Iowa Divorce and Family Law

U.S. Supreme Court Accepts Certiorari in QDRO Case

The United States Supreme Court accepted certiorari in the 5th Circuit case of Kennedy v. E.I. Dupont, 497 F.3d 426 (5th Cir. 2007). The issue the Court will consider is limited to whether a Qualified Domestic Relations Order (QDRO) is the only valid way a divorcing spouse can waive her right to receive her ex-husband's pension benefits under ERISA.

The case involves a former spouse who waived her right in the divorce decree to receive any part of her husband's "saving and investment plan" provided by Dupont. The husband was the "participant" in the pension plan; the wife would have been the "alternate payee" had she received a portion of the husband's plan benefits. The plan qualifies as a qualified ERISA plan. After the divorce, the ex-husband/employee never changed his beneficiary designation before his death. The plan paid the ex-wife and the husband's estate sued the pension plan. The 5th Circuit held the waiver of the wife's beneficial interest in the divorce decree was prohibited by ERISA's "anti-alienation" provisions. The 5th Circuit Court of Appeals decided that the only method by which a participant's or beneficiary's interest in an ERISA-covered plan can be accomplished is by QDRO. The court also noted that the cases involving waivers of ERISA-covered life insurance policies are not applicable here since those are welfare plans and not pension plans there therefore the anti-alienation provisions are not applicable. There is a conflict of decisions by the various federal courts of appeal on this issue.

The 5th Circuit Court of Appeals decision is available in PDF format here. (URL last visited 2/20/2008).

Iowa Court of Appeals Decisions for February 13, 2008

Selected family law decisions from the Iowa Court of Appeals issued February 13, 2008, are available here.  No Chapter 232 termination of parental rights decisions are included.

Marriage Tames Geniuses and Criminals

According to a study by a psychologist at the University of Canterbury in New Zealand:

Creative genius and crime express themselves early in men but both are turned off almost like a tap if a man gets married and has children, a study says. Satoshi Kanazawa, a psychologist at the University of Canterbury in New Zealand, compiled a database of the biographies of 280 great scientists, noting their age at the time when they made their greatest work.

The data remarkably concur with the brutal observation made by Albert Einstein, who wrote in 1942: "A person who has not made his great contribution to science before the age of 30 will never do so." "Scientific productivity indeed fades with age," Dr Kanazawa says. "Two-thirds (of all scientists) will have made their most significant contributions before their mid-30s."
But, regardless of age, the great minds who married virtually kissed goodbye to making any further glorious additions to their CV.
Within five years of making their nuptial vows, nearly a quarter of married scientists had made their last significant contribution to history's hall of fame. "Scientists rather quickly desist (from their careers) after their marriage, while unmarried scientists continue to make great scientific contributions later in their lives," says Dr Kanazawa.
The energy of youth and the dampening effect of marriage, he adds, are also remarkably similar among geniuses in music, painting and writing, as well as in criminal activity. Previous studies have documented that delinquents are overwhelmingly male, and usually start out on the road to crime in their teens. But those who marry well, subsequently stop committing crime, whereas criminals at the same age who remain unmarried tend to continue their unlawful careers.
Dr Kanazawa suggests "a single psychological mechanism" is responsible for this: the competitive edge among young men to fight for glory and gain the attention of women. That craving drives the all-important male hormone, testosterone. Dr Kanazawa theorises after a man settles down, the testosterone level falls, as does his creative output. The study appears in in the August issue of the Journal of Research in Personality, published by the Elsevier group.
Text Source: ABC News Online.

Iowa Court of Appeals Decisions for January 16, 2008

The first set of 2008 selected family law decisions from the Iowa Court of Appeals is available here.  No Chapter 232 termination of parental rights decisions are included.

Iowa Court of Appeals Decisions for January 30, 2008

Selected family law decisions from today's decisions by the Iowa Court of Appeals can be found here.  No Chapter 232 termination of parental rights decisions are included.

Schott v. Schott - No Collateral Attack on Prior "Second Parent" Adoption

Today's Iowa Supreme Court decision in Schott v. Schott, available in PDF format here, concerns prior "second parent adoptions" issued by an Iowa court and another Iowa court's subsequent collateral attack on the validity of the adoptions in a later child custody proceeding.  In the case, the two female parties obtained valid, unappealed, and unchallenged Iowa adoptions to two children.  One of the parties is the biological parent of both children; the other party legally adopted both of Jamie's children.  Subsequently, the parents' relationship deteriorated and each parent asserted claims of custody/visitation with the trial court.

