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August 29, 2022 Feature

Review of 2021-2022 in Family Law: Getting Back to Normal

Linda D. Elrod


COVID-19 continued to impact families, lawyers, and courts throughout all of 2021. Vaccines started becoming available in January as the U.S. Food and Drug Administration approved vaccines by Pfizer, Moderna, and Johnson & Johnson. In addition, COVID testing, including home kits, became more widely available. Mutations of the original virus, a deadly Delta variant and a milder Omicron variant, kept many states uncertain whether to retain mask mandates or return to live programming. Controversy over vaccine requirements and mask mandates have erupted within families and throughout the country. By the end of 2021, the practice of law and courts were beginning to return to a more normal prepandemic mode, even though the threat of COVID-19 remains.

There seemed to be fewer federal cases impacting family law. The state cases this year reflected the usual blend of issues of premarital and postmarital agreements, marriage, divorce, child custody and support, as well as property classification and division issues. There appeared to be more parentage issues, both in terms of men who had signed voluntary acknowledgments of paternity and with same-sex partners who had used assisted reproduction. There were also numerous grandparent custody and visitation cases.

I. Federal

The U.S. Supreme Court handed down fewer family law cases. In June 2021 the Court unanimously held that the City of Philadelphia could not stop referring children to Catholic Social Services, a state-licensed private foster care agency that refused to certify unmarried or same-sex couples.1 The First Amendment’s Free Exercise of Religion clause prevailed over the nondiscrimination requirement in the city’s standard foster care contract, which was not generally applicable because of discretionary exceptions.2

The Supreme Court also found that a Pennsylvania public school violated a student’s First Amendment rights when it suspended her from the cheerleading team for a Snapchat post she made criticizing the decision to put her on junior varsity.3 The Court found that the speech did not meet the requirements for school regulation that were previously established in Tinker.4 The Court declined to articulate “a broad, highly general First Amendment rule” concerning regulation of student off-campus speech. The Court did find three features of off-campus speech that diminish the school’s regulatory power: off-campus speech is generally a parental, not a school, responsibility; off-campus regulations implicate a 24-hour restriction on a student’s ability to speak; and “public schools are the nurseries of democracy” and there is an interest in safeguarding unpopular expression.5

The U.S. Supreme Court agreed to hear a Mississippi abortion case6 just one year after striking down Louisiana abortion restrictions requiring that doctors have admitting privileges at a hospital no farther than 30 miles from the women’s clinic.7 In the Louisiana case, Chief Justice John Roberts, for the first time, voted to strike an abortion restriction. He found that Supreme Court precedent controlled, noting the Court heard a case with similar facts a couple of years ago.8 In June 2022, however, the Supreme Court overruled Roe v. Wade.9

Hague Conventions

To date, the United States is a party to the Hague Convention on the Civil Aspects of International Child Abduction of 1980 (Hague Abduction Convention),10 the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, and the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. The United States is not a party to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children Convention nor the United Nations Convention on the Rights of the Child. The Family Law Quarterly is now including a separate article on the Hague Abduction Convention.11 Therefore, this article highlights only a couple of the major cases.

After the Supreme Court used the totality of circumstances test to determine the child’s habitual residence and applied a clear error standard of appellate review,12 the Fifth Circuit upheld a finding that the United States, not Ireland, was the child’s habitual residence. The mother was a famous musician who performed all over the world and had only stayed transitorily in Ireland.13

Where a mother raised the grave risk of harm defense to the return of a six-year-old child due to domestic violence and child abuse, the trial court abused its discretion in denying the mother’s application for a “meaningful psychological examination” of the child. The mother was prejudiced.14 A lower court erred in denying a father’s petition to return a child to France in part because of the COVID-19 pandemic, where there was no record evidence to support the court’s “implicit[]” determination that the return would present a grave risk of exposing the child to physical harm for this reason.15

The U.S. Supreme Court agreed to hear a case involving the use of ameliorative measures. The father successfully petitioned in federal district court for the return of the child to Italy, the child’s home state.16 Because of undisputed evidence of the father’s abusive conduct, the mother had proven returning the child would expose him to a grave risk of harm; however, the district court found that implementing certain undertakings would sufficiently ameliorate the risk of harm.17 On appeal, the Second Circuit remanded the case, noting that the proposed undertakings were generally unenforceable and the father lacked credibility.18 On remand, the district court again granted the petition for return but added more restrictions.19 On appeal, the Second Circuit affirmed the lower court’s granting of the return petition, emphasizing the standards set out in the Blondin cases that a court “must examine the full range of options that might make possible the safe return of a child” before denying return.20 The U.S. Supreme Court granted certiorari on December 10, 2021.21 In 2022, the Court vacated and remanded the Second Circuit decision.22

In another case involving ameliorative measures, the parties are seeking Supreme Court review. The lower court had found a grave risk of harm if the children were sent back to their father in Germany but ordered the mother to retain temporary custody and return to Germany for a hearing.23 The appellate court found the record did “not adequately support” whether this alternative remedy had “a high likelihood of performance through supportive reinforcements.”24 On remand, the federal district court found that because she and the father have joint custody rights that would be sufficient to ameliorate any risk of psychological harm.25 The issues involve whether the judge is required to consider ameliorative measures to create safe return for the child and which party bears the burden of proving that ameliorative measures exist.26

II. State Cases

A. Adoption

The Uniform Law Commission passed the Uniform Unregulated Child Custody Transfer Act (UUCCTA) at its annual meeting in July 2021.27 Initially, the scope was limited to unregulated transfers of children who were the product of intercountry adoptions partly as a reaction to adoptive parents “rehoming” children they could not parent easily. The scope expanded to prohibit the unregulated child custody transfer of any children, not just children who are adopted. If a parent intends to abandon parental rights and responsibilities with regard to the child, article 2 prohibits a transfer of custody of the child to someone beyond family members and family friends.28 It prohibits advertising or soliciting of a placement.29 Article 3 requires that information and training are available for prospective adoptive parents who plan to adopt a special needs child.30 The UUCCTA works with the Interstate Compact on the Placement of Children.

1. Consents

As a general rule, a parent must either consent to the adoption of their child or be found unfit by a court of law.31 The laws in most states allow a court to dispense with a parent’s consent when a parent fails to financially support or maintain a meaningful relationship with a child for a specified period of time, often one year.32 Many cases involve stepparents. Questions often center on whether the failure to maintain a relationship or support the child was justified or not. If the failure is justifiable, for example, when the father did not know of the child’s existence, the court may require the parent’s consent.33 If, however, the failure to support and maintain contact is not justifiable, the court will allow a stepparent to adopt without the parent’s consent.34 On the other hand, a father’s consent was necessary where the divorce decree expressly stated that neither party shall pay support and the father did provide food and shelter and routinely exercised visitation.35

A couple of cases looked at revocation of consent. Where a biological mother withdrew her surrender of parental rights before it had been accepted by the court, she had standing to challenge the child’s adoption.36 A father failed to show by clear and convincing evidence it was in the children’s best interest to withdraw his consent.37 A mother issued a surrender conditioned on the paternal grandmother adopting the child. When the grandmother declined, the court should have granted the mother’s application to revoke the surrender.38

2. Who Can Adopt

The Nebraska Supreme Court found its adoption statute authorized a same-sex married couple to adopt a minor child.39 Stepparents often wish to adopt their spouse’s child. In a stepparent adoption, the rights of only one parent are terminated. This year there were several cases in which a former stepparent sought to adopt the child after the marriage had ended. The person is no longer technically a stepparent. In Wyoming, an ex-husband qualified as a “single adult” who could file an unopposed petition to adopt the ex-wife’s son despite his remarriage. The child’s biological father was “absent”; the ex-husband had a parental relationship with the child, and the child and the ex-wife supported the adoption.40 Where an Oklahoma spouse married the child’s adoptive parent after the adoption took place and did not adopt the child during the relationship, the spouse was a stepparent and lacked standing to seek rights to custody and visitation when the parties separated.41

In Kentucky, an ex-husband who was listed on the birth certificate but was not the biological father of children born after the parties divorced filed a petition to adopt the children.42 The court found that under state law, only a stepparent could adopt children while another parent still had parental rights.43 The court also found that a nonparent seeking child custody who does not meet the standard of “de facto custodian” under Kentucky law must prove that either the parent is unfit or the parent has waived their superior right to custody. Kentucky found that post-Obergefell, its case law still allowed a nonsteparent to show the biological parent waived superior rights.44

One Colorado case dealt with the effects of adoption. The appellate court affirmed a finding that a child adopted by the biological mother’s parents was an heir and could inherit from the estate of the biological father.45

B. Agreements

1. Premarital Agreements

Half of the states and the District of Columbia use the Uniform Premarital Agreement Act.46 Only Colorado and North Dakota have enacted the more recently approved Uniform Premarital and Marital Agreement Act.47 The rest use a variation of the common law rules. The trend has been to uphold premarital agreements on freedom of contract grounds as long as they are entered into voluntarily and the parties are aware of each other’s finances. States differ on whether advice of counsel is required and on some procedural requirements. For example, Texas law does not require the advice of counsel for validity of a premarital agreement.48

There were a few cases dealing with the voluntary component. A Florida court discussed the difference between duress and coercion.49 It found that the husband telling the wife he would not marry her without a premarital agreement that he told her was a requirement for her to emigrate from Colombia and presenting the agreement to sign the day before their wedding, coupled with other factors, were coercive circumstances that meant the agreement was not voluntarily entered.50

To ensure protection of vulnerable parties, the Alaska Supreme Court found that courts looking at voluntariness of a premarital agreement should consider the time to sign, ability to consult counsel, and the ability to understand the agreement.51 The court recognized the special relationship that exists between engaged parties and remanded a divorce division of property to determine if the wife voluntarily signed the prenuptial agreement. “Not voluntarily entered into” is not the same as duress or undue influence. The court cited a treatise in finding that engaged parties are in “a relationship of ‘extreme mutual confidence’” that “presents a unique situation unlike the original commercial contract situations where the parties deal at arm’s length.”52

In a New York case, the trial court erred in granting summary judgment because there was a genuine issue of material fact as to whether the prenuptial agreement was a product of overreaching and manifestly unfair. The wife was from another country and pregnant, and the agreement gave her no housing costs or maintenance and no more than 5% of the husband’s net worth although the parties were married more than 15 years and had three children together.53 The agreement could not predetermine custody of the then-unborn children that would be subject to a judicial determination of best interest at the time the issue arose.54

Several courts dealt with the conscionability issue. Where the assets were adequately disclosed and the wife received adequate, independent counsel before signing, and the agreement was substantively conscionable, the fact that a wife received the antenuptial agreement the day before the wedding did not make it procedurally unconscionable.55 Connecticut enforced a prenuptial agreement as not unconscionable even though there were several allegedly unforeseen changes in circumstances since the execution of the agreement, including a decrease in the husband’s assets from $5 million to $2 million.56 Although the enforcement of an attorney fees provision was unconscionable, the rest was enforceable. The court noted that “[u]nfairness or inequality alone does not render a [prenuptial] agreement unconscionable,” and distinguished postnuptial agreements that are subject to special scrutiny when reviewing for fairness at the time of execution.57

Where a husband failed to comply with the terms of the antenuptial contract that required him to fund a maximum annual contribution for an individual retirement account for the wife, the failure rendered the agreement void for lack of consideration. The wife could elect against the deceased husband’s estate although his will excluded her.58 In the case of a prenuptial agreement executed in Massachusetts, the court used Florida law to determine the validity of the agreement. Because the agreement “unambiguously exempt[ed]” the deceased husband’s homestead (which was identified by its address) from a provision in which each spouse waived any right to the other spouse’s property on death, the wife could claim her elective share.59

A New York court upheld the enforceability of a mahr entered into by the husband and wife in Iraq on the basis of comity even though the mahr had not been acknowledged in the manner required for premarital agreements under New York law. The husband had not suggested that the mahr was not authentic, that it was unenforceable in Iraq, or that it was coerced, so there was no violation of public policy.60

2. Postmarital Agreements

The New York Appellate Division upheld a postnuptial agreement that defined separate property to include income earned during the marriage and waived maintenance. The lack of counsel for the husband, “without more, [did] not establish overreaching” by the wife.61 The husband was an attorney and failed to show that the wife breached any fiduciary duty, and the agreement was not unconscionable nor did it lack consideration.62 A wife was bound by a postnuptial agreement provision under which marital property ceased to accrue upon the wife’s filing of an action for separation.63 A postnuptial agreement was not procedurally unconscionable where the wife failed to show that she lacked a “meaningful choice.” She also failed to show that awarding her less than 30% of the marital estate was substantively unconscionable.64 The Virginia Supreme Court granted review and then affirmed a court of appeals decision that found that a postnuptial agreement was not a “property settlement agreement” under state law and therefore was not abrogated by a reconciliation of the parties.65

A Florida court found that the husband’s loss from an investment that he did not disclose to the wife in violation of a postnuptial agreement was properly excluded from his net worth calculation.66 An appellate court rejected the husband’s argument that the parties’ postnuptial agreement should not have been admitted to evidence, in part because the husband’s attorney did not object and moved to admit both the prenuptial and postnuptial agreements at trial.67

New Jersey reversed the lower court when “inherently coercive circumstances accompanying the negotiation and execution of the [agreement] warrant[ed] heightened judicial scrutiny to assure it was fair and equitable.”68 The husband had an attorney start writing the agreement before the marriage but did not give the wife a copy of the agreement before the wedding. It was signed seven months after the wedding, shortly after the birth of the parties’ first child, because the husband kept putting pressure on the wife.69

C. Alimony/Spousal Support

1. The Original Award

States differ on the basis for alimony and the factors to use, with need and ability to pay being the most prominent. As a general rule, the shorter the marriage, the less likely there will be alimony. For example, in Florida, a marriage is considered short term if it is less than seven years.70 The court cannot award permanent alimony unless it is the only “fair and reasonable” option and, for short-term marriages, if the court includes “written findings of exceptional circumstances” to explain the decision.71 Therefore, the lower court erred in ordering the former wife to pay permanent alimony to her same-sex spouse following a three-year marriage. Florida does not recognize palimony for cohabitants, so the 24-year cohabitation before marriage did not count. The question is whether the requesting spouse is unable to be self-supporting “as a result of something that happened during the marriage.”72

On the other hand, a Florida appellate court, finding that a 14-year marriage was in the “gray area” between short-term and long-term marriage, upheld an award of permanent alimony where the husband was the sole wage earner. Although the wife had a degree, her immigration status prevented her from working.73 In the case of a long-term marriage (20 years), the trial court failed to make the necessary findings to support its decision to award the wife durational alimony instead of permanent alimony.74

Generally, the appellate court will uphold the trial court absent an abuse of discretion.75 The Connecticut Supreme Court found it was an abuse of discretion for the court to award nonmodifiable permanent alimony without considering all of the statutory factors and making specific findings, such as the older husband’s earning capacity and ongoing employability.76 A Florida trial court abused its discretion when it awarded the wife alimony and ordered medical care and life insurance that left the husband with less money than the wife.77

The Washington Court of Appeals reversed a trial judge’s denial of lifetime maintenance to a husband based on the wife’s opinion that he could return to full-time employment. The husband’s psychiatrist and neuropsychological evaluator testified that he had a mental disability and his anxiety limited his ability to return to the workforce after being a stay-at-home parent for 20 years.78

The income available for alimony is similar to child support income. In Arkansas, the trial court properly included annuities and lump-sum distributions the husband received as part of a settlement following an accident when determining resources available for alimony.79

2. Modification/Termination

a. Changed Circumstances

What constitutes a sufficient change in circumstances to modify alimony is usually left to the discretion of the trial court, absent a provision in a separation agreement.80 A Florida court found a former husband’s decision to retire early because of his age and failing health (chronic obstructive pulmonary disease, diabetes, and multiple sclerosis) was reasonable and a substantial change of circumstances that justified modification of alimony.81

Where a former wife returned to full-time work that was not contemplated at the time of the divorce, the Florida court could modify alimony from permanent to durational, even though durational had not existed under state law at the time of the original award.82 The court noted that “[w]hile a spouse receiving alimony should not be penalized for bettering herself or himself, neither should a spouse who agrees to an amount of permanent alimony based on his good faith assumption that the other spouse is genuinely unemployable based on her past patterns be penalized when the facts underlying the assumption change.”83

A Mississippi trial court erred in finding a husband in contempt for nonpayment of child support and alimony where there were unforeseen changes in circumstances. The parties could not have foreseen the closure of the husband’s ophthalmology clinic due to COVID-19; nor his brother’s relocation of his practice from a shared building space, which impacted the husband financially and led to the husband’s problem with alcohol.84 A Massachusetts court noted that the “central inquiry” in modification cases is whether the financial circumstances of the parties have changed since the alimony judgment was entered. The court found a change of circumstances due to the husband’s decline in income and granted the husband’s motion to modify alimony, but delayed the reduction date for five months.85

