There is an interesting post at Elusive Justice about a practice by the Cabinet for Health and Family Services involving parents who think they are voluntarily terminating their parental rights, but then have an involuntary termination entered against them. This may seem like an immaterial difference, but E.J. walks us through a hypothetical that shows the important ramifications of the practice.

2007finalizedtimesharingguidelines

I was recently asked by a reader about what kind of time-sharing he can expect with his daughter. He and the mother never married and he believes the mother is exerting excess control over his contact. I am uploading the Fayette County time-share guidelines as an example of typical time-sharing. If you open it and go to the end, you will see enhanced time-share for children under two years of age. This is a tiny step towards developmentally sensitive time-sharing. I am a proponent of developmental time-sharing and I hope to see these standard guidelines continue to move in that direction.

It is interesting to note, KRS 405.020 assigns joint custody to parents of a child as the default. A father of a child born out of wedlock starts out with joint custody as a matter of law. Mother’s tend to assume they have sole custody straight from the chute since they effectively have it during the pregnancy. In reality, the father gains custody at the moment of birth. As a practical matter, though, he must be able to show he is the father. This is either by birth certificate naming him as the father or a judgment.

After reflecting on the recent decision in J.N.R. v. O’Reilly that I posted on here and here, I recognized a troubling conundrum in the law. I will expound with a hypothetical situation beginning where the JNR case leaves off. Absolutely no offense is intended towards the real parties in the real JNR case; this is purely hypothetical:

Where the real case leaves off is with biological father (”BioDad”) unable to get any relief because the trial court has no jurisdiction to proceed. In the hypothetical, the legal father (”LawDad”) has to work two jobs to pay the legal fees that accrued defending against BioDad’s petition and the ensuing appeals. Because of the stress of this, he develops a drinking problem and becomes estranged from his wife. A divorce occurs and biologcial mother (”BioMom”) gets sole custody. BioMom becomes depressed and, as a result of deep depression, neglects the child (”Child”). Child is removed by the Cabinet for Health and Family Services after being found wandering along a busy highway after sneaking out of the house while mom was in a depressed stupor. The Cabinet dutifully seeks out a relative to care for Child, but the only known relative is LawDad whom they find passed out on his front porch after a night of drunken debauchery. Because of LawDad’s double D dysfunction, he cannot have the child placed with him or gain custody.

Now, the stage is set and Child goes into foster care. Because BioDad was denied the opportunity to assert paternity, he has not been judicially found to be a parent. KRS 610.020 requires the Petition to name “parents”, but BioMom and LawDad are still sore about the whole lawsuit thing and never bring BioDad up. Furthermore, KRS 610.040 does not require that he be notified. So, Child is in foster care for the next 15 months because BioMom and LawDad are more focused on sniping at each other than regaining custody of Child.

Next, the Cabinet files a petition for the involuntary termination of parental rights of BioMom and LawDad on behalf of Child. Still, the Cabinet has no idea about BioDad because they never read this blawg and are unfamiliar with this case. Interestingly, KRS 625.060 requires that “biological parents” are made parties to the action, but only “if known”. Here is where the hypothetical has different possible outcomes.

Outcome 1: Parental rights are terminated to BioMom and LawDad and Child spends the rest of his childhood going from foster home to foster home, or perhaps is adopted and lives happily ever after, but always dreams of being with his “real” parents. BioDad sees him years later with the adoptive family and finally learns of all those events, but he can do nothing. In the worst case scenario, adoptive parents are actually sadists bent on mentally torturing Child. Best case scenario is that they are great parents and is relatively unharmed by all these events.

