Archive for the 'Family Law' CategoryPage 2 of 26

San Francisco Now Leading Country in Paid Family Leave

In a unanimous vote, the San Francisco Board of Supervisors passed a law mandating up to 6 weeks of fully paid family leave for new parents. Not only does this new legislation provide much needed support for mothers, but it applies to fathers and, as the icing on the cake, same-sex couples as well!  I wouldn’t really call it progressive, as U.S. policy on paid family leave is pretty much non-existent compared to other countries around the world, but it’s definitely an advanced step in the right direction for the U.S.

The State of California currently has a Paid Family Leave Program that pays up to 55% of an employee’s salary for up to 6 weeks, but on the heels of the Board’s legislation, Governor Jerry Brown signed a bill expanding that benefit to up to 70% of an employee’s salary. The programs expansion will take effect in 2018.

Who’s Eligible?

The legislation applies to all covered employees, which is defined as:

  1. Someone who is eligible for a Paid Family Leave claim,
  2. Someone who started with a covered employer at least 90 days prior to the start of the leave period,
  3. Someone who performs at least 8 hours of work per week for the employer within the city (you must work in the city, but you are not required to live within the city),
  4. Someone who works at least 40% of their total weekly hours for that covered employer within the city.

That’s right folks—in the midst of recent anti-LGBT laws throughout the country, this legislation doesn’t discriminate. Anyone who meets the above criteria will be covered.  Being eligible for a Paid Family Leave claim falls under California’s disability insurance laws, but basically you have to have been employed prior to the leave period and would suffer a loss of wages when you need to take time off work to bond with a new child. This includes any new child, biological or adopted.

Very Few Employers Exempt

Government entities and employers with less than 20 employees are exempt, which means any private or non-profit business with 20 or more employees anywhere in the world will be considered “covered Paid Family Leaveemployers” and required to fork up the additional amount not covered by the State’s disability insurance program. Companies with less than 50 employees will be required to implement the legislation starting in 2018, while companies with more than 50 employees are required to begin January 1, 2017.

Where’s the Money Coming From?

The Paid Family Leave program is an extension of the State’s disability insurance program, which means 55% of the money comes from a tax on employees. Almost all private, and many government and non-profit employees, contribute to the states disability insurance program.  In fact, in order to be eligible to apply for paid family leave, the employee must have paid at least $300 worth of withheld taxes to the program (or if unemployed, you had to be looking for work). Until the Board passed this legislation, new parents were out the remaining 45% of their income.

Under the new expanded Paid Family Leave coverage that will take effect in 2018, workers making minimum wage will be eligible for 70% of their pay while on leave; employees making more than minimum wage will be eligible for up to 60% of their pay.

This means the remaining 30-40% will come from the covered employers. The Board’s bill is currently awaiting Governor Brown’s approval, but it’s expected he’ll sign.

There’s a Downside, but the Benefits Outweigh the Negatives

The biggest downside is the increased responsibility on behalf of the businesses, especially small businesses that may already be struggling. According to the Office of Economic Analysis Impact Report, the law increases the cost of hiring, increases employer compensation by close to $16 million (at a minimum), will reduce the cities jobs, will cause slow job creation and replacement, and would create negative multiplier effects on the local economy.

Only 55% of employees that claim assistance under the Paid Family Leave program actually live within San Francisco, which means the remaining 45% of non-resident employees will inevitably be spending, at least some of, the extra income outside of the city, which, in turn, negatively impacts those small businesses within the city that are footing the bill.

On the plus side, the law would create an additional $26.5 million in household income for San Francisco employees, which is much needed in an area where the cost of living is ever increasing. Although a broad step in the right direction for the U.S., it’s a modest one by global standards.

The U.S. is the only developed country in the world that doesn’t guarantee paid leave to new parents. The Family and Medical Leave Act only covers 12 weeks of unpaid leave. With New York recently mandating 12 weeks of paid leave for parents at 50% of their income, California is among only 2 other states offering paid family medical leave.

Although 12 weeks of paid leave for fathers ranks fairly well among paternity leave in other countries, the average number of weeks offered for maternity leave in countries around the world is 54. That’s 54 paid weeks for mothers.

