A new case from the court of appeals, In Re Parentage of M.K.R., 61138, division I, held that DCS has standing to file a petition challenging paternity whether or not there is a presumed father.
The ruling is a victory for the common-sense proposition that the actual father, as determined by DNA testing, ought to be liable for child support, as opposed to the presumed father, as determined by the person who was married to the mother at the time of the child’s birth.
The Washington Uniform Parentage Act, RCW 26.26 et. seq., makes a man the presumptive father of any child born to his spouse during marriage. That presumption becomes irrebuttable after two years, meaning that the husband becomes the legal father, even if he isn’t the biological father, if he fails to challenge paternity within two years.
However, at least four other parties have an interest in a given child’s paternity: the child, the state, the mother, and any other potential father. The child’s interest and the parent’s interests are fairly obvious. The state’s primary interest is the collection of child support so the child won’t go on welfare.
By statute, all these parties have standing to adjudicate their interests. This case clarifies that the state (DCS) has standing whether or not there is a presumed father. In this case, the presumed father neglected to deny paternity within the two year deadline. However, DCS did file within the two-year deadline.
The biological father, who did not want to be stuck with child support, argued that the presumed father’s failure to timely file was fatal and the presumed father was stuck with paying child support for someone else’s child.
The presumed father, on the other hand, argued that DCS’ timely filing of the petition effectively kept the window open for him, allowing him to avoid child support and make the biological father pay. The trial court agreed with the biological father.
The appellate court reversed.
Monday, January 26, 2009
Thursday, January 8, 2009
New Case Undermines Predictability of Child Support Schedule
A new case from Division I, Marriage of Krieger and Walker, docket 01-3-02588-4, held that a court may order child support above the advisory amount established by the child support table without a showing of extraordinary need. This holding is consistent with the statute, which provides that a court has discretion to award child support in excess of the advisory amount upon written findings. (“Upon written findings” is a lower standard than “extraordinary need.”)
However, the holding is inconsistent with standard practice, and, at least in my view, case law. In my view, state law recognizes two categories of child-related expenses: 1) ordinary expenses / basic necessities, and 2) extraordinary expenses / other. Basic necessities includes food, clothing, shelter, utilities, diapers, school supplies, over the counter medicines, gas for driving to daycare, extracurricular fees, etc. Basic necessities are included in the presumptive transfer payment.
The other category includes everything else. In my opinion, it should be limited to identifiable, child-related services. Typically, these are paid to a third-party, such as a daycare provider, or a private school (tuition). If the parties live more than than, say, a two hour drive from each other, then long-distance educational expenses are generally in this category as well.
Typically, the extraordinary category is proportional – each party pays their proportional share, again based on the schedule. I think it should be paid directly to the service provider. I like this approach because it is “cookie cutter,” meaning that both attorneys are likely to agree to it and therefore child support can be established without much litigation expense.
Unfortunately, the new case casts considerable doubt on the cookie-cutter approach. In Krieger, the party receiving the transfer payment – Walker – submitted a budget for all her child-related expenses, which included: school supplies, school trips, school-required computer software, entertainment, health club dues, health insurance co-payments, non-prescription medicines, vacations, sports activities, music lessons, pets, birthday parties, and personal items such as clothing.
The Krieger court held that these expenses were not necessarily included in the transfer payment and that the support award should be based not on the children’s need as calculated by the child support table, but, rather, based on the actual expenses incurred by the mother.
Thus, at least in my view, Krieger defeats the purpose of the support table, which is to produce consistent and predictable results, and throws open the door to more litigation and therefore more acrimony and expense. Not a good result, in my opinion.
However, the holding is inconsistent with standard practice, and, at least in my view, case law. In my view, state law recognizes two categories of child-related expenses: 1) ordinary expenses / basic necessities, and 2) extraordinary expenses / other. Basic necessities includes food, clothing, shelter, utilities, diapers, school supplies, over the counter medicines, gas for driving to daycare, extracurricular fees, etc. Basic necessities are included in the presumptive transfer payment.
The other category includes everything else. In my opinion, it should be limited to identifiable, child-related services. Typically, these are paid to a third-party, such as a daycare provider, or a private school (tuition). If the parties live more than than, say, a two hour drive from each other, then long-distance educational expenses are generally in this category as well.
