Divorce Law Journal

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Louisville Bar Association to Discuss Impact of Amanda's Bill Tomorrow Afternoon

What:    The Louisville Bar Association will be hosting a panel discussion on the recent changes and impact of House Bill 1 (Amanda’s Bill).   

 

When:   Thursday, July 22, 2010, 4:00 – 5:30 p.m.

 

Where:   Louisville Bar Center, 600 W. Main St., Suite 110.

 

Who:     Members of the Louisville Bar Association, AOC representatives, prosecution, local and state law enforcement, advocacy services, corrections and members of the Louisville Metro Domestic Violence Prevention Coordinating Council.

 

Why:     Legal professionals and advocates from across the Commonwealth will be on hand to answer questions and discuss the changes in both civil and criminal domestic violence practices in efforts to educate the public by bringing awareness to domestic violence and victims.

 

  The program is free and open to the general public. Seating is limited. Reservations are encouraged.

 

REPORTERS/EDITORS: All panel speakers and members of the Louisville Bar Association will be available for interviews at a reception immediately following the program.

 

For more information: Visit www.loubar.org or call the LBA office at (502)583-5314.

 

Contact: Scott Furkin, 502-583-5314 

Ky Criminal Background Checks - New Way To Access

AOC Announces Changes

The Administrative Office of the Courts announced changes to its service that provides criminal background reports.

The following changes will be effective Jan. 19, 2010:
- There will be a standard fee of $15 for all criminal background reports;
- A new automated program, AOCFastCheck, will allow the public to request and receive reports online;
- There will be only three ways to request records  online, by drive-thru service in Frankfort and by mail.

The increase from $10 to $15 will be the first fee increase the AOC has implemented since 2003. At $15, the fee is still less than the amount charged by several other states for background reports.

The AOC Records Unit processes approximately 950,000 criminal record reports each year. The reports are produced from data stored in CourtNet, the statewide database used by the Kentucky Court of Justice to collect information from the court case management system in each county. About 60 percent of those reports are provided free to schools and government agencies. Reports to schools and government agencies will not be affected by the fee increase and will continue to be provided free of charge.

In an effort to more quickly fill requests for criminal record reports, the AOC will make AOCFastCheck, a new automated online system, available to anyone who wants to become a registered user. This new service begins Jan. 19.

AOCFastCheck represents a huge technological leap in our ability to meet the demand for criminal record reports, said Jason Cloyd, manager of the AOC Division of Records and Statistics. The limitations of our manual system have made it challenging to respond to the growing volume of record requests in a timely way.

The AOC first offered AOCFastCheck to Kentucky schools in August 2009 as a way to quickly turn around the thousands of criminal record reports requested annually for school personnel and volunteers. Cloyd said that the test run of AOCFastCheck proved to be a great success and he looks forward to providing this online option to the public.

The AOC hosts AOCFastCheck on a secure server. To establish a free account beginning Jan. 19, individuals can visit www.courts.ky.gov and click on Obtain a Criminal Background Report under Helpful Links. Once users have an account, they can submit a request at any time and be notified by e-mail when the criminal record report is available. They log onto the same account to submit requests, track the progress of requests and receive reports. AOCFastCheck users pay online per request using certain credit and debit cards or an electronic check.

For more information, call the AOC Records Unit at 800-928-6381 between 8 a.m. and 4:30 p.m. Monday through Friday.

Walgreens Begins Retail Sale of Identigene DNA Paternity Test Kit

From The Wall Street Journal Market Watch: "Suggested retail price for an Identigene DNA Paternity Test Collection Kit is $29.99. The Walgreens.com price is the same, plus shipping. The laboratory and processing fee for the personal test is $119. The laboratory and processing fee for test results for legal proceedings is $319."

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

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

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

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

The Morning After Bio-Dads Lose Big In Kentucky

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

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

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

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

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

Judge Montano's Passing; Courts Closed On Friday

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

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

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

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

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

Court Orders Blog Post By Divorce Litigant Removed

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

Sad News

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

Courier-Journal Reports On KY Duped Dad Decision

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

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

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

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

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

Shaming Child Support Obligors Into Paying; Jailing The Deadbeats

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Alienation Of Affections

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

Paperless Family Courts: The Pluses And The Perils

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

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

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

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

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

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

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

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

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

Tell-All PCs and Phones Transforming Divorce

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

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

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

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

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

The article continues,

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

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

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

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

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

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

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

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

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

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

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

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

Jefferson County, KY Pro Se Divorce Forms Now In Use

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Family Law "Super Lawyers" Announced in Kentucky

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

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

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

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

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

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

Yeah!

