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October 02, 2018 Feature

Review of the Year 2017 in Family Law: Immigration Issues Impact Families

By Linda D. Elrod & Robert G. Spector

I. Introduction

Family law cases cover a variety of topic areas and can appear in state or federal courts depending on the issues and jurisdiction. This year was no exception. All separating or divorcing families face numerous, often complex issues as spouses and parents attempt to move on with their lives. Immigrant families, however, faced additional challenges in 2017. In June 2012, the Obama administration had established the Deferred Action for Childhood Arrivals (DACA) policy that protected from deportation about 800,000 undocumented immigrants who were brought to the United States as young children. On January 25, 2017, the new President signed an executive order “Enhancing Public Safety in the Interior of the United States” which stepped up current immigration enforcement. In addition to enforcement-only policies, the administration also announced immigration bans and threatened to end DACA. In June 2017, Homeland Security rescinded a proposed expansion of DACA. On September 5, 2017, the administration rescinded DACA but federal courts have stayed action until Congress acts on an immigration bill. Increased enforcement efforts have resulted in thousands of children, many citizens of the United States, being separated from their parents who are detained and subject to deportation. Much of the year has focused on immigration issues in federal courts, many of which remain unresolved.

II. National

A. Federal Cases

The United States Supreme Court handed down four important decisions that impact family law and families. The Supreme Court handed down the most significant education decision in about thirty years. The Individuals with Disabilities Act (IDEA) requires schools receiving federal funds to provide a “free and appropriate” public education for children. The Court required a school district to pay private school tuition for an autistic boy when the school was unable to provide the appropriate education to meet his needs and the child was making progress in the private school.1

In June 2017, the Court found that gender-based differentials for a child born abroad to acquire citizenship violated the Equal Protection Clause. A child born abroad to a citizen father should not have to overcome more hurdles than a child born abroad to a citizen mother.2 The result in the current climate may be stiffer requirements for both. The Supreme Court also found that an Arkansas law that prohibited married, same-sex parents from both being listed on their children’s birth certificates while requiring that both married, opposite-sex parents be listed infringed on the marriage rights of same-sex couples.3

The Supreme Court ruled unanimously that federal law prohibits states from requiring a military member to reimburse the nonmilitary spouse for that part of retirement that was waived to receive veterans’ disability benefits. The divorced spouse in the case had lost a portion of retirement pay due to the veteran’s post-divorce waiver of retirement pay to receive service-related disability benefits.4 This case effectively overruled a number of state decisions to the contrary.5

Several federal cases dealt with residual effects of recognition of same-sex marriage.6 A Texas federal district court applied Obergefell retroactively so that a Texas woman could proceed with her claim to be the surviving common law spouse of her deceased same-sex partner.7 A federal court in Florida held that a decedent’s same-sex spouse did not need court approval to be listed as the surviving spouse on the death certificate.8 Taxpayers lacked standing to challenge a North Carolina law that allows state officials to refuse to marry people due to religious objections.9

After Rowan County Clerk Kim Davis refused to issue marriage licenses to four same-sex couples wanting to marry, the State of Kentucky had to pay $222,695 in legal fees to the couples’ attorneys.10 Davis herself must also face a damages suit by a same-sex couple she refused to serve.11 In other marriage license cases, a county clerk violated an engaged couple’s constitutional right to marry by insisting that the man’s incarcerated fiancée appear at the clerk’s office in person to fill out the marriage license application.12 A federal court in Louisiana found that the state could not constitutionally require naturalized citizens who were born outside the United States to present a valid birth certificate from their home country before they could obtain a marriage license.13

Although the same-sex marriage issue is settled for states, there are still questions with Indian tribes. The Osage Nation joined the Cherokee Nation and the Cheyenne and Arapaho Tribes in recognizing same-sex marriages.14

The United States Court of Appeals for the Ninth Circuit handed down three opinions that touched on domestic violence issues. In one, a victim of domestic violence can be forced to testify against her husband because there is an exception to the spousal privilege when one spouse is a victim.15 The court found that a ten-year firearms possession ban for those charged with misdemeanor domestic violence offenses does not violate the Constitution.16 It also determined that a Hawaii ban on gun ownership based on a 1997 domestic violence conviction did not violate the Second Amendment.17

1. Criminal Law

The long-running Miller-Jenkins litigation concluded another chapter when the federal district court refused to set aside a conviction under the International Parental Kidnapping Act for one of the conspirators who helped Lisa Miller leave the country.18 The Seventh Circuit found that a prison sentence received by a Pakistani father who abducted his children in Illinois was properly increased because of the unnecessary expenditure of government resources caused by his crime.19 An estranged wife’s receipt of forwarded emails from the husband’s account at least three hours after the husband received the originals did not preclude a finding of contemporaneous interception as required to state a claim for violation of the Wiretapping and Electronic Evidence Act.20

2. Torts

Although “heartbalm” actions have been widely abolished, they remain in a few states. A North Carolina woman was able to pursue a heartbalm action in federal court for spousal income she claims she lost when her husband had an affair with an Illinois woman. The conduct had taken place before the repeal of the Illinois heartbalm statute.21 A lawsuit for alienation of affections and criminal conversation could be heard in federal court because of diversity of citizenship.22 The Seventh Circuit affirmed the dismissal of a man’s lawsuit against a woman for fraud as frivolous where he alleged she had misrepresented they were wed and tricked him into giving her gifts. The couple had been married by a priest and a rabbi in California but did not file the license and agreed at the time their marriage broke down that they were not married. Sanctions were appropriate.23

A caseworker’s initial decision to remove a troubled child after interviewing the girl at school did not violate her parents’ right of familial association.24 A foster mother could not sue Michigan after it removed three foster children from her home because the foster-parent–foster-child relationship does not give rise to any constitutionally protected interests.25

A deceased child’s family cannot sue a New York county in federal court for its failure to remove him from his mother’s custody prior to his beating death by her boyfriend. The family could not provide any statutory or case law supporting the proposition that the county must remove a child from a parent’s custody if, at an earlier time, it removed a different child.26 A child’s lawsuit against social workers who allegedly perjured themselves to get the child removed from her mother’s care survived a motion to dismiss.27 A Denver social worker who placed a child with an allegedly abusive father could be sued.28 An Oklahoma foster child placed for adoption in Colorado may not proceed with a civil rights action against Colorado caseworkers assigned to investigate reports of abuse by his adopter. The caseworkers are protected by qualified immunity because the “special relationship” with Colorado required for the child’s federal lawsuit is lacking.29

B. Hague Convention on Civil Aspects of International Child Abduction

When a child turns sixteen, the Abduction Convention ceases to apply regardless of the age of the child at the time of the abduction.30 Where there is no wrongful removal or retention, as where the parent consented to the removal, there is no basis for a return order.31 The date of the wrongful removal or retention can aid in determining both the child’s habitual residence and the child’s acclimatization under Article 12. The Third Circuit looked at a situation in which the parents agreed to alternate countries on a yearly basis. The date of a wrongful retention is the date beyond which the noncustodial parent no longer consents to the child’s continued living with the custodial parent. The parent may seek to reassert custody rights by clearly and unequivocally communicating through words or actions. If the notice indicates a future date as the date consent will be withdrawn, the latter date will constitute the retention date.32

1. Habitual Residence

Courts continue to struggle to make a fact-based determination of a child’s habitual residence. The child of a U.S. Army soldier and his Japanese wife is a habitual resident of Japan and must be returned there even though the father had obtained a custody order in Florida.33 Determining the habitual residence of a newborn can be difficult. When the father was from the United States and the mother from Guatemala, the court found that the mother did not plan to move to the United States to raise the child with the father where she demonstrated she moved to Florida only for “a trial period.”34 Paraguay became the habitual residence of the two-year old child when the mother and the child joined the father after she moved out of her Houston apartment, even though she and the child returned to Houston a few weeks later.35A father failed to establish that the United Kingdom was the children’s habitual residence when they had only been there for a seven-to-eight-week stay and the parties never shared an intent as to the children’s residence.36 Parents who were not able to agree on whether their daughter’s visit with the father in Arizona was to be one month or two years certainly did not share an intent to change her home country from Mexico to the United States.37 On the other hand, when the parents had not agreed to abandon their U.S. residence, habitual residence did not change to the Cayman Islands, even though they resided there for two years.38

The Third Circuit noted that because infants and young children are dependent on the parents, the child’s acclimatization to the environment does not typically apply to habitual residence.39 The Sixth Circuit, which usually looks at habitual residence from a child’s perspective, agreed that it would be appropriate to use the shared parental intent standard in cases involving young children.40 The Eighth Circuit found that from a six-year-old’s perspective, the habitual residence shifted from Israel to the United States. The mother had moved the child to St. Louis two years before, obtained a job, bought a car, rented an apartment, and established a home. The child had a pediatrician; attended school, speech therapy, and activities at the local Jewish Community Center; and spoke English.41

2. Defenses

a. Grave Risk of Harm

Under Article 13(b) of the Convention, a court need not return a child if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The minor son of a Spanish diplomat and a U.S. woman who lived in Turkey was required to be returned there to settle custody issues. No “intolerable situation” existed that would preclude Turkish courts from deciding custody.42 The grave risk of harm should be limited to a showing of specific evidence of potential harm that could occur to the child in the immediate future. A mother had shown that there were gangs in El Salvador but not a threat of specific harm. El Salvador was not a zone of war, so the court ordered the child returned to the father.43

In an unusual case, the district court had ordered two children to be returned to Mexico, finding no grave risk of harm. During the stay pending appeal, all parties returned to the United States. The Sixth Circuit found that if the children were returned, the Mexican court might no longer be able, practically or legally, to resolve the custody dispute, which might present an intolerable situation. The court remanded the case to reconsider whether there would be a grave risk of harm or of an intolerable situation at the time of the actual return, rather than at the time of the return order. As pointed out by the concurring opinion, since everyone was back in the United States, the appeal was moot, and Michigan has jurisdiction over the custody dispute.44

A few cases dealt with Article 13(b) and abuse issues. In one, the court allowed a boy to stay with his mother in the United States due to the grave risk of psychological harm he would face if he were returned to his father in French St. Martin. The legal system there appeared to be inadequate to protect the mother and child from the father’s abuse. Protection orders there take a long time and are difficult to obtain, and “the island is too small for someone to successfully hide.”45

In another case, a child who suffered from PTSD due to the petitioner’s violence toward the respondent did not need to be returned to Mexico.46 A Brazilian father who allegedly threatened to kill his sons and their mother was not found to actually present a risk of harm where the mother testified that the father never behaved violently during their twenty-year marriage.47 In another case, the court returned children to their to the father in Mexico. Neither the warrant for the mother’s arrest nor the fact that the law firm for the mother’s attorney had received an email from an unknown source stating that the father was going to kill the mother was not clear and convincing evidence of grave risk of harm to the children.48

b. Mature Child and Other Defenses

The Eighth Circuit decided that the trial court’s decision concerning whether a child is mature enough to object to the return is subject to clear-error review. The mature child defense applied to preclude the return of a fifteen-year-old to the father in Peru. Returning the child over his objections would not further the aim of the Hague Convention.49 One court found that children ages eleven and thirteen were mature enough to express an objection to being returned to Mexico.50

The filing of a divorce and custody action in state court does not indicate an acquiescence to the removal as a matter of law.51 A father did not acquiesce in his child’s removal from Paraguay even though he had assisted in getting the child’s passport so the child and mother could visit her family in Texas.52 The consent defense was proved, however, where the petitioner repeatedly said that the child was better off with the respondent in the United States, obtained a passport for the child, and sent subsequent text messages saying the same thing.53 The same was true when the father paid the airline fee for a return ticket, drove the mother and child to the airport, arranged for them to be picked up in the United States, and found an apartment for them.54 Where Mexican courts found that the evidence supported a finding that the father had consented to the children remaining in Mexico, a federal district court in Maryland found it should give comity to a Mexican Hague return determination.55

Whether a child is well-settled is not determined solely by the amount of time a child has been in a country. A child who had lived with her father in Florida since 2013 was not well-settled where the child did not have many friends, was frequently tardy and absent from school, and had few social or extracurricular activities.56

