II. National
A. Federal Courts
The U.S. Supreme Court handed down two cases in the family law area. One of the most awaited cases involved the Indian Child Welfare Act (ICWA), which seeks to prevent the unwarranted removal of Native American children from their families in child in need of care and adoption proceedings. Non–Native American adoptive parents and several states challenged its constitutionality. In a 7–2 decision, the Court upheld the constitutionality of ICWA, rejecting Article I and anti-commandeering challenges. The Court did not address an Equal Protection challenge, finding the plaintiffs lacked standing. The concurring opinion by Justice Gorsuch provides informative historical context. Seventeen states have enacted state versions of ICWA to ensure protections for Indian children.
The Supreme Court also upheld the right of a person who owns a web design business to design wedding websites for heterosexual couples but refuse to provide services for a same-sex marriage based on religious objections. The case upheld the web designer’s free speech argument that she should not have to design and execute websites for same-sex couples planning to marry, notwithstanding a state law prohibiting public accommodations from discriminating based on sexual orientation. The case is likely to lead to other challenges based on the First Amendment.
The Eighth Circuit issued a case involving a North Dakota custody order and a Tribal Court custody order. If the issue involved enforcing the North Dakota order in a state court, the court noted that the Parental Kidnapping Prevention Act (PKPA) would require full faith and credit. Tribes, however, have authority to make custody decisions concerning minors who are enrolled members of the Tribe. The federal court found that the PKPA does not apply to Indian tribes because Congress did not specifically include Indian tribes in the definition of “state.” A Tribe’s inherent sovereignty will not be deemed abrogated by a federal statute absent a clear and plain congressional intent, and the court mentioned several other laws that specifically include Indian tribes.
B. Uniform Family Laws
States continued to enact uniform family laws in 2023. The National Center for Missing and Exploited Children has endorsed states enacting the Uniform Child Abduction Prevention Act (UCAPA). Maryland enacted it in 2023, making 15 states and the District of Columbia as of the end of the year. The American Academy of Matrimonial Lawyers has advocated the enactment of the Uniform Family Law Arbitration Act (UFLAA). Washington State and the District of Columbia enacted it in 2023, joining Arizona, Hawaii, Montana, and North Dakota, which enacted it in prior years. The Uniform Law Commission website keeps track of states that have enacted any uniform law.
There is a current Uniform Law Commission drafting committee working on Judicial Interview Procedures for Children. It does not seek to create a right to be heard but rather looks at existing custody law. The committee is considering whether there should be a presumption in favor of an interview if the child wants one; what procedures, such as a recording, should be followed; and how to protect the parents’ due process rights and the child’s privacy.
III. State Family Cases
A. Adoption
1. Consents
A child cannot be adopted unless either the legal parents consent or their rights have been terminated. Most consent issues deal with voluntariness of the consent. As a general rule, a consent to adoption cannot be withdrawn unless it was obtained by fraud or duress. Some courts strictly construe their statutory requirements. An Indiana court upheld a consent that substantially complied. It found that a biological father’s signature on the consent was genuine and manifested an intent to relinquish the child for adoption, “even though it was not executed in the presence of one of the entities specified in the statute.” A Minnesota court did not allow biological parents to vacate their consents to adoption for fraud six years later. The court found the juvenile protection procedure applied with its 90-day filing deadline on relief from a final order rather than the six-year statute of limitations for civil claims.
An adoption can happen without a parent’s consent if they have not assumed the duties of a parent for a period of time, which varies among the states. In Oregon, the father and stepmother showed that the mother’s consent to adoption was not necessary where evidence was clear and convincing that she had deserted and willfully neglected the child for a year preceding the filing of the petition. An adoption also can take place without a parent’s consent if parental rights have been terminated. Where, however, prospective adoptive parents filed a petition alleging that the parents had abandoned the child, the trial court erred in failing to order an investigation and social study within 30 days after the adoption petition seeking to terminate parental rights.
2. Stepparent/Second Parent Adoptions
There were numerous reported cases involving stepparent adoptions in 2023. A former stepfather and current stepfather each filed to adopt a child who was over age 12 and had to consent to the adoption. The appellate court found that the trial court was required to appoint counsel to advocate for the child and to ensure she understood the implications of adoption by the current stepfather over the former stepfather, who shared legal and physical custody and paid child support to the mother.
Several cases dealt with what happens to previously ordered visitation rights for a grandparent if there is a stepparent adoption. A maternal grandmother who had previously established joint legal and physical custody of the child in a prior Missouri custody proceeding had a sufficient interest in the father and stepmother’s petition for stepparent adoption to allow her to intervene as a matter of right. The adoption would have placed the stepmother above the grandmother, who currently had equal rights with the father. In Ohio, a father had custody and the paternal grandmother was granted companionship rights. The father moved to terminate the grandmother’s visitation after his wife, the stepmother, adopted the child. The court found that the grandmother retained her rights because the father was the spouse of the adopting parent and the grandmother was a relative of the father.
Pennsylvania had a case dealing with second parent adoptions. The action sought to terminate the father’s rights for noncontact and allow the unmarried partner whom the child recognized as the father to adopt. Noting that stepparent adoptions do not require the relinquishment of both parents’ rights over the child, the court decided not to extend the stepparent analogy to the mother’s long-term opposite-sex partner. Prior cases had allowed a same-sex partner to adopt when the law prevented same-sex couples from marrying. The case was remanded for the court to determine whether the mother could “demonstrate cause as to why she cannot satisfy the statutory requirement, i.e., why she and Partner cannot marry, and then establish why the relinquishment requirement . . . is satisfied under the facts of her case.”
