Adoptive Couple v. Baby Girl

What makes a parent? Should the answer be determined by biology or nurture? And what about the overlay of race or ethnicity--should that play into the mix?  The U.S. Supreme Court is tussling with these thorny questions in a case involving the adoption of a little girl and the Indian Child Welfare Act, a law enacted by Congress 35 years ago which was intended to halt the inexcusably high rates of removal of  Native American children from their families in favor of placement with white adoptive and foster parents. 

As in all adoption disputes, the facts in Adoptive Couple v. Baby Girl, argued before the Supreme Court on April 16^th, are heart-wrenching.  The father, who has some Cherokee heritage but does not live on a reservation, broke off his engagement to a non-Indian woman after she became pregnant. Following his daughter’s birth, he refused to provide any support for her, and eventually texted the mom (texted!) that he wanted to give up his parental rights.  She then put the baby up for adoption. After learning about it, the father filed an action challenging the adoption--he said he thought he had only given up his rights to the mother--and seeking custody of the child.  

Based on the ICWA, a family court in South Carolina ordered the adoptive parents, who had raised the girl, now known as Veronica, from birth until she was 27 months old, to transfer custody to the father.  This decision was upheld by the South Carolina Supreme Court on the grounds that, once established as the biological father, the ICWA gives preference to the Indian parent.

The adoptive parents’ lawyer argued that applying ICWA to this case would amount to “conscripting other people's children to grow the tribal population based solely on a biological link."  And furthermore, she pointed out, such a ruling will apply to other absentee Indian fathers who have impregnated non-Indian women, rendering those women second-class citizens with inferior rights and "basically relegating the child ... to a piece of property with a sign that says 'Indian, keep off, do not disturb.' "

The father’s lawyer simply argued the statute, saying that under the ICWA an adoption cannot go forward if a biological parent wants custody and is not a threat to the emotional or physical safety of the child. In other words, the “best interest of the child” analysis does not apply; rather, if there’s no risk of harm, the Indian parent will prevail.

Seems to me that accepting the father’s arguments in this case does create a class of people who have superior rights to custody of children based solely on their race. And while I am mindful of the shameful history of destruction of the Indian family and the corresponding loss of tribal culture and identity, I really cannot get past this.  Using race as the trump card in adoption--rather than as one factor among many to be considered--is a problem, both conceptually and constitutionally. Interestingly, it also bucks the contemporary trend in family law, which is moving away from the primacy of biology in favor of legal recognition of the important bonds that form between children and the adults who are actually taking care of them despite the absence of a genetic link - such as the the same-sex partner or the step-parent. 

That’s the legal dilemma.  But what about Baby Girl Veronica? Now that she’s been removed from her adoptive parents into her biological father’s family, even if we think that was a bad call, should she be moved back? That might bring justice to the grieving adoptive parents, but is it fair to Veronica? 

During oral argument, Justice Kennedy apparently wished for the wisdom of King Solomon. Not a surprising request, under the circumstances.  Let’s hope The Nine receive it during their deliberations.

What's in a Name

During a recent trip to Europe, German friends who have a new baby made reference to the fact that gender-ambiguous names are “not allowed” in Germany unless a second name is added which clarifies the gender.  What do you mean “not allowed,” I asked?  You know, the government won’t permit it, they said.  My husband and I were incredulous.  Turns out that in Germany, you have to submit the name you want to use for your baby to the local office of vital statistics for approval.  And if they don’t like it, you can’t use it.  Which means there are no little Moon Units, Rolexes, Whoopis or Honey Boo Boos in Munich. And Germany is far from alone in this - a quick Google search reveals that many other countries also have rules governing name choice.   Even in Denmark--that cradle of fabulous modern design and progressive thinking--you must pick from a list of 7,000 pre-approved names.

Who’s being protected by these laws?  Kids, from their parents’ stupidity? Or unconventionality? Or creativity?  Seems like a pretty dull world if everyone can only be named what people have been named before.  Much as I envy so many (like, almost all) of the perks of life in the social democracies of Europe, this issue brought some deeply buried libertarian streak I didn’t even know I had screaming to the surface. The idea that government should be involved in the decision about what to name your child seems outrageous.  As would laws about what people should do with their last names when they marry.  Or divorce. Or transition to the opposite gender.  Or when they simply don’t like their given names and want to choose their own. 

Our German friends were puzzled by our horrified reaction.  But if you could just pick any word you wanted for a name, the baby’s mom said, you could name your child something like-- she paused for a moment, clearly trying to summon up the most ridiculous example she could of what not to name a baby-- “Porsche”!  We were silenced. We didn’t have the heart to tell her how many Porsches and Lexuses and Infinitis were probably riding the school buses right then back home in Philadelphia.

