Archive for the 'Family Law' Category

Expansion of Paternity Leave

In August of 2015, Netflix and Microsoft announced changes to their paternity leave policies. Netflix announced it will provide unlimited paternity and maternity leave to its employees. The unlimited paternity and maternity leave is for the first year of the child’s life. It applies to births and adoptions.

Microsoft will offer its employees 12 weeks paid paternity leave for mothers and fathers starting in November 2015. Birth mothers will receive an additional eight weeks of maternity leave for a total of 20 weeks.

Fathers Generally Use a Combination of Sick and Vacation Time to Spend with Newborn

Maternity leave, also called pregnancy leave, is typically applies to female employees. Maternity leave is limited time off from work to take care of a newborn child. Paternity leave is also limited time from work, but fathers receive the time to care for a newborn child. Both paternity and maternity leave can be paid or unpaid time off from work. Many fathers who aren’t offered paternity leave at work often use a combination of sick and vacation time to spend with their newborn.

No Federal Policies for Fathers wanting Paternity Leave

Federal law doesn’t require private sector employers to offer paternity or maternity leave. Many companies offer maternity leave, but not paternity leave. Fathers wanting to take time away from work to care for their biological or adopted newborns may have other options. For instance, the federal Family and Medical Leave Act, or FMLA, allows an employee to take 12 weeks of unpaid leave each year for reasons such as the birth of a child or care for a seriously ill family. A new father wanting to use FMLA can do so in a variety of ways:

  • Parental Leave: The leave can be taken during the first year of the child’s life.
  • Intermittent Parental Leave: It can be taken sporadically and with the permission of the employer for the first year of the child’s life. For example, a new father can work part-time for a specific period. This way a new dad can take some time off immediately and leave some or a bulk of it for late.

FMLA Eligible Depends on Number of Employees and Time Worked

FMLA applies to local, state, and federal governments and private employers with more than 50 employees. The employees must work within 75 miles of the company. An employee must work at least 12 months for the employer and work at least 1,200 hours during the prior year.

An employer can’t deny a new father paid leave unless he is in the 10 percent of highest paid wage earners at the company. Another exception occurs if both parents work for the same company. The company is allowed to combine the maternity and paternity leaves. Instead of having up to 24 weeks unpaid leave, the couple has 12 weeks unpaid leave.

State FMLA May Be an Option

For new fathers who aren’t eligible for federal FMLA, the state FMLA may be helpful in getting paternity leave. Only a number of states provide paid paternity leave to new fathers. For instance, new dads in California may receive up to six weeks of paid leave.

State FMLA often differ its federal counterpart. Connecticut FMLA law only requires an employee to work 1,000 hours over a 12-month period to be eligible for unpaid leave. It allows an employee to receive 16 weeks of unpaid leave per 24 months worked. Under Minnesota FMLA law, an employee may receive up to six week leave. It does allow employers and employees to negotiate longer periods on paternity leave.

An employee should check with human resources regarding parental leave. If the company doesn’t offer parental leave, check into both the state and federal FMLA to determine which applies.

Red Team vs. Blue Team: Divorce Reform

Today’s article is a special two for one: two of our writers debate the merits of divorce reform. Who do you think makes the most convincing argument?

The Societal Advantages of Divorce Reform

by Pearl Rimon 

Divorce is a crime onto children. Children are born from the union of two parents. When the parties leave the courtroom though, a child is only left with one parent. The debate around marriage these last few decades has emphasized the parties within the marriage union. However, the debate has often ignored the community aspect of marriage, especially child-rearing. It is this negligence in our discourse that has harmed so many families. Divorce reform is necessary to strengthen the nuclear family.

Divorce Reform Defined

Divorce reform is typically based on two ideas: mandatory marriage counseling before divorce and/or elimination of no-fault divorce. Mandatory marriage counseling means that couples who wish to divorce must visit a marriage counselor before the family court will hear their case. No-fault divorce is the idea that there does not need to be a showing of wrongdoing by either party for the dissolution of the marriage.  Divorces Everywhere

No-fault divorce has created a system that supports the disintegration of families. After New York changed to no-fault divorce, divorces rose 12% in the first seven months of its enactment. It is clear that the ease of obtaining a divorce leads to higher divorce rates, thus tearing apart more families and effectively costing taxpayers more.

The ease of filing for divorce has caused people to not try and fight for their marriages as they once did, where instead of rushing into marriage, they are rushing towards the dissolution of the marriage. The concept of rushing into marriage is often talked about, but the concept of rushing into divorce is often disregarded.

Effects of divorce

Divorce not only has a great cost to the parties involved, but has a greater cost to society.

