Kansas Supreme Court Rules Against Sperm Donor in Parental Rights Case

The Kansas City Star reported yesterday that the Kansas Supreme Court has ruled against a sperm donor who had challenged that state’s law prohibiting sperm donors from exercising parental rights in the absence of a written agreement between the donor and the birth mother. This case, about which I have posted previously, has been widely watched by scholars and family law practitioners across the country, and is likely to find application beyond Kansas. It is not clear, however, whether the case is likely to have even persuasive value here in Pennsylvania. As I reported previously, the Pennsylvania Superior Court has held that a sperm donor who holds himself out as a parent of the child by, for example, being present at the child’s birth and taking an active role in the child’s life, is responsible for child support. It is not too far fetched to imagine that, on this basis, a Pennsylvania court might find that such a donor had legally cognizable parental rights. would it be much of a stretch to conclude that a donor who was willing to go to court to seek parental rights was in fact holding himself out as a parent? Needless to say, this case answers some questions, and raises many others. Once I am able to obtain a copy of the Kansas Supreme Court’s opinion I will post it here.

When Spouses Use Their Children as a Battleground

All too often, divorcing and divorced spouses use their children as a means to wage their battle against one another. As alleged movie star Alec Baldwin found out recently, using your child as yet another weapon in your war against your ex-spouse not only does incalculable harm to the child, but also makes you look like an ass, and will ultimately have adverse legal consequences, too. baldwin may have hisvisitation rights suspended He says he was driven over the edge by a manipulative ex. Maybe he’s right. But there is never any excuse for verbally abusing your child. For the record, I think that Baldwin made a horrible mistake in judgment. That doesn’t necessarily make him a bad person, and it doesn’t mean he’s a bad father. Let’s hope that he, and we, learn a valuable lesson.

Keeping the Noncustodial Parent Involved in Your Child’s Life

Studies have shown that maintaining a significant role for a noncustodial parent in a child’s life has important benefits for the child, his or her relationship with the noncustodial parent, and even for the custodial parent. Divorce Magazine has published a lengthy article on this subject. read the article in its entirety below the fold:

Supreme Court Declines to Hear Grandparent Visitation Case

The United States Supreme Court has declined to hear a Pennsylvania man’s appeal that raised the question of whether grandparents should be required to show that keeping children away from grandparents would be harmful to the children as a condition for granting the grandparents visitation rights. The Pennsylvania Supreme Court ruled, in Fausey v. Hiller that no such showing is required. In denying Shane Fausey’s petition for certiorari, the Supreme Court declined the opportunity to clarify an area of the law that they left fairly muddled the last time they considered the issue in a case that resulted in a badly splintered Court and multiple opinions.

Amicus Briefs in Supreme Court Grandparent Visitation Case Available Online

Howard Bashman at How Appealing has posted amicus briefs for and against writ of certiorari in a grandparent visitation case currently pending in the US. Supreme Court, Fausey v. Hiller, No. 06-863.Many thanks to Howard for making these available.

Britney Spears Back in Rehab – Again

I usually try to refrain from commenting on celebrity gossip type items on this blog. I don’t think that such “news” is especially meaningful to what I am trying to do here. But the Britney Spears story has finally reached a point where I thought a few words were in order. I do not especially care much about Ms. Spears private life, or that of her soon to be ex-husband, for that matter. But I might suggest that the way she has comported herself of late is not coinsistent with what I would suggest is appropriate behavior for a mom in the midst of a divorce and custody dispute. I am not casting aspersions, or commenting on the circumstances that led Ms. Spears to conclude that a rehab program was in order. But if your state is such that you need rehab, check yourself in and finish the program. Don’t treat the facilities as if they were the revolving door at Macy’s, or the Burger King drive through. Take it seriosuly and see it through. and for crying out loud, don’t shave all your hair off in public on a whim, and stay out partying all night with the Hollywood crowd. This is hardly the portrait of a woman capable of providing a stable home life for two young children. I hope that Ms. Spears listens to the professionals – legal, mental health and others who can help her – and that she gets her life in order. For the sake of her children if for no other reason. This train wreck has gone on long enough.

