Family Law and Divorce Law News | Robert & Masters

Paternity fraud refers to the unfortunate instance when a mother, usually out of self interest,  names a man to be the biological father of a child when she knows or suspects that he is not the biological father.  Paternity fraud has many potential victims: the non-biological father, the child deprived of a relationship with the biological father, and the biological father who is deprived of his relationship with his child.  Shows such as Jerry Springer a Maury have capitalized on this unfortunate situation for years.  This is an unfortunate and, in some cases, tragic scenario which can cost people thousands of dollars and intense heartache.

In the past paternity was impossible to prove.  If a woman (who were assumed to be chaste) claimed a man was the father of her child there was nothing the man could do to prove otherwise.  As science and modern medicine have progressed, things have changed.  It is now possible to prove without a doubt who the biological father actually is.  DNA tests have become almost commonplace and simple to perform.  This is not a trivial issue either.  During a 1999 study by the American Association of Blood Banks found that in thirty percent of 280,000 blood tests performed to determine paternity the man tested was not the biological father.

This has begun to raise some difficult ethical and moral questions.  The are a number of men who have begun fighting against paternity fraud.  This not simply some misogynistic attempt by men to exact revenge on women for making false parenthood accusations.  There are men who have paid child support for years after being falsely accused of fathering a child.  According to some, when the claims of paternity were known to be false or were at least known to be doubtful, this constitutes fraud.  Fraud is a criminal act done to secure unfair gain; in most cases when fraud is discovered, the victims of fraud are compensated and they stop paying.  However, that is not what happens in these paternity cases.  Most of the time the men involved in these cases have absolutely no recourse.  At the very best, they can challenge paternity instantly or within several months or years.  But that window does not last forever.  Once the window closes nothing can be done.  It certainly is not fair for a man to continue to pay child support for child that is not his.

The children also lose out in these cases.  They can possibly be robbed of the opportunity to form a meaningful relationship with their biological father.  However, in many cases the non-biological father who has believed, often for a considerable amount of time, that the child was theirs forms a strong relationship with the child that is not destroyed by the paternity test.  Many men who are shown not to be the biological father’s of children they have cared about for years end up formally adopting them, continuing their relationship.  Even in these cases the effect on the children can still be substantial.  Imagine learning that the man you have called dad for your entire life is not your biological father.  It can be shocking and extremely difficult to get over.

Paternity fraud raises a lot of ethical issues, not the least of which is “what does it mean to be a father?”.  Is fatherhood strictly defined by biology or is it forged by the relationship between a man and his child?  These are important questions that need answers.  As more and more of these cases come to light, state legislatures have reacted by beginning to treat these cases as fraud.  However, fraud is very difficult to prove in these cases.  It must be shown that the mother knew, or had a very strong suspicion, that the man she claimed was the father was in fact not.  Proving that belief years later in a court of law can be very difficult, if not impossible.  These are sad cases for everyone involved.  The reasons for these frauds very but cannot justify the hardships they cause.

Child custody is an important aspect of family law.  Child custody is the term used to describe the legal and practical relationship between a parent and child.  A parent, or parents, who have custody over a minor child are responsible for decisions regarding that child’s life and are entrusted with the duty of protecting the child’s physical and mental well being.  In a traditional marital relationship, custody is straight forward.  It is shared by both the birth parents.  In the case of a child born out of wedlock or divorce, child custody can lead to complex and confusing legal issues.  In cases where a court is called on to determine who should have sole or primary custody of a child the court considers what is in “the best interests of the child.”  This decision generally requires considering the wishes of the child’s parents, the wishes of the child, and the child’s relationship with each of the parents, siblings, other persons who may substantially impact the child’s best interests, the child’s comfort in his home, school, and community, and the mental and physical health of the involved individuals.  These are complex decisions that are not easily reached.

Types of Custody

In cases of divorce or a child being born out of marriage, a court may award joint physical custody.  Joint physical custody refers to a situation where the court awards custody to both parents.  This is becoming ever more commonplace in today’s society.  Joint physical custody differs from joint  legal custody.  In joint legal custody both parents are awarded the power to make decisions regarding their child’s education, religion, healthcare, etc., but only one is granted physical guardianship of the child.  Joint physical custody gives both parents full parental rights to their child.  This form of custody has some obvious advantages and disadvantages.  The most obvious advantage is that the child resides, and is afforded the opportunity to have a fulfilling relationship, with both parents.  It has been shown, multiple times, that it is almost always in the best interest of the child to develop meaningful relationships with both parents.  Joint physical custody provides that chance.  The obvious downside to joint physical custody is that two parents who do not live together are going to have to figure a visitation schedule.  Unlike joint legal custody where one parent is granted physical control of the child and the other may only receive a couple visitation rights, joint physical custody awards both parents full rights.  This means that time with the child must be split 50/50 or close to it.  For adults with demanding schedules, or who live far apart, that can be very difficult to work out.

While joint legal and physical custody represent the most common, and complex, forms of custody they are not the only types.  Sole physical custody refers to one parent being grant full custody over the child and other being granted no custody.  This determination is made when the court finds that one parent is unfit, for whatever reason, to fulfill their duties as a parent.

When a couple divorces one of the most important issues they face is how to deal with child custody.  Their are several options, but, in my opinion, every effort should be made to share custody.  Joint physical custody offers the best situation for the child.  It is rare that a parent would be so incompetent that their relationship with their child would need to be restrained.  It is invariably better for the child to be given the opportunity to develop meaningful relationships with both parents.  Because research has tended to reinforce this position, courts have taken note and are assign joint custody evermore frequently.  It is the responsibility of the parents to settle their differences to ensure that their child is given the best chance at success.  Divorce can be a difficult time and spark intense negative feeling between the parties.  When children are involved, it is important for the parents to act as amicably as possible.  Al;thought there are many different types of custody that the court can enforce, it is almost always best that it award joint physical custody and that the parents be supportive of this ruling.

In a recent decision the United States Supreme Court ruled that sentences of life without the possibility of parole for juvenile offender violate the Eighth Amendment.  Its about time.  This ruling, a 5-4 decision, represents a major step forward for a movement in juvenile justice that began almost two decades ago when the death sentence was ruled to be unconstitutional when applied to minors.  The recent Supreme court ruling leaves the door open to life sentences for juveniles but eliminates mandatory sentencing requirements.  By eliminating this mandatory requirement, judges must now weigh factors such as the child’s age, background, mental capacity, and the specific factors of the crime.  Hopefully, by forcing judges to undergo a conscientious process when sentencing juveniles, the amount of minors sentenced to spend the rest of their lives and eventually die in prison will diminish.  People change.  No one can say they are the same person they were in their adolescence.  Juveniles who commit heinous crimes should be punished and punished severely.  They should not, however, have their live effectively ended before they have the ability to mature mentally, emotionally, and physically.

Background

The Supreme Court’s decision was based on two cases from Alabama and Arkansas, in which the defendant were both fourteen years old at the time they committed their crimes.  The Arkansas case involved a fourteen year old who, with his friends, decided to take part in the robbery of a video store.  During the course of the robbery one of the other youths shot and killed the clerk when she refused to give them any money.  Arkansas law affords prosecutors the discretion to charge fourteen year old offenders as adults.  The prosecutor in this case decided to do so, and the defendant was convicted of capital murder.  The Arkansas statute defining capital murder provides only two sentences: death or life without the possibility of parole.  Because the Supreme Court ruled in Thompson v. Oklahoma that minors could not be sentenced to death the only sentence available was life with no possibility for parole.

The Alabama case was similar.  In that case the defendant, also fourteen years old, had shuffled in and out of foster homes.  His mother was a drug addict and his father abused him as a child.  He had attempted suicide four times beginning when he was six years old.  He was convicted of beating a drug dealer with a baseball bat and setting his trailer on file, killing him.  He was charged and convicted with murder during the course of an arson, which carries mandatory life sentence with no chance for parole.

Decision

The Supreme Court based their decision on two convergent lines of precedent.  One was based on the decision in Roper v. Simmons where the Court banned the use of capitol capitol punishment on minors.  The other was based on Graham v. Florida where the Court ruled that sentencing minors to life without parole for non-homicide offenses was unconstitutional.  There is language in Graham where the Court uses language indicating that sentencing juveniles to life without the possibility of parole was akin to a death sentence.  These two lines of precedent converge to lead to the logical conclusion that a mandatory sentences of life without parole also violate the Eighth Amendment.

For to long the justice system has failed to recognize the inherent differences between juvenile and adult offenders.  The creation of a separate set of courts to deal with juvenile offenders represents an acknowledgement of the differences between juveniles and adults.  Treating them the same, especially in the adult criminal court is a travesty.  Many juvenile offenders have not been afforded the chance to develop as fully as their adult counterparts.  They are victims of the symptoms of their youth.  They lack the same worldliness and understanding and succumb to impulsive behavior.  Juveniles who commit heinous, violent, crimes must be punished.  However, we should not rob them of the ability to grow and change.  Sentences of life without parole and death are meant to be reserved for offenders who have no possibility to reform their lives.  It is impossible to take a minor child and determine that after a short period of his life that he has become unchangeable.  Juvenile offenders must at least be afforded the chance to reform their lives.  This decision is one more step to abolishing the inhumane practice of throwing kids who have made terrible mistakes away and forgetting they ever existed.

Domestic violence is an epidemic problem in the United States.  It is suggested that roughly every nine seconds a woman is beaten.  These are horrible statistics.  There is never, under any circumstance, an excuse for domestic abuse.  Domestic abuse takes many forms and often is a process, which escalates from seemingly harmless verbal taunting to brutal violence.  Domestic violence is defined as a “pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner.”  Domestic violence can affect a variety of different actors.  People do not have to be involved in a traditional dating or marital relationship to be victims of domestic abuse.  Courts recognize family members and people involved in a number of different relationships as being protected by the domestic violence acts enacted in various jurisdictions. Domestic abuse can affect people no matter their gender, race, age, or socioeconomic status.  In this article I hope to pass on a general understanding of basic types of domestic abuse.

Types of Domestic Abuse

There are several varieties of domestic abuse and the majority of them are not physically violent.  Obviously, however, the place to begin this discussion is with the most severe form of domestic abuse: physical and sexual.  Physical abuse is where one partner physically assaults, or threatens to physically assault, another.  The motivation for this abuse is generally to gain or maintain power and control over the victim.  Physical abuse generally includes hitting, beating, choking, pushing, or throwing the victim.  It can also involve forced substance abuse, restriction of the victims freedom, damaging property, stalking, and threatening to harm the victim.

Sexual abuse is defined as any forced or coerced sexual act or behavior.  This coercion is usually motivated by the abuser to obtain or demonstrate dominance and power over the victim.  Sexual abuse is not only forced sexual contact, but also contact that is meant or acts to demean or humiliate the victim and instigates feelings of shame or vulnerability; particularly negative feelings in regards to the body, sexual performance or sexuality.  Sexually abusive behavior usually is demonstrated through unwanted touching, demeaning remarks about the victims body, berating a partner about their sexual history, forced sexual acts, and any other verbal or physical acts intended to cause the victim to feel insecure or violated.

While domestic abuse often manifests itself through violence or sexual abuse if left unchecked, it often begins as psychological or emotional abuse.  Emotional abuse is any use of words, voice, action or lack of action meant to control, hurt or demean another person.  This type of abuse is more difficult to define and to identify than physical abuse.  Emotional abuse typically includes ridicule, intimidation or coercion.  Verbal abuse is generally included in this category.  Although emotional and verbal abuse do not leave the physical scars that physical and sexual abuse do, it is still serious and needs to be dealt with.  It is not acceptable for a spouse to verbally berate and belittle their partner.  Often domestic abuse begins with verbal and emotional badgering and builds to physical or sexual abuse.  That is why this abuse must be dealt with.

These are the three most typical forms of domestic abuse.  They are all serious, unacceptable, behaviors.  Through domestic violence statutes the legislatures of almost every state have codified legal recourse for sufferers of domestic violence.  There are hotlines to call for advice and many lawyers available and eager to help victims of abuse.  From my experience working with victims of domestic violence, I can state that it is imperative for victims to seek help and seek it immediately.  Abuse rarely ceases on its own.  Rather, it usually escalates to physical and sexual violence, which causes irreparable harm to the victim.  Do not wait for the abuse to escalate to this point.  If you find yourself in an abusive relationship it is imperative you nip it in the bud quickly.  If it is necessary that you seek the assistance of the courts do not hesitate to do so.  There are remedies in place, both criminal and civil, to aid victims of domestic violence.  Don’t let your life be permanently ruined or destroyed at the hands of an abuser.  Seek help and move on.

Over the last several decades, the divorce rate in America has skyrocketed.  Today, the divorce rate is estimated at somewhere between forty and fifty percent.  In other words nearly half of all marriages are destined to end in failure.  Those are terribly sobering statistics.  The dissolution of marriage, the legal term for divorce, generally happens as a result of couples growing apart for whatever reason.  People who find themselves in the throes of a divorce are often confused, angry, and upset.  Besides being an extremely emotionally trying time, divorce can also be a very confusing process.  There are a variety of different types of divorces.  Your mindset and the status of your relationship often affect the kind of divorce you seek.  While divorce laws vary from jurisdiction to jurisdiction there are several general types of divorce that are available in most jurisdictions.

Types of Divorce

The most general distinction between divorces is the categorization of no-fault divorces v. at-fault-divorces.  A no-fault divorce involves a couple who is mutually prepared to revoke their nuptials and end their marriage.  The barest of assertions will suffice as evidence to end their marriage.  For example, in countries where “irreconcilable differences” are required to end the marriage a mere assertion that those differences exist will be enough evidence to void the marriage.  Courts will not inquire into the facts.  A mere “yes” when asked if their are irreconcilable differences will suffice, even if the other party vehemently answers  “no”.  The application for a no-fault divorce can be made by either party, or by both parties jointly.

Prior to the 1960s almost all countries only recognized at-fault divorces.  This means that in order for a divorce to be granted, the petitioning party had to provide a grounds for divorce.  Evidence was submitted and a judge decided whether or not it supplied reasonable legal grounds to grant the divorce.  At-fault systems are generally very expensive and not efficient.  In the United States the at-fault system has been replaced by the no-fault system in all fifty states.

Another common type of divorce is a summery divorce.  A summery divorce is a divorce available to couples who meet certain requirements or agree on certain issues beforehand.  The key factors vary from jurisdiction to jurisdiction but generally include: short length of marriage (less than 5 years), no children (or resolved custody beforehand), minimal or no real property, marital property under a certain threshold (generally around $35,000), each spouse’s personal property under a certain threshold.  Summery divorces are simple and do not require much, if any, litigation.

It is estimated that a vast majority, close to ninety-five percent, of divorces in the United States are uncontested.  In an uncontested divorce the parties are able to come to an understanding about property, children, and support issues leaving nothing for the courts to sort out.  When parties can agree an present the court with an equitable agreement the divorce is almost always granted.  Collaborative and mediated divorces are considered types of uncontested divorces.  In a collaborative divorce the parties come an agreement together with the help and advice of attorneys.   Most attorneys who practice collaborative divorce claim that it is a more cost effective way to proceed with divorce than going to court.  Also, the experience of working collaboratively usually improves communication between the parties and the possibility of ending up back in court post divorce is minimized.  Should the parties not reach any agreements, all documents and information exchanged during the collaborative process cannot be used in court except in an agreement of the parties.

With divorce rates growing at an exponential rate it is important to understand the process.  In the United States divorces have become easier to attain.  This is not necessarily a bad thing.  Although divorce is almost always a terrible hardship on the parties enduring the process, it is generally a necessary evil.  Imagine a world where people were forced to stay together in relationships they no longer wanted to exist.  Those relationships would grow more and more toxic and some would most surely escalate to violence.  Although divorce is a terrible time it is necessary to preserve and protect the individual spouses from the venom of a toxic relationship.  It is sad that the divorce rate has climbed so high, but in today’s modern world it is a necessary evil we must deal with.