B. Agreements
The Nebraska Court of Appeals reviewed the factors that courts could consider in determining whether a premarital agreement was entered into voluntarily. It upheld an agreement, finding it to be voluntary and the waiver of alimony provision not to be unconscionable even though the wife had a stroke during the marriage. Under Nebraska law, “unconscionableness is to be assessed as of the time the agreement is executed.” In another case, even though the premarital agreement had waived the right to spousal support, the trial court had jurisdiction and discretion to order temporary spousal support. The court had not made the five findings required by a California statute to rebut the presumption that the premarital agreement was not executed voluntarily.
With the increasing numbers of premarital agreements, issues of interpretation often arise. In one Mississippi case, the antenuptial agreement provided that the husband and wife agreed each would have an unrestricted right to dispose of their own separate property “free from any claim that may be made by the other” because of their marriage. Even though a statute automatically renounced a will if the decedent made no provision for a spouse, the court found that the husband waived his ability to recover from the wife’s estate. In another case, the parties entered into a prenuptial agreement that provided that certain property held by the husband would remain his separate property and he had the right “to dispose of or encumber” it. The husband took out a home equity line of credit and used the proceeds for marital expenses, including payment for a medical procedure for the wife. The trial court incorrectly classified the debt as marital. The “voluntary expenditure of the loan proceeds on marital expenses did not convert the loan itself into a marital debt.” Parties may waive the protections of a valid premarital agreement by failing to follow it. The parties did not maintain separate property, neither did they divide the living expenses as the agreement provided. The husband commingled the wife’s funds with his own in an investment account and used the mixed funds to provide a mortgage to a limited liability company of which he was the sole member.
A postmarital agreement provided that if the husband committed adultery, he was to pay the wife “$7 million up to the value of his 50% share of specified marital assets.” The husband sought to rescind the agreement as against public policy, arguing that it was an excessive liquidated damages clause and unenforceable penalty. The court disagreed and found it to be an enforceable penalty, not a punishment for breach of contract.
C. Alimony/Spousal Support
A few states still consider marital fault in awarding alimony. A Virginia wife was denied spousal support in part on fault grounds where the court found she had deserted the marriage by sleeping in a separate bedroom before she left the home first in 2019. When she returned, she continued living apart and they did not act as a married couple.
A couple of cases considered a parent’s expenditures on children in awarding alimony. A Utah trial court awarded the wife spousal support, including certain expenses she incurred for her adult child who was on a religious mission. The parties had paid for the son’s mission; the wife was paying the daughter’s alone and there were two more children who would elect to serve missions later. An Illinois court did not impute income to a mother who was unable to work because of the time and effort she must expend to care for a child who was “profoundly disabled” and required “constant supervision and assistance.” Both parents had agreed not to put the child in a nursing home.
In most states, an alimony recipient’s remarriage or cohabitation may terminate the support obligation. A former husband established a prima facie case of his ex-wife’s cohabitation where his private investigator reported that the ex-wife and a third party were together on all 44 days when they were observed over the course of several months, and spent overnights together in about half. The ex-wife had access to the third party’s home, they shared household chores, and social media photographs showed them at social events with her and the husband’s children. The former husband still bears the burden of proving cohabitation to terminate his alimony obligation, so the trial court should have ordered limited discovery as to discrete issues relevant on one or more of the cohabitation factors.
D. Alternative Dispute Resolution
A trial court could order an ex-husband to fulfill his contractual obligation under the marital settlement agreement to participate in a rabbinical court proceeding for the ex-wife to get a divorce under Jewish law. The court could require him to sign an arbitration agreement. The trial court did not violate the Establishment Clause or Free Exercise Clause. Georgia courts upheld an arbitration award on division of property and award of child support, finding that there was no basis for vacating the award. “The limits of an arbitrator’s authority are defined by the parties’ arbitration agreement.” There was no “failure to fully and clearly address the issues presented,” nor was there a manifest disregard for the law.
A father sought to enforce a mediated agreement, arguing that a provision giving the mother “final decision-making power regarding educational and medical choices” did not permit her to adversely impact the father’s joint custody and time-sharing rights. The court found that the mother’s choice of kindergarten amounted to a relocation and was unreasonable because it curtailed the father’s time-sharing.
Parent coordination falls under the ADR umbrella in most states. Statutes or court rules dictate the authority to appoint a parent coordinator and what they can do. A Massachusetts trial judge exceeded his authority by extending the appointment of a parent coordinator to resolve parenting disputes for an additional three years, beyond the time and cost agreed to by the parties for the initial appointment.
E. Assisted Reproduction
Sperm donors and gamete providers generally do not have parental rights. In an Illinois case, in the context of a child neglect proceeding, a guardian ad litem sought to rebut the presumption that the wife of the child’s biological mother at the time of the child’s birth by assisted reproduction was the child’s parent. The court found, however, that undisputed evidence showed that the biological mother and her spouse were the intended parents even though DNA identified the sperm donor as the biological father. Public policy dictated that the child could only have two parents; under state law the sperm donor was not a parent.
