Supreme Court Hears Key Adoption Case for Arizona

The U.S. Supreme Court heard an important adoption case on April 16. The case, captioned Adoptive Couple v. Baby Girl, involves complex issues of sovereignty and statutory construction, to say nothing of the high stakes element of a little girl’s permanent placement.

In 2009, a South Carolina couple took custody of a newborn girl after her mother agreed to let them adopt her. The girl’s biological father objected to the adoption on the grounds that the mother had not consulted with him before making the arrangements.

Supreme Court (Woodnick)Under typical circumstances in South Carolina (and in many other states), the father’s consent would not have been necessary because he was not married to the mother and was considered an absentee. A 1978 federal law entitled the Indian Child Welfare Act, however, provided a strong enough legal ground for the state to award custody to the biological father in December, 2011.

The Indian Child Welfare Act (ICWA) was passed to address what was described as an “alarmingly high” rate of removal of children from Native American families. The law requires inclusion of the family’s tribe in proceedings to determine child custody, including adoptions. Under ICWA, the “biological parent or parents of an Indian child” cannot have their parental rights involuntarily terminated without notice, hearing, and proper showing that continued custody of the child by the parent or custodian “is likely to result in serious emotional or physical damage to the child.” Such notice must also be given to the child’s tribe so that the tribal courts can engage in determining the child’s placement.

If such a showing is made and the court terminates a parent’s rights, ICWA requires the court to give preference to the child’s extended family, other members of the child’s tribe, or to “other Indian families” when placing the child.

In the case at bar, the Supreme Court must decide if (and how) ICWA applies to the girl’s biological father, with whom she will have spent about 18 months by the time a decision is reached. No matter the result, one of two families will be devastated. Broader concerns with the case involve the potential limitation of ICWA, prompting several states, tribal councils, and others to file numerous amicus briefs.

Saguaro (Woodnick)The State of Arizona and the Inter Tribal Council of Arizona have each filed briefs in support of ICWA. Arizona is home to the nation’s third-largest population of Native Americans at around 155,000 people; if ICWA is overturned, the impact on Arizona would be disproportionately large. Legal commentators speculate that the Supreme Court’s high rate of reversal indicates the Justices’ intent to do away with outcomes like these under ICWA, but the form that such reversal might take is in doubt.

Adoptions are complicated endeavors which sometimes lead to tragic outcomes. ICWA is designed to respect tribal sovereignty and to protect the cultural heritage of Native American children whose unique situation makes them more vulnerable. At times, however, statutes have unintended consequences that can lead to termination of the rights of both biological and adoptive parents. Adopting a child in Arizona is a complicated process (and not only because of tribal law issues), so both Arizona adoption lawyers and prospective adoptive parents must exercise due care and caution.

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Arizona Judge Denies “Pregnant Man” Divorce

In December, we outlined some of the legal issues surrounding the so-called “Pregnant Man” divorce. Last week, a Maricopa County Superior Court judge ruled against Thomas Beatie, saying that he had failed to prove that his marriage is valid, azcentral.com reports.

Pearl Harbor Memorial (Woodnick)Thomas Beatie was born physically female, but began taking male hormones in 1979 and had his birth certificate and driver license changed to reflect his actual sex before marrying his wife, Nancy, in 2003. The couple later learned that Nancy could not have children, so Thomas, who had not undergone sex reassignment surgery, underwent in vitro fertilization and eventually bore three children.

Due to provisions in both the state and federal constitutions, the parties to any case before a judge – whether criminal, civil, family (as here), or otherwise – must first demonstrate that the court is legally authorized to hear the dispute. This legal authorization, known as jurisdiction, is usually a mere formality of which lawyers dispose in one or two lines at the beginning the pleadings. In some cases, however, the court’s jurisdiction is questioned either by one of the parties or by the judge (after all, the judge cannot continue to hear the case if he or she does not have jurisdiction over the controversy).

In the divorce of Thomas Beatie and his wife, Nancy, the judge ordered the parties to prove that their marriage, which took place in Hawaii, was valid as between a man and a woman. Because the Arizona Constitution defines marriage as exclusively between opposite-sex individuals, Judge Gerlach concluded that he would not have jurisdiction to dissolve the marriage if it were not valid from its inception.

Brain Diagram (Woodnick)Judge Gerlach saw the marriage as “between a female … and a person capable of giving birth, who later did so,” so he denied the couple’s request for a dissolution. Furthermore, Judge Gerlach opined that a double mastectomy is not legally equivalent to sex reassignment surgery and declared that hearing this case would be “precisely the kind of absurd result the law abhors.”