3. Attorney Fees and Other Issues

A court entertaining a Hague return petition has the authority to appoint counsel for the respondent.57 Attorney fees can be ordered under the International Child Abduction Remedies Act (ICARA) even if the petitioner’s attorneys agreed to work for free.58 A court, however, reduced by two-thirds the dollar amount of attorney fees and costs requested by a father where the law firm did not charge him for its services in getting the child returned to Poland and the boy’s mother, who took him to the United States, had limited financial means.59

Even though parents involved in an international child abduction proceeding had agreed to share the costs of their children’s attorney/guardian ad litem, the father was required to pay the bulk of those fees because he was responsible for delaying resolution of the case.60

The court declined to return a child who was taken from Dutch Sint Maarten to French Saint Martin because they are two separate entities and Sint Maarten does not recognize the Abduction Convention.61 A father’s post-decree motion to enforce the return order by requiring the mother to surrender the children’s passports was properly denied because the request should have been directed to the Mexican court as the country with jurisdiction over the custody dispute.62 The fact that the father’s petition under the Hague Abduction Convention had been determined against him is irrelevant to a proceeding to return the child under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).63

C. Indian Child Welfare Act

The Indian Child Welfare Act (ICWA) applies whether the covered proceeding was filed by an agency or a private individual.64 If the child is an Indian child, the tribe must be given notice of the proceedings and an opportunity to intervene. A Native American birth father satisfied the requirements for acknowledging paternity under the ICWA where he and the birth mother of the same tribe resided together at the time of conception and for the first six months of the pregnancy and kept in touch after the mother moved to Utah. He had a right to notice and to intervene in the adoption proceeding.65 In another case, the State of Kansas was required to respond to a tribe’s request for more information in connection with a notice that an “Indian child” might be involved in a state court dependency proceeding.66

A mother testified during a termination proceeding that the child was possibly an Indian child, but the court proceeded to terminate her rights. The appellate court remanded the case for the court to give the Oglala Sioux tribe notice. The tribe should have had an opportunity to determine membership and whether it wanted to intervene.67 Where Oklahoma moved to terminate the natural mother’s parental rights, the Indian tribe intervened after the mother enrolled as a citizen of the tribe. The appellate court upheld the transfer of the case to the tribal court.68

The ICWA requires testimony of an expert witness. To determine if an expert witness is qualified under ICWA, the court should consider the Bureau of Indian Affairs guidelines. The Kansas Court of Appeals found that a proposed expert who was a member of the tribe of the Indian children involved, had a Ph.D. in Native American history, and taught Indian studies and classes on ICWA qualified as an expert witness.69

D. Bankruptcy

The U.S. Bankruptcy Code § 523(a)(15) prevents a debtor from discharging bankruptcy debts incurred in connection with a separation agreement, divorce decree, or other order of a court of record. In a marital settlement agreement, the husband agreed to indemnify his ex-wife and hold her harmless on the business debts. When the husband incurred a business debt, the court found it was in connection with the divorce decree and was nondischargeable.70

A state court cannot order that a divorce settlement cannot be discharged in bankruptcy.71 An award of attorney fees to a debtor’s ex-wife for overtrial in a protracted custody and child support proceeding is a domestic support obligation entitled to priority in bankruptcy.72

A bankruptcy court considering a debtor’s application to protect the home he got in his divorce erred in rejecting his ex-wife’s claim that their divorce decree had granted her a mortgage lien against it that required him to sell the property and give her the proceeds.73

A young mother of three small children who is separated from her husband and works in her chosen field part time could get more than $25,000 in student loan debt wiped out in her Chapter 7 bankruptcy because she could not maintain a minimal standard of living for herself and her dependents, this state of affairs was likely to persist for a significant portion of the repayment period, and she made a good faith effort to repay the loans.74

E. Retirement Plans

Anheuser-Busch Companies does not owe pension benefits to the ex-wife of a worker who remarried six months before his death because the ex-wife’s qualified domestic relations order (QDRO) conditioned payment on her marital status. The court concluded that the order did not clearly specify either the amount or percentage of benefits to be paid or the number of payments to be made.75 A federal worker’s ex-wife receives the bulk of his government life insurance because he never revoked her as a beneficiary after their divorce and before he died.76 A Minnesota law that automatically revokes a spouse as a life insurance beneficiary upon divorce cannot be applied to designations made before it was passed.77

F. Taxation

In December 2017, Congress passed the most sweeping tax reform in thirty years. The Tax Cuts and Jobs Act makes a small reduction in income tax rates for most individual brackets but significantly reduces the tax rate for corporations. For 2018–2025, TCJA eliminates personal exemptions and raises the standard deduction. TCJA will have an impact on the negotiation of property settlement agreements, especially after this year, because it eliminates the deductibility of alimony payments for divorce decrees after December 31, 2018.

A mother who has fewer days of custody of the children than the father may not be awarded the child tax exemption.78 The Internal Revenue Service’s (IRS) denial of a male homosexual taxpayer’s claimed medical expense deduction on his individual tax return for the costs of in vitro fertilization (IVF) involving the use of an egg donor and a gestational surrogate who were not related to him did not violate his rights to due process and equal protection. The IRS properly denied the deduction on the ground that the expenses the taxpayer paid were not for the medical care of any individuals covered by the deduction, namely the taxpayer, his spouse, or a dependent. The taxpayer’s sexual orientation had nothing to do with the disallowance of the deduction. Moreover, the Internal Revenue Code (IRC) provision governing the deduction did not permit any taxpayer, regardless of sex, sexual orientation, or gender, to deduct the kinds of IVF expenditures the taxpayer claimed.79

III. State Court Decisions

A. Adoption

1. Consent

Generally, the consent of both parents is required for a third party to adopt a child. Unwed fathers pose special problems. Arizona found that filing in the state putative father’s registry was a bright-line rule. A nonresident putative father’s failure to file was a statutory ground for severance of his parental rights even though he alleged the mother and adoption agency deceived him and he filed for paternity in the mother’s home state. An individualized, post-adoption determination of the reasonability of the father’s conduct would undermine the finality of adoptions.80 If a parent has failed to communicate or support a child for over a year, a few states allow adoption without that parent’s consent.81 A couple of cases found a biological father’s consent was necessary before the stepfather could adopt the child where the mother had interfered with the father’s visitation.82

2. Other Adoption Issues

The court declined to allow the posthumous adoption of children after the prospective adoptive mother died after filing the petition.83 The equitable adoption doctrine applied to permit a former same-sex partner to enforce an earlier agreement with the adoptive father that he be allowed a second-parent adoption. The adoptive father and the partner agreed that the adoptive father would adopt the child first, and the partner would adopt the child second, due to the religious adoption agency’s policy disallowing joint adoptions for same-sex couples. Neither party had a biological relationship with the child, so Nevada’s Uniform Parentage Act was not implicated.84

Father’s biological son, who was the beneficiary of three family trusts, had no standing to vacate his father’s 2004 adoption of a child.85 Grandparents lacked standing to object to the adoption petition filed by nonrelatives after the mother had voluntarily granted them parental rights.86 Pennsylvania and Oklahoma held that adult adoptions could be set aside to enable the couples to marry.87

B. Agreements

1. Premarital Agreements

Courts have upheld premarital agreements where the parties have had knowledge of the assets and adequate time to confer with independent counsel.88 A Minnesota court found that a wife did not have a meaningful opportunity to consult with independent counsel and had not known her future husband’s net worth when he presented the premarital agreement three days before a destination wedding.89 A German woman who did not understand the purpose and consequences of the premarital agreement was not bound by it in their later divorce.90

A couple who did not acknowledge their signatures when they signed a prenuptial agreement was not bound by it in their divorce.91 Michigan determined that the husband and wife could not use an antenuptial agreement to eliminate the trial court’s discretion to equitably distribute assets.92

2. Postmarital Agreements

A man who reneged on his promise to tear up a postnuptial agreement if his wife signed it and instead submitted it for enforcement in their later divorce action committed fraud. Therefore, the agreement was unenforceable.93In Nebraska, the property provisions of a postnuptial agreement executed by a couple shortly after their wedding were not enforceable in their divorce fifteen years later because Nebraska law does not authorize postnuptial agreements to allocate the parties’ property rights upon separation or divorce unless such agreements are concurrent with a separation or divorce.94 An oral postnuptial agreement to deem certain property to be the wife’s sole and separate property made manifest by a deed transferring title to the wife’s name was valid. The transfer was to appease the wife for loss of her inherited investment portfolio due to the husband’s poor investment decisions.95

C. Alimony/Maintenance

1. The Original Award

Alimony or spousal support is generally awarded after a long-term marriage on the basis of disparate earning abilities. Alimony is sometimes awarded in shorter marriages depending on the circumstances. Even though a Fijian wife did not qualify for alimony due to the short length of the marriage, her contractual right to support under the federal affidavit filed by her husband in connection with her immigration to the United States was enforceable in their state divorce action.96

A court may consider the income-earning potential of a spouse’s share of the marital property in determining whether there is a need for alimony.97 A man who did part-time carpentry work and stayed home full time after a child’s birth while his wife attended medical school was entitled to only temporary alimony because he received $100,000 and would receive child support.98 Texas reversed a $300,000-a-month temporary alimony award to a wife because she should have provided more than conclusory figures as to her actual monthly expenses if she wanted to maintain her marital standard of living.99

Arkansas decided that the traditional factors used in determining an award of permanent alimony are also relevant to the consideration of rehabilitative alimony.100 A California trial court noted that the dissolution of marriage may be no-fault, but there is an element of fault considered in the award of spousal support. A wife was properly denied alimony where she had provided the son with alcohol, which made him sick, and she forcibly cut the daughter’s hair because the daughter refused to cover up the wife’s sexual abuse of the son’s twelve-year-old friend.101

West Virginia found that an alimony award of $4,000 per month was grossly unfair to the sixty-two-year-old wife, who had not worked during the marriage given the couple’s standard of living. The amount constituted only ten percent of the radiologist husband’s monthly income.102 In determining the amount of alimony, the court should consider whether a couple regularly saved a chunk of their income during the marriage.103 Missouri determined that the fact that a divorcing husband’s income consisted of only his state teacher’s pension and Social Security retirement benefits does not bar an award of alimony to his wife.104

Income from unvested employee stock options that were not part of the property division in a divorce could be considered in calculating alimony payments.105 A court may not order a spousal allowance to be taken from IRAs of the decedent that designated someone other than the spouse as beneficiary.106 A sixty-six-year-old California woman who had retired from her job did not have to go back to work and become self-supporting after being awarded alimony.107

Massachusetts addressed the duration of alimony and concluded that a court can, in the interest of justice, deviate from the terms of statutory alimony guidelines when the wife has bargained for additional alimony in lieu of certain property.108 In Florida when a court awards lump-sum alimony, it must first determine whether the award is necessary for support or to effect an equitable distribution of marital property. Failure to make the requisite findings will result in a reversal.109

2. Modification and Enforcement

Arkansas concluded that a statute automatically terminating alimony obligations when an ex-spouse lives full time with another person did not apply to alimony ordered before the statute was enacted. Terminating an alimony provision of a previous divorce decree based on a ground that did not require automatic termination when the decree was entered amounted to a retroactive application of the statute.110 In Georgia, an ex-husband was entitled to reduction of alimony where the ex-wife cohabited in a meretricious relationship with her boyfriend.111 A court found that an unemployed hedge fund manager should pay his ex-wife only $1 a year in alimony due to their changed circumstances.112 Missouri found that a spouse’s post-divorce increase in income does not, by itself, justify modifying alimony unless the couple had previously agreed that it should.113

A lien against all future income of a divorced attorney’s law firm was proper after he fell behind in his alimony payments.114 A divorce decree that required the ex-husband to provide medical insurance for his ex-wife until he remarried implicitly required him to notify her of his remarriage. His failure to notify her that he had remarried and that he no longer provided her with medical insurance meant that he had to reimburse her for the medical expenses that she incurred between the day of his new marriage and the day on which she found out that her insurance had lapsed.115 A man who skipped his divorce hearing because he thought his wife would not go through with it cannot set aside her lifetime alimony award.116