Outcome 2: BioDad finds out and moves to intervene in the termination of parental rights. Now, we are back at the starting point and the court has to determine whether he has standing to intervene under this separate set of statutes. Arguably he would have standing because the statute specifically mentions “biological parents”. This, then, is a huge inconsistency in the paternity laws of kentucky. Regardless, he still has a huge hurdle to overcome because the termination of parental rights statute, KRS 625.090 has no safe harbour provision that would protect BioDad due to his lack of knowledge of the events. In other words, neglect or abuse never has to of been alleged against BioDad. The statute is a list of events, sometimes totally out of the control of the parent, and if one and only one of these events are checked off, then termination can occur. BioDad could be the best dad in the world, but if Child was found to be neglected by clear and convincing evidence, has been in foster care 15 out of the last 22 months (even if it is the Cabinet’s fault for not having enough workers to move the case along), and the judge believes it is in the child’s best interest (purely subjective), then his parental rights could be terminated without him ever getting to exercise them.

Give the above scenario, as unlikely as it is, I have had to reflect on the JNR decision because of the far reaching consequences. I hope that the General Assembly will take up this issue to rectify this legal inconsistency.

I wanted to post a brief follow-up to Paternity Pandemonium. Mr. Rhoades wrote a comment to that post that I encourage everyone to look at. I also wanted to link to TIME online article “Despite DNA, Dad’s Paternity Denied” that was provided to me by a reader. The article does not quite get the nuances of the law correct, but it gives more of the history and highlights the two broad views of this issue.

One camp is the Biology is Paternity camp which, in its extreme, denies any meaning of marriage in regards to children born during the marriage. Here, if one donates DNA, then some legal right is deemed to have arisen out of a single moment despite violating something every culture recognizes and values - a marriage. Usually in our jurisprudence, one does not get the benefit or gain from doing something wrong. However, we have decriminalized adultery and seduction while also turning to no-fault divorces. So, those in this camp would argue, there was no “wrong” done here in the eyes of the law and the courts should not be moral arbiters of such sexual behavior. Besides, the argument proceeds, it is not about punishment or equity, it is about a new life and what is best for that child.

The other camp would be the Sanctity of Marriage camp which, in its extreme, denies a biological father any standing to be in his child’s life. Here, the argument focuses on the preservation of the marriage and the assumption is made that the ongoing presence of the biological father will destroy what is already tenuous. Some would argue that the child should never know his genetic origin because it would be harmful to know he or she is the product of an illicit affair only creating an insecure sense of his or her place in the family.

As a father, I know I would not want to be denied contact with a child I fathered. As a husband, I understand protecting my family from those outside. This is why the SCOKY decision ultimately rests on the wording of a statute. Those of that opinion pulled into the safe harbor of avoiding the appearance of judicial activism by focusing on the exact language of the relevant laws. By doing so, they essentially said, this is a matter to be decided by the people through their representatives in the Kentucky General Assembly. That is where this debate really belongs.

Mr. Rhoades plans to appeal to the U.S. Supreme Court, but I will be surprised if he wins. This is because the Kentucky decision is about subject matter jurisdiction and not about whether Mr. Rhoades is the biological father or not and the U.S. Supreme Court will most likely defer to the power of the State to determine such things. So, only the General Assembly can change the outcome for future Mr. Rhoades.

As for me, the one thing I am confident of is that our judicial system should not be morally mute and that there is basic right and wrong outside of the confines of our laws (there are varying degrees of judicial activism and I believe it should be constrained to areas where statutory laws are silent). I also tend toward the Sanctity of Marriage camp and believe that the marital union, which remains a spiritual union and not merely a civil matter in my mind, trumps biology. My hope for Mr. Rhoades is that he recognizes and atones for the damage he did by participating in an extramarital affair. My hope for baby JAR’s parents is that they are convicted that JAR’s interests are paramount and wrestle with whether denying him his biological father serves those interests best. I doubt that would be the wisest course of action, but the burden is upon them to arrive at the decision. I have these hopes because even though I believe that courts have moral authority where statutory law is silent, the most just results are often found outside the courtroom and they often come out of humility rather than force.

A recent Kentucky Supreme Court (SCOKY) case has created quite a stir in the webdom. In J.N.R. & J.S.R. v O’Reilly, 2007-SC-000175-MR (April 24, 2008)(to be published), SCOKY rebuked a man’s attempt to establish that he was the biological father of a child born in the marriage of the appellants. Apparently everyone is this case has a first name starting with J and a last name beginning with R, so this might get a little confusing. Here is the scorecard: JGR is the man trying to establish that he is the biological father and obtain a custody status, JAR is the child in the center of the contest, JNR is the mother/wife, and JSR is the legal father/husband.