As a general rule, a surrogate does not receive parental rights because she signs a gestational carrier agreement that ends when the surrogate hands over the child at birth. A gestational surrogate carried a child created by an anonymous donor female ovum and a Chinese national father’s sperm surgically implanted. The father paid over $200,000 for surrogacy services. The Montana court found that nothing in the 72-page gestational carrier agreement (entered under California law) precluded the surrogate from later acquiring a parental interest by other legal means. She and the biological father married after the child was born and after signing a premarital agreement stating she and the child had a parent-child relationship. After the living relationship broke down with the father, his boyfriend, and the surrogate, she filed for divorce and the father argued they were never married because of fraudulent inducement. The court disagreed, granted the divorce, and awarded the surrogate primary residential custody. The Montana Supreme Court reversed and remanded because the court adjudicated a “nonparent” parental interest in favor of the surrogate. The court said the proper statute to use was the parent versus a nonparent statute, which must be construed in ways to preserve the constitutional rights of parents.
Several cases dealt with what to do with cryopreserved pre-embryos when the couple’s relationship dissolves. Maryland courts struggled to determine what to do with the one remaining cryopreserved pre-embryo when the parties were divorcing. One party presented evidence of an oral agreement to give any embryos created “a chance at life.” The trial court awarded the pre-embryo jointly to both parties until they could agree; following an appeal, on remand, the court awarded it to the husband; on another appeal, the court found the parties’ oral agreement to give each pre-embryo a chance at life controlled and awarded it to the wife, who wanted to implant it. The court stated: “In the future, to avoid these disputes, we would encourage couples—no matter how hopeful they are as to the future success of their marriage—to ‘think through [all] possible contingencies and carefully specify their wishes in writing.’” The court noted there would need to be a supplemental hearing to determine the husband’s rights and responsibilities if a child were born post dissolution. In Georgia, an appellate court found that as a matter of first impression, the trial court should follow the parties’ prior agreement concerning disposition of frozen embryos. The parties’ agreement stated that if the parties changed their mind about implanting the embryos in the wife, the embryos would be donated. Where the parties agreed that the frozen pre-embryos were marital property, the Ohio trial court awarded them to the wife to “donate or destroy,” with a restriction that she could not use them “to impregnate herself or a surrogate.” The appellate court found no violation of her constitutional reproductive rights.
F. Attorneys
The Model Rules of Professional Conduct and most states make it an ethical violation to have sex with a client for several reasons, but partly because it interferes with the lawyer using independent judgment. The Virginia Disciplinary Board noted that having sex with a divorce client created a new and additional ground for divorce that could be used to the client’s “legal and strategic detriment.” Therefore, there was a concurrent conflict of interest. Even if condonation or recrimination were pled as affirmative defenses to adultery, the client would bear the burden of proving the affirmative defense. A lawyer was suspended from the practice of law when he represented the husband and wife in a civil matter, started having sex with the wife, sought to withdraw from representing the husband without disclosing the sexual relationship to the court, and filed divorce proceedings on behalf of the wife (whom he later married) while the withdrawal application was pending. A Wyoming lawyer was publicly censured for failure to file a divorce action as requested by the client. She also disclosed confidential, potentially harmful, information about the client in a withdrawal motion in a criminal matter unrelated to the divorce.
Divorce cases can be expensive. Many courts award attorney fees when one party earns substantially more than the other. A husband who earned over $500,000 a year and was not totally candid in revealing his bonuses and additional funds was ordered to pay attorney fees for the wife, who earned $20,000. A Mississippi court found the evidence supported awarding the wife $200,000 in attorney fees where the husband had changed attorneys multiple times, the issues required extensive research, and there were “91 filed motions, four telephonic hearings, and nine contempt petitions.” An Ohio court reduced the amount of attorney fees to the wife where the court noted the lawyer “‘unnecessarily’ added parties and filed objections and pursued dubious legal strategies that were ‘without much basis in law.’”
G. Child in Need of Care
The UCCJEA applies. Texas was the home state of a child who had allegedly been smuggled into the United States from Honduras more than six months before the Department of Family and Protective Services commenced proceedings to terminate parental rights. Although the child’s parents were residing in Honduras, the child was staying with the smuggler in Texas.
Issues of temporary emergency jurisdiction often arise because the abuse and neglect may not happen in the home state. In August 2020, the mother and her husband were arrested at a California hotel and detained for abusing three children whose home state was Texas. The children were removed to protective custody. A detention report described severe physical abuse two of the children had experienced over time. After a dependency petition was filed in California, the California judge communicated with a Texas judge, who “ceded” jurisdiction to California. The father of two of the children was incarcerated in Texas at the time, but the only order was a 2016 support order. In March 2021, the juvenile court sustained the dependency action and made an initial custody determination. In June 2022, the juvenile court conducted a follow-up hearing. The Texas judge explicitly declined to assume jurisdiction. The court found the juvenile court correctly followed the UCCJEA. “Although emergency jurisdiction is generally intended to be short term . . . the juvenile court may continue to exercise its authority as long as the reasons underlying the dependency exist.”
A West Virginia court exceeded the scope of its temporary, emergency jurisdiction. It did not have jurisdiction to adjudicate the parents of children who were allegedly abused or neglected at the grandmother’s West Virginia home until (or unless) Pennsylvania ceded jurisdiction.
