Sperm Donation Leads to Lawsuit

It’s said that no good deed goes unpunished, and that appears to be the case for Kansas resident William Marotta, who simply wanted to help a couple fulfill their dream of having a child.

Craig’s List can be used to solicit, sell and advertise a variety of wanted items, and apparently sperm is one of them (good to know).  This is how couple Jennifer Schreiner and Angela Bauer got in touch with Marotta and arranged for him to provide his donation in 2009, which he did free of charge.  Schreiner and Bauer worked off of the “DIY” method and did not utilize any type of medical assistance in order to conceive their daughter, who was later born as a result of Marotta’s donation. 

Everyone involved wanted to be smart about the situation, and the parties signed a contract stating that Marotta did not have any parental rights to the child and was not financially responsible for her, which only seems fair, right?  Wrong.  Because the couple later separated and Kansas law doesn’t recognize same-sex marriages, only the biological mother (Schreiner) could be held legally responsible for the child. When Schreiner later needed government assistance, the State of Kansas sought out the father in order to have him help support the child.

Government agencies routinely come after the non-custodial parent for child support when the other parent receives assistance, and rightfully so.  If there is a parent out there who could provide for the child, and/or reimburse the state for monies spent on the child, the state will make every attempt to locate him or her.

One of the most unusual aspects in this case is that had the former couple went through a doctor for the insemination, Marotta would not be liable under Kansas law.  Apparently Kansas is taking the position that Marotta and Schreiner could have conceived the child the old fashioned way, whereas if they had used a doctor, it would have solidified that he was a sperm donor and nothing more. 

Marotta said he had no idea that the couple wasn’t using a doctor, but I find that a bit hard to believe – he was trolling on Craig’s List for a place to donate his sperm and he naturally assumed that those same individuals would be using medical assistance when he directly provided the product requested?  That’s a bit sketchy, at best.

Marotta is appealing the decision, as one would expect.  He probably imagined good karma coming his way for his donation, and instead he was hit with a lawsuit.
 
 
 

Ex Parte Orders

Personally, I’m not a fan of surprises unless it involves presents, preferably sparkly and 14 carat.  Professionally, it would be an ideal world to have ample notice before every hearing, for every client to tell the truth (and nothing but the truth), and to never get a panicked phone call that an ex parte order was just served on my client. 

What is an ex parte order you ask?  Well, if you have the right circumstances, a court can sign an order awarding you the relief that you seek in your motion, without giving notice to the opposing party.  The order itself is not enforceable until the opposing party is served with it, because obviously you can’t abide by something you know nothing about.

The court has the authority to issue an ex parte order pursuant to Michigan Court Rule (MCR) 3.207, if it “is satisfied by specific facts set forth in an affidavit or verified pleading that irreparable injury, loss, or damage will result from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued.”

Here’s a good example of a common reason for an ex parte order in a divorce case:  John has filed for divorce.  This makes his wife, Jane, very mad, so she drains the bank accounts and starts cashing in savings bonds to give herself as much money as possible before the inevitable split of assets in the divorce.  Naturally, John is not happy about this turn of events, so he asks the court to issue an ex parte restraining order, prohibiting Jane from taking money out of their accounts, such as bank accounts, 401ks, whole life insurance policies, etc., and to prevent her from spending or hiding the money she has already plundered.  If John had to provide Jane with notice that he filed a motion, and had to wait for the court hearing, there’s a good chance Jane might use that week or so of time to do exactly what John is trying to prevent her from doing.  Then, after taking all of their riches, Jane hops on a plane with her destination being any country that doesn’t have extradition to the United States). 

Ex parte orders for custody, parenting time and support are also entered by the court, especially if there is an unfortunate situation such as domestic violence between the parties, abuse of a child, or issues with drugs or alcohol.  In these cases, if the moving party had to wait to give notice of the hearing, there is the concern that the abuse would continue or worsen, neglect of the child would occur if parenting time was not supervised, or that a parent may all together disappear with the minor child.

Specific language advising the opposing party of their right to object to the order, and what happens if they fail to object, must be included in the ex parte order itself.  Be aware that even if you object to an ex parte order that you are served with, you still have to follow the terms of that order until you have the hearing on your objection.  Even then, it’s not a guarantee that the judge will change the terms of the order.  The objection time period is very short – only 14 days – so you have to act fast if you are unhappy with the order (which is a very good assumption).

Ex parte orders are not something judges take lightly, and neither should you.  It is imperative that you provide ample evidence that what you are seeking is immediately necessary and that your order contain the mandatory language set forth in the court rule.   