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

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

Court Orders Sperm Donor To Pay Support

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

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

It is an interesting decision for a number of reasons.

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

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

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

The article goes on to report these comments from attorneys:

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

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

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

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

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

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

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

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

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

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

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

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

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

IdeaFestival Returning To Louisville, Kentucky

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

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

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

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

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

KBA President Responds to Courier-Journal Paternity Articles

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

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

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

Amen.

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

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

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

Courier-Journal Companion Piece On Uniform Parentage Act

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

Wolfson Lays Out Paternity Law Chaos

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

Father's Rights Law Firms

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

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

U.S. Supreme Court Declines Polygamy Case

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

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

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

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

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

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

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

Gag Orders Against Parents

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

Italian Government Approves Bill to Grant Legal Rights to Cohabitants

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

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

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

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

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

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

Legislative Proposals Elsewhere

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

Washington Initiative to Require Couples to Have Children

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

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

Connecticut Ban Smoking if Child Present?

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

Opening Court Proceedings Involving Minors

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

Same day. Same argument.

Two different judges, two different answers.

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

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

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

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

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

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

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

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

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

Opening juvenile court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Immigration lawyers noted that most immigration violations, including those committed when people enter the country illegally, are civil, not criminal, offenses. They warned that the new law would make it difficult for immigrants to remove their DNA profiles from the federal database, even if they were never found to have committed any serious violation or crime.

Under the new law, DNA samples would be taken from any illegal immigrants who are detained and would normally be fingerprinted, justice officials said. Last year federal customs, Border Patrol and immigration agents detained more than 1.2 million immigrants, the majority of them at the border with Mexico. About 238,000 of those immigrants were detained in immigration enforcement investigations. A great majority of all immigration detainees were fingerprinted, immigration officials said. About 102,000 people were arrested on federal charges not related to immigration in 2005.

While the proposed rules have not been finished, justice officials said they were certain to bring a huge new workload for the F.B.I. laboratory that logs, analyzes and stores federal DNA samples. Federal Bureau of Investigation officials said they anticipated an increase ranging from 250,000 to as many as 1 million samples a year.

The laboratory currently receives about 96,000 samples a year, said Robert Fram, chief of the agency’s Scientific Analysis Section.

Are Law Schools Teaching Practitioners What They Need To Know?

These days, to call law school a "trade school" is considered an insult to the establishment. Professors are firmly entrenched in their intellectual camps and pursue their academic agendas. Faculty members with "real world" experience are rarely hired on that basis alone--although it is quite common to hire professors who have clerked for judges but never practiced at all. The Carnegie Foundation is to be admired for advocating more clinical education, in which students will have an opportunity to learn some hands-on skills.

But at the moment law-school clinics are short-term experiences. Students engage in limited representations in a specific field of practice, usually with a liberal tilt. (When was the last time, for example, that a law school opened a clinic to help small-business owners deal with claims brought against them under the Americans with Disabilities Act?) A few more clinics will not change the fundamental prejudice against experiential training when the entire system is rigged against it.

If law schools really want to change the way they train young lawyers, they would look to medical schools. The latter require clinical "rotations" in the last two years of a student's education and then demand at least one more year of training after graduation. By the time your doctor is licensed, he has examined hundreds of patients.

While many new lawyers will start out at big firms where they will rarely get to meet a client, most still go to smaller firms where they will meet clients immediately. The state bars profess interest in protecting the public, but none seem to care whether new lawyers can actually do the tasks with which they will soon be confronted.

Of course, law schools do not have the luxury of large teaching hospitals, with a mostly compliant indigent population on which their greenhorns can practice. And lawyers can't perform needle sticks on a corpse, as doctors can (no jokes, please). They are also restricted by the accrediting rules of the American Bar Association, which limit how many clinical hours a student may take.
But law schools can still act. They could team with local practitioners and institutions and demand that their students gain sustained clinical experience--broadly defined to include anyone needing legal help, not just the usual (nonprofit) suspects. The state bars could refuse to license lawyers until they performed at least one year of postgraduate work, as some other countries require.