D. Alternative Dispute Resolution

In February 2017, the American Bar Association (ABA) endorsed the Uniform Family Law Arbitration Act (UFLAA). Two states have enacted it: Hawaii by statute and Arizona by supreme court rule. An arbitration award that erroneously made a binding decision on a possession issue that was beyond the arbitrator’s authority could be corrected without affecting the merits of the decision awarding alimony and support to the mother following divorce.117 The Texas Court of Appeals granted a father’s petition for mandamus where the trial court abused its discretion in removing the arbitrator and appointing a new one. Where the parties agreed to arbitrate before a particular arbitrator, they could not await the decision, final or otherwise, and only then object to the selection of the arbitrator.118

Parents reached a global settlement after mediating with counsel present and orally recorded their agreement, which was reduced to stipulation. The court found that the parties consented to a mediated settlement agreement being submitted to the court.119

A couple of cases dealt with parent coordination. In a Massachusetts case, the court found that the parties had agreed in their separation agreement to be bound by the decisions of a mutually agreed-upon parent coordinator. Therefore, the parent coordinator’s order was binding and the mother was in contempt of the order concerning email communications and child visitation exchanges. The parent coordinator’s order did not affect the material terms as to the children’s primary custody or visitation but only as to logistics of visitation.120 A New York case found that the parents seemed to be able to make major decisions but could not make minor day-to-day decisions. The father had final decision-making authority over education, the mother over medical, summer camp, and organized sports activities. It was determined that, if the parties were to prove unable to jointly select a parent coordinator to help them in shared decision-making, the court would appoint one.121

E. Assisted Reproductive Technology

The Kansas “Craig’s List” sperm donor case ended after four years with the man who answered a lesbian couple’s request for sperm being found not to be the child’s father.122 Children conceived by a woman using her husband’s banked sperm eleven years after his death could not claim Social Security survivors’ benefits based on his wage earnings.123 A wife was not entitled, over the husband’s objection, to an award of two frozen pre-embryos containing the husband and wife’s genetic material. The wife was not pregnant and the parties did not begin the IVF process due to any inability of the wife to otherwise achieve parenthood. The husband’s fundamental right to not procreate would be extinguished if she bore more of his children against his will.124

Same-sex couples continue to litigate over parentage of children conceived by assisted reproduction during the relationship. The Idaho Supreme Court found that the biological mother’s former same-sex partner did not have a legally recognized, protected relationship with the child conceived during the relationship and thus lacked standing to raise on the child’s behalf an equal protection challenge to the artificial insemination act.125

F. Attorneys

Alaska held that an indigent father did not have a due process right to counsel in a child custody case, even though the mother was represented by private counsel. The father was able to appear in person, present evidence, and cross-examine the mother, and the state had an interest in avoiding the fiscal and administrative burdens of appointing the father counsel.126

1. Fee Issues

New York held that a contingency fee agreement tied to the amount of recovery owed to a client under a divorce-related property settlement that was reduced to a money judgment is unenforceable because it violates the state’s rules of professional responsibility. The lawyer, however, is entitled to the reasonable value of his services.127 The parties agreed that the mother’s lawyer would hold the child’s Spanish and United States passports. When the mother changed lawyers, the second law firm received the agreement and the passports. The court found that the law firm was holding the passports as trustees and escrow agents. Therefore, they were fiduciaries for both the mother and father. The firm could be liable for attorney fees resulting from a breach of the fiduciary duty that occurred when it released the passports to the mother, who took the child to Spain.128

Illinois determined that a man whose $35,000 monthly alimony payments were lowered to $27,500 when his income dropped was properly ordered to pay part of his ex-wife’s legal fees. In Illinois, fees can be ordered if the judge finds that requiring a person to pay all of the fees would undermine the person’s financial stability.129 The Tennessee Court of Appeals has no discretion whether to award attorney fees in a post-divorce proceeding when the parties have a valid and enforceable marital dissolution agreement that requires an award of reasonable attorney fees to the prevailing party.130 The Hawaii Supreme Court found that Family Court Rule 68, which provides that a side that rejects an offer and gets less than the offer at trial must pay the other’s attorneys fees, does not apply in divorce cases.131 An attorney lien for a divorce client’s unpaid fees may attach to a property settlement in the divorce case.132

2. Ethical Issues

A father’s motion to disqualify the attorney representing the mother in family court proceedings should have been granted where the attorney is married to the former family court judge who presided over the case.133 A lawyer may not be the guardian ad litem for the child when he serving as the child’s attorney.134

Iowa disbarred an attorney for advising her client to withhold visitation and threatening to withdraw immediately before trial unless the client paid her an additional $10,000.135 An attorney who orchestrated her own sham divorce so she could pose as the fiancée of her (ex-)husband’s cousin, a Cuban national seeking entry into the United States, was barred from ever appearing again in a New Jersey courtroom and was reported to the New York disciplinary authorities.136

The Iowa Supreme Court rejected the argument that violating the ethics rule prohibiting sexual relations with clients forms a per se basis for legal malpractice and breach of fiduciary duty claims.137 An attorney-client relationship in a divorce case did not clearly end when the lawyer signed a notice of withdrawal. He was still copied on emails, and the client could have believed he was still working. He, however, had ceased to act for the client by the time of trial.138

G. Child Abuse and Neglect

An infant who broke her leg while in her father’s care at home should not have been declared abused and neglected by her mother, who was away when the injury occurred.139 A child was adjudicated neglected, however, where the mentally ill mother denied her illness, refused to take medication, and harmed the child.140

Termination of parental rights cases often focuses on whether the agency has provided reasonable efforts to reunify the family. Where it has and the parent is unwilling or unable to take responsibility, rights may be terminated.141 If a parent has abandoned a child, parental rights can be terminated.142 Otherwise, the agency may be required to provide more help to a struggling parent.143 Poverty “is not, and never had been,” grounds for terminating a person’s parental rights.144 The court properly used the unfitness presumption to terminate parental rights where the parents had prior convictions in connection with another child’s death.145 A mother’s ouster from a “drug court” program offered as an alternative to prison was properly considered in a proceeding to terminate her parental rights.146 The fact that a parent is subject to the Americans with Disabilities Act (ADA) is not a defense to termination of a disabled parent’s rights or a child neglect proceeding.147

A parent should have an opportunity to participate in the termination hearing. The trial court should have granted the mother a thirty-minute continuance for her to get to the courthouse in a termination of parental rights case.148 In another case, the appellate court found the trial court erred in denying mother’s request to reopen a termination case ten days after the hearing she was not able to attend.149

H. Child Custody

1. Jurisdiction— UCCJEA and PKPA

Several cases dealt with initial jurisdiction over infants. California ruled that it did not have home state jurisdiction over the custody of an infant born to a (drug-addicted) mother who came to California for the sole purpose of giving birth. A child’s temporary hospital stay incident to birth is insufficient by itself to confer such jurisdiction.150 Florida determined that it is the home state of a child who was eleven days old when the mother relocated to New York. The filing by an unwed mother of a custody action did not confer jurisdiction where the father had filed in Florida where the child had lived with both parents from birth to relocation. Unless Florida relinquished its jurisdiction to New York, Florida remained the child’s home state.151 Where the child was born in Arizona and lived there two months, and the father’s paternity was established by acknowledgment before the mother left for Wisconsin, the Arizona court had home state jurisdiction. A temporary order could require the mother to return to Arizona with the child.152 In another case, Vermont could not exercise its jurisdiction over a mother’s parentage action where the father’s child custody action was pending in Virginia at the time the mother filed.153

A dependency court lacked jurisdiction to terminate the parental rights of a Georgia mother whose child was placed in state custody after she was hospitalized while they were traveling through South Carolina because the court had only temporary emergency jurisdiction.154 The failure of a court from whom an emergency order is sought to communicate with the court that would otherwise have jurisdiction results in reversible error.155

Most states are getting the exclusive continuing jurisdiction provisions. As long as one parent remains in the decree state and there is evidence, the decree state retains jurisdiction.156 A temporary custody order entered in a mother’s Maryland domestic violence protection action against her child’s father was considered an initial custody determination, so Maryland had exclusive continuing jurisdiction over custody even though the mother fled to Puerto Rico with the child.157 A custody order obtained in Texas by the father within six months of the time the children came to live in Pennsylvania was valid and must be enforced in Pennsylvania even though the children have lived there now for two years.158

Exclusive continuing jurisdiction ends when all parents and the child no longer continue to live in the state. The presence of grandparents with visitation in the original decree state does not confer exclusive, original jurisdiction when both parents and the child have left the state.159

Contrary to the comments in the UCCJEA, Mississippi decided that when the mother moved back to Arizona from Mississippi prior to the time the father filed in Mississippi to modify the Arizona order, Arizona regained exclusive continuing jurisdiction.160 Texas determined that when a Florida court did not respond to its inquiry, it relinquished its exclusive continuing jurisdiction.161

A court that would otherwise have jurisdiction under the UCCJEA may determine that some other state may be a more appropriate forum. An Illinois judge’s comments on the phone that it was in the child’s best interest to have custody matters addressed in North Carolina because that is where the allegation of abuse arose constituted a determination that North Carolina would be a more appropriate forum.162 A New York family court found that Mississippi was a more convenient forum for a father’s petition seeking to modify custody and enforce visitation after the mother and child relocated to Mississippi where the court was well-equipped to decide litigation expeditiously and was familiar with the case.163 A New York family court that had awarded an incarcerated father six visits per year with his daughter abused its discretion in finding that New York was an inconvenient forum to hear his claim that the custodial mother had violated the order by moving to Georgia because New York is far more familiar with the case and would, therefore, be able to resolve this proceeding in a more expeditious manner.164

The trial court abused its discretion in declining to exercise its jurisdiction in favor of Texas by minimizing the importance of protecting three Indian children from their father’s alleged domestic violence. The domestic violence factor favored Alaska’s jurisdiction. Although the father was unable to exercise physical custody of the children due to his incarceration, the father would be available as soon as he was released from jail.165

The Parental Kidnapping Prevention Act (PKPA) prohibited New York from proceeding with an adoption when a custody proceeding for the same child had been previously filed in Arizona. The New York adoption was not entitled to full faith and credit in a man’s Arizona action to establish his paternity of the child. The paternity petition was filed before the adoption petition. The appellate panel suggested to the trial court that it may want to cede jurisdiction to New York pursuant to the UCCJEA.166

2. Factors

The Alaska Supreme Court held that the statutory presumption regarding domestic violence against a domestic living partner can apply to crimes not requiring physical abuse, such as criminal trespass and coercion, harassment, and violating a protection order entered on behalf of a girlfriend who is not the other parent.167 If a court is going to hear allegations of abuse in a custody proceeding, the court must appoint an attorney guardian ad litem.168

A trial court did not err in awarding an unwed mother primary residential responsibility for the child where parties had agreed that the child should attend school in Minot, which is where the mother lived. The father’s work schedule would necessitate before – and after-school programs.169 A trial court abused its discretion by considering the mother’s sexual orientation as a factor when determining the parenting plan. The court found that the father was the more stable parent because he was better suited to maintaining the children’s religious upbringing, which included belief that homosexuality was a sin.170 Where factors favoring each parent were relatively equal, the court awarded the father physical custody because he could better tend to the child’s needs.171

A Kentucky court awarded joint custody with the unwed father as primary custodian where he had lived with the child until the child was age six, and, since the separation, the mother had an itinerant lifestyle and was taking medication for anxiety.172 The trial court’s awarding parents joint custody with mother as primary custodial parent was not clearly erroneous, even though she did not have a job and lived in a two-bedroom trailer with her boyfriend and their two children. The mother was the primary caregiver before the father kicked her out of the home. The father had begun having sex with her when she was thirteen years old and he was twenty-seven and had kidnapped her to Mexico.173 Parents who live over 900 miles apart in different states should not have been ordered to switch custody of their young son every three weeks.174 Joint custody orders often have to be relitigated because the parents cannot agree on school or other issues.175

3. Parenting Time: Nonresidential Parent

A trial court abused its discretion by declining to enter a written finding in the parenting plan that the father had a history of domestic violence.176 A father petitioned pro se for a third time for unsupervised visitation, but there was no link between his new employment and the reasons for supervised visitation. The father failed to show any treatment for anger issues that led to his pattern of intimidating behavior, and there was still a protection order in place.177

While generally a noncustodial parent has a right to access records, release of children’s mental health records to the noncustodial father was not in the best interests of the children where it could prevent the children from seeking treatment.178 A couple of cases dealt with incarcerated parents. In one case, the court upheld denial of visitation of an incarcerated father with a three-year-old where the father used the child to continue to control the mother. The father sent letters to the child threatening the mother, with profanity and references to violence.179The trial court properly modified the incarcerated father’s parenting time where the children were upset by the visits and the father’s attempts to discuss adult topics with the mother.180

