dissent, a senior judge on the appellate panel indicated he believed “personal goodwill should not be considered marital property to be divided between the parties.” However, he added, “This is a matter to be addressed to our Supreme Court,” as both the trial and appellate courts had not erred in their rulings under Kentucky law.

The case is not yet final. A motion for reconsideration is pending in the Kentucky Court of Appeals. As we previously grieved, however, it will be very difficult for the wife to move for discretionary review since she won a new child custody trial, and probably is more eager to have the case remanded for a new trial. These may not be the best facts for the Kentucky Supreme Court to revisit this issue, anyway, as the non-business owner spouse in Gaskill did contribute marital efforts working in his wife’s oral surgery practice. That complicates the issue of contribution of a spouse with the more precise issue of segregating personal goodwill from enterprise goodwill. However, the legal issue was well presented and perhaps if discretionary review is taken, the spousal contribution anomaly could be parsed from the precise issue.

Post-Nuptial Agreements On the Rise

Post-nuptial agreements, sometimes called mid-marriage agreements, are contracts entered into by a married couple for some reason other than an anticipated divorce or separation. Sometimes they are reconciliation agreements. Most states hold that the standard for enforceability is the same as with prenuptial agreements and must be fair, reasonable, and made with full disclosure.
Last month, the AAML released a survey of its members and some comments:

CHICAGO, Jan. 31. In a recent poll of American Academy of Matrimonial Lawyer (AAML) members, 49% of the divorce attorneys cited an increase in postnuptial agreements during the past five years. Interestingly enough, 58% of the respondents most frequently draw up the agreements as a result of a request made by both parties, rather than it coming from either a husband or wife individually.
Rising in popularity throughout recent years, postnuptial agreements are voluntary marriage contracts between couples who are already married. The terms of postnuptial agreements can cover a wide variety of issues within a marriage, including disputes over potential finances, assets, children, and household chores. Couples can also seek a postnuptial agreement if the financial status of one or both partners changes dramatically after the marriage. The overall goal of the agreements is to help stop any potential conflicts and promote a stronger relationship.
"Postnuptial agreements, where valid, can be a good tool for addressing and solving problems spouses might be experiencing in their marriage," said Gaetano "Guy" Ferro, president of the AAML. "Having a written document with expectations and obligations clearly set forth reduces the areas of disagreement for spouses and can remove a good amount of stress from everyday married life."
Among the strangest items included in some postnuptial agreements, AAML members have noted: limits of the future number of children, provisions for pet visitation and care, and the dividing up of cemetery plots in the event of divorce.
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, members are recognized experts in the specialized areas of matrimonial law, including divorce, prenuptial agreements, legal separation, annulment, custody, property valuation and division, support, and the rights of unmarried couples..

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

Open Access and Legal Scholarship

Thanks to Marcia Oddi and Indiana Law Blog for the post "Open Access and Legal Scholarship"

"Download It While Its Hot: Open Access and Legal Scholarship" is the title of a law review article by Lawrence Solum, of the Legal Theory Blog. The abstract:

This Article analyzes the shift of legal scholarship from the old world of law reviews to today's world of peer reviews to tomorrow's world of open access legal blogs. This shift is occurring in three dimensions. First, legal scholarship is moving from the long form (treatises and law review articles) to the short form (very short articles, blog posts, and online collaborations). Second, a regime of exclusive rights is giving way to a regime of open access. Third, intermediaries (law school editorial boards, peer-reviewed journals) are being supplemented by disintermediated forms (papers on the Internet, blogs). Blogs and internet conversations between academics are expanding interdisciplinary legal scholarship and increasing the avenues of communication among legal scholars, practitioners and a wide array of interested laypersons worldwide.

Winter Coats Needed; Baby Blankets, Too

Kentucky Jefferson Circuit Court Family Division Judge Patricia Walker FitzGerald's request for donations of winter coats was publicized in David Hawpe's column in the Courier-Journal today.

In this frigid weather, the Jefferson Family Courts have women coming to the courthouse for domestic violence protective orders and bringing children who are not dressed for the cold. Little kids are coming in without appropriate shoes, coats, hats or gloves. Often the victims have to leave their homes quickly, with no time to collect any clothing or other necessities.

The court staff try to keep a supply of coats there so that they don't have to send the kids back out the way they came in, but our supplies are depleted. If you live in the Louisville area and have any extras, or know of folks who might, please consider donating your discarded children's winter outer garments.