Typically, the extraordinary category is proportional – each party pays their proportional share, again based on the schedule. I think it should be paid directly to the service provider. I like this approach because it is “cookie cutter,” meaning that both attorneys are likely to agree to it and therefore child support can be established without much litigation expense.
Unfortunately, the new case casts considerable doubt on the cookie-cutter approach. In Krieger, the party receiving the transfer payment – Walker – submitted a budget for all her child-related expenses, which included: school supplies, school trips, school-required computer software, entertainment, health club dues, health insurance co-payments, non-prescription medicines, vacations, sports activities, music lessons, pets, birthday parties, and personal items such as clothing.
The Krieger court held that these expenses were not necessarily included in the transfer payment and that the support award should be based not on the children’s need as calculated by the child support table, but, rather, based on the actual expenses incurred by the mother.
Thus, at least in my view, Krieger defeats the purpose of the support table, which is to produce consistent and predictable results, and throws open the door to more litigation and therefore more acrimony and expense. Not a good result, in my opinion.
Monday, December 8, 2008
Relocation Act Requires Court to Weigh Pros and Cons of Relocating
A new decision by the state court of appeals, Bay v. Jensen, 37239-8, division II, holds, basically, that the Relocation Act means what it says. The Relocation Act requires the primary residential parent to notify the non-primary residential parent of her or his intended relocation with the children at least sixty days ahead of time. If the non-primary residential parent objects, then the matter goes to a hearing / trial.
At the hearing, the court is supposed to determine whether the detrimental effects of the proposed relocation outweigh the benefits. To do this, the Court is first required to make findings of fact with reference to the eleven different factors enumerated in the statute. Based on these findings, the court is then supposed to make conclusions of law, i.e. this factor points towards granting the proposed relocation; that factor points towards denying the proposed relocation. The findings and conclusions may be written or oral.
In this case, however, the court did not issue written or oral findings that addressed the statutory factors. In fact, it appears as if the court forewent much of any analysis at all and simply ratified everything the relocating party did. This case doesn’t break any new legal ground, although it may be a poster child for how overworked trial court judges are and how they sometimes fall flat on their faces.
At the hearing, the court is supposed to determine whether the detrimental effects of the proposed relocation outweigh the benefits. To do this, the Court is first required to make findings of fact with reference to the eleven different factors enumerated in the statute. Based on these findings, the court is then supposed to make conclusions of law, i.e. this factor points towards granting the proposed relocation; that factor points towards denying the proposed relocation. The findings and conclusions may be written or oral.
In this case, however, the court did not issue written or oral findings that addressed the statutory factors. In fact, it appears as if the court forewent much of any analysis at all and simply ratified everything the relocating party did. This case doesn’t break any new legal ground, although it may be a poster child for how overworked trial court judges are and how they sometimes fall flat on their faces.
Wednesday, November 19, 2008
State Has Authority Over Individual Fisherman to Impose On-Reservation Sentence for Off-Reservation Illegal Fishing
A recent state Supreme Court case, State v. Cayenne, docket no. 80499-1, held that a state trial court could restrict a Chehalis tribal member’s right to own a gillnet, on or off the reservation, as part of his sentence for illegal fishing.
Cayenne, a member of the Chehalis Tribe, was fishing off the reservation and convicted of felony illegal use of a net. The Chehalis Tribe does not have off-reservation treaty fishing rights because it never signed a treaty.
Part of Cayenne’s sentence was an eight-month prohibition on owning a gillnet. Cayenne argued that the trial court lacked the authority to impose this sentence on the Reservation, because the state does not have authority to regulate on-Reservation fishing, except for reasonable and necessary conservation measures.
However, the court reasoned that the sentence was against Cayenne, not against the entire Tribe, and that the state did have jurisdiction over Cayenne.
Cayenne, a member of the Chehalis Tribe, was fishing off the reservation and convicted of felony illegal use of a net. The Chehalis Tribe does not have off-reservation treaty fishing rights because it never signed a treaty.
Part of Cayenne’s sentence was an eight-month prohibition on owning a gillnet. Cayenne argued that the trial court lacked the authority to impose this sentence on the Reservation, because the state does not have authority to regulate on-Reservation fishing, except for reasonable and necessary conservation measures.
However, the court reasoned that the sentence was against Cayenne, not against the entire Tribe, and that the state did have jurisdiction over Cayenne.
