Skip The Paternity Coin Toss? Positive Hunches Almost Always Right, Doubters Generally Wrong

An interesting study comes out of the University of Oklahoma.

According to this United Press International report, men confident of their paternity turn out to be correct more than 98% of the time.

The study also found that men who doubt their paternity actually prove to be the actual biological fathers more than 70% of the time.

This report is timely, in light of recent publicity surrounding claims of rampant paternity fraud. More on that in a previous post.

The study also underscores an important point: perception is more powerful than reality. Men are more likely to be involved with and provide support for children who they believe are theirs – regardless of whether they are right or wrong in that belief.

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First International Custody Case Under Maryland’s New Child Custody Jurisdiction Act

A child custody jurisdiction case on appeal to Maryland’s highest court reads like a law school final exam.

According to this Baltimore Daily Record article, the mother, father and child all lived in India from 1999 until 2002. Then the mother took the child away from India to the Baltimore metro area.

The father reportedly brought a child custody proceeding first, in India, within 6 months of the child’s removal from India. The mother later brought a child custody proceeding in Maryland, after living in Maryland with her son for six months.

India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, and no other treaty applies.

When the mother filed for custody there, the Uniform Child Custody Jurisdiction Act was the applicable law of Maryland. Maryland has since adopted the newer Uniform Child Custody Jurisdiction and Enforcement Act.

The Maryland trial court reportedly held that India had already validly exercised jurisdiction over the child by the time the mother filed suit in Maryland and, therefore, dismissed the mother’s suit there.

But an intermediate level appeals court overturned the dismissal of the mother’s Maryland case.

The key issue pressed on appeal is reported to be:

whether Maryland’s child custody jurisdiction statute requires Maryland to defer to India’s previous, presumably valid, exercise of jurisdiction in accordance with Indian law, if the mother was afforded due process of law, at least assuming that the child’s fundamental human rights would not be violated in India.

As the issue has apparently been framed narrowly on appeal (barring some unusual deviation from the uniform act in the version passed in Maryland), the answer likely should be yes.

Having said that, that still doesn’t necessarily mean that Maryland may not or should not exercise jurisdiction and proceed with the mother’s case. It just depends on all of the underlying facts of the case – and, arguably, on the status and posture of the case still pending in India, as well as the position of the judge presiding over the case in India.

It is unclear from the article whether the Maryland trial court delved that deep.

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Divorce Filings Up after Tax Deadline

Assembly of all the financial information necessary to prepare income tax returns also goes a long way toward preparing for the financial aspects of a divorce case.

And that financial information gathering doesn’t even arouse any suspicion at this one time of the year.

That’s probably why divorce filings tick up right after the tax deadline passes.

Read more from this Chicago TV news piece.

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Educated, Successful, Professional … Domestic Abuser

There’s a persistent myth that domestic violence and abuse only happen in uneducated, lower income homes. Abstract reports of studies resulting in findings to the contrary can’t seem to dispel it.

An article from right here in South Florida very concretely puts the lie to the myth.

According to the article, the teenaged son of a successful Miami attorney called 911 on an occasion when his drunk parents got into a violent fight – just one of many such occasions the boy indicated. The attorney was also reportedly abusive toward the police responding to the 911 call.

Despite his wife’s apparent bruising, prosecution of the lawyer was declined. Perhaps the myth is fueled by rates of prosecution, which may in fact vary inversely with education and income levels.

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Custody, Visitation and Emergency Evacuations Out-of-State

The New York Times just published Torn by Storm, [Louisiana] Families Tangle Anew on Custody. It’s a thought-provoking article that resonates with every family lawyer who practices in a hurricane zone like New Orleans – and South Florida.

The sheer scale of the disaster, the vast number of custody and visitation orders impacted and an indefinitely shut-down court system all make for a volatile, frustrating mix. Post-Wilma South Florida experienced it too, if to a lesser degree.

And now parents are giving – and should give – more thought to how evacuation scenarios should be handled.

Floridians should note that post-divorce relocations are not handled the same way in Florida as in Louisiana. And the Uniform Child Custody Jurisdiction Act is not the current law in Florida. (Florida repealed that statute when it enacted the Uniform Child Custody Jurisdiction and Enforcement Act.)

It should also be noted that the article’s brief, superficial analysis (probably by a nonlawyer) may not predict correctly the likely legal impact on jurisdiction of temporary relocations by the primary residential parent, especially subsequent to entry of the original custody and visitation order.