Mississippi Adoption Agencies May be Able to Deny Placement of Child Based on Premarital Sex

Remember when businesses could refuse service to African-Americans? Mississippi has just passed a religious freedom bill that puts a halt to any progression made in the LGBT community since Obergrfell v. Hodges and it sure reminds me of when blacks were segregated from whites. Will we ever learn from past mistakes?

The bill, known as the “Protecting Freedom of Conscience from Government Discrimination Act”, essentially allows both public and state employees to discriminate against anyone they believe doesn’t align with their religious beliefs. House Speaker Phillip Gunn stated he wrote the bill in response to the jailing of Kim Davis for refusing to issue marriage licenses to same-sex couples after Obergrfell.

Upon signing the bill, Governor Phil Bryant stated it was, “to protect sincerely held religious beliefs and moral convictions…from discriminatory action by state government,” and that the bill “merely reinforces” existing religious freedom rights without limiting any constitutional rights.

The LGBT community will take the biggest hit from this bill, but many are overlooking an even smaller portion of the bill that focuses on adoption agencies. Essentially, adoption agencies, whether public or private, will be able to discriminate against potential adopting parents if they believe those parents are having premarital sex. Say what?

A Closer Look at the Bill

The actual text of the bill states:

“Section 2. The Sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:

(a) Marriage is or should be recognized as the union of one man and one woman;

(b) Sexual relations are properly reserved to such a marriage; and

(c) Male (man) and female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

Now on it’s face, it looks like the State of Mississippi is promoting, or rather supporting, this belief. What the bill actually says is that the “state government shall not take any discriminatory action against a religious organization…” that promotes or does business based upon personal and religious beliefs.

Discriminatory action on behalf of the government means the government cannot change tax treatment, take away previously allowed rights, contracts and benefits, fine, charge fees, or refuse to hire, among many others, anyone that refuses service based upon their religious beliefs. The bill isn’t necessarily promoting this belief so much as they are granting protection from governmental backlash.

Still seems a bit backwards though doesn’t it? The bill further reads:

“Section 3. (2) The state government shall not take any discriminatory action against a religious organization that advertises, provides or facilitates adoption or foster care, wholly or partially on the basis that such organization has provided or declined to provide any adoption or foster care service, or related service, based upon or in a manner consistent with a sincerely held religious belief or moral conviction…”

It’s broadly written, which means adoption agencies could essentially deny placement of a child on the basis of the agencies religious beliefs that sex is reserved for married couples. Is this going to be on a pre-adoption questionnaire?  Asking whether someone is having sex outside of marriage would be a violation of the right to privacy, but the agencies could just assume certain people are engaging in premarital sex.  Sounds a whole lot like religious discrimination, doesn’t it? Let’s look at an example to see how this could actually play out.

  • Bill and Cindy want to adopt a child. Both have good jobs and would be excellent parents, however they don’t believe in marriage and, instead, live together as domestic partners.

A “religious organization” under the bill includes a “religious group, corporation, association, school or educational institution, ministry, order, society or similar entity…” Adoption agencies are run by either public (state) or private entities, which means privately held companies run by religious organizations could refuse their services to anyone they want under the freedom of religion umbrella.

  • An adoption agency with firmly religious roots finds out that Bill and Cindy are not married and since they strongly believe sexual relations are reserved for married couples, they choose to deny placing a child with them.

The Bill Might Not Actually Violate Any Rights

The Federal Civil Rights Act of 1964 prohibits discrimination by privately owned places of public accommodation on the basis of race, color, religion or national origin.

A couple’s ability to parent should not rest solely on the basis of religion or marriage. However, while the act itself of discriminating based upon religious beliefs is a violation of the Act, maybe even a violation of the right to privacy, the text of the bill itself may not be violating any rights because it only prohibits the government from taking governmental action against those that choose to discriminate, rather than having the government itself be the discriminating party.

Whether the application of the bill plays out as written is a different story. If applied discriminatorily, it won’t matter how the text of the bill is written.  That’s going to be a key distinction when this bill is inevitably challenged.  Those that the bill affects will have to take suit up with the individuals discriminating, rather than with the government.

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.