Family Law From Around the Nation - Fall 2008
State Bar of Texas Section Report - Family Law - Fall 2008
by Jimmy L. Verner, Jr.
Best interest: A child’s love for his mother does not prevent termination of parental rights when the child’s best interest would be served by severing his relationship with his abusive and drug-addicted parents. In re: William B., 78 Cal.Rptr. 3d 91 (Cal. App. 2008). An agreement to arbitrate custody and visitation issues “violates the court’s parens patriae obligation to protect the best interests of the children and is void as a matter of law.” Fawzy v. Fawzy, 948 A.2d 709 (N.J. App. Div. 2008). After mother fled with child from Idaho to Oregon to escape father’s domestic abuse, it was not in the child’s best interest for a magistrate to order mother either to return to Idaho or to relinquish temporary custody of the child. Schultz v. Schultz, 187 P.3d 1234 (Ida. 2008).
Child support: A Mississippi court held that disability benefits received by a child because of her father’s injury must be offset against the father’s child support obligation, but the father could not receive a child support credit when disability payments exceed child support payments. Keith v. Purvis, 982 So.2d 1033 (Miss. App. 2008). A New York family law court joined the majority of courts in other states that exclude higher education loans and grants as income for child support purposes. Mariana D. v. Frank D., 858 N.Y.S.2d 864 (Queens County Family Court 2008). Another New York court erred in setting child support when one of the two children lived with the obligor because the court used the percentage rate for only one child and also “capped” the obligor's income for child support purposes based on the child living with him. Santana v. Santana, 51 A.D.3d 542 (N.Y. App. Div. 2008).
De facto parents: A Virginia court refused to adopt the de facto parent doctrine as unnecessary - because Virginia recognizes non-parent rights under its “person with legitimate interest” statute - but affirmed denial of visitation after a same-sex breakup for failure to prove harm to the child should visitation be denied. Stadter v. Siperko, 661 S.E.2d 494 (Va. App. 2008). A California juvenile court acted properly when it dismissed, without an evidentiary hearing, a grandmother’s petition to place her grandchildren with her because the grandmother’s petition showed that as a matter of law, the grandmother had not “assumed, on a day-to-day basis, the role of parent, fulfilling both the child’s physical and psychological needs for care and affection” and “assumed that role for a substantial period.” In re R.J., 2008 WL 2504687 (Cal. App. 2008).
Hague cases: A federal district court abused its discretion by deferring to a state court when asked to identify the habitual residence of the children and whether they had been wrongfully removed to the United States from Israel. Barzilay v. Barzilay, ___ F.3d ____, 2008 WL 2952427 (8th Cir. 2008). In a split decision, the Second Circuit refused to require the return of a child to her father in Chile because the father had rights only of access, not custody, under Chilean law. Villegas Duran v. Arribada Beaumont, 534 F.3d 142 C (2nd Cir. 2008). The Seventh Circuit affirmed a district court’s order that children be returned to their father in Venezuela, agreeing with the district court that the father having once struck his son with a video-game cord, if true, did not constitute clear and convincing evidence that there would be a grave risk to the children if returned to him. Vale v. Avila, ___ F.3d ____, 2008 WL 3271920 (7th Cir. 2008).
Post-judgment issues: The Ninth Circuit’s Chief Judge vehemently dissented to the majority’s award of term life insurance proceeds to the deceased’s first wife: “The majority reaches a senseless, unjust and cruel result by awarding half a million dollars to the former wife of a peace officer felled in the line of duty, leaving the officer’s widow and children out in the cold.” Life Ins. Co. of North America v. Ortiz, ___ F.3d ____, 2008 WL 2940533 (9th Cir. 2008). A California state employee transformed his retirement benefits into community property when he repurchased “service credits” after his first wife withdrew her share of them. In re: Sonne, 80 Cal.Rptr.3d 453 (Cal. App. 2008). When an ex-husband’s Social Security benefits automatically reduced the ex-wife’s share of his retirement, a Delaware trial court acted properly by reopening the parties’ agreed property division. Stanley v. Stanley, ___ A.2d ____, 2008 WL 2961790 (Del. 2008).
Underemployment: An Indiana court reversed a trial court’s dismissal of an inmate’s motion to modify child support based upon his incarceration, reiterating that under Indiana law, committing a crime “is not quite the same” as failing or refusing to work. Clark v. Clark, 887 N.E.2d 1021 (Ind. App. 2008). The Alaska Supreme Court upheld a trial court that denied a motion to modify child support when the obligor testified she quit her job for another one that paid approximately half as much because she had to travel too much to see her children but failed to document her travels. Sawicki v. Haxby, 186 P.3d 546 (Alas. 2008). The New Hampshire Supreme Court did not reach the question whether an obligor who shot himself in the face was voluntarily unemployed or underemployed because there must first be a finding that an obligor is physically or mentally incapacitated. In re Marriage of Fontaine, ___ A.2d ____, 2008 WL 3893750 (N.H. 2008).
Wrong button: Husband began an affair with wife’s sister prior to marriage and continued thereafter. Two weeks after wife signed husband’s immigration application, husband announced he was leaving but did not say for whom. Wife’s son later called wife’s sister, his aunt, to learn whether she would be joining him and his mother for lunch. Aunt was dining at a restaurant with husband; aunt mistakenly pushed “answer” instead of “stop” on her cell phone. Because son had put the call on speaker, both wife and son heard husband professing his love for aunt, assuring her “that they would be together once he got his share of money and property” from wife, and told aunt that he had married wife only to gain permanent resident status. The trial court found that husband had lied to both women and annulled the marriage based on fraud: Husband wanted to “have his cake and eat it too” by engaging in sexual relationships with wife and her sister at the same time. In re Marriage of Ramirez, 81 Cal.Rptr.3d 180 (Cal. App. 2008).