A former husband failed to show a sufficient change of circumstances to justify modification of alimony agreed to by the parties and was found in contempt. The ex-husband had “purposefully shielded assets from potential creditors and shirked his alimony obligations” while incurring discretionary expenses.86

b. Remarriage/Cohabitation

Alimony generally terminates upon the recipient’s remarriage.87 Alimony can also terminate when the recipient cohabitates with someone else, based on statutory law in some states88 or if the parties have an agreement that terminates alimony upon the recipient’s cohabitation.89 The obligor generally needs to go back to court, as the obligation does not terminate automatically unless an agreement so provides.90 The court must make a determination that the alimony recipient is cohabiting based on the facts. Cohabiting to support the termination of alimony “requires some permanency of relationship coupled with more than occasional sexual activity between the cohabitants.”91 A mother was not cohabiting where before moving to another house, she and the children spent three weeks together in a house owned by her child’s friend’s father.92

The New Jersey Superior Court Appellate Division found a party can establish a prima facie case of cohabitation by showing the supported spouse and another are in “a mutually supportive, intimate personal relationship” in which they have “undertaken duties and privileges that are commonly associated with marriage. . . .”93 Where a former husband made a prima facie showing, based in part on what was available on social media, he was entitled to discovery and an evidentiary hearing as to whether to terminate his permanent alimony obligation.94 The Ohio Court of Appeals upheld a magistrate’s termination of alimony based on cohabitation where the ex-wife had been in a relationship with her boyfriend since 2018 and had resided with him since April 2020, sharing a bedroom and day-to-day living expenses and traveling together.95

A former husband could not unilaterally quit paying alimony and child support when the ex-wife moved in with a boyfriend. The court noted that the reason to terminate maintenance “when resident, continuing, conjugal cohabitation exists is the inequity created when” the recipient spouse is “involved in a husband-and-wife relationship but does not legally formalize it” and “can continue to receive maintenance.”96 The appellate court upheld the trial court’s finding that the ex-wife’s de facto marriage began on the date when the former husband filed the petition to terminate maintenance.97

c. Agreements

In Illinois, when parties to a marital settlement agreement do not agree to nonmodifiability of maintenance, then it is modifiable based on a substantial change of circumstances. Where, however, the agreement referenced the law and clearly made alimony nonmodifiable, the ex-husband was required to keep paying.98

A husband was not required to maintain life insurance as requested by the wife in order to secure his alimony obligation.99 When a husband died before the financial aspects of the parties’ divorce proceedings were resolved, a premarital agreement provision for lump-sum alimony did not survive his death. The agreement provided for financial support if the husband died but only if the parties were still married and living together.100

D. Alternative Dispute Resolution

Because the trial court had “some concerns with abuse” by the father, the court could not order mediation of future parenting disputes without the written consent of both parties.101 A wife filed a motion to set aside the mediated settlement agreement and added a tort claim for the fraudulent inducement to enter the agreement after the husband failed to perform on promises. The trial court could reasonably have found the husband “never intended to fulfill his promises”; the evidence showed he had “a history of hiding community assets. . . .”102

Four states (Arizona, Hawaii, Montana, and North Dakota) have enacted the Uniform Family Law Arbitration Act.103 Several states use the Uniform Arbitration Act or the Revised Uniform Arbitration Act to provide family law arbitration. In South Carolina, alternative dispute resolution rules prohibit arbitration of child custody and visitation disputes. Family courts do not have the power to approve binding arbitration of children’s issues.104

E. Assisted Reproduction

Cases continue over disposition of pre-embryos. Maryland had a major case of first impression dealing with what to do with the parties’ cryopreserved pre-embryos when their marriage or partnership ends. The court rejected the “mutual contemporaneous consent approach” and adopted a “blended contractual/balancing-of-interests approach” if there is not an express agreement concerning the remaining pre-embryos.105 The court should

balance the competing interests under the following factors: (1) the intended use of the frozen pre-embryos by the party seeking to preserve them; (2) the reasonable ability of a party seeking implantation to have children through other means; (3) the parties’ original reasons for undergoing [in vitro fertilization], which may favor preservation over disposition; (4) the potential burden on the party seeking to avoid becoming a genetic parent; (5) either party’s bad faith and attempt to use the frozen pre-embryo as leverage in the divorce proceeding; and (6) other considerations relevant to the parties’ unique situation.106

The court also said that “boilerplate language in third-party form contracts,” such as in vitro fertilization (IVF) contracts, “that lack[s] expression or direction from the progenitors will not qualify as an express agreement for this purpose.”107

In another case, Nick Loeb attempted to sue in Louisiana for the cryopreserved human embryos he created with Sofia Vergara almost 10 years ago. The father had lived in Florida and New York, and alleged that he moved to Louisiana; the mother lived in California. The Louisiana court found there was no basis in the Uniform Child Custody Jurisdiction and Enforcement Act for jurisdiction over the embryos, which were in a facility in California, as “the UCCJEA does not apply to embryos or unborn children.”108

Several cases dealt with the rights of same-sex partners and spouses concerning children born during the relationship. In Michigan, a same-sex couple used in vitro fertilization for the birth of their twins. After separation, the genetic mother became the primary caretaker and sought custody and parentage against the birth mother. The trial court awarded sole legal and physical custody to the genetic mother and ordered that her name be added to the children’s birth certificates and that the birth mother’s name be removed.109 The Michigan Court of Appeals found that the Surrogate Parenting Act did not apply and that genetic connection was not required to establish maternity under the Child Custody Act. Both women were considered “natural parents” under the Child Custody Act for determining parenting time.110

In another case, a same-sex couple argued over custody and visitation of twin girls who were conceived by in vitro fertilization in 2014 before the parties were able to marry in June 2015. The couple had entered into two civil union ceremonies in 2008 and 2013. After the parties divorced and the court approved a parenting plan, the birth mother tried to prevent her spouse from parenting and argued the court lacked jurisdiction to enter the parenting plan. The Tennessee Court of Appeals affirmed the trial court’s finding that the nonbirth partner/spouse was a parent entitled to custody and visitation.111

One woman in an unmarried domestic partnership had a child with artificial insemination. She planned for the child and raised the child together with her partner, who did not adopt the child. After the parties separated, the biological mother barred her partner from contacting the child. The Alaska Supreme Court upheld the superior court’s award of shared custody based on its finding that the partner was a “psychological parent” under Alaska law.112

In Idaho, the partner did not fare as well. The trial court awarded custody to the biological mother of a child conceived through artificial insemination from a third-party sperm donor during a same-sex marriage. The Idaho Supreme Court found that the Artificial Insemination Act (AIA) governed the custody dispute and that failure to comply with the requirements of the AIA meant that the same-sex spouse lacked parental rights. The biological mother was entitled to sole legal and physical custody of the child and the court denied the former spouse third-party custody or visitation.113 There was a strong, scathing dissent that felt the decision was contrary to Idaho public policy. The dissent noted that “a parent who has consented to (and participated in) her spouse being artificially inseminated is not entitled to be a parent of the resulting offspring because neither she nor a physician filed a never-used and now-obsolete form with the State Registrar of Vital Statistics.”114

In a divorce case involving a same-sex marriage and two children conceived of artificial insemination with a known sperm donor, the biological mother attempted to bar the nonbiological spouse from having rights. The sperm donor intervened, seeking to be established as the legal father of the two children and given parenting time. The court interpreted in a gender-neutral way the statute allowing for a child born to a married couple through artificial insemination to be considered a “legitimate child.” The court rejected the sperm donor’s argument that there must be an express written agreement for the artificial insemination statute to apply because the Tennessee law only requires “consent.”115 The court found that the same-sex spouse was the legal parent of the two children born during the marriage.116

A case in Oregon that is now on appeal presents some interesting issues. The dispute is between the man who provided sperm and the woman who provided the egg that was carried by a gestational carrier. The sperm donor asserts he is the legal father to the exclusion of anyone else. The gamete provider alleges she is the legal mother even though she signed an agreement to give him custody. The appellate court concluded that the egg donor had not established a right to parent and the trial court erred in denying the sperm donor father’s motion to dismiss the egg donor’s petition and petition for a declaration that he is the sole parent.117

F. Attorneys

1. Role of Child’s Attorney

The Pennsylvania Supreme Court found in a mother and stepfather’s proceeding to terminate the biological father’s parental rights (so the child could be adopted by the stepfather) that an attorney could serve as both a guardian ad litem and legal counsel for a six-year-old child without specifically asking for the child’s preference as to the outcome of the termination proceeding.118 Under Pennsylvania law, “a child’s legal interests are distinct from his best interests,” and an attorney representing the child’s legal interests “is to express the child’s wishes to the court regardless of whether the attorney agrees” with the child.119 In contrast, a guardian ad litem is charged with discerning the child’s best interests.120 “[I]t is only when a child’s best interests and legal interests do not diverge, or where the child’s legal interests cannot be ascertained, that a court-appointed attorney may serve in the dual capacity of guardian ad litem and legal counsel.”121 The court found that counsel’s dual representation and decision not to inform the child of his biological father or the nature of the termination proceeding were appropriate in the “unique circumstances” of the case, including the child’s young age, lack of memory of his biological father, identification of his stepfather as his “daddy,” and wish to live with his mother and stepfather.122

2. Ethical Issues

Disciplinary boards addressed reasonable fees and sex with client issues. An Ohio attorney was publicly reprimanded where he failed to provide a written fee agreement or to explain to an “emotionally fragile” client in writing that the flat fee he wrote on his business card would change to hourly if the divorce were contested.123 In assessing the reasonableness of attorney fees in a domestic relations proceeding, Illinois courts should consider “(1) the number of hours the attorney spent, (2) the skill and standing of the attorneys, (3) the difficulty of the issues, (4) the amount and importance of the subject matter in the field of family law, (5) the degree of responsibility involved in the management of the case, (6) the usual and customary charge in the community, and (7) the benefits to the client.”124 The Illinois court upheld as reasonable a former husband’s trial attorney’s fees in a proceeding to terminate maintenance. Although the client argued that the trial counsel’s practice of rounding up in implementing the fee agreement’s 15-minute billing increments resulted in overbilling, the court found “there were balancing factors that in some way mitigated any overbilling,” including “not billing for certain smaller items like responding to emails”; and that bills for more than eight hours of work in a day did not require a finding of unreasonableness. Also, some discovery of evidence that was excluded by the court still proved useful to the husband, who did prevail at trial.125

An Ohio lawyer received a two-year suspension for misconduct in having sexual relationships with two clients. Even if the client initially consents to sexual activity, “it is the lawyer’s duty to ensure that the attorney-client relationship remains on a professional level.”126 Wisconsin suspended a lawyer for two years for engaging in “coerced or quid pro quo sexual relationships with [two] vulnerable women.” He had been convicted for attempted adultery and disorderly conduct.127 Iowa suspended “indefinitely with no possibility of reinstatement for one year” an attorney who sexually harassed two of his clients.128

An attorney was allowed to resign with disciplinary action pending. A strong dissent argued that this option ends up shrouding the attorney’s misconduct in secrecy and undermines government transparency. In this case, the disciplinary complaint alleged the lawyer “used his position as an attorney to solicit sex from and/or romantic relationships with female clients” in five instances, including with three clients who were represented by the attorney in criminal cases.129

A Kansas attorney was suspended for three years for misconduct alleged in two disciplinary complaints. The court found the attorney’s conduct was “motivated by selfishness and dishonesty,” in part because when trying to defeat a request for sanctions against him, he “employed improper methods including name calling, false representations about the conflict, and unsupported allegations” about the person who sought sanctions.130 He also signed deeds for his clients and, as a notary, falsely acknowledged that the clients had executed the deeds themselves.131

A lawyer was suspended for three months where he knowingly revealed details concerning a former client’s divorce in connection with his representation of a current client. Furthermore, the attorney used his awareness that his current client had an agreement to buy property owned by his former client to his current client’s disadvantage, by obtaining a writ of attachment on the proceeds from the sale as a way to collect attorney fees from his former client. Proof of “material damage or loss” for the current client was not required.132

The ex-husband’s one hour consultation with a lawyer eight years before did not disqualify the lawyer from representing the former wife in a post judgment motion following divorce.133

3. Malpractice

A matrimonial attorney’s former client stated a civil claim for gender bias–related violence or intimidation in violation of New York law by alleging forcible nonconsensual sexual contact by the attorney.134 An unusual case involved a lawyer being sued (unsuccessfully) by the former cohabitant of his client because the lawyer had tried to establish a common law marriage.135 A wife brought a legal malpractice action against her attorney who drafted a premarital agreement. She alleged that the agreement was not enforceable under California law because the attorney did not ensure that the husband signed a waiver of legal representation. The trial court erred in granting summary judgment because there were genuine issues of fact.136

G. Child in Need of Care

1. Jurisdiction

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies to child in need of care proceedings.137 Several cases this year dealt with the use of temporary emergency jurisdiction. The cases ranged from state agencies attempting to take jurisdiction over children who had a home state elsewhere, to communication with courts in other states, and when emergency jurisdiction can become home state jurisdiction. The West Virginia court followed cases in other states that have found that merely giving birth in a hospital without any other contacts with the state does not create jurisdiction for an abuse and neglect proceeding.138 Temporary emergency jurisdiction existed to deal with a baby born with drugs in his system, but the mother had returned to Virginia after birth. While there was no “home state,” Virginia had “significant connection” jurisdiction because the mother lived and worked there and there was significant evidence in that state of the mother’s prenatal drug use and the termination of her rights to another child.139

A Kansas court found that emergency jurisdiction did not extend to issuing an adjudication that the child was in need of care after a 14-year-old child’s fifth hospitalization (three in Missouri and two in Kansas) for diabetic ketoacidosis. Although the trial court properly took temporary emergency jurisdiction, Missouri was the child’s home state and no court there had declined to take jurisdiction. The UCCJEA required a court to decline jurisdiction, not a state agency.140 Temporary emergency jurisdiction can ripen into home state if a court in the home state declines jurisdiction, but that had not happened here.141

A New York Family Court found that emergency jurisdiction could be used in a case involving a 16-year-old American citizen whose parents tried to force an arranged marriage in Pakistan. The City agency brought child protective proceedings against the parents of the girl, who was subject to repeated abuse in Pakistan when she would not agree to an arranged forced marriage. Even though the child was in Pakistan for almost a year before the petition was filed, New York was the home state as the absence was supposed to be temporary. The father had taken her for a two-week vacation and then left her with her mother and an uncle. She could not return due to illness and COVID-19 restrictions. The State Department assisted the child’s return. The court noted the family court was authorized in any event to exercise temporary emergency jurisdiction.142

A Colorado case discussed the interplay between making a child custody determination using temporary emergency or through non-emergency jurisdiction. Where a child’s needs were being met in foster care, the child was not “abandoned” as required for temporary emergency jurisdiction. At the time the juvenile court issued a termination of parental rights order of the Arkansas parents, there was not an emergency. The termination order was 15 months after the child had been found wandering at a gas station and placed in foster care.143 The juvenile court was required to inquire whether Arkansas had home state jurisdiction or if there was a prior child custody proceeding in Arkansas. If Arkansas was the home state or if there were proceedings, the Colorado court could inquire whether Arkansas had declined to exercise jurisdiction by inaction, failure to respond, or expressly. If there were a child protective proceeding in Arkansas, the time in Colorado could be a temporary absence. If not, the child had been living in Colorado for more than six months preceding the filing of the order and Colorado may have nonemergency jurisdiction.144

After Washington resident parents lost their housing, they lived temporarily in a motel in Oregon. Both parents used meth. The Oregon juvenile court properly asserted temporary emergency jurisdiction after police found that a 15-month-old boy whose infant brother had just died in the motel room was “living in squalid and dangerous conditions. . . .”145 The Oregon court found no duty to communicate with the home state court because there was no existing order or proceeding in the home state.146 The court had jurisdiction to enter temporary dependency judgments for “as long as the risk of harm creating the emergency [was] ongoing.”147 Some parts of the dependency judgment, however, such as requirements for parenting classes and mental health exams, exceeded the scope “‘necessary in an emergency’ to protect the children.”148

2. Child Neglect

An Ohio appellate court found that the trial court could order vaccinations of dependent children whose mother requested vaccination over the father’s objection.149 On the other hand, the Arkansas Supreme Court found that a dependency agency with temporary custody of a one-year-old child lacked authority to have the child vaccinated when the mother asserted religious objections.150

An Illinois appellate court found that it was in the best interest of children to be placed with the foster parent rather than the children’s maternal grandparents.151 A court should have allowed a maternal aunt claiming de facto parentage to intervene in a child dependency action.152