Law is not brain surgery. It is a skill that can be acquired through practice and repetition. This is perhaps the most interesting lesson from Brian Valery, the over-ambitious paralegal: He fooled those around him who ought to have known best. In the late 1990s, I litigated against another paralegal who later pleaded no contest to five criminal misdemeanor charges of unlicensed law practice. What struck me about him at the time was how good he was at his job. He blustered, bluffed, threatened and cajoled with the best of them. He knew the law and argued it capably. But then again, he learned his trade the old-fashioned way: He practiced it.

Indiana Law Blog brought this editorial from The Wall Street Journal by Cameron Stracher to my attention in a post "Law schools rarely teach students how to be lawyers." Mr. Stracher is publisher of the New York Law School Law Review and co-director of the Program in Law & Journalism.
Now about the brain surgery; retired Judge Richard FitzGerald often said that deciding the fate of abused and neglected children was not brain surgery, it was much more difficult.

Comments:Who's Your Daddy?

Please note: I am updating this post as comments are received, so check back for updates. This is turning out to be a very interesting discussion.

There are many thoughtful comments to the Who's Your Daddy? post that I would like to highlight, so they are not overlooked. Would anyone like to weigh in on the side of the presumption of paternity in favor of a husband? Or should it depend on whether there is a bio-dad who is willing to step up to the plate financially and emotionally? What role should "best interests of the child" play?

From Bill Ross: Paternity cases are an everyday occurence throughout the United States, so what makes this story so unique? There are a couple of reasons why this story is ripe. First, it shows that law makers are finally taking notice of a growing problem - paternal fraud (only after a great deal of lobbying though). Second, it demonstrates that illegitimacy no longer carries a societal stigma (which is way overdue, for the child is innocent).

More and more women are having affairs, which can and does often result in the birth of an illegitimate child. In most cases, the affair is usually the result of a weakening marriage versus uncontrolled sexual impulses. It's been proven over and over again that the majority of such pregnancies result from lengthy affairs, whereas a child born from a "one night stand" represents a miniscule proportion. However, when a wife's fraud is detected they usually claim the latter, and the husband being unaware of the affair is usually unaware of the marital problems; so he unknowingly accepts the explanation (the lesser of two evils). Correspondingly, most women who engage in affairs, which have a child from the affair, recognize the loopholes in the law. These women know they can rely on the "presumption of paternity" in many states, which gives fathers the unenviable task of fighting long and costly legal battles. Remember, deception is intrinsic to an affair.

Rawes' article raises many questions: Why don't women divorce their husbands if they're not happy? Why don't we make DNA tests mandatory at the hospitals? Why have so many legislators been slow to change the laws? Why don't the wives consider everyone involved? Why don't the women consider the biological fathers?

The last question is the most interesting. Too long society has assumed the biological father prefers to disappear, which is not always the case. Mothers who commit paternity fraud against their husbands are also commiting fraud against the child's biological father.

Dean Jim Chen Meets the Louisville Legal Community

Dean Jim Chen, Brandeis School of Law, University of Louisville, was welcomed at a reception Tuesday night at the Louisville Bar Association. Knowing he had a blog ( Jurisdynamics), I was eager to ask him about it. While most timid lawyers I know create a blog on the quiet and then “let it grow legs” before telling anyone about it, Dean Chen’s approach may give us insight into his decisiveness. He created his blog one night after his wife went to bed. Before he retired for the evening, it was up and running and he had sent the “send” button on an email telling people about it.

He appeared warm, engaging, and very much interested in helping the University maintain and enhance its ties to the legal community. He is still thinking about how the law school and its dean can engage the legal community through blogging.

I was also struck and impressed by his candor. In a city that claims Muhammad Ali as its son, it is unacceptable to have its bar composed of only 5% African Americans.

We look forward to great things coming under Dean Chen’s tenure. We Kentucky bloggers must invite him to our next get together.

Who's Your Daddy?

Duped Dads Fight Back, the Time Magazine report, is available online.

Advocates for these so-called duped dads say such men should be treated as victims of fraud and liken the need for paternity-disestablishment amendments to truth-in-lending laws. They point to many an egregious case in which the law's marital presumption of fatherhood has ended up enslaving a divorced dad, like the Michigan man who proved he had not sired his son but was still ordered to send child-support payments directly to the boy's biological father, who was granted custody after the mom moved out of his place and left the kid there. Increasingly, policymakers across the country are turning a sympathetic ear to such complaints. Florida last year joined Georgia and Ohio in allowing a man to walk away from any financial obligations regardless of how many years he may have been acting as a minor's father if he discovers he was deceived into parenthood. Fathers' rights groups in Colorado, Illinois and West Virginia are pushing for similar legislation that would remove or extend existing time limits for challenging paternity.