Monday, September 29, 2008
A Child Has a Constitutional Right to a Determination of His or Her Parentage
A decision from early September, In Re: Parentage of Q.A.L., docket No. 35664-2 (Div. 2, Sept. 3, 2008), held that a child has a constitutional right to participate in a proceeding regarding his own paternity. To protect this right, the child is entitled to a court-appointed guardian ad litem.
The decision modifies black-letter statutory law. Under the paternity statute, an unacknowledged father has only two years to file a paternity action where someone else has been either acknowledged or adjudicated the father.
In this case, the unacknowledged father filed the paternity action two months after he got the results of a paternity test showing that he was the father but missed the statutory two-year deadline. The court waived the deadline because the child had a constitutional interest in the outcome of the paternity action, which trumped the statutory deadline.
One of these interests was the child’s Native American heritage. The unacknowledged father was Native American. Native American rights, including rights of inheritance and the right to enroll in a federally recognized Indian Tribe go to the child regardless of the legal relationship of the Native American parent to the child.
The decision modifies black-letter statutory law. Under the paternity statute, an unacknowledged father has only two years to file a paternity action where someone else has been either acknowledged or adjudicated the father.
In this case, the unacknowledged father filed the paternity action two months after he got the results of a paternity test showing that he was the father but missed the statutory two-year deadline. The court waived the deadline because the child had a constitutional interest in the outcome of the paternity action, which trumped the statutory deadline.
One of these interests was the child’s Native American heritage. The unacknowledged father was Native American. Native American rights, including rights of inheritance and the right to enroll in a federally recognized Indian Tribe go to the child regardless of the legal relationship of the Native American parent to the child.
Thursday, September 11, 2008
New Case Rejects Narrowest View of Who Can Be a De Facto Parent
A new case from division one, Parentage of J.A.B., Docket No. 59165-7, offers some hope for children who are living with their stepparents or other relatives and would like to remain there.
In my practice, I often represent grandparents, step-parents, or other relatives who are caring for young children because the parents are unsuitable. These kinds of clients have two legal hooks to gain legal custody of the children: a petition for custody under the non-parental custody statute or a finding by a court of competent jurisdiction that they are the child’s de facto parents.
The non-parental custody statute is unsatisfactory to most clients for two reasons. First, it is an uphill battle. To get legal custody of the children, the client must prove that the natural / legal parent is either unfit or that placing the children with the natural / legal parent would cause actual detriment to the children’s growth and development. In other words, the parents must be seriously messed up: schizophrenic, meth. users, that kind of thing. In the alternative, the children must be seriously messed up, such that the non-parents are the only party that can reasonably be expected to help them. For example, in one case, the step-mother, in a contest with the father, got the child because the child was deaf, the step-mother was proficient in sign language, and the father was mediocre at best.
Also, even if the client does get custody, the end result is of questionable value. In a case that I am currently appealing, the judge concluded that a non-parental custody decree was tantamount to terminating the parental rights of the parent. However, in this new case that I am blogging, the court concluded that the third-party decree only offers a temporary and uncertain right to custody.
The de facto parent hook is also unsatisfactory to most clients because the principle is undeveloped and it isn’t obvious who qualifies and who doesn’t. L.B., the case that first recognized the de facto parent cause of action, established a 4-part test for determining whether someone is a de facto parent: 1) the natural/legal parent consented to and fostered the development of the parent-like relationship, 2) the petitioner and child lived together in the same household, 3) the petitioner assumed the obligations of parenthood without expectation of financial compensation, 4) the petitioner has been the parental role long enough to have established a bonded, dependent, parent-like relationship.
The issues I have litigated regarding this test are: 1) what constitutes consent? 2) are child support payments financial compensation? Consent is the big one. In the cases I have had or read about, the parent dumps off the children with the grandparents and essentially abandons them. Is abandonment consent? The answer is usually no. Apparently the courts believe that it is o.k. for a parent to remove himself or herself from the child’s life for months or even years, and then come back and gain custody. By the way, I think this is terrible for children.
This case doesn’t really address consent because it was pretty obvious that the mother was unfit (severe mental illness) and that the father consented (he signed the consent to terminate parental rights and to adopt, but then revoked his consent. The child lived with the step-father from 4 mos. Until age 7.) This case does address financial compensation, finding that the child support payments were expended for the benefit of the child, not to compensate the step father.
