Johnson & Lechman-Su: Family Law

back

JRL-S LEGAL UPDATE is an occasional newsletter reviewing recent developments in family law and civil procedure. For November 2007, topics include setting aside a paternity affidavit, requirements for a contested adoption, settlement of a pending appeal, and recognition of an Islamic divorce by treble repudiation.

In a case briefed by Mark Johnson and argued by Alexandra West, the Court of Appeals reversed the trial court’s judgment setting aside a voluntary acknowledgment of paternity. The state brought the case, State ex rel. Dep’t of Human Services v. W.C., on a theory that the biological mother could not sign the acknowledgement after her parental rights had been terminated. The court did not reach that question, finding instead that DHS did not have standing to sue. Although the 2007 legislature amended the statute to clarify the substantive question presented, the effect of the amendment on the court’s specific procedural decision in W.C. is unclear.

In C.R.H. v. B.F., a contested adoption proceeding, the court concluded that the father had neither deserted nor neglected his children “without just and sufficient cause,” as is required by ORS 109.324 for the adoption to proceed without his consent. The court emphasized that “desertion” means that the parent has made “an intentional choice directed toward the specific result of deserting the child.” And, the court found, the father’s post-prison supervision conditions—which precluded him from having any contact with his children until 2010—provided “just and sufficient cause” for neglecting them. Existing Supreme Court case law defines “neglect” to mean a “fail[ure] to manifest substantial expressions of concern [showing] that the parent has a deliberate, intentional, and good faith interest in maintaining a parent-child relationship.”

The court encountered a dispute between a wife and a widow over division of the decedent’s PERS account in Baldwin and Baldwin. It enforced an agreement to settle the appeal, which the parties entered into after an appellate settlement conference. The parties continued to negotiate on what the court found were non-material terms of the agreement and never reduced their agreement to writing, but the court found both of those conditions irrelevant to the formation of a completed contract. The court ordered the appeal dismissed upon entry of an amended Domestic Relations Order consistent with the parties’ settlement.

In Aleem v. Aleem, the Maryland Court of Special Appeals refused comity to a Pakistani divorce that the husband obtained by talaq (treble repudiation under Islamic law) while the wife’s divorce action in Maryland was pending. (The parties had lived in Maryland for 20 years.) The effect of talaq under Pakistani law was to award all the parties’ property strictly according to title, including, in particular, to award husband alone his American pension plan. The court held that applying Pakistani law to the parties’ divorce in these circumstances would violate Maryland public policy.

JRL-S LEGAL UPDATE is authored by Mark Johnson, a shareholder and appeals attorney at Johnson & Lechman-Su PC in Portland, Oregon. Mark provides attorneys with legal ethics advice as well as coaching, consulting, and collaboration on a wide range of family law issues. He is available to act as a reference judge in Oregon family law cases.

Please share this newsletter with your colleagues. If you want to receive your own e-mailed copy of the newsletter in the future, please contact us and we will add your name to the distribution list.