Family Law Outline

Table of Contents
Marriage Pg. 2

Marriage Restrictions Pg. 5

Legal Recognition of Informal Family Partnerships Pg. 7

Divorce Pg. 8

Division of Property Pg. 10

Spousal Support Pg. 16

Child Support Pg. 17

Child Custody Pg. 21

Modification and Enforcement Pg. 24

Tax Implications of Divorce Pg. 27

Family Contracts Pg. 29

Domestic Violence and Abuse Pg. 31

Professional Responsibility Pg. 34

ADR Pg. 35

Parentage Pg. 37

Adoption Pg. 41

Assisted Reproductive Technology Pg. 47

Marriage
● A marriage is a commitment between two people that cannot be broke alone
which holds traditional and legal obligations and duties and have met some kind
of formal requirement made by the state where they reside. Additionally, the
relationship has been recognized by the state.
- In most places co-habitation is a requirement. Usually involves living
together
- Very much like family, it is what you make of it
- The only common thing in this country is that it involves two people who
have met some kind of formal requirement made by the state in which they
reside.
● Marriage has very minimal requirements but once they are met you are in a
relationship that is regulated by the state and exit from said relationship
cannot occur without the involvement of the state.
- At divorce a couples assets are divided equally and shared parenting is
common.
● Requirements for ceremonial marriage
1. Solemnization
o Consummation
o License
2. Competent parties
3. Actual contracts: an agreement to get married
● Requirements for common law marriage (7 states and D.C. have common law
marriage.) Georgia does not recognize new common law marriages formed
within its borders before January 1st, 1990.
1. Actual contract: The parties must agree to get married
2. Competent parties
3. Consummation (cohabitation)
4. Holding out each other, in public, as spouses
o Ex: introducing each other as spouses, joint bank accounts/purchases
of assets, filing taxes together, changing last names, wearing rings,
children who take the last names of the marriage, or a celebration of
the coming together
 ● The formation of families for the working class has become increasingly more
difficult and as a result of this marriage has shifted away from becoming the
foundation for family stability and security that it once was.
● “Why Marriage?”
- Family and marriage are not synonymous and family as a social category
should not be dependent on having marriage as its core relationship
● “Social science and legal policy”
- Legal incentives do not appear to affect individual’s private behavior as to
encourage them to marry if they are merely cohabitating
- Welfare programs, which were designed to encourage marriage, had no
statistically significant effect on the marriage rate.
- By not imposing legal obligations on cohabitants, the stronger partner
economically is given an incentive not to marry.

Case: Braschi v. Stahl Associates Company (1989)

Court: Federal District Court New York
Issue: Whether Braschi is considered to be a part of Blanchard’s family even though
the two men were not married?
Holding: Yes, the term family should not be rigidly restricted to those who have
formalized their relationship by obtaining a marriage certificate or adoptive order.
Rule: In the context of eviction, a more realistic view of family includes two adult
lifetime partners whose relationship is long term and characterized by an emotional
and financial commitment and interdependence.
Reasoning: Webster’s defines family as “a group of people united by certain
convictions or common affiliation” and here it is reasonable to think that the legislature
intended to extend protection to one in Braschi’s position.

Case: Obergefell v. Hodges (2015)

Rule: Under the Due Process and Equal Protection Clauses of the Fourteenth
Amendment, states must issue marriage licenses and recognize lawful out-of-
state marriages for same-sex couples.

Case: City of Ladue v. Horn (1986)

Court: Missouri Appellate Court
Issue: Whether the restrictive zoning ordinance is permissible?
Holding: Yes, the decision of the lower court was upheld.
Rule: It is a permissible state objective for Ladue to have such zoning ordinances
that protect the integrity of the biological or legal family.
 ● The requirements to marry are generally that the parties must agree to
marry, they must be generally eligible to do so, they must be eligible to
marry each other, and they must go through whatever forms are required
for marriage in the state which they intend to marry in.
- The marriage ceremony itself is called solemnization
● The threshold for marriage is two consenting/agreeing adults who have to jump
through a few minor hoops
- With the exception of common law marriage. Common law marriage only
exists in a few states today.
● The consummation of the marriage, for ceremonial marriage, is the license and
solemnization together.
- Sharing a bedroom under common law marriage
- Consummation takes place when the state gives you the license and the
efficient performs the ceremony/signs the marriage certificate
● Agreeing to marry is sometimes referred to as actual contract.
- It is not similar to other contracts
- Does not have to be in writing
- Does not even have to be verbal
- There is no consideration
- It just means that there must eb an actual agreement by both parties to
marry one another
● Georgia’s family code is called title 19
- O.C.G.A. § 19-3-30c:
- The state of Georgia does not challenge anyone’s status to perform a
marriage ceremony
- § 19-3-42: even if the minister does not have proper authority, the marriage
would still be valid

Case: Lutwak v. U.S. (1952)

Court: U.S.
Rule: The common understanding of marriage that Congress had in mind when it
passed the War Brides Act was that the two parties had undertaken to establish a life
together and assume certain duties and obligations.
Reasoning: The parties only held themselves out as married with regards to
immigration officials and filed for divorce after entry into the country.

