Posts Tagged ‘child custody’

Arizona Appellate Decision Addresses Interesting Parentage Question

OCTOBER 17, 2016 VOLUME 23 NUMBER 39
Kelly and Sam are a married couple. They want to have a child, but cannot do so together, so they agree that Kelly will undergo artificial insemination. The process is successful, and Kelly delivers a beautiful baby boy, Edward.

Does Sam have any duty to support Edward? If Kelly and Sam get divorced, will Sam have any chance at custody, or joint custody, of Edward? If not, does Sam have any right to visitation with Edward?

Take this question forward a few years. Imagine that Kelly and Sam do get divorced, and Sam dies shortly after the divorce is final (without having written a will). Does Edward get any share of Sam’s estate — or perhaps Sam’s entire estate?

These questions may seem easy. Yes, of course Sam has a duty of support. Of course Sam has a chance at custody (and in any event, visitation) upon Kelly and Sam’s divorce. Of course Edward is an heir to Sam’s estate.

Oh — we left out an important element. Kelly and Sam are both women. Their marriage is recognized because of the 2015 U.S. Supreme Court decision in Obergefell v. Hodges. That landmark court decision holds that same-sex marriages are entitled to the same legal status, protections and liabilities as heterosexual marriages.

Arizona law says that when a child is born to a married couple, the husband is presumed to be the child’s father. Does that mean that a same-sex partner is presumed to be the father? Or a second mother? And if the law creates just a “presumption” of paternity, can that be overcome by proof of the biological impossibility of one woman impregnating another?

This is an interesting thought experiment — except that it’s a real question in an actual Arizona court case. We’ve changed the names of all the principals, but this very story played out in a courtroom in Tucson last spring. Kelly had filed for a divorce, and argued that Sam had no right to consideration for custody of or visitation with Edward.

The trial court judge determined that it would be impermissible to create a presumption for a married man that would not apply to a similarly-situated spouse just because she was a woman. Besides, Kelly and Sam had entered into an agreement before Edward was born — they had agreed to be treated as co-equal parents and to seek a “second parent” adoption if they ever resided in a state that permitted same-sex couples to formally adopt one another’s children (Arizona does not clearly authorize such proceedings).

Kelly sought review by the Arizona Court of Appeals, which agreed to take the case under “special action” jurisdiction (even though the underlying case has not been concluded). Last week the Court of Appeals agreed with the trial judge — though with a slightly different shading in their interpretation. As the appellate court notes, the “presumption” that a married partner is the father of a child born during the marriage is not based only on biology. It is also partly a response to the social policy that favors giving a child a right to support from and attachment to a person who has assumed the role of parent.

None of that, ruled the appellate court, is different just because Sam is a woman. Accordingly, the custody/visitation/support case should proceed as if the Arizona statute was gender-neutral, and Sam should enjoy the presumption that she is Edward’s parent. McLaughlin v. Jones, October 11, 2016.

Kelly and Sam’s legal case is (we think) a fascinating analysis of the differences we have to confront as same-sex marriage becomes clearly embedded in our legal framework. But, because of what we do here at Fleming & Curti, PLC, we’re mostly interested in the probate and inheritance implications of their legal case.

Clearly, Edward is now an heir of Sam. If Sam were to die without writing a will, a portion of her estate — and perhaps all of her estate — would pass to Edward. If Kelly were to die, Sam would have the right to full custody of Edward — even if Kelly had nominated someone else to serve as Edward’s guardian.

Interestingly, the words “father” and “mother” do not appear anywhere in Arizona’s Probate Code (Title 14 of the Arizona Revised Statutes). References to “parent” or “parents” should be easy to work with, and the gender of a decedent’s spouse is irrelevant under existing probate law.

In another generation, though, there will be some oddities. If, for example, Edward were to grow up, have children of his own and then die without writing a will, his estate might pass half to his “maternal” and half to his “paternal” family lines. We can hope that by that time, Arizona’s statutory language will have caught up with the times.

Young Man’s Father Secures Guardianship After Summer Visit

OCTOBER 3, 2016 VOLUME 23 NUMBER 37
Sometimes a legal proceeding in another state can help illustrate the procedures in your own state — because they are different. A guardianship case in Georgia last week is a good example.

Melvin Peters (not his real name) is twenty-one years old, and he lives with his father in Georgia. Melvin has an autism diagnosis, which he first acquired when he was three. When Melvin was twelve, his mother was given custody in a North Carolina proceeding.

Every summer Melvin traveled to his father’s (and stepmother’s) home in Georgia for a long visit. That arrangement apparently worked well, until last summer. Melvin (then twenty) refused to return to North Carolina.