The opinion indicates that there was no question that the prior, underlying adoptions were properly obtained, as all necessary consents given, and that neither party, nor any third-party, challenged the validity of or the authority of the adoption court to grant the adoptions at that time.  In fact, this case is unusual in that neither party ever contested the validity of the adoptions.  The appeal arose only when a subsequent Iowa court in 2007 raised the issue of subject matter jurisdiction in the custody/visitation case approximately three years after the 2004 adoption of the youngest child.   (The older child's adoption occurred in 2001).  It is unclear from the opinion how the issue of custody was presented to the trial court, but the opinion does hold that Iowa trial courts, being courts of general jurisdiction in both law and equity, have "inherent power and jurisdiction in all proceedings involving custody and care of minor children."  Both parties appealed the district court's dismissal of the case on the basis that because Heather's adoptions of Jamie's children were contrary to Iowa law and therefore invalid, the district court lacked subject matter jurisdiction to consider any custodial/visitation issue concerning the children. 

The Iowa Supreme Court held that it was reversible error for the district court to collaterally attack and invalidate the prior adoptions.  While the district court may have disagreed with the finding of the earlier adoption court that a "second parent" adoption is permitted under Iowa law, the adoptions remained lawful and valid as "an adoption may be only be collaterally attacked if the district court granting the adoption lacked jurisdiction over the person or subject matter, or on due process grounds by a natural parent."  As the Supreme Court found none of those grounds existed, the adoption decrees remained valid and both parties remained legal parents.  Therefore, as legal parents, both parties were entitled to put their claims for custody/visitation before the court.

The Schott decision appears to be limited to situations involving existing, final "second parent" adoptions, as the Court expressly held it "need not decide whether second parent adoptions are permissible in Iowa for the purposes of this appeal."  Thus, the question posed by the district court in its initial action that gave rise to this appeal reamins unanswered. (i.e., the trial court's interpretation that Iowa's adoption statute "does not allow an unmarried adult to adopt a child without terminating the parental rights of both natural parents").

Schott v. Schott, No. 07-0610, January 18, 2008.  (last accessed 1/18/08)

Children's Representative in Custody Cases

The Anderson case from the Iowa Court of Appeals last week contains an interesting discussion about the differences between a "guardian ad litem" and an "attorney" appointed to represent children under Iowa Code 598.12. As the Anderson case illustrates, there are considerable differences between the rights and responsibilities of a guardian ad litem and an attorney appointed to represent the children.

The approach and terminology set forth in Section 598.12 has been abandoned as outdated by many child-advocate organizations and several states. Instead, a much more contemporary and practical approach is recommended by the ABA. The current model statute, which Iowa should adopt, can be found here. Even a quick read of the model statute begins to expose some of the problems of current Iowa law. The title of the act alone ("Uniform Representation") references an issue that occurred in the Anderson case - the lack of an order that clearly distinguishes the differences between a "GAL" and "best interests" advocate (attorney or not) in each case. The model act would go a long way to ensuring the best interests of Iowa's children are being met once their parents cannot agree and court involvement is necessary.

"Taking Marriage Private"

Today's New York Times contains this article on the historical development of increased governmental regulation of marriage, something traditionally (at least until the 19th century) left to the church in America.  The issuance of a marriage license used to be a societal signal telling others about the status of a relationship.  That is becoming increasingly less so:

Today, however, possession of a marriage license tells us little about people’s interpersonal responsibilities. Half of all Americans aged 25 to 29 are unmarried, and many of them already have incurred obligations as partners, parents or both. Almost 40 percent of America’s children are born to unmarried parents. Meanwhile, many legally married people are in remarriages where their obligations are spread among several households.

One point of interest to Iowa readers:  The author's comments about common-law marriage do not apply in Iowa.  Iowa is one of a just a few states that continues to recognize common-law marriage as being equally valid as a marriage with a piece of paper (the "license") issued by the state.

Interesting Decision re. Federal Prosecution for Non-Payment of Child Support

In an interesting (in a lawyerly kind of way) decision, the Eleventh Circuit Court of Appeals overturned the federal conviction of a father who failed to pay child support.  The Court found that the federal statute in question, the "Child Support Recovery Act," 18
U.S.C. § 228(a)(1) (2000), requires that the "government must prove that the defendant knew his child resided in another state."  In this particulate case, it was alleged that the custodial parent moved the child from state to state and that the defendant/payor did not know where his child lived.  Although the government argued that the the statute's requirement that the child reside in a different state than the payor was merely jurisdictional, the Court found otherwise and held that knowledge of the out-of-state residency requirement was a substantive element of the statute required for conviction.

