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Same-Sex Marriage Changes Make for Happy Adoptive Parents

Ashley Sawyer hhrBy J. Ashley Sawyer, Hedgepeth, Heredia & Rieder

I recently helped my client Jessica, who is part of a same-sex couple, adopt her partner’s two biological children. With the couple’s permission, I am sharing their story as an example of how Georgia’s adoption process can work to unify same-sex families.

 

At the time Jessica came to me about the adoption process, she was in a long-term relationship with her partner, Jina. Jina is the biological mother of two children. Jessica had helped Jina raised her two girls and both children called Jina and Jessica “mom.” After many years together, the couple decided they wanted to make legally official their already strong family bond.

 

Jina jessica court adoption photoAt the time we filed the adoption, Jina and Jessica were unmarried and the Supreme Court had not yet ruled on the legality of same-sex marriage. As a result, the only avenue available for Jessica's adoption is what family law practitioners call a "second parent adoption." That is essentially a blend of an independent adoption and a step-parent adoption.

 

Now that same-sex marriage is legal, same-sex couples can file step parent adoptions, which require less paperwork and can take a shorter period of time to complete than second parent adoptions. 

 

I often hear Superior Court Judges say that adoptions are the happiest thing they do while on the bench. Adoptions are truly one of my favorite parts of my practice and it was a privilege to assist Jessica through this process.   

Jina jessica court adoption photo2The Judge for Jessica's case was the Honorable Robert E. Flournoy III of Cobb County Superior Court. Like most judges, he allowed for pictures and made it a fun event for the family.

He even invited the girls to come up to the bench to sit in his chair and bang the gavel, which was a highlight of the day. It was a memorable experience for all.

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Kurt Cobain’s Guitar and Grandma’s Wedding Ring: Defining Marital and Separate Property

by Jon Rotenberg of Hedgepeth, Heredia & Rieder

kurt cobain mtv unplugged 650A guitar that once belonged to Nirvana frontman Kurt Cobain recently was center stage as an interesting point of marital property law. Cobain’s daughter, Frances Bean Cobain, is ending her marriage to musician Isaiah Silva. Silva claims she gave him as a wedding gift one of her father’s most iconic guitars – the Martin D-18E he used on MTV’s Unplugged in one of his last performances.

Of course, Cobain maintains she never meant to gift the guitar to her husband.

One of the biggest challenges in any divorce is division of property. When two people marry, their personal property will be commingled to a large degree. A good pre-nup can make sure that any especially valuable or meaningful property that a party brings into the marriage is protected in case of divorce, but there are a few scenarios that are not so clear-cut.

We don’t know all the details of Silva’s claim, but the burden will be on him to prove that Frances Bean Cobain gave him the guitar as a gift. He has little hope of quantifying it as property acquired during the marriage. To prove it was a premarital asset, all Cobain has to do is show the judge the 1994 album cover on which it appears, “MTV Unplugged in New York.” She married Silva in 2014 and is Kurt Cobain’s only child, so the guitar is easily identified as separate property she brought to the marriage.

Jon Rotenberg HHR 2015 smallReports don’t indicate who currently has the guitar, but it doesn’t really matter. Possession may be nine-tenths of the law, but we are examining that last tenth- ownership. Portable possessions within a marriage can be removed easily by either party, regardless of ownership. Here, the question is not who currently has the property in his or her possession, but who legally owns it.

The Unique Niche of Marital Gifts

This story captures the difficulties that can arise over what constitutes separate and marital property. Gifts given between spouses and received by spouses from third parties occupy a unique niche. When a third party gives a gift to one of a couple, it becomes that person’s separate property, but when one spouse gives a gift to another, in the absence of evidence to the contrary, it becomes marital property and thus subject to division in a divorce.

The dividing lines between marital and separate property can be blurry at the best of times, and vary from marriage to marriage. A solid pre-nuptial agreement can save both parties much grief during a divorce by clarifying who gets what from the outset.

Same-Sex Adoption in Georgia: An Overview

 

How Recent Supreme Court Same-Sex Adoption Decision Affects Georgians

 

by J. Ashley Sawyer of Hedgepeth, Heredia & RIeder

 

Ashley-Sawyer-hhr

Until the recent U.S. Supreme Court decision upholding same sex marriage, a partner in a same sex relationship who wanted to adopt his or her partner’s child in Georgia had only one option – a second parent adoption.

The term “second parent adoption” is a blend of code sections governing third party and step-parent adoption, and allows same-sex couples to adopt their partner’s biological or legal children without wholly terminating the first parent’s parental rights. It protects both parents by giving both of them legally recognized parental status.