1. Child Abuse and Neglect
While Indian children are subject to more procedural protections in child in need of care and adoption cases, someone needs to make the court aware an Indian child is involved. A trial court had no reason to know the child was a member of an Indian tribe where the mother asserted the child could be eligible for one of several Indian tribes, but the mother and father previously told the case worker they were not members of any tribe, the child was not a member of the father’s or mother’s tribe, and no tribe attempted to intervene after the state agency sent the required notice under ICWA. In another case, the court did not have to immediately return children eligible for membership in a tribe following the mother’s withdrawal of consent to a stipulated parenting plan. The children were with their grandparents. Remand was appropriate to determine whether a return to their mother’s custody would place the children in substantial and immediate danger.
The juvenile court should have children adjudicated in need of care when the parent failed to obtain consistent medical care, including immunizations, endangering their physical health and welfare. A single incident of physical discipline, however, was not sufficient to find an eight-year-old child in need of care or supervision. After being told that she would not be going on a field trip, the child ran into the street; the mother grabbed the child by the arms and dragged her about 50 feet to their house.
Sufficient evidence supported a trial court’s finding that the father mentally abused the child intentionally or with conscious disregard or indifference to the child’s welfare. The court concluded that the child was “‘frightened,’ ‘scared,’ and ‘fearful’ of his [f]ather’s anger and his [f]ather’s refusal to accept his sexual orientation.”
2. Termination of Parental Rights
A common reason for termination is the parent’s failure to make reasonable progress toward addressing conditions that led to removal of the child. In one case, clear and convincing evidence supported termination of the father’s parental rights where he was incarcerated for 10 years and unable to complete a drug and alcohol assessment, attend counseling, or take charge of the child. The mere fact of incarceration, however, may not justify terminating a mother’s parental rights. The state had argued that continuing the relationship would be harmful to the child but introduced no evidence of the impact of continuing the relationship.
The court appointed counsel to represent both the mother and the father in a termination of parental rights proceeding. The court found a conflict of interest that violated the father’s due process rights to a meaningful hearing. Both parents fought termination, but their interests diverged in that their “conduct throughout the termination and underlying abuse and neglect proceedings differed significantly, as did their parenting styles and bonds with [the] Children.”
H. Child Custody
1. Jurisdiction
To be entitled to recognition in sister states, an initial custody order ordinarily should be made in the child’s home state, if there is one. The facts may be conflicting. In one case, Louisiana refused to register a Texas custody order in favor of the mother of a baby born in Texas because the home state of the three-month-old was actually Louisiana. The mother had lived with the child in a trailer in Louisiana for 51 of 61 days from birth until the father filed an action for custody. The mother had told the social worker that her address was in Louisiana, listed Louisiana as her legal address on documents, and received unemployment benefits and food stamps there.
A temporary absence does not change the child’s home state. Arizona uses a totality of the circumstances test to determine if a child was temporarily absent from a home state. An American mother, Tunisian father, and their son lived in Tunisia but were in Italy on vacation when COVID-19 restrictions went into place in February 2020. The mother and child took a repatriation flight to the United States in April. The father returned to Tunisia in June. In November, the mother filed in Arizona for paternity, custody, and parenting time. The father argued that the child was “temporarily absent” from Tunisia. The court disagreed. The mother’s decision to travel to the United States alone with the child, the failure to return to Tunisia when it reopened its borders, and her communications with the father expressing “deep unhappiness” with their relationship, which she alleged was abusive, negated a claim of temporary absence.
Most courts require extraordinary circumstances, rather than simple neglect, to exercise temporary emergency jurisdiction. An Arizona court required a showing of immediate risk of harm to the child if returned to the parent. A New York court properly exercised temporary emergency jurisdiction over children whose parents’ divorce action was pending in Florida after the mother and children had fled to New York to seek safety from the father. Both parents filed child custody and family offense petitions in New York. The children had been in New York over six months and had an attorney assigned to them. When a trial court exercises temporary emergency jurisdiction and another court has exclusive, continuing jurisdiction, it has the duty to specify the duration of its jurisdiction and to communicate with the court that issued the initial custody order to resolve the emergency. If the court having jurisdiction does not act, the exercise of temporary jurisdiction can ripen into permanent jurisdiction. In one case the child had been residing in New York for more than 17 months and was safe and thriving, so the order granting the father sole legal custody and placement remained in effect permanently. The only action the Michigan family court could have taken to assure the child’s safety was to decline in favor of New York. Michigan’s order to return the child to the mother’s custody in Michigan without holding an evidentiary hearing put the child at imminent risk of harm.
After the children had moved from California to Michigan with the mother, the father filed an ex parte request in California for a temporary emergency order for custody. The mother filed an ex parte custody motion in Michigan. The Michigan court found it had home state jurisdiction and granted the mother sole legal and physical custody. When the father appealed the failure of the Michigan court to register his California order, the Michigan appellate court found that California did not have jurisdiction at the time the father had filed his action because the mother and children had been in Michigan for over six months.
A father filed to modify an order that granted the mother sole legal and primary physical custody. The mother, who lived with the children in New Jersey, moved to dismiss on the basis that New York was an inconvenient forum. The family court agreed. The court properly considered the length of time the children had resided in New Jersey, “the nature and location of the evidence required to resolve” the litigation, and “the familiarity of the court of each state with the facts and issues in the pending litigation.” In another case, the parents’ custody petitions had been pending for six years in New York. The father moved to dismiss for lack of subject matter jurisdiction and inconvenient forum. The length of time the children had lived in New Jersey with the mother, a factor relating to distances from courthouses, and the nature and location of the evidence all weighed in favor of New York declining jurisdiction.