Guns in the Family

Are we safer armed or disarmed?  Does the Second Amendment mean we have an absolute right to own guns or should the exercise of that right be limited because it places our fellow citizens in danger?  As this debate rages on the national stage, we family lawyers deal with it on a different and far more intimate battlefield: the private struggle of the custody case. 

It comes up when one parent owns guns and the other does not. In my experience, it’s always the father.  The mother is anxious that guns in her ex’s house are not stored properly, meaning unloaded, locked, in a gun safe, and with ammunition kept in a separate, secure location.  The father is prone to saying, Of course, that is how my guns will be kept and you insult me by suggesting otherwise; these are my children, after all.  But the mother is not reassured, because she knows this was not his consistent practice when they lived together.  Or perhaps they never shared a household, and she has no knowledge of his habits and little reason to trust him. 

One client’s husband, a police officer, frequently left his service weapon under the bed or inside a drawer in their bedside table.  She vividly described a scene from their marriage when she woke up one morning to the chilling image of their 3-year-old standing next to the bed, holding his father’s gun. Years after they separated, her husband denied the event or that he ever kept his gun accessible.  He told her he was a good father for taking his service weapon home.  He was protecting his family.

This father says his child is safer because he has a gun.  My client argues the opposite. Will a judge refuse to award him custodial time under these circumstances?  Not likely.  He is a cop; he is entitled to bring his gun home. Realistically, the best I can do for my client is ask the judge to include a provision in her order requiring the father to take appropriate safety precautions.  That way, if we learn that he hasn’t complied, he can be held in contempt of the court’s order, and possibly lose custodial time.  But, my client will say, what good is that?  It will be too late.  One slip-up--like the time her son played with that gun--could prove fatal. 

There’s also the issue of hunting.  Another client’s ex-husband wanted to take their three boys, ages 8, 10 and 12, on a hunting trip.  My client was worried about her young children being taught to handle and shoot guns.  Did the father need her consent to take their sons hunting?  I argued with his lawyer that, although I could find no case law directly on point, common sense dictates that teaching children to handle firearms qualifies as a major decision upon which parents should mutually agree.  The father’s lawyer disagreed.  Ultimately, my client chose not to litigate this issue.  The likelihood of getting a judge to block the hunting trip was little to none, given the lack of allegations of careless or unsafe use of guns by her ex.  My client’s concern was about the inherent riskiness of the activity, not the particular actions of her husband.   

Are my clients right to be worried about their children being injured or killed by a firearm owned by the other parent?  Yes, and the evidence is compelling.  Children are safer in homes with no firearms, the American Academy of Pediatrics has concluded unequivocally.  Guns kept in the home are significantly more likely to be involved in fatal or nonfatal unintentional shootings, criminal assaults or suicide attempts than to be used in self-defense.  But these are national statistics, not individual circumstances.  Can a judge instruct a father who does safely store his gun that his daughter may not sleep at his house because, statistically, she is at greater risk of injury or death in his (gun-owing) household?  No.  And that’s the tension. The court can only assess the individuals before it. 

National policy on this issue should be based on the empirical findings.  And if gun ownership declines as a result of policy changes, my clients’ children--as a group--will be safer. But that won’t help in arguing their particular cases.

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He Got Christmas

I ran into Sarah, a friend who also happens to be a former client, at a holiday party last week. As we chatted about her kids coming home from college, mine arriving from Brooklyn, and our respective plans for the holiday week, she suddenly got quiet. “I lost Christmas in the divorce,” she said. I had to ask her what she meant.

Sarah is Jewish. She was married to a man for seventeen years who is Catholic. Christmas, in his extended Italian family, was huge. Newly wed at twenty-three, Sarah immediately embraced the holiday. She had grown up with movies, Chinese food and a feeling of loneliness every December 25th. She loves big family celebrations; she loves cooking and entertaining and decorating. She and her former husband have three kids together, and they raised them with both Hanukkah and Christmas, the richness of the two traditions woven into the fabric of their childhood. When Sarah and her ex divorced and had to figure out how to share the holidays, it was a given that he got Christmas. Why shouldn't the kids continue to have the feast of the seven fishes and homemade ravioli at Nini's house? Why shouldn't they continue to be with him around the tree on Christmas morning, opening presents? After all, he is the Christian and she is the Jew.

