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February 01, 2024 Case Update

December 2023 Case Update

VOL. 27, NO. 12

Editor: Laura Morgan

Case Update is a Section of Family Law Member Benefit publication. Not a member of the ABA Section of Family Law? Join now to view premium content.

(Editor's Note: Some cases may be from November 2023, as they were not posted to Westlaw until after I prepared the November 2023 update on December 15, 2023.) 

CHILD CUSTODY - DUE PROCESS

Dekarske v. Lopez, No. 366704 (Michigan Court of Appeals, Dec. 28, 2023): 

The court granted the mother and father joint legal custody, the mother sole physical custody, and the father supervised parenting time. Thereafter, the trial court suspending the father’s parenting time until he surrendered access to the contents of three encrypted or password-protected USB thumb drives. Held: No, you can’t suspend the father’s parenting time for refusing to turn over the thumb drives. Yes, he had a pretty bad history of sexual assault of a child, but “In suspending plaintiff's parenting time, the trial court failed to identify any harm plaintiff could perpetrate on CAD under close supervision. The trial court did refer to an incident when plaintiff failed to "follow the ground rules" at a supervised parenting time visit by taking CAD to the bathroom alone. There is no indication, however, that anything inappropriate took place in the bathroom. Further, that parenting time visit was supervised by plaintiff's brother, and under the trial court's order, plaintiff's parenting time will now be supervised by an unrelated, third‑party parenting time agency.”

CHILD CUSTODY - JOINT LEGAL CUSTODY - DECISION-MAKING AUTHORITY

Smith v. Shafer, No. 366473 (Michigan Court of Appeals, November 21, 2023): 

Father filed petition to register Georgia court order establishing his joint legal custody of child with mother. Mother moved to modify the child custody order to grant her sole legal custody of child based on the fact that she had tie‑breaking authority under the Georgia order. Held: No, Mom, you don’t get that authority here. Under the UCCJEA, the Georgia order which granted joint legal custody of child to mother and father, but granted mother tie‑breaking authority when the parents had an explicit disagreement over a major, non‑emergency decision involving the child, was properly modified to provide for joint legal custody without designating a parental tie‑breaker. While Georgia law was consistent with Michigan law on joint legal custody, tie‑breaking authority was not permitted under Michigan law, and Georgia order expressly indicated that legal custody was to be joint and granted mother the authority to break a tie only in the limited circumstance of an explicit disagreement between the parents involving a subset of matters affecting the child. 

CHILD CUSTODY - MODIFICATION - “SWEAT LODGE”

Ewing v. Evans, 32 Neb. App. 531 (Nebraska Court of Appeals, December 26, 2023):

The father practices the Native American practice of partaking in a sweat lodge. While the father has a constitutional right to practice his religion and inculcate his child with his beliefs, he would be enjoined from taking his son to the sweat lodge. “When a court finds that particular religious practices pose an immediate and substantial threat to a child’s temporal well‑being, a court may fashion an order aimed at protecting the child from that threat. In doing so, a court must narrowly tailor its order, so as to result in the least possible intrusion upon the constitutionally protected interests of the parent. ... [Aside from holding that the participation in the sweat lodge was not a religious practice based on how the father viewed it,] The district court appears to have found persuasive Ewing’s testimony that the sweat lodge is unsafe.”

CHILD CUSTODY - MODIFICATION - SELF-EXECUTING MODIFICATION

J.C. v. G.T.C., No. CL‑2022‑1025 (Alabama Court of Civil Appeals, December 1, 2023): 

Trial court order automatically awarding father graduated visitation with children, culminating in overnight supervision at the end of one year, was based on speculation as to future circumstances, and thus vacation of the award was required. The evidence showed that father had a sex addiction, he had repeatedly relapsed, the counselor testified that no expert could testify that father would not sexually abuse the children again, the judgment provided for automatic escalation of the visitation periods regardless of the condition of father or the progress of his recovery at that time, and the order had no basis for determining future events and whether increased and overnight supervised visitation would be in the best interest of the children.