In response to an email asking where to deliver donations, Judge FitzGerald wrote "Clothing can be taken to the family court clerks' office. Would you add baby blankets to your list? I left them off and we need them desperately."

Alabama, Georgia, Missouri and Oklahoma Family Law Blogs Added To Blog Roll

Scroll down and you will see on the left column a list of other family law blogs. I am pleased to announce the additions of Georgia Family Law Blog by Stephen M. Worrall, Marietta, Missouri Divorce and Family Law Blog by Mark A. Wortman, Kansas City, Oklahoma Family Law Blog by Dan Nunley, Tulsa and Alabama Family Law Blog by Sherman & Jeffries, LLC, Mobile. Welcome!

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.

Gaskill v. Robbins

Gaskill v. Robbins, __ S.W.3d __ (Ky. App. 2006), 2006 WL 3524380 (Ky. App.) Not final, motion for reconsideration pending.
Issues and Holdings:

1) Whether the trial court abused its discretion when it failed to allow wife to introduce a prior inconsistent statement from psychologist. The Court held yes, the lower court abused its discretion.
2) Whether the trial court’s error in making a finding of fact that relied on unsworn statements from a hearing dealing with the guardian ad litem’s motion to review temporary custody prejudiced the wife. The Court held yes, the error did prejudice the wife.
3) Whether the trial court exercised its discretion when it assigned the goodwill value to the wife’s medical practice. The Court held no, the court did not exercise discretion.
4) Whether the trial court was required to make a distinction between “personal” goodwill and “enterprise” goodwill when valuing the wife’s business. The Court held no, the lower court was not required to do so.

Facts:

The parties were married in May 1992, with one child born in the marriage. Gaskill, the wife, is an oral and maxillofacial surgeon who already had a successful practice in Russellville at the time of the marriage. After the marriage, she opened up an additional office in Bowling Green. Robbins, the husband, was employed outside Gaskill’s practices, but also assisted her in opening the second office by interviewing and training staff, setting up the physical structure of the office, and assisting in clerical matters. Robbins also helped with the tax, payroll, and accounting matters of Gaskill’s business, prepared profit and loss statements, negotiated leases for the office space, and terminated employees when needed. Both parties maintained the household and cared for their child.
The parties separated in August 2003, and Gaskill filed for divorce in October 2003. The main issues in the divorce proceedings were the valuation of Gaskill’s business, how the marital property should be divided, and the custody of their child. The trial court granted sole custody to Robbins and awarded each party approximately 50 per cent of the marital property. Gaskill appealed.

Analysis:

On appeal, Gaskill argued that the lower court erred in refusing to allow her to introduce a prior inconsistent statement made by Dr. Fane, a psychologist, and ruling that said statement was inadmissible hearsay. At trial, Dr. Fane testified that he did not believe that either parent could be considered better than the other regarding custody. Gaskill’s counsel asked him about a statement he had made to Dr. Buchanan indicating that Gaskill was the better parent, but Dr. Fane testified that he did not recall making such a statement. Gaskill’s counsel then attempted to call Dr. Buchanan to impeach Dr. Fane, but Robbins’ counsel objected and the trial court sustained the objection to inadmissible hearsay. The evidence was then introduced by avowal. The Court held that the lower court erred in failing to allow the impeachment testimony. The statement satisfied KRE 801A (a) (1) and counsel laid the proper foundation for the testimony to be heard. In addition, the court’s findings of fact show that the court relied on Dr. Fane’s testimony in its custody determination. Therefore, omission of the impeachment testimony was error. The Court did not consider whether the error was reversible, as the Court found other reversible error.
The Court also found that the trial court erred in making findings of fact that relied on unsworn statements made at a hearing concerning the Guardian Ad Litem’s motion to review temporary custody. At the hearing Robbins’ counsel and the GAL repeated numerous hearsay statements about Gaskill’s alleged interference with the child’s schooling, including statements supposedly made by the child and the child’s school principal. The court’s findings of fact clearly show that these statements were relied upon by the court. Therefore, the court’s consideration of the statements was prejudicial, and the court’s custody determination must be reversed.
Gaskill also argued that the lower court erred in its valuation of the marital property by failing to exercise its discretion in assigning goodwill value to Gaskill’s business and by failing to distinguish between personal and enterprise goodwill. Gaskill’s expert testified that her business had no goodwill value, since any goodwill attributable to the practice was personal goodwill. He testified that the practice had a fair market value of $114,000.00. Robbins’ expert testified that the practice had a value of $669,075.00, which included its goodwill value. The Court held that the lower court erred in failing to exercise its discretion in assigning a goodwill value to the business. The lower court felt required to assign a goodwill value to the business, but was not required to do so. Thus, the Court remanded the issue for further consideration.
Regarding whether a distinction should be drawn between personal and enterprise goodwill, the Court held that the case law in Kentucky does not support such a distinction. The Court stated that it was not inclined to deviate from the precedent by creating a “wholesale change of law” holding that a distinction should be made, even given the fact that Gaskill’s business is a sole proprietorship. Such a distinction would ignore the nonprofessional spouse’s contribution to the success of the professional spouse’s business. Because Robbins made numerous contributions to Gaskill’s business, the Court stated that the goodwill of the practice should be considered in valuing the marital property on remand.
The Court reversed and remanded for further proceedings consistent with the opinion.

