ADAR UPDATE
October 18, 2010 § Leave a comment
The Adar decision issued by a three-judge panel of the Fifth Circuit was the subject of a post I made October 1, 2010. You can read my post here. The ruling, issued in February and amended in March, was that a same-gender adoption judgment in New York was entitled to full faith and credit in Louisiana.
On the very day I made my post, the Fifth Circuit en banc vacated the three-judge panel ruling on a petition for re-hearing:
On October 1, 2010, the Court announced that a majority of the Circuit Judges in regular active service voted in favor of granting En Banc rehearing. By operation of Fifth Circuit Rule 41.3, that decision automatically vacated the Panel decision of February 18, 2010.
That leaves us for now where the case started, which is with a pending appeal to the Fifth Circuit, which now will take the matter up in the full panel.
Stay tuned.
Thanks to attorney Bill Jacob for bringing this to my attention.
BETTER CHANCERY PRACTICE FAQ
October 8, 2010 § 2 Comments
My 8.05 financial statements stink. How can I improve them?
Here are Ten Tips for More Effective Rule 8.05 Financial Statements.
Is my estate ready to close?
Check out this Checklist for Closing an Estate.
I think I need to file a habeas action. Any tips?
This Habeas Corpus Step by Step should help.
One more time: what are those child custody factors I need to prove at an upcoming trial?
The Albright factors are what you’re looking for.
Help! We need to sell some real property in an estate, and I don’t know where to start?
How to Sell Real Property in an Estate may be just what you need.
I’ve been asked to handle a minor’s settlement for a Jackson firm, and I’ve never done it before. What do I need to do?
This Outline for Handling a Minor’s Settlement will get you started.
My mail has an MRCP 41(d) notice in it this morning. I remember you said something about it, but I don’t have time to look for it. Can you remind me what I am supposed to do?
<Sigh> Here’s a post on what to do When Rule 41(d) Comes Knocking at Your Door.
I need to prove the tax effects of alimony, but my client can’t afford to hire a CPA to come testify. Any ideas on what I should do?
Try looking at Proving Tax Effects of Alimony.
My Chancery Judge is really nitpicky. How can I draft my adoption Complaint to satisfy him?
Are you talking about me? Whatever. Here is a post on pleading Jurisdiction for Adoption.
Every time I go to court in Jackson, the lawyers there snicker about my countryfied attire. Any suggestions? I cannot afford another $100 contempt citation for punching out a lawyer in the courtroom.
You probably need to be charging more so that you can afford either a better wardrobe or more contempt fines. Until you do, try reading “High Waters” and Burlap Suits. It won’t change anything, but it may help you to feel better.
FULL FAITH AND CREDIT AND SAME-GENDER COUPLE ADOPTIONS
October 1, 2010 § 1 Comment
In order to adopt a child under Mississippi law, the adoptive parent(s) must be either an unmarried individual or a married couple with both partners joining. MCA § 93-17-3 specifically states that “Adoption by couples of the same gender is prohibited.”
What about the situation where a same-gender couple adopt a Mississippi child in a state where it is legal for them to do so, and they ask Mississippi to alter the birth certificate? Is Mississippi required to recognize the legality of that adoption and enforce their rights here?
In the case of Adar v. Smith, 597 F.2d 697 (5th Cir. 2010), a New York same-gender couple in a New York proceeding adopted a Louisiana child. They applied to Louisiana to change the child’s birth certificate to reflect the adoption. Louisiana objected and took the position that the New York judgment was not entitled to full faith and credit because it was repugnant to Louisiana public policy embodied in its laws that prohibited adoption by unmarried couples.
The U.S. Court of Appeals for the Fifth Circuit held that the full faith and credit clause of the U.S. Constitution requires states to recognize the valid judgments of other states, even where the judgment of the other state violates public policy in the state where it is sought to be enforced; there is no public policy exception.
Some may ask how this impacts Mississippi law that our state will not recognize same-gender marriages performed in other states. The distinction for now, until the courts address the question, is that marriage is a bureaucratic, administrative act, as opposed to a judgment entitled to full faith and credit.