4. Modification and Relocation

A court may hold a hearing to see if modification is in order if there has been a change of circumstances since the decree. A father made a sufficient evidentiary showing of a change in circumstances to justify a hearing with respect to certain allegations about the mother’s pending prosecution for criminal possession of a controlled substance in Georgia, her two-week stay in a treatment center, and her diagnosis as bipolar.181

A court can clarify a divorce judgment that is vague, uncertain, or ambiguous. So, where a trial judge interpreted the word “vacation,” it was not modifying the judgment but merely clarifying it.182 Where, however, a father proposed modifying parenting time to equal time, that was not a minor modification.183 The trial court had the authority to vacate terms regarding care of the parties’ children in previous mediated settlements and to modify the father’s parenting time with the younger child because it was in the child’s best interests. The court, however, could not, sua sponte, grant the parties’ older child authority over decisions regarding parenting time, health care, and school.184 Where a court found that there was no evidence of parental alienation, there was no reason to change custody from the mother to the father. The deterioration of the relationship was due in part to the father’s own conduct.185 Evidence supported a finding that it was in the best interest of the child to attend a prekindergarten program, which warranted a modification of custody.186 A provision of the divorce decree resolving the dispute as to the children’s participation in soccer did not intrude on the mother’s fundamental right to parent the children. The mother either had to take them to games and practices or let the father drive them.187

A New York court reversed a change of custody from the mother to the Hasidic Jewish father after the mother changed her lifestyle. The religious upbringing agreement of the parties should only be enforced if it is in the best interest of the child. A court should not use supervised visitation to make the mother adhere to the father’s religion.188 The Georgia Supreme Court reversed the trial court’s changing primary custody from the father to the mother without giving the father or his attorney an opportunity to review, explain, or rebut the children’s in-chambers interview or determine if it should be sealed.189

Several cases dealt with relocation. Although the trial judge could properly deny the mother’s petition to relocate the minor child where it considered and applied statutory factors and articulated findings of fact, the judge could not prospectively restrict any relocation of the minor child outside of the county in which the child currently resided.190 Where the evidence supports a finding that a move out of state is in a child’s best interests, the courts may modify custody to allow the move.191 A Florida trial court was reversed when it denied a mother’s move based on the father’s promises of changed future behavior.192 On the other hand, a court did not violate the mother’s constitutional right to travel and familial association by awarding custody to the father when the mother planned to move to a different city.193

New Jersey overruled its decades-old relocation tests in favor of the “best interest” standard. A court making the sensitive determination of “cause” for an out-of-state relocation request by a parent must weigh the custodial parent’s interest in freedom of movement as qualified by his or her custodial obligation, the state’s interest in protecting the best interests of the child, and the competing interests of the noncustodial parent.194 The Washington Child Relocation Act, which presumes one parent is the primary residential parent and there is a rebuttable presumption that the intended relocation will be permitted, did not apply when parents shared equal time. The parent seeking to move must file for modification of the parenting plan.195

5. Third-Party Visitation

Standing is the first issue. New Hampshire found that the statutory scheme governing grandparent visitation extinguished the court’s common law parens patriae power to order grandparent visitation. Therefore, a great-grandparent did not have standing because great-grandparents were not included under the statute.196 Paternal grandparents lacked standing to seek visitation when they did not plead or prove the parent unreasonably denied visitation for more than ninety days as required by the Missouri statute.197 To justify interfering with a parent’s rights, a third party must make specific good faith allegations that the petitioner had a relationship with the child that is similar to the parent-child relationship and that denial of visitation would cause real and significant harm to the child. A former long-term boyfriend’s allegations of a “very strong bond” and that the child “suffered” and was emotional when unable to see him did not rise to the level of neglect, abuse, or abandonment.198

An individual standing in loco parentis, which is temporary in nature, is not the functional equivalent of a lawful parent for all purposes and in all contexts. The parental preference rules still apply to a custody dispute with an adoptive or biological parent.199 A mother’s boyfriend did not have standing to seek visitation where the evidence showed that the mother did not cede her parenting authority to her boyfriend, there was no intent that he coparent, and the mother retained decision-making power in all aspects of the child’s life.200

Maine found that a biological mother’s former transgender partner was a de facto parent of two of the mother’s biological children where he had been a committed and responsible parent who had lived with the mother since the eldest child was three.201 A biological father’s former same-sex partner stood in loco parentis for custody and visitation purposes. The court enforced a domestic partnership agreement.202 In a New York case, the court found that a former same-sex partner who had lived with her partner pursuant to a cohabitation agreement did not prove by clear and convincing evidence that she and respondent had a plan to adopt and raise a child together as would be necessary to claim joint custody of the child.203

A court violated a wife’s substantive due process rights by modifying the divorce judgment to grant visitation time to the paternal grandparents where the father had not moved to modify the judgment and the grandparents were not parties to the action and did not intervene. The court erred in changing the substantive terms to disallow her from taking the child on an annual trip to Brazil to visit the maternal grandparents.204

One of the more unusual cases this year was a Missouri case in which a husband filed for dissolution of the marriage. The wife’s paramour intervened, claiming that the child was his and born prior to the marriage. The husband had lived with the child since before birth. The court found the mother unfit for sole custody and awarded the husband third-party sole legal and physical custody.205 The trial court did not err in awarding custody of minor children to their maternal and paternal grandmothers rather than their stepfather after the parents died. The stepfather had not taken an active role in parenting until the mother died, and the children lacked an emotional attachment to him. The maternal grandmother had been part of the children’s lives since birth and the paternal grandmother had extensive background as an educator.206 Once a court has granted a grandmother visitation in a consent order, the mother could not unilaterally terminate it. She was required to establish a change of circumstances that warranted relief and the absence of harm to the child from terminating visitation.207

Florida was required to enforce a Colorado order granting grandparents visitation with grandchildren even though the Florida Constitution would not allow a Florida court to grant the visitation order. Florida could not disregard the Full Faith and Credit Clause by elevating its public policy over the policy behind a sister state’s judgment.208 The court did note that a grandparent with visitation is not sufficient to confer exclusive continuing jurisdiction in the original-decree state under that state’s UCCJEA, and that therefore the mother should be able to later modify or eliminate the grandparent visitation in Florida.209

I. Child Support

Although “all income” is included for purposes of calculating child support, there still seem to be a number of issues that come up. The money that a husband received via a line of credit was attributable as income when computing child support obligations.210 A trial court did not have a valid basis for imputing a father’s annual bonus at $133,332.64 rather than his next year’s annual bonus of $45,000. The next year’s bonus was the most recent, the reduction was based on the company’s profits, and there was no indication the bonus would increase in the near future.211

A trial court was required to hold an evidentiary hearing on the issue of whether the parties provided substantially equal care of their son prior to issuing a child support order in divorce proceedings; the finding of substantially equal care was not based on a limited list of statutory factors but on an open-ended inquiry requiring a finding of the extent to which the parents participated in the child’s total care.212 Where neither parent has the child for a majority of the time, the parent with the higher income should be deemed the noncustodial parent for purposes of child support. Where the mother earned more, the father was entitled to child support where the parents had equal parenting time, even though mother had sole “legal” custody of the child.213

Where there is no change in financial circumstances, there is no basis to modify.214 A party seeking a modification has the burden of proving the basis. Where a party fails to credibly and clearly disclose financial circumstances, he or she cannot show a change of circumstances to warrant a downward modification.215 A father’s alleged newly discovered evidence that the children’s condition was somewhat improved did not support his motion to vacate the upward modification the court had ordered.216 The father failed to show his bipolar disorder interfered with his ability to obtain gainful employment, so there was no substantial change of circumstances to modify support.217 In one case, a father’s increase in income of more than fifteen percent once he began collecting Social Security benefits in addition to his salary was sufficient to permit modification of child support.218 In another case, however, the fact that a father had a substantial increase in income was not necessarily a change of circumstances where he was paying $4,872 a month and the children had more privileges than most.219

Generally a reduction in a parent’s income entitles the parent to a downward modification220 unless the decrease is attributable to a parent’s voluntary actions, such as taking a lower-paying job.221 A court may also choose to not reduce child support where the parent can adequately pay the support and still live comfortably.222 A trial court did not abuse its discretion in declining to reduce a father’s child support even though there was a change in primary residency. While the teenagers slept at the father’s, they spent much of their awake time at the home of their mother, who earned less.223 An incarcerated father who could not obtain employment should not have had an upward departure from child support based on his imprisonment for indecent assault and battery on the child.224

Parents cannot waive a child’s right to support. The doctrine of laches did not keep the mother from collecting more than $72,000 in unpaid child support that had accrued over the fifteen years during which she chose to seek only $100 per week rather than twenty percent of father’s gross weekly income with a minimum of $100 as called for by the divorce decree.225 A father was not entitled to credit the excess of dependent disability benefits that was over the amount of his support obligation against past due support.226

J. Divorce, Annulment, and Separate Maintenance

Pennsylvania determined that a Vermont civil union is sufficiently equivalent to a marriage to entitle it to divorce the couple.227 Vermont will dissolve civil unions that were entered into in Vermont by nonresidents if their state will not dissolve them. An affidavit by an attorney of their state of residence is sufficient proof.228

Mississippi held that a woman was properly granted a divorce on the ground of habitual cruelty and inhuman treatment based on a finding that her husband failed to tell her he had herpes and transmitted the disease to her.229 A wife’s divorce action was not subject to dismissal based on the husband allegedly having obtained an Egyptian divorce where the wife filed eight days before the husband filed in Egypt and he did not provide certification of the purported Egyptian divorce in the form required by the state.230

An Ohio trial court did not err in granting an eighty-one-year-old woman’s petition to end her fifty-six-year marriage even though she had been adjudicated incompetent. The trial court relied on a stipulation made by the spouses two years earlier in which the wife had clearly and cogently stated that she desired to be divorced, as well as on testimony from her legal guardian.231 In Kentucky, an incompetent man whose guardian is his wife cannot bring an action for divorce. Any change in this rule, according to the court, is up to the legislature.232A terminally ill spouse’s impending death constitutes an appropriate circumstance for the entry of a bifurcated judgment of dissolution where the court granted a judgment of divorce effective immediately and reserved the property division for later determination.233

Ohio held that failure of the husband to serve the wife in Egypt in accordance with the Hague Service Convention meant that the entire divorce decree had to be vacated, including the provisions on custody.234 The wife’s motion to serve the husband via Facebook was denied, even though the husband was in Saudi Arabia, a nonsignatory to the Hague Service Convention. The wife failed to authenticate the Facebook profile as being that of the husband and did not show that he actually used this Facebook page for communicating.235

The personal representative of a deceased woman’s estate lacks standing to petition for an annulment of her marriage based on fraud because such a marriage is voidable and must be attacked as such during the life of the woman.236 New Hampshire determined that, in an annulment case, it should apply its own law rather than the law of the state of the marriage (New York) to determine whether there was fraud in the inducement because New Hampshire’s stricter law of fraud was the better law.237

K. Domestic Violence

Some people stay in abusive relationships to protect children and their pets. Children have long been included in protection orders. By the end of 2017, thirty-two states, the District of Columbia, and Puerto Rico had enacted legislation that include provisions for pets in domestic violence orders. More shelters are working to accommodate pets.