In this kind of adoption, the child’s legal parent consents to the child being adopted by his or her partner, similar to a step-parent adoption. This process is typically done to keep same-sex families that are already in existence intact and to create legal bonds between a child and person who is already effectively acting as a parent.


In March 2016 I was asked by WABE's "Closer Look" program to discuss the ramifications of the U.S. Supreme Court's ruling on an Alabama same-sex adoption case. My client Jessica Johnson and her partner Jina participated in the interview with me (you can hear the whole interview at the video link below). 


There were (and still are) several counties in Georgia that would not necessarily approve of a second parent adoption for same-sex couples. In denying the adoption, the Court would generally state that to do otherwise “would be contrary to the child’s best interest.” Fortunately, this trend has subsided over time with society’s greater acceptance of the same sex community. 

An Alabama Supreme Court recently challenged a second parent adoption issued by a Georgia Court. The facts of the case were this: a lesbian couple, one the birth mother, had three children together. They completed a second parent adoption in Georgia and both women were named the legal parents of the children. The women moved to Alabama and several years later broke up. In a subsequent custody proceeding, the birth mother contended that the second parent adoption was invalid and that the adoptive mother other had no legal rights to the children.

The Alabama Supreme Court agreed with the biological mother, finding that the Georgia Court had misinterpreted its own state’s laws. The ruling was surprising due to the Constitution’s “full faith and credit” clause, which requires that states respect court judgments, including adoption orders, issued by courts in other states.

The case was appealed to the U.S. Supreme Court. In March 2016, the U.S. Supreme Court ruled in a unanimous decision to reverse the Alabama ruling and uphold the same sex adoption issued in Georgia. In simple terms, the Supreme Court found that states must honor same sex adoptions granted in other states. I discuss this case and the ramifications in greater detail in the WABE interview linked below.

Now that same-sex marriage is legal and same sex couples can adopt under the step-parent adoption statute, it is unclear whether Courts will continue to be as willing to grant second parent adoptions to unmarried same sex couples as they once were. As second parent adoptions in neighboring states have been under attack, as was the case in Alabama, judges are recommending that any same-sex couples who completed a second parent adoption in Georgia and have now married, also complete a step-parent adoption to further solidify the adoption and provide even further security to the family. 

 

Below: On the air at WABE with client Jessica Johnson and her partner Jina to discuss adoption issues for same-sex couples in Georgia. Click the link below to hear the interview. We'll have more on their adoption tale next month.

 

 

 


 

 

Summer a Hot Time for Child Custody Issues

Jon Rotenberg HHR 2015 smallby Jon Rotenberg of Hedgepeth, Heredia & Rieder

Back when it was cold we talked about child custody issues during the December holidays. While the logistics of sharing the kids over three weeks around Christmas and New Years might seem easy enough, figuring out the split for 10 - 12 weeks over the summer is another beast entirely.

We generally see a more stable custody plan during the school year, with the rationale being, of course, that the consistency is better for the children while school is in session. In contrast, during the summer we see longer periods of time when the children are away from the custodial parent. If one parent is in another state, the children can even spend the entire summer with the relocated parent.

dad-teen-son-by-pool-bbq-cameraBut here's the key point: When thinking and planning for the summer, it's very important that parents work together to plan out their schedules well in advance of the end of school. While last minute vacations and spontaneous excursions might have been an option pre-divorce, they're not going to work as well when custody is shared.

Parents learn as their kids get older that most summer camps require registration early in the year, some as early as January. The more competitive camps might be even earlier, and some some camps offer discounts if you book in December.

By doing that planning early in the year, parents will avoid last minute problems and unexpected conflicts.


Most custody agreements include language that gives the non-custodial parent an opportunity to schedule several weeks during the summer uninterrupted by visitation by the other party. That allows for longer, extended vacations. The goal should be for both children and parents to have a restful, enjoyable summer, not one filled with stress and anger.

A good custody agreement will be specific about how summer custody differs from the rest of the year. In fact, summer will usually have its own section that spells out all the details, down to a specific deadline when parents should meet or agree on the summer schedule. While the period right after the divorce might not have parents working smoothly together, that will improve as time goes on.

There are as many different custody arrangements as you can imagine.

    • Option 1: Traditional Summer - Each parent takes two or three full weeks during the summer, and the school year schedule is in effect the remaining summer weeks.
    • Option 2: Half and Half - Parents split the summer evenly, either weekly or, if a parent has relocated, perhaps four weeks for one and then four weeks with the other parent.
    • Option 3: The Usual Routine - Keep the same schedule as during the school year.
    • Option 4: Creative Solutions - Some agreements detail that parents alternate which gets the first week or weeks with their kids each summer by year.