THE PRE-ADOPTION CONFERENCE
September 30, 2010 § 1 Comment
In the 12th District, we have long had a practice of requiring the attorney to appear personally to confer with the judge in a pre-adoption conference without the adoptive parent(s) in uncontested adoptions.
Some out-of-district lawyers question why we deem this necessary.
Imagine getting your client and spouse to take a day off of work, perhaps take the other children out of school, to travel to the courthouse for the long-anticipated day. Spirits are high and festive. A new member of the family is about to be welcomed in. Or maybe not.
The judge calls you into chambers and points out that you have failed to obtain a statement from a physician, as required by the statute. Or your pleading is inadequate under the new jurisdiction statute.
So your clients’ happy day turns to ashes and you are embarassed.
With a pre-adoption conference, you get the chance to learn what you need to do to get your case in shape so that your clients’ happy occasion can truly be happy. When you file for an adoption that you know will be uncontested, call the court administrator and set up an appointment for a pre-adoption conference as soon as possible. When the judge gives you the green light, you can set it for final presentation to the court.
If you’re filing for adoption in another district, it would not hurt to ask the Chancellor for an appointment to look over your filing in advance of presenting it with your clients present.
THE PARENT TRAP
September 28, 2010 § 5 Comments
We should all be familiar with the landmark case of Williams v. Williams, 843 So.2d 720 (Miss. 2003), in which the Mississippi Supreme Court held that it “refuse[s] to sanction the manifest injustice of forcing a man to support a child which science has proven not to be his.” In Williams, the father did not know until well after he was ordered to support the child that it was not his, and he had little contact with the child in the intervening years before he filed an action to terminate support. The Williams court, however, added this caveat:
“We do not hold that a man who is not a child’s biological father can be absolved of his support obligations in all cases. Those who have adopted a child or voluntarily and knowingly assumed the obligation of support will be required to continue doing so.” [Emphasis added]
Fast forward to 2009.
In the case of Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), the Court of Appeals considered the appeal of Gregory Lee, Sr.
Mr. Lee had performed a home DNA test and discovered that there was a zero probability that one of the chilren he thought he had fathered was biologically his. Soon after the unfortunate discovery, Mr. and Mrs. Lee filed a joint Complaint for Divorce. Notwithstanding the DNA test results, the complaint alleged that the child was their indeed child, and their property settlement agreement provided for Mrs. Lee to have custody and for Mr. Lee to pay her support.
Two years after the divorce, Mr. Lee filed a petititon to modify and asked for DNA testing, which confirmed the home-test result that he was not the child’s father.
The Chancellor refused the modification, holding that Mr. Lee had voluntarily undertaken the duty to support the child with full knowledge that the child was not his, and under Williams, he could not be relieved of the support duty that he had assumed voluntarily.
On appeal, Mr. Lee argued that he had not been 100% convinced by the home test that he was not the father, and it was only when he got the court-ordered DNA test results that he knew conclusively for the first time of his non-paternity. He also pointed out that the home test was not legally binding, while the court-ordered test was.
The appellate court brushed aside the argument because Mr. Lee’s own inartfully drawn petition to modify stated that he knew as a result of the DNA test that he was not the father, and the only test that assertion in the petition could have referred to was the home test, since the court-ordered test was done after the petition was filed.
Having found that he did know at the time of the divorce that he was not the father, the court went on to distinguish Williams and to find it inapplicable because Mr. Lee knew when he undertook the obligation that he was not the father, he supported the child and exercised visitation with him. In Williams, the exact opposite of those facts existed.
The court also held that Mr. Lee had failed to prove a material change in circumstances that arose after the prior judgment that was sought to be modified. He knew the child was not his at the time, and that circumstance had not changed.
Bottom line is that Williams is an escape hatch for a dad who was led to believe that he fathered a child and only learned later that he did not. Williams, however, can not be used to relieve a support obligation in any case where the payor is related by blood to the child, or has adopted the child, or has otherwise voluntarily assumed the duty to support the child.
If you represent a father in an ID divorce, and he expresses any doubt as to whether a child is his, you should advise him of the ramifications of the Williams and Lee cases. If he wants to shrug it off and just “get it over with,” you should put your advice in writing and get him to sign off on a copy for your file.