A protection-from-abuse order directing a man to have absolutely no contact with his ex-wife based on his history of sending her excessive, combative messages did not violate his First Amendment right to freedom of speech.238 A domestic violence restraining order was properly issued against a divorcing man even though his wife admitted having had consensual sexual intercourse with him after obtaining a temporary restraining order.239

A civil protection order was properly entered against a divorced father whose physical altercation with his sixteen-year-old daughter during visitation resulted in her sustaining a concussion and cervical strain.240 On the other hand, a permanent protection order obtained by a custodial mother because her ex-husband was stalking her wrongly prohibited his contact with her immediate family. This improperly barred him from exercising his court-ordered visitation rights with their children.241

The court found a protective order a woman obtained against a man who left four unsigned notes on her car that she considered to be “crazy-creepy” should be vacated because the evidence did not show that a reasonable person would have felt terrorized, frightened, intimidated, or threatened.242 Expert testimony about the behavior of domestic violence victims was admissible to help a jury understand a victim’s insistence on the innocence of the man who nonetheless was convicted of beating and strangling her.243

Oregon did not continue a temporary restraining order against an aunt where the woman failed to show that she was in danger of future harm, as the original order had been based on an isolated incident of aggressive, primarily verbal, conduct.244 A second protective order may be issued against an individual even if no new incidents of domestic violence have occurred because state law expressly allows trial courts to look back and consider prior protective orders in issuing a new one.245

L. Marriage

Two Americans who married in Cuba are married even though at the time it was illegal for Americans to marry there.246 The principle of comity warranted Pennsylvania’s recognition of a Vermont same-sex civil union as the legal equivalent of marriage for the purpose of dissolution.247

A woman’s failure to follow through with divorce plans thwarted her husband’s claim to be another woman’s common law spouse and insurance beneficiary.248 A South Carolina trial court concluded that a female couple had a common law marriage on the date one of the partners divorced her husband.249 Pennsylvania found that a same-sex couple who started living together in 1997 had a marriage recognized at common law. The right to marry is not a new right, but one guaranteed by the Constitution.250

Kansas held that sham green card marriages, even if they may violate federal law, are voidable, not void. No Kansas law specifically prohibits sham marriages. They are voidable under the discretion to annul a marriage for “any other reason justifying rescission,” as such marriages have an illegal purpose clearly contrary to public policy.251 A separated wife may be estopped from claiming to be the surviving spouse of the deceased if she engaged in actions indicating that the marriage was over.252

M. Names

Parents who filed for divorce two months after the child’s birth could not agree on a name. The court applied the best-interests-of-the-child standard and determined that hyphenating the child’s surname to include both parents would allow the child to identify with both parents. The father testified that in Hispanic families, children often have hyphenated names.253

The District of Columbia found that in a request for a change of the child’s name, the trial court erred in applying inaccurate factors that had no basis in case law and perpetuated gender distinctions in favor of the father. The factors to be considered in addition to any safety and well-being issues are how long and widely the child is known by the current name, the extent to which the name is embedded in the child’s own mind and identity, and the view of the child.254

An Oklahoma court articulated thirteen factors that could be looked at in determining whether it is in the child’s best interest that the child’s last name should be changed.255 Other factors courts considered in allowing a name change for a child were a father’s status as a registered sex offender256 and that a father had been largely absent from the child’s life, had paid only a few months of child support, and had failed to attend court appearances.257

N. Paternity

Arizona found that the statutory marital paternity presumption cannot be restricted to opposite-sex couples because it is a benefit of marriage. The biological mother was equitably estopped from challenging her spouse’s parentage where she and her spouse had agreed to be artificially inseminated with anonymous sperm, she gave birth during the marriage, they had signed a joint parenting agreement, and the spouse stayed home to care for the child the first two years.258

New York explored the problem of establishing parentage for a separated same-sex couple who were unable to legally marry when they were an intact couple but who were clearly partnered and who undeniably sought to have and rear children jointly as a family. There is no statute that allows the nonbiological parent to seek an order of filiation over the objection of the biological parent. Heterosexual couples have other legal actions. The court determined that the nonbiological, nonadoptive parent was entitled to an order of filiation based on the couple having been in a registered partnership from 2005 to 2011.259

In an action for child support, a man who signed a voluntary acknowledgment of paternity raised the defense that he had not read the acknowledgment and did not know what it meant. The Kansas court found he could not challenge the acknowledgment more than one year after it was signed.260 A Thai judgment that established the biological father’s paternity of triplets born of artificial insemination was entitled to comity. The court noted that an unmarried man who causes conception through sexual relations is obligated to pay child support. A man who deliberately conceives through artificial insemination should also be obligated.261

A court refused to grant the mother’s request for genetic testing over the husband’s objection where she sought to illegitimize the child born during the marriage but was not establishing paternity in anyone else.262 Wyoming found that the entry of a default divorce operated as an admission of truth where the wife had alleged three children had been born of the marriage. The husband was precluded from challenging paternity of the parties’ first child, who he alleged was born prior to the marriage.263

A family court appropriately applied equitable estoppel in adjudicating the putative father’s paternity of the subject child despite another man’s prior execution of an acknowledgment of paternity. The mother permitted the putative father to hold himself out as the child’s father, he supported the child most of the child’s life, and he took care of the child while the mother was incarcerated.264

An alleged father was equitably estopped from asserting paternity of a child almost four years after the child’s birth when he had only seen the child four times and failed to communicate with the child or provide any financial support.265 In another case, a putative father had no right of action to file for paternity or seek blood testing of the mother, her husband at the time of conception, and the child two years after the child was born. He only had one year to establish filiation.266 On the other hand, a biological father who asserted his parental rights when the child was five as soon as he learned the mother had deceived him was determined to be the father. He had not voluntarily waived his superior right to custody over the husband who had been in prison, had abused the mother, and would not allow her to relocate.267

A child’s legal father was entitled to equitable relief from a paternity order after genetic testing revealed he was not the biological father. Even though ten years had passed, the child’s only interest in upholding his paternity was financial. There was no parent-child relationship, the mother failed to disclose the possibility of other fathers, and family unity would not be destroyed because the mother and father had no relationship.268

O. Property

1. Classification

a. Generally

Virginia followed the trend in finding that an engagement ring is a conditional gift. It must be returned to the donor if the marriage does not occur, regardless of who was at fault.269

Traditionally, pets have been classified as property and assigned as assets. More states are starting to use a best interest of the pet analysis. Alaska became the first state in the country to require courts to take into consideration the well-being of the animal and to explicitly empower judges to assign joint custody of pets.270

Kentucky reaffirmed its commitment to the normal choice of law rule in property cases, namely that the classification and division of all property in dissolution cases are governed by the law of the forum.271 An ownership interest in an oil company was marital property. The company’s primary asset, deep oil drilling rights, entered the marriage as nonmarital but was comingled with marital assets when the oil company loaned funds to the husband’s other company.272

A wife met the burden of presenting evidence that all or a portion of the personal injury proceeds she received from a drug company following a stroke during the parties’ marriage was nonmarital. The proceeds were allocated to her personal losses and evidence of lost future earnings.273 The trial court’s classification of $50,000 of student loan debt as marital was not clearly erroneous where the loans paid for tuition, housing, and living expenses.274 A premarital student loan that a woman consolidated with other education financing during her marriage was properly found to be marital debt because of the commingling.275

Iowa determined that an inheritance a man received before his marriage is his separate property upon divorce, even though a portion of it had been placed in the spouses’ joint account.276 Healthcare eligibility tied to a divorcing wife’s Alaska Native status is her separate property because she has been an Alaska Native for her entire life.277 Absent evidence that husband’s transfers to the trust were fraudulent, assets placed in irrevocable trusts are not marital property.278

Nebraska adopted the active appreciation rule for classifying an increase in separate property. A divorcing business owner’s wife is entitled to a share of the company’s increased value because the gain was due to his efforts during the marriage.279

b. Employment Benefits

A divorcing State Farm Insurance agent’s future termination payments are marital property.280 A bonus paid by an employer after divorce based on work done during cohabitation and marriage was a marital asset subject to equitable distribution only for that part earned during the marriage. The legislature did not intend to treat property acquired during cohabitation or a civil union the same as that acquired during marriage.281 A percentage of a bonus that a former husband received as deferred compensation from his employer after divorce but partly earned during cohabitation was deemed to be held by him in constructive trust to prevent unjust enrichment at the expense of his former wife.282

Restricted stock grants that a man received from his employer during his marriage that were scheduled to vest on a deferred timetable extending three years beyond the date of his divorce were properly classified as marital property.283 In Indiana, only those stock options that are vested on the date of separation are marital property. Stock options that vested after the couple’s final separation date should not have been included in the marital estate.284 In North Dakota, whether stock options can be considered as additional compensation depends on the purpose for which the options were granted.285

A wife’s retirement account was marital and subject to equitable division, even though the account predated the marriage. Retirement money earned or saved during the marriage had been transferred into the account. The wife, who was an attorney, explicitly acknowledged that she had placed marital assets in a premarital account.286

2. Military Pension Issues

A husband did not consent to the jurisdiction of an Oklahoma court to divide his military retirement in a divorce action, so the court lacked authority under the Uniformed Services Former Spouses’ Protection Act to divide it. Although the husband filed two prior domestic actions in the state, he never specifically consented to jurisdiction with respect to his military retirement and did specifically object to the court’s jurisdiction as to his military retirement.287 A wife was granted forty percent of the husband’s military retirement benefits as part of equitable distribution. The Navy determined the benefits were actually disability benefits that could not be divided. Six years later, when the wife moved to reform the divorce decree to award alimony, the court found it was without authority to award alimony where it had not been awarded originally.288 Before determining the amount a military member owes the nonmilitary spouse as a setoff against the military benefits, the court must first determine the value of those benefits.289

3. Valuation and Distribution of Property

Alaska follows the marital foundation theory of property division, which means that the increased value of the marital portion of a retirement benefit remains marital property and, absent clear language to the contrary in a property division agreement, a court should base the division of retirement benefits on the employee spouse’s high-three salary years at the time of retirement.290

A divorce court did not err in refusing to award a man a share of the marital portion of his wife’s retirement benefits because he had not requested such in his answer to her divorce petition or in any other pleading.291 Missouri approved a court order that the wife would receive her share of the pension if and when the husband retires and receives his share.292

A divorce court should not have allocated the value of a traded-in vehicle to the wife where it was no longer an asset at the time of the divorce.293 A divorce court erred by granting certain assets to a wife in a property division after having already awarded her their value as a punishment for the husband’s failure to disclose the property, since an asset can only be awarded once.294

A trial court had no authority to make a nonjoined limited liability corporation pay a husband’s household and family expenses during pendency of divorce. While the court could distribute a spouse’s interest in company stock in a nonjoined company, it could not distribute assets of the company itself.295

Maine determined that a husband’s economic misconduct during the marriage with regard to the family business cost the business $800,000 and that that amount should be placed in the husband’s column, with the wife receiving offsetting property.296

The standing master was required to consider the tax consequences of the division of the marital estate, which would likely require sale of the ranch. The record failed to establish there were available assets in estate to pay wife her share.297

A divorcing couple’s prenuptial agreement permitted the use of tracing and marital loans to separate personal funds from marital funds in a joint account.298 In the District of Columbia, a simple adding of a spouse to the deed does not, without more, mean that spouse is entitled to fifty percent of the equity in the house.299

An inequitable property division between a husband and a wife constituted an equitable consideration that likely warranted deviation from the partnership model of marital property division. Thus, the family court should have explicitly identified equitable considerations justifying deviation or explained on the record why it chose not to deviate from the model when dividing property in the divorce action.300

Community property not listed in a dissolution judgment remained subject to a postjudgment motion for division.301 A divorced man is still liable to pay off his ex-wife’s mortgage on the former marital home, even though she refinanced the debt with another lender.302

P. Torts

Alaska abolished the tort of alienation of affections, although it left open the possibility of a recovery in some circumstances for fraud, conspiracy, and emotional distress.303 In 2016, Illinois abolished all of its heartbalm acts. It appears that Hawaii, Mississippi, Missouri, New Hampshire, New Mexico, North Carolina, South Dakota, and Utah still permit them.

A wife’s action against her estranged husband for his alleged misconduct involving businesses they set up during their marriage should not have been dismissed even though the couple was already involved in an ongoing case for equitable distribution of their marital property, including the businesses.304 A woman who paid her estranged husband $1.6 million for his interest in her company and then sold the business for $28 million must comply with his request for documents supporting his claim she defrauded him.305 A man could not sue the state after it released his confidential report to the child abuse hotline without first deleting his name.306

IV. Conclusion

Many of this year’s cases were high-conflict disputes between parents; others involved conflicts between parents and nonparents. Some courts were willing to expand standing to seek visitation to long-term partners who were de facto parents. Other courts, however, strictly construed third-party visitation statutes and upheld the rights of fit parents to control visitation. Jurisdictional issues continue to arise as parents with children move to different states. Child welfare systems, already understaffed and underfunded, are now dealing with an influx of immigrant children whose parents are being detained. Federal courts continue to hear large numbers of Hague Abduction Convention return requests. The next year should prove interesting as federal courts grapple with the multitude of challenges to the Trump administration’s immigration orders and policies.