The other argument that tends to arise in de facto parentage cases is who is even eligible to take the test in the first place. I think that any person is eligible to take the test. If the children are living with you, regardless of how the children got there, you should be able to protect that relationship by a finding of de facto parenthood. The other side tries to limit potential test takers to gays and lesbians who had the child via artificial insemination.
This says that the test is not limited to people who cannot legally marry, e.g. gays and lesbians, but it also seems to suggest that the test is only available to people who have co-habitated, and then split up, are eligible to take the test. Factually, this means that de facto parent status is probably only available to gays and lesbians who have a child together, either by adoption or artificial insemination, and then split up, parent and step-parent who marry and then divorce, or hetero sexual couples who never marry and then split up.
I don’t think this is good for children because it excludes a whole category of people who step up to the plate and care for children while the parents do drugs or whatever. However, I think this is where the law of de facto parentage is heading.
Ultimately what needs to happen is that children need to be given a bill of rights. Children should have a fundamental right to remain in a stable and secure home where they are loved by and bonded to their primary caregivers, regardless of the legal or blood relationship between them.
In my practice, I often represent grandparents, step-parents, or other relatives who are caring for young children because the parents are unsuitable. These kinds of clients have two legal hooks to gain legal custody of the children: a petition for custody under the non-parental custody statute or a finding by a court of competent jurisdiction that they are the child’s de facto parents.
The non-parental custody statute is unsatisfactory to most clients for two reasons. First, it is an uphill battle. To get legal custody of the children, the client must prove that the natural / legal parent is either unfit or that placing the children with the natural / legal parent would cause actual detriment to the children’s growth and development. In other words, the parents must be seriously messed up: schizophrenic, meth. users, that kind of thing. In the alternative, the children must be seriously messed up, such that the non-parents are the only party that can reasonably be expected to help them. For example, in one case, the step-mother, in a contest with the father, got the child because the child was deaf, the step-mother was proficient in sign language, and the father was mediocre at best.
Also, even if the client does get custody, the end result is of questionable value. In a case that I am currently appealing, the judge concluded that a non-parental custody decree was tantamount to terminating the parental rights of the parent. However, in this new case that I am blogging, the court concluded that the third-party decree only offers a temporary and uncertain right to custody.
The de facto parent hook is also unsatisfactory to most clients because the principle is undeveloped and it isn’t obvious who qualifies and who doesn’t. L.B., the case that first recognized the de facto parent cause of action, established a 4-part test for determining whether someone is a de facto parent: 1) the natural/legal parent consented to and fostered the development of the parent-like relationship, 2) the petitioner and child lived together in the same household, 3) the petitioner assumed the obligations of parenthood without expectation of financial compensation, 4) the petitioner has been the parental role long enough to have established a bonded, dependent, parent-like relationship.
The issues I have litigated regarding this test are: 1) what constitutes consent? 2) are child support payments financial compensation? Consent is the big one. In the cases I have had or read about, the parent dumps off the children with the grandparents and essentially abandons them. Is abandonment consent? The answer is usually no. Apparently the courts believe that it is o.k. for a parent to remove himself or herself from the child’s life for months or even years, and then come back and gain custody. By the way, I think this is terrible for children.
This case doesn’t really address consent because it was pretty obvious that the mother was unfit (severe mental illness) and that the father consented (he signed the consent to terminate parental rights and to adopt, but then revoked his consent. The child lived with the step-father from 4 mos. Until age 7.) This case does address financial compensation, finding that the child support payments were expended for the benefit of the child, not to compensate the step father.
The other argument that tends to arise in de facto parentage cases is who is even eligible to take the test in the first place. I think that any person is eligible to take the test. If the children are living with you, regardless of how the children got there, you should be able to protect that relationship by a finding of de facto parenthood. The other side tries to limit potential test takers to gays and lesbians who had the child via artificial insemination.
This says that the test is not limited to people who cannot legally marry, e.g. gays and lesbians, but it also seems to suggest that the test is only available to people who have co-habitated, and then split up, are eligible to take the test. Factually, this means that de facto parent status is probably only available to gays and lesbians who have a child together, either by adoption or artificial insemination, and then split up, parent and step-parent who marry and then divorce, or hetero sexual couples who never marry and then split up.
I don’t think this is good for children because it excludes a whole category of people who step up to the plate and care for children while the parents do drugs or whatever. However, I think this is where the law of de facto parentage is heading.