3. Termination of Parental Rights

A North Carolina mother failed to show that she was denied effective assistance of counsel in a termination of parental rights action. State law mandated that the parent’s attorney not be appointed as the guardian ad litem and the guardian ad litem not act as the parent’s attorney. The court interpreted the statute to require that “the parent’s counsel and the parent’s guardian ad litem not be the same person so that the respondent parent receives the benefit of both.”153 The mother had both who fulfilled their roles properly. The guardian ad litem could conduct cross-examination and present arguments to the trial court.154

New Jersey found that a parent’s recreational marijuana use “cannot suffice as the sole or primary reason to terminate” parental rights, unless the state agency “proves with competent, case-specific evidence that the marijuana usage endangers” the health, safety, or welfare of the child.155 The Kansas Court of Appeals found the record did not support termination of a father’s parental rights for unfitness based on his incarceration for distributing controlled substances. The father was not addicted to drugs, the child had lived with the father successfully, and the father had supported the child.156

Under Minnesota law, a parent’s attorney, but not the parents themselves, had a right to be present when the child testified informally in a termination of parental rights proceeding.157 The court allowed the child to testify remotely with the guardian ad litem present, but erred by only allowing the guardian ad litem to be cross-examined and not the child.158 In light of the evidence, however, the court did not find the parents were prejudiced and did not order a new trial.159

H. Child Custody

1. Jurisdiction: Uniform Child Custody Jurisdiction and Enforcement Act

a. Home State—Initial

The UCCJEA provides subject matter jurisdiction for hearing an interstate child custody action. Subject matter jurisdiction cannot be created by consent. Absent an emergency, the initial custody determination must take place in the child’s home state unless the home state declines to exercise jurisdiction.160 A couple of cases this year used the UCCJEA in disputes between parents and nonparents. A child had been living in North Carolina with her mother and stepfather. When the mother died, the maternal grandparents took her to Michigan and filed for permanent guardianship. The biological father filed a competing action in North Carolina. The Michigan court determined that North Carolina was the child’s home state and was a more convenient forum.161 In another case, Florida, where the child had lived since birth, was the home state for a custodial dispute between the child’s adoptive parents (who lived in Florida and were the child’s maternal great-grandparents) and a cousin of the deceased mother and the cousin’s husband (who lived in New York). The mere physical presence of the child in New York with the cousin was not sufficient to confer jurisdiction.162

b. Continuing Jurisdiction

Where one state has issued a custody order, it retains jurisdiction so long as a parent or child remains in the state, unless it declines jurisdiction because the children lack a significant connection with the state and substantial evidence concerning the child’s care, protection, and training is no longer available in the state.163 In a case in which Connecticut issued the initial custody order, the mere fact the children had lived with their father in North Carolina for more than six months did not deprive Connecticut of its continuing jurisdiction where the mother was still in Connecticut.164

When all parties leave the decree state, however, the court loses continuing exclusive jurisdiction.165 Although Nebraska properly made a custody and parenting plan order, both parties received court permission to move to Arizona. The mother then filed in Nebraska to modify the decree because she was moving back. Nebraska found it no longer had exclusive, continuing jurisdiction because the parties and the children no longer resided there. The father did not confer subject matter jurisdiction by filing a voluntary entry of appearance in the mother’s action.166

In another case the parties divorced in Connecticut with the mother having residential custody of the two children. The father moved to Florida in 2017 while the mother’s action for contempt for nonpayment of support was pending. In April 2018 the mother relocated with the children to Tennessee. The father moved back to Connecticut and filed an emergency ex parte order for custody in November 2018.167 The court found that Connecticut lost its continuing exclusive jurisdiction when all parties had left the state in April 2018. Connecticut did not reacquire jurisdiction when the father moved back. The court cited the UCCJEA Reporter’s Comments, which stated that “[e]xclusive, continuing jurisdiction is not reestablished if, after the child, the parents, and all persons acting as parents leave the [s]tate, the [noncustodial] parent returns.”168

c. Exercise of Jurisdiction

Several cases explored the proper way for a court to decline jurisdiction. An Arizona trial judge erred in not making findings on UCCJEA inconvenient forum provisions before declining to exercise jurisdiction in favor of Texas. Furthermore, because there were factual disputes and the parties’ credibility may have been at issue, due process required that an evidentiary hearing be conducted. The trial court also improperly failed to make a record of its conference with the Texas court analyzing the forum non conveniens factors.169

Before a court determines that it should decline jurisdiction in favor of a more convenient forum, it is required to consider the statutory factors and allow the parties to submit information regarding these factors. When a trial court relinquishes jurisdiction under the UCCJEA “based on its communications with a court of another state, it commits reversible error by failing to inform the parties of those communications” or to allow them to make arguments.170

Arizona courts had an issue of first impression as to whether under the UCCJEA a foreign court declining jurisdiction primarily because of the Hague Abduction Convention, rather than on inconvenient forum grounds, was sufficient to confer jurisdiction on the state. Mexico, where the child had lived for more than six months when the father initiated custody proceedings, was the child’s “home state.” Mexico does not have the UCCJEA and was not required to follow it in an action seeking enforcement of a Mexican custody order.171 Arizona could take jurisdiction because “there was sufficient evidence that Mexico intended to, and has, declined their jurisdiction in favor of Arizona” and no other state had jurisdiction.172

d. Registration and Procedure

Several cases this year discussed the UCCJEA registration procedures. In a California case, the father had petitioned for dissolution of the marriage and asked that the court exercise temporary emergency jurisdiction under the UCCJEA regarding custody of the child, who was in China with the mother. The court ordered the child would live in China but return to the father for several extended visitation periods. The mother then obtained a judgment from a Chinese court granting her sole custody and sought to have it registered in California. The California court properly declined to register the Chinese judgment because the Chinese court had stayed the judgment while the father’s appeal was pending.173

Wyoming courts have held that the UCCJEA applies to an enforcement proceeding brought through a show cause motion.174 A mother who lived in Russia petitioned the Wyoming decree court to modify an order granting custody to the father, who had moved with the child to Bahrain. The Wyoming Supreme Court upheld the trial court’s granting of the father’s motion to dismiss on the basis of inconvenient forum. The district court properly used its discretion—there was no jurisdiction over witnesses, the child had lived outside of Wyoming since 2018, the distance to Russia and Bahrain “rendered in-person court attendance prohibitive,” and the “time differences made remote hearings impractical.”175 The Bahrain court was more familiar with the case and “better situated to accommodate necessary evidentiary procedures.”176

e. Uniform Child Abduction Prevention Act

The Uniform Child Abduction Prevention Act (UCAPA) provides an additional basis for temporary emergency jurisdiction.177 The purpose is to prevent a parent from “abducting” a child, i.e., taking the child without the other parent’s consent to live elsewhere.178 The trial court properly refused to sua sponte invoke the UCAPA in response to a mother’s request to take the child to a family funeral overseas.179 The mother filed an emergency motion for travel authorization to take the child to attend the funeral of the child’s grandmother in Poland after the father refused to give her the child’s passport. The father had acted unreasonably in withholding his approval for travel that the mother had sought before filing the motion. There was no evidence of credible risk of abduction.180 Furthermore, the trial court acted within its discretion in transferring custody of the child’s passport from the father to the mother, and in requiring the father to pay the mother’s attorney fees.181

2. Factors

a. Generally

In most states, agreements or parenting plans of the parties are presumed to be in the child’s best interest. The parenting plan, however, may need to meet particular statutory requirements. A Missouri court reversed approval of a parenting plan that was not a written, specific plan that included all holidays and school vacations.182

Usually, it is a combination of factors that lead to a court’s award of physical custody. For example, in a Mississippi case, the award of custody to the father of children ages three and five was supported where the father helped the five-year-old with “speech issues,” the mother did not have the children vaccinated as needed for them to attend a preschool program, the father had family support, and the mother had a daughter from a different relationship who “used drugs, became a teenage mother, and was sexually assaulted by [the mother’s] brother.”183 Where the mother obtained a protection order against the father in another state, the rebuttable presumption arose that the father should not have custody of the children.184

b. Child’s Preference

In a bold move that should make child advocates happy, the Pennsylvania appellate court found that the trial judge could not assume that children ages six and seven were incompetent to testify. Because relocation was an issue, there were legitimate reasons for the judge to take testimony regarding their custody and relocation preference.185 In a modification case, the preference of an 11-year-old child to live with his father rather than move with his mother and sister to another city was influential in the court modifying physical custody of the son to the father. The father was not required to show a “compelling reason” for separating siblings, and the 16-year-old daughter wanted to move with her mother.186

A trial court must be particularly careful if the child’s preference appears to be the result of coaching or of alienating behavior by the other parent. In New York, an attorney for the child ordinarily must advocate for the child’s wishes or position. Where, however, the child’s attorney “is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child,” the attorney can “advocat[e] a position that is contrary to the child’s wishes.”187

In a motion to modify primary residential responsibility, the North Dakota Supreme Court did not consider a 10-year-old child’s preference to live with his mother, where the court found no evidence showed the child had sufficient maturity to make a sound judgment and an affidavit by the child included “conclusory expressions of the child’s preference without facts upon which the district court could find the child’s reasons persuasive.”188 The affidavit included statements that the child was “nervous” around her father and “scared to tell dad anything because he will get mad,” but did not discuss “past instances of [the father] getting mad or why he would get mad.”189

c. Joint Custody

In New York, “[j]oint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion.”190 The trial court did not err in awarding the parties joint custody even though there was “some antagonism” and “difficulties in communication,” where the parties had ultimately come to mutual agreements during the course of four years.191 The court can award joint legal custody with primary residence to one parent if that is in the child’s best interests. Where the mother had been the primary caregiver since birth and had more time to spend with the child and the parents lived at least 40 minutes apart, the court awarded the mother primary residency.192

Awarding joint physical custody did not violate the mother’s due process rights even though neither parent had requested it.193 The mother was from Connecticut and the father Saskatchewan, Canada. The parties met online and were married briefly, but the mother only stayed with the husband in Canada a couple months before returning to Connecticut before the child was born. The court found that the mother was unlikely to foster a relationship between the child and the father in part because she called him “pure evil” and a “horrible human being.”194 From age two until the child reached school age, the court alternated the child’s residential custody between the parents, who the court noted lived in “very different and geographically diverse places.”195

Joint legal custody did not give the father who provided the primary residence the ability to unilaterally determine the child’s school. When the father moved to a different school district, he enrolled the child in the new location. The mother wanted the child to stay in the same school the child had attended for grades 1–3. The court found that “[j]oint legal custodians have equal rights and responsibilities regarding educational decisions,” and primary residence was “not determinative on school choice.”196

d. Experts

New York courts have found that “[t]he assistance of psychological experts in custody proceedings may be necessary where the child has exhibited emotional and behavior problems, there is sharply conflicting testimony regarding the conduct of the parties, or a party’s mental health is at issue.”197 The court erred in awarding the father sole custody of the child without considering the results of the psychological examination ordered.198

3. Modification

a. Change of Circumstances

COVID-19 issues arose as parents argued over masks and vaccination. A Maine trial court found a change in circumstances where the mother “objected to having the children vaccinated, had not arranged for either child to see a pediatrician or dentist, and objected to the parties’ son seeing an occupational therapist,” but granted final medical and educational decision-making to the mother.199 This case did not involve COVID-19 vaccines specifically, but the Maine Supreme Court found the trial court erred when it failed to take judicial notice of vaccine information on the CDC website, and directed that on remand if the mother wished “to contest the CDC’s position as a matter of scientific fact, she must show that its position is not accepted to be true within the scientific community.”200

After a 2018 divorce, both joint custodial parents had signed a Kentucky form declining child vaccines for religious exemption reasons. In 2020, the father desired to have the children vaccinated. The trial court determined it could order vaccination over the mother’s religious objection, finding that “it would be in the children’s best interest to be vaccinated in accordance with their pediatrician’s recommendations and Centers for Disease Control and Prevention (CDC) guidelines.”201

In a case arising from a pre-COVID vaccine dispute, a trial court erred in using a strict scrutiny approach to a father’s motion to modify medical decision-making responsibility to allow him to vaccinate the child over the mother’s religious objection.202 COVID forced a few changes in parenting plans. In a New York case, the court acted properly in modifying a temporary order of visitation so that the father would pick up the child on Thursday rather than Friday where the child was attending school virtually and in this way both parents could participate in the child’s online education.203

One of the major reasons for modification of parenting plans is that the parents cannot get along with the existing plan. In a New York case, the court modified a shared physical custody order that became “unworkable” in that the parents were unable “to communicate or cooperate” and the father undermined the mother’s authority as sole legal custodian.204 In another New York case, both parents moved to modify the child custody order. The court found that the mother was a “loving,” “patient,” and “nurturing” parent while the father was “rigid,” “critical,” and “judgmental,” supporting modification of joint legal custody to sole custody to the mother.205 On the other hand, the mere fact that the parties disagreed did not warrant a change in the existing parenting plan giving parents of a biracial child joint legal and physical custody. Considering the mother’s “frequent moves,” the court did find that the order should provide that the child should stay in the same school district, rather than one in which the mother lived. Furthermore, the court ordered that if the mother did not remove a rock by her driveway with a Confederate flag painted on it, the continuing presence of the flag would be a change in circumstances and could be considered in any future best interests analysis. The court noted:

Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child’s best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance.206

A North Dakota mother made a prima facie showing of change of circumstances warranting an evidentiary hearing on her motion to modify primary residential responsibility where her affidavit alleged that the father denied her parenting time, failed to encourage a relationship with her and the children, failed to discuss medical issues, interfered with her access to the children’s school, and failed to attend to the children’s developmental and dental needs.207 In another case, it was alleged to be the mother who thwarted the father’s contact. She “reprimanded[ed] the children for speaking to their father in public,” “blocked his phone number on the children’s cell phones,” and otherwise engaged in alienating behaviors. The court modified the award to make the father the domiciliary parent as in the best interest of the children.208

Even if the parent shows a material change of circumstances, the parent may not be able to show that it is in the children’s best interest to modify the existing arrangement, especially if it is stable and the children are doing well. A mother showed that there was a material change in circumstances where her affidavit stated that her home situation had improved and that her children had a close relationship with her new husband, a veteran who received veterans benefits. The mother, however, did not establish a prima facie case to modify primary residential responsibility.209 In a New York case, the father’s release from incarceration amounted to a change in circumstances, but the father did not show modification was in the children’s best interests, in part because of past domestic violence with the mother.210

A trial court abused its discretion in a post-divorce action to modify a parenting plan when it “failed to incorporate the [parties’ mediated] stipulation’s terms regarding communication with the children” into the plan; while the parties had agreed to contact at specific times, the trial court provided that the father could contact the children “regularly.”211 The trial court also lacked the authority to order the mother’s current husband to attend family counseling.212

b. Relocation

Parents often put geographical restrictions in their parenting plans. In one case, the parties originally agreed that the mother would have sole legal and physical custody of their two children. Under their stipulation, “if either party moved the residence of either child beyond a radius of 75 miles from their present residence, the parties had to ‘confer and enter into . . . fair and equitable revisions” of parental access.213 The mother moved from New York to Georgia without telling the father because she felt she should be able to move and the father was “no good.” The court modified to give the father sole legal and physical custody in New York.214

The father was stationed in California at the time of the divorce and the mother and daughter were living in Nebraska with the mother’s parents. When making an initial custody determination where one party had never resided in the state, the court was not required to conduct a relocation analysis. The father was not required to prove a “legitimate reason” for moving to California.215

Not every relocation is a material change of circumstances. In a Georgia case, the evidence supported the trial court’s decision that the father’s relocation to Michigan with the child was not a material change of circumstances where the parties had lived two hours from each other at the time of the divorce. The flight to Georgia and travel time for visits was similar, the father said he could bring the child to Georgia on alternate weekends, the child’s grades had not suffered, and the child communicated regularly with the Georgia family.216

Relocation cases are fact specific.217 The Wyoming Supreme Court upheld a finding that a mother’s move to New Mexico was a material change of circumstances.218 Factors that may constitute a material change of circumstances include “[a] change in the ability of the parties to maintain the existing parenting agreement, a change in the ability of the children to maintain a close relationship with the remaining parent, factors affecting quality of life in the new location, the child’s geographic preference, and the relative merits of available social and educational opportunities in the new location.” 219 In the case, the move had complicated visitation and negatively impacted the father’s relationship with the children because it was a nine hour distance and the mother “fail[ed] to foster an open relationship” with the father. The court modified to give the father primary residential custody where he was “the more stable parent” and one child’s testimony showed a desire to live with his father.220