  • It has cost the American public $112 billion annually
  • The average divorce costs about $2,500

The passage of no-fault divorce has made it considerably easier for couples to file for divorce, thus having a rippling effect not only on the personal lives of families, but an effect on the economy due to the costs associated with it. Since divorce breaks apart families, the standard of living for many families drops off, and most must seek public assistance like food stamps, housing assistance, and child welfare services.

Children tend to benefit from growing up in stable families where there is no upheaval, which is generally caused by divorce. The effects on the children of the divorced range from changing schools, constant traveling from one parent to another, getting used to a new family, a change in the standard of living, and unfortunately being present for the many child support and custody trials. Children from stable family environments are less likely to be suspended from school, commit acts of delinquency and have fewer suicide attempts.

Divorce Reform Proposals

Mandatory waiting periods require parents wait about a year before a divorce is final. This makes couples “wait it out” and would result in both parties wanting to try harder to save their marriage rather than going the easy route of divorce. Currently, the waiting period for divorce ranges from ten states with no waiting period, 29 states less than six months and a minority states have a year waiting period. Many of the proposals of divorce reform would require divorce education or marriage counseling for couples during the waiting period, which would enlighten them about the negative effects of divorce and to consider the possibility of reconciliation.

Mandating reconciliation counseling and waiting periods before finalizing a divorce would make couples reconsider other routes to fixing their marriage. Divorce reform in the long run would result in lessening the burden on our court systems because less couples would ideally finalize their divorce after counseling and the waiting period. Prolonging divorce proceedings would make the parties involved think about other solutions to their marital woes rather than simply thinking divorce would essentially solve all of their spousal problems.

Divorce Reform Will Not Strengthen Marriages

by Jessica Tran

“50% of marriages end in divorce.” This is a statistic many are familiar with, but a “fact” that is only partially rooted in truth. If you were to say that the divorce rate in the United States was high, then you would be correct, but only if you were living in the late 1970s or early 1980s.  Trapped Until Death Do Us Part

Currently, the trend for divorce is actually decreasing.

  • Roughly 70% of marriages that began in the 1990s have reached their 15th anniversary.
  • Couples that married in the 2000s are divorcing at much lower rates than those in the 1990s.
  • People are marrying later in life, therefore entering into more mature marriages.

So if divorce rates are actually decreasing, then why are some groups advocating for divorce reform?

What is Divorce Reform?

Divorce reform may mean many different things to many different advocates. Here are a few of the most prominent:

The leading advocate for divorce reform is the Coalition for Divorce Reform (CDR). Their goal is to reduce “unnecessary” divorces by mandating an eight-month reconciliation and reflection period during divorce proceedings. The CDR believes that no-fault divorces are too easy and the main reason why the divorce rate is so high.

No-fault divorce allows one spouse to end the marriage on the grounds that they no longer get along. Prior to no-fault divorce, divorce was granted if one spouse was able to prove things, such as:

  • Adultery,
  • Abandonment
  • Cruelty, or
  • That the other spouse was a felon

Under fault divorce, if you couldn’t get consent from your spouse or prove any of the faults listed above, then you were stuck in a marriage you didn’t want to be in. Currently, all states offer some form of no-fault divorce.

Although there are many that stand against no-fault divorce laws, there are some that see the benefit of having such laws.

  • Since the passage of no-fault divorce laws, the divorce rate has fallen from 23 divorces per 1,000 to 17 per 1,000.
  • Domestic violence and female suicide rates declined in states that passed no-fault divorce laws.

What About the Children?

Besides lowering the divorce rate, proponents often advocate and want divorce reform for the sake of children. Many believe that children are the ultimate victims of divorce. Proponents staunchly believe that couples should try to salvage their marriage and stay together in order to have a harmonious nuclear family.

Many couples that do recognize problems in their marriage often claim they remained married for their children. Children will encounter fear, anxiety, and other emotional distress during their parents’ divorce, but the reality is that many of these children grow up to be well-adjusted adults that aren’t eternally scarred by their parents’ divorce.

Staying together and trying to work out your marital problems is great and can be successful for some couples. However, keeping up the façade of a happy home may not be the healthiest thing for you or your children. Maintaining an unhappy marriage may lead to problems such as:

  • Your children mimicking and thinking that being in a toxic relationship is okay and acceptable
  • Staying in a loveless marriage may keep up appearances, but it can be detrimental and harmful for your emotional health

Being concerned and thinking about the welfare of children is important when discussing divorce reform. However, proponents often advocate for reconciliation because they believe that a two-parent home is crucial for healthy children. The emphasis seems to be about the number of parents as opposed to the quality of parenting. Often, proponents disregard single-parent homes or co-parenting options that can be healthy and good for both children and parents.