JNR and JSR are married when JAR is born giving rise to the presumption that JSR is the father of JAR. JGR apparently engaged JNR in an extra-marital affair and believed he was the biological father of JAR. JGR apparently had DNA evidence that proved him to be the bio-dad and he had even had some visits with JAR. Despite the injury to the marriage, there was apparently some mighty powerful affection remaining and so JNR and JSR wanted to make a go of it and did not want JGR interfering. JGR, displaying persistence that would be admirable in other circumstances, filed a petition in Jefferson Family Court to establish paternity, custody and support. The family court allowed the action to proceed and also ordered some time-sharing. JNR and JSR filed a Writ of Prohibition with the Kentucky Court of Appeals (COA) and then with SCOKY when the COA failed to issue the writ.

A Writ of Prohibition is an action that can be taken when a lower court is about to do something that they really have no business doing (lack the legal authority to do) OR will cause irreparable harm to one or more of the parties if they are allowed to do it anyway. In this case, if JGR was allowed to establish a psychological bond with baby JAR, who was 3 months old, then there would be no way to undo it without additional harm to JAR. If JGR was allowed to establish paternity, then arguably, irreparable damage would be done to the marriage. The COA refused to issue the writ to stop the paternity proceeding because JNR and JSR failed to show irreparable harm to the marriage, but they did stop the visits. JNR and JSR then took their Writ to SCOKY who granted it and stopped everything.

JNR and JSR had a pretty smart lawyer who argued that the Family Court was acting OUTSIDE its authority and thus no irreparable harm showing was necessary. The reason that SCOKY gave for issuing the Writ of Prohibition on the paternity action was that the Family Court lacked subject matter jurisdiction to hear the case. In other words, SCOKY agreed that the Family Court was acting outside its authority. This is significant because the decision, arguably, stands on statute alone and not on potentially shifting public policy. So, the Kentucky legislature would have to pass new legislation granting family courts jurisdiction in such a situation (unless a challenge to the existing statutes’ constitutionality is brought and won which is doubtful). The decision also suggests that even if the mother had initiated the action, the legal father/husband (or vice versa) could stop the matter from ever being heard unless they could establish that the marital relationship had ended (at least show no sex) ten months prior.

The case itself provides a more in-depth analysis of the statutes in play, but for our purposes, the whole thing turns on the use of the phrase “born out of wedlock” in the jurisdictional statute KRS 406.051. A child born to a married woman can be “born out of wedlock”, but only with a showing that the marital relationship ceased to exist ten (10) months prior to birth of the child. JGR failed to make a showing that JAR was born out of wedlock. Kentucky’s KRS 406.051 does differ from the 1960 Uniform Act on Paternity by narrowing the definition. This evidences the public policy espoused by the General Assembly for the protection of the marriage over those of the contributor of chromosomes. This public policy has shown signs of shifting in recent years coinciding with the more accurate DNA testing as compared to simple blood typing from decades ago.

SCOKY also rejected the argument that subject matter jurisdiction could arise fromt he KRS 403 chapter governing the dissolution of marriage and child custody. The bottom line is that producing a child with a married woman gives a poor prognosis for establishing paternity and is an inadvisable course of action in any circumstance.

A recent decision by the Kentucky Court of Appeals, Hoppe v. Tallent, 2007-CA-00104-MR (March 7, 2008)(to be published), highlights the deference given to trial judges in family law cases. A solid review of this case can be found here at the Divorce Law Journal. Very briefly, Hoppe was denied visitation with the daughter he had with Tallent due to allegations made that he sexually abused her.

Six mental health professionals had been involved with the case over the span of years, but only the final therapist recommended no visitation. All the other mental health professionals recommended some level of visitation. Despite the professionals being 5 to 1 in favor of visitation, the trial court denied any form of visitation for Hoppe with K.H. The Court of Appeals upheld the trial judges decision because great deference is given to the “trier of fact”. This is based on the notion that the trier of fact is in the best position to ascertain the credibility of witnesses (a notion that may be a bit antiquated with video taping of trials). So, the denial of Hoppe’s visitation remained in place.

