Kentucky Bankruptcy Law

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Adoption statutes require strict compliance

Adoption can be an expensive proposition and I have been asked on occasion if a person can do their adoption pro se (on their own and without a lawyer). Actually, this question tends to come up in family law matters in general far more than in other areas of law. I hear this question about self-representation even less often in bankruptcy where folks clearly are in dire straits financially. My response is typically yes, you can but . . .. Then I relate to them a show I saw on Discovery or TLC about a man who was out hiking and became trapped when a boulder rolled onto his arm. He would have died out in this ravine had he not amputated his own arm with a pocket knife (the tv show assured me this was a true story). Anyway, in this graphic and slightly grotesque story the man did what he had to do to survive, but it had to be exceedingly painful and extremely messy. Representing oneself in a family law matter can be just like that: exceedingly painful and extremely messy.

That answer seems to ring intuitively true for people in divorce situations, but many assume that since an adoption is a happy occasion and that judges love putting families together rather than tearing them apart, that one could handle it without a lawyer. The contrary is actually true. In the recent Kentucky Court of Appeals decision R.M. v. R.B., 2008-CA-001099-ME, (2009, to be published), the Court reminds us that “[b]ecause adoption is a statutory right, Kentucky Courts require strict compliance with the statutory procedures to protect the rights of natural parents.” The statutory framework for adoption contained in KRS 199 has many “if, then” kinds of provisions requiring careful navigation even by seasoned adoption attorneys. Because of this strict compliance requirment, adoption is the least likely area of family law where one should proceed pro se. At the very least, consult with an attorney that is knowledgeable in adoptions to see if there are any “boulders” in your particulare situation that need to be dealt with.

March 8, 2009 Posted by | Adoption, child custody, Divorce, Family Law, Uncategorized | Leave a comment

Bad Blood and Grandparent Adoption

Tragic circumstances underlay the Court of Appeals opinion in Zoeller v. Gutterman, 2006-CA-002141-ME (October, 26, 2007)(to be published), where grandparents fought over visitation rights. Mrs. Gutterman and Mr. Gutterman had been married and conceived two children during their twelve year marriage. One of those children was Ashley.

Ashley, at age 15, gave birth to a son in 2000, about eight years after her parents divorced. She subsequently agreed for her mom, now Mrs. Zoeller, and step-father to be the court appointed guardian for the child in 2002. Sadly, Ashley died in 2004. Mr. Gutterman, Ashley’s dad, filed a petition for grandparent visitation under KRS 405.021. Unbeknownst to Gutterman, The Zoellers had filed a petition to adopt Ashley’s son. The adoption was granted prior to the visitation and so the Zoeller’s argued that he now had no standing to seek visitation since, legally, the child was no longer his grandson. The Court does not provide the whole background story, but I suspect there was such bad blood between the former Mrs. Gutterman and her ex-husband, that when Ashley passed away, they refused to continue the weekly visits she had with her father where her baby went along and visited too.

A Guardian ad Litem was appointed for the young lad and the G.A.L. recommended visitation begin immediately for Gutterman. This was granted, but the Zoellers, obviously not fond of the ex-husband, filed a Writ of Prohibition to stop the visits from commencing. This was granted and aspects of the case went on up to the Supreme Court of Kentucky. The Supremes said that the Family Court did have subject matter jurisdiction, despite the Zoeller’s argument to the contrary, but that the Family Court must have an opportunity to determine if Gutterman had standing due to the intervening adoption.

After holding an evidentiary hearing, the Family Court found Gutterman had standing and that it was in the child’s best interest to have visitation. This really ticked off the Zoellers and they “zealously pursued their contention” that Gutterman had no right to pursue visitation. Id. at 4.

The Court reviewed the Kentucky jurisprudence and history of KRS 405.021 noting that it has been found to be constitutional and designed to address the concerns of increasing divorce rates, increasing pregnancy among unmarried persons, and the increasing mobility in modern society. Furthermore, as long as the grandparent is not deranged or otherwise unfit, they tend to have a special bond with their grandchildren that is mutually beneficial. One later case, Hicks v. Enlow, 764 S.W.2d 68, 71 (Ky. 1989), distinguished stepparent adoption from non-stepparent adoption in that termination of parental rights in non-stepparent scenarios severed all family connections so that grandparents could not have visitation rights.

Kentucky’s General Assembly considered the Hick’s result too harsh and modified the statute to preserve any pre-existing visitation rights granted by a court of competent jurisdiction. In this case, though, no such court order had been entered giving Gutterman those rights. Also, though, in this case there was no involuntary termination of parental rights. Essentially, the Court slapped the Zoeller’s wrists (and their lawyer’s) for failing to make the Family Court for the adoption aware of the pending visitation litigation. They quoted the Family Court in saying:

    Had the Court been aware that there was an adoption proceeding pending in one courtroom and a grandparent visitation action pending in another, the adoption would have been postponed pending the outcome of the grandparent visitation hearing or the visitation issue would have immediately been scheduled for hearing. As an adoption proceeding is usually unopposed, it would almost always be concluded before a contested visitation hearing. This Court does not believe the intent of the General Assembly was to allow one party to deprive another of such a substantive right as continuation of a familial relationship by knowingly manipulating the justice system in this way.

Goodness, Mrs. Zoeller sure must have harbored intense feelings towards her ex-husband. Turns out that they both had abused either alcohol or drugs during the marriage and there was domestic violence perpetrated by Gutterman. Fortunately for Ashley’s child, Gutterman had apparently reserved his hostilities for his wife during their marriage and he managed to form a decent relationship with both Ashley and her child. Ultimately, preserving this bond, especially in the face of Ashley’s death, was seen as in the best interest of the child.

Lessons learned: 1) Say no to drugs and alcohol – their effects can be lasting, 2) Be forthright with the court, even if it appears to hinder your goals in the short-run, 3) Marriage often does not last forever, but divorce sure can, 4) Bitterness is expensive.

October 28, 2007 Posted by | Adoption, Civil Procedure, Family Law, Life & Law | Leave a comment

International adoption: two paths to domestic confirmation

Many agencies offer quality services in arranging and facilitating international adoptions of children from diverse countries such as Russian, China and Ethiopia (plus so many others). While the stateside fees remain reasonable, fees in the other country can be very high. One who is adopting from China, for example, can expect to pay over $15,000.00 in US dollars in various fees. It is important to find an agency familiar with the process in that country to give good guidance. For instance, the fees in China must be paid with new crisp and clean US currency; they will not accept crumpled, aged bills and you would not want to show up to bring your child home without that knowledge.

After returning from overseas with your child, it is also important to know the next step to take. This will depend on whether you just obtained legal custody of your child in the other country or you obtained a full adoption. If the latter, then your next step is dictated by KRS 199.585 where the foreign adoption decree is to be presented to the Secretary of the Cabinet for Health and Family Services. If everything is in order, then the Secretary will register this foreign adoption and no other steps are required. If, however, you did not receive a valid adoption decree, then KRS 199.470 guides you to file a petition to adopt here in Kentucky.

Either way, finalizing the international adoption is a joyous occasion calling for celebration.

May 26, 2007 Posted by | Adoption, Family Law | Leave a comment