4. Nonparent Custody and Visitation

a. Grandparents

The presumption in favor of a natural parent can be overcome if the parent is unfit or has abandoned the responsibilities of a parent. Frequently the parties claiming nonparent custody or visitation are the grandparents. Children had been adjudicated dependent and neglected after the father shot the mother and went to jail. The trial court later found the mother complied with the treatment plan and was a “fit parent” but granted the paternal grandmother sole decision-making authority and primary parenting time over the mother’s objection. The Colorado Court of Appeals found remand was required for the trial court to apply a presumption that the mother’s determinations were in the children’s best interests and to require a showing of clear and convincing evidence for the grandmother to overcome the presumption.221 Allocating parental responsibilities to a nonparent over the parent’s objection “does not infringe on a parent’s liberty interest . . . so long as the court applies a presumption in favor of a fit parent’s determination and makes findings that are legally sufficient to overcome the presumption.”222

Paternal grandparents who stood in loco parentis overcame the presumption in favor of the mother where the trial court found she had effectively deserted the child through a “lack of meaningful visitation and support” over a period of time.223 A mother was found to have consented to the grandmother’s parent-like relationship with the child for 13 years where she waited six years after she became sober to seek custody. The grandmother’s allegations met the “consent” requirement for standing to seek de facto parentage.224 In a Kentucky case, the paternal grandmother, who had provided substantial financial support and care for the child while the father lived with her, petitioned to intervene in the mother’s action to change residential custody due to the father’s criminal activity and substance abuse.225 The court erred in finding the grandmother to be a de facto parent and awarding her residential custody. “Before the family court may find that a caregiver has become the ‘de facto custodian’ entitled to be placed on the same footing as a biological parent in a custody proceeding, the court must determine that the biological parent has abdicated the role of primary caregiver and financial supporter of the child for the required period of time.”226 Here the mother had provided some support and regularly visited with the child.227

The Indiana Court of Appeals found that the trial court erred in awarding visitation to paternal grandparents without making findings concerning whether the mother had denied visitation and showing deference to the fit mother’s decisions. Remand was warranted because after the father’s death, the mother had a constitutional right to direct her son’s upbringing.228 The North Dakota Supreme Court upheld the denial of visitation to paternal grandparents who failed to show by clear and convincing evidence that denying their request would harm the children. They did not show how denial would have “a significant adverse effect on the children’s well-being.”229

When a father moved to modify custody, the maternal grandparents filed for grandparent visitation. The Nebraska court found they met the burden of proving both that continuing their relationship with the child was in the child’s best interests and that visitation would not “adversely interfere with the parent-child relationship.”230 In another case, following death of the father, paternal grandparents filed for visitation of the six children. The West Virginia Supreme Court of Appeals upheld the trial court’s findings that the relationship between the children and the paternal grandparents weighed in favor of visitation and it was in the children’s best interests. The trial court properly gave deference to the mother by not forcing a “graduated visitation schedule” but “adopt[ing] reunification therapy as the keystone to allowing future visitation.”231 An Indiana trial court erred in not granting the paternal grandparents visitation of an 18-month-old who had been placed with her maternal aunt since she was born. The findings did “not support the determination that court-ordered visitation would not be in [the child’s] best interests.”232 A North Carolina court found that after the father had died, the court erred in ordering paternal grandparent visitation on alternate weekends and every other Christmas and Thanksgiving. That unconstitutionally interfered with the parent-child relationship.233 In an Ohio case, the court upheld the court’s award of two 15-minute video visits a month with the paternal grandmother and stepgrandfather after the death of the children’s father.234

b. Current Spouses/Partners/Others

The Maryland Court of Appeals held that when there are two legal parents, “a prospective de facto parent must demonstrate that both legal parents consented to and fostered such a relationship or that a non-consenting legal parent is unfit or exceptional circumstances exist.” 235 Where the mother had not consented to the biological father’s romantic partner being a de facto parent, the trial court erred in awarding custody to her after the father was incarcerated.236 After the mother’s murder, substantial evidence supported an award of primary custody of the child to the mother’s fiancé, who was a de facto parent, instead of to the child’s biological father, who was found to be an unfit parent.237

Louisiana found that a mother’s former same-sex partner had to prove at the outset that sole custody to the mother would result in “substantial harm to the child” in order for the “best interest of the child analysis . . . [to] come[ ] into play.”238 The Georgia Court of Appeals upheld a trial court order granting a former same-sex partner of the mother of two children “equitable caregiver” status and issuing a parenting plan.239

In an unusual case, a former husband/biological father’s conduct supported the finding of de facto parentage for his former wife’s friend and friend’s husband. The father “knew or should have known” that his two children were living with the friend and her husband. The father had moved away and did not provide financial or personal support and had given them “temporary legal authority over the children” when they obtained an order of protection against the mother on behalf of the children.240

5. Enforcement

If an agreement is ambiguous, the court can hear evidence on the ambiguity. The parties’ separation agreement was ambiguous about whether the children were required to go to public school. The children were in public school at the time the agreement was being drafted but at the time of the signing, the mother was homeschooling.241 Where the agreement did not specifically prohibit the father from having the child vaccinated, he was not held in contempt for having the child vaccinated without consulting the mother, especially where the parties contemplated the child going to school in New York, which requires vaccination for the child to attend school.242

A trial court should not have ordered a change in a parenting plan as a contempt sanction for the mother’s failure to comply with the time-sharing terms of a paternity judgment where the father had not asked for a change in the parenting plan.243 When the father moved for contempt because of the mother’s failure to comply with the timesharing schedule, the trial court found her in contempt and modified the schedule. The Florida appellate court found that the father’s “form motion for contempt” was insufficient to put the mother on notice that he was seeking a modification of the timesharing. The trial court erred in not making a finding of a material change of circumstances and that the change in timesharing was in the best interests of the child.244

I. Child Support

1. Jurisdiction/Obligation to Support

To get child support requires personal jurisdiction over the obligor. The parties had lived together briefly in Texas, but the mother moved to live with her parents in Hawaii, where the baby was born. The father filed a paternity action in Texas; the mother filed in Hawaii. The Hawaii Family Court had custody jurisdiction under the UCCJEA because the mother and child lived there but did not have personal jurisdiction over the father as required for adjudicating paternity and child support. The Uniform Interstate Family Support Act (UIFSA) “provides two general avenues of relief: (1) file a petition ‘in an initiating tribunal for forwarding to a responding tribunal’ or (2) file ‘directly in a tribunal of another state which has or can obtain personal jurisdiction over the respondent.’”245

Failure to file consents pursuant to the UIFSA precluded the Maryland court from modifying Maine’s prior child support order. Although “claim-processing rules and lack of personal jurisdiction may be waived, lack of subject matter jurisdiction cannot. . . .”246 Both parties needed to file consents to the new state court’s modification as the father continued to live in the issuing state. The father could collaterally attack the Maryland child support order. He had waived personal jurisdiction by participating but could not waive subject matter jurisdiction.247

Relying on Supreme Court jurisprudence recognizing same-sex marriage and the benefits of marriage,248 the Missouri Court of Appeals read the parentage statute in a gender-neutral way. The statutory presumption of parentage for children born into a marriage applied to the nonbiological mother in a same-sex marriage.249 New York found that a former same-sex nonmarital partner was a nonbiological parent of the children and responsible for child support where “the parties planned jointly for the children’s conception, participated jointly in the process of conceiving the children, planned jointly for their birth, and planned to raise them together.”250

2. Income

The father’s mother died during the divorce and he inherited $615,000, which the parties stipulated was nonmarital property and not included in child support or maintenance calculations. Mandatory retirement distributions from inherited accounts, however, did constitute income for child support and maintenance.251 With a military father, the nontaxable federal payments for basic allowable subsistence housing, cost-of-living allowance, and clothing entitlements were earned income for purposes of child support income. Furthermore, as the father chose to live in Japan and the mother could not afford sending the child there, the father was not entitled to have his child support lowered for paying all visitation-related travel expenses.252 A trial court erred in finding that the father was self-employed as a financial advisor and had control directly or indirectly over the organization for which he worked. The father could not control Wells Fargo.253

The trial court could impute income even though the father had produced other evidence of his income from tax returns and bank records. The court noted that “income and expenses from self-employment or operation of a business should be carefully reviewed by the court or the jury to determine an appropriate level of gross income available to the parent to satisfy a child support obligation.”254 The husband had not produced all of the information requested and the testimony conflicted with some of the documents.255 In another case, the appellate court upheld the trial court’s decision to impute monthly income at $3,975 as reasonable under the circumstances. The mother had worked in the oil and gas industry but had stayed home during the pandemic. She planned to return to work with her previous employer.256

A mother’s “rent free living arrangement with her parents” should have been considered when determining her gross weekly income for child support purposes.257 Although the income furnished by an employer in the form of food, housing, and vehicles can be included as income, the remarried parent’s new spouse’s income could not be imputed to the parent.258 A couple of other cases also found no justification for imputing income.259

A New York father was not entitled to a deviation from the child support amount where the child began receiving social security derivative benefits on account of his disability. “[A] child’s disability benefit is ‘intended to supplement existing resources, not to displace or reduce a parent’s obligation to support his or her child.’”260

3. Modification

Usually a parent is seeking modification because the parent has lost a job or has reduced income that warrants a reduction in support or the other parent has an increase in income. In a somewhat unusual case, the parties had an agreement that the father would pay 28% of his base pay and 28% of any bonus or commission for child support. It was not expected that the father’s income would increase 16 times when he started his own business. The court allowed a reduction in support.261

A mother’s more than 15% increase in income warranted a new determination of the child support.262 The father’s allegations that the mother had increased earnings precluded a judgment on the pleadings. The court, however, could not impute additional income based on her remarriage or in-kind contributions from the new spouse.263

In a case of shared parenting and no child support, the reduction in the father’s wages from over $100,000 to about $56,000 warranted an award of support to the father.264 Where a father’s decrease in income was because he chose to go back to school and remarried, the court did not allow a modification of his support.265 A father voluntarily reduced his income but the income was less than $300 a month different and he maintained the same standard of living and purchased items with money that could have been used for support. The court denied modification of child support and found the father in contempt for nonpayment.266

Generally a modification applies prospectively. The date of filing the petition for a downward modification is the date used. In a New York case, the father was not entitled to a credit for overpayments of the child’s health insurance retroactive to the time when the mother’s cost to insure allegedly was reduced.267

The father claimed diminished earnings after retiring his medical license instead of participating in a drug addiction monitoring program, but the court found this was the result of voluntary choice. The chancellor did not abuse discretion in ordering $1,200 a month in child support. Although the husband claimed he was disabled because of a stroke, he still earned more than $100,000 a year and presented no evidence of a stroke.268 Where the parties’ agreement provided that the father would pay college tuition, he had to pay even though the youngest did not follow the process he wanted.269

The decree state determines the duration of a child support award. After New Jersey granted a divorce and made support orders, the father moved to Texas and the mother and children moved to Louisiana. Under New Jersey support law, the father’s support obligation ended automatically for the oldest child when he turned 19 and was not enrolled in college.270 A Florida child support order terminated child support at age 18. The daughter turned 18, moved to New York, and went on public assistance. Nassau County tried to get support from the father. Florida had continuing exclusive jurisdiction over the support because the father still lived in Florida. His obligation for support terminated when the child turned 18.271

4. Registration and Enforcement

The Kansas Supreme Court found it had jurisdiction to modify a Florida support order although the father failed to include a certified copy of the order when seeking to register it in Kansas. The court cited the official comment to UIFSA § 601 in support of its conclusion that “registration is not a prerequisite to the court’s subject matter jurisdiction over an out-of-state order”: “‘The act does not contemplate registration as serving a purpose in itself. In that regard, registration is a process, and the failure to register does not deprive an otherwise appropriate forum of subject matter jurisdiction.’”272

A North Carolina trial court lacked subject matter jurisdiction over Florida child support orders where the mother’s “petition to register foreign child custody and support order” followed the requirements for registering custody orders (UCCJEA), but not support order requirements (UIFSA) including specific notice to the obligor.273

J. Cohabitants

The Uniform Cohabitants’ Economic Remedies Act was adopted at the annual meeting of the Uniform Law Commission in 2021. The UCERA “does not create any special status” but basically allows cohabitants to exercise their freedom of contract rights and pursue equitable claims against a cohabitant.274

In an Oregon case, cohabitants owned property as tenants in common. The male cohabitant moved to another place and later died unexpectedly. The former female cohabitant was entitled to contribution for house payments and repairs she made after they separated when she was the sole occupant of the cotenancy property. That would be offset by half of the property’s fair rental value if her use precluded the male cohabitant’s occupation.275 A former female cohabitant filed a family offense petition against a former male cohabitant based on alleged recording of her on security cameras at the farm house they owned as tenants in common. The court found no proof of surveillance, no pattern of conduct, and no harassment.276

K. Divorce, Annulment, and Separate Maintenance

1. Jurisdiction

The Nevada Supreme Court held that divorce jurisdiction requires “mere residence,” not domicile. Therefore, jurisdiction existed for parties who were citizens of Syria and residing in Nevada on U.S. student and dependent visas.277

Couples living in separate places can create jurisdictional issues. The parties had property in New York and a home in the Virgin Islands in which the husband had resided since 2008. The husband filed in the Virgin Islands and the wife in New York. New York dismissed on forum non conveniens grounds because of the complex property issues, as most of the assets were in the Virgin Islands. The wife opposed the Virgin Islands action and the trial court dismissed it. On appeal, the Supreme Court found that even though the wife may have waived the defense, the Virgin Islands had sufficient jurisdiction over her under the long arm statute for “transacting any business”; the wife sent all bills to the husband, his business was there, and her health insurance was paid through the business.278 The court also erred in dismissing the case on inconvenient forum grounds after the New York court had done so. It should have accepted jurisdiction over the divorce action unless “‘substantial justice’ required otherwise.”279 Here, the court contributed to the denial of substantial justice because the husband could not get a divorce anywhere. The Supreme Court ordered the trial court to immediately issue a decree of divorce.280

2. Grounds

The husband was a U.S. citizen and the wife was from the Philippines. New York found that the husband, seeking annulment, failed to show by clear and convincing evidence that the wife fraudulently induced him to marry for immigration benefit. Generally, “‘[p]remarital falsehoods as to love and affection are not enough’ to warrant an annulment based on fraud.”281

The Mississippi Court of Appeals determined that the principle that “‘[t]he husband has the right to choose and establish the matrimonial domicile,’ whereas the wife has only a ‘duty . . . to acquiesce . . . and follow,’” is no longer good law.282 Therefore, the husband’s “unilateral decision to move and leave [his wife] behind was ‘unreasonable,’” and the wife “did not ‘desert’ [the husband] simply by continuing to live in the established marital home.”283

Several cases this year dealt with grounds of habitual cruel and inhuman treatment. In Mississippi the petitioner must show by a preponderance of the evidence “that the defendant’s behavior either: (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger . . . , or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.”284 The mother successfully showed, with corroborating witnesses, the father’s emotional and verbal abuse of her and the children, his hoarding and not allowing the mother to clean the house, his lack of personal hygiene and unsanitary food habits, his unwelcome sexual demands, and his angry outbursts.285 Where the cruel and inhuman treatment is supported by the evidence, the court should grant the divorce on that ground.286

3. Procedural Issues

The trial court abused its discretion in denying the wife’s request for a continuance of the divorce proceeding because she had a fever and had been exposed to COVID-19.287 While “a servicemember may apply to stay the action if the requirements of military duty affect[] the servicemember’s ability to appear” in court, the servicemember did not apply for a stay. He voluntarily submitted to the court’s jurisdiction and forfeited federal protections.288

L. Domestic Violence

A Connecticut resident who made multiple cell phone calls to his ex-girlfriend, who had just moved to North Carolina, did not have minimum contacts with North Carolina for due process purposes where he did not know she had moved there from South Carolina and did not have other contacts with the state. The North Carolina court lacked personal jurisdiction to issue a domestic violence protection order against him.289

The parties had a contentious, high-conflict parental relationship that was exacerbated when COVID appeared. The father contended the mother was not following state-mandated safety protocols. A court denied the former wife’s request for an order of protection for harassment. The father had initiated over 50 pages of email exchanges, but there was a legitimate purpose. They were “aimed at a legitimate subject of debate—the appropriate measures of COVID prevention protocols, something any parent certainly has a ‘legitimate’ interest in.”290

A California trial court did not abuse its discretion in including the husband’s girlfriend as a protected person in a domestic violence restraining order. Even though the girlfriend was not a party to the proceeding in which the order was first entered, it was important to protect her also where the ex-wife had chased her on the freeway and made false allegations against her as well as the ex-husband. The order prohibited the wife from entering the ex-husband’s property where he lived with the girlfriend, or harassing, surveilling, or coming within 50 yards of them.291