 

One situation where problems arise is when one parent doesn't specifically pick their summer vacation, which can overlap other planned activities when that parent suddenly decides to take their child on a last-minute excursion. Oftentimes the other parent has already made plans (which can double as childcare) to cover that time. Clear agreements often protect the other parent from this lack of planning.

There's no one "right" approach to handling summer custody, but it really helps if the parents can agree on a united front. Trying one approach and finding it doesn't work isn't a failure, just a sign to keep trying other options. Eventually, working together, you will find an approach that works for your situation.
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When Your Child Talks to the Judge: In Camera Interviews

By Rebecca Crumrine Rieder of Hedgepeth, Heredia & Rieder

rebecca crumrine riederWhen a divorce case goes to trial, emotions may run extremely high, particularly when issues of custody arise. Putting children on the stand in front of their parents can be incredibly stressful, because they feel they are being asked to choose a parent. The judge may decide to first have an “in camera” interview with the child. “In camera” is Latin for “in the room.” The room in this case refers to the judge’s chambers, or at least to the meeting place of the judge’s choice.

What exactly is an in camera Interview?
An in camera interview is a conversation with the judge in his or her office as opposed to an affidavit or testimony in open court. In camera discussions are not testimony, are not evidence and are not to be relied on in making a ruling. At its most basic, it is a conversation between the judge and the children in the case.

Who may be present in the interview?
The people who are present at an in camera interview are at the judge’s discretion but should always include:

  • The judge

  • The child(ren)

  • The attorneys representing the parents (although they do not ask questions unless given permission to do so by the judge)



Other attendees may include: 

  • A guardian ad litem, if appointed, may be present
  • A transcriptionist may also be there, although a transcript will not be made available to the parents
  • Anyone else the judge deems appropriate, such as a child psychologist

in camera means in the judges chambers

Why would an in camera interview take place?
Divorces can be emotional and difficult, especially for children. More than anything, children don’t want to upset or anger their parents. The judge is the decision maker regarding custody and parenting time and must base the decision on what is in the best interest of the child: determining what will promote the child’s welfare and happiness. The judge may wish to shield the children from as many of the harmful effects of a custody battle as possible.

Some judges conduct in camera interviews as a way to better understand the children in every case, while others conduct them only at the request of one or both sides of the case. 

Think very carefully about the impact on your child before you, or your attorney, request that your child be involved in the litigation by testifying, coming to court, or requesting that your child “talk to the judge.”  

What if I don’t want my child to be interviewed in this way?
In camera interviews are at the discretion of the judge and so not something you can decline. It’s understandable to worry that part of your divorce proceeding will take place out of your purview. However, your attorney may insist on his/her appearance for the interview, and the judge’s interest is rooted in making this challenging process as easy as possible for your child. Remember, any information from the in camera interview is not testimony and thus cannot be the sole consideration for a  ruling.

Is there a better way to get the information?
Courtrooms are imposing places with many formalities, and can overwhelm children. The more informal setting of an office, without the children worrying about the impact on one or both parents of what they are saying, can facilitate a more honest exchange.

Also, consider other means to have the child’s voice heard without injecting the child into the litigation. Such considerations include the use of a Guardian ad Litem, a person meeting specific qualifications who is appointed by the court to investigate the issues of custody and parenting time, and then make a recommendation to the court, and/or a custodial evaluator, a psychologist licensed to conduct forensic evaluations of the family and make recommendations to the court.    

Because the in camera interview is not testimony in the case, and is more informal, the judge may ask less daunting questions in attempts to put the child at ease, starting with simple ones like, “When’s your birthday?” and “Who is your favorite Star Wars character?” before gently asking the child to share some feelings about his or her life.

What occurs during the in camera interview cannot be the basis for the the judge’s ruling on custody. There must be other evidence properly introduced and relied on to support the ruling. An in camera interview does not necessarily preclude a child from testifying if the other side subpoenas the child and if the judge allows the child’s testimony in open court, but in certain extenuating circumstances in camera interviews may be helpful to the court, and to the family.  

Door to judge's chambersIs my child competent for an in camera Interview?
Not every child is competent to participate in an in camera interview. A judge must first determine a child’s competency prior to starting the in camera interview.  Factors the judge may consider include:

  • Age and maturity: Is the child old enough and mature enough to answer questions about his or her life?

  • Is the child capable of understanding an oath to tell the truth, and able to understand the importance of telling the truth?

  • What is the relationship of the parents? Is there are chance that one or both parties are attempting to unduly influence the child’s behavior?


Children often feel, regardless of reassurance from their parents, that they are responsible for the divorce. An in camera interview may or may not add to this perception.  

One possible benefit of an in camera interview is that it provides an opportunity for the judge, who is an authority figure and the decision maker, to reassure the child that it is the judge makes the decision regarding custody and parenting time, not the child.