Spearheading the legislative movement is Carnell Smith, a Georgia engineer who found out shortly after he broke up with his girlfriend that she was pregnant and spent the next 11 years believing he was the girl's father. Then, in 2000, after his visitation time had been cut back around the same time that a court order nearly doubled his monthly child-support payments, he took a test that showed he was not the biological parent. Three years and about $100,000 in child support and legal fees later, Smith, 46, managed to disentangle himself from any responsibilities for the girl, and says he walked out of court "a broke but free man." He successfully lobbied his home state to pass its paternity-fraud law in 2002 and now runs a DNA-testing company. Its slogan: "If the genes don't fit, you must acquit!"

But justice for a disillusioned dad can clash with the best interests of a child raised to think of him as a father. "These cases get cast as the duped dad vs. the scheming wife," says Temple University law professor Theresa Glennon, who has examined the changing legal landscape. "This is really about men deserting children they have been parenting." She points out that severing paternal ties could devastate a child depending on the length and quality of his relationship with the nonbiological father.

Few Men Seek Alimony

Few men seek alimony. That is why it is news that The Miami Herald reports in its story on Sunday, CBS4 anchor asks wife for alimony.

As co-anchor of the 5:30 p.m. newscast and an Emmy-winning reporter, (Eliott)Rodriguez earns $300,000 a year. His wife, Univisión anchor Maria Elena Salinas, 51, earns more: upward of $2 million a year, with $60,000 a month available for expenses, he said in court papers....

Reluctant to be cast as a poster boy for alimony, Rodriguez explained the instructions he gave his attorneys.
"I said `Look, I'm a journalist. What I do for a living is gather information. I've gathered the information in my case and given it to all of you very high-priced lawyers. Now please apply it to my case and let me move on,' '' he said in a telephone interview. ``Instead, I find myself in the middle of this legal battle that I don't want to be a part of.''
Rodriguez says that he is going after the alimony because he is entitled to it because of the difference in salaries and marital lifestyle. If he wasn't entitled to it, Rodriguez says, he would not want it....

Sometimes, men can be their own worst enemy.
Gaetano Ferro, president of the American Academy of Matrimonial Lawyers and an attorney in New Canaan, Conn., once represented a woman who owned a book-publishing company. Her husband was a mechanic and earned far less, but he refused to ask for alimony.
''It's a macho thing,'' said Burton Young, a family law attorney for 57.... Because of the difficulty in winning alimony, he sees it as a better negotiating tool.

Awards of maintenance in Kentucky are supposed to be gender neutral, and in Jefferson County, I believe the law has been applied. I would think the bigger hurdle is convincing a court that one cannot meet his own reasonable needs on $300,000 per year. A spouse with such earnings really cannot live as well as one who earns over $2million per year, but that threshold requirement of being unable to meet one's own reasonable requires some good advocacy to surmount.

Untying The Knot, More Couples Calling It Quits Later In Life

Untying the knot, more couples calling it quits later in life is the troubling headline of a story by Korky Vann; a special to the Hartford Courant, republished in the Courier-Journal yesterday. When Hon. John Potter, retired, was presiding in Jefferson Family Court many years ago, he said that there ought to be a statute of limitations precluding octogenarians from divorcing. The comment may have been in jest, but there is some wisdom behind it.

The book behind the story, “Calling It Quits: Late Life Divorce and Starting Over” by Deidre Blair will be published January 30, 2007 by Random House. It is difficult to quibble with stats from a book not yet available, but the interpretation of some stats do not jibe with my experience. For example, in finding that most divorces among the elderly are initiated by women, Blair concludes, “Everyone thinks that older men trade in their spouse for a ‘trophy wife,’” said Blair. “Turned out that wasn’t the case.” The fact is that among all age groups, most divorce petitions are filed by women. The reason women initiate the petition may not mean they most want to divorce. In many cases they have no access to the finances and need the protection of the court. If a man is having an affair, he may not see that as a reason to file for divorce. It’s the old “have your cake and eat it too” mentality. The woman may file for divorce in such a situation because the duplicity is simply more intolerable for her. It does not mean that she prefers to be single.