M. Marriage

1. Requirements

The evidence did not support that the husband and wife were putatively married in Hawaii 16 years before they married in Nebraska.292 The Nebraska Supreme Court found that a purported wife “lacked the requisite mental capacity” to marry the purported husband and to execute real and personal property transfers for him and his adult son. The marriage and transfers less than two weeks before her death were void and invalid. She had “periodic delirium related to her illness and treatment.”293

2. Common Law Marriage

The Colorado Supreme Court decided three common law marriage cases in 2021. It determined that common law marriages are available to same-sex couples and that the decision in Obergefell v. Hodges applies retroactively to determine whether the couple had a valid marriage.294 The conduct of parties pre-Obergefell had to be examined with “particular care” because of the then-prohibition against same-sex marriage.295 In another case, the Colorado court upheld the trial court’s finding that the partners in a same-sex relationship “did not mutually intend to enter into a common law marriage.”296 In a third Colorado case, the court remanded the case for the probate court to determine if the deceased man and his alleged common law wife had the intent “to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and mutual obligation.”297 “[T]he court must undertake a ‘flexible inquiry into the totality of the circumstances,’” including “evidence of the couple’s express agreement to marry.”298 “In the absence of such evidence, the couple’s mutual intent may be inferred from their conduct,” including “cohabitation; reputation in the community as spouses; maintenance of joint banking and credit accounts; purchase and joint ownership of property; filing of joint tax returns; use of one spouse’s surname by the other or by children raised by the parties; evidence of shared financial responsibility, such as leases in both partners’ names, joint bills, or other payment records; evidence of joint estate planning, including wills, powers of attorney, beneficiary and emergency contact designations; symbols of commitment, such as ceremonies, anniversaries, cards, gifts, and the couple’s references to or labels for one another; and the parties’ sincerely held beliefs regarding the institution of marriage.”299

South Carolina found that its law prohibiting same-sex marriage was not “an impediment to the formation of a common law marriage between same sex couples,” but affirmed the appellate court’s finding that the petitioner and respondent “lacked the requisite intent and mutual agreement to enter a legally binding common law marriage as a matter of law.”300

N. Names

In Indiana, the court has statutory authority to change the name of a woman who wants to restore her maiden name or previous name but does not have statutory authority to change the child’s legal name in a dissolution of marriage action.301 A Missouri court found a mother could not apply to change the child’s surname in Missouri while a pending modification case in Illinois would determine the child’s residency, and the court in Illinois had previously “made an explicit finding as to the [c]hild’s last name.”302

Most courts are reluctant to change the existing name of a child unless it is in the child’s best interests,303 although Idaho did not require a best interest analysis.304 The New York court found it was in the best interests of a 14-year-old girl to change her name to that of the stepfather with whom she had lived since she was a toddler. The court interviewed the child in camera. She “[i]dentifie[d] as a member of [her step-father’s] family and wishe[d] to have the same name as her half-siblings.”305 The father owed child support and had the ability to pay but testified that he was not doing so because he was “aggravated” over conflict with the mother and didn’t “feel like paying.”306

Many cases deal with children born out of wedlock. A Tennessee appellate court found that the trial court erred in granting the father’s request to change the surname of his nonmarital child. He failed to show it was in the child’s best interests.307 A Texas court found that the evidence supported that the name change was in the best interest of a 14-month-old child where the father had tried to be involved in the child’s life and had requested the name change in his paternity action when the child was four months old, but said the mother had “thwarted his efforts to be a meaningful parent.”308 There was no evidence the child identified with his original surname (his mother’s).309

Recently the issue of transgendered children has arisen. In Indiana, parents have the authority to petition the court to amend the gender marker on their minor child’s birth certificate. The court should then evaluate whether the change is in the child’s best interests.310 An Indiana court granted the name change but found that the trial court was not required to grant the mother’s petition seeking to change her 15-year-old transgender son’s gender marker on his birth certificate where the parents offered no expert testimony but only “conclusory” testimony.311 In a Maryland case, evidence supported the grant of authority to the county to consent to a petition for a change of first name and gender marker for a neglected transgender child.312

O. Parentage

As of the end of 2021, the gender neutral Uniform Parentage Act (2017) had been enacted in California, Connecticut, Maine, Rhode Island, Vermont, and Washington. Alabama, Delaware, Illinois, New Mexico, North Dakota, Oklahoma, Texas, Utah, and Wyoming still use the UPA (2002), although Delaware has added de facto parents. Colorado, Hawaii, Kansas, Minnesota, Missouri, Montana, Nevada, New Jersey, and Ohio still use the original UPA (1973) with some amendments.313

Because unborn children are not within the definition of “child,” an alleged father’s “prebirth conduct” did not make him a presumptive father under the Alabama Uniform Parentage Act. Therefore, he could not challenge the paternity of the mother’s husband on that basis.314 A Wyoming court found that a putative father had standing to maintain a paternity action challenging the paternity of a child born during the mother’s marriage. The statute allowed “[a] man whose paternity of the child is to be adjudicated” to maintain a proceeding.315 In a Florida case, the court found that where the court had accepted the parties’ stipulation of parentage, it was not in the best interests of the child to disestablish the adjudicated father’s paternity even though DNA evidence showed the putative father was the biological father.316

Several cases dealt with voluntary acknowledgments of parentage (VAPs). An ex-boyfriend who had signed a VAP although he knew he had no biological connection to a child filed a paternity action seeking a judicial declaration that he was the child’s legal father and joint legal and physical custody. The mother alleged that the VAP was fraudulent. However, the man executed the VAP so he was the child’s “declarant father” and the VAP was not void ab initio for fraud.317 A putative father who signed a VAP when the child was born in 2017 was entitled to be considered the father over the biological father, who two years later tried to assume parentage. The appellate court found that the trial court erred in setting aside the VAP, which needed to be challenged for fraud or duress within six months.318 In a dependency action, a pro se putative father’s filing to intervene in the case constituted a timely challenge to the voluntary acknowledgment of paternity. The evidence showed the VAP was based on a mistake of fact.319 Louisiana found that although the petitioner, who had married the mother after the child was born, was not the biological father of the child, his disavowal action to rebut the presumption of paternity was barred by clean hands because he knew he was not the father at the time he signed the VAP and the statutory 180-day peremptive period had passed.320

Res judicata prevented the mother from challenging paternity in an action by the paternal grandparents for modification of parental rights and custody of the children. The oldest child had a different biological father than the other two children, but the parties had litigated the issue of custody in the divorce and the mother had “agreed” the husband was the father. After the father’s accidental death, the paternal grandparents were granted visitation. Additionally, the mother had presented no genetic evidence to rebut the presumption of parentage.321

In New York, a putative biological father who filed an action for paternity and genetic testing “within weeks of the child’s birth” was not precluded by equitable estoppel just because the mother’s boyfriend had signed a valid Acknowledgement of Paternity.322 In another case, the court found that the alleged father was not equitably estopped from denying paternity. The child had lived with the mother and her boyfriend since birth, with the alleged father taking no role as a parent.323 In another case involving a boyfriend and putative father, the court held that the trial court erred in finding that the mother’s boyfriend with whom she had a “long-term, on-again/off-again relationship” was the father when the DNA tests clearly showed that the putative father was the biological father. The family court lacked jurisdiction to order a “de facto adoption” and termination of the biological father’s parental rights.324

A Maryland court did not err in finding it was in the child’s best interests to order genetic testing of “two possible fathers” to identify which was the child’s biological father.325 In Mississippi, the state brought an action to establish a putative father’s paternity of a 20-year-old child. The court found the child was not emancipated and the putative father was the biological father, and ordered child support.326

Colorado ruled that its parentage act does not allow a court to recognize more than two parents.327 In a dependency case, the court weighed the conflicting parentage presumptions between the mother’s same-sex partner and the biological father whom the mother and her family had thwarted in his attempts to parent. The court found the weightier considerations of logic and policy supported naming the father as the other legal parent.328 The court noted “the primary concern . . . is the child’s best interests and not the rights of, or the fairness to, each of the presumptive parents.”329 Where a putative father did not appeal a finding that he was not the biological father but stood in loco parentis to the child, the trial court erred in granting him custody of the child over the biological mother who was fit.330

P. Property

1. Classification of Property

One appellate case dealt with an engagement ring. The parties disputed the circumstances surrounding the giving of the two and one-half carat diamond ring, worth $32,000. When the engagement ended, the court found the man was entitled to return of the ring.331 It is easier to prove a conditional gift if the parties are not married. In Tennessee, the evidence needed to prove that property was a gift to one spouse, and not marital property, is clear and convincing evidence that the donor intended to make a present gift, delivery of the gift, and the surrender of dominion and control to the donee.332

Pets are generally still considered property in most states. A Washington trial court that awarded two dogs to the husband as his separate property exceeded its authority when it allowed the wife to visit.333 In 2021, Maine and New York enacted statutes that allow the judge to consider the best interests of the pet in dissolution cases.334

In the majority of states, the court sets aside the separate property and can only equitably divide the marital or community property. In Florida, in the absence of an agreement, “the cut-off date to determine which assets are marital is the date the petition for dissolution was filed.”335 On the other hand, a Utah court found that a savings account the wife started after the parties separated was her separate property and not subject to division.336 Future income and assets post dissolution are separate property.337

A valid prenuptial agreement that classifies property as separate will be upheld. The husband’s business interests were excluded from marital property by the parties’ prenuptial agreement.338 Oral agreements have not fared as well. An alleged oral agreement to keep finances separate was not an agreement to divide property acquired during the marriage in a particular manner on divorce.339 In a Colorado case, an oral agreement by the parties “to exclude their retirement accounts and inheritances from the marital estate” was not a “valid agreement.”340 Another Colorado case found that the interspousal transfer deed the husband executed conveying the home to the wife was not a “valid agreement” under the Uniform Dissolution of Marriage Act.341

The presumption is that property acquired after the date of marriage is community or marital property. A $5 million payment the husband received for signing a noncompete agreement that was effective when he left his employment was marital property.342 Florida found that the appreciated value of the husband’s premarital stock was a marital asset because the husband’s marital efforts improved the value.343 Arizona found that if accrued vacation pay is reimbursable, it is community property.344 An Indiana court, however, found that the husband’s accumulated sick leave, which he had no right to turn into cash, could not be included in marital property.345

If separate property is traceable and has not been transmuted or commingled, it retains its separate character.346 The burden is on the spouse claiming the property is separate to prove it.347 For example, in Florida, when the husband did not overcome the presumption of marital property by showing how much of a personal injury settlement was for pain and suffering and how much was for lost wages, the funds were marital property.348

One of the major assets that often needs tracing is the marital home that one party purchased prior to the marriage.349 A California court set out the following factors to review to determine the community interest in the marital home that the husband had purchased as his separate property prior to marriage:

(1) [d]etermine the amount by which the community property payments . . . reduced the principal on the mortgage[,] (2) [c]alculate the community property percentage share by dividing the amount determined in step one by the purchase price[,] (3) [d]etermine the appreciation in the value of the house during the marriage . . . [,] (4) [m]ultiply the appreciation during the marriage . . . by the community property percentage share . . . to determine the community property share in the appreciation of the property[, and] (5) [a]dd the community property share in the appreciation of the property . . . to the amount of community funds used to pay down the principal on the mortgage . . . to determine the total community interest in the property at the time of dissolution.350

The Nebraska Supreme Court found that the entire tract of 120 acres the husband brought into the marriage and on which the marital home was located was marital property. Although the husband argued the wife was only entitled to a share of the appreciation of the home and garage, there was no evidence of the tract’s value separate from the home. Additionally, the parties had continually borrowed against the tract throughout the marriage and the loans were paid with the wages and commingled funds of both parties.351

Where a husband’s premarital contributions to his 403(b) retirement savings plan were traceable, they were nonmarital property.352 The Iowa Supreme Court found that future payments from the husband’s ordinary disability benefit from the Fire and Police Retirement System were income and not property as they were “replacement for income” the spouse would have earned if not injured.353

In classifying assets in a Florida case, the trial court failed to make findings regarding the specific sources of funds in a bank account opened by the wife and her parents during the marriage before designating the funds as marital property. There was a dispute as to whether the funds were commingled.354 The trial court also erred in including dissipated assets in the wife’s portion of equitable distribution in the absence of “a specific finding that the [wife] caused the dissipation through intentional misconduct.”355

When the husband opened an investment account during the marriage with his separate property, but the funds were commingled with a gift to the husband and wife, the commingled funds were used to open a second account, and the husband failed to trace his funds, both accounts were community property.356 Educational loans incurred in the husband’s sole name during the marriage for the parties’ adult daughter were marital debt because there was a joint agreement to contribute to their daughter’s education and both parties benefited.357

2. Valuation of Property

The parties generally must present evidence of the value of the property. The court has discretion to select if there are competing values presented. In a South Dakota case, the trial court erred in valuing the marital residence using a year old appraisal figure.358

In Florida, “[t]he trial court has discretion to select the valuation of a marital asset and value different assets as of different dates.”359 A Nebraska court could use the date of trial to value the property and could use the buy-sell agreement contained in an LLC’s operating agreement to assess the husband’s ownership interest in the LLC.360 In New York, generally, “[t]he determination of the [trial judge] as to the value of a business” for equitable distribution “will be accorded deference on appeal if it rests primarily on the credibility of expert witnesses and their valuation techniques.”361 An appellate court found, however, the trial court “improvidently exercised” its discretion in applying a discount to the average appreciation value of the husband’s interest in a surgical practice that “far exceeded” the discount forensic experts agreed was appropriate.362

An Arkansas court found it was error for the trial court to not “place a value” on the husband’s military retirement benefits before assigning them to him in an equitable distribution.363 Nebraska approved use of the “immediate offset” method, rather than the “deferred distribution” method, to value the husband’s pension in a divorce action because there was “evidence of present value,” the amount of benefits was “not unusually speculative,” and it would give the “contentious” parties “as clean a break . . . as possible.”364

3. Distribution of Property

The distribution of property is left to the discretion of the trial court. Most states have either a statute listing factors or case law. While a few states start with a presumption of equal distribution in long-term marriages, most states allow discretion for “equitable” division according to the facts of the case. The court must use the state’s factors, however. Mississippi still considers fault in the division of property. The chancellor’s “fail[ure] to consider [the husband’s] adultery when dividing the marital estate” was reversible error.365

A Massachusetts appellate court found that the trial court properly weighed the statutory factors in not awarding the husband a larger share of the marital estate, even though his parents had contributed significantly. The marriage lasted 23 years and the wife had lower earning capacity. The appellate court upheld the majority of the property division, including declining to transfer the wife’s beneficial interest in a nominee trust.366 The court, however, remanded for the trial judge “to explain the rationale for assigning [home equity line of credit] payments to the husband, or otherwise amend the divorce judgment or findings,” where the resulting unequal division of the marital estate did not “flow[] rationally” from the court’s findings.367

A Nebraska court reiterated that equitable property division in divorce is “a three-step process”: [1] “classify the parties’ property as marital or nonmarital;” [2] “value the marital assets and marital liabilities of the parties;” and [3] “calculate and divide the net marital estate between the parties.”368 The test to ascertain the appropriateness of property division is its “fairness and reasonableness as determined by the facts of each case.”369 The lower court abused its discretion in ordering the husband to pay the wife a cash equalization payment of $57,319.50 within six months of entry of divorce where the husband’s expenses outweighed his monthly net income and his part of the marital estate lacked liquid assets. Awarding the amount from the husband’s 401(k) account using a qualified domestic relations order (QDRO) “was a more appropriate manner to equalize the division of the marital estate,” and the parties agreed to this approach.370

Awarding a struggling lawn care business to the husband was not an abuse of discretion, even if the wife helped build it.371 The Mississippi trial court “properly considered the combined nature of the marital and personal property status of” the husband’s pension in equitably dividing it. While a portion was accumulated before the marriage, the husband did not provide any “specific monetary value” of the account at the time of the marriage.372

Retirement benefits can create litigation. In a Michigan case, the parties’ consent judgment stated the husband’s federal pension would be “divided equally.” The court remanded for an evidentiary hearing for more specificity on the ambiguous provision.373 In Texas, the court should have entered a QDRO that expressed the amount awarded to the wife “as a percentage of the accumulated contributions that accrued during the marriage.”374 A Virginia trial court exceeded its authority by making an “impermissible indemnification” of a “sum certain derived from military retirement pay.”375 Because the outcome was prohibited by the U.S. Supreme Court’s decision in Howell v. Howell, the case was remanded to the court to set the marital share of the pension and redo the equitable distribution.376 An Alaska court found that under Howell the court in a divorce action could not award the wife “the cash equivalent of a coverture fraction of a putative marital portion” of the husband’s future veteran’s disability pay.377