1. Endrew F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 743 (2017).

2. Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017).

3. Pavan v. Smith, 137 S. Ct. 2075 (2017).

4. Howell v. Howell, 137 S. Ct. 1400 (2017).

5. See, e.g., Nesbitt v. Nesbitt, 503 S.W.3d 807 (Ark. Ct. App. 2016); Cassinelli v. Cassinelli, 210 Cal. Rptr. 3d 311 (Ct. App. 2016).

6. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

7. Ranolls v. Dewling, 223 F. Supp. 3d 613 (E.D. Tex. 2016).

8. Birchfield v. Armstrong, No. 4:25-cv-00615-RH/CAS, 2017 WL 1319844 (N.D. Fla. Mar. 23, 2017) (unpublished).

9. Ansley v. Warren, 861 F.3d 512 (4th Cir. 2017).

10. Miller v. Davis, 267 F. Supp. 3d 971 (E.D. Ky. 2017). See also DeLeon v. Abbott, No. 15-51241, 2017 WL 1406499 (5th Cir. Apr. 18, 2017) (unpublished) (Texas must pay legal fees and costs incurred by two couples in their successful 2014 challenge of its same-sex marriage ban).

11. Ermold v. Davis, 855 F.3d 715 (6th Cir. 2017).

12. Jones v. Perry, 215 F. Supp. 3d 563 (E.D. Ky. 2016).

13. Viet Anh Vo v. Gee, No. 16-15639, 2017 WL 3394034 (E.D. La. Aug. 8, 2017).

14. See Kristi Eaton, Native American Osage Nation Votes in Favor of Same-Sex Marriage, NBC News (Mar. 23, 2017),​-nation-votes-favor-same-sex-marriage-n737761.

15. United States v. Seminole, 865 F.3d 1150 (9th Cir. 2017).

16. Fortson v. L.A. City Att’y’s Office, 852 F.3d 1190 (9th Cir. 2017).

17. Fisher v. Kealoha, 855 F.3d 1067 (9th Cir. 2017).

18. United States v. Zodhiates, 235 F. Supp. 3d 439 (W.D.N.Y. 2017).

19. United States v. Ali, 864 F.3d 573 (7th Cir. 2017).

20. Epstein v. Epstein, 843 F.3d 1147 (7th Cir. 2016).

21. Kaplan v. Jewett, 229 F. Supp. 3d 731 (N.D. Ill. 2017).

22. Vonfeldt v. Grapsy, No. 1:16cv1179, 2017 WL 590337 (M.D.N.C. Feb. 14, 2017) (unpublished).

23. Arnold v. Villarreal, 853 F.3d 384 (7th Cir. 2017).

24. Bosisto v. Freeman, No. 6:16-cv-372-JR, 2017 WL 2196743 (D. Or. May 18, 2017) (unpublished).

25. Ballard v. Johnson, 2017 WL 1151166 (E.D. Mich. Mar. 28, 2017).

26. Jones v. Cty. of Suffolk, 236 F. Supp. 3d 688 (E.D.N.Y. 2017).

27. Hardwick v. City of Orange, 844 F.3d 1112 (9th Cir. 2017).

28. T.D. v. Patton, 868 F.3d 1209 (10th Cir. 2017).

29. Dahn v. Amedei, 867 F.3d 1178 (10th Cir. 2017).

30. Custudio v. Samillan, 842 F.3d 1084 (8th Cir. 2016).

31. Padilla v. Troxell, 850 F.3d 168 (4th Cir. 2017).

32. Blackledge v. Blackledge, 866 F.3d 169 (3d Cir. 2017).

33. Cunningham v. Cunningham, 237 F. Supp. 3d 1246 (M.D. Fla. 2017).

34. Ovalle v. Perez, No. 16-16568, 2017 WL 780791 (11th Cir. Mar. 1, 2017) (unpublished).

35. Cartes v. Phillip, 865 F.3d 277 (5th Cir. 2017).

36. Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017).

37. Gutierrez v. Juarez, No. CV-17-02158-PHX-GMS, 2017 WL 3215659 (D. Ariz. Jul. 28, 2017) (unpublished).

38. Eubanks v. Eubanks, No. 17-1217, 2017 WL 3235446 (E.D. La. 2017) (unpublished).

39. Blackledge v. Blackledge, 866 F.3d 169 (3d Cir. 2017).

40. Ahmed, 867 F.3d at 682.

41. Cohen v. Cohen, 858 F.3d 1150 (8th Cir. 2017).

42. Pliego v. Hayes, 843 F.3d 226 (6th Cir. 2016). See also Hogan v. Hogan, No. 1:16cv1538, 2017 WL 106021 (E.D. Va. Jan. 19, 2017) (unpublished) (a former attaché to the U.S. embassy in Spain is not entitled to diplomatic immunity in her husband’s effort to have their children returned to that country).

43. Salguero v. Argueta, 256 F. Supp. 3d 630 (E.D.N.C. 2017) (father had been allowed to testify via video conference or telephone because he could not afford the international travel and would be unable to obtain a visa in time for the hearing).

44. Neumann v. Neumann, No. 16-1825, 2017 WL 1162926 (6th Cir. Mar. 27, 2017) (unpublished).

45. Davies v. Davies, No. 17-466-cv, 2017 WL 361556 (S.D.N.Y. Jan. 25, 2017) (unpublished).

46. Espinosa-Cisneros v. Solis-Lopez, No. 16-cv-00057-GMN-CWH, 2017 WL 1025175 (D. Nev. Mar. 6, 2017) (unpublished). For other cases sustaining a 13(b) defense, see Ischlu v. Garcia, 274 F. Supp. 3d 339 (D. Md. 2017) (mother suffers from PTSD as a result of sexual abuse from the father’s brother and father); In re Oliver A. v. Diana Pina B., 56 N.Y.S.3d 311 (App. Div. 2017).

47. De Freitas Pinto v. Barone, 2017 WL 2779700 (S.D. Cal. June 26, 2017) (unpublished).

48. Madrigal v. Tellez, 848 F.3d 669 (5th Cir. 2017).

49. Custudio v. Samillan, 842 F.3d 1084 (8th Cir. 2016).

50. Ochoa v. Suarez, No. 1:15-CV-1104, 2016 WL 6956609 (W.D. Mich. Nov. 29, 2016) (unpublished).

51. Willard v. Willard, No. 17-cv-11645, 2017 WL 3278745 (E.D. Mich. Aug. 2, 2017) (unpublished).

52. Cartes v. Phillips, 240 F. Supp. 3d 669 (S.D. Tex. 2017).

53. Padilla v. Troxell, 850 F.3d 168 (4th Cir. 2017).

54. Benitez v. Hernandez, No. 17-917, 2017 WL 1404317 (D.N.J. Apr. 18, 2017) (unpublished).

55. Alvarez v. Alvarez, No. MJG-17-1010, 2017 WL 2335600 (D. Md. May 30, 2017) (unpublished).

56. Tomynets v. Koulik, No. 8:16-cv-3025-T-27AAS, 2017 WL 2645518 (M.D. Fla. June 19, 2017) (unpublished).

57. Pinto v. Gavilanez, No. 16-cv-5201, 2017 WL 1051187 (D.N.J. Mar. 20, 2017) (unpublished).

58. Heslet v. Heslet, 43 Fam. L. Rep. 1283 (D. Ariz. 2017).

59. Raps v. Zaparta, No. 16 CV 3863, 2017 WL 74739 (S.D.N.Y. Jan. 5, 2017) (unpublished).

60. St. Denis v. St. Denis, 43 Fam. L. Rep. 1112 (D. Conn. 2016).

61. Didon v. Castillo, 838 F.3d 313 (3d Cir. 2016).

62. Madrigal v. Tellez, 848 F.3d 669 (5th Cir. 2017).

63. Gallagher v. Pignoloni, 43 N.Y.S.3d 438 (App. Div. 2016).

64. S.S. v. Stephanie H., 388 P.3d 569, 573–74 (Ariz. Ct. App. 2017), rev. denied (Apr. 18, 2017), cert. denied 138 S. Ct. 380 (Oct. 30, 2017).

65. In re Adoption of B.B., 417 P.3d 1 (Utah 2017).

66. In re D.H. Jr., 401 P.3d 163 (Kan. Ct. App. 2017).

67. Michelle M. v. Dep’t of Child Safety, 401 P.3d 1013 (Ariz. Ct. App. 2017). See also In re O.C., 210 Cal. Rptr. 3d 467 (Ct. App. 2016) (reversing for failure to provide the tribe notice).

68. In re M.C.H., 381 P.3d 710 (Okla. 2016) (ICWA does not require an existing Indian custodian at the time state proceedings are initiated).

69. In re L.M.B., 398 P.3d 207 (Kan. Ct. App. 2017) (tribe declined to exercise jurisdiction and parental rights were terminated where parents had ongoing drug problems).

70. In re Hanis, 2017 WL 3412093 (E.D. Mo. Aug. 8, 2017).

71. 11 U.S.C.S § 523(a)(15) (LexisNexis 2018); In re Norton, 2017 WL 933023 (Bankr. N.D. Ga. Mar. 8, 2017).

72. In re Trentadue, 837 F.3d 743 (7th Cir. 2016).

73. Sarazin v. Sternat, 563 B.R. 285 (E.D. Wis. 2017).

74. In re Price, 573 B.R. 579 (Bankr. E.D. Pa. 2017).

75. Anheuser-Busch Cos. Pension Plan v. Laenen, No. 4:15 CV 1005 CDP, 2017 WL 633824 (E.D. Mo. Feb. 16, 2017) (unpublished).

76. Vassil v. Office of Pers. Mgmt., No. 16-13176, 2017 WL 431686 (E.D. Mich. Jan. 31, 2017) (unpublished).

77. Metro. Life Ins. Co. v. Melin, 853 F.3d 410 (8th Cir. 2017), cert. pending. See also Lazar v. Kroncke, 862 F.3d 1186 (9th Cir. 2017), cert. pending.

78. Hulsey v. Hulsey, 212 S.E.2d 269 (Ga. Ct. App. 2016).

79. Morrissey v. United States, 226 F. Supp. 3d 1338 (M.D. Fla. 2017).

80. Frank R. v. Mother Goose Adoptions, 402 P.3d 996 (Ariz. 2017).

81. Rodgers v. Rodgers, 519 S.W.3d 324 (Ark. 2017) (stepmother allowed to adopt four children when mother had not communicated, paid support, or solved her drug issues). But see Martini v. Price, 507 S.W.3d 486 (Ark. 2016) (father’s consent was required where there was no showing that he failed to communicate with the child for more than one year).

82. In re Adoption of J.K.C., 77 N.E.3d 496 (Ohio Ct. App. 2017) (mother had not even informed him of her last three moves). See also In re Adoption of Hannah L., 390 P.3d 1153 (Alaska 2017) (mother denied father’s visitation, but he continued to write letters and filed for custody).

83. In re Adoption of A.R., 387 P.3d 1285 (Ariz. Ct. App. 2016).

84. Nguyen v. Boynes, 396 P.3d 774 (Nev. 2017).

85. Edwards v. Maxwell, 215 So. 3d 616 (Fla. Dist. Ct. App. 2017).

86. McDowell v. Bowers, 805 S.E.2d 136 (Ga. Ct. App. 2017).

87. In re Termination of Parental Rights of Schultz, 389 P.3d 322 (Okla. 2017); In re Adoption of R.A.B. Jr., 153 A.3d 332 (Pa. Super. Ct. 2016).

88. Blanchard v. Blanchard, 148 A.3d 277 (Me. 2016).

89. Kremer v. Kremer, 889 N.W.2d 41 (Minn. Ct. App. 2017).

90. In re Marriage of Porter, 381 P.3d 873 (Or. Ct. App. 2016).

91. Acurio v. Acurio, 224 So. 3d 935 (La. 2017).

92. Allard v. Allard, 899 N.W.2d 420 (Mich. Ct. App. 2017).

93. Murray v. Murray, 791 S.E.2d 816 (Ga. 2016).

94. Devney v. Devney, 886 N.W.2d 61 (Neb. 2016).

95. McGeehan v. McGeehan, 167 A.3d 579 (Md. Spec. Ct. App. 2017).

96. In re Marriage of Kumar, 220 Cal. Rptr. 3d 863 (Ct. App. 2017).

97. Curtis v. Curtis, 887 N.W.2d 249 (Minn. 2016). See also In re Dow, 169 A.3d 960 (N.H. 2017) (court may impute income to the recipient to determine the appropriate amount of alimony).