Judge Paisley concurred in part and dissented in part.

He would affirm the trial court’s award of sole custody to Robbins. He also stated that Gaskill made a good argument why there should be a distinction between personal and enterprise goodwill, but asserted that this was an issue that the Kentucky Supreme Court should address. He therefore agreed with the majority on this issue

Kentucky: Grandparent Visitation

This case is not yet final.
Vanwinkle v. Petry, __ S.W.3d __ (Ky. App. 2007), 2007 WL 121965 (Ky. App.)

Trial Court ordered that Grandparents were to approve any change in Mother’s visitation with children, though Mother and Father shared joint custody. Trial Court also, sua sponte, increased maternal grandparents’ visitation with minor grandchildren from one to two weekends per month.

Issue One: May the Court, sua sponte¸ award visitation to grandparents?

UIFSA Jurisdiction

This case is not yet final.
Gibson v. Gibson, __ S.W.3d __ (Ky. App. 2006), 2006 WL 3751413 (Ky. App.)

Issue: If both parents and child relocate from Kentucky where the original orders of custody and child support were entered, does Kentucky retain jurisdiction to then modify the orders and/or to enforce the orders?

Maintenace Modification Only If Wife's Circumstances Improve

Note: This "to be published" case is not final; a motion for discretionary review has been filed:
Massey v. Massey, __ S.W.3d __ (Ky. App. 2006), 2006 WL 2517525 (Ky. App.
Issues and Holdings:
1) Whether a maintenance order that is subject to modification is an open-ended award rather than lump sum. The Court held yes, such an order is an open-ended maintenance award.
2) Whether the family court’s order permitting modification of maintenance only if the former wife’s income increased was authorized by the maintenance modification statute. The Court held no, such an order is not permitted under the statute.
3) Whether the amount of maintenance awarded was adequate. The Court held yes, the award was adequate.
4) Whether the family court’s findings were sufficient to support the five-year duration of the maintenance award. The Court held no, the court’s findings were insufficient.

Facts:

The parties were married on August 21, 1982 and divorced on September 3, 2004. Lisa, the Appellant, was 41-years-old at the time of the divorce. One child was born of the marriage. The court awarded Michael sole custody of the child. Lisa was granted visitation, and ordered to pay $175 per month in child support. Lisa was awarded maintenance of $1200 per month, which was to be offset by her child

Imputed Child Support Obligations

Note: This case is not final; a motion for discretionary review has been filed.
Kimbrough v. Com, __ S.W.3d __ (Ky. App. 2006), 2006 WL 2034015 (Ky. App.)
Issues and Holdings:
1) Whether the child support statute that provided a deduction from a parent’s gross income for an “imputed child support obligation” violated equal protection. The Court held no, the statute had a rational basis and therefore did not violate equal protection.
2) Whether the Court of Appeals was required to presume that the trial court’s order allowing the mother a deduction from her gross income for imputed child support for a prior-born child was proper. The Court held yes, that it was so required because the appellate record was incomplete.