My last piece of advice:  when the opposing party is served with the ex parte order, I would suggest skipping the usual surprise party balloons – somehow I don’t think they will make the surprise a happy one.

Kids and Divorce

The holidays are a time where most everyone focuses on their kids – getting their pictures taken with Santa, making Christmas cookies and homemade ornaments, and shopping for presents (my favorite part obviously because it involves shopping).  If you ask most parents what was the best day of their lives, they answer the day their child or children were born.  Now that I am a parent, I can absolutely agree with this statement because my daughter is literally the best thing that has ever happened to me.

 When great parents are in the midst of a divorce or custody dispute, they can somehow be transformed into controlling and vengeful individuals who use their children as pawns against the other.  They tell their children too much about “adult business,” and blame the other parent to the extent that the child begins to view him or her negatively (i.e. “I’m sorry Tommy, but Christmas will be slim this year since your father never pays his child support and can’t seem to keep a job for more than 2 weeks.”)  People will fight for everything under the sun and often use their children as an excuse for their behavior, saying that they “need” this or that for little Tommy or Susie, when in reality it is nothing more than an old set of dishes that were packed away in the basement.

I routinely tell clients that it’s not what you want, it’s not what your spouse wants, but it’s what is best for the kids.  If I had a dime for every time that someone came to my office and insisted on “50/50 custody” I would be enjoying a cocktail in Hawaii on Christmas instead of dressing my child in 12 layers of clothing to drive to my aunt’s house 30 miles away. 

 When a couple is together, they set up their households in a certain fashion and divide responsibilities between themselves in a particular way.  Sometimes this means that mom does the majority of the child care while dad brings home the bacon.  As more households now have two incomes, parents often split the child rearing responsibilities more equally, but when the relationship falls apart and a divorce is filed, one parent may not have the resources or appropriate residence to continue doing what had traditionally been done in the past.  What worked while the parties were married often does not work when they divorce.

I completely understand people’s hesitancy towards change, because I am not a huge fan of change myself (it’s practically catastrophic to me every time Target rearranges its store layout).  That being said, change is inevitable and a lot of good can come from it.  I would rather see a child grow up in two separate, yet loving households, than continue to live in a dysfunctional but “nuclear” family.  The end of a relationship, whether the parties were married or not, can be completely devastating to both the parents and the children no matter what their age, but you can and should minimize this for the kids. 

If the children ask what is going on, do your best to try to answer questions with your spouse together and reassure them that mom and dad are going to continue to work together to co-parent them.  Set up the same rules and routines in both households and keep the lines of communication open so that the child doesn’t start to take advantage of one parent’s weakness or guilt about the marriage not working out.  Buying tons of gifts for the kids will not make up for the fact that their parents are splitting up, and keeping things as normal as possible will help them get through the divorce.  If you’re really enjoying your new found freedom, remember that Tommy and Susie don’t need to see every date you take to the various holiday parties.

Be willing to try temporary arrangements for custody and parenting time so that the children can grow accustomed to living in two homes and not seeing mom and dad every day.  Don’t demand joint physical custody just to control your child support obligation – in a lot of cases, couples can deviate from the recommended guidelines and agree on reasonable support.  Blaming the other parent for taking all of your money and “blowing it on who knows what” is not something you should tell your kids, but I can guarantee that children hear this all too often.  Keep your financial problems neutral as to who caused them, and leave them out of all conversations if at all possible.

Complain to your friends and family when the kids aren’t around and try and let your kids be kids as much as you can.   Everyone hopes to relate to his or her children, and to be considered a friend in their eyes.  The best way you can do that is to be a parent first when they are young and need direction, providing them with as much love and security as you can while being respectful and polite to the other parent, as hard as it may be.  You certainly don’t ever want to have to explain to your child why your name is on Santa’s naughty list.

Family Matters

We have all wished that we could magically make our annoying brothers and sisters disappear at one point or another, especially during the “I’m not touching you…” game.  With the proper set of circumstances, this can happen (at least in the legal sense), as the Michigan Court of Appeals opined that terminating parental rights legally terminates the sibling relationship as
well.

In the case Wilson v King, 298 Mich App 378 (2012), Marquita Wilson had her rights to her three children terminated in February 2008, and they were adopted by Diane King.  Less than a year later, in September 2008, Wilson had another child, Mac, and for a period of time, King’s adopted children visited with their half-sibling Mac.  However, this eventually came to an end.  Wilson wanted the visitation to continue, and filed a lawsuit requesting that a sibling visitation schedule be put in place.  The trial court dismissed her action because Michigan law does not provide for such a case to be filed.