98. Lizakowski v. Lizakowski, 893 N.W.2d 508 (N.D. 2017).

99. In re Fuentes, 506 S.W.3d 586 (Tex. App. 2016).

100. Foster v. Foster, 506 S.W.3d 808 (Ark. 2016).

101. In re Marriage of Schu, 211 Cal. Rptr. 3d 413 (Ct. App. 2016).

102. Mulugeta v. Misailidis, 801 S.E.2d 282 (W. Va. 2017).

103. Lombardi v. Lombardi, 145 A.3d 709 (N.J. Super. Ct. App. Div. 2016).

104. Orange v. White, 502 S.W.3d 773 (Mo. Ct. App. 2016).

105. Ludwig v. Lamee-Ludwig, 69 N.E.3d 1005 (Mass. Ct. App. 2016).

106. In re Estate of Gantner, 893 N.W.2d 896 (Iowa 2017).

107. McLain v. McLain, 212 Cal. Rptr. 3d 537 (Ct. App. 2017).

108. George v. George, 63 N.E.3d 380 (Mass. 2016).

109. Gardiner v. Gardiner, 207 So. 3d 987 (Fla. Dist. Ct. App. 2016).

110. Mason v. Mason, 522 S.W.3d 123 (Ark. 2017).

111. Provenzano v. Jones, 805 S.E.2d 909 (Ga. 2017).

112. DeSantis v. DeSantis, No. FA0540039565, 2017 WL 3481889 (Conn. Super. Ct. July 11, 2017) (unpublished).

113. McHugh v. Slomka, 531 S.W.3d 588 (Mo. Ct. App. Aug. 8, 2017), reh’g den.

114. Shumake v. Shumake, 233 So. 3d 234 (Miss. 2017).

115. In re Patient, 169 A.3d 465 (N.H. 2017).

116. Haskell v. Haskell, 160 A.3d 1176 (Me. 2017).

117. In re S.M.H., 523 S.W.3d 783 (Tex. App. 2017).

118. In re M.W.M. Jr., 523 S.W.3d 203 (Tex. App. 2017) (mandamus was appropriate where trial court improperly designated an arbitrator or otherwise denied a party its contractual arbitration rights).

119. Tornstrom v. Tornstrom, 887 N.W.2d 680 (Minn. Ct. App. 2016).

120. Leon v. Cormier, 74 N.E.3d 627 (Mass. App. Ct. 2016).

121. J.R. v. M.S., 55 N.Y.S.3d 873 (N.Y. Sup. Ct. 2017).

122. See Luke Ranker, Judge: Sperm Donor Not Father: William Marotta Will Not Be Required to Pay Child Support to Couple, Topeka Capital-J., Nov. 29, 2016, at 1A, 9A.

123. MacNeil v. Berryhill, 869 F.3d 109 (2d Cir. 2017).

124. McQueen v. Gadberry, 507 S.W.3d 127 (Mo. Ct. App. 2016).

125. Doe v. Doe, 395 P.3d 1287 (Idaho 2017).

126. Dennis O. v. Stephanie O., 393 P.3d 401 (Alaska 2017).

127. Medina v. Kraslow, P.C., 53 N.Y.S.3d 116 (App. Div. 2017).

128. Innes v. Marzano-Lesnevich, 136 A.3d 109 (N.J. 2016).

129. In re Marriage of Heroy, 895 N.E.2d 1025 (Ill. 2017).

130. Eberbach v. Eberbach, 535 S.W.3d 467 (Tenn. 2017).

131. Brutsch v. Brutsch, 390 P.3d 1260 (Haw. 2017).

132. In re Marriage of Shulikov, No. 75266-9-I, 2017 WL 3476783 (Wash. Ct. App. Aug. 14, 2017) (unpublished).

133. Rovner v. Rantzer, 44 N.Y.S.3d 172 (App. Div. 2016).

134. Lopez v. Perez, 221 So. 3d 1204 (Fla. Dist. Ct. App. 2016). See also In re Adoption of L.B.M., 161 A.3d 172 (Penn. 2017).

135. Iowa Sup. Ct. Att’y Disc. Bd. v. Vandel, 889 N.W.2d 659 (Iowa 2017).

136. In re Machado, 166 A.3d 1111 (N.J. 2017).

137. Stender v. Blessum, 897 N.W.2d 491 (Iowa 2017).

138. Cesso v. Todd, 82 N.E.3d 1074 (Mass. App. Ct. 2017).

139. In re Adrina T., 162 A.3d 658 (R.I. 2017).

140. In re Ruth Joanna O.O., 49 N.Y.S.3d 374 (App. Div. 2017).

141. State ex rel. B.R.C., 209 So. 3d 836 (La. Ct. App. 2016); State ex rel. T.D., 221 So. 3d 290 (La. Ct. App. 2017); In re Ashlyn L., 160 A.3d 526 (Me. 2017); In re J.H., 367 P.3d 339 (Mont. 2016); In re D.F., 165 A.3d 960 (Pa. Super. Ct. 2017). See also In re Unique R., 156 A.3d 1 (Conn. App. Ct. 2017).

142. In re Austin G., 898 N.W.2d 385 (Neb. Ct. App. 2017); In re Livia B.L.,151 A.3d 756 (R.I. 2017).

143. Dep’t Human Servs. v. C.L.H., 388 P.3d 1214 (Or. Ct. App. 2017); Dep’t Human Servs. v. S.M.H., 388 P.3d 1204 (Or. Ct. App. 2017); In re Adoption of A.C., 162 A.3d 1123 (Pa. Super. Ct. 2017). See also In re Hicks, 893 N.W.2d 637 (Mich. 2017) (court failed to file that agency made reasonable efforts tailored to mother’s intellectual disability); In re C.K., 165 A.3d 935 (Pa. Super. Ct. 2017).

144. In re Parental Rights as to R.T., 396 P.3d 802 (Nev. 2017).

145. In re Evelyn A., 169 A.3d 914 (Me. 2017).

146. People ex rel. A.K.A.-C., 898 N.W.2d 5 (S.D. 2017).

147. In re Elijah C., 165 A.3d 1149 (Conn. 2017).

148. In re D.H., 159 A.3d 1097 (Vt. 2017).

149. N.J. Div. of Child Prot. & Permanence v. K.S., 138 A.3d 566 (N.J. Super. Ct. App. Div. 2016).

150. In re R.L., 208 Cal. Rptr. 3d 523 (Ct. App. 2016).

151. Baker v. Tunney, 201 So. 3d 1235 (Fla. Dist. Ct. App. 2016). See also Sergeant v. DeRung, 213 So. 3d 423 (La. Ct. App. 2017) (Minnesota is the home state of child born there; conception in Louisiana does not matter).

152. Gutierrez v. Fox, 242 P.3d 259 (Ariz. Ct. App. 2017).

153. Pierce v. Slate, 172 A.3d 190 (Vt. 2017).

154. S.C. Dep’t of Soc. Servs. v. Tran, 792 S.E.2d 254 (S.C. Ct. App. 2016).

155. Earney v. Quiloan, 206 So. 3d 147 (Fla. Ct. App. 2016).

156. State ex rel. Klein v. Winegar, 893 N.W.2d 741 (N.D. 2017) (North Dakota retained jurisdiction where child continued to visit the mother who remained there and there was substantial evidence). See also Hamilton v. Young, 213 So. 3d 69 (Miss. 2017) (an off-the-record call between judges was insufficient for a Mississippi court to assume jurisdiction where Ohio retained exclusive continuing jurisdiction because the father resided there); Gallagher v. Pignoloni, 43 N.Y.S.3d 438 (App. Div. 2016) (Italy retained jurisdiction where separation agreement awarded father sole custody of the two children).

157. Cabrera v. Mercado, 146 A.3d 567 (Md. Spec. Ct. App. 2016).

158. B.L. v. T.B., 152 A.3d 1014 (Pa. Super Ct. 2016).

159. Rhodes v. Lang, 791 S.E.2d 744 (Va. Ct. App. 2016).

160. Edwards v. Zyla, 207 So. 3d 1232 (Miss. 2016).

161. In re T.B., 497 S.W.3d 640 (Tex. Ct. App. 2016).

162. In re T.R., 792 S.E.2d 197 (N.C. Ct. App. 2016).

163. Kevin McK. v. Elizabeth A.E., 54 N.Y.S.3d 17 (App. Div. 2017).

164. Snow v. Elmer, 40 N.Y.S.3d 255 (App. Div. 2016).

165. Rice v. McDonald, 390 P.3d 1133 (Alaska 2017).

166. Ramirez v. Barnet, 384 P.3d 828 (Ariz. Ct. App. 2016).

167. Timothy W. v. Julia M., 403 P.3d 1095 (Alaska 2017).

168. Smith v. Smith, 206 So. 3d 502 (Miss. 2016).

169. Schweitzer v. Mattingley, 887 N.W.2d 541 (N.D. 2016).

170. In re Marriage of Black, 392 P.3d 1041 (Wash. 2017).

171. In re Marriage of Williams, 906 N.W.2d 204 (Iowa Ct. App. 2017).

172. Baize v. Peak, 524 S.W.3d 30 (Ky. Ct. App. 2017).

173. Hortelano v. Hortelano, 513 S.W.3d 890 (Ark. App. 2017).

174. Martinez v. Carrasco, 396 P.3d 1218 (Idaho 2017).

175. See Hongyang Li v. Yi Ding, 519 S.W.3d 738 (Ark. App. 2017); Lee v. Fitts, 47 N.Y.S.3d 468 (App. Div. 2017).

176. In re Parenting and Support of L.H., 391 P.3d 490 (Wash. App. 2016) (court made oral, not written, finding and had not restricted father’s residential time as required by statute).

177. Schaffner v. Schaffner, 898 N.W.2d 428 (N.D. 2017).

178. Rinehart v. Svensson, 169 A.3d 198 (Vt. 2017).

179. Kari C.C v. Martin D.D., 49 N.Y.S.3d 189 (App. Div. 2017).

180. Curtiss v. Curtiss, 891 N.W.2d 358 (N.D. 2016) (older child, who suffered mental breakdown after visit, did not have to go, but ten-year-old did with a third-party supervisor).

181. Farner v. Farner, 60 N.Y.S.3d 613 (App. Div. 2017).

182. Hoverson v. Hoverson, 828 N.W.2d 510 (N.D. 2017).

183. In re Marriage of O’Hare, 79 N.E.3d 712 (Ill. App. Ct. 2017). See also In re Custody of M.J.H., 899 N.W.2d 573 (Minn. Ct. App. 2017).

184. Moell v. Moell, 84 N.E.3d 741 (Ind. Ct. App. 2017).

185. Sanders v. Jaco, 48 N.Y.S.3d 729 (App. Div. 2017).

186. Bourgeois v. Bourgeois, 218 So. 3d 684 (La. Ct. App. 2017).

187. Mills v. Fleming, 166 A.3d 1012 (Me. 2017).

188. Weisberger v. Weisberger, 60 N.Y.S.3d 265 (App. Div. 2017).

189. Altman v. Altman, 800 S.E.2d 288 (Ga. 2017).

190. Naime v. Corzo, 208 So. 3d 296 (Fla. Dist. Ct. App. 2016).

191. Judd v. Burns, 397 P.3d 331 (Alaska 2017); Boyer v. Boyer, 889 N.W.2d 832 (Neb. App. 2017); Boatman v. Boatman, 404 P.3d 822 (Okla. 2017) (father had burden to show move not in best interest).

192. Solomon v. Solomon, 221 So. 3d 652 (Fla. Dist. Ct. App. 2017).

193. Tracy v. Tracy, 388 P.3d 1257 (Wyo. 2017).

194. Bisbing v. Bisbing, 166 A.3d 1155 (N.J. 2017) (overruling Baures v. Lewis, 770 A.2d 214 (N.J. 2001) (mother wanted to move twins to Utah)).