A Florida trial court that made an initial custody award could not “cede its exclusive, continuing jurisdiction . . . to another state.” The court must either find that it lost jurisdiction because all parties left the state or that Florida was an inconvenient forum. The child had lived in Illinois for more than six months, the parties had an agreement the child would live in Illinois, and the child attended school and therapy there. The Florida court should relinquish the case properly.
2. Factors
Most states have a statutory list of factors, do not require the judge to make a finding for or against the parents on each factor, and do not specify the weight to be given any factor. Appellate courts may require that the trial court show it reviewed and used the factors. For example, Utah’s statute has 25 factors. Where the trial court only discussed three factors and did not determine who had been the primary caregiver, although evidence on this factor was presented to the court, the appellate court remanded the case. Some states use a seminal case. In Mississippi, the court does need to make on-the-record findings for each factor. The chancery court erred in not using the Albright factors to support its custody determination in a paternity case. Where a trial court placed significant emphasis on the fact that the mother was breastfeeding the youngest child, the North Dakota Supreme Court remanded for best interest findings under all the statutory factors. “The assumption that by breastfeeding, a mother necessarily has a deeper bond with a child compared to the father raises an appearance of bias on the basis of sex.”
The wishes of a child of sufficient age and maturity can be considered in almost all states. A New York family court did not abuse its discretion in not conducting an in camera interview with children ages three and five at the time of its determination. A New York court found that the family court erred in denying a request of an attorney for an almost 16-year-old for an in camera Lincoln hearing to determine if a change of circumstances had occurred. A Nebraska trial court found that statements by two children ages 10 and 11 did not warrant modifying custody where they “did not express their wishes beyond what they considered ‘fair’ for their parents and what they believed would stop their parents from fighting.”
A West Virginia trial court erred in not modifying the parenting plan where the 15-year-old child “stated a reasonable and firm preference to reside with” the father and the guardian ad litem had found the child mature. A Connecticut court found a child’s desire to spend more time socializing with friends, which she could not do if she spent every weekend with her father, to be relevant. The trial court awarded one weekend each month to the mother as in the child’s best interests. An Oklahoma trial court could decline to follow a 14-year-old child’s preference to stay with her mother where evidence showed that the mother’s household was “incredibly dysfunctional” as she appeared to be struggling with several mental health conditions. Additionally, witnesses testified regarding her “interference and even sabotage of Father’s relationship with the child.” In custody modification proceedings, where a father had used “manipulative behavior” toward his children, a 10-year-old’s custodial preference was insufficient to serve as a change of circumstances.
A Pennsylvania court found factors weighed in favor of awarding primary custody of the child, age six, to the father who lived in Germany, as did the paternal grandmother and a half sibling. With the mother, the child spent an “inordinate” amount of time on the computer and the mother was not tracking what was happening with the child’s education. The father had programs for before and after school to provide extra homework, sports, and literary activities. The court, however, could not impose the majority of travel costs on the mother.
Some parents want to share parenting. Parents entered into a partial mediated settlement agreement to share “joint physical custody” of their daughter and intended equal parenting time. The trial judge erred in awarding the mother only 45% of parenting time. When both parents wanted the child to have a relationship with both parents, the juvenile court did not err in awarding shared parenting, even though the parents had some communication issues.
A New York court awarded sole custody to the mother where the parties could not agree on almost any child-related matter—school, medical care, or routine. Court-ordered evaluations indicated neither parent could distance from their “mutual enmity” to address the children’s needs. A Utah trial court abused its discretion in awarding joint decision-making in a paternity case for an eight-year-old whom the father had not seen for a couple of years. A joint decision-making arrangement likely would “cause ongoing issues, result in costly mediation and additional court involvement, and be detrimental to [the] Child’s best interest. . . .” Modification of sole legal custody with the father to joint legal custody was an abuse of discretion where the parties were so antagonistic they had not even agreed on the name for their youngest child. The parties had not been able to reach a decision together on any significant issue in over a year without third-party help. On the other hand, in a Wyoming modification case, the court found that just because the parties had difficulty communicating did not prevent the court from determining that shared custody was in the child’s best interests, and that shared custody would “counteract[] Mother’s efforts to undermine [the child’s] relationship with” her father.
If the court approves joint physical custody, there still may be some issues with the logistics of making it happen. In a Louisiana case, the appellate court found that awarding the parties alternate physical custody of their child in two-week intervals was not appropriate because it undermined the benefits of two years of stability for the child. The father had stable housing and primary custody; the mother had only recently achieved housing and employment stability and still needed treatment for mental health conditions. The trial court had awarded joint legal custody with primary residency to the mother of two preteen daughters, requiring the parents to agree on major health decisions. The mother sought permission to vaccinate the girls against COVID-19, consistent with the pediatrician’s recommendation, and the father refused. The trial court allowed her to have the girls vaccinated but did not give her full control of all medical decisions.
3. Modification/Enforcement
Modification of an existing order requires a showing of a substantial and material change in circumstances that make it in the best interests of the child to modify. A mother sought to modify joint legal custody and order supervised visitation where the father showered nude with their five-year-old daughter at an outdoor shower and had photographed her nude. The court could limit the father’s visitation and order him to not have an outdoor shower but could not automatically terminate visitation if he tested positive for drug use.