At the end of last summer, Melvin’s father filed a guardianship petition in Georgia. He alleged that Melvin need a guardian appointed; though he could make some of his own decisions, his father insisted that he “needs ongoing guidance.” Melvin’s court-appointed attorney met with him, confirmed that he wanted to live with his father, and reported to the court that it would be in Melvin’s best interest to stay with his father in Georgia.

Melvin’s mother objected, and argued that the Georgia courts did not even have jurisdiction. She argued that he was really a resident of North Carolina, and any guardianship proceeding should be brought there.

The Georgia court disagreed, and proceeded to appoint Melvin’s father as his guardian. Melvin’s mother appealed, and the Georgia Court of Appeals upheld the order. Melvin will, according to the court, continue to live with his father in Georgia. Estate of Pond, September 27, 2016.

How would Melvin’s case be different in Arizona? In several ways.

First, Arizona has adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (the UAGPPJA). That law mandates that a guardianship not be brought in a state where the proposed ward has lived less than six months (except in limited circumstances, none of which look like they would apply in Melvin’s situation). Well, actually, Georgia has also adopted the law — but not until this Spring. It became effective in Georgia on July 1, 2016 — well after the ruling in Melvin’s case.

The UAGPPJA is intended to reduce or eliminate guardianship filings in states where the subjects of the proceedings are just visiting. More importantly, it is intended to keep family members from taking an incapacitated person back to their home state before filing court proceedings. It has been adopted in almost every state (Florida, Texas, Kansas, Wisconsin, and Michigan are holdouts).

Another difference: in Arizona, as of August of this year, any custody order for a minor child would create a presumption about the child’s best interests after they turned eighteen. If Melvin’s father lived in Arizona, that would mean that he would have to show why the earlier custody arrangement needed to be modified, and the court would look to Melvin’s mother as the presumptive guardian.

Of course, if Melvin’s father had filed a similar proceeding in Arizona a year ago, that new law would not have been in place. Still, prior custody orders are supposed to be attached to any guardianship petition, and the guardianship court would probably have wanted to know why the same arrangement should not be continued after the incapacitated child’s majority.

That raises another likely difference: Arizona’s preference for limited guardianship. Although it is hard to be certain from the court’s description of Melvin, it seems likely that he would be viewed as pretty much able to make his own personal decisions in Arizona. If a guardian was appointed, it might well be a “limited” guardian — meaning that Melvin would be able to make his own decisions about where he lived (and who he lived with), and maybe even about his own health care decisions.

In fact, Melvin sounds like he might be a good candidate for the emerging notion of “supported decision-making“, under which he might avoid the guardianship process altogether. Arizona has no formal supported decision-making statutes — yet. That might well change as the system slowly shifts toward more autonomy and dignity for subjects of guardianship and conservatorship proceedings.

Would Melvin’s story have played out the same way if he had spent the summer with his father in Arizona? Almost certainly. But then he would have been spending his summers in Arizona, and that does seem unlikely.

State Court Does Not Control Social Security Payments

MAY 12, 2014 VOLUME 21 NUMBER 17

At Fleming & Curti, PLC, we do not handle divorce cases. From time to time, though, a divorce case raises the same kinds of issues that we see in the guardianship, conservatorship and probate cases we do handle.

A recent Arizona Court of Appeals decision is a case in point. It involves the divorce of a Navajo County, Arizona, couple, Donna and Edward. When the couple divorced in 2009, Donna was awarded custody of their four children. Edward was ordered to pay child support.

When Edward began collecting Social Security benefits on his own account, the children were entitled to receive $362 each per month. Social Security named Edward as “representative payee,” which meant that the children’s checks were made payable to him and he was required to account to the Social Security Administration each year.

Donna filed a petition with the divorce court to modify the support and visitation orders. She also alleged that Edward had been taking the children’s Social Security money and spending it as he saw fit — and that she should be the representative payee since she had sole custody of the children. At some point she apparently applied to Social Security to become the payee, and the payments were switched to her name. Still, she wanted Edward to account for — and return — the payments received for a nine month period starting right after the divorce.

The judge in the divorce court agreed, and entered a judgment against Edward (and in favor of Donna) for the amount of the payments he found to have been “misappropriated.” The judge also held Edward in contempt for failing or refusing to turn over the Social Security.

Edward appealed, and the Arizona Court of Appeals briefly reviewed the interrelationship of Social Security, state law and state courts. According to the appellate judges, Arizona state courts do not have any jurisdiction to review the management of Social Security payments made to a representative payee. The proper place to challenge Edward’s use (or possible misuse) of those funds was before the Social Security Administration itself. Peace v. Peace, May 8, 2014.