The real lesson in this case, though, lies in what the Court of Appeals signaled in its commentary. They expressed concern that the child had been coached by her mother to make up the allegations (an element in what some experts call “parental alienation syndrome”) and noted that no criminal charges had been pursued against Hoppe. The also highlighted that the first 5 mental health practitioners said visits should occur and speculated that the trial court went with Sutton, the one therapist to advocate no visits, merely because she was the last one to see the child even though she “stumbled mightily when queried about her education and may have counseled only a handful of children during her six years in private practice . . . .” Id. at 16. Lastly they came as close as they could to encouraging Hoppe to obtain new psychological evaluations of the child (and presumably the parents) and file a new motion to re-start visits. So, the real lesson is to go into highly contentious custody and visitation battles as prepared as possible.

This kind of preparation, obtaining current expert witnesses and evaluations, can be very expensive on the front-end. Perhaps in Hoppe’s situation, the cost of such experts was prohibitive. However, because it is unlikely to get a trial judge’s decision overturned in these sorts of matters, it is better to incur those expenses, if one is able, at the trial level instead of on an appeal.

A story out today revealed that Heath Ledger’s minor daughter, Matilda Rose, was not included in his last will and testament. The will was drawn up before Heath had any children and left everything to his parents and three sisters (Herald-Leader story from March 11, 2008 on page A2). Heath’s immediate family issued assurances that Matilda Rose would be provided for. If I were advising Matilda Rose or her mother, I would express my appreciation, but I would point out that many states have statutes (and common law) covering “pretermitted heirs”. A pretermitted heir is a child who was accidentally or inadvertently omitted from a will. That describes Matilda Rose. I have not looked up the statute or common law in New York where Heath’s will would be probated, but it most likely has such a provision protecting pretermitted heirs. Therefore, I would insist that she receive the inheritance due to her. In many states with there being only one child, that may be the entire rest and residue of the estate (roughtly everything except for specific gifts to particular persons). Hopefully, Matilda Rose’s mom, Michelle Williams, will obtain legal counsel that will point this out to her.

If I had been advising Heath Ledger, I would have talked to him about having a will that covered many contingencies. One of those contingencies would have been the likelihood of having children and how he wished they were to be treated. Generally, even if a person has no children, it is wise to draft the will as though he or she would have them before they die. This would even be true for elderly persons because of the possibility of adopting a child. One can disinherit their children or a specific child, but to do so requires a provision drafted to address this particular wish rather than silence. It is important to carefully approach such an action and never disinherit a child lighlty because of both the moral consequences of such an action and because of the possibility of a court reforming the will under a few different doctrines.

People typically think of income in terms of how the IRS defines income, even when it comes to divorce. This makes sense because we deal with income and IRS on an annual basis (except certain notable celebrities) while we deal with divorce, if at all, only once (again with certain celebrities excepted). However, they are not defined exactly the same.

In the recently released Kentucky Supreme Court case, Gripshover v. Gripshover, (2005-SC-000729-DG & 2006-SC-000258-DG)(Feb. 21, 2008)(to be published), , one particular difference is illuminated. The IRS provides for certain business expenses to be fully depreciated (expensed) in the year of the expense rather than depreciated over time. 26 USC Sec. 179. The Gripshover Court held that KRS 403.212 provides only for straight line depreciation. This means that the IRS reported income will often be lower than the income used for determining child support in divorce cases where a business owner is one of the spouses.

It also means that the days of relying on a business owner’s 1040 with the various self-employment schedules to show income is gone. CPA’s will be needed who understand the difference definition of income in divorce in order to determine child support.

The Kentucky Supreme Court just issued its decision in Gripshover v. Gripshover, (2005-SC-000729-DG & 2006-SC-000258-DG)(Feb. 21, 2008)(to be published). There is a pretty extensive factual background in the published opinion, but unless you either enjoyed reading cases in law school or aspire to enjoy reading cases in law school, I will focus on some key rulings in the case.