How the Court arrived at this conclusion is itself very interesting, particularly the concurring opinion's use of an exchange between two Senators discussing the legislative history of an unrelated statute.

Decision:  U.S. v. Fields.

Disinterment Rights

While not a "family law" case in the traditional sense, today's Iowa Supreme Court decision of Stark v. Stark does implicate spousal rights.  In the case, the surviving spouse of the deceased husband sought to disinter and rebury the husband's body apparently because he was buried "near plots owned by Audrey, his first wife, and the Stark children."  The surviving spouse applied for and received a permit from the Iowa Department of Public Health to do so.  The children then obtained an injunction in district court permanently enjoining the surviving spouse from disinterring the remains. 

The Supreme Court's decision follows traditional statutory interpretation principles and does not open new legal ground in any substantive respect beyond the facts of the case.  But the facts of the case and the relative (no pun intended) rights of the various parties involved are something to be considered, as this is probably an emotional issue (i.e., where to or who decides where to bury a parent/former spouse) that arises more frequently than one would otherwise suspect.

Iowa Same-Sex Marriage Prohibition Found Unconstitutional

In a long anticipated ruling, the Polk County (Iowa) District Court has found Iowa's statutory prohibition against same-sex marriage to be unconstitutional as a denial of due process and equal protection.  The ruling is available here (Varnum v. Brien) and will no doubt be available soon on numerous other sites on the internet.

An appeal is expected.  Under Iowa's appellate rules, the defendant, the Polk County Recorder (who issues marriage licenses under Iowa law) has a right of direct appeal to the Iowa Supreme Court, which may retain the case or refer it to Iowa's only other appellate court, the Iowa Court of Appeals.  The plaintiffs in the case are 14 men and women comprising six same-sex couples, who applied for, and were refused, marriage licenses in Polk County, Iowa.

No "presumption" or "preference" for Joint Physical Care

The Iowa Supreme Court today issued its first opinion discussing the impact of the 2004 legislative changes to Iowa's child custody law.  The case is In re Marriage of Hansen.  In a lengthy (40 page) decision, the Court holds that "the 1997 and 2004 legislation did not create a presumption in favor of joint physical care.  There is simply nothing in the language of the amendments that supports such an assertion." 

The opinion is also notable for its extensive citations to social science research and studies.  The Court sums up this research as follows: "At present, the available empirical studies simply do not provide a firm basis for a dramatic shift that would endorse joint physical care as the norm in child custody cases." 

The decision emphasizes "stability and continuity of caregiving" as "important factors that must be considered in custody and care decisions."  The Court goes on to note its endorsement of, but not wholesale adoption of the American Law Institute's "approximation rule," which states that custodial responsibilities should be allocated "so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation...."

The Court also emphasized the "ability of spouses to communicate and show mutual respect" as a "second important factor" in determining the appropriateness of joint physical care. 

In sum, the opinion is a clear rejection of the arguments that joint physical care is a "preferred" custodial award following the 2004 legislative amendments to Chapter 598.

Court-Appointed Counsel for Canine

Ron Callan Jr. left an estate worth about $2 million, but the most hotly contested item in the late businessman's Tennessee probate court case is his 13-year-old golden retriever, Alex. The four-way fight over custody of Alex was so intense that a judge appointed an attorney to represent the dog's interests. A judge on Monday approved a consent order to split custody of the dog based on the recommendations of the guardian ad litem, The Commercial Appeal reported. "Obviously, this is a very unusual set of circumstances," attorney Paul Royal wrote of his four-legged client. "At first glance, the petition seems almost frivolous, but after speaking with all parties, it is evident that this is a highly emotional issue for all involved."

Callan, whose New Year's Day shooting death was ruled a suicide, left no will, leaving the court to decide what to do with the dog and the rest of the estate. Callan, 35, was a partner with his father in Callan Salvage & Appraisal Co. His father, Ronald Callan Sr., who was named administrator of his son's estate, has had an ongoing dispute with former wife Esther Snow Gnall over ownership, care and custody of their son's dog. Ronald Callan even claims his ex-wife tried to pay one of his employees to kidnap Alex, an allegation she denies. Also interested in who got the dog was Kim Guill, the fiancee of Ron Callan Jr., who was present when he died. Gnall said that if she gets custody or visitation with Alex, she would allow Guill to spend considerable time with the dog. Royal, the dog's attorney, said in his report to the court that he believes all four people love Alex and would take good care of him. But he said the parties are using the fight for the dog as a means of punishing each other for past transgressions. The elder Callan currently has custody of Alex and brings him to work, where he stays in his office. Callan Sr., who has cats at home, has Alex spend his nights with Chris Griffith, his son's former girlfriend who has known him since he was a puppy.