Because same-sex marriage was not legal in Hawaii at the time of the Beaties’ marriage, either, Judge Gerlach’s decision is a bit perplexing. Arizona, like Hawaii, permits an individual to have their birth certificate and driver license gender changed. Courts around the country have struggled with transgender issues because legal precedent is often absent and because contemporary psychology and neuroscience have only scratched the surface of understanding personal identity. An appeal appears likely because the Beatie case is one of first impression for Arizona courts.

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Proposal Will Change Arizona Child Custody Law

A new piece of legislation in Arizona may require divorced parents to file notices with the court and serve their ex-spouse with the notices before moving.

Boxes (Woodnick)The bill, described by Bob Christie writing for the Associated Press (reprinted on azfamily.com – link here), would require divorced parents to give notice 60 days in advance of the proposed move. If their ex-spouse objects, then the parent who wishes to move would need to seek judicial approval. While this requirement is no different than the current relocation statute, the circumstances which would prompt the written notification are.

Under current Arizona law, parents are required to notify their ex-spouse if they intend to move out of state or more than 100 miles away. The purpose of this requirement is to address the impact that a long-distance move can have on the parenting time of the non-custodial parent.

The new bill removes the 100-mile “bright line” rule, and instead requires notice to be given if the proposed move substantially affects a number of parenting time related issues, such as parenting time, school attended by the children, or the traveling time for the exchanges. Proponents of the new bill say that abolishing the 100-mile rule will stop abuse by custodial parents who frequently move short distances to interfere with the non-custodial parent’s parenting time, or resolve the problem that arises when a parent moves less than 100 miles, but parenting time is still negatively affected.

Conversely, opponents fear that custodial parents’ right to travel and freedom to accept new employment opportunities. Christie’s article also points out one of many potential conflicts in the event of an involuntary move – a landlord may require a custodial parent to move after issuing a 30-day notice, leaving them without enough time to file proper notice with the court and the non-custodial parent.

Moving House (Woodnick)In Arizona divorce and child decision-making and parenting time law, the ultimate goal is to effectuate the best interests of the children in every case. For parties with a parenting plan including parenting time for both parents, the new law, if passed, will prevent abuses which are presumably allowed under current statute. It could also open the door for abuse, however, because it become so easy to object a move even if the distance is relatively inconsequential.

The interests of children are almost always best served by the agreement of the parties. Divorced parents who can come together to work out parenting plans and later amend them to incorporate the needs of everyone involved – whether those needs include moving, changing the schedule, or some other arrangement – do their children a great service. After all, having their parents repeatedly feuding in court for unmeritorious reasons is not in any child’s best interest.

Posted in Brad TenBrook, Gregg R. Woodnick, Leslie A. Satterlee, Parenting Plan, Schedule | Tagged , , , , | 1 Comment

Prenuptial Agreements in Arizona

A recent article in Huffington Post describes the circumstances surrounding the divorce of Peter and Elizabeth Petrakis.  Peter, reportedly worth $20-30 million, executed a prenuptial agreement with Elizabeth before the marriage, but a trial judge declared the agreement unenforceable due to fraud in the inducement.

Crumpled (Woodnick)According to the story, Peter asked Elizabeth to sign a prenuptial agreement three months before the two were to wed in 1998.  The agreement stated that Elizabeth would not be entitled to her share of the community property, but would be given $25,000 for every year of the marriage (a significantly smaller amount than the appreciation of assets she would stand to gain without the agreement).

Elizabeth refused to sign until four days before the wedding when Peter promised to terminate the agreement upon the birth of the couple’s first child.  Although prenuptial agreements typically must be made in writing, the court determined that Peter’s unkept promise fraudulently induced Elizabeth to sign the contract.

Prenuptial agreements are a useful tool for couples who wish to determine the disposition of their own assets in the event of a future divorce – protecting businesses, personal property, and securing assets for children are common reasons that parties might seek a prenuptial agreement.  Such agreements take the form of written contracts and are rarely overturned unless the agreement was acquired by coercion or misrepresentation, or because the documents themselves were not prepared in accordance with written law.

For Arizona prenuptial agreements, A.R.S. § 25-201 et seq. contains provisions outlining the necessary form of a prenuptial agreement, how the agreement should be enforced, and other requirements and restrictions.  Although a prenuptial agreement is enforceable without an exchange of consideration (as is necessary for most other contracts), it must be in writing and must be signed by both parties, at minimum, to have legal effect.

Heart Carabiners (Woodnick)The agreement becomes effective once the parties are married, but will not be enforced if one of the parties misrepresented (or failed to disclose) their assets, coerced the other party into signing, or if the agreement was “unconscionable” at the time of signing (a legal issue for a judge to decide).  Needless to say, the existence of a prenuptial agreement is a critical issue when the marriage begins and if the marriage is dissolved.