Divorce reform is a noble idea, but it’s just that—a well-meaning idea. Forcing two adults to play nice when they’ve reached their limits is exhaustive on the couple, their family, and the court system. Mandating reconciliation counseling would be a step back in divorce law and is harking back to the old days of fault divorce laws. Enforcing reconciliation counseling is another unnecessary step for couples that prolongs the divorce proceeding with no guarantee of a happy ending.

Kim Davis Is Not a Martyr

Kim Davis is a profoundly selfish woman. The Kentucky Court Clerk refused to issue marriage licenses the Monday after the Supreme Court gave its controversial 5-4 verdict on same-sex marriage. Four couples who were denied licenses promptly sued Davis. Federal Judge David Bunning ruled that Davis must issue or permit a clerk in her office to issue marriage licenses to same-sex couples. Both the 6th Circuit Court of Appeals and the Supreme Court refused to hear her case. On September 3rd, Judge Bunning held Davis in contempt of court and ordered her to jail.

Davis alleges that her Apostolic Christian beliefs prevents her from issuing marriage licenses to same-sex couples. Conservatives have argued that jailing Davis is a violation of her religious beliefs and is judicial tyranny. Davis testified in court that “You can’t be separated from something that’s in your heart and in your soul.” She strongly believes that marriage licenses with her name on those licenses to same-sex couples would be a violation of her religious beliefs.     Kim Davis Mug Shot

I believe it’s perfectly acceptable for any individual, Christian or otherwise, to express their religious views. That is a Constitutional right every individual in this country has under the 1st Amendment. However, Davis cannot impose her views on others and she cannot use her office as an extension of her views. She is put in jail not because she disagrees with same-sex marriage, but because she openly refuses to obey the law. That is why she is rightfully held in contempt of court.

Davis Is Not Exercising Her Religious Beliefs

Many of Davis’s supporters have compared her to Marther Luther King Jr., who went to jail rather than conform to Jim Crow laws that were unjust. They allege that the Supreme Court’s ruling is unjust and therefore Davis has a right to resist an out of control judiciary.

The comparison is wrong. Dr. King had only two options: conform or go to jail. He made a political statement by going to prison. In contrast, Davis has other options besides conformity or jail sentence. She can delegate the task to a lower clerk and she would never personally have to interact with homosexuals. She can resign, and she would never have to put her name on a same-sex marriage license. Davis willingly declined reasonable offers to work with her beliefs. Davis does not seek to protect her religious beliefs; instead, she wishes that same-sex couples be denied their right to marriage under the 14th amendment. Davis is no Dr. King.

The comparison between Jim Crow and the Supreme Court’s verdict on same-sex marriage is absurd. Jim Crow laws rendered African Americans second-class citizens. They were forced to the back of the bus, prohibited from holding public office, or even from voting. In contrast, there are multiple churches in every city across America, all of those churches are exempt from taxes, and every politician in the country is tripping over each other to declare their devotion to Jesus.

Christians are not being persecuted. Christians are not second-class citizens. In fact, Christians are the ruling class in the United States. Giving out marriage licenses to couples that certain Christians don’t like will barely make a change in this political reality.

County Clerk Tyranny

Judge Bunning explicitly asked Davis’s attorneys if she would permit clerks serving under her to issue marriage licenses so that she wouldn’t have to issue the licenses herself. Davis said no, that merely having her name on the licenses would be a violation of her beliefs. Given that Davis is an elected official and can only be terminated by impeachment, she could prevent any clerk in her office from issuing marriage licenses. According to Davis’s own statements in court, she would prohibit clerks from issuing licenses regardless of the clerk’s own views on same-sex marriage.

Of course, five of the six clerks in Davis’s office also share the same beliefs as their boss. The sixth clerk declined to state his religious beliefs. Although Davis has the right to express her religious beliefs, she cannot order others to do or not do something based on her religion. The fact that Davis would prevent the sixth clerk, or any other clerk, from issuing same-sex marriage licenses, even if those clerks fully supported same-sex marriage, shows that she only cares about her own beliefs. Davis has no regard for the beliefs of others. This is not a personality trait that our elected officials show hold.

Moreover, Davis acts as though she is the only public official to ever have a conflict with the law she swore to uphold. Every day, judges give out mandatory prison sentences for minor drug possession even though many judges feel such prison sentences are too harsh compared to prison sentences for child rape or terrorism. There are some judges who oppose the death penalty and yet will sentence a murderer to death based on a jury verdict. Judge Bunning himself is the son of a prominent Republican Senator and likely disagrees with the Supreme Court’s verdict on same-sex marriage himself.