The “severely deteriorating relationship” between the mother and child and the child’s wishes to be with the father were a change of circumstances affecting the child’s welfare. The court, however, erred in awarding the father primary physical custody and limiting the mother’s visitation to reunification therapy and six hours a week of time. A trial court properly granted a father’s motion to award him sole legal and primary custody where the mother had become “increasingly stressed.” She had sent the children to the father after yelling and throwing things, and changed one child’s school without notifying the father. A New York mother showed a change in circumstances warranting a change from joint to sole legal custody to her because of the father’s belittling and demeaning conduct toward her whenever she tried to talk to him about arrangements for the child. A court modified to give sole physical custody to a father who called his daughters every night even though the mother had withheld visitation for over a year. The court found the stepfather’s behavior was harmful to one child’s mental health because he had “spanked her with a belt” and allowed the stepbrothers to be mean to her.
A custodial parent’s relocation alone is not always a change of circumstances. But where the parties shared joint legal custody with the mother having primary physical custody, the court found her planned move to Virginia with her fiancé would have an adverse impact on the three children. They had lived in Mississippi their entire lives and had many friends and relatives. A mother’s relocation from Louisiana to Florida was in good faith and in the best interests of the children where the father had limited participation in the children’s lives. Sufficient evidence supported a Utah trial court’s finding that custody factors, especially bonding and continuity of placement, favored leaving primary custody with the mother even though she had relocated out of state.
A mother did not willfully violate the court’s custody order entitling the father to two phone calls a week. The child’s resistance did not establish that the mother violated the order. In another case, a mother did not violate the court order by requesting the father delay his parenting time during the COVID-19 quarantine period when the mother tested positive. The mother did not refuse visitation but offered alternatives, and her requests were not unreasonable.
4. Third-Party Visitation
Grandparents and stepparents may be the most common persons seeking visitation, but sometimes it is a former partner or siblings. Standing depends on the state statute. In Georgia, “grandparents can either file an ‘original action’—provided the parents are separated and the grandchild is only living with one parent—or they can intervene in certain specified existing proceedings.” In Minnesota, a grandparent who resided with a grandchild for 12 or more months may petition for visitation rights after a parent removes the child from the home the grandparent and child shared even if the grandparent no longer resided in the home at the time of removal. In Indiana, a paternal grandfather who intervened in marriage dissolution proceedings had standing to seek visitation rights even though both parents opposed granting him visitation. Where a mother had limited the maternal grandfather’s access prior to the parents’ divorce, the grandfather lacked standing under the New Hampshire statute.
Following the mother’s death from COVID-19 complications, the child’s former stepfather filed to be appointed the child’s temporary sole managing conservator. When the maternal grandparents intervened challenging his standing, he filed an original petition to intervene, which the court denied. The appellate court found that he had standing because he had “actual care, custody, and control” of the child for at least six months, “ending not more than 90 days preceding” the date of filing the petition.
In a matter of first impression, the Colorado court found only the father’s opposition to grandparent visitation would be considered because the mother was aligned with her parents, who wanted to visit. The father was the sole residential parent and decision-maker. The mother had four one-hour supervised visits each week because of mental illness. The grandparents failed to rebut the presumption in favor of the father’s decision that visitation was not in the children’s best interests.
Once grandparents are granted visitation rights, those rights can be modified upon the petition of the legal custodian, guardian of the person, or parent of the child. Existing grandparent visitation rights may survive adoptions by stepparents and family members. As a matter of first impression in Wyoming, the court found the parental presumption does not apply when a court considers a petition to revoke or amend a grandparent visitation order. Parents demonstrate good cause by showing a material change of circumstances that makes modification in the best interests of the children. Parents were not unreasonable in denying visitation to a parental grandfather who obviously favored the granddaughter from the mother’s marriage to his son to the point that it caused problems with the mother’s two older children.
I. Child Support
1. Obligation
Every state has child support guidelines that judges and administrative agencies are to follow. Florida courts have found that failure to include a child support guidelines worksheet in the record is reversible error because the worksheet contains information from which the trial court calculated the child support. A Florida court reiterated that neither a “father’s choice not to participate in the child’s life” nor the fact that the mother could meet the child’s “basic needs” supported a reduction in the father’s child-support obligation. The trial court was reversed where it departed from the statutory guidelines of $4,627.81 and reduced the monthly amount by over $2,500.00 even though the father did not appear at the final hearing, made no request for a reduction, failed to engage in the paternity proceeding, and was less than candid about his income. The Utah Court of Appeals held that the child support guidelines that terminated a parent’s obligation upon the child’s graduation from high school did not prevent the trial court from ordering the father to financially support an adult son who was diagnosed with tuberous sclerosis. The child was “incapacitated from earning a living.”
2. Income
A father’s financial statement understated his income where he reported his corporate salary income, but he was the sole shareholder and lived a lifestyle in excess of what his reported salary indicated. The Massachusetts trial court properly found that the father’s unallocated support obligation would not be reduced by the fact that the mother’s parents gave her annual financial gifts and helped pay some child-related expenses. Any assistance was voluntary and the parents had no legal obligation to continue with gifts. The money a father received from a federal Paycheck Protection Program was appropriately considered for imputing income.
