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January 8, 2009

Kidneys and Custody: A Tale of the Low Road

Obviously, this story is already all over the blogosphere. It's too good to resist -- a man gave a kidney to his wife, and now that they're divorcing, he says he wants it back.

This is, of course, ridiculous. First, it's so clearly medically wrong and so unethical that no doctor would do it. Second, there's no legal basis for requiring the return of something that could only be given as a gift (it's illegal to sell organs). Third, his request for $1.5 million in lieu of the kidney if she won't give the organ back fails for the same reason -- it would be the equivalent of paying for the organ.

But the kidney isn't the real issue after all, according to Newsday's interview with the husband and his attorney, who said that "of course" the guy doesn't really want his kidney back. Rather, he wants to "draw attention to her not allowing him agreed-upon visitation with the couple's three children..." So the request for the kidney is a publicity stunt to support his allegations in their custody fight.

Sigh. When will parents grow up, learn to put their kids first, and keep their custody issues out of the courts -- not to mention the tabloids? I guess it's not going to be in 2009.

November 12, 2008

Religion and Custody Dispute Goes Hollywood: Madonna as the Grinch Who Stole Christmas

The issue of child custody and religion has come up in one of this year's most high-profile divorces, between pop icon Madonna and her film director husband Guy Ritchie.

Madonna is a follower of the Jewish mystical religion called Kabbalah, and her belief system doesn't include a Christmas celebration. In years past, the family has skipped Christmas altogether, apparently with Ritchie's consent. But this year, he wants to treat the couple's two children to "a traditional English Christmas," according to the British paper The Mirror, while Madonna wants the kids to be with her on Christmas Day.

What have we learned about custody and religion so far? First, that religious issues are coming up more and more often in custody cases. And, that custodial parents have the right to make religious decisions for their kids -- but that kids who are old enough can have their own opinions on these matters factored in by the courts. In Madonna's case, the divorce is not yet completed, so there's no permanent custody order and it's not completely clear which party has the type of custodial rights that would allow them to make religious decisions for the children. And both of her children with Ritchie (she also has a daughter from a previous relationship) are too young to have their two cents considered.

As always, we hope the parents can work things out and maintain amicable joint custody of their children.

October 20, 2008

Parents' Divorce Agreement on Religion Upheld

More on divorce and religion to add to earlier posts here and here. Last week, an Arkansas judge held a father in contempt of court after he began promoting his Mormon beliefs to the children. As reported in the Arkansas Morning News, the parents' divorce agreement states -- at the father's request -- that the children will be raised in the Protestant faith, and that neither parent will promote another religion. Nonetheless, the father and his new wife recently began involving the children in the Church of Jesus Christ of Latter-Day Saints, and the mother objected and asked the court to find him in contempt of the earlier order. The father argued that the restriction impaired his Constitutional right to freedom of speech, but the court held that the voluntary agreement was a valid contract that could be enforced by the mother.
April 2, 2008

Religious Issues in Custody Cases, Revisited

Recently I posted here on the apparent rise in religious issues in custody disputes. One such case is working its way through the Oregon courts, where the Oregon Supreme Court recently addressed the question of whether a 12-year-old boy can be circumcised at his father's request over the objections of his mother.

As explained in more detail in the Oregon Divorce Blog, in Boldt and Boldt the Supreme Court remanded the case to the trial court for additional testimony regarding the boy's preference, which was never considered in the original proceeding. The parents divorced in 1999 and had ongoing disputes about custody, with the father obtaining custody when the son was nine years old. In the meantime, the father converted to Judaism, and stated his intent to have his son circumcised, consistent with the Jewish tradition. The mother asked for -- and got -- an injunction from the court, prohibiting the father from going forward with the circumcision until she could petition the court for a change in custody and a permanent injunction.

The Supreme Court ultimately held that "the decision to circumcise....falls within a custodial parent's authority, despite medical or religious objections by the non-custodial parent." However, the Supreme Court also ruled that the trial court made a mistake by not interviewing the now-12-year-old son about his preferences, and remanded the case to the trial court to evaluate the son's preference. If he does object, the trial court may transfer custody to the mother.

The most significant part of the ruling is the part that says a custodial parent has control over medical decisions, even over the non-custodial parent's objections. Even where one parent retains physical custody, it's far more common for parents to continue to share decision-making than for one parent to have sole power over important decisions like these. Where the fight is over the right to make decisions like this, it certainly raises the stakes in any custody dispute.