Among the elderly, I most often see divorces in second marriages where the adult children seem to have some influence, I suspect to protect an inheritance. The right to care for an aging parent is sometimes the real issue. Dementia and paranoia can make the marriage intolerable.

All in all it is a serious and troubling subject and trend that requires study. Maybe Judge Potter had it spot on.

I didn’t find the story online. If someone runs across it and comments with a link, I’d be glad to post.
UPDATE: Here is the link to the online story.

Why Are There So Many American Singles?

Why Are There So Many American Singles? by Kate Zernike appears in the New York Times Week in Review Section, and provides some insight to the stats published recently that 51% of American women are unmarried. It turns out that the marriage gap is not between women and men, but is about class and education.

The news that 51 percent of all women live without a spouse might be enough to make you invest in cat futures.

But consider, too, the flip side: about half of all men find themselves in the same situation. As the number of people marrying has dropped off in the last 45 years, the marriage rate has declined equally for men and for women.

The stereotype has been cemented in the popular culture: the hard-charging career girl who gets her comeuppance, either violently or dying a slow death by late-night memo and Chinese takeout. Think Glenn Close in “Fatal Attraction” and Sigourney Weaver in “Working Girl,” two enduring icons. In last year’s model, Meryl Streep in “The Devil Wears Prada” ends up single, if still singularly successful.

But when it comes to marriage, the two Americas aren’t divided by gender. And it’s not the career girls on the losing end. It’s their less educated manicurists or housekeepers, women who might arguably be less able to live on their own.

The emerging gulf is instead one of class — what demographers, sociologists and those who study the often depressing statistics about the wedded state call a “marriage gap” between the well-off and the less so.

Statistics show that college educated women are more likely to marry than non-college educated women — although they marry, on average, two years later. The popular image might have been true even 20 years ago — though generally speaking, most women probably didn’t boil the bunny rabbit the way Ms. Close’s character did in 1987. In the past, less educated women often “married up.” In “Working Girl,” Melanie Griffith triumphs. Now, marriage has become more one of equals; when more highly educated men marry, it tends to be more highly educated women. Today, Harrison Ford and Sigourney Weaver would live happily ever after.

Women with more education also are becoming less likely to divorce, or inclined to divorce, than those with less education. They are even less likely to be widowed all in all, less likely to end up alone.

“Educated women used to have a difficult time,” said David Popenoe, co-director of the National Marriage Project at Rutgers University. “Now they’re the most desired.” In Princeton, where he lives, men used to marry “way down the line,” Mr. Popenoe said. No more.

The difference extends across race lines: black women are significantly less likely to marry than white women, but among blacks, women with a college education are more likely to marry than those who do not.

Glad I didn't invest in cat futures when I read the initial report last week.

Bar Represents Man Who Went Online to Arrange Divorce

Bar Represents Man Who Went Online to Arrange Divorce
Posted on January 15, 2007 by Grant Griffiths at Kansas Family Law Blog.

The North Carolina State Bar is taking up the case of a man who went online to try to arrange his divorce, only to find court officials wouldn't accept the documents he downloaded from the Web site.
Joe Bruno got the documents from Law Online Incorporated and took them to the Gaston County Courthouse. Officials there told him that the documents weren't legal and that they wouldn't take them.
The state Bar wants to stop Law Online from doing business in the state, and accuses the company of offering legal advice without being licensed as attorneys in the state. The bar filed a lawsuit in Wake County.
The company says it did little more than offer people a way to handle a divorce on their own, and shouldn't be singled out by the Bar.
Bruno eventually got his divorce by hiring an attorney and paying half the 600 dollars Law Online asked for.

Grant does a very nice job with his blog. Sometimes I assume everybody already knows about the great family law blogs out there, so I have posted stories from them less frequently of late. Since I know I have many new readers, I will link to these other good blogs for awhile, so the newcomers can see the fine things going on online in family law.

GAL and CAC Fees (KY)

Andrew Wolfson reports in today's Courier-Journal, Family Court Attoney Fees Stand. I loved the quote from Jefferson Circuit Court Chief Judge, Family Division, Stephen M. George:

The importance of work done by GALs and CACs cannot be overstated...There are very few judicial acts that have as profound effects as the actions made involving the parent-child relationship.

