Child Custody - Hague Convention - “Well-Settled”
Urquieta v. Bowe, No. 24‑1407‑cv (United States Court of Appeals, Second Circuit, October 31, 2024):
Child's mother, a citizen of Chile, petitioned for child's return to Chile under the Hague Convention on the Civil Aspects of International Abduction and its implementing legislation, the International Child Abduction Remedies Act (ICARA), after child's father, a United States citizen, traveled with child on an authorized visit to New York City but decided not to return child to Chile on the expiration date of child's authorized visit. The trial court denied the petition, finding that child's father had wrongfully retained child in the United States but that father had established two affirmative defenses, the “well‑settled” defense and the “child objection” defense. Mother appealed. Held: Even after an initial instance of a child's wrongful retention outside the child's country of habitual residence, a parent may extend authorization for the child to remain outside the country of habitual residence, and such an extension postpones the date of wrongful retention for determining the availability of the “well‑settled” defense to a petition for the child's return to the country of habitual residency, a defense that allows courts to consider the child's interests before ordering the child's return if more than one year has passed from the date of the wrongful retention.
Child Custody - Jurisdiction - UCCJEA - Cherokee Nation
Hess v. Hess, No. 50719‑2023 (Idaho Supreme Court, October 28, 2024):
Husband, whose children were registered members of Cherokee Nation, filed a petition for divorce requesting joint legal and physical custody and child support, and wife subsequently petitioned for entry of temporary order of joint physical custody. The trial court affirmed the decision of the magistrate, who, following a stay of proceedings pending resolution of the guardianship matter in Cherokee Nation court, awarded wife sole physical custody, awarded the parties joint legal custody with wife having final decision‑making, ordered husband to pay wife, backdated child support, and subsequently denied husband's motion to disqualify magistrate. Husband appealed. Held: The husband alleged in his divorce petition that the magistrate court had jurisdiction under UCCJEA since children had resided in Idaho for at least six consecutive months before petition was filed, the magistrate court did not receive any communication from Cherokee Nation court indicating that it wished to assert jurisdiction, and Cherokee Nation was not child's “home state” for UCCJEA purposes. Thus, the magistrate court was not required under the UCCJEA to confer with Cherokee Nation courts before asserting jurisdiction in custody matter.
Child Custody - Modification – Change in Circumstances - Opioid Addiction
Lavery v. Lavery, No. WD 86668 (Missouri Court of Appeals, Western District, October 1, 2024):
Substantial evidence supported trial court's determination that the mother's dependence on opioids demonstrated a new danger to the mother's physical health that was not presented during original dissolution proceedings, constituting a change in circumstances that warranted modification of child custody and awarding sole physical and legal custody of children to father. The mother lied to her prescribing doctor about her mental health in order to continue receiving opioid prescriptions, despite facing significant physical health risks in doing so, and she was unwilling to provide full account of the extent of her day‑to‑day medication during her trial testimony.
Child Support - Income – Veterans’ Benefits
Builta v. Guzmán, Nos. 23‑FM‑0359 & 23‑FM‑0379 (District of Columbia Court of Appeals, October 3, 2024):
Remember, income for purposes of child support includes all veterans’ benefit and bonuses. Income may exclude capital gains if sporadic and not a regular source of income.
Child Support - Income – Imputed Income - Medical Condition
Kaye v. Hall, No. CAF 23‑01979 (New York Supreme Court, Appellate Division, Fourth Department, October 4, 2024):
A federal agency’s determination of disability (e.g., Social Security Administration, Veterans Administration) is not determinative of an inability of work that would preclude a court from imputing income. In this case, the father had been unemployed for a number of years despite having bachelor's degree in mechanical engineering. The father argued that he was unable to work and had been deemed disabled by Veterans Administration, but this determination of disability was based solely on the father's self‑reporting, there was no official record of incurrence or aggravation of post‑traumatic stress disorder in the father's service treatment records, and father had twice applied for social security benefits based upon his disability and had been denied.
Child Custody - Third Party – Father’s Fiancée
Jetton v. Jetton, No. 56,012‑CA (Louisiana Court of Appeal, Second Circuit, October 2, 2024):
Mother filed petition for relocation and for modification of custody with respect to child she shared with father. Following bench trial and intervention of father's former fiancée, a non‑parent with whom child had been living and who sought custody of child, the court denied the mother’s petition and awarded sole custody to former fiancée. Mother appealed. Held: Despite awarding custody to a non-parent, the trial court did not err. The fiancée had been the child's primary caregiver for at least two years at the time of the trial, providing a wholesome and stable environment. The mother, on the other hand, admitted she had not been exercising her shared custody rights, she had placed the child in the care of at least two men who abused child, and she did not believe the child when child disclosed abuse, such that there was strong likelihood child would be abused again if in mother's custody. Further, the mother had significant mental health issues whereas fiancée did not, the child had many friends in school where the fiancée had enrolled her, and child had a long history of residing with fiancée.
Property Division – Embryos
Wohlers v. Wohlers, No. A24A0841 (Georgia Court of Appeals, October 30, 2024):
Wife filed for divorce from husband. After a hearing, the trial court entered final divorce decree which included award to wife of embryos created in preparation for in‑vitro fertilization (IVF) with husband's sperm and wife's egg. Husband appealed. Held: Husband failed to establish that trial court abused its discretion by failing to articulate the method it used to arrive at its decision and by failing to identify precise factors it considered, in divorce proceeding that included award to wife of embryos created in preparation for IVF with husband's sperm and wife's egg; trial court heard testimony from both parties including about wife's desire to have children and about the physical, emotional, and financial toll the IVF process had placed on her, and there was no evidence suggesting trial court considered any inappropriate factor before awarding embryos to wife.
Property Division - Classification - Marital Home - Pre-Marital Portion
Tapplin v. Tapplin, No. A24A1164 (Georgia Court of Appeals, October 23, 2024):
Evidence was sufficient to support award to wife of part of the increase in the value of the equity of marital home that occurred during the time that wife and husband lived there together unmarried, under a theory of unjust enrichment. The record showed that husband purchased home with small down payment, taking a note for $135,000, after which wife made deposits totaling $76,000 into an account owned and controlled by husband during their premarital cohabitation, while also paying expenses from her accounts, and 13 years later, husband valued home at $292,678, at which time he owed less than $80,000 on it, all of which allowed trial court to extrapolate an approximate value added by wife's contributions during cohabitation.
Property Division - Classification - UTMA Account
In re Marriage of Nevedrova and Nevedrov, No. 23CA1278 (Colorado Court of Appeals, Division II, October 10, 2024):
The trial court entered orders dividing property, including dividing balance in bank account purportedly established under Uniform Transfers to Minors Act (UTMA) equally between husband and wife, and ordering husband to pay wife an equalization payment of $567,949. Husband appealed. Held: As a matter of first impression, if account was established under UTMA, it was not marital property and could not be divided between husband and wife.
Property Division - Proportion – Application of Factors - Drug Use
Kaylor v. Kaylor, No. COA23‑1138 (North Carolina Court of Appeals, October 1, 2024):
The parties were married and lived together for 23 years. The wife was 50 years of age, the husband had abused drugs, including methamphetamine, since at least four years prior to distribution, at which time husband had heart attack, and husband had continued using illicit drugs since suffering heart attack. Held: Wife was entitled to a larger share of the marital assets.
Law Review Articles of Interest
- Ariel J. Adler, New “Get” Laws, Prenups, and Social Media Shaming: A Grassroots Social Media Movement's Proposals to Assist Women in Jewish Divorce, 23 Rutgers J. L. & Religion 1 (2024-2025)
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