Family Law Round Up – 10/23/12

by Amy K. Butler on October 23, 2012

In the “consult an attorney if this happens to you” department:  couple marries, has child, separates, divorces, and, years later, Mom drops the bomb on Dad that he’s not the father of the child he’s been supporting since 1991.  Some jurisdictions provide recourse by statute, some do not.  Tennessee’s Supreme Court recently decided that Mother owed her ex-husband compensatory damages for the deception.

Most family law cases are guided by statutes, which provide factors for the Courts to consider in reaching decisions.  This article about a parental relocation case out of New York sets forth the factors considered in that jurisdiction, and outlines how the Court analyzed each factor under the facts with which it was presented.

The Federal Defense of Marriage Act is an anomaly in that it 1) seeks to deprive citizens of rights, and 2) negates the “full faith and credit” clause of the U. S. Constitution, which requires that each State in the Union give “full faith and credit” to the laws of other states in the Union.  Under DOMA, States expressly do not have to recognize gay marriages performed in other states, even though the marriage is perfectly valid in other states.  This is creating problems all over the country.  Gay couples are finding themselves unable to divorce, and it can also have child custody implications.  The 2nd Circuit Court of Appeals recently held DOMA unconstitutional.  Although not binding on state courts outside of the Circuit, it does signify that there is a storm out there a-brewing.  This is one to watch.  It’s the civil rights question of the century, I think.

This should be required reading for everyone going through a divorce everywhere.  Divorce is a complex process, and it can take time to sort through all the issues.  Don’t burn yourself out in the first six weeks.  You will not have to be in this situation forever.  But hastily made decisions can create a lifetime of regret.  It will all be okay.

I don’t envy attorneys and litigants in jurisdictions where the Judges are elected.  I can’t entirely wrap my head around it.  I’m not saying it’s all bad, it’s just very different from what I’m used to.  I can, however, say, definitively don’t try to bribe your spouse’s Judge. It’s not going to go well for you.

In the “get it in writing” department (and also the “Oh, my gosh, PLEASE consult with an attorney” department), this case out of Texas of an oral surrogacy agreement gone haywire is instructive.  The science of assisted reproductive technology is evolving faster than the law, and it is absolutely critical that everyone be clear that all the i’s are dotted and all the t’s crossed.  Laws differ from state to state.  See an attorney prior to stepping foot into the water.  Your child will thank you.  (Actually, hopefully, your child will not even know to thank you, because he or she will have no idea of the minefield you avoided for him or her).


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