John H. Helmers, Jr., one of the moving parties, advises that while the article is balanced, it does not mention that the Finance Cabinet was held in contempt of court for failure to pay fees ordered where it did not take proper steps to obtain relief from the order. Further:

It also fails to state that the Finance Cabinet has implemented a new policy (without a corresponding legislative change) last summer. The net result of the change from the former policy (ten years
plus) is a dramatic reduction in fees -- putting some of our most vulnerable citizens, including abused children and the poor, at risk of having lesser or no representation

.

Here is a copy of the Order: Download order011107.pdf

.

2007 LBA Awards - Family Law

If there was a photograph of R. Gary Lowen that was not at least 20 years old, I would post it with this announcement of his selection as the Louisville Bar Association 2007 recipient of the Richard A. Revell Family Law Award. I refuse to print one that makes him look like he's 30 years old.
I hope the excellent and indispensable Kentucky Law Blog publishes details of all the awards to recipients: Hon. John G. Heyburn II , Hon. Donald E. Armstrong, Jr., H. Phillip Grossman, and retired Justice Martin E. Johnstone. The recipient of the Frank E. Haddad, Jr. Young Lawyer Award is Daniel M. Alaverz. Mr. Alvarez, you are in very esteemed company!
This post is really about Gary Lowen, whom I have mentioned in a previous post here.

Gary Lowen has done more than any other Louisville attorney I know to improve the collegiality of family lawyers. For 15 years he has welcomed all who will travel with him to Mississippi the first weekend of October, to listen to great blues (and experience the civil rights sites), with the larger aim of creating a community among the lawyers. Then, as he thinks we need them, he organizes these "You Piss Me Off" dinners.

He is down to earth. He gets along with everyone. How many people say that about a divorce lawyer? His clients are not the high and mighty and he serves them very well. He knows divorce and family law very well, but does not get bogged down with academics. He is practical.
Gary is a talented mediator. I once approached him about mediating a high asset divorce case in which my client was a sophisticated corporate executive. He said, no problem; you just add more zeros to the assets. Warily, I agreed to give it a try and he connected well with everyone, keeping us all at the table together throughout most of the sessions and settled the case.
The Enneagram thing is a theory haven't subscribed to, but Gary has led more than one seminar on it and on how understanding personality differences can help settle cases and help dealing with opposing counsel. My thinking is that Gary has a phenomenal intuitive understanding of people and the enneagram just reaffirms what he already knows.
Gary's greatest contribution to the family court bar is his unrelenting effort to have us know and like each other on a personal basis. From his many, many you "piss me off" dinners, to throwing a party at the VFW (or was it American Legion or Moose Club? It was just a darned good time!), to every year taking family lawyers and judges on a trip down south to listen to the blues, Gary has connected us and strived to improve our professionalism.
He was onboard from the outset of the collaborative family law movement until the realization hit that for low income families, this model wasn't fitting. Legal theory is not the bedrock of Gary's interests. Yet, as someone who loves the nuances of the law, I can say that he accomplishes a lot more for many more, and at less cost, than anyone else I can think of.
Congratulations, Gary. Your reward is richly deserved and I can't wait to see Judge Revell present it to you later this month. The LBA will have a professional photographer in tow and capture a current image at last!

An International Guide To Baby-Making

Thanks to the San Francisco Family Law Blog for the heads up on this article;Buying babies, bit by bit, An International Guide to Baby-Making, from Economist.com
"

One of the tests of a liberal society is whether the state stays out of the bedroom—but more than 3M people alive now were not made in bedrooms. They came into being as a result of in vitro fertilisation (IVF) under the glare of laboratory lights, with the assistance of a team of doctors, nurses and technicians.

IVF was originally intended to allow heterosexual couples to bypass problems with fallopian tubes or sperm by introducing eggs and sperm to each other in a petri dish. But demand has mushroomed among those with other medical problems as well as the single and gay. They need people to supply them with sperm, eggs and sometimes wombs; and the services of clinics who put the lot together.

Since the manufacturing of anything which is regarded as God-given—or at least natural—touches a moral nerve, governments tend to want to regulate the business. And because attitudes to the family vary from country to country, regulations about baby-making do too. Discerning baby-shoppers therefore assemble inputs from around the world—sperm from Denmark, an egg from Russia, a surrogate mother from California—to ensure that biology, for them, need not mean destiny. Some even switch countries midway through treatment, starting in Britain, say, and travelling to Russia, Spain or America at a crucial stage in the proceedings.