Have I mentioned before that mediation and collaboration are great ways to resolve disputes? And that sharing custody cooperatively is optimal for your kids? Sometimes it just can't happen, but once again, giving it your best effort may pay off in the end, when your kid doesn't have to go to court and tell a judge whether he wants to be circumcised.

February 13, 2008

Judgment Day: Religious Issues on the Rise in Custody Cases

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The New York Times reports today that custody fights involving the religious upbringing and education of children are on the rise. "'Part of that is there has been an increase of conflicts between parents across the board...'" combined with the increased willingness of Americans to marry outside their family's faith and to convert to another religion when they marry, says the chair of the custody committee of the American Bar Association's family law section.

As noted in the New York Times article and this article on the Nolo website, religion is a difficult issue for a court to decide. Issues of free speech and freedom of religion battle with the rights of both parents to guide their children's upbringing. As with most custody disputes, religious wars are best settled through mediation or other non-court means -- and many courts require mediation before parties are allowed to bring their disputes before a judge.

January 23, 2008

Memo To Britney: 5 Ways to Get Your Lawyers to Fire You

As you may know, Britney Spears had another court appearance scheduled in her divorce case. According to this Associated Press story by Linda Deutsch, Britney drove to court, avoided the paparazzi, went through security, and then turned around and walked out of the building without going near the courtroom where the hearing was being held.

In the meantime, when asked by the judge whether her client was going to show up, Britney's attorney had to say, "I don't know." This is not the way to endear yourself to your divorce attorney. But Britney's enough of an expert on annoying her lawyers that the lawyers have asked the court for permission to withdraw from the case. Here are some of the no-nos that the pop princess has used to get her lawyers to fire her:

1. Being a no-show at a hearing she asked for.

2. Being a no-show at her own deposition.

3. Refusing to turn the children over to their father after a scheduled visitation.

4. Engaging in generally erratic and self-destructive behavior, in public view.

5. Failure to communicate.

Okay, that last one is a guess on my part, but I have to believe that if she were communicating with her attorneys, they'd be advising her against items 1-4 above, and she'd be showing up instead of flaking out.

Even when you're not absurdly famous, you may need to hire a lawyer to help you in your divorce. If you do, remember that your lawyer is trying to do a job, which is to negotiate on your behalf, to protect your interests, and get you to a settlement or a victory. You can either help or hinder the lawyer in that job. Britney's showed you how to hinder -- look here for ways you can help instead.

December 3, 2007

Communication is Key

There are some great resources out there on the Internet and in the blogosphere for divorced parents, especially those dealing with blended families. I just came across a great idea that made so much sense, I was surprised I hadn't heard of it before. A blended family created an email group so that all of the adults involved in raising their kids--a divorced mom and dad, and a stepmom--get all the same information about the kids at the same time. They use the email address as a contact address for schools, after-school activities, camps, and other points of contact related to their kids, as well as to communicate with each other. Here's the post about how they set up the email account and how it works. (The blog has lots of other interesting posts, too.)

Other online resources for parents working together after a divorce include software and web tools for dealing with scheduling and information-sharing, like www.sharekids.com. Another web page I like is about "ex-etiquette," at www.bonusfamilies.com. Of course, all of these resources emphasize treating your children's other parent(s) with respect and putting the kids' needs first--helpful reminders at any time.

October 8, 2007

Britney & K-Fed: The Lesser of Two Evils is Still....

Isn't it required that anyone who blogs on family law issues must write something about the recent court order that shifted physical custody (that is, day-to-day care) of Britney Spears' and Kevin Federline's two children from mother to father? But what is there to say, really?

The significance of the decision to real people is limited. Not many of us behave quite as badly, quite as publicly, as Spears has. And judges love the status quo, so a complete change in custody is somewhat unusual and reserved for cases where, like Spears, a parent has behaved completely outrageously, abused substances, or refused to comply with court orders.

Father's rights advocates are happy with the decision, hoping that it will help to mitigate what they perceive as the system's unfair presumption that women are better caretakers than men, especially for young children. Maybe they're right that the system is slanted, but K-Fed is hardly the poster boy for responsible parenting.

As Seymour Reisman commented last week on Newsday.com, fathers "must make sure they are factors in their children's lives" by actively parenting them--in order to have their custody rights respected even when their ex-wives aren't pulling a Britney. For more information on how you can actively parent your child or children during and after a divorce, read Always Dad: Being a Great Father During & After Divorce, by Paul Mandelstein (Nolo).