Courts sometimes impute income above a parent’s actual salary when the evidence shows the parent is a sole shareholder and director who can control the salary. The Wyoming court determined income based on historical income where it was available and there was no evidence of future expenses. The Maine Supreme Court found that a rule for determining income for child support using the statutory minimum wage and a 40-hour workweek did not support the district court imputing to the wife a full-time work schedule and using her hourly wage of $23 to calculate income. A New York trial court could impute an annual income of $72,000 to a father based on his admissions in the divorce case where he failed to prove his actual, current business expenses. A Florida court had insufficient evidence to impute income to a mother where the father “failed to present any evidence of available employment at” the mother’s prior income level.
3. Modification/Termination/Enforcement
The general rule remains that the trial judge retains authority to determine child support, even if the parties have an agreement. The trial court in Florida had authority to modify the father’s child support obligation even though the marital settlement agreement set an “absolute floor” of $2000 a month. The agreement could not oust the court’s jurisdiction of its inherent powers or its expressed statutory power to protect infants. Where the father’s income had decreased substantially and the mother’s had increased, the court could modify the father’s obligation downward. Mississippi found that the children have a vested right in child support until age 21, so a provision in a marital dissolution agreement allowing the father to terminate support on the daughter’s 18th birthday was unenforceable.
An Arkansas judge found a material change in circumstances where both parties had increased income and the children had increased expenses for volleyball. Child support payments are not includable in the gross income of the recipient and not deductible by the payor. “[I]nterest on a past due child support obligation accrues by statute and must be included in any judgment fixing the amount of child support arrearages, even if the party seeking payment had not requested an interest award.” This interest is taxable. A father argued he should get credit for in-kind contributions to the children’s expenses, like financing a vehicle, vehicle repairs, and rent. The court found that even if he proved he paid the expenses, which he had not proved, he should not get a credit. He chose to make the contributions; equity does not aid the volunteer.
J. Cohabitation/Domestic Partnership
The Indiana Court of Appeals found that a female cohabitant was entitled to proceed with her action against a male cohabitant for implied contract and unjust enrichment after he removed her from the house and sold it without compensating her for her numerous contributions to the renovations. A former female cohabitant brought an action on multiple grounds against a male cohabitant when the relationship ended. The New Mexico Court of Appeals affirmed the trial court’s dismissal of most of the claims but remanded on a possible claim for unjust enrichment. The parties did not enter into an express agreement to jointly own the cohabitant’s business.
K. Divorce
A Mississippi wife obtained a divorce based on cruel and habitual treatment based on the husband’s outbursts (which she recorded on audio tapes), physical damage to the marital home, and abusive conduct accusing her of infidelity without proof, and keeping her physically from leaving the marital home. A Virginia court found that a husband and wife separated without cohabitation and without interruption for one year such as to grant them a no-fault divorce. The wife had purchased a home and moved into it and the husband moved to an apartment. A wife filed for divorce based on one year’s separation; the husband countered based on the wife’s desertion. The court agreed with the husband. The wife’s assertions that she left the marital home for her mental health were not legally justified because she showed no conduct of the husband leading to her mental health issues.
States differ on what happens when one spouse dies after a divorce is filed but before the case has been heard. Some states say the action abates. The Pennsylvania court found that a wife could withdraw her divorce complaint after her husband died. The court found that the parties did not meet the procedural requirements for obtaining a divorce (irretrievable marriage breakdown) prior to the husband’s death. A South Dakota trial court had discretion to delay the divorce decree for the parties, who had been married almost 18 years, until after 20 years of marriage and to enter a decree of separate maintenance instead to ensure the wife and children’s long-term financial stability. This would make the wife eligible for military benefits, including health care and access to health insurance, commissary, and base exchange privileges.
L. Marriage
A man who was legally married when he made a gift of a diamond ring, necklace, and matching earrings and proposed to a woman was not entitled to retrieve the gifts as “conditional” when the prospective bride broke the “engagement” after discovering that he was still married a week before the wedding. The existing marriage was a legal impediment to the contract to marry from the inception, making it void. Therefore, the gifts were gratuitous in nature and not in contemplation of marriage. The jewelry was an unconditional gift.
The age of marriage has been a big topic in recent years with recognition of the harms to the child. As of 2023, Connecticut, Delaware, Massachusetts, Michigan, Minnesota, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington have set the legal marrying age at 18 with no exceptions.
In a marriage license case, there was no cognizable marriage between two parties in New York. The couple had a Jewish religious ceremony in Florida and executed a ketubah, the Jewish marriage contract, but failed to obtain a marriage license. The court could not grant a divorce and ancillary relief if there was no marriage. A North Carolina court found that a marriage without a valid license was void on its face. The religious wedding ceremony officiated by the husband’s brother, who was not legally authorized to officiate, did not make them married. While the couple did cohabit, commingle assets, and hold themselves out as married, they also made conflicting statements as to whether they were married.
A California marriage of first cousins was “not contrary to ‘strong public policy exceptions’ under Arizona law that would preclude Arizona from recognizing their California marriage.” California law governed the validity of the marriage. Arizona does allow first cousin marriages if they presented evidence that one of the cousins was unable to reproduce, and the husband had a vasectomy before the marriage.