(Anyone caught up in a situation like this really should consult an attorney about the particular laws and facts of their particular case.)

Also, as in Louisiana, Florida statutes governing child custody, visitation and relocation do not explicitly articulate special rules in the event of hurricanes or other natural disasters.

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Internet Visitation: The Next Best Thing to Being There

Problem: After a divorce, one or the other parent may eventually relocate. If there are common minor children, one of the parents is then going to become a long-distance parent, with an altered in-person visitation schedule. This is the reality for many families of divorce.

Near-Solution: “Internet visitation” or “virtual visitation”. Although only a couple of states have formally recognized it in their statutes, web-facilitated visitation has become a fairly popular resolution by agreement and in fact.

This article in the Detroit News richly illustrates the character and quality of internet visitation as compared to telephone visitation.

Of course, internet visitation has its critics. Among other things, they argue that it casts the separated parent’s modified visitation in too rosy a light before the court ruling on the proposed relocation.

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Despite Recent Popularity, Are Prenups Enough?

This blog has previously noted that prenuptial agreements have becoming increasingly popular. But a South Carolina news article raises a very valid point: you may need more than a premarital agreement.

Although the article is aimed at seniors contemplating second (or later) marriages, much of the advice is relevant for people planning to marry at any age.

A couple of often-overlooked points are well worth repeating:

  • If either party has separate premarital property that they want to remain separate marital property, they should treat it as separate property at all times
  • Prenups aren’t just for divorce; they can govern what happens in the event of the death of either spouse too
  • In fact, in some cases, the parties only want to address inheritance in the event of the death of either; in such cases, a waiver of spousal inheritance rights may be all that is called for
  • A premarital trust may add teeth to either or both parties’ wishes
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Paternity Fraud: How Much of It Is There Really?

Is paternity fraud rampant? That’s the proposition featured in a National Law Journal article.

The basis for the proposition is that, in numbers of cases, DNA tests eventually conclusively disproved paternity of the supposed father – after he was held to be the child’s father.

The article does not mention that, in the vast majority of cases, those men had the opportunity to prevent such a holding from being made, simply by requesting or submitting to DNA testing, before the holding was made – and shared with the child and the people that make up the child’s universe.

Why did they wait?

Now, an Illinois man is defending a pending paternity claim against him. But DNA testing won’t help him.

According to a Chicago Sun Times article, the man contends that he was merely a sperm donor and, therefore, should not be responsible for his biological children.

The man reportedly met the birth mother on a dating website, not a sperm donor bank. They apparently dated for a full year before they broke up.

And, later, he allegedly signed what sounds like an acknowledgment of paternitywhile in a bank.

Although the article doesn’t mention the word “fraud”, that certainly sounds like the essence of the father’s defense.

Fraud as a ground to disestablish legal paternity. A potentially slippery slope.

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Should a Rapist Have Parental Rights to the Child Born of His Crime?

A thirty-something year old man convicted of sexually assaulting a teenaged girl is appealing a Vermont family court’s denial of his parental rights to the baby born of his crime.

The biological father apparently argues that because he didn’t use force on the teenager, he can make a positive contribution to the baby’s life and, therefore, his crime should be overlooked.

The mother of the baby reportedly opposes granting parental rights to the man who sexually assaulted her.

Not surprisingly, this case poses an unlikely and previously unconsidered legal question in Vermont (and most other states). The appeal is expected to be heard before the state’s Supreme Court in the near future.

Read more about the case in this Barre Montpelier Times Argus article.

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Are Siblings Still Siblings After Separation By Adoption Out of Foster Care?

When people adopt a child, amazing transformations occur because of a court order.

People instantly become parents, just as though they had been biological parents. A child instantly gains parents, just as though he or she had been born to them.

Obviously, the child simultaneously sheds its legal relationship to its biological parents. Adoption creates a new family.

But what if the child’s biological parents had other children? Does the legal relationship between a child and its biological siblings end just because the child is legally adopted into a new family?

According to an article in the Philadelphia Inquirer, a court-appointed attorney for a child in foster care in New Jersey doesn’t think so.

The child’s attorney argues that, even though the child’s relationship to her biological parents will end when she is adopted by her foster parents, it is her right to continue to have visitation with her biological siblings, who were previously settled in another foster home.

Such a holding would seem to call into question the very nature of adoption though.

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