In an unusual case, the wife filed for divorce and moved to bifurcate—divorce now, do the property division later. The court granted the divorce, the husband died, and his estate contested the award of 90% of the marital property to the wife. The appellate court found that while the court could consider the husband’s death “as an element of ‘the circumstances and necessities of each party,’” the trial court erred in classifying some of the husband’s separate property, like a boat and two vehicles, as marital absent specific findings.378 A Pennsylvania appellate court found that the trial court did not abuse its discretion in ruling that the husband’s estate would be entitled to the husband’s interest in the wife’s pension if he predeceased the wife.379

The trial court’s unequal division of marital assets was justified by the expert testimony of the husband’s intentional misconduct in hiding and dissipating assets in preparation for his future filing for dissolution. The appellate court noted that the trial court “‘need not equalize the financial position of the parties’ but must ‘ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune.’”380 The award of alimony was proper.381

The trial court did not abuse its discretion in awarding the wife a $28,000 credit based in part on evidence of more than $40,000 in “substantial cash withdrawals” by the husband and expenses for “escort services” and “exotic massage parlors,” among other things.382

4. Enforcement

A Wyoming trial court properly invoked a court rule to correct a “mistake” when its initial order failed to “establish or locate a property line when [the court] divided and distributed . . . north and south parcels” among the parties to a divorce action.383 Fencing was not mentioned in the divorce action, so there was nothing to clarify and the husband was not entitled to half of the costs of fencing he built.384

The Missouri Supreme Court would allow the trial court to vacate a property division if the wife proved that the husband committed fraud. The wife alleged the husband misrepresented the value of corporate stock. His death did not make the issue moot.385 An Idaho trial court properly set aside a property settlement agreement based on the husband’s “misrepresentation and misconduct,” including his failure to provide documentation.386 Furthermore, the wife was not proficient in English, and the trial court found she “did not have an interpreter at the negotiations . . . and may not have understood the nature of the negotiated agreement. . . .”387

A company partially owned by the husband was not an “omitted community property asset” in a stipulated divorce decree. The stipulation and decree were drafted by the wife’s lawyer and included “detailed lists of specific items” for division.388 She knew the alleged omitted company had been held to be the husband’s separate property. Because the wife’s appeal was without foundation, she was ordered to pay the husband’s attorney fees.389

Q. Torts

Louisiana found that parents of a minor child born with Down syndrome could not bring a “wrongful life” action against various health care professionals for incorrectly informing them the test was negative.390 A New York court found that the trial court incorrectly granted summary judgment on the parents’ malpractice claim against doctors and a clinic for “failing to properly diagnose the child’s various medical conditions in utero and advise the [parents] of their options.”391

The trial court abused its discretion in dismissing the ex-wife’s actions against the ex-husband and his attorney for abuse of process and intentional infliction of emotional distress when they allegedly obtained child support and protective orders to damage the wife’s immigration status.392 A grandmother was a member of the child’s immediate family, so she could pursue a claim along with the child’s mother for negligent infliction of emotional distress for the child’s death caused by falling pieces of a building façade.393

III. Conclusion

The last two years have been challenging for clients, lawyers, and the courts. The pandemic caused disruptions in employment, education, and housing. Even as weddings and funerals were put on hold, many divorces had already been filed, custody and parentage issues were pending, and domestic violence victims needed protective orders. Fortunately, lawyers and judges adapted rapidly to embracing new, and often unfamiliar, technologies. Courts embraced videoconferencing for court hearings, oral arguments, motion dockets, and alternative dispute resolution. Psychologists conducted online custody evaluations and parenting assessments. For many, remote or video hearings not only saved time and money but also offered safety and provided more access. Many courts will keep some of the remote hearings. The key to moving forward with the continuing threat of COVID means adapting the lessons learned during the pandemic to the more normal day-to-day practice of family law.


1. Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1876–79 (2021).

2. Id. at 1876–79.

3. Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2042–43 (2021).

4. Id. at 2047–49 (citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)).

5. Id. at 2045–46.

6. Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (2021) (granting cert.).

7. June Med. Servs. v. Russo, 140 S. Ct. 2103 (2020).

8. Id. at 2133–34 (Roberts, C.J., concurring in the judgment) (citing Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)).

9. Dobbs v. Jackson Women’s Health Org., No. 19-1392, 2022 WL 2276808 (U.S. June 24, 2022) (overruling Roe v. Wade, 410 U.S. 113 (1973)).

10. Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 [hereinafter Hague Abduction Convention].

11. Robert Spector, Review of Hague Cases: 2021, 55 Fam. L.Q. 457 (2021–22).

12. Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020).

13. Harm v. Lake-Harm, 16 F.4th 450 (5th Cir. 2021); see also Nowlan v. Nowlan, 543 F. Supp. 3d 324 (W.D. Va. 2021) (child’s habitual residence was Canada when the mother removed the child to Virginia in violation of father’s custody rights), aff’d, No. 21-1965, 2022 WL 34141 (4th Cir. Jan. 4, 2022) (per curiam).

14. Colchester v. Lazaro, 16 F.4th 712, 716, 723–24, 726–27 (9th Cir. 2021).

15. In re ICJ, 13 F.4th 753 (9th Cir. 2021).

16. Saada v. Golan, No. 18-CV-5292(AMD)(LB), 2019 WL 1317868 (E.D.N.Y. Mar. 22, 2019), aff’d in part, vacated in part, remanded, 930 F.3d 533 (2d Cir. 2019).

17. Id. at *17–19.

18. Saada v. Golan, 930 F.3d 533, 540–43 (2d Cir. 2019).

19. Saada v. Golan, No. 118-CV-5292, 2020 WL 2128867, at *3–4, *4 n.9 (E.D.N.Y. May 5, 2020) (parties obtained a one-year Italian protection order, father would attend therapy, and visitation would be supervised), aff’d, 833 F. App’x 829 (2d Cir. 2020), cert. granted, 142 S. Ct. 638 (2021).

20. Saada v. Golan, 833 F. App’x 829, 833 (2d Cir. 2020) (quoting Blondin v. Dubois (Blondin II), 238 F.3d 153, 163 n.11 (2001)), cert. granted, 142 S. Ct. 638 (2021).

21. Golan v. Saada, 142 S. Ct. 638 (2021).

22. Golan v. Saada, 142 S. Ct. 1880 (2022).

23. Radu v. Shon, 11 F.4th 1080, 1085 (9th Cir. 2021), cert. petition filed (No. 21-825 Dec. 3, 2021).

24. Id. at 1089.

25. Radu v. Shon, No. CV-20-00246-TUC-RM, 2021 WL 6197905 (D. Ariz. Dec. 30, 2021).

26. Petition for Writ of Certiorari, Shon v. Radu (No. 21-825),

27. Unif. Unregulated Child Custody Transfer Act (Unif. L. Comm’n 2021).

28. Id. §§ 202–03.

29. Id. § 205.

30. Id. §§ 304–06.

31. In re Adoption of W.K., 163 N.E.3d 370 (Ind. Ct. App. 2021) (stepfather could not adopt the deceased wife’s child without the father’s consent where the father was not unfit and had not abandoned his role as parent). But see In re Adoption of K.I., 172 N.E.3d 326, 336–38 (Ind. Ct. App. 2021) (biological father’s consent not required due to his pattern of criminal activity and unstable living situation).

32. Skelton v. Davis, 639 S.W.3d 373, 377–78 (Ark. Ct. App. 2021) (father’s consent to stepfather’s adoption not necessary where father had failed to contact child for over a year); see also In re Adoption of I.B., 163 N.E.3d 270, 276–79 (Ind. 2021) (stepmother could adopt the husband’s child without the mother’s consent where the mother failed to “communicate significantly” with the child for at least a year or to support the child financially).

33. In re Adoption of L.Z., 616 S.W.3d 695 (Ark. Ct. App. 2021) (where mother had failed to tell father about child’s birth, and he had name placed on Putative Father Registry and tried to establish a relationship with the child, his consent to adoption was required); see also In re Adoption of B.G.S., 245 A.3d 700 (Pa. Super. Ct.) (refusing to terminate a father’s rights for nonsupport when he did not know of the child’s existence until the child was more than two months old), appeal denied, 253 A.3d 213 (Pa. 2021).

34. In re Adoption of R.A.H., 172 N.E.3d 1140, 1145–46 (Ohio Ct. App. 2021) (a protection order prohibiting the father from having contact did not by itself justify his lack of contact and support under all the circumstances); see also In re Adoption of A.P., 638 S.W.3d 293, 300–01 (Ark. Ct. App. 2021) (finding failure to provide care and support was not justifiable); In re D.C.C., 168 N.E.3d 26 (Ohio Ct. App. 2021) (incarceration did not constitute justifiable cause to not support).

35. In re Adoption of A.M.P., 623 S.W.3d 571, 576–77 (Ark. 2021).

36. In re Adoption of A.M., 323 So. 3d 509 (Miss. 2021) (finding that biological mother was under a great deal of stress due to job loss and eviction).

37. In re Adoption of S.P., 172 N.E.3d 344, 353–55 (Ind. Ct. App. 2021).

38. In re L.S., 145 N.Y.S.3d 43 (App. Div. 2021).

39. In re Adoption of Yasmin S., 956 N.W.2d 704 (Neb. 2021).

40. In re Adoption of ATWS, 486 P.3d 158 (Wyo. 2021).

41. Guzman v. Guzman, 2021 OK 26, 2021 WL 2102938 (Okla. 2021).

42. J.S.B. v. S.R.V., 630 S.W.3d 693, 695–96 (Ky. 2021).

43. Id. at 699–700.

44. Id. at 701–05 (concluding Obergefell v. Hodges, 576 U.S. 644 (2015), did not change Kentucky law concerning parental waiver).

45. In re Estate of Gallegos, 499 P.3d 1058 (Colo. Ct. App. 2021).

46. See Enactment History, Premarital and Marital Agreements Act (2012), Unif. L. Comm’n,

47. Id.

48. In re Marriage of Sauls & Worley, No. 06-20-00103-CV, 2021 WL 5364775, at *3 (Tex. App. Nov. 18, 2021).

49. Bates v. Bates, No. 3D19-1884, 2021 WL 358188, at *4 (Fla. Dist. Ct. App. Feb. 3, 2021) (stating that “the primary difference between ‘duress’ and ‘coercion’ is the level of compulsion exerted by” the spouse presenting the agreement).

50. Id. at *1–2, *6–7 (the husband was a 41-year-old divorced airline pilot with $4 million in assets; the wife did not speak much English and turned 18 three days before meeting the husband through a website).

51. Andrew B. v. Abbie B., 494 P.3d 522, 525, 539–540 (Alaska 2021) (court should have considered the wife’s level of intoxication on the eve of the wedding when the agreement was presented and if she was capable of understanding it).

52. Id. at 539 (citation omitted).

53. P.M. v. M.M., 144 N.Y.S.3d 312, 317, 321, 328–30 (Sup. Ct. 2021) (husband had over $30 million).

54. Id. at 323–24.

55. Penrod v. Penrod, 624 S.W.3d 905 (Mo. Ct. App. 2021).

56. Grabe v. Hokin, 267 A.3d 145, 154 (Conn. 2021) (the alleged unforeseen changes included that the parties had three children, the husband’s house was destroyed by a fire, a yacht club was destroyed by a hurricane, and a business failed).

57. Id. at 153, 157 n.23, 161 (citation omitted).

58. Estate of Renwick v. Renwick, 248 A.3d 577 (Pa. Super. Ct. 2021).

59. Williams-Paris v. Joseph, 329 So. 3d 775, 781–83 (Fla. Dist. Ct. App. 2021).

60. Oleiwi v. Shlahi, 156 N.Y.S.3d 825 (Sup. Ct. 2021).

61. Hershkowitz v. Levy, 139 N.Y.S.3d 617, 620 (App. Div. 2021).

62. Id. at 621.

63. Savignano v. Savignano, 148 N.Y.S.3d 473, 477 (App. Div. 2021).

64. In re Marriage of Prill, 2021 IL App (1st) 200516, 2021 WL 4025076, at *5–8 (2021).

65. Wills v. Wills, 853 S.E.2d 536, 541–44 (Va. Ct. App. 2021), aff’d, 870 S.E.2d 314 (Va. 2022).

66. Pardes v. Pardes, 335 So. 3d 1241 (Fla. Dist. Ct. App. 2021).

67. Stark v. Dinarany, 865 S.E.2d 440, 446–48 (Va. Ct. App. 2021).

68. Steele v. Steele, 253 A.3d 1190, 1193 (N.J. Super Ct. App. Div.), certification denied, 258 A.3d 348 (N.J. 2021).

69. Id. at 1195–97, 1205.

70. Fla. Stat. Ann. § 61.08(4) (West).

71. Id. § 61.08(8).

72. Taylor v. Davis, 324 So. 3d 570, 572, 573 (Fla. Dist. Ct. App. 2021).

73. Levy v. Levy, 862 So. 2d 48, 51 (Fla. Dist. Ct. App. 2021) (per curiam).

74. Speigner v. Speigner, 312 So. 3d 1289 (Fla. Dist. Ct. App. 2021).

75. Burke v. Burke, 330 So. 3d 84, 85 & n.1 (Fla. Dist. Ct. App. 2021) (upholding an award of permanent periodic alimony of $2,500 a month).

76. Oudheusden v. Oudheusden, 259 A.3d 598, 603–08 (Conn. 2021).

77. Rabadan v. Radadan, 322 So. 3d 660, 662 (Fla. Dist. Ct. App. 2021).

78. In re Marriage of Leaver, 499 P.3d 222, 223, 227–29 (Wash. Ct. App. 2021).

79. Cherry v. Cherry, 617 S.W.3d 692, 695, 698 (Ark. 2021).

80. Boyce v. Jarvis, 490 P.3d 320 (Wyo. 2021) (applying Connecticut law because of choice of law provision in separation agreement, Wyoming court found ex-husband did not show change of circumstances).

81. Tanner v. Tanner, 330 So. 3d 567 (Fla. Dist. Ct. App. 2021).

82. Valby v. Valby, 317 So. 3d 147, 150–51 (Fla. Dist. Ct. App. 2021).

83. Id. at 152 (citation omitted) (remanding because trial court failed to include an evidentiary basis for excluding expenses on ex-wife’s financial affidavit).

84. Braswell v. Braswell, 336 So. 3d 1121 (Miss. Ct. App. 2021).

85. Dolan v. Dolan, 165 N.E.3d 662, 668 (Mass. App. Ct.), review denied, 168 N.E.3d 795 (Mass. 2021).

86. Gibbs v. Gibbs, 320 So. 3d 870, 872 (Fla. Dist. Ct. App. 2021).

87. E.g., McQuarrie v. McQuarrie, 496 P.3d 44, 48 (Utah 2021).

88. E.g., Klokow v. Klokow, 323 So. 3d 817, 822 (Fla. Dist. Ct. App. 2021) (under Florida statutory law, alimony recipient’s “supportive relationship” with someone else may provide grounds for reducing or terminating alimony).

89. Schott v. Schott, 256 A.3d 732, 734 (Conn. App. Ct. 2021).

90. McFarland v. McFarland, 493 P.3d 1146, 1153–54 (Utah Ct. App. 2021) (alimony obligation did not end automatically when recipient cohabited).

91. Marshall v. Marshall, No. 2200187, 2021 WL 3236543, at *10 (Ala. Civ. App. July 30, 2021); see also Taormina v. Taormina, 639 S.W.3d 482, 490–91 (Mo. Ct. App. 2021) (terminating maintenance where wife’s new relationship was permanent substitute for marriage).

92. Marshall, 2021 WL 3236543, at *3, 10.

93. Temple v. Temple, 258 A.3d 1109, 1112 (N.J. Super. Ct. App. Div. 2021) (citation omitted).

94. Id. at 1113–16 (ex-wife and companion had lived together, were in a relationship for 14 years, and traveled together); see also In re Marriage of Aspan, 2021 IL App (3d) 190144, 2021 WL 1138012 (2021) (terminating alimony when ex-wife moved in with boyfriend and they pooled resources and traveled together).

95. Mengel v. Mengel, 2021-Ohio-4166, 2021 WL 5500702 (Ct. App. Nov. 24, 2021).

96. In re Marriage of Andres, 2021 IL App (2d) 191146, 2021 WL 3578341, at *8 (2021) (citation omitted).

97. Id. at *5, 9 (ex-husband owed arrearages of $29,608).

98. In re Marriage of Dynako, 2021 IL 126835, 2021 WL 5366797 (2021).

99. Vanderveer v. Vanderveer, 964 N.W.2d 694, 713 (Neb. 2021).

100. Sirgutzot v. Sirgutz, 319 So. 3d 39, 42–44 (Fla. Dist. Ct. App. 2021).

101. In re P.H.R., 495 P.3d 38, 42–43 (Mont. 2021).

102. In re Marriage of Penafiel, 633 S.W.3d 36, 47 (Tex. App. 2021).

103. Family Law Arbitration Act (2016), Unif. L. Comm’n,

104. Singh v. Singh, 863 S.E.2d 330, 333–34 (S.C. 2021).

105. Joselyn P. v. Joshua P., 250 A.3d 373, 381 (Md. Ct. Spec. App. 2021).

106. Id. at 380.

107. Id.

108. Loeb v. Vergara, 313 So. 3d 346, 392 (La. Ct. App.), writ denied, 313 So. 3d 1257 (La. 2021). The court also found that Loeb was not domiciled in Louisiana. Id. at 376.