There were a few common law marriage appellate cases. A court in South Carolina, which abolished common law marriages prospectively in 2019, found that if there had been an impediment at the time the parties entered into a common law marriage, there had to be evidence of a new mutual agreement between the parties for a common law marriage to exist. The D.C. court, however, found that where a couple makes an express present mutual agreement to be married despite a known or unknown legal impediment to marriage and they cohabit, the couple need not reaffirm their agreement if they continue to cohabit after the impediment is removed. In this case, the man had married in 1969, separated, and had a ceremonial marriage with his second wife in 1972. In 1997 his first wife finally obtained a divorce. The man continued to live with his second wife until her death in 2007. The court found a common law marriage.
Nevada refused to “backdate” a same-sex couple’s marriage to 1991 or 1992, when they became serious but could not marry, but recognized an out-of-state marriage from a time when same-sex marriage was not yet permitted under Nevada law. The marriage began when they formally married in California in 2008. The court did distinguish the case from those in states that still recognize common law marriage where the parties met the capacity, agreement, and holding out requirements but were prohibited by law.
M. Names
The Nebraska Court of Appeals upheld a denial of a mother’s petition to change the children’s surnames. The father had been supporting the children financially and they had used his name since birth. The trial court found it in the children’s best interests to keep his name.
In North Dakota, evidence supported the trial court’s finding under the Uniform Parentage Act that it was in the child’s best interest to have a hyphenated surname. The mother had remarried and assumed her new husband’s surname. Hyphenating the child’s name would help “facilitate her relationship and emotional ties with her father” and she was too young to have significant school relationships.
N. Paternity
A putative biological father was barred from commencing a paternity proceeding more than one year after another man completed a voluntary acknowledgment of parentage (VAP) for the child. The putative father argued that the statute only prohibited an action if the mother was married or the child was born within 300 days of termination of the marriage. The court found that not enforcing a one-year time limit for challenging a VAP would make a VAP “open to challenge indefinitely.” The Kansas Supreme Court reviewed the trial court’s weighing of the competing presumptions of parentage by the mother’s husband and a paramour. The husband had the weightier presumption and it was in the child’s best interests for him to be the legal father. Because the mother was now with the paramour, both men would remain involved in the child’s life.
A trial court awarded shared legal and physical custody between the mother’s paramour, who thought he was the child’s father until the mother’s death when the child was one, and the biological father. The court found the best interest factors weighed evenly between the parties. The biological father and paramour had exercised 50/50 shared custody for almost a year, resided in the same school district, and were working well together, and the child was happy.
A mother’s partner at the time of the conception and the birth of the child was the legal mother of the twins. The mother’s former wife, who had started dating the mother more than two years after the twins were born, could not collaterally attack the judgment in favor of the former partner’s claim of parentage.
A former same-sex partner sought joint custody and parenting time for a child born during their relationship. Although the lower court summarily dismissed the case and the appellate court affirmed, the Michigan Supreme Court reversed. It held that “a limited extension of the equitable-parent doctrine” should apply for those in same-sex relationships “who were unconstitutionally prevented from marrying”: “a would-be equitable parent has standing if they demonstrate by the preponderance of the evidence that the parties would have married before the child’s birth or conception but did not because unconstitutional laws prevented them from doing so.” In another case, when a biological mother filed for divorce, her same-sex spouse filed for pre-birth establishment of parentage of a child conceived through IVF. The Pennsylvania court found the court had subject matter jurisdiction over the petition—not based on a marital presumption but on contract. Also, the biological mother’s actions regarding parentage “were grounds under the doctrine of equitable estoppel to preclude her from challenging” the spouse’s parentage.
O. Property Division
The “distribution” of companion animals has become a hot topic in divorce cases. Most courts have held that pets are property subject to division as marital property. Where the court awarded the family pet to the mother, the court could not require her to make the pet available to travel with the children for parenting time at the other parent’s house.A recent trend has been to consider the welfare of the animal. A trial judge determined that the wife had a greater attachment to the dog than the husband and awarded her the animal. A New York court found that a companion animal could not be classified as either “property” or an “asset” for treatment under the automatic orders issued at the commencement of a divorce case. Therefore, the wife was not guilty of contempt for “dissipation” of assets when she euthanized the old pet dog without the husband’s consent. Additionally, the New York property division law requires the court to conduct a “best interest” analysis to award possession of a companion animal.
The trial judge has broad discretion in division-of-property cases and will seldom be overturned on appeal. There is a duty to disclose all assets. Where a husband had multiple opportunities to disclose valuable stock options and failed to do so in his 2015 divorce, the ex-wife could petition in 2021 to allocate equally the undisclosed options.
IV. Conclusion
Courts continued to address complex family law issues, upholding parental rights and weighing various factors when parents cannot agree on parenting plans. Some of the toughest cases have involved new areas of law, like assisted reproductive technology when sperm donors or surrogates seek parenting time. Additionally, persons who used in vitro fertilization (IVF) and were not clear as to what happens if there are cryopreserved embryos remaining when the parties separate created new challenges for courts in 2023. In early 2024, however, the Alabama Supreme Court created a whole new set of questions by holding that frozen embryos are children under the Alabama Wrongful Death of a Minor Act. The court stated that “an unborn child is a genetically unique human being whose life begins at fertilization and ends at death.” “Parents” could sue because a hospital patient destroyed frozen embryos by removing them from storage and dropping them. IVF procedures at some providers immediately came to a halt until the legislature enacted protections for providers. The year 2024 should be an interesting one.