● When the marriage is void, it never actually existed. A void marriage, in

theory, requires no declaration of invalidity
 - For a marriage to be void there has to be fraud, or no intention on the part
of one of the parties to fulfill the aspects of the marriage.
- In principle a void marriage cannot become a valid marriage
o The flaw cannot be corrected in order for the marriage to be void
- Its voidness can be declared at any time and generally, at the instance of any
interested party.
- Statutes will typically say that a marriage is void.
- Most courts are hesitant to void marriages based off of formalities that can
be cured
● Voidable marriage is the same as a void marriage except that the flaw can
be fixed. It has at least potential validity
- A motion for annulment can be made. There has to be court action for
annulment
- Is valid unless declared null
● As a point of law, an annulled marriage is one which never existed.
Case: In re Marriage of Ramirez (2008)
Court: California Appellate Court
Rule: Annulment is justified where one party simply has the intent to continue in
an intimate relationship with a third person.

● American annulments were traditionally limited to fraud for misrepresentations

going to the essentials of marriage

Case: Loving v. Virginia (1967)

Court: U.S.
Issue: Whether the statutes against interracial marriage are Constitutional?
Holding: No
Rule: The 14th amendment requires that freedom of choice to marry not be
restricted by invidious racial discriminations.

Marriage Restrictions

● The right to marry is a fundamental right

- The supreme court will review any such decision with strict scrutiny and any
restriction is to be tailored as narrowly as possible
● Mental Capacity: Classic test is whether the person has the ability to
understand the rights and duties of marriage.
- In Georgia we call mental capacity “to be of sound mind”
 - One definition of sound mind is being able to understand the consequences
and effects of marriage
o Like other things in this class there is no concrete definition
● Another purpose of the sound mind protection is a result of the eugenics
movement
- People were forcefully sterilized, up until the 1970s, in the U.S.
● Relation by blood: Affinity

● Relation by the law (marriage or adoption): consanguinity

● The purposes of incest law is to

- Protect the vulnerable
- To prevent genetic defects
- To prevent hierarchical coercions
- We ultimately forbid incest because it offends society, and we all feel that it
is really disgusting
● It is legal to marry your cousin in Georgia

● You have to be 18 to get married in Georgia unless you are 17,

emancipated, and you meet a variety of other conditions.
- In a lot of other places, you have to be at least 16 with parental consent,
court consent, or both.
● OCGA §19-3-2 (a)(3) is the statute against polygamy

Case: In re Marriage of Oakley (2011)

Court: Missouri Court of Appeals
Issue: Whether the marriage of Oakley is valid.
Holding: Yes
Reasoning: The Father failed to fully identify and develop favorable evidence that the
marriage was invalid.
Notes: Christopher Oakley is suing as a legal party, but because he lacks the legal
capacity to sue his father is doing so on his behalf. The court seems to be suggesting
that Christopher is in the marriage for good reasons whereas his guardian is the one
with a poor understanding of marriage due to his evidence presented. The court
ultimately makes a substantive decision here but officially decides the case on a
substantive issue. Christopher’s Father’s story seems cynical and petty and more
importantly it insufficiently argues that the marriage should be annulled. It is the public
policy of the state to uphold marriages as much as is possible.
 ● A guardian has legal authority to make personal decisions for the protected
person, such as where the person will live.
● A conservator is appointed to protect the financial interests of a person
and has a duty to receive a ward’s income, to decide how much of the
estate should be used for living expenses, and to prevent loss or waste of
the ward’s property or business.

Case: Nguyen v. Holder (2014)

Court: Federal District Court Northeastern district of New York
Issue: Whether Section 5(3) of New York’s domestic relations law define a marriage
between an uncle and a niece of half-blood as incestuous and therefore void?
Holding: No
Reasoning: The statute is not explicit regarding this and will therefore be read to be
more lenient.

Legal Recognition of Informal Family Partnerships

● Under choice-of-law rules, a state may recognize a common law marriage

entered into another jurisdiction even when the forum state does not allow
common law marriages.
● Common law marriages only differ in the way in which they are entered
into. Divorce or death is still necessary to exit.

Case: Marvin v. Marvin (1976)

Court: California
Issue: What contract and property rights the Plaintiff possessed?
Holding: A nonmarital partner may recover in quantum meruit for the reasonable
value of household services rendered less the reasonable value of support
received if he can show that he rendered services with the expectation of
monetary reward.

Case: Boulds v. Nielson (2014)

Court: Alaska
Issue: Whether Nielson has a right to Boulds union pension?
Holding: Yes
Rule: When the parties have demonstrated through their actions that they intend
to share their property in a marriage-like relationