Articles Posted in Family Law

Constitutional
A California woman, Melissa Cook, who agreed to act as a surrogate for a single man, is seeking custody of one of the children after giving birth to triplets. The intended father allegedly requested a reduction, as he only wanted twins. Cook is challenging the constitutionality of a clause in the contract that allegedly allowed the intended father to request a reduction.

Californian law currently permits commercial surrogacy, but Cook is aiming to change that, hoping that the court will deem both the contract and the law unconstitutional. Cook’s lawyer claims that children born through a surrogacy arrangement have a “fundamental right to get to know and love their mother,” and that the current law in California violates that right.

After a state court ruled against her, Cook appealed and is now waiting for a decision. The court will determine whether a surrogate mother has any parental rights and whether commercial surrogacy is constitutional. The court will also consider whether a surrogate may be sued for damages by an intended parent.

Donor eggs.jpeg
Denmark’s parliament has decided to nearly triple the pay that women who donate eggs may receive. There has been a shortage in available donor eggs, which has led some women to go abroad in search of egg donors, where the cost is far greater. This decision is expected to increase the number of donor eggs, which will make it easier for Danish citizens to have children.

The parliament’s decision seems to follow a trend of easing restrictions on egg donation. As in Kamakahi v. ASRM et al., where limits on compensation to egg donors were struck down, Denmark’s parliament chose to change an overly restrictive limit on compensation. In Kamakahi, the overturned guidelines stated that payments exceeding $10,000 were “not appropriate.”

Earlier this year, the parties in Kamakahi reached a settlement after four years of litigation. The terms of the settlement include the removal of the language stating that “[t]otal payments to donors in excess of $5,000 require justification and sums above $10,000 are not appropriate. “The ASRM has also agreed not to make any future dollar amount recommendations for donor compensation. Although the settlement did not result in a monetary award for the class members, they are permitted to file an individual lawsuit to recover damages.

when-the-bough-breaks.jpgLast week, one of our staff members went to the movies and saw a trailer for a film called “When the Bough Breaks.” The movie features a married young professional couple unable to conceive naturally, so they decide to pursue surrogacy. They match with a seemingly perfect surrogate and she becomes pregnant with their child. As her pregnancy progresses, she develops an obsession with the intended father, and attempts to seduce him. When he dismisses her advances, she becomes psychotic and threatens to hurt the baby. According to the official synopsis, “the couple becomes caught up in [the surrogate’s] deadly game and must fight to regain control of their future before it’s too late.” Sony Pictures Entertainment is marketing the film as a thriller, using the tagline “Find out how #ItAllWentWrong.” Our staff member was not only appalled by the entire plotline, but also by disturbing scenes such as one where the surrogate dangles a knife over her belly after the intended father rebuffs her advances.

While such plots make for juicy storylines that may attract moviegoers, these depictions of surrogacy are inaccurate and misleading. Surrogacy is normally an overwhelmingly positive experience for both the intended parents and the gestational surrogate. Gestational surrogates are scrupulously screened by agencies. Many fertility clinics require that the intended parents and the surrogate complete a mental health evaluation prior to starting the surrogate’s medications. The parties must usually stipulate in their surrogacy agreement that they have undergone mental health evaluations and that they have discussed the potential psychological risks with a mental health professional. In the unlikely event that something goes wrong, it hardly resembles the plot in “When the Bough Breaks.” More realistic issues that may arise can include disagreements during the contract negotiation phase, pregnancy complications requiring bed rest, or insurance-related uncertainties. Agencies, clinics, physicians, attorneys, social workers, and other professionals work tirelessly to ensure that gestational surrogacy arrangements are based on the underlying principle of good faith. While the emergence of problems in a surrogacy is not inconceivable, the level depicted in “When the Bough Breaks” is extreme and sensationalized.

To those who enjoy thrillers and plan to “find out how #ItAllWentWrong” when the film hits theaters in September, we encourage you to keep in mind that this movie does not accurately represent surrogacy. For an excellent and thought-provoking read on another recent misrepresentation of surrogacy, this time on television, check out this blog post by attorney Rich Vaughn from the International Fertility Law Group.

Bus Stop.jpgAs family law attorneys, we are frequently asked what types of expenses child support is supposed to cover. Although generally child support is to be used for expenses benefiting the child, the Indiana Child Support Guidelines (ICSG) give several examples of expenses that are called “controlled expenses” that are to be paid by the custodial parent, who is usually the parent receiving child support (see “Definition – Controlled Expenses” from ICSG below). Generally, “controlled expenses” are everyday expenses like school lunches and standard items that are not necessarily duplicated by parents such as clothing and backpacks. Parents should note that the guidelines do not give a definitive list of everything that could be considered a controlled expense, so some communication may be required between parties and counsel if there is a question about whether an expense falls into this category. Common situations where an issue arises occur when the children attend private school or require school supplies that are more expensive than normal. Parents in joint physical custody arrangements may also have to work together as their parenting time arrangement means that there is no designated “custodial parent.” In these situations, we usually counsel clients to designate a parent to serve as the custodial parents for the purpose of controlled expenses, or we encourage the parties to reach their own arrangements with respect to how controlled expenses are divided. As with many other advantages to informal settlement and mediation, the ability to reach agreements outside of court allows parties to tailor agreements to their children’s specific needs. Furthermore, addressing these types of issues in child support agreements may reduce disputes and litigation fees down the road.

Definition – Controlled Expenses: This type of expense for the child(ren) is typically paid by the custodial parent and is not transferred or duplicated. Controlled expenses are items like clothing, education, school books and supplies, ordinary uninsured health care and personal care. For example, the custodial parent buys a winter coat for the child. The noncustodial parent will not buy another one. The custodial parent controls this type of expense. The controlled expenses account for 15% of the cost of raising the child. The parenting time credit is based on the more time the parents share, the more expenses are duplicated and transferred. The controlled expenses are not shared and remain with the parent that does not get the parenting time credit. Controlled expenses are generally not a consideration unless there is equal parenting time. These categories of expenses are not pertinent for litigation. They are presented only to explain the factors used in developing the parenting time credit formula. The percentages were assigned to these categories after considering the treatment of joint custody by other states and examining published data from the Bureau of Labor Statistics’ Consumer Expenditure Survey.

What do you think? Have questions about controlled expenses? Tweet us @HARDENJACKSONLAW.

Baby at Doctor's Checkup.jpgDivision of medical expenses is always a big issue for our clients. Generally, the issue of coverage and insurance premiums is included in child support calculations because the party who provides insurance coverage is entitled to credit for the weekly amount paid. Therefore, the biggest remaining issue between parents is how to divide uninsured medical expenses for the children. When parties can agree, they have the ability to be flexible about how they want to divide these expenses, and there are many good reasons why parties would want to tailor the way they divide these expenses to their specific situation. In some cases, one party has supplemental coverage, a Health Savings Account, Flex Spending account, or other employer benefits that make sense to exhaust before dividing expenses between parties. Parents of children with specific medical issues may also need to specifically plan how uninsured expenses will be divided throughout the year.

When parents cannot agree or do not believe their case requires special accommodations, we advise clients of the 6% Rule, which is how the Indiana Child Support Guidelines ICSG suggest dividing uninsured medical expenses. While there is no guarantee that a judge would order parties to divide uninsured expenses pursuant to the 6% Rule, it is a generally accepted method and endorsed by the ICSG. Therefore, there is a good chance that a party’s judge is familiar with the rule and frequently implements it in his/her child support orders. Per the 6% Rule, the parent who is assigned to pay controlled expenses, usually the custodial parent and the one receiving child support, is required to pay an initial portion of ordinary uninsured health care expenses. The theory behind this is that the parent who is receiving child support can use a percentage of the support toward ordinary uninsured health care expenses. Therefore, the parent who is assigned to pay controlled expenses is expected to pay uninsured medical expenses up to 6% of the annual basic child support obligation, which can be calculated from the parties’ completed child support worksheet. Beyond that, the parties divide any additional uninsured medical expenses pursuant to their pro rata shares of the parties’ total gross income, which is also listed on the parties’ completed worksheet.

One major caution we always have for clients who follow the 6% Rule is the importance of good record-keeping. As with any other co-parenting issue, parties have to exchange information, billing statements, and receipts in order to determine if one parent has met his/her 6% threshold and how bills should be divided. Without a proper exchange of information and accurate record keeping, it can be difficult for an attorney to help resolve a payment dispute under this rule.

marriageequality.jpg On June 26th, 2015, the United States Supreme Court issued an historic ruling that invalidated state bans on same-sex marriage and held that same-sex marriage is a Fourteenth Amendment right. The decision results in the United States becoming the twenty-first country in the world to nationally legalize same-sex marriage. What does this landmark decision mean for Indiana, where same-sex marriage has been legal since the Seventh Circuit Court of Appeals overturned the state’s same-sex marriage ban in the fall of 2014?

The Indianapolis Star recently published an article that answers the above question. The article notes that although same-sex marriage is already legal in Indiana, the Court’s ruling will impact our state through the nationwide recognition of same-sex marriages performed in other states. Previously, marriages granted in states such as Indiana, where same-sex marriage was legal before the ruling, were not recognized by states that banned same-sex marriage. The article cites the following quote by Indiana University Maurer School of Law Professor, Steve Sanders, to illustrate this concept:

“If you’re married in one state, you’re married everywhere. That rule has long applied to virtually all heterosexual marriages. What this ruling means is same-sex couples cannot be excluded from the protection of that rule.”

mother.jpgIn addition to being a family law firm, we also have families. So often, our firm sees families in emotional turmoil due to legal battles with divorce, child support, and child custody. Mother’s Day was a chance for all of us to connect back with our firm’s roots: family. Each of us spent time with our mothers and/or our children and remembered why it is that we fight for the rights of our clients. Everyone deserves the family support and peace of mind that we all enjoy.

After Mother’s Day, our law firm reflected on what we did and what “motherhood” means to us.

Q: What did you do for your mom [Sunday]?

Mother & Daughter.jpgWhile we often discuss the family turmoil surrounding divorce, custody battles, and child support, sometimes taking a step back and simply focusing on your children is the best move.

On Thursday April 23rd, it is “Take Our Daughters and Sons to Work Day”, a day that strives to empower the youth of America and encourage children to create new pathways to their own success. Perhaps most importantly, this day also serves as an opportunity for the workplace to emphasize the importance of education to children still in school. This day is a great chance for you to show your children that you care about their future.

In preparation for “Take Our Daughters and Sons to Work” Day, here are some quick tips and fast facts on making the most of your day inspiring your children.

Thumbnail image for Thumbnail image for CMD close.jpgDuring the holiday season our office receives tons of questions from our clients about how to handle holiday parenting time. Attorney Christine Douglas helps individuals resolve a variety of legal issues that arise in families. With over 18 years experience guiding her clients through these types family law matters, Ms. Douglas offers advice on how to avoid holiday parenting time problems.

  1. Use common sense. Be flexible and focus on your child. If you are focusing on “your rights” or the other parent, you are not thinking about your child. The holidays should not be a battleground—ever! Be the better parent and avoid all confrontation. If the other parent is unwilling to be flexible with the holidays, then you should be flexible. You are not being taken advantage of–you are thinking about your child. You are helping create wonderful memories for your child and not holiday memories of on-going fighting and bitterness.
  2. Keep a diary of dates and times of parenting time and especially any modifications. Make sure all conversations about parenting time is limited to email so you have a record of who requested what, when parenting time was requested and how it was decided. If you ever have to go to court in regard to parenting time, you can show the Judge your efforts to be cooperative, reasonable and flexible.

CMD close.jpgHarden Jackson is pleased to announce that attorney Christine Douglas has been trained as a Parenting Coordinator and is now accepting clients. Christine practices solely in the area of family law and is a Certified Family Law Specialist, as certified by the Family Law Certification Board. She has extensive mediation and trial experience and completed the American Bar Association’s Family Law Trial Advocacy program in Denver, Colorado. She has been practicing for over sixteen (16) years and has extensive litigation experience managing heavy volume caseloads in complex, contested family law matters.

A Parenting Coordinator (PC) is a court-appointed “special master” tasked to assist parents with the development, implementation, and monitoring of parenting plans in hopes of reducing re-litigation. PCs also help parties and their children adjust to divorce and resolve impasses between parents. A PC’s authority is specifically defined by the Court through an Order of Appointment prepared by the parties and their attorneys. The order outlines which matters a PC can address as well as confidentiality, length of appointment, authority to request information, fees, etc.

The attorneys of Harden Jackson Law are devoted to servicing clients throughout the Indianapolis area and the state of Indiana in all areas family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy and other areas of assisted reproductive technology law. For more information, please contact Leah Potter at 317.569.0770 or www.hardenjacksonlaw.com.