109. LeFever v. Matthews, 971 N.W.2d 672, 676–77 (Mich. Ct. App. 2021). The birth mother was allowed parenting time as a “third party.” Id. at 678. The children were born and the parties separated before the Supreme Court’s decision in Obergefell v. Hodges, 576 U.S. 644 (2015). LeFever, 971 N.W.2d at 676.

110. LeFever, 971 N.W.2d at 678–85.

111. Potts v. Potts, No. M2020-00170-COA-R3-CV, 2021 WL 2226622 (Tenn. Ct. App. June 2, 2021).

112. Rosemarie P. v. Kelly B., 504 P.3d 260, 264–66 (Alaska 2021).

113. Gatsby v. Gatsby, 495 P.3d 996, 1001–10 (Idaho 2021), cert. denied, No. 21-1212, 2022 WL 1528392 (U.S. May 16, 2022); see also Cook v. Sullivan, 330 So. 3d 152 (La. 2021).

114. Gatsby, 495 P.3d at 1010 (Stegner, J., dissenting).

115. Harrison v. Harrison, 643 S.W.3d 376, 382–83 (Tenn. Ct. App. 2021), appeal denied (Feb. 10, 2022).

116. Id. at 385.

117. In re Schnitzer, 493 P.3d 1071 (Or. Ct. App. 2021), review allowed, 498 P.3d 807 (Or. Nov. 24, 2021).

118. In re P.G.F., 247 A.3d 955 (Pa. 2021).

119. Id. at 964.

120. Id.

121. Id.

122. Id. at 959, 967–68. There were two dissenting opinions. Id. at 970 (Donohue, J., dissenting), 975 (Wecht, J., dissenting).

123. Lorain Cnty. Bar Ass’n v. Berta, 172 N.E.3d 146, 149–50 (Ohio 2021).

124. In re Marriage of Andres, 2021 IL App (2d) 191146, ¶ 79 (2021).

125. Id. ¶¶ 80–84.

126. Disciplinary Counsel v. Porter, 182 N.E.3d 1188, 1196 (Ohio 2021) (per curiam).

127. In re Disciplinary Procs. v. Ritland, 957 N.W.2d 540, 547 (Wis. 2021).

128. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Newport, 955 N.W.2d 176, 178 (Iowa 2021).

129. In re Resignation of Federle, 183 N.E.3d 1217, 1219 (Ohio 2021) (Fischer, J., dissenting).

130. In re Ayesh, 485 P.3d 1155, 1172 (Kan. 2021) (per curiam).

131. Id. at 1173

132. In re Bowen, 252 A.3d 300, 308 (Vt. 2021).

133. Graziano v. Andzel-Graziano, 151 N.Y.S.3d 506 (App. Div. 2021).

134. A.M.P. v. Benjamin, 158 N.Y.S.3d 337 (App. Div. 2021).

135. Budd v. Walker, 491 P.3d 1273 (Kan. 2021).

136. Knapp v. Ginsberg, 282 Cal. Rptr. 3d 403 (Ct. App. 2021).

137. Unif. Child Custody Jurisdiction & Enf’t Act (UCCJEA) § 102(4) (Unif. L. Comm’n 1997).

138. In re Z.H., 859 S.E.2d 399, 409–10 (W. Va. 2021).

139. Id. at 412–14.

140. In re A.W., 493 P.3d 298, 306 (Kan. Ct. App. 2021).

141. Id. at 308.

142. In re Saida A., 143 N.Y.S.3d 501 (Fam. Ct. 2021).

143. People in Int. of S.A.G., 487 P.3d 677, 682–84 (Colo. 2021).

144. Id. at 684–88. See also People in Int. of B.H., 488 P.3d 1026, 1036–37 (Colo. 2021).

145. In re V.B.N.S., 495 P.3d 1245, 1248 (Or. 2021).

146. Id. at 1254–55.

147. Id. at 1256 (citation omitted).

148. Id. at 1257.

149. In re P.C., 171 N.E.3d 808, 831–34 (Ohio Ct. App. 2021).

150. Macklin v. Ark. Dep’t Hum. Servs., 624 S.W.3d 869 (Ark. 2021).

151. In re Custody of H.J., 184 N.E.3d 1110 (Ill. App. Ct. 2021).

152. In re Dependency of C.R.O’F., 493 P.3d 1235 (Wash. Ct. App. 2021) (not allowing her to intervene prevented her from showing she was a de facto parent).

153. In re J.E.B., 853 S.E.2d 424, 429 (N.C. 2021).

154. Id. at 428–30.

155. N.J. Div. Child Prot. & Perm. v. D.H., 262 A.3d 427, 431 (N.J. Super. Ct. App. Div. 2021), certification denied, No. 086209, 2022 WL 1115114 (N.J. Apr. 28, 2022).

156. In re Int. of T.H., 494 P.3d 851 (Kan. Ct. App. 2021).

157. In re Welfare of Child of K.K., 964 N.W.2d 915, 920–21 (Minn. 2021).

158. Id. at 923–24.

159. Id. at 925–26.

160. UCCJEA §§ 201 & cmt., 204.

161. Veneskey v. Sulier, No. 355471, 2021 WL 3821012 (Mich. Ct. App. Aug. 26, 2021), appeal denied, 967 N.W.2d 71 (Mich. 2021).

162. John B. v. Talia K., 160 N.Y.S.3d 544 (Fam. Ct. 2021).

163. UCCJEA § 202.

164. Swanson v. Perez-Swanson, 259 A.3d 39 (Conn. App. Ct. 2021).

165. A.M. v. Superior Ct., 277 Cal. Rptr. 3d 594 (Ct. App. 2021) (family court lacked jurisdiction to hear grandparents’ (the deceased father’s parents’) visitation petition after mother and child left state).

166. Hogan v. Hogan, 954 N.W.2d 868 (Neb. 2021).

167. De Almeida-Kennedy v. Kennedy, 262 A.3d 872, 877–78 (Conn. App. Ct. 2021).

168. Id. at 883 (citation omitted; emphasis removed); see also In re M.R.F.-C., 158 N.E.3d 688, 695, 697 (Ohio App. 2020).

169. Hubert v. Carmony, 494 P.3d 592 (Ariz. Ct. App. 2021).

170. Alden v. Yarborough, 862 S.E.2d 148, 151 (Ga. Ct. App. 2021).

171. In re Marriage of Margain & Ruiz-Bours, 485 P.3d 1079, 1082–85 (Ariz. Ct. App. 2021). This case had a complex factual and procedural history. Id. at 1081–82.

172. Id. at 1087.

173. In re Marriage of Wang & Zhou, 277 Cal. Rptr. 3d 302, 309–11 (Ct. App. 2021).

174. Pokrovskaya v. Genderen, 487 P.3d 228, 231–32 (Wyo. 2021).

175. Id. at 232.

176. Id. at 233.

177. Unif. Child Abduction Prevention Act (UCAPA) § 5(b) (Unif. L. Comm’n 2006).

178. Prefatory Note, UCAPA.

179. Kostreva v. Kostreva, Nos. 352029, 353316, 2021 WL 2600813 (Mich. Ct. App. June 24, 2021).

180. Id. at *2, *7.

181. Id. at *2–4, 11–13.

182. Taylor v. Francis, 620 S.W.3d 308, 311–12 (Mo. Ct. App. 2021).

183. Tedford v. Tedford, 312 So. 3d 420, 426 (Miss. Ct. App. 2021).

184. Noble v. Superior Ct., 286 Cal. Rptr. 3d 522, 534 (Ct. App. 2021).

185. E.C.S. v. M.C.S., 256 A.3d 449, 458–60 (Pa. Super. Ct. 2021).

186. Russell v. Self, 334 So. 3d 229, 235 (Ala. Civ. App. 2021).

187. Vega v. Delgado, 145 N.Y.S.3d 907, 908 (App. Div. 2021) (quoting N.Y. Comp. Codes R. & Regs. tit. 22, § 7.2(d)(3)).

188. Johnshoy v. Johnshoy, 961 N.W.2d 282, 287 (N.D. 2021).

189. Id.

190. Franklin v. Franklin, 158 N.Y.S.3d 137, 139 (App. Div. 2021) (citations omitted); see also B.S. v. A.S., 160 N.Y.S.3d 802, 814 (Sup. Ct. 2021).

191. Franklin, 158 N.Y.S.3d at 139.

192. Perry v. Jenkins, 862 S.E.2d 734 (Ga. Ct. App. 2021); see also Christina E. v. Clifford F., 160 N.Y.S.3d 124 (App. Div. 2021) (mother given primary residency); Johnson v. Smith, 328 So. 3d 145 (Miss. Ct. App.) (awarding father physical custody where mother had moved more than 45 miles away and child had close ties to father, extended family on both sides, and friends), cert. denied, 328 So. 3d 1253 (Miss. 2021).

193. Coleman v. Bembridge, 263 A.3d 403, 414–15 (Conn. App. Ct. 2021).

194. Id. at 418.

195. Id. at 407, 411, 419.

196. Wolf v. Oestreich, 956 N.W.2d 248, 253–54 (Minn. Ct. App. 2021), review denied (May 18, 2021).

197. Pontillo v. Johnson-Kosiorek, 152 N.Y.S.3d 204, 205 (App. Div. 2021).

198. Id.

199. Seymour v. Seymour, 263 A.3d 1079, 1082–83 (Me. 2021).

200. Id. at 1086.

201. Burch v. Lipscomb, 638 S.W.3d 460, 464 (Ky. Ct. App. 2021), review denied (Feb. 16, 2022).

202. In re Marriage of Crouch, 490 P.3d 1087, 1092 (Colo. Ct. App. 2021), cert. denied, No. 21SC122, 2021 WL 3713274 (Colo. Aug. 16, 2021).

203. Mercedes E.H. v. Dexter R.N., 154 N.Y.S.3d 48, 49 (App. Div. 2021).

204. Ellen H. v. Joseph H., 147 N.Y.S.3d 732, 735 (App. Div. 2021) (awarding mother primary physical custody and sole legal custody).

205. Paul Y. v. Patricia Z., 137 N.Y.S.3d 836, 841 (App. Div. 2021).

206. Christie BB. v. Isaiah CC., 149 N.Y.S.3d 280, 284 (App. Div. 2021).

207. Kerzmann v. Kerzmann, 965 N.W.2d 427, 430–31 (N.D. 2021).

208. Fuller v. Fuller, 324 So. 3d 1103, 1114–15 (La. Ct. App.) (affirming custody modification order but remanding for court to devise parenting plan that allowed the children’s frequent and continuing contact with their mother), writ of cert. denied, 324 So. 3d 621 (La. 2021).

209. Johnshoy v. Johnshoy, 961 N.W.2d 282, 286–87 (N.D. 2021).

210. Leah V. v. Jose U., 150 N.Y.S.3d 133 (App. Div. 2021).

211. In re P.H.R., 495 P.3d 38, 42 (Mont. 2021).

212. Id. at 41.

213. Sukul v. Sukul, 151 N.Y.S.3d 684, 686 (App. Div. 2021).

214. Id. at 687.

215. Taylor-Couchman v. DeWitt-Couchman, 964 N.W.2d 320, 336 (Neb. Ct. App. 2021) (father granted custody where mother tried to thwart father’s and daughter’s relationship; mother’s “moral character” was considered as well as father’s alleged history of domestic abuse), review denied (Aug. 25, 2021).

216. Brazil v. Williams, 859 S.E.2d 490, 494 (Ga. Ct. App. 2021).

217. See Burton v. Schlegel, 954 N.W.2d 645 (Neb. Ct. App. 2021) (modifying child custody to allow removal of child from Nebraska to be in father’s physical custody in Utah). But see Korth v. Korth, 958 N.W.2d 683 (Neb. 2021) (finding relocation not in children’s best interests and modifying order to award father sole physical custody).

218. Gutierrez v. Bradley, 500 P.3d 984, 988–89 (Wyo. 2021).

219. Id. at 988 (citation omitted).

220. Id. at 990–991.

221. People in Interest of J.G., 486 P.3d 504, 509–12 (Colo. Ct. App. 2021), cert. denied sub nom. A.M. v. People in Int. of J. G., No. 21SC312, 2021 WL 2189038 (Colo. May 24, 2021), and cert. denied sub nom. A.M. v. Colorado, 142 S. Ct. 1377 (2022).

222. Id. at 512.

223. Summers v. Gros, 319 So. 3d 479, 489 (Miss. 2021).

224. Walker v. Riley, 498 P.3d 33, 40 (Wash. Ct. App. 2021).

225. Burgess v. Chase, 629 S.W.3d 826 (Ky. Ct. App. 2021).

226. Id. at 832.

227. Id. at 832–33.

228. In re Visitation of B.A.A., 173 N.E.3d 689 (Ind. Ct. App. 2021).

229. Muchow v. Kohler, 966 N.W.2d 910, 912 (N.D. 2021).

230. Lindblad v. Lindblad, 962 N.W.2d 545, 558–60 (Neb. 2021).

231. In re Visitation of L.M., 859 S.E.2d 271, 285 (W. Va. Ct. App. 2021).

232. Romero v. McVey, 167 N.E.3d 361, 367 (Ind. Ct. App. 2021).

233. Alexander v. Alexander, 856 S.E.2d 136, 142–43 (N.C. Ct. App.), review denied, 865 S.E.2d 876 (N.C. 2021), and appeal dismissed, review denied, 865 S.E.2d 876 (N.C. 2021).

234. Wentz v. Wideman, 175 N.E.3d 628 (Ohio Ct. App. 2021).

235. E.N. v. T.R., 255 A.3d 1, 30 (Md. 2021); see also B.O. v. S.O., 259 A.3d 228 (Md. Ct. Spec. App. 2021) (where fit mother did not consent to aunt having a parent-like relationship, the aunt was not a de facto parent).

236. E.N., 255 A.3d at 5–6.

237. In re Custody of S.A.-M., 489 P.3d 259 (Wash. Ct. App.), review denied, 497 P.3d 383 (Wash. 2021), and cert. denied sub nom. Alvarez v. Pinon, 142 S. Ct. 1232 (2022).

238. Cook v. Sullivan, 330 So. 3d 152, 158–59 (La. 2021).

239. Skinner v. Miles, 863 S.E.2d 578 (Ga. Ct. App. 2021).

240. Martin v. MacMahan, 264 A.3d 1224, 1228, 1236 (Me. 2021).

241. John U. v. Sara U., 150 N.Y.S.3d 790 (App. Div. 2021) (remanding for a hearing).

242. Heffer v. Krebs, 152 N.Y.S.3d 467 (App. Div. 2021).

243. Bruno v. Moreno, 325 So. 3d 299 (Fla. Dist. Ct. App. 2021).

244. J.G.H. v. J.H., 318 So. 3d 632, 634, 635 (Fla. Dist. Ct. App. 2021).

245. MJ v. CR, 496 P.3d 501, 519 (Haw. Ct. App. 2021) (citation omitted), cert. rejected, No. SCWC-17-0000696, 2021 WL 5769954 (Haw. Dec. 6, 2021).

246. Monteith v. Monteith, 255 A.3d 1030, 1037 (Me. 2021).

247. Id. at 1039, 1040 n.10.

248. Schaberg v. Schaberg, 637 S.W.3d 512, 521–22 (Mo. Ct. App. 2021) (citing Obergefell v. Hodges, 576 U.S. 644 (2015), & Pavan v. Smith, 137 S. Ct. 2075 (2017) (per curiam)).

249. Id. at 521–23 (same-sex spouse could seek custody and child support as presumed parent).

250. Scott v. Adrat, 151 N.Y.S.3d 431, 433 (App. Div. 2021).

251. In re Marriage of Dahm-Schell & Schell, 185 N.E.3d 1269 (Ill. 2021).

252. Jefferson v. Jefferson, 327 So. 3d 1085 (Miss. Ct. App. 2021).

253. Quamme v. Quamme, 967 N.W.2d 452, 455–56 (N.D. 2021).

254. Franco v. Eagle, 864 S.E.2d 675, 678 (Ga. Ct. App. 2021).

255. Id. at 679.

256. Snowden v. Jaure, 495 P.3d 882 (Wyo. 2021).

257. Faulk v. Faulk, 166 N.E.3d 939, 945 (Ind. Ct. App.), transfer denied, 171 N.E.3d 614 (Ind. 2021).

258. Nadeau v. Reeves, 328 So. 3d 1001 (Fla. Dist. Ct. App. 2021).

259. Lockhart v. Lockhart, 863 S.E.2d 174 (Ga. Ct. App. 2021); In re Marriage of Sinha, 2021 IL App (2d) 191129 ¶¶ 41–47 (remanded for new determination).