Despite their disagreements, these judges are required to follow the law because they took an oath to uphold the Constitution. Struggling with a conflict between personal views and public duty is normal for people in a position of power. If the burden becomes too much, public officials can take Justice Scalia’s advice and resign from office. But what these public officials cannot do is use their office as an extension of their personal views, regardless of whether those views are political or religious. Davis wants to keep her job and deny licenses to same-sex couples. If the conflict is too great, if Davis feels her office is separating her from “her heart and her soul,” then the proper course of action is to resign.

Sperm Donor Parental Rights

In most states, a true sperm donor gives up his parental rights. However, some sperm donors are fighting for parental rights to the children they have fathered – and legislators are listening.

In the past, most state laws were clear that if the sperm donor is not the husband of the mother, the donor had no rights, obligations, or interest in the child resulting from the insemination. On the other hand, the child born as a result of the insemination had no rights, obligations, or interests with the donor. That means the donor didn’t have to pay child support, or have any visitation rights, and the child couldn’t expect support or inheritance from the donor. However, times appear to be changing.  my_daddys_name_is_donor

In early 2015, a lesbian couple in New Jersey sought a sperm donor for their two children. At the time of donation, both donors agreed to leave the parenting to the women. However, after the children were born, they sought visitation rights. Contrary to existing state laws at the time, the donor seeking visitation rights with the child prevailed. Prior rules regarding donors no longer appear to hold weight, as biological fathers are prevailing in these custody cases.

The state of Kansas made headlines when the state itself sought to have a donor declared the father of a child born through insemination. In this instance, the man in question responded to a Craigslist ad posted by a couple seeking sperm to parent a child. This situation was atypical than most parentage cases, as it did not deal with the parent of the child or the donor seeking parental rights, but the state in which the insemination occurred. Kansas sought to hold the donor-father responsible for public assistance paid by the state and future child support until the child reaches the age of 18.

The Modern Trend

In 2013, Hollywood actor Jason Patric sought to change the existing laws in California regarding sperm donor and parental rights. Prior to this case, California courts never recognized the rights of a sperm donor who aren’t married to the mother. As a result of Patric’s case though, a California appeals court held that a sperm donor can establish a familial relationship with the child if the donor-father has demonstrated a commitment to the child and the child’s welfare would be best served by having the sperm donor be a presumed father.

Prompted in part by this high-profile case, California passed the Modern Family Act into law last year. The new law provides that sperm donors may fill out a form indicating what their duties and responsibilities will be in the child’s life. By making the expectations explicitly understood between the parties, the hope is that families will avoid legal disputes later on about custody, support, and other parentage issues. However, many legal analysts argue that a written agreement may not be as secure an agreement as hoped. Constitutional law may grant biological fathers a right to their children if they have acted like fathers, regardless of how the child was created.

Enforcing a Verbal Contract to Share Lottery Winnings

What if you entered into an oral agreement with someone to share lottery winnings in the event that you won the lottery? That is exactly what occurred between a Florida man, Howard Browning and his former girlfriend, Lynn Anne Poirier. According to Browning, the former couple verbally agreed in 1991 to share lottery winnings with the other if one of them won. In 2007, Poirier hit the jackpot. Instead of honoring their agreement, Poirier had Browning evicted from the home that they had shared for sixteen years. In 2008, Browning sued her for violation of the oral contract, and alleges that he is entitled to $500,000, or one-half of the $1 million, that she won in the lottery.Couple Break Up

Statute of Frauds

After a jury started to hear evidence in the case in 2012, a judge threw out the case, and an appeals court subsequently agreed. However, in May 2015, those decisions were reversed by the Florida Supreme Court, which ruled that Browning should have a new trial. The Court reasoned that the agreement to divide any future lottery winnings is not required to be in writing because it could be performed within one year. This decision is in line with the Florida Statute of Frauds, which says that a lawsuit cannot be filed for breach of a contract that cannot be performed within one year unless the contract is in writing.

Nevertheless, there are conflicting accounts as to the status of the relationship at the time that the winning ticket was purchased. According to Browning, he and Poirier had dined together just prior to buying the tickets. Poirier, however, tells a different story. She says that she purchased the winning ticket when they had already separated.

While the plaintiff is ecstatic that the court sided with him, he is concerned that the defendant may have already spent the funds. A jury must now determine whether the couple really entered into an agreement to split the lottery winnings, and if they were still together at the time the defendant won the lottery.

I really have to admire the plaintiff’s persistence in trying to claim his share of the winnings. Many people, I’m sure, would have just chosen to move on if their former significant other reneged on their promise to split the winnings with them.