More on the NY Grandparent Visitation Case

Daniel Clement has posted the following analysis of the New York grandparent visitation decision on his blog, the New York Divorce Report:

The Court of Appeals in Matter of E.S. v P.D., unanimously upheld a constitutional challenge to New York’s grandparent visitation law.

In upholding the New York Law which permits grandparents, under certain circumstances, to seek visitation with their grandchildren, the Court distinguished the New York law from the overly broad Washington law struck down by the United States Supreme Court in Troxel v Granville (530 US 57 [2000]).

The statute invalidated in Troxel permitted “‘[a]ny person’ to petition for visitation rights ‘at any time,’ and authorize[d] that court to grant such visitation rights whenever ‘visitation may serve the best interest of the child'” (Troxel, 530 US at 60 [quoting Wash Rev Code § 26.10.160(3) (1994)]). The Washington statute explicitly applied a presumption in favor of grandparent visitation, placing on the parent “the burden of disproving that visitation would be in the best interest” of her children.

The New York Statute, on the other hand, presumes that the parent’s wishes represent the best interests of the children.  The Court noted that:

. . . courts should not lightly intrude on the family relationship against a fit parent’s wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one. And while, as we made clear in Wilson, the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. “It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement” (Lo Presti v Lo Presti, 40 NY2d 522, 526 [1976]).

While this presumption creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost four until he was seven, grandmother was his surrogate, live-in mother. The court then properly went on to consider all of the many circumstances bearing upon whether it was in the child’s best interest for his relationship with grandmother to continue — e.g., the reasonableness of father’s objections to grandmother’s access to the child, her caregiving skills and attitude toward father, the law guardian’s assessment, the child’s wishes — before making a judgment granting visitation.

Section 72(1) of the Domestic Relations Law states that

“[w]here either or both of the parents of a minor child, residing within this state, is, or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to [supreme or family court] and . . . the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.”

Section 72(1) “does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek [*5]visitation with a minor grandchild” (Matter of Wilson v McGlinchey, 2 NY3d 375, 380 [2004] [internal quotation marks and citation omitted]). When grandparents seek visitation under section 72(1), the court must undertake a two-part inquiry. “First, [the court] must find standing based on death or equitable circumstances”; and “[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild” (Matter of Emanuel S., 78 NY2d at 181

Source: New York Divorce Report.

New York Court Upholds Grandparent Visitation

The New York Court of Appeals, that state’s highest court, has upheld the state’s grandparent visitation statute. The law permits grandparent visitation rights where it is shown that one parent is deceased, or equity would otherwise warrant such visitations. As I noted in a previous post on this issue, the Pennsylvania Supreme Court in a recent case, likewise found that orders requiring grandparent visitation do not violate the custodial parent’s 14th amendment right to raise his or her children as he or she sees fit. A petition for certiorari, seeking review in the United States Supreme Court, has been filed in the Pennsylvania case. Whether in the context pf the Pennsylvania case or otherwise, there can be little doubt that the Supreme Court will ultimately have to weigh in on this issue again.

What to Do If Your Ex Wants to Move to Another State With The Kids

For any non-custodial parent, one of the hardest things to have to confront comes when the ex-spouse wants to relocate to another state with the children. The prospect of being hours away from the children, connected primarily by telephone contact and occasional visits, can be frustrating and scary. Pieter Droppert, who formerly published the New Jersey Family Law Blog, offered some sound practical advice for the non-custodial parent facing this situation (reposted on Grant Griffiths’ Kansas Family and Divorce Lawyer). Check out the full post below the fold:

New York Court of Appeals to consider grandparent visitation

Today’s New York Sun contains this article about a case now pending before the New York Court of Appeals – that state’s highest court – that involves the constitutionality of court ordered grandparent visitation. As the author correctly notes, when the Supreme Court last took uo the issue the case resulted in a court so fractured – 6 opinions were issued – that the decision provides oittle practical guidance. Closer to home, the Pennsylvania Supreme Court has ruled that such orders do not violate the parents’ constitutional right to raise their children as they see fit (link to the majority opinion here). Howard Bashman, publisher of the How Appealing blog, is appellate counsel to the losing party in that case, and has filed a petition for a writ of certiorari to the United States Supreme Court. You can be certain that the US Supreme Court will have to take up the issue eventually.