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Native American Heritage Over the Best Interests of a 6-Year Old?

A 6-year old was removed from her foster family after living with them for nearly 4 years because she is 1.5% Choctaw.

Alexandria, nicknamed “Lexi”, was removed from the custody of her biological parents at the age of 17-months. Her mother had substance abuse problems, while her father has an extensive criminal history. Both have lost custody of other children.

Since her father is an enrolled member of the Choctaw tribe, the tribe gets a say in where Lexi is placed. The Choctaw tribe agreed to send her into foster care in order to “facilitate efforts to reunify the girl with her father.” Reunification attempts with the father ultimately failed and the tribe recommended Lexi be placed with a family in Utah who has custody of Lexi’s half-sister.

Lexi ended up in the care of the Page family. The 2-year old bonded with the Pages and quickly became a member of the family. Although aware that Lexi was always meant to be a temporary foster child, the Pages fell in love with Lexi and quickly tried to adopt her, which triggered a legal battle.

A Los Angeles County Superior Court ruled Lexi be placed with the Utah relatives. Lexi would have originally been 3 or 4 when placed with the Utah family, but

the Pages made attempts to appeal the decision. By the time an Appellate Court stay preventing Lexi’s removal from the Pages was lifted, Lexi had already turned 6.

What is the ICWA?

The Indian Child Welfare Act is a federal law enacted to promote keeping American Indian children with American Indian families. The purpose is to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” Lexi Page

A high number of Indian children were being removed from their families and being placed in non-Indian families with zero Indian culture and, thus, tribal survival was threatened. Congress recognized that what’s in the best interests of a non-Indian child is not necessarily what’s in the best interests of an Indian child. As a result, Congress enacted the legislation on the basis that the interests of tribal stability are just as important as the best interests of the child.

The kicker here is that the Utah relatives are not American Indian and are only related to Lexi through the father’s step-grandfather. That doesn’t seem to effectuate the purpose and intent of the law in the first place.

Wait a Minute…

Something seems wrong here. Isn’t the purpose of all custody cases to keep families together if possible?  Don’t get me wrong, keeping culture and heritage alive is important, but, the entire purpose of creating the best interest standard is to do what’s actually best for the child, not necessarily what’s best for the family or its heritage.

Sometimes, keeping families together isn’t always possible and certainly isn’t always what’s in the child’s best interest. Had Lexi been placed with her relatives at the time she was removed from the custody of her parents, then I’m all for it.  Removing Lexi after 4 years from the only family she ever knew does not seem to be in her best interests. The LA court stated that Lexi was not likely to suffer emotional harm after being taken away from her foster family.

Don’t let them take me. I’m scared.  I’m scared.  Don’t let me go.”

Those were the words Lexi spoke to her foster father and those don’t sound like the words of a child not suffering emotional harm. Clearly, Lexi had some awareness of what was happening and the fact she was able to recognize she was going to be taken away from her family seems counterintuitive to the court’s reasoning.

There’s Probably No Solution That Will Make Everyone Happy

A child’s cultural identity should not play a factor into a custody decision. Period.

However, this law is in place and because the purpose of the law is to preserve tribal culture, I want to reiterate the fact Lexi’s extended relatives have nothing to do with American Indian culture. Once the reunification attempts with the father failed, the best interests of the child standard should have taken control, not the ICWA law.

Although support and opportunity for interaction with extended family members is a factor, the best interests of a child also includes a need for continuation of a stable home environment, the interaction and interrelationship with members of the household, and an adjustment to school and community.

Despite the fact the Utah family made monthly visits to California to spend time with Lexi, she had become a part of the Page family, had grown close to her new brother and sisters, and had become a part of the community. She became attached to the Pages.

Page Family to Continue to Appeal

The Page family plans to exhaust all possible avenues at the state level, including appealing to the California Supreme Court.

The case is similar to a 2013 United States Supreme Court case involving the same ICWA law. The Capobianco family adopted a child at birth with the mother’s consent. Unbeknownst to the family, the father was unaware of the adoption. When the biological father learned of the adoption, he tried to assert his custody rights under the ICWA. The Supreme Court sided with the adoptive family, stating the biological father could not rely on the ICWA when he never had legal or physical custody at the time of the adoption proceedings.

In Lexi’s case, the father once have custody, and all reunification attempts had failed, which means the Pages may have a chance in a reversal of the LA court decision.

