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February 20, 2007
Joint Legal Custody - A new interpretation?
The Iowa Supreme Court's opinion of In re Marriage of Hynick contains one of the most detailed recitations of how allegations of domestic abuse can affect child custody decisions. More interesting, however, is the court's unequivocal statement concerning the apparently inferior role assigned to the non-custodial parent:
When joint physical care is not warranted, the court must choose one parent to be the primary caretaker, awarding the other parent visitation rights. See generally Iowa Code § 598.41(1)(a), (5). Under this arrangement, the parent with primary physical care has the responsibility to maintain a residence for the child and has the sole right to make decisions concerning the child’s routine care. See generally id. § 598.1(7). The noncaretaker parent is relegated to the role of hosting the child for visits on a schedule determined by the court to be in the best interest of the child. Visitation time varies widely and can even approach an amount almost equal to the time spent with the caretaker parent. See generally Iowa Ct. R. 9.9 (setting forth graduated credits against child support obligation for extraordinary visitation including a twenty-five percent credit for “167 or more [visitation days] but less than equally shared physical care”). Thus, the main distinction between joint physical care and primary physical care with liberal visitation rights is the joint decision making on routine matters required when parents share physical care.
Whether this decision is the start of a retreat from the principle of equal decision-making by joint legal custodians remains to be seen. On the one hand, the decision refers solely to decisions involving the child's "routine" care; on the other hand, the stark language of the non-custodial parent being "relegated to the role of hosting the child" calls to mind the image of the non-custodial parent as a mere baby-sitter. The impact of this case remains to be seen.
Posted on February 20, 2007 in Custody | Permalink
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February 19, 2007
What If We Can't Agree on a Name for Our Child?
Clients often ask which parent has the right to name their child, the mother or the father? The answer, at least under Iowa law, is neither. The Iowa Court of Appeals, in Montgomery v. Wells, 708 N.W.2d 704 (Iowa Ct. App. 2005), held that traditional notions of using the father's surname are outmoded and that, likewise, the mother of a child born out of wedlock does not have "veto power" over the child's name. Instead, the court requires a consideration of the child's best interests, including the following factors:
"Convenience for the child to have the same last name as or a different name from the custodial parent."
"Identification of the child as part of a family unit."
"Assurances by the mother that she would not change her name if she married or remarried if the child maintains the mother's surname."
"Avoiding embarrassment, inconvenience, or confusion for the custodial parent or the child."
"The length of time the surname has been used."
"Parental misconduct, such as support or non-support or maintaining or failing to maintain contact with the child."
"The degree of community respect associated with the present or changed name."
"A positive or adverse effect a name change may have on the bond between the child and either parent or the parents' families."
"Any delay in requesting or objecting to name name."
"The preference of the child if the child is of sufficient maturity to express a meaningful preference."
"Motivation by the parent seeking the change as an attempt to alienate the child from the other parent."
"And any other factor relevant to the child's best interest."
Posted on February 19, 2007 in FAQ | Permalink
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Questions To Ask Before Saying "I Do"
This list of questions was originally published by the New York Times on December 17, 2006. Since then, it has developed a life of its own on the 'net. The list of questions was also accompanied by this article in the newspaper. (How long that link lasts is up to the Times). And now for the list:
"Questions Couples Should Ask (Or Wish They Had) Before Marrying" (The New York Times, 11/17/2006):
Relationship experts report that too many couples fail to ask each other critical questions before marrying. Here are a few key ones that couples should consider asking:
1) Have we discussed whether or not to have children, and if the answer is yes, who is going to be the primary care giver?
2) Do we have a clear idea of each other’s financial obligations and goals, and do our ideas about spending and saving mesh?
3) Have we discussed our expectations for how the household will be maintained, and are we in agreement on who will manage the chores?
4) Have we fully disclosed our health histories, both physical and mental?
5) Is my partner affectionate to the degree that I expect?
6) Can we comfortably and openly discuss our sexual needs, preferences and fears?
7) Will there be a television in the bedroom?
8) Do we truly listen to each other and fairly consider one another’s ideas and complaints?
9) Have we reached a clear understanding of each other’s spiritual beliefs and needs, and have we discussed when and how our children will be exposed to religious/moral education?
10) Do we like and respect each other’s friends?
11) Do we value and respect each other’s parents, and is either of us concerned about whether the parents will interfere with the relationship?
12) What does my family do that annoys you?
13) Are there some things that you and I are NOT prepared to give up in the marriage?
14) If one of us were to be offered a career opportunity in a location far from the other’s family, are we prepared to move?
15) Does each of us feel fully confident in the other’s commitment to the marriage and believe that the bond can survive whatever challenges we may face?
Posted on February 19, 2007 | Permalink
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February 18, 2007
Securing property judgments - In re Marriage of Keener
Last week's Iowa Supreme Court opinion of In re Marriage of Keener, contains a good summary of the use of judgment liens and other security devices in equitable distribution case involving business property and closely-held business entities. During their 10 year marriage, the couple accumulated a business with assets of over ten million dollars, but kept all the business assets in wife's name to protect them from creditors. The trial court ordered that the wife receive the business assets but that she make installment payments to her ex-husband for the property settlement equalization. Each payment became a judgment when due. The court granted the husband an equitable lien on the company to secure these payments. The Iowa Supreme Court found this approach left the husband with insufficient security against the future payments. First, a judgment for the entire amount should have been issued, with an allowance of periodic payments, so that a judgment lien would attach to the business's real property. Second, interest on the unpaid amount should accrue. Third, the "equitable" lien was eliminated and replaced with a judgment lien and a UCC lien against the company stock.