In the consent order, the father and mother will trade custody every two weeks. Both parties agreed to take the dog to the veterinarian twice a week for his arthritis treatments and any other needed procedures. "This case is similar to a bitter custody battle involving children where each party loves the children, but the kids are stuck between two people who cannot coexist," the attorney said in his report.

Source: Associated Press, via Law.com.

Divorce Rates Lowest Since 1970

The Associated Press reports that "Despite the common notion that America remains plagued by a divorce epidemic, the national per capita divorce rate has declined steadily since its peak in 1981 and is not at its lowest level since 1970. The national divorce rate has dropped from 5.3 divorces per 1,000 people at its peak in 1981 to 3.6 per 1,000 people, the lowest rate since 1970.

Yet Americans aren't necessarily making better choices about their long-term relationships. Even those who study marriage and work to make it more successful can't decide whether the trend is grounds for celebration or cynicism. Some experts say relationships are as unstable as ever -- and divorces are down primarily because more couples live together without marrying. Other researchers have documented what they call ''the divorce divide,'' contending that divorce rates are indeed falling substantively among college-educated couples but not among less-affluent, less-educated couples.

What's fueling that decline? The number of couples who live together without marrying has increased tenfold since 1960; the marriage rate has dropped by nearly 30 percent in past 25 years; and Americans are waiting about five years longer to marry than they did in 1970. One of the researchers whose studies detected the ''divorce divide'' is University of Maryland sociologist Steve Martin. Comparing marriages from early 1970s to those of the early '90s, Martin found that the rate of breakups within 10 years of marriage dropped by one-third among college-educated women while remaining stable among less-educated women. ''Overall, marriages will become more stable only if the lower two-thirds of the population starts behaving like the top third,'' Martin said. ''There's a lot of debate -- is that possible? Can marriage training or other programs give all couples the sort of relationship skills that people imagine college graduates have?''

Stephanie Coontz, who teaches history and family studies at Evergreen State College in Olympia, Wash., says divorces are dropping in the college-educated sector because many spouses ''are learning how to negotiate marriages based on less rigid gender roles than in the past.'' ''College-educated wives are more likely to work than less-educated wives, and a recent study found that unlike the past, a wife's work now tends to stabilize marriage,'' she said.

The per capita divorce rate is different from another method of calculation -- the percentage of marriages that will eventually end in divorce or separation. Many experts discount the popular notion that one of two U.S. marriages end in divorce, and suggest the breakup rate, which is hard to calculate, has stabilized in recent years at between 40 percent and 45 percent.

Source: Associated Press, May 10, 2007.

Sperm Donor and Both Parents Liable for Support (Pennsylvania)

An April 30, 2007, decision by a Pennsylvania appellate court establishes three (3) adults as liable for child support.  A sperm donor who helped a lesbian couple conceive two children is liable for child support under a state appellate court ruling that a legal expert believes might be the first of its kind in the U.S.    The appellate court ordered the trial court establish how much Carl L. Frampton Jr. would have to pay to the birth mother of the 8-year-old boy and 7-year-old girl.

"I'm unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child's support and are also entitled to visitation," said New York Law School professor Arthur S. Leonard, an expert on sexuality and the law.

In another twist to the case, the donor died during the litigation.  Jodilynn Jacob, 33, and Jennifer Lee Shultz-Jacob, 48, moved in together as a couple in 1996, and were granted a civil-union license in Vermont in 2002. In addition to conceiving the two children with the help of Frampton — a longtime friend of Shultz-Jacob's — Jacob also adopted her brother's two older children, now 12 and 13.  But the women's relationship fell apart, and Jacob and the children moved out of their Dillsburg, Pennsylvania, home in February 2006. 
Shortly afterward, a court awarded her about $1,000 a month in support from Shultz-Jacob. Shultz-Jacob later lost an effort to have the court force Frampton to contribute support — a decision that the Superior Court overturned April 30. 