Failure To Pay Child Support Means Jail Time

Failing to pay child support can land you in trouble in many ways. You can lose your driving privileges, have your bank accounts frozen, lose passport privileges, or even be denied your tax refund, but possibly the harshest consequence is jail time. Since child support is a court order, failure to follow through with payments puts you in contempt of court—which can mean jail time. You can go to jail for up to 6 months for not paying child support.

Fail to Pay Child Support, Go to Jail, and Lose Job…Fail to Pay Child Support Again

Often times, a noncustodial parent will lose their job when sentenced to jail, which seems counterintuitive. Putting a parent in jail means they can’t work—which means they can’t pay child support.  Is that a reasonable consequence for failing to pay child support?

All 50 states believe it is and have some form of law that includes jail time for failing to pay child support. Regardless of the state, the common concept in any family case involving children is what’s in the best interest of the child. Child support is for the care of the child (not the other parent or guardian), which means the money is to be used to provide for the child’s food, shelter, clothing, health and medical care, and educational expenditures. Child Support Services

Roughly 45% of the families in child support programs in the United States have budgets that come from the noncustodial parent. No income can be generated while in jail, which means the parent cannot pay any child support and that’s certainly not in the best interests of the child.  Not only does a noncustodial parent’s lack of income affect the care of their child, but losing a job due to serving time looks bad to potential future employers—making it even harder for the noncustodial parent to pay child support payments once out of jail. Let’s not forget, payments don’t stop being owed while you’re locked up!

What are You Supposed to Do If You Can’t Afford the Payments?

Child support is based off income and once child support is ordered, the only way to get that number changed is by filing for a modification. Sounds easy right? Think again.  Most states don’t make it very easy to file for a modification—you must show proof of a change in circumstances so substantial and continuing, that you cannot afford the current court-ordered child support payment.

Even if you can prove that, a modification won’t change any amount of arrears, or past due child support, you owe. It doesn’t take long for arrears to add up to thousands upon thousands of dollars if you aren’t paying child support and then it becomes even harder to pay your balance in full, especially if you’ve just been released from jail. Once released, some judges may even give the arrear holder a very short amount of time to pay their child support balance in full and, if not, back to jail they go.

So, what’s the Alternative?

The system was originally designed to punish parents that were hiding assets or just not paying. Unfortunately, the system often results in the poor being punished for payments they can’t afford in the first place.

In an effort to combat the problem, programs have been created that provide employment services to noncustodial parents within the child support system. The federal Office of Child Enforcement has created grants that are given to a select few select states to fund these programs. The employment programs focus on:

  • Case management
  • Employment-oriented services: job placement and retention services
  • Fatherhood/parenting activities using peer support
  • Child support order modification

Texas’ Attorney General’s office has had some success with their Noncustodial Parent Choices (NPC), a similar program that offers support to noncustodial parents behind on support by helping them become economically self-sufficient. In the first 4 years of operation, the program brought close to $30 million back into the child support system.

Virginia’s Intensive Case Monitoring Program focuses on a problem-solving approach, rather than a punitive one. Jail time is becoming a last resort in many of their courts and, instead, many child support offices are working with the noncustodial parents to help them find employment and provide other resources they may need to be successful. Of Virginia’s 320,000 child support enforcement cases in 2014, only 6,000 ended up with jail sentences.

Focusing on punitive measures rather than solving the root of the problem—lack of income—only hurts the care of the child in the end. Promoting self-sufficiency seems to be the key to getting these children the support they need. Isn’t that the outcome we all want anyway?  That’s not to say there aren’t those that don’t deserve to have the book thrown at them, but for the parents that really can’t pay due to their economic circumstances, the alternatives are better for all.

Surrogate Sues Genetic Father Who Demands Abortion

A surrogate pregnant with triplets sued the genetic father (and intended parent) of the triplets she’s carrying, claiming that he demanded her to abort one of the fetuses while threatening her with financial ruin. 47-year-old Melissa Cook of California alleged that when she refused to abort one fetus, the genetic father of Georgia said he would place that child for abortion even if she would like to keep and raise the baby as her own. The pregnancy was achieved through in vitro fertilization, with sperm from the intended father and eggs from an anonymous 20-year-old donor.

Taking her alleged facts as true and nothing more, the story seems to raise both legal and ethical question of whether the genetic father has a right to demand abortion and whether such arrangement is ethical.