MORE ON JURISDICTION FOR ADOPTION
June 16, 2010 § 5 Comments
I have already made the case for incorporating the adoption jurisdiction statute into your pleading forms here.
What I want to emphasize is that there is so much more to the jurisdictional statute than just a change from 90-day to six-month residency since its amendment in 2007 that you need to be aware of and address.
The statute is § 93-17-3, MCA. Pull out the statute and read it. This is important.
Subsection (1) sets out five different, basic scenarios for jurisdiction: (a) that the minor lived in Mississippi with a parent, guardian, prospective adoptive parent or other person acting as a parent for six months AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (b) the prospective adoptive parent lived in the state for six months AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (c) the agency that placed the child for adoption is licensed in Mississippi and it is in the child’s best interest to adopt because the minor’s parents or the minor and the adoptive parents have a significant connection with this state AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (d) the minor and the prospective adoptive parent are physically present in Mississippi and the child has been abandoned or there is an emergency to protect the child from mistreatment or neglect; or (e) no other state would have jurisdiction under prerequisites as (a) through (d), or another state has declined jurisdiction, and it is in the best interest of the minor for Mississippi to take jurisdiction.
From the foregoing, it is clear that it is not sufficient to allege merely that the parties have been residents of Mississippi for six months. All of the applicable elements must be pled in order to invoke jurisdiction.
Subsections (2) and (3) prohibit Mississippi from taking jurisdiction where there is any action for custody of the minor pending in another state.
In order to avoid problems with Section (2) and (3), the best practice would be to add an affirmative provision to your pleading addressing the jurisdictional issues raised in them, and adding a complete UCCJEA pleading would be prudent.
Subsection (4) limits adoption to an unmarried adult or a married person whose spouse joins in the petition. Your pleading should make it clear what is the marital status of your adoptive parent(s).
Other provisions of Subsection (4): The petition must be sworn and ” … filed in the chancery court of the county in which the adopting petitioner or petitioners reside or in which the child to be adopted resides or was born, or was found when abandoned or deserted, or in which the home is located to which the child has been surrendered by a person authorized to so do.”
In my opinion, the pleading must set out one of the residency bases for jurisdiction, and it must be one that applies to the facts in your case.
The old requirements for a physician’s or nurse practitioner’s certificate and statement of property still continue in effect.
Subsection (4) also includes a requirement that the petitioner(s) must make an affidavit disclosing the amount of fees charged by adoption agencies or facilitators ” … and any other expenses paid by the petitioner or petitioners in the adoption process as of the time of filing the petition.”
In my opinion, the disclosure of fees and expenses requires a combination of any or as many of the following that apply: (a) a statement itemizing all such fees; (b) a statement that no fees have been incurred; (c) an itemization of “any other expenses.” I believe that the phrase “any other expenses” includes attorney’s fees.
Adoption is a purely statutory creature. Since it is in derogation of common law, the statute must be strictly construed and applied. If you do not properly invoke jurisdiction of the court in your pleadings, you are running the risk that at some later point someone will try to get the adoption decree set aside — most likely after a wrongful death suit has been filed — and you will be embarassed or worse.
Read the statute and plead it. The extra trouble will be worth it.
JURISDICTION FOR ADOPTION
June 14, 2010 § 1 Comment
Effective July 1, 2007, Mississippi’s adoption statute was amended to change the residency requirement from 90 days to six months.
§ 93-17-3, MCA, sets out the jurisdictional requirements, which now read more like the UCCJEA than like the old, familiar adoption statutes. There are now jurisdictional requirements about availability in the state of information about the child, licensure of any adoption agency involved, and pendency of any adoption or custody proceeding in another state.
PRACTICE TIP: Get into your computers and add all of the statutory language verbatim into your adoption Complaint forms. Then, when preparing your pleadings, strip out what does not apply.
Most judges I have spoken with agree that if the jurisdictional and other statutory language is not included in your Complaint, you will have to start over, which may include obtaining a second Consent or Joinder.
At least twice a month I have to point these matters out to attorneys. Don’t embarass yourself with a client by being one of them.
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