The Arizona appellate court, incidentally, was very candid in its assessment of the legal principles. It noted that some state courts (not in Arizona) have decided that they do have jurisdiction over Social Security representative payees, and others have held that state courts are preempted by federal law from intervening. The Arizona opinion specifically mentions a minority opinion in a 2013 Vermont case, LaMothe v. LeBlanc, which reviewed the holdings in several states — including Alaska, Maine, North Carolina, Ohio, Iowa and Tennessee.

What is the significance of the recent Arizona holding in probate court? An analogous situation arises frequently. Suppose that a parent with a disability receives Social Security benefits, and that his or her minor child is entitled to Social Security benefits. Now suppose that a grandparent or other family member has become guardian for the child, or that a professional fiduciary has become conservator to handle a personal injury settlement. Can the Arizona probate court order the parent to turn over Social Security payments, or to prove that they were expended for the child’s benefit, or even to relinquish authority as representative payee? The Peace decision would seem to say that none of those decisions are within the purview of the probate court — the guardian’s, conservator’s or custodial parent’s dispute is with Social Security, not the state courts.

Custody of Grandchild Requires Court Consideration of Best Interests

AUGUST 19, 2013 VOLUME 20 NUMBER 31

National Grandparents Day is September 8th this year. That should serve as a reminder for us to consider changing demographics: grandparents (and great-grandparents) are living longer, and increasingly fractured families are changing our expectations and default assumptions about caring for children.

More grandchildren are being raised by their grandparents every year. In fact, researchers (and U.S. Census Bureau statistics) indicate that about 7% of children are now living in households headed by a grandparent; that is more than double the 3% figure of 1970. That trend appears to have been accelerated by patterns of drug use by parents and by recent economic troubles.

It should be no surprise that problems and conflict between parents and grandparents should also be on the rise, and that the legal system would be involved. A recent Arizona Court of Appeals case illustrates some of the legal principles, and demonstrates how seniors can be involved in caretaking for their grandchildren.

David Brandon (not his real name) is the father of young Ricky; David’s wife (and Ricky’s mother) died shortly after Ricky was born. When Ricky was not quite two years old, his maternal grandmother and aunt (Kathy and Alicia) filed a petition with the Court seeking custody of Ricky.

Kathy and Alicia alleged that Ricky had lived with them since he was two months old, and that David had infrequent contact with him. Grandmother and aunt sought a ruling from the judge that they were “in loco parentis,” (literally “in place of a parent“) with little Ricky. The significance of such a ruling: if the court found that Kathy and Alicia were in loco parentis, under Arizona law they could be given partial or even exclusive custody of the child.

The court conducted hearings over several days. The testimony was contradictory; several witnesses testified for Kathy and Alicia that they were the primary caretakers for Ricky, and several other witnesses swore that David was raising his son without their help. The judge could not decide who was telling the truth, and decided to leave a temporary custody order in place, giving aunt Alicia primary custody for the time being.

David appealed (technically, he filed a “special action,” since there had not been a final order in the custody dispute — but we digress). The Court of Appeals looked at the record and court rulings, and found that the trial judge had failed to complete his responsibility. He had not received testimony on, nor made any findings about, what would be in Ricky’s best interest. The Court returned the matter to the trial judge with instructions to make findings about what would be best for Ricky. Barkley v. Blomo, August 6, 2013.

Strategically this outcome probably favors David, Ricky’s father. That assertion is not based on any knowledge about him or his caretaking abilities; there is a presumption in Arizona law that a child’s best interests are usually served by being raised by parents. That means that Kathy and Alicia will have the burden of proving that continued custody (or shared custody, or visitation) would be in Ricky’s best interests.

We have written from time to time about grandparent custody and visitation proceedings. The legal trend has run counter to the demographic trend: even as the frequency of grandparent custody has increased in recent years, the legal standards have tightened, making it more difficult to secure court approval for those arrangements.

Adoption By Grandparents Set Aside Years Later As Fraudulent

JANUARY 13, 2003 VOLUME 10, NUMBER 28

As American families become more mobile and previously unusual family relationships become more common, grandparents are increasingly likely to be involved in raising their grandchildren. This has led to an increase in the legal problems faced by seniors, especially when family members become less cooperative with one another. The unusual legal problem faced by Gerhard and Nanett Wunderlich of Arkansas provides one example of what can go wrong.

Mr. and Mrs. Wunderlich’s daughter Rebecca was married to Roy Duncan for two years. “W.W.” (the court describes her only by her initials) was born to the couple six weeks before they separated. In the divorce Mr. Duncan was ordered to pay $200/month in child support; Rebecca and W.W. moved in with the Wunderlichs.