Facts:

The mother filed a paternity action, regarding two children, against the father, and paternity was established. The father was required to pay child support. Approximately ten years later, the mother filed a motion for an increase in child support for child care and health care costs. The court granted the motion, and the father filed a motion to set aside the order. The father argued that KRS 403.212(2) (g) (4) was unconstitutional because it violated due process and equal protection. He claimed that the statute’s

KY: Cabinet May Not Appeal Failure Of Court To Terminate Parental Rights

This case is not yet final.
K.R.L. v. P.A.C., __ S.W.3d __ (Ky. App. 2006), 2006 WL 3459727 (Ky. App.)
At the trial court level, Mother petitioned the court to terminate Father’s parental rights, claiming in the petition that Father had abandoned Son for nearly two years and failed to provide essential care for Son. The trial court denied the petition and Mother brought her appeal, despite KRS 625.110’s provision that only the termination of parental rights can be appealed, thereby precluding the appeal of a denial of parental rights. Mother contested the constitutionality of this statute, claiming Section 115 of the Constitution guarantees her right to an appeal and that a circuit court’s decision declining to terminate parental rights

Hinshaw #1:Equitable Estoppel To Deny Paternity

Hinshaw v. Hinshaw, __ S.W.3d __ (Ky. App. 2006), 2006 WL 2519221 (Ky. App.)
This is Hinshaw #1, motion for discretionary review pending.
Issues and Holdings:

1) Whether the former husband could have custody rights to former wife’s child even though he was not the child’s biological father. The Court held yes, the former husband had such rights.
2) Whether the doctrine of equitable estoppel could be applied to prevent the former wife from arguing that the former husband was not the father. The Court held yes, the doctrine applied since the former husband relied on the former wife’s misrepresentations of his paternity to his detriment.
3) Whether the record supported the award of attorney fees to the former husband. The Court held yes, the record supported the award.

Facts:

The parties were married in December 1988. One child was born in the marriage in June 1999. The former husband was present in the delivery room and cut the umbilical cord, and the birth certificate lists the former husband as the father. The former wife filed for divorce in January 2003 and stated in her petition that the parties were the parents of the child. Later, she amended her petition and alleged that the former husband was not the father and requested a court-ordered DNA test to prove it.

Still Another KY Move Away Case

Editor's note: This case is now final, and we will update post with SW3d cite when available.
Robinson v. Robinson, __ S.W.3d __ (Ky. App. 2006), 2006 WL 3460123 (Ky. App.)
Issue and Holding:
Whether the trial court had the jurisdiction to modify the custody decree regarding one parent’s wish to relocate with the children. The Court held no, the trial court lacked jurisdiction.

Facts:

The court entered its first custodial ruling in the divorce decree in June 2005. The Court awarded the parties joint custody of the children and designated the mother as the primary custodian. The decree also stated that if either party relocated more than 150 miles from the county that the time

Classification of Marital and Non-marital Property, Debt and Maintenance

Smith v. Smith, __ S.W.3d __ (Ky. App. 2006), 2006 WL 140577 (Ky. App.) Motion for discretionary review pending.

Hinshaw #2: Attorney Fee Award Must Be In Name Of Attorneys

This case is now final; SW3d cite will be supplied when available. This is Hinshaw # 2, not to be confused with Hinshaw #!, in which a motion for discretionary review is pending.
Hinshaw v. Hinshaw, __ S.W.3d __ (Ky. App. 2006), 2006 WL 3334040 (Ky. App.)

April 19-20, 2007 AAML/LBA Seminar Brochure Available

You may download the April 19-20, 2007 AAML/LBA 10th annual seminar brochure for info and registration here:Download seminarbrochureaaml_072nd.pdf

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The Power Of Influence From Victoria Pynchon

Settle It Now Negotiation Blog turns to Robert B. Cialdini's Six Rules of Influence That Could Make Or Break Your Next [Commercial] Negotiation. The same principles apply to negotiation in any mediation and this post is excellent. Check it out.

Kentucky Family Law: The Rest of 2006

Tomorrow you will find a blitz of recent Kentucky family law cases posted that have not previously been digested on this site. This does not indicate a shift in editorial policy to publish summaries and links only when a case is final unless newsworthy or tickles our fancy. The cases had to be digested anyway for the 2007 update to Kentucky Divorce (West/Thomson) and for the 16th annual Domestic Relations Update seminar with Hon. Richard A Revell at the Louisville Bar Association, so we might as well share. Don't get used to it though. Michael Stevens does an excellent job at KyCases of posting Court of Appeals and Supreme Court minutes which highlights all cases hot off the press, even "not to be published" cases with follow up summaries of the published cases soon. A lot can happen between the initial decision and finality. It is simply too time consuming to post a draft and then follow for finality on an ongoing basis. We will continue to post new law as it becomes law. Meanwhile, enjoy an end of the year wrap-up here. This will mark two years of all published family Kentucky cases archived on this site, even though the site has only been up a little less than one year. Maybe next year will be easier!