260. Weaver v. Weaver, 156 N.Y.S.3d 474, 477 (App. Div. 2021) (citation omitted).

261. In re Marriage of Yabush, 2021 IL App (1st) 201136 (Dec. 22, 2021).

262. Castelli v. Maiuri-Castelli, 156 N.Y.S.3d 273 (App. Div. 2021).

263. Hilbrands v. Hilbrands, 320 So. 3d 938 (Fla. Dist. Ct. App. 2021).

264. Langley v. Langley, 959 N.W.2d 291, 295–96 (Neb. Ct. App. 2021).

265. Scofield v. Scofield, No. 2200514, 2021 WL 4234161 (Ala. Civ. App. Sept. 17, 2021).

266. Stephens v. Stephens, 328 So. 3d 760 (Miss. Ct. App. 2021); see also Solomon M. v. Adelaide M., 142 N.Y.S.3d 542 (App. Div. 2021) (not modifying support where father was unemployed at time of stipulation but employed at time of filing the petition); Arrington v. Arrington, 316 So. 3d 417, 420 (Fla. Dist. Ct. App. 2021) (not modifying where father failed to show the “reduction in income was permanent”).

267. Anthony L. v. Bernadette R., 148 N.Y.S.3d 18 (App. Div. 2021).

268. Pace v. Pace, 324 So. 3d 369, 377–78 (Miss. Ct. App. 2021).

269. Graziano v. Andzel-Graziano, 151 N.Y.S.3d 506, 509–10 (App. Div. 2021).

270. Dep’t Child. & Fam. Servs. v. Laflamme, 327 So. 3d 999 (La. Ct. App. 2021).

271. Nassau Cnty. Dep’t Soc. Servs. v. Ablog, 149 N.Y.S.3d 109 (App. Div. 2021).

272. Chalmers v. Burrough, 494 P.3d 128, 133 (Kan. 2021) (quoting UIFSA § 601 cmt.); see also Ball v. Ball, 638 S.W.3d 543, 549–50 (Mo. Ct. App. 2021) (father’s failure to “include an authenticated, certified copy of the entire [out-of-state] judgment in his petition to register” did not deprive court of subject matter jurisdiction).

273. Halterman v. Halterman, 855 S.E.2d 812 (N.C. Ct. App. 2021).

274. Prefatory Note, Unif. Cohabitants’ Econ. Remedies Act (Unif. L. Comm’n 2021).

275. Manley v. McKinney, 496 P.3d 663 (Or. Ct. App.), review denied, 499 P.3d 1286 (Or. 2021).

276. McKenzie v. Berkovitch, 145 N.Y.S.3d 178 (App. Div. 2021).

277. Senjab v. Alhulaibij, 497 P.3d 618, 619 (Nev. 2021).

278. Evans-Freke v. Evans-Freke, 75 V.I. 407, 415–16 (2021).

279. Id. at 420.

280. Id. at 420, 423.

281. Travis A. v. Vilma B., 153 N.Y.S.3d 674, 676 (App. Div. 2021) (parties met online and dated about a year but separated two weeks after wedding).

282. Stephenson v. Stephenson, 332 So. 3d 360, 363 (Miss. Ct. App. 2021).

283. Id.

284. Roley v. Roley, 329 So. 3d 473, 491–92 (Miss. App. Ct.), cert. denied, 329 So. 3d 1200 (Miss. 2021).

285. Id. at 493.

286. Rankin v. Rankin, 323 So. 3d 1073 (Miss. 2021) (upholding denial of cruel and inhuman treatment ground).

287. Marinaro v. Marinaro, 861 S.E.2d 69 (Va. Ct. App. 2021).

288. Bilger v. Bilger, 963 N.W.2d 269, 271–72 (N.D. 2021) (citing 50 U.S.C. § 3932(b)).

289. Mucha v. Wagner, 861 S.E.2d 501 (N.C. 2021).

290. J.F. v. D.F., 154 N.Y.S.3d 748 (Table), 2021 WL 5184338, at *3 (Sup. Ct. Oct. 22, 2021).

291. In re Marriage of Reichental, 288 Cal. Rptr. 3d 411, 414, 418–19 (Ct. App. 2021).

292. Seivert v. Alli, 959 N.W.2d 777, 786–88 (Neb. 2021).

293. Malousek v. Meyer, 962 N.W.2d 676, 681, 696 (Neb. 2021).

294. LaFleur v. Pyfer, 479 P.3d 869, 879–83 (Colo. 2021) (common law marriage found).

295. Hogsett v. Neale, 478 P.3d 713, 724 n.9 (Colo. 2021); LaFleur, 479 P.3d at 883–85.

296. Hogsett, 478 P.3d at 725–26 (capitalization omitted).

297. In re Estate of Yudkin, 478 P.3d 732, 734 (Colo. 2021) (citation omitted).

298. Id. at 737 (citation omitted).

299. Id. (citation and internal brackets and ellipses omitted).

300. Swicegood v. Thompson, 865 S.E.2d 775, 776 (S.C. 2021).

301. Faulk v. Faulk, 166 N.E.3d 939, 942–44 (Ind. Ct. App.), transfer denied, 171 N.E.3d 614 (Ind. 2021).

302. In re E.C.D., 632 S.W.3d 474, 482 (Mo. Ct. App. 2021).

303. Gomes v. Candido, 173 N.E.3d 769 (Mass. App. Ct. 2021) (reversing where court did not properly consider whether changing three-year-old twins’ surname to father’s would be in their best interests).

304. In re Doe, 484 P.3d 195, 200–02 (Idaho 2021) (finding evidence supported magistrate determination that adding father’s name could “increase [the child’s] socioeconomic status and promote more bonding between” the child and the father).

305. Matter of DZ, 156 N.Y.S.3d 651, 656 (Sup. Ct. 2021).

306. Id. at 654, 657.

307. Lockhart v. Higgins, No. M202001370COAR3CV, 2021 WL 3485913 (Tenn. Ct. App. Aug. 9, 2021); see also K.G. v. M.E., No. 2200716, 2021 WL 5751848 (Ala. Civ. App. Dec. 3, 2021) (father failed to show best interest of the child, just his interests in changing child’s surname to his from mother’s); Gomes v. Candido, 173 N.E.3d 769 (Mass. App. Ct. 2021).

308. Interest of G.L.H., 630 S.W.3d 309, 315–316 (Tex. Ct. App. 2021), review denied (June 18, 2021).

309. Id. at 315.

310. In re A.B., 164 N.E.3d 167 (Ind. Ct. App. 2021).

311. In re H.S., 175 N.E.3d 1184, 1188 (Ind. Ct. App.), transfer denied, 178 N.E.3d 798 (Ind. 2021).

312. In re K.L., 258 A.3d 932, 957–61 (Md. Spec. Ct. App. 2021).

313. Enactment History, Parentage Act, Unif. L. Comm’n,

314. Ex parte Z.W.E., 335 So. 3d 650 (Ala. 2021) (per curiam).

315. BJ v. KM, 481 P.3d 1138, 1141 (Wyo. 2021) (citation omitted).

316. Castillo v. Rodriguez, 332 So. 3d 1050 (Fla. Dist. Ct. App. 2021).

317. Scott v. Benson, 501 P.3d 1148 (Utah Ct. App. 2021), cert. granted, 509 P.3d 196 (Utah 2022).

318. Johnson v. Edelstein in & for Cnty. of Maricopa, 501 P.3d 742 (Ariz. Ct. App. 2021).

319. Roger S. v. James S., 495 P.3d 327 (Ariz. Ct. App. 2021).

320. Wetta v. Wetta, 322 So. 3d 365 (La. Ct. App.), writ denied, 326 So. 3d 255 (La. 2021).

321. In re K.M.C., 172 N.E.3d 439, 446–47 (Ohio Ct. App. 2021).

322. Ryan M.E. v. Shelby S., 140 N.Y.S.3d 649, 652 (App. Div. 2021).

323. Montgomery Cnty. Dep’t Soc. Servs. v. Trini G., 149 N.Y.S.3d 667 (App. Div. 2021).

324. Corey D. v. Travis R., 858 S.E.2d 857, 860, 863–65 (W. Va. 2021).

325. In re W.W., 265 A.3d 1160, 1163 (Md. Ct. Spec. App. 2021).

326. Friday v. Miss. Dep’t Hum. Servs., 325 So. 3d 1200 (Miss. Ct. App. 2021).

327. People in Interest of K.L.W., 492 P.3d 392, 395–99 (Colo. Ct. App. 2021), cert. denied, No. 21SC364, 2021 WL 3278184 (Colo. July 26, 2021).

328. Id. at 399–403.

329. Id. at 401.

330. Priesmeyer v. Huggins, 637 S.W.3d 274 (Ark. Ct. App. 2021).

331. Hattaway v. Coulter, No. 2200502, 2021 WL 5984147 (Ala. Civ. App. Dec. 17, 2021).

332. Long v. Long, 642 S.W.3d 803, 821–22 (Tenn. Ct. App. 2021), appeal denied (Feb. 10, 2022).

333. In re Marriage of Niemi, 496 P.3d 305 (Wash. Ct. App. 2021).

334. See Me. Rev. Stat. Ann. tit. 19-A, § 953(10); N.Y. Dom. Rel. Law § 236(5)(d)(15).

335. Marks v. Shafton, 326 So. 3d 861, 864 (Fla. Dist. Ct. App. 2021) (citation omitted); see also Murphy v. Murphy, 313 So. 3d 237 (Fla. Dist. Ct. App. 2021) (court failed to classify husband’s contributions to his retirement plan after the date of filing for dissolution to identify the nonmarital assets).

336. Fischer v. Fischer, 505 P.3d 56, 62 (Utah Ct. App. 2021).

337. In re Marriage of Kelpe, 278 Cal. Rptr. 3d 464 (Ct. App. 2021) (cash payment ex-husband received after dissolution upon leaving employment was his separate property).

338. Rosen v. Rosen, 142 N.Y.S.3d 609 (App. Div. 2021) (wife not entitled to percentage of business).

339. Potvin v. Potvin, 147 N.Y.S.3d 584, 588 (App. Div. 2021).

340. In re Marriage of Zander, 480 P.3d 676, 678 (Colo. 2021).

341. In re Marriage of Blaine, 480 P.3d 691 (Colo. 2021).

342. Baughman v. Baughman, 173 N.E.3d 938 (Ohio Ct. App. 2021).

343. Palmer v. Palmer, 316 So. 3d 411, 416 (Fla. Dist. Ct. App. 2021).

344. Andrews v. Andrews, 504 P.3d 924, 928 (Ariz. Ct. App. 2021).

345. Johnson v. Johnson, 181 N.E.3d 364, 372–74 (Ind. Ct. App. 2021).

346. Blair v. Blair, 642 S.W.3d 150, 156 (Tex. Ct. App. 2021) (realty purchased before marriage was separate); Ramadan v. Ramadan, 150 N.Y.S.3d 365, 368–69 (App. Div. 2021) (husband was entitled to a separate property credit for part of the downpayment on marital property that was traceable to his separate bank account from before the marriage).

347. Van Nguyen v. Pham, 640 S.W.3d 266, 271–73 (Tex. Ct. App. 2021) (husband did not “clearly trace” real property as separate, so it was community), review denied (Feb. 11, 2022); Cloud v. Cloud, 327 So. 3d 1059, 1062–63 (La. Ct. App. 2021) (husband rebutted presumption that his interest in an LLC formed during the marriage was community property).

348. Roth v. Roth, 312 So. 3d 1021, 1025–26 (Fla. Dist. Ct. App. 2021).

349. Ramsey v. Ramsey, 958 N.W.2d 447, 455 (Neb. Ct. App. 2021) (husband’s equity in the home at the time of marriage was traceable and separate).

350. In re Marriage of Ramsey & Holmes, 282 Cal. Rptr. 3d 622, 625, 629 (Ct. App. 2021) (court “erred by using the total amount of the mortgage payments when calculating the community property interest”; the portion of payments that “went to interest, taxes, and insurance rather than to principal . . . cannot be used when determining the community property percentage share”).

351. Eis v. Eis, 965 N.W.2d 19, 23–24 (Neb. 2021).

352. Wasyluszko v. Wasyluszko, 250 A.3d 271, 275 (Md. Ct. Spec. App. 2021); see also Kelly v. Kelly, 634 S.W.3d 335, 349–52 (Tex. Ct. App. 2021) (remanding for new property distribution where husband proved by clear and convincing evidence that a portion of his 401(k) was his separate property).

353. In re Marriage of Miller, 966 N.W.2d 630, 633 (Iowa 2021).

354. Marks v. Shafton, 326 So. 3d 861, 865 (Fla. Dist. Ct. App. 2021).

355. Id. at 864, 866–67.

356. Herr v. Herr, 496 P.3d 886 (Idaho 2021).

357. Purvis v. Purvis, 867 S.E.2d 700, 704 (N.C. Ct. App. 2021).

358. Conti v. Conti, 967 N.W.2d 10, 16–17 (S.D. 2021).

359. Roth v. Roth, 312 So. 3d 1021, 1026 (Fla. Dist. Ct. App. 2021) (citation omitted).

360. Seivert v. Alli, 959 N.W.2d 777, 788–92 (Neb. 2021).

361. Davenport v. Davenport, 158 N.Y.S.3d 116, 120 (App. Div. 2021) (citation omitted).

362. Id.

363. Johnson v. Johnson, 635 S.W.3d 368, 372–73 (Ark. Ct. App. 2021).

364. Cornwell v. Cornwell, 959 N.W.2d 243, 248–49 (Neb. 2021).

365. Hammond v. Hammond, 327 So. 3d 173, 179 (Miss. Ct. App. 2021).

366. Calvin C. v. Amelia A., 173 N.E.3d 24, 35–37 (Mass. App. Ct. 2021).

367. Id. at 37–38 (citation omitted).

368. Verzal v. Verzal, 962 N.W.2d 563, 567 (Neb. Ct. App. 2021) (citation omitted).

369. Id. (citation omitted).

370. Id. at 566–67.

371. Chandler v. Chandler, 616 S.W.3d 279, 287 (Ark. Ct. App. 2021).

372. Lageman v. Lageman, 313 So. 3d 1075, 1081 (Miss. Ct. App. 2021).

373. Hein v. Hein, 972 N.W.2d 337 (Mich. Ct. App. 2021).

374. In re Marriage of Denning & Stokes, No. 14-19-00646-CV, 2021 WL 3577731, at *3 (Tex. Ct. App. Aug. 10, 2021).

375. Yourko v. Yourko, 866 S.E.2d 588, 598–99 (Va. Ct. App. 2021).

376. Id. at 599–600 (citing Howell v. Howell, 137 S. Ct. 1400 (2017)).

377. Jordan v. Jordan, 480 P.3d 626, 638 (Alaska 2021).

378. Aubert v. Wilson, 483 P.3d 179, 188–90, 192 (Alaska 2021) (citation omitted).

379. Jagnow v. Jagnow, 258 A.3d 468 (Pa. Super. Ct. 2021).

380. Corrales v. Corrales, 320 So. 3d 217, 220 (Fla. Dist. Ct. App. 2021) (citation omitted).

381. Id.

382. Ramadan v. Ramadan, 150 N.Y.S.3d 365, 370 (App. Div. 2021).

383. Snyder v. Snyder, 495 P.3d 876, 879 (Wyo. 2021).

384. Id. at 881.

385. Olofson v. Olofson, 625 S.W.3d 419 (Mo. 2021) (en banc).

386. Robirds v. Robirds, 499 P.3d 431, 442 (Idaho 2021).

387. Id. at 435, 441–42.

388. Hilton v. Hilton, 496 P.3d 839, 840, 843 (Idaho 2021).

389. Id. at 843–44.

390. Robinson v. Mitchell, 323 So. 3d 982 (La. Ct. App.), writ denied, 328 So. 3d 80 (La. 2021).

391. Vasiu v. Berg, 145 N.Y.S.3d 83, 85 (App. Div. 2021).

392. Mason v. Mason, 497 P.3d 431, 453 (Wash. Ct. App. 2021), review denied, 506 P.3d 638 (Wash. 2022).

393. Greene v. Esplanade Venture Partnership, 168 N.E.3d 827 (N.Y. 2021).

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Linda D. Elrod

Editor Emeritus

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