As happens too often, Mr. Duncan failed to make his child support payments. Since Rebecca was receiving welfare the state Office of Child Support Enforcement sued him for unpaid child support. Mr. Duncan responded by filing a petition to enforce visitation with his daughter, whom he had never seen, and Rebecca and her parents became very concerned about the possibility that he might become involved in his daughter’s life.

Mr. and Mrs. Wunderlich proposed that they could adopt W.W., thereby cutting off Mr. Duncan’s parental rights. Although Rebecca later insisted that she was reluctant to go along with this plan, she agreed after her mother assured her that the adoption would be on paper only, and that she would continue to be W.W.’s real mother. Mr. Duncan signed the paperwork giving up any rights in return for a waiver of the child support claim against him, and Rebecca and W.W. continued to live with her parents.

Then Rebecca married Joe Alexander, and W.W. went to live with the newlyweds. When she and her parents quarreled about money, Mr. and Mrs. Wunderlich forcibly took W.W. back into their home and refused to allow the new Mrs. Alexander to visit her daughter.

Rebecca Alexander filed a petition to set aside the adoption, saying that it had been a fraud in the first place. Her parents pointed out that state law permits challenges to adoptions only in the first year after they are finalized.

By a 5-4 vote the Arkansas Court of Appeals decided that it was permissible to void the adoption and return W.W. to her mother’s care and custody. The Wunderlichs had never actually “taken custody” of W.W. in the first place, decided the appellate court, so the one-year limitation should not apply. Wunderlich v. Alexander, December 18, 2002.

Surviving Parent Not Entitled To Custody Of Disabled Child

MARCH 15, 1999 VOLUME 6, NUMBER 37

Parents of minor children are usually entitled to have custody of those children. In a divorce proceeding the court will decide which parent should retain custody of the child, or whether custody should be shared. Of course, those proceedings are often hotly contested and may result in bitterness and distrust.

Frequently, the custodial parent wishes to make arrangements for the future placement of the child in the event of the custodial parent’s death. Because the legal system protects the rights of parents to raise their own children, however, the designation of a non-parent as guardian of the child will ordinarily be ineffective; upon the death of the custodial parent, the surviving parent has the presumptive right to take custody of the child.

That is what happened in the Illinois case of Kirsten Johnson. When her mother Barbara died in 1995, Kirsten’s aunt Vera Howse petitioned for guardianship of Kirsten, then 16. Although Barbara’s will named Vera as guardian, and the trial court agreed that her appointment was in Barbara’s best interests, the Illinois Court of Appeals reversed her appointment, ruling that Kirsten’s father Eric Johnson was able and willing to take custody, and the appointment of a guardian was therefore inappropriate.

In Kirsten Johnson’s case, however, that was not the end of the issue. As a result of an automobile accident when she was nine, Kirsten’s ability to make her own decisions is limited. She not only sustained a serious head injury in that accident, she also has a sizable estate as a result of a lawsuit filed after the accident. She owns the home where she lives (with Vera and several other family members) and an annuity which will make payments totaling over $4 million.

Coincidentally, the Court of Appeals decision directing that Kirsten’s father be given custody was rendered just one month before her eighteenth birthday. Two days after the court order, Vera filed a petition to be appointed guardian of Kirsten under the guardianship system dealing with disabled adults. Eric Johnson objected, arguing that his priority as father should be as strong in adult guardianship cases as it is in minor custody issues.

After the trial judge appointed Vera as guardian, Eric appealed. Once again the Illinois Court of Appeals was faced with the question of who should have control over Kirsten’s future.

The answer on this second trip to the Court of Appeals was different. The judges pointed out that the rights of parents to raise their own children are no longer at issue when the children are of legal age, and the question therefore becomes one of the best interests of the disabled adult. In addition, the guardianship law provides that the wishes of the disabled person be strongly considered in making the choice; Kirsten Johnson was clear that she preferred to live with her aunt Vera. In re: Estate of Johnson, March 2, 1999.

The legal battle over custody of Kirsten Johnson was lengthy, costly and divisive. Both sides leveled accusations of impropriety–Eric Johnson pointed out that the home in which Vera and Kirsten lived had been purchased with Kirsten’s money from Vera, and that Vera paid no rent. He also suggested that Kirsten had been coached to tell court personnel that she preferred to live with her aunt. Vera, on the other hand, pointed out that Eric had been delinquent in child support payments and had not participated in Kirsten’s care before his ex-wife’s death. In the end, however, the central question was what would be in Kirsten’s best interests.

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