Jacob, who now lives in Harrisburg, said Frampton provided some financial support over the years and gradually took a greater interest in the children.  "Part of the decision came down because he was so involved with them," Jacob said Wednesday. "It wasn't that he went to the (sperm) bank and that was it. They called him Papa."  The process was very informal — Jacob was inseminated at home.

In his written opinion requiring Frampton to help pay for the child's support, Superior Court Judge John T.J. Kelly Jr. noted that Frampton spent thousands of dollars on the children, including purchases of toys and clothing.  The children knew he was their biological father, but Frampton opposed the effort to compel support from him.

"We made the argument that, according to Pennsylvania law as it stands, there can really only be two adult individuals that can be held liable for support in a child-custody case," said Frampton's lawyer, Matthew Aaron Smith.

Shultz-Jacob's lawyer, Heather Z. Reynosa, wants Frampton's support obligation to be made retroactive to when Jacob first filed for support. Frampton's Social Security survivor benefits may also help reduce Shultz-Jacob's monthly obligation.

It is unclear how the child-support guidelines, which assume two parents, will be adapted to account for three parents.  "That's what's going to be interesting, because there's not a whole lot of guidance out there," Reynosa said.  The state Supreme Court is currently considering a similar case, in which a sperm donor wants to enforce a promise made by the mother that he would not have to be involved in the child's life. That biological father was ordered to pay $1,520 in monthly support.  About two-thirds of states have adopted versions of the Uniform Parentage Act that can shield sperm donors from being forced to assume parenting responsibilities. Pennsylvania has no such law.

Note:  The above was compiled from various news articles.  The full decision can be found here.

Same-Sex Partner Granted Visitation (Minnesota)

The Minnesota Supreme Court issued a decision today granting visitation to a same-sex partner who had not adopted her former partner's children.  Marilyn Johnson and Nancy SooHoo, a Minneapolis couple, broke up after 22 years together.  During their long relationship, Johnson adopted two children from China.  SooHoo did not formally adopt the children.  After the breakup, SooHoo petitioned for full custody and child support.  The trial court refused to award custody, but gave the non-adopting former partner the right to visit the children two afternoons a week and alternating weekends and holidays, including Mother's Day.  The Minnesota Supreme Court affirmed the visitation order, holding that an ex-partner has the right to see the children if the children were bonded with the ex-mate.

Unlike Iowa, Minnesota has a so-called "third-party visitation statute" which permits, under certain conditions, a third-person not legally or biologically related to a child to have visitation.  The constitutionality of that statute was at the center of the Minnesota case.

Celebrity Bad Parenting Lesson - Part 2

On the heels of Alec Baldwin's example of how lose a custody dispute, comes David Hasselhoff of Baywatch fame (infamy?) with "Celebrity Bad Parenting Lesson #2". As widely reported, Mr. Hasselhoff lost visitation rights with his two teenage daughters after a video tape was released allegedly depicting his drunken ramblings.

How not to win a custody dispute....Celebrity Style

Judging by the front cover of most issues of People magazine, it seems that every week we have yet another silly celebrity break-up and custody fight inflicted upon us. The vast majority aren't worth mentioning, But this week's news provides a concrete, real-life example of how to lose a child custody dispute with just one simple phone call.

It has been widely reported that Alec Baldwin left a voicemail for his 11 year-old daughter that appears to violate two of the most important rules of custody litigation: 1) Don't put the child in the middle of the parents' dispute; and, 2) If you're going to ignore Rule #1, don't give the other side hard evidence of your inability to distinguish the roles of parent and spouse. That voicemail should be Exhibit #1 in Ms. Basinger's case.

Governor Signs Sibling Visitation Bill into Law

Governor Chet Culver signed Senate File 480, the sibling visitation bill, into law today. The bill permits a court to enter an order allowing contact between blood siblings despite the entry of a parental rights termination order or other similar order that previously would have prevented the siblings from maintaining contact. The full text of the law can be found here and the governor's press release here.

Technorati Tags: visitation

Pension ("Defined Benefit") Plan Division under Iowa Law - A Primer

Today's Iowa Supreme Court decision in Faber v. Herman contains a good summary of the various options available when dividing traditional pension plans, so-called "defined benefit" plans. The opinion explains the pitfalls and advantages of each particular method, along with dicta that reinforces the preferred method of dividing such plans by the "percentage"method set forth originally in In re Marriage of Benson, 545 N.W.2d 252, 255 (Iowa 1996) and re-affirmed in In re Marriage of Sullins, 715 N.W.2d 242, 248-49 (Iowa 2006).

Technorati Tags: QDRO, pensions