Ultimately what needs to happen is that children need to be given a bill of rights. Children should have a fundamental right to remain in a stable and secure home where they are loved by and bonded to their primary caregivers, regardless of the legal or blood relationship between them.
Friday, August 15, 2008
Step Parents Are Protected by Parental Immunity If They Stand In Loco Parentis to the Step Child
The state Supreme Court recently confirmed that a step-parent standing in loco parentis to a step-child is protected from a suit by the step child to the same extent as a legal parent.
In Zellmer v. Zellmer, docket No. 78852-9 (Wash. Sup. 7/24/08), the child’s biological parents sued the step father for a number of torts sounding in negligence on behalf of themselves and the child’s estate. The torts were based on the fact that the step child, who was three-years old, drowned in the step father’s pool while he was supposed to be supervising her.
According to the step father, the girl wandered outside the house, fell into the pool, and drowned, while he was building a fire in the living room. According to the biological parents, the girl would never have wandered outside on a cold December night in her pajamas, walked to the far corner of the property, and fallen in, without some kind of intentional misconduct by the step father.
The biological parents also asserted that the step father had purchased a $200,000 accidental life insurance policy in the child’s name and made himself the co-beneficiary, that he had assaulted the mother twice during their 88-day marriage, and that the mother did not allow him to supervise the child alone on a regular basis. One of the parent’s witnesses testified that the step father had called the child “a little bitch.”
The step father claimed he was immune from suit by the doctrine of parental immunity, which holds that children cannot sue their parents for negligent supervision unless the failure to supervise is wanton or willful. The courts created this doctrine and have subsequently modified it to protect the parent’s interest in raising their own children based on their own beliefs and methods.
The parents asked the court to reject the doctrine of parental immunity and replace it with the “reasonable parent” standard. Instead, the court remanded for an evidentiary hearing into whether the step father really stood in loco parentis to the child. In loco parentis means “in the place of the parent.” A step-parent standing in loco parentis has the same rights and responsibilities as the legal parent. The fact that the step parent is married to the parent does not automatically confer in loco parentis statis.
In this case, the child’s biological father appears to have been actively engaged in parenting, the weight of the evidence indicated that neither the step father nor the child had bonded, and there was conflicting evidence about whether the step father had made genuine financial and emotional commitments to the child.
My own personal guess is that the step father was not in loco parentis and therefore was not shielded by parental immunity.
In Zellmer v. Zellmer, docket No. 78852-9 (Wash. Sup. 7/24/08), the child’s biological parents sued the step father for a number of torts sounding in negligence on behalf of themselves and the child’s estate. The torts were based on the fact that the step child, who was three-years old, drowned in the step father’s pool while he was supposed to be supervising her.
According to the step father, the girl wandered outside the house, fell into the pool, and drowned, while he was building a fire in the living room. According to the biological parents, the girl would never have wandered outside on a cold December night in her pajamas, walked to the far corner of the property, and fallen in, without some kind of intentional misconduct by the step father.
The biological parents also asserted that the step father had purchased a $200,000 accidental life insurance policy in the child’s name and made himself the co-beneficiary, that he had assaulted the mother twice during their 88-day marriage, and that the mother did not allow him to supervise the child alone on a regular basis. One of the parent’s witnesses testified that the step father had called the child “a little bitch.”
The step father claimed he was immune from suit by the doctrine of parental immunity, which holds that children cannot sue their parents for negligent supervision unless the failure to supervise is wanton or willful. The courts created this doctrine and have subsequently modified it to protect the parent’s interest in raising their own children based on their own beliefs and methods.
The parents asked the court to reject the doctrine of parental immunity and replace it with the “reasonable parent” standard. Instead, the court remanded for an evidentiary hearing into whether the step father really stood in loco parentis to the child. In loco parentis means “in the place of the parent.” A step-parent standing in loco parentis has the same rights and responsibilities as the legal parent. The fact that the step parent is married to the parent does not automatically confer in loco parentis statis.
In this case, the child’s biological father appears to have been actively engaged in parenting, the weight of the evidence indicated that neither the step father nor the child had bonded, and there was conflicting evidence about whether the step father had made genuine financial and emotional commitments to the child.
My own personal guess is that the step father was not in loco parentis and therefore was not shielded by parental immunity.
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