The Law of Surrogacy in California — Surrogacy Agreement

California allows commercial surrogacy. In the 1993 Johnson vs. Calvert case, the California Supreme Court held that the intended parents, as part of a gestational surrogacy agreement, should be recognized as both the legal and the natural parents. In a gestational surrogacy situation, the surrogate is not the biological contributor of the egg, but rather the carrier of the embryo that is made up of the intended father’s sperm and the intended mother’s egg and is then implanted into the surrogate’s uterus via in vitro fertilization. Furthermore, effective January 1, 2015, California Surrogacy Enabling Statute expressly provides for enforceable surrogacy contacts. Under this California law, the parties’ surrogacy agreement provides rules of parentage. Rather than biology or marriage, intent becomes the dispositive factor in parentage.

States have different standards on surrogacy laws. Each state has its own legal approach to surrogacy and surrogacy contracts. Some states make surrogacy contracts enforceable, while others forbid or even criminalize it. California is one of eight states that allow for legal contracts that compensate for gestational surrogacy and the intended parents’ names can go on a birth certificate. California does not regulate the surrogate arrangements as intensely as other state’s.

Can the Intended Father Demand Abortion? 

The undisputed facts show that the parties entered into a surrogacy agreement. Based on the contract, Cook would receive $33,000 for acting as a surrogate, with $6,000 per additional child. The contract also had a reduction clause—whereby the intended father could request an abortion in the event of multiple pregnancies—which is commonplace for surrogacy Pregnancyarrangements using in-vitro fertilization.

Since there is no federal law regulating surrogacy and California acknowledges enforceable surrogacy contracts, it comes down to whether the contract was valid and if so, whether the “reduction” clause is valid as well. The next question is whether any party breached the contract and if so, what remedies the court will decide for such breach.

Is the Surrogate Contract Valid?

While Cook claims that the agreement should be invalid, there are no facts to support her argument to entirely invalidate the parties’ contract. Among many allegations, Cook argues that the intended father asked the surrogate to stop going to the doctor so often because it was costing him too much money and he further asked her to abort one fetus.

However, the contract does not require the intended father to pay the surrogate’s medical expenses. The contract also provides the intended father the right to make a decision for selective reduction. The fact that Cook’s insurance does not cover the costs of surrogate pregnancy and that carrying triplet at the age of 47 should have given both parties for the need to address higher medical costs than usual and fair arrangement reflecting such expenses. The surrogate agreement should have been more carefully drafted to balance the equities to express the parties’ intent and circumstances.

A contract can be void when the contract involves illegal activity or is against public policy. If the same case had been brought in Kentucky, Cook would have had the right to void the contract, as Kentucky law gives the birth mother the right to void the contract if she changes her mind during the pregnancy or immediately after the birth.

Since California legalized commercial surrogacy and acknowledged surrogacy contracts enforceable by the statute, there is no ground for invalidity of Cook’s contract. Without any other clear ground for invalidity while considering the California Surrogacy Enabling Act and Calvert precedent, the court will not likely invalidate the surrogacy agreement.

Did the Parties Breach the Contract?

If the court finds the contract valid, the next question would be whether either Cook or the intended father has breached the contract. If the intended father breached the contract by refusing to make payments under the contract, Cook may be relieved of the duty to perform under the contract. If Cook had breached the contract by refusing to abort the third baby, the court will not order her to abort the baby but instead may award money damages to the intended father. In any case, the intended father would remain as the legal parent as long as the contract is valid.

A Take Away from Cook’s Case  

In February 2, Cook brought a new federal lawsuit claiming that California’s Surrogacy Enabling Act is unconstitutional. She claims that the law reduces her to a “breeding animal or incubator,” and enforces the “commodification” of children. Apparently, Cook, once a proponent of surrogacy and one who voluntarily agreed to become a surrogate, changed her position into opposing to surrogacy, stating, “I no longer view surrogacy arrangements in the same favorable light I once did. Children derive a special benefit from their relationship with their mother,” and “I now think that the basic concept of surrogacy arrangements must be re-examined, scrutinized and reconsidered.” She is asking to be named the sole custodian of “Baby C”, and asked to be declared legal mother of Baby A and B.

Cook’s federal claims appear to raise an ethical question rather than a legal question. Although surrogacy raises a controversial issue of turning babies into commodities, surrogacy, when used as intended, fulfill many infertile couples’ dream to have their own children. While ethical debate continues, the court will decide the legal question.