Posted on February 18, 2007 in Property Distribution | Permalink
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Main
| March 2007 »
February 20, 2007
Joint Legal Custody - A new interpretation?
The Iowa Supreme Court's opinion of In re Marriage of Hynick contains one of the most detailed recitations of how allegations of domestic abuse can affect child custody decisions. More interesting, however, is the court's unequivocal statement concerning the apparently inferior role assigned to the non-custodial parent:
When joint physical care is not warranted, the court must choose one parent to be the primary caretaker, awarding the other parent visitation rights. See generally Iowa Code § 598.41(1)(a), (5). Under this arrangement, the parent with primary physical care has the responsibility to maintain a residence for the child and has the sole right to make decisions concerning the child’s routine care. See generally id. § 598.1(7). The noncaretaker parent is relegated to the role of hosting the child for visits on a schedule determined by the court to be in the best interest of the child. Visitation time varies widely and can even approach an amount almost equal to the time spent with the caretaker parent. See generally Iowa Ct. R. 9.9 (setting forth graduated credits against child support obligation for extraordinary visitation including a twenty-five percent credit for “167 or more [visitation days] but less than equally shared physical care”). Thus, the main distinction between joint physical care and primary physical care with liberal visitation rights is the joint decision making on routine matters required when parents share physical care.
Whether this decision is the start of a retreat from the principle of equal decision-making by joint legal custodians remains to be seen. On the one hand, the decision refers solely to decisions involving the child's "routine" care; on the other hand, the stark language of the non-custodial parent being "relegated to the role of hosting the child" calls to mind the image of the non-custodial parent as a mere baby-sitter. The impact of this case remains to be seen.
Posted on February 20, 2007 in Custody | Permalink
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February 19, 2007
What If We Can't Agree on a Name for Our Child?
Clients often ask which parent has the right to name their child, the mother or the father? The answer, at least under Iowa law, is neither. The Iowa Court of Appeals, in Montgomery v. Wells, 708 N.W.2d 704 (Iowa Ct. App. 2005), held that traditional notions of using the father's surname are outmoded and that, likewise, the mother of a child born out of wedlock does not have "veto power" over the child's name. Instead, the court requires a consideration of the child's best interests, including the following factors:
"Convenience for the child to have the same last name as or a different name from the custodial parent."
"Identification of the child as part of a family unit."
"Assurances by the mother that she would not change her name if she married or remarried if the child maintains the mother's surname."
"Avoiding embarrassment, inconvenience, or confusion for the custodial parent or the child."
"The length of time the surname has been used."
"Parental misconduct, such as support or non-support or maintaining or failing to maintain contact with the child."
"The degree of community respect associated with the present or changed name."
"A positive or adverse effect a name change may have on the bond between the child and either parent or the parents' families."
"Any delay in requesting or objecting to name name."
"The preference of the child if the child is of sufficient maturity to express a meaningful preference."
"Motivation by the parent seeking the change as an attempt to alienate the child from the other parent."
"And any other factor relevant to the child's best interest."
Posted on February 19, 2007 in FAQ | Permalink
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Questions To Ask Before Saying "I Do"
This list of questions was originally published by the New York Times on December 17, 2006. Since then, it has developed a life of its own on the 'net. The list of questions was also accompanied by this article in the newspaper. (How long that link lasts is up to the Times). And now for the list:
"Questions Couples Should Ask (Or Wish They Had) Before Marrying" (The New York Times, 11/17/2006):
Relationship experts report that too many couples fail to ask each other critical questions before marrying. Here are a few key ones that couples should consider asking:
1) Have we discussed whether or not to have children, and if the answer is yes, who is going to be the primary care giver?
2) Do we have a clear idea of each other’s financial obligations and goals, and do our ideas about spending and saving mesh?
3) Have we discussed our expectations for how the household will be maintained, and are we in agreement on who will manage the chores?
4) Have we fully disclosed our health histories, both physical and mental?
5) Is my partner affectionate to the degree that I expect?
6) Can we comfortably and openly discuss our sexual needs, preferences and fears?
7) Will there be a television in the bedroom?
8) Do we truly listen to each other and fairly consider one another’s ideas and complaints?
9) Have we reached a clear understanding of each other’s spiritual beliefs and needs, and have we discussed when and how our children will be exposed to religious/moral education?
10) Do we like and respect each other’s friends?
11) Do we value and respect each other’s parents, and is either of us concerned about whether the parents will interfere with the relationship?
12) What does my family do that annoys you?
13) Are there some things that you and I are NOT prepared to give up in the marriage?
14) If one of us were to be offered a career opportunity in a location far from the other’s family, are we prepared to move?
15) Does each of us feel fully confident in the other’s commitment to the marriage and believe that the bond can survive whatever challenges we may face?
Posted on February 19, 2007 | Permalink
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February 18, 2007
Securing property judgments - In re Marriage of Keener
Last week's Iowa Supreme Court opinion of In re Marriage of Keener, contains a good summary of the use of judgment liens and other security devices in equitable distribution case involving business property and closely-held business entities. During their 10 year marriage, the couple accumulated a business with assets of over ten million dollars, but kept all the business assets in wife's name to protect them from creditors. The trial court ordered that the wife receive the business assets but that she make installment payments to her ex-husband for the property settlement equalization. Each payment became a judgment when due. The court granted the husband an equitable lien on the company to secure these payments. The Iowa Supreme Court found this approach left the husband with insufficient security against the future payments. First, a judgment for the entire amount should have been issued, with an allowance of periodic payments, so that a judgment lien would attach to the business's real property. Second, interest on the unpaid amount should accrue. Third, the "equitable" lien was eliminated and replaced with a judgment lien and a UCC lien against the company stock.
Posted on February 18, 2007 in Property Distribution | Permalink
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