CHILD SUPPORT - MODIFICATION - VOLUNTARY REDUCTION IN INCOME

Rose v. Lewandowski, 221 A.D.3d 1310, 200 N.Y.S.3d 188 (New York Supreme Court, Appellate Division, Third Department, November 22, 2023): 

Father moved for modification of child support based on his reduction of income due to his retirement from his automotive repair business. Father testified he was “forced” to retire due to bad knees, for which he underwent double knee replacement surgery. But he failed to present any medical proof that he was disabled and unable to continue operating business because of that. A lesson that sometimes a little medical expert testimony when you are arguing a medical cause of retirement is the better course.

(Ed. Note: Other good examples of how not to present a change of income case: (1) make up for any lost income with gifts from your girlfriend. Groseclose v. Groseclose, No. COA22 950 (North Carolina Court of Appeals, December 5, 2023);or buy a $50,000 boat right before you claim loss of income. Bonanno v. Bonanno, No. 2022–09698, 2023 N.Y. Slip Op. 06523 (New York Supreme Court, Appellate Division, Second Department, December 20, 2023)

PARENTAGE - SAME-SEX SPOUSE - CONTRACT

Glover v. Junior, No. 1369 EDA 2022, 2023 PA Super 261 (Pennsylvania Superior Court, December 11, 2023):

Biological mother filed for divorce from her same‑sex spouse, and spouse filed petition for pre‑birth establishment of parentage of child that the married couple had conceived through in vitro fertilization (IVF) treatment during their marriage. Held: The trial court did not abuse its discretion in failing to apply marital presumption doctrine. The biological mother and her same‑sex spouse had been married for seven months when the child was conceived via IVF, but they separated prior to child's birth, mother initiated divorce proceedings before spouse filed petition, divorce remained pending when court determined parentage issue, and employing marital presumption would not serve purpose of doctrine. However, the biological mother's same‑sex spouse established a contract‑based right to parentage of the child as evidenced by couple's collective intent and shared cost in conceiving child via assisted reproductive technologies. Insofar as spouse was required to, and did, in fact, initial or sign as “partner” substantive pages of couple's IVF agreement with fertility clinic, spouse was party to that contract, and by executing contract, spouse assumed financial obligation of participating in fertility program, a cost that couple split equally, and record demonstrated parties’ mutual assent, actions in furtherance of the sufficiently definite terms of the agreement, and consideration.

PROPERTY DIVISION - ALLOCATION OF MARITAL DEBT - FAULT

In re Marriage of Whitman, No. A157055 (California Court of Appeal, First District, Division 2, December 29, 2023):

Debt incurred by husband in SEC enforcement action, both pre-separation and post-separation, would be allocated to Husband. Kinda goes without saying, don’t ya think? Although I am making light of the decision, it contains an extended discussion of the types of debt that can be divided and in what proportion, and should be read by California practitioners for that. 

PROPERTY DIVISION - PROPORTION - CONTRIBUTION TO MARITAL ESTATE

Weber v. Weber, No. 30253, 2023 S.D. 64 (South Dakota Supreme Court, December 6, 2023):

The court awarded the lion’s share of the assets to the wife. “The court's findings are supported by the record, and when considering these factors together, the court appropriately exercised its discretion in determining that Donita was entitled to a significantly greater share of the marital estate. Ivan's contention that the court did not adequately consider his contributions to the marital property overlooks the court's specific findings noting Ivan's contributions to the marital property during the marriage. Further, his contributions and any market appreciation during the four‑year marriage, as well as the $90,000 Ivan brought into the marriage, are noticeably modest relative to the over $2 million in assets that Donita brought into the marriage.”

Don’t forget family law across borders by Melissa Kucinski

AI News

Joe Patrice, Journalists Figure out this Morning That ChapGPT Screws up Legal Questions (Above the Law, January 12, 2024).

Brian Melley, Judges in England and Wales Are Given Cautious Approval to Use Ai in Writing Legal Opinions (ABC News, January 8, 2024). 

Celebrity Divorce News

Kelsey Vlamis, Elon Musk Fights to Keep Custody Battle in Texas, Where He’d Have to Pay Only $2,760 a Month in Child Support. (Yahoo Finance, November 21, 2023). What a guy. 

Other News Items of Interest

Joshua Zitzer, A 62‑year‑old Woman Whose 2 Kids Died in Accidents Won Permission to Harvest Her Dead Husband's Sperm (Business Insider, January 4, 2024).

(Ed. Note: For more on the topic of post-mortem sperm retrieval, see The Legal and Medical Ethics of Post-Mortem Sperm Retrieval on Behalf of Grandparents.