195. In re Marriage of Worthley, 393 P.3d 859 (Wash. Ct. App. 2017).

196. In re Willeke, 160 A.3d 688 (N.H. 2017). See also Ed H. v. Ashley C., 221 Cal. Rptr. 3d 911 (Ct. App. 2017) (great-grandparent not included).

197. Massman v. Massman, 505 S.W.3d 406 (Mo. Ct. App. 2016).

198. Fuller v. Baldino, 168 A.3d 665 (Conn. App. Ct. 2017).

199. Windham v. Griffin, 887 N.W.2d 710 (Neb. 2017).

200. In re Parenting of N.M.V., 385 P.3d 564 (Mont. 2016). See also Brown v. Lunsford, 63 N.E.3d 1057 (Ind. Ct. App. 2016).

201. Thorndike v. Lisio, 154 A.3d 624 (Me. 2017).

202. McCrillis v. Hicks, 518 S.W.3d 734 (Ark. Ct. App. 2017).

203. K. v. C., 51 N.Y.S.3d 838 (Misc. 2017).

204. Curtis v. Medeiros, 152 A.3d 605 (Me. 2016).

205. Bowers v. Bowers, No. SC96545, 2017 WL 2822506 (Mo. Ct. App. June 30, 2017) (unpublished).

206. In re Ben, 206 So. 3d 438 (La. Ct. App. 2016).

207. Slawinski v. Nicholas, 150 A.3d 409 (N.J. Super. Ct. 2016). See also Rhodes v. Long, 791 S.E.2d 744 (Va. Ct. App. 2016).

208. Ledoux-Nottingham v. Downs, 210 So. 3d 1217 (Fla. 2017). See also Downs v. Ledoux-Nottingham, 219 So. 3d 244 (Fla. 2017) (remanding to see if makeup visitation was in best interests of children).

209. Id.

210. Sherman v. Sherman, 384 P.3d 324 (Ariz. Ct. App. 2016).

211. Barlow v. Barlow, 224 So. 3d 868 (Fla. Dist. Ct. App. 2017), affirmed.

212. Mitchell v. Krieckhaus, 158 A.3d 951 (Me. 2017).

213. Conway v. Garmond, 41 N.Y.S.3d 90 (App. Div. 2016).

214. Spaights v. Muller, 46 N.Y.S.3d 207 (App. Div. 2017).

215. Tomassi v. Suffolk Cty. Dep’t Soc. Servs., 41 N.Y.S.3d 540 (App. Div. 2016).

216. Munoz v. O’Connor-Gang, 39 N.Y.S.3d 67 (App. Div. 2017).

217. Hackett v. Hackett, 61 N.Y.S.3d 682 (App. Div. 2017).

218. Walsh v. Walsh, 61 N.Y.S.3d 673 (App. Div. 2017).

219. Jury v. Jury, 392 P.3d 242 (N.M. Ct. App. 2017).

220. Rathbun v. Rathbun, 889 N.W.2d 855 (N.D. 2017) (the father’s employment opportunities were limited after he lost his consulting job in oil fields). See also Brink v. Brink, 47 N.Y.S.3d 553 (App. Div. 2017) (an eighteen percent decrease in the father’s income warranted a recalculation).

221. Addimando v. Huerta, 46 N.Y.S.3d 168 (App. Div. 2017) (father not entitled to a downward modification where he was capable of earning more but chose to open a solo attorney practice).

222. In re Marriage of Usher, 210 Cal. Rptr. 3d 875 (Ct. App. 2016) (father’s decrease in income from $350,000 a month to $140,000 did not warrant decrease from $17,500 support obligation where total amount for child to age eighteen would be $2 million and father had assets of $34 million).

223. Robinson v. Robinson, 160 A.3d 376 (Conn. App. Ct. 2017).

224. P.F. v. Dep’t of Rev., 64 N.E.3d 940 (Mass. App. Ct. 2016).

225. Wynn v. Craven, 799 S.E.2d 172 (Ga. 2017).

226. Dunwoody v. Dunwoody, 155 A.3d 422 (Me. 2017).

227. Neyman v. Buckley, 153 A.3d 1010 (Pa. Super. Ct. 2016).

228. Solomon v. Guidry, 155 A.3d 1218 (Vt. 2016).
229.Farris v. Farris, 202 So. 3d 223 (Miss. Ct. App. 2016).

230. Fouad v. Magdy, 147 A.D.3d 436 (N.Y. Sup. Ct. 2017).

231. Bakhtiar v. Saghafi, 75 N.E.3d 801 (Ohio Ct. App. 2016).

232. Riehle v. Riehle, 504 S.W.3d 7 (Ky. 2016).

233. In re Marriage of Breashears, 65 N.E.3d 955 (Ill. App. Ct. 2016).

234. Tadross v. Tadross, 86 N.E.3d 827 (Ohio Ct. App. 2017).

235. Qaza v. Alshalabi, 43 N.Y.S.3d 713 (Sup. Ct. Kings Cty. 2016).

236. Morris v. Goodwin, 148 A.3d 63 (Md. Ct. App. 2016).

237. In re Geraghty, 150 A.3d 386 (N.H. 2016).

238. Childs v. Ballou, 148 A.3d 291(Me. 2016).

239. Fregoso v. Hernandez, 209 Cal. Rptr. 3d 884 (Ct. App. 2016).

240. Doe v. Doe, 380 P.3d 175 (Idaho 2016).

241. McCarthy v. Ashment, 790 S.E.2d 651 (Ga. Ct. App. 2016).

242. C.V. v. C.R., 64 N.E.3d 850 (Ind. Ct. App. 2016).

243. State v. Haskie, 399 P.3d 657 (Ariz. 2017).

244. T.K. v. Stutzman, 383 P.3d 287 (Or. Ct. App. 2016).

245. Walker v. Walker, 520 S.W.3d 390 (Ky. Ct. App. 2017).

246. Alvarez v. Tortora, No. A-3379-14T4, 2017 WL 3013101 (N.J. Super. Ct. App. Div. July 17, 2017) (unpublished).

247. Neyman v. Buckley, 153 A.3d 1010 (Pa. Super. Ct. 2016).

248. Johnson v. Jackson, 261 F. Supp. 3d 1206 (M.D. Ala. 2017).

249. See Stephanie F. Ward, Family Court Judge Rules Obergefell Applies Retroactively, and Woman Had a Common-Law Marriage, ABA J. (Mar. 20, 2017).

250. In re Estate of Carter, 159 A.3d 970 (Pa. 2017).

251. In re Marriage of Kidane, 389 P.3d 212 (Kan. Ct. App. 2017).

252. Brown v. Alley, 384 P.3d 496 (Okla. 2016).

253. Petit v. Adrianzen, 392 P.3d 630 (Nev. 2017).

254. Melbourne v. Taylor, 147 A.3d 1151 (D.C. Ct. App. 2016).

255. Reed v. Remmert, 382 P.3d 509 (Okla. Civ. App. 2017).

256. Jackson v. Narvais, 895 N.W.2d 747 (N.D. 2017). See also In re J.N.L., 528 S.W.3d 237 (Tex. App. 2017) (it was in the child’s best interest to change her name from her father’s, a registered sex offender, to that of the stepfather when the child wanted the name).

257. In re K.E.O., 45 N.Y.S.3d 918 (Misc. 2017).

258. McLaughlin v. Jones ex rel. Cty. of Pima, 401 P.3d 492 (Ariz. 2017).

259. A.F. v. K.F., 57 N.Y.S.3d 352 (Misc. 2017).

260. State ex rel. Sec’y Dep’t Children & Fam. v. Smith, 392 P.3d 68 (Kan. 2017).

261. In re Parentage of A.H., 69 N.E.3d 902 (Ill. App. Ct. 2017).

262. Erin W. v. Charissa W., 897 N.W.2d 858 (Neb. 2017).

263. Peak v. Peak, 383 P.3d 1084 (Wyo. 2016).

264. Marshall P. v. Latifah H., 61 N.Y.S.3d 355 (App. Div. 2017).

265. Darnel J.P. v. Lianna Y.D., 53 N.Y.S.3d 294 (App. Div. 2017).

266. L.J.D. v. M.V.S., 212 So. 3d 581 (La. Ct. App. 2017).

267. Penticuff v. Miller, 503 S.W.3d 198 (Ky. Ct. App. 2016).

268. Ashburn v. Rogers, 803 S.E.2d 469 (S.C. 2017).

269. McGrath v. Dockendorf, 793 S.E.2d 336 (Va. 2016).

270. H.B. 147, 29th Leg., Reg. Sess. (Alaska 2016).

271. Kirilenko v. Kirilenko, 505 S.W.3d 766 (Ky. 2016).

272. Sturms v. Sturms, 266 So. 3d 1004 (Fla. Dist. Ct. App. 2017).

273. Marshall v. Marshall, 902 N.W.2d 223 (Neb. 2017). See also Seals v. Seals, No. S-16109, 2016 WL 6647726 (Alaska Nov. 9, 2016) (unpublished) (personal injury settlement proceeds were husband’s separate property where the marital estate had already been compensated for its loss).

274. Grove v. Grove, 400 P.3d 109 (Alaska 2017).

275. Wagner v. Wagner, 386 P.3d 1249 (Alaska 2017).

276. In re Marriage of Miller, 822 N.W.2d 744 (Iowa Ct. App. 2016).

277. Horning v. Horning, 389 P.3d 61 (Alaska 2017).

278. Gibson v. Gibson, 801 S.E.2d 40 (Ga. 2017).

279. Stephens v. Stephens, 899 N.W.2d 582 (Neb. 2017).

280. Bergmeier v. Bergmeier, 894 N.W.2d 266 (Neb. 2017).

281. Thieme v. Aucoin-Thieme, 151 A.3d 545 (N.J. 2016).

282. Id.

283. Crandall v. Crandall, 886 N.W.2d 618 (Iowa Ct. App. 2016).

284. Fischer v. Fischer, 68 N.E.3d 603 (Ind. Ct. App. 2017).

285. Holm v. Holm, 893 N.W.2d 492 (N.D. 2017).

286. Flesch v. Flesch, 804 S.E.2d 67 (Ga. 2017).

287. Johnson v. Johnson, 386 P.3d 1049 (Okla. Ct. Civ. App. 2016).

288. Lockamy v. Lockamy, 805 S.E.2d 5 (Ga. 2017).

289. Grove v. Grove, 400 P.3d 109 (Alaska 2017).

290. Thomson v. Thomson, 394 P.3d 604 (Alaska 2017).

291. Huntley v. Huntley, 145 A.3d 607 (Md. Ct. App. 2016).

292. Landewee v. Landewee, 515 S.W.3d 691 (Mo. 2017).

293. Jervik v. Jervik, 888 N.W.2d 262 (Iowa Ct. App. 2016).

294. Schleich v. Holek, 213 Cal. Rptr. 3d 665 (Ct. App. 2017).

295. Buchanan v. Buchanan, 225 So. 3d 1002 (Fla. Dist. Ct. App. 1st 2017).

296. Harper v. Harper, 169 A.3d 385 (Me. 2017).

297. In re Marriage of Broesder, 402 P.3d 1193 (Mont. 2017).

298. Charlson v. Charlson, 892 N.W.2d 903 (S.D. 2017).

299. Fleet v. Fleet, 158 A.3d 486 (D.C. 2017).

300. Selvage v. Moire, 394 P.3d 729 (Haw. 2017).

301. In re Marriage of Huntley, 216 Cal. Rptr. 3d 904 (Ct. App. 2017).

302. Reneman v. Reneman, 229 So. 3d 250 (Ala. Civ. App. 2017).

303. Coulson v. Steiner, 390 P.3d 1139 (Alaska 2017).

304. Baldelli v. Baldelli, 791 S.E.2d 687 (N.C. Ct. App. 2016).

305. Stokes v. Crumpton, 800 S.E.2d 41 (N.C. 2017).

306. Doe v. Ind. Dep’t of Child Servs., 81 N.E.3d 199 (Ind. 2017).

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By Linda D. Elrod & Robert G. Spector

Linda D. Elrod is the Richard S. Righter Distinguished Professor of Law and Director, Children and Family Law Center, Washburn University School of Law; Editor Emeritus, Family Law Quarterly; Editor in Chief 1992–2016.

Robert G. Spector is the Glenn R. Watson Chair and Centennial Professor of Law Emeritus, University of Oklahoma; Associate Editor, Family Law Quarterly