Tuesday, January 22, 2013

(Re)Naming the Children

It is no surprise that couples, especially former couples, can fight about anything. It is therefore also no surprise that an emotional issue will create lots of friction. Such as what to name a child.

Clearly, this issue arises often in nonmarital custody cases, where the parents were never married. Sometimes Dad isn't present when the child is named. Sometimes Mom regrets the decision after the fact. It happens. But what some people don't expect is that it also happens in divorce cases. People that were married when the child was born sometimes argue about the child's name after the fact. And Iowa law allows it.

In re Marriage of Gulsvig, 498 N.W.2d 725 (Iowa 1993) paved the way. Without Husband's knowledge or consent, Wife put her maiden name on the child's birth certificate. During the divorce, Husband requested his surname for the child, but the trial court disagreed. Appeal followed. 

The Supreme Court  first ruled that the District Court had authority to make this determination. It fount this ability was implied in the other Dissolution of Marriage statutes, by giving the Court broad authority to determine the child's legal status. The Court thereafter engaged in a "best interests of the child" analysis, but did specifically state that the preference for the father's surname was outdated. 

Therefore, the Court can change the child's name as part of a divorce proceeding. The factors to be considered are not clearly outlined in that case. However, in a similar nonmarital  custody case, the factors are more neatly outlined.

In Montgomery v. Wells, 708 N.W.2d 704 (Iowa App. 2005), the parties had one child without being married, who was given Mother's last name. When a court proceeding was initiated to determine custody and visitation, Father also requested the child's last name be changed to his last name.

First, as in the Gulsvig case, the Court had to make sure it had the authority to mess with the child's last name. The Court essentially found that the nonmarital custody statute was intended to mirror the divorce statutes in conferring authority, and therefore the Court could determine the child's name. 

Then, the Court turned to the best interests of the child. The Court considered these twelve factors:
  1. Convenience of the child to have the same or different surname from the custodial parent;
  2. Identification of the child as part of a family unit;
  3. Assurances from the mother that, should she marry, she will not change her surname;
  4. Avoiding embarrassment, inconvenience, or confusion for the custodial parent or child;
  5. The length of time the surname has been used;
  6. Parental misconduct, like support or nonsupport, maintaining or failing to maintain contact with the child;
  7. The amount of community respect associated with both names;
  8. The positive or negative effect the name change may have on the bond between the child and either parent or parent's family;
  9. Any delay in requesting or objecting to the name change;
  10. The preference of the child, if sufficiently mature to have a meaningful preference;
  11. Motivation of the parent seeking the change as an attempt to alienate the other parent; and 
  12. Any other factor relevant to the best interests of the child.

So, in short, you can change or establish a different name for a minor child, either during a divorce or a nonmarital custody case. But the Court will look to these twelve factors to decide whether it is in the child's best interests.



Monday, January 7, 2013

Frozen Embryos and Divorce

A couple finds out they are not capable of conceiving a child, but in vitro fertilization is a possibility. So the couple freezes embryos with the intention of implanting them and having children. All of the implants are unsuccessful, though, and before a child can be born, one of the couple members files for divorce. What happens to the remaining frozen eggs?

This is the factual scenario behind In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003). At the time of the parties' divorce proceedings, there were seventeen frozen eggs in storage. The wife wanted to implant the eggs, while the husband did not. The husband did not want the eggs destroyed, but preferred to have them donated to a couple. The Court had to sort out the issues.

The wife initially sought an analysis under what was in the best interests of the eggs. However, the court did not find this to be appropriate. This was clearly not the scenario that the legislature had in mind when it drafted the custody provisions of Iowa Code chapter 598. In addition, the issues did not boil down to who would be a better parent, but who would have the power to determine what happened to the eggs. The statute on the best interests of the child was simply inadequate for these complex issues.

In addition, while the Court had to be involved in personal decisions surrounding marriage and children, the history showed a tendency to keep one step back from deciding issues for people. For instance, a breach of a promise to marry ended with damages, not forcing the two to marry. Further, adoptions had to have a 72 hour waiting period after birth before finalizing, to ensure the birth parents were comfortable in their decisions. Still, clearly the embryos had to be treated with more care and thought than other items of property.

The wife argued that the husband had contracted to become a parent with her, and therefore this agreement should be enforced. However, the Court disagreed; couples did not plan on divorcing when they married, and frequently made plans without this course of action in mind. Therefore, as with all divorce issues, the Court had to focus on present agreements and intentions, rather than those when the couple was intending to stay together. 

The Court finally decided on a course of "contemporaneous mutual consent." Therefore, there could be no transfer, release, disposition, or use of of the embryos without the signed authorization of both donors. If the parties could not agree, the status quo stayed in place, and the eggs remained frozen indefinitely. The costs to keep the eggs stored was born by the donor who opposed the destruction of the embryos. 

Many lessons could be drawn from the Court's decision, but my personal spin is that this was an attempt to force agreement between the parties. The Court declared that it could not, or would not, make this decision for the donors/parents. However, if one of the parents really did not want these embryos destroyed, he or she was going to pay for it. This is likely to get one or the other to either move off of his or her position, or come up with a creative solution to the problem.