The court will not likely pronounce the California Surrogate Enabling Act unconstitutional. However, some alarming facts suggest a take away for the legislators, the potential surrogates, and surrogate users. The fact that the intended father and surrogate never met in person nor spoke by phone; her age required weekly check ups because of a high risk pregnancy; the contract did not require the intended father to pay the surrogate’s medical expenses; the embryos were “sex-selected” so the surrogate would only give birth to boys; the contract gave the intended father the right to make decision for selective reduction, etc.

While none of these may be relevant or sufficient to forfeit the intended father’s parentage and parental right, Cook could have had a better protection for herself had these facts taken into consideration when making a decision for surrogacy arrangement and drafting the surrogacy contract.

Alabama Gay Marriage Ban

Forget about Kim Davis. Gay couples in Alabama are still locked in a battle that ended for everyone else with the Obergefell decision. Like many states, Alabama had a ban on gay marriage, called the Alabama Marriage Protection Act. In January 2015, a federal judge ruled the state’s ban on same-sex marriage was unconstitutional. It violated the Equal Protection and Due Process of couples wanting to marry.

In March of 2015, the ban was upheld—for now.

Alabama Will Not Abide By the Law

Shortly after the federal judge struck down the ban in Alabama, the U.S. Supreme Court made gay marriage legal with the Obergefell case. Alabama Chief Justice Roy Moore didn’t get the memo. He also didn’t get the memo about the Supreme Court being the highest court in the country.  Gay Marriage

The Court decides on cases. Those decisions apply to every state in the Union. Moore contends the Obergefell case doesn’t apply to Alabama. According to him, the ruling from state’s Supreme Court and the federal Court are conflicting.

Here’s his rationale:

  1. The Alabama’s same-sex marriage ban case is still pending. In other words, the Supreme Court hasn’t made a decision regarding Alabama yet.
  2. Obergefell only applies to states in the Sixth Circuit. These states include Ohio, Tennessee, Kentucky, and Michigan. Alabama is exempt from this ruling.

In January 2016, Moore issued an order to probate judges to stop distributing marriage licenses to same-sex couples. This has divided many probate judges in the state. Some are following Moore’s ruling and not issuing marriage licenses to same-sex couples. Others aren’t issuing any marriage licenses. Some are defying the order and issuing the licenses to same sex couples.

Moore can’t have it both ways. He can’t claim that the Supreme Court needs to rule on same-sex marriage when the federal government has spoken. State’s rights came out on the losing end of the same-sex marriage fight.

In the March ruling, the Alabama Supreme Court claimed it had the same right to interpret the U.S. Constitution as the federal Supreme Court. The Alabama Supreme Court went on to rule that the ban didn’t violate the couples’ due process and equal protection rights.

The Alabama Supreme Court claimed traditional marriage laws don’t discriminate based on gender. Men and women have an equal right to marry. They have the right to marry the opposite sex. The Court went on to base same-sex marriage on redefining what marriage is.

At that time, Moore wasn’t on the bench. He interpreted the difference between the Supreme Courts based on precedent. The U.S. Supreme Court issued its final injunction after the Alabama Supreme Court’s ruling. Thus, Obergefell wasn’t a precedent in that ruling. He claims decisions are only binding from the federal court if the decision is made prior to any state laws.

That’s untrue.

Obergefell is binding—for all states. It doesn’t matter if the Court ruled before or after state’s law was enacted.

What Happens to Couples Wanting to Get Married in Alabama?

Alabama’s probate judges aren’t the only ones stuck in the middle. Alabama couples wanting to get married in the state have two options. First, they can go to the counties currently issuing marriage licenses. Another option is to sue the probate judge refusing to issue the marriage license. If successful, a judge would order the probate judge to issue the marriage license. It’s similar to what happened in Kentucky with Kim Davis.

Alabamans still have the choice to get married outside of the state, if they want.

Moore Seeks Clarification, but Already Has It

After the U.S. Supreme Court decision, the state Supreme Court asked for clarification to determine how to proceed. The Court hasn’t given any clarification. However, no further clarification is required. The state’s ban is no more. Moore can’t claim state’s rights when every state must follow the law of the land.

Even if there was a conflict between the state and the U.S. Constitution, the states follow the Supreme Court’s decisions. Unfortunately for many straight and gay couples wanting to get married, Moore hasn’t gotten the memo yet. Obergefell applied to every state, not just the ones in the Sixth Circuit.