Divorce lawyers always have a lighter load when negotiating custody agreements for couples of different faiths. Especially when it comes to Christmas, because no holiday holds more psychic weight on the parenting front. Everybody wants to have their children with them on Christmas morning to experience the magic of waking up to the heap of presents under the sparkling tree. So when Dad is Jewish or Muslim and Mom is Christian, we breathe a sigh of relief. No argument about who gets that Holy Grail of holidays.

What I never knew, though, until this conversation with Sarah, is how difficult that can be. She internalized those Christmas rituals. Over the course of nearly two decades of married life, they became hers as well as his. She perfected her frosted gingerbread boys and pizzelles. She stayed up into the wee hours wrapping and hiding gifts. She anticipated the traditions with pleasure every December. And now that’s gone, and despite the fact that she very much wanted to be divorced, it’s a real, and unanticipated, loss. Before she remarried (also to a man who’s Jewish and was formerly married to a Catholic), she spent several Christmases alone. Her kids were with their dad, and no friends thought to invite her to share in their Christmas rituals. Which she understood: why would they, when they know she’s Jewish?

It struck me that this is part of the unavoidable fallout of divorce, the part that occurs after we divorce lawyers have completed our work. After the real estate and the retirement accounts and the living room furniture are divided up, after the papers are signed and the divorce decree is issued by the court, these emotional losses reveal themselves, even to people who are happy to be divorced. The loss of family traditions particular to one spouse’s culture, like the disappearance of friends whose primarily loyalty lay with the other spouse, are intangible "assets" also subject to division.

But families do adjust and move on. Sarah told me that she and her children now find themselves every December 26th enjoying a new tradition, "Christmas Part Two," complete with gifts, frosted gingerbread boys and pizzelles.

The Good Divorce

The culture of divorce is shifting, in tune with the times. How many of us have commented on the fluidity of our children’s relationships with friends with whom they become - and un-become - romantically involved? We say: Interesting.  When I broke up with my high school boyfriend I never spoke to him again.  But that’s not the way of the new generation.  And their parents are developing different attitudes towards ending romantic relationships as well: the idea that divorce reconfigures, rather than “breaks” a family; the notion that divorced parents can remain friendly, even if no longer friends. Take bird-nesting - the increasingly common practice where parents rotate in and out of the marital home and the kids stay put.  Or the intent many of my clients now have that their children’s birthdays, and often certain holidays as well, will be celebrated together with their ex-spouses.  As one father told me, We think it’s important for us both to be there on Christmas morning when they open their presents.  And of course the corollary to that, the unspoken assumption, is that while my client and his ex-wife sit there in her (his former) living room, they will be civil to each other and they will focus on their children, not their conflicts.  

Methods for divorcing are changing as well. There is growing interest in collaborative divorce, where each spouse has an attorney, subject to a mutual commitment not to litigate.  Or mediation, where the couple themselves negotiate the terms of their divorce agreement with the help of a neutral facilitator.  Or what I think of as the kitchen table divorce, where the parties sit down together and just figure it out. Is this part of a look-it-up-on-the internet, DIY ethos? Or are today’s divorcing couples members of a generation whose worlds were so rocked by the acrimonious divorces of their parents during the divorce explosion of the 70s and 80s that they swear they will not do the same to their children? Whatever the reason, the trend is toward self-determination.

Ever attend a divorce ceremony?  Me neither, but they’re gaining traction, fast.  A ritual to mark the end of a marriage, it can be just the couple themselves or performed before family and friends. They’re all the rage in Japan, with a popular format including the smashing of wedding rings and a special “divorce dress” designed to emphasize the woman’s back as she walks away from her soon-to-be ex-husband. Really!  See one at http://www.youtube.comwatch?v=gBOlPN18DDw

I know that to some, perhaps many, “good divorce” is an oxymoron.  For sure, not everyone can have one, because many people getting divorced are too angry or too sad to imagine salvaging anything out of the wreckage.  But cultural expectation does inform our reaction to life events, and the expectation has been, until recently, that divorce is disaster and the best way to deal with it is to distance yourself as much as possible from your ex, to have as little contact with him or her as possible.  And it is precisely that expectation which is shifting.  As some of my clients would say, That was my parents’ divorce. Not mine.    

One Little Lie

I was sitting in court yesterday, thinking about the incredible waste of time, money and resources one little lie can cause.  My client has custody of his teenage daughter.  She decided, as teenagers will, that life at her Mom’s house was more exciting, so she went there and wouldn’t come home.  My client tried to retrieve her, Mom resisted, and other family members got involved in a big (verbal) tussle.  My client called the cops.  The cops came and interviewed everyone.  The daughter said she didn’t want to go back to Dad’s.  The cops explained to my client that they couldn’t force her to go with him, and advised him to go to family court and file a petition for contempt of the custody order.  Then they and my client left.  Case closed, or should’ve been. 