Countries known to be permissive soon end up treating lots of foreign patients. Women from all over Europe travel to Denmark for donor insemination because it is well-regulated, quality-checked and guaranteed to be anonymous: more Swedish women conceive every year in Danish than in Swedish clinics. Women travel to Spain for egg donation, since Spanish women can be paid for their eggs. They travel to California from all over the world to sign surrogacy agreements, since there it is the commissioning, rather than the gestating, woman who is legally considered the “real” mother.

The turkey-baster was an icon of 1960s feminism. But do-it-yourself sperm donation has fallen out of favour in an era of AIDS and child-support payments. Nowadays those who need sperm get it frozen, so the donor can be tested six months later for HIV (the virus does not show up in tests until some time after it has been caught), and anonymous, so the donor can neither claim parental rights nor be burdened with parental responsibilities.

Cryos, a Danish sperm bank, is probably the world's largest supplier of sperm. It sells to clinics in nearly 50 countries, has more than 200 donors on its books at any one time and distributes more than 10,000 units of semen each year, resulting in about 1,000 pregnancies. It cannot export to countries where anonymous donation is illegal, including Sweden, Norway, the Netherlands, Britain, Switzerland and Australia, or to Italy, where it is illegal to use donor sperm. Some clinics in these countries now treat patients at home and fly them to Denmark for insemination. In 2001 the company opened an American offshoot, Scandinavian Cryobank (slogan: “Congratulations! It's a Viking”), which, like other American sperm banks, offers sperm direct to customers via an online catalogue. Its eye-catching offers include exclusive worldwide rights to a donor for $75,000.

A major competitor is California Cryobank. It pays donors $75 per specimen—with occasional gift vouchers and movie tickets thrown in. Customers pay $240-400 per specimen, depending on sperm count. Basic information about donors—height, weight, colouring, occupation—comes free, but further information must be paid for. A facial-features report, listing such attributes as “nostril flare” (narrow, average or large), costs $12; an audio interview is another $25. For $65 a customer can buy a package of baby photo, audio tape, full personal profile, psychological profile, essay, description of the clinic staff's impression of him and facial-features report. She can hire a consultant to help her choose a donor, at $80 for 30 minutes. At a cost of thousands, she can store vials from a donor in order to be able to have more children by him in the future. The clinic will buy back unwanted vials for half their original price.

Donating eggs is considerably more taxing than donating sperm, as it means taking super-ovulation drugs for a fortnight or so and then undergoing a minor operation to harvest the eggs. So where it is illegal to pay donors, eggs are scarce, and where it is legal, they are expensive.

In Britain egg donors can be paid only for travel expenses, so most donated eggs are from friends or family, or, until recently, other infertile women, who are permitted to barter half the eggs harvested during their own infertility treatment in return for a richer woman paying for treatment for both of them. This practice has now almost ceased—an unintended consequence of a legal change in May which gave children born of egg or sperm donation the right to be told the identity of the donor once they turned 18. Most potential egg-sharers have been deterred by the fear of remaining childless and later discovering that another woman has conceived a baby by an egg that was given away.

British women are instead looking abroad, to countries where egg donors can be paid. Many travel to Spain, where a sympathetic attitude to infertile women and a payment of £800 mean that donors are

Legal Rights Of Three Parents Over One Child Recognized By Ontario Court of Appeals

The Court of Appeals in Ontario ruled that three parents can have parental rights over one child . Between A.A., Appellant and B.B. and C.C., Appellees. The background of the case is reported in Jurist.

A Canadian child can legally have three parents - two mothers and a father. The case before the court involved a lesbian couple, together since 1990, one of whom was the biological mother of the five-year-old child, and a biological father who was listed on the child's birth certificate. All three individuals were active in the child's life and the women were not simply willing to adopt the boy because it would mean the father would lose his legal status as a parent. Ontario Justice Marc Rosenberg said depriving all three from legal parental roles would be "contrary to (the child's) best interests" and stressed the importance of giving the non-biological mother authority to make decisions for the child in the event of the biological mother's death.

Reuters has more.
Hmm. The non-bio mom could not adopt in Kentucky if she wanted, and the bio dad on the birth certificate would be on the hook even if he had no interest in the child.