Unfortunately, there are spouses who, when they begin contemplating a divorce, engage in fraudulent maneuvering to hide away assets. This can take the form of transferring property belonging to the marital estate so as to exclude it as marital property in the impending divorce. When this dissipation of marital assets occurs, the trial court can recharacterize assets or pull them back into the marital estate in determing a “just” distribution of property.

In Gripshover, the wife alleged that real property transferred into a limited partnership and other property transferred into a trust defrauded her of her marital interest. The Supreme Court disagreed. For a finding of fraud or dissipation, there has to be evidence that the transfers were made in contemplation of divorce and with the intent to impair the other spouses interest. In this case, no such evidence was produced.

While I do not advocate suspicion within a marriage, it is important for both spouses to be understand the ramifications of significant transfers of property. So, I do advocate both spouses being engaged in the finances of the family.

The process of dividing property in a divorces consists of three broad steps as outlined in Jones v. Jones, 2006-CA-001870 (Feb. 1, 2008)(to be published): “(1) classify the property as marital or nonmarital, (2) assign to each party nonmarital property owned by that party, and (3) divide in just proportions marital property.” In the Jones case, the ex-husband, Ricky, appealed the trial court’s classification of Tobacco Transition Payment Program payments (”TTPP”) as marital property.

TTPP is an important source of income for many Kentucky farmer’s and is divided into payments for growers of tobacco and payments for owners of the land where the tobacco would otherwise have been planted. This is where the particulars of the Jones case becomes important. Ricky inherited a life estate in the family farm. Without becoming too bogged down in the technicalities of a life estate, this means the farm was his to use during a lifetime, most likely his own. Since he inherited the farm, it was non-marital property by operation of KRS 403.190(2)(a). Ricky argued that the owner’s share TTPP came to him as the owner of the farm by devise so that it was not a marital asset.

Here, the trial court basically said that Ricky might be right about the owner’s share of the TTPP being non-marital, but the overall division was equitable, so let’s leave it alone. The Court of Appeals disagreed with the trial court and asserted that the owner’s payments under TTPP were compensation for the taking of the property interest of growing tobacco on the property, so it was non-marital.

However, the grower’s TTPP payments took the place of income earned from the sale of tobacco that would have been grown. Therefore, the compensation for loss of income and would be marital. Ricky still won this argument, though, because he and his ex-wife, Lynn, had a prenuptial agreement that specified “life estate in the farm “together with the income produced thereby, shall continue and remain the separate property’ of Ricky.” Id. at 5-6.

Next, Ricky challenged the trial court’s allocation of $44,648.00 out of $67,000.00 in improvements to the farm (main house, garage, lake) as marital. The Court of Appeals analyzed this under KRS 403.190(2)(e) which states:

The increase in value of property acquired before the marriage to the extent that such increase did not result from the efforts of the parties during marriage.

The life estate was given to Ricky before the marriage (obviously or else the pre-nuptial agreement would have involved prescience) and there were improvements made during the marrigage. The problem with the trial court’s analysis came from how it valued those improvements.

The trial court equated the actual cost of improvements to the increase in value of the life estate. This makes no sense because a life estate has much less value than outright ownership (fee simple). Basically, one can sell a life estate, but who would want to buy it? It would come to an end as soon as that life ended, which could be the day after the closing. Thus, the $44,648.00 that the trial court assigned as marital probably exceeded the fair market value of the life estate. Usually, expert testimony is required to determine fair market values. The Court of Appeals remanded the case to the trial court to recalculate the values involved and strongly suggested getting expert testimony.

Finally, Ricky appealed the award of payment of Lynn’s attorney fees. This is often appealed because it really hacks people off to go through a divorce and then have to pay their ex’s attorney fees too. However, these appeals rarely win because such an award is “soundly” in the discretion of the trial court. The court must consider the financial resources of the parties and, if an imbalance in resources exists, can award attorney’s fees. Well Ricky, two out of three ain’t bad.