Managing Your Digital Life After Your Death

A majority of American adults don’t have a simple will. Perhaps you think it’s not necessary, too complicated, too time consuming, or too expensive. Or, you mistakenly believe that your spouse and/or children will automatically receive any assets you have.

Whatever the reason, now is the time to take action to ensure your family is financially taken care of in the event you pass away. The benefits of estate planning are plenty. You can identify your wishes and leave your assets as you wish. You can take advantage of tax savings or save money on court fees following your death.

Once you are ready to write a will, make sure your will covers digital assets. Digital assets include your online accounts, mobile apps for banking, email, social media, video and photo sharing, gaming, personal websites, blogs and more. With the advent of digital era, so many of us conduct our financial transactions and personal business on the web. Digital estate planning helps us manage our digital assets after we die.

Necessary Protocols to Access Deceased’s Digital Assets 

Providing executors access to financial accounts and other digital assets with a power of attorney is standard estate planning. Estate planning attorneys incorporate this standard to their practice. Various online tools for estate planning address how digital assets shall be accessed and to whom they shall be passed. Still, the concept of digital estate planning is relatively new and unknown. When a will is silent on digital assets, the surviving family is left with a burdensome and frustrating procedure when they wish to access the decedent’s digital life.  Wills and Trust

After her husband passed away, Peggy Bush, a 72-year-old resident of Victoria, B.C., wanted to play card games on their iPad, but could not because she did not have a password for their Apple ID account. Peggy knew the iPad’s login password, but did not know the Apple ID password had been set up by her husband. To access all of their downloaded apps, she had to insert Apple ID password.

According to the Washington Post, her husband had a will by which he left her most of his real property as well as personal property. However, his will did not mention digital assets such as online passwords. When she contacted Apple, she could not gain access to apps on the couple’s iPad. After contacting Apple multiple times, providing them with a notarized death certificate, a copy of the will, and the iPad’s serial number, Peggy thought she was finally able to access to their account. Instead, Apple told Peggy to get a court order if she wanted the access.

The Current Law

Although the strict protocol for allowing access to the decedent’s families aggravates the emotional distress of the loved ones who are dealing with their loss, such formalities may be inevitable to safeguard the privacy of the decedent’s while preventing the estate from potential harm. Unauthorized access to online accounts may be subject to attacks such as hacking, fraud, and data breach.

Then how can an executor access certain online records to close a bank account or email account without violating federal law, the privacy of the deceased, and the privacy of everyone who communicated with that person? The answer is not simple.

First, federal law, the Electronic Communications Privacy Act (ECPA), protects the privacy of our online communication content. Without express consent from the sender or recipient, or a court order or warrant, contents of online communications cannot be released after death or incapacitation. However, ECPA, which was enacted nearly 30 years ago, has limitations to address the protection of privacy issues arising from emerging technology let alone the issue of various digital assets of the decedent.

Second, your state may or may not have the relevant privacy law governing digital assets. Some states have passed or are considering digital assets legislation. However, even if the statute addresses digital assets, tech companies such as Facebook, Google, Twitter, and Linkedin set forth terms of service that differ significantly from others.

Access as Default or Privacy as Default?

States are taking up legislation to determine the default for how digital assets are handled. The Uniform Fiduciary Access to Digital Assets Act (UFADAA) model law is one proposal.  UFADAA relies on the principles of fiduciary duty to ensure that no harm results from granting access to accounts. UFADAA allows personal representatives, executors and fiduciaries to obtain control of and access the online accounts of decedents unless the access is prohibited by the Stored Communications Act (SCA) . While nearly half of U.S. states have introduced legislation in 2015 to enact the UFADAA, most of those efforts have stalled due to opposition. Only two states – Louisiana and Delaware – enacted legislation in 2014, and New Mexico legislature, where the bill passed in the State Senate in February 2015, has substantial progress made toward enactment.

Opponents who criticize UFADAA as a disregard of the interests of the deceased, created an alternative act, “Privacy Expectations Afterlife and Choices Act (PEAC).” Mainly, the opposition comes from privacy groups, email service providers and social media companies. PEAC provides limited access to subscriber records and log files, but not to the contents of those records and files unless the deceased user had consented to release of such contents. In short, PEAC sets privacy as default.

No matter which legislation your state enacts, it is best you plan ahead and make sure you include digital assets in your estate planning. Without clear guidance, however, lawmakers should consider encouraging companies to create tools for users to express what they would like to do with their online accounts.



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