Wilson appealed, and interestingly enough, the Court of Appeals affirmed the lower court’s ruling, but for a different reason.  While the trial court dismissed the case as having no basis in law, the Court of Appeals relied on the “effect of adoption” statute, MCL 710.60.  Specifically, the statute states: “The person or persons adopting the adoptee then become the parent or parents of the adoptee under the law as though the adopted person had been born to the adopting parents and are liable for all the duties and entitled to all the rights of parents.”

In the eyes of the law, the “natural” or biological family relationships are terminated and the adoptive family takes the place of the natural one.  Because the three adopted children are now viewed as the biological children of King, Wilson’s child is not any relation to them.  Based on this thinking, the Court of Appeals stated that the “adoption of the three older children legally severed their sibling relationship with Mac.  Consequently, even if a cause of action to obtain sibling visitation exists, [Wilson’s] complaint is deficient because the children seeking
visitation are not Mac’s siblings.”

The Court of Appeals was quick to note that it was not making any determination as to the validity of a sibling visitation claim; however, I highly doubt that this is the last we will hear of these types of cases.  How is it fair and equitable for the court to punish the children for the
actions of their parents?  When considering custody and parenting time, judges will often keep the children on the same schedule as their half-siblings or step-siblings so that the bond between the siblings is fostered.  We also look at the child’s preference if he or she is considered to be of sufficient age.

Because there does not yet exist a proper cause of action for sibling visitation, the best interest factors are not applicable, but I have to wonder if this logic causes more harm than good.  The court is denying visitation between children who know, without a doubt, that they really are
related, regardless of what the law says.

While brothers and sisters can be obnoxious at times, most of us agree that we are better with them than without.  Our siblings are a part of our history, our family makeup, and a link to our past.  It doesn’t seem right for a court to determine, based on the actions of the parents, whether or not they are a part of our future.

Preparing for your divorce consult

No one wants to make an appointment with a divorce attorney, just like no one wants to see flashing lights in their rear view mirror when they are rushing somewhere.  When these things happen, it’s best to be prepared so you can leave with the least amount of harm as possible.

After a divorce consultation, most clients tell me that they learned a lot, but at times the amount of information is overwhelming, along with the impact of a divorce on their family.  In order to have the best outcome to the appointment, I have a few tips as to what you may be expected to bring to the appointment, and what types of issues are discussed.

First and foremost, always bring a list of questions that you have with you to the appointment.  If you hear something you don’t like at the beginning of the appointment (like how your spouse has a great case for spousal support), your mind may go blank and prove rather useless for the rest of the meeting.  Feel free to take notes as to what the attorney said (hey, you have to watch us write down your life story, so you are welcome to write down our comments).  This will save you from having to call or email later and ask the same questions.

Most attorneys will have a detailed intake form, which has spaces for pretty much everything you can think of as far as assets, debts and your personal life.  Just like when you’re at the doctor’s office, you have to answer questions you probably don’t want to, but remember that everything said between you and your attorney is confidential.  You need to be honest – we can’t help you if we don’t know the whole story or are being lied to.

As far as assets, attorneys don’t need an inventory of every item in your house (not yet at least – sadly this does happen in some cases later on).  However, we need to know details about your residence and vehicles– do you own, rent (or lease), mortgage/loan company, whose name is the loan in, present balance, if there was a premarital interest, has there been an appraisal and what is the current value of vehicle.  Relative to your bank accounts, stocks, bonds, and retirement, information needed includes if the accounts are joint or individual, financial institutions they are held at, balances, loans against the accounts, beneficiary information, and if any of the monies were premarital in nature.  Life insurance policies can be whole (with cash value) and term (without cash value), and are also considered in your marital estate, and specifics on those items are typically asked.

Unfortunately, having assets usually means you have debt, so a complete picture of your credit card balances and outstanding loan details can help your attorney better assess how things may be divided up between the two of you.  If you are unfamiliar with the amount of debt in your name, running your credit report beforehand can be very beneficial.

Income and employment benefit information for each party, such as the cost of health insurance, are factors for child and spousal support, and are necessary to run accurate guideline recommendations.  Many people bring previously filed income taxes, which can be very helpful especially if the parties are self-employed or if their income varies significantly from year to year.

Of course you are asked questions about the kids if you have any, how you and your spouse cared for them (jointly or more one-sided), cost of daycare, and what you’d like to see for parenting time and custody.  Explanations as to options for custody and parenting time should be given as they are usually the source of many disagreements during the divorce.

Your attorney wants to help you, but keep in mind that he or she is not a miracle worker – try to go into the appointment with an open mind and realistic expectations.  Otherwise, the retainer fee won’t be the only thing you’re upset about.

Bankruptcy Blues

Divorce often leaves people in a financial bind, whether it’s going from a two income household down to one, or one spouse being forced to work after being a stay at home mom or dad.

At the start of a divorce, I typically advise clients to pull their credit reports – you can do so for free (yes, really, no gimmicks or anything) at www.annualcreditreport.com, which allows you one free report per year from each of the three reporting agencies – Experian, TransUnion and Equifax.  This can lead to an unfortunate enlightening about the financial status of their marriage – often people have no idea that their credit card debt was so high, and the wife had no clue she was on the loan to the useless fishing boat he just had to have (who wants to stab worms and pull hooks out of slimy, scaly fish anyways?).

When divorcing parties have all debt and no assets, bankruptcy becomes high on the list of things to talk about with your attorney.  Bankruptcy law is a very specialized area and individuals should seek expertise counsel to advise them as to their particular situation.  At times it may be more advantageous for a person to file bankruptcy with their spouse instead of individually, or it could be better to wait until the divorce is finalized as opposed to doing so while the divorce is ongoing.  In some cases, a person may not even qualify to file bankruptcy, so the option may be completely off the table.  Your family law attorney likely knows several bankruptcy lawyers that can assist you in making the right decision.

If you do decide to file bankruptcy during your divorce proceedings, doing so will keep you married longer.  As part of the divorce, your marital assets and property are divided between the two of you, and that division is then set forth in your final judgment.  However, when either one of you file bankruptcy, an automatic stay is triggered which stalls the divorce action as a court cannot divide any property while the bankruptcy is ongoing.  Once the bankruptcy is complete, the divorce starts chugging along again and the property can be divided.  Parties must still stay on top of their divorce matter even if a bankruptcy is filed, because issues such as custody and parenting time can be addressed and potential settlements can be discussed as well, which will finalize the case much quicker once the bankruptcy proceedings are resolved.

Certain items cannot be discharged in bankruptcy, specifically support obligation debt and property settlement debt that is owed to one’s spouse, ex or child.  If a judgment includes a provision about property settlement, it is still nondischargeable but will not be as high up the totem pole as support obligations; therefore it’s important to distinguish between the two in a judgment.

It is not uncommon for one spouse to take control of the marital finances, leaving the other relatively in the dark about the parties’ savings, debts and expenses.  Divorce is not the best time to find out about these financial indiscretions, and it’s best to take an active role from the start – you don’t have to take over the dreaded obligation of balancing the checkbook, but look at all the bank statements and bills when they arrive (by mail or electronically).  After all, you’re already at an attorney’s office – at least try to save yourself from more disappointment.

The Company You Keep

People say you if lay down with dogs you’re going to wake up with fleas.  While offensive to my dogs, who have always been flea free (knock on wood), this theory holds true with respect to who you expose your children to.

Just because you divorce or separate from your significant other, no one expects you to become a hermit or monk, never to go out or date again.  However, the courts do expect you to make smart choices about who you choose to fraternize with if you have children. 

When clients tell me they started dating again, especially during the divorce, I immediately ask if he has a criminal record and if he has met the kids.  People make mistakes and sometimes the past really is left behind, so it’s probably not going to cause any concern if you start planning picnics with your new boyfriend and the kids, even if he had a joyriding conviction at age 18.

Then there’s the person who chooses to date a man twice convicted of domestic violence or let a friend who’s facing a drug charge move in to help pay the rent.  If you don’t have kids, chances are good no one but your parents and friends are going to judge you.  However, when your ex comes over for parenting time, he will notice that “I just went to a Jimmy Buffet concert” smell wafting from your new roommate’s space and start asking questions.  Pretty soon these questions lead to an internet criminal record search and a trip to an attorney’s office.

Even if you don’t expose your children to your new questionable friend, your poor decisions impact your kids – if you can’t make good choices for yourself, there’s concern you won’t make good choices for your kids either.  This can be even more concerning if your past contains some of the same mistakes and activities (i.e. drug use, alcohol abuse).

Depending on the seriousness of the criminal charges or convictions, your ex may very well be justified in filing a motion with the court for a no contact order between your children and Mr. or Ms. Not So Perfect, or it could go as far as a change in parenting time and custody.  I have seen courts order supervised parenting time, suspend parenting time, or set the matter for a more in depth hearing to determine the outcome, all because of the company one parent chose to keep.

For most people, exposing their children to a violent person or someone with a lengthy criminal record would not be an option under any circumstance.  However, emotions can definitely cloud one’s judgment, and the need for rental income can be very tempting when you go from a double to single income household.  If you do choose to make new friends with some unsavory characters, remember that the courts have to look out for the best interest of your children, especially if it appears you are not.