But Mom must have been mad, because she marched down to family court and filed a petition to get a  protection order against my client, alleging that he had assaulted their daughter during this incident.  He hadn’t, and I’m sure of it, because I spoke to both the cops who were there and had talked to everyone, including the daughter, and no one told them anything about an assault – the only issue anyone mentioned was whether the girl could stay at Mom’s or not.  Regardless, Mom filed a petition, got a temporary protection order against Dad, and a hearing was scheduled. 

That’s where I entered the picture. My client, a guy who works two jobs, cooking by day and cleaning offices by night, come to my office and met with me (paid for a consultation); hired me (paid a retainer); and took the day off from work for court (lost wages from two jobs).  I had to subpoena the two police officers (fees paid to the city) and get the police reports (fees paid to the police department).  The officers had to come to court the day of the hearing (paid overtime). The hearing was scheduled for 8:30 a.m.  Mom was a no-show.  But my client, the officers and I waited in court until almost 10 a.m. in order to satisfy the court that Mom wasn’t going to come, and then we had a brief hearing so the judge could take the testimony necessary to dismiss Mom’s petition for lack of prosecution (salaries paid to judge, court reporter, court officers, court administrative staff, rent and utilities for family court building, etc. etc.) Then we left. 

My client had been pretty sure from the beginning that his ex wasn’t going to show up, because he knew that she knew what she had alleged in her petition a) wasn’t true, and b) she wouldn’t be able to prove it in court.  She just wanted to punish him.  And she did, very effectively, as well as the rest of us taxpayers who were footing the bill for the cops and the court personnel.  The ripple effect is huge.  And there’s no remedy; since she didn’t show up, there was no hearing on the merits of her petition, so no record was created from which the court could determine that she was in fact lying.  The petition was dismissed because she failed to appear.  Sigh.

About that contempt petition my client filed: the hearing isn’t scheduled until October.  And his daughter still hasn’t come home.

Polyamory

Just when I thought I had handled cases involving every possible riff on the concept of marriage, I found out I’m wrong.  To date, I’ve missed polyamory.  Or at least the open, admitted-to variety.  I’ve certainly heard from clients about affairs which are ongoing and implicitly accepted, actually a pretty traditional model for men of means and power throughout recorded history.  But this is different.

Polyamory involves a group of people who have sexual or romantic relationships with one another with every member’s knowledge and consent.  (Best new word learned this year: a “moresome,” if the group is more than four.)  This doesn’t sound easy, and apparently it’s not. According to a panel at the American Psychological Association meeting in Philly last week, polyamorous people talk a lot about rules and boundaries concerning time spent with other lovers. 

I’ll bet they do.  They need them.  And nobody knows that like a divorce lawyer.  Suppose a polyamorous group of four buys a house together and then things go south.  It’s hard enough to navigate financial issues between two people who used to sleep together; add two more to the mix and it becomes a firestorm.  Now there will be four people who all want the others to move out, four people who want the dog and the orange Le Creuset pot, and four people who disagree over how to divide up the bank accounts. 

Is this new?  Can’t be, since nothing involving human nature is.  It’s probably just new that people talk openly about it.  Apparently it dovetails with a statistical decline in dedication to monogamy.  Close to one-third of all lesbian and unmarried straight couples, and almost half of all gay couples, are not monogamous.  And married people are not far behind – about one-fifth of them say they’ve “cheated.”  But this is a different variation, of course; cheating means there were rules you knew about and chose to break. The rules of the game for a polyamorous group don’t prohibit sex with others. Presumably, they just regulate the conditions under which it can happen. 

What does this mean for kids?  On the up side, it means they are likely to have more adults intimately involved in their daily lives. On the down side, it means they could experience losses if those connections shift or dissolve.  And the potential for horrendous custody litigation looms over child and parent alike: each member of the group surely knows that he or she does not want to end up on a witness stand trying to explain polyamory to a family court judge. 

Turns out a lawyer in my firm has already written a custody agreement for a client who lives in a polyamorous household with this configuration: lesbian couple, consisting of biological and non-biological moms, and  boyfriend of biological mom (who may or may not be father of child).  All very happy together. 

I’m sure it’s only a matter of time before I get asked to draft a cohabitation agreement for a member of a polyamorous group, or to negotiate the dissolution of one.  I love dealing with new family configurations.  I’ll be ready.