If you would like to read the original article in Huffington Post, click here.

Posted in Brad TenBrook, Divorce, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , , | 1 Comment

Child Support and College Tuition

In any marriage dissolution involving children, the parties agree that the best interests of their offspring are important.  The form that those best interests take and the best ways to ensure they are secured, however, can be contentious.  For divorcing couples with adult children or children nearing college age, resolving disputes about their support can be a tricky issue.

In Arizona, family courts lack jurisdiction to order continuing child support for most children once they reach the age of majority.  There are some exceptions outlined in A.R.S. § 25-320; for example, adult children who became disabled before the age of eighteen and are unable to support themselves can continue to receive child support payments.  Another exception provides continuing child support for children who reach the age of majority while attending high school.

Contract (Woodnick)If the parents wish to set aside college funds for an adult child in a divorce, however, they must do so by creating a contract outside of the court’s dissolution decree.  Careful drafting is of paramount importance here because family courts cannot enforce the agreement in supplementary post-dissolution proceedings after the child reaches the age of majority.  See Solomon v. Findley, 167 Ariz. 409 (1991).

When the parties agree that they want to settle college tuition by contract, what should the document say?  Every situation is a little different, of course, but some provisions must be made clear:

First, the parties must agree on the definition of “college” in the contract.  Should the agreement apply to vocational school tuition?  Community college? Should the support payments be made contingent on the adult child pursuing a specific type of degree, like a science degree?  Precision is needed to ensure that the language of the contract encompasses every possibility.  If the parties later disagree on the definitions of terms used in the agreement, lack of careful drafting could result in non-enforcement in a contract action.

Second, the parties must determine the nature and duration of support payments while the adult child attends college.  If the contract obligates one or both parties to pay support until the child receives a bachelor’s degree, for example, the support obligation could extend for much longer than the standard four years needed to complete most baccalaureate programs.  Setting a term limit or making the support contingent on the student taking a minimum number of credit hours and maintaining a minimum GPA could prevent abuse, but might also prematurely cancel support in the event of unforeseen circumstances creating a delay.

Furthermore, the nature of the support is an important consideration.  Will the parties pay for their child’s college tuition only, or will they set aside funds for living expenses, as well?  Do the parties expect their child to take summer courses or earn an income when school is not in session?  Again, the contract must be drafted to incorporate the parties’ intent at the time of the dissolution.  Four years is a long time, and a disgruntled parent might look for a way to discharge their obligation if the contract allows.

Graduation (Woodnick)Third, the parties must agree on the source of funds and how the funds will be saved and distributed to the adult child.  The parties may choose to obligate themselves to pay a percentage of their income into a savings account, purchase education bonds, or to simply pay a percentage of the child’s educational expenses once they enroll.  Creative solutions are fine – some parents may agree that one spouse will transfer GI Bill educational benefits or liquidate some specified assets for their adult child’s college expenses, for example – but they must be described with enough specificity that the contract can be interpreted and enforced years after it was written.

As with any contentious issue in a dissolution action, providing for a child’s future educational expenses is never a “boilerplate” matter.  Even though contracts relating to child support are not enforceable in family courts once the child reaches the age of eighteen, it is usually best to draft them during the dissolution process while all of the parties’ assets and obligations are already being examined.  It can be much more difficult to negotiate child support contracts after the dissolution action concludes.

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Psychologist Accused of Professional Negligence in Boy’s Death

On February 19, Associated Press reported that Hera McLeod, mother of a 15-month-old boy who drowned while in his father’s care, is suing the psychologist who suggested the visitation.  The court-ordered unsupervised visitation came after Margaret Wong, a psychologist who evaluated the boy’s father, told the judge that visitation would be appropriate.

Couch (Woodnick)Now, the boy’s mother alleges professional negligence in a wrongful death suit against Wong.  The attorney representing the boy’s mother said that Wong had a duty to prepare a report with the child’s best interests in mind, rather than merely reaching a favorable conclusion for the boy’s father, who paid for the evaluation.

The boy’s father is also under investigation for the unsolved shooting of his ex-girlfriend in 2003, as well as suspicious circumstances surrounding his mother’s purported suicide in 2008.  McLeod believes that this history, in addition to other abusive episodes and “sexually aberrant behavior,” should have provided a sufficient basis for the psychologist to declare the father unfit for unsupervised visitation.

In Arizona, custody and visitation statutes are expressly directed toward serving the best interests of children.  Mental examinations similar to the one that Wong performed are common components of a court’s determination of parental fitness.  Courts usually permit the parties to reach an agreement regarding who should perform the evaluation and will order a neutral psychologist if they cannot settle the issue on their own.

Rule 35 of the Arizona Rules of Civil Procedure provides guidelines for physical and mental examinations, including the rights of the parties and reporting requirements for examiners.  Under Rule 35(a), the examination may be audio-recorded “unless such recording may adversely affect the outcome of the examination.”  Exams can also be video-recorded upon showing of good cause – in the case of the boy mentioned above, the father’s history of deceptive and manipulative behaviors and the fact that he was permitted to choose the psychologist and pay for the exam would likely constitute good cause for video recording.  Rule 63 of the Arizona Rules of Family Law Procedure provides virtually identical provisions for physical, mental, and vocational evaluations of persons involved in proceedings.

Tapes (Woodnick)A recording of the examination would be useful in the wrongful death/professional negligence context if the exam resulted in adverse consequences in the future, as it did for McLeod’s 15-month-old son.  More importantly, the video may have been analyzed and provided evidence necessary to dispute the validity of the exam before unsupervised visitation was ordered, possibly to the extent of changing the judge’s holding and preventing the tragic death of a boy whose father stood to gain over $500,000 from life insurance policies he previously purchased.

There are many lessons to be learned from this case for professionals and litigants, alike.  In any scenario involving the well-being of children, the best interests of those less able to protect themselves should always take precedence.  Professionals may have specific obligations to their clients and extraneous personal motivations, but they are still members of the community and must consider the effects of failing to discharge their duties each time they act.

Click the following link to read the full story published by Miami Herald: http://www.miamiherald.com/2013/02/19/3242636/mother-sues-psychologist-following.html

Posted in Attorney Guidance, Brad TenBrook, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , | 2 Comments

Bankruptcy and Divorce

Often, a married couple’s decision to divorce comes when they are already considering filing for bankruptcy.  In other cases, bankruptcy is used by one divorcing party as a strategy to discharge some of the financial burdens of the dissolution action.  Because bankruptcy operates under federal law and dissolution is mostly governed by the laws of specific states, their intersection is rarely simple.

Alarm Clock (Woodnick)Here are some key considerations:

Timing

If you are considering both divorce and bankruptcy, timing is everything.  Under Chapter 11, § 362 of the United States Code, a petition to begin bankruptcy proceedings freezes attempts by creditors to assert claims against the debtor’s estate – a legal operation known as an “automatic stay.”  The stay only applies to a dissolution action when “such proceeding seeks to determine the division of property that is property of the [filer’s] estate,” but most dissolutions seek to do just that.  Although committee notes to the statute indicate that divorces which “bear no relation” to the bankruptcy should not be stayed, dissolution property division proceedings stop when bankruptcy begins.

If the bankruptcy filing occurs after dissolution, the parties also must consider the effects of the bankruptcy on asset division and debt allocation.  If the parties to the dissolution are both named on indebted accounts, such as vehicle loans or credit cards, one party’s bankruptcy may not discharge the debt for their ex-spouse.  Creditors could seek to recover some or all of the amount owed from the remaining debtor.

If the parties choose to file for bankruptcy before dissolution, their respective negotiating positions will be much clearer because they will know which debts were discharged.  Bankruptcy proceedings can be lengthy, however, and may result in unnecessary delay if the parties could otherwise have reached a favorable settlement.

Internal Components (Woodnick)Dischargeable (and non-dischargeable) debt

11 U.S.C. § 523 outlines exceptions to the discharge of debt which occurs when bankruptcy is completed.  Among those exceptions are fraudulently obtained moneys, some court judgments, and student loans.  Other well-known exceptions are “domestic support obligations,” including spousal maintenance and child support payments.

The fact that domestic obligations are not dischargeable may provide a false sense of security, however, because non-support components of the dissolution decree could still be discharged.  Negotiated property settlements, for example an equalization payment for the value of a business or a waste claim, may result in money that is due to the other party.  Because this obligation may or may not be classified as a “domestic support obligation,” it could potentially be discharged in the bankruptcy.  The bankruptcy court’s determination of whether an obligation in the dissolution decree is support-based is discretionary and requires specific findings by the judge.

A complex dissolution/bankruptcy scenario can be full of legal hazards to avoid and obstacles to overcome.  Attorneys for each legal action must be willing and able to work together in order to secure the most favorable outcomes for their clients after considering every option.  A family law attorney with inadequate knowledge of bankruptcy law could even run afoul of the statutes if they advise their client to assume additional debt during the dissolution with a planned bankruptcy in the future.

Posted in Attorney Guidance, Brad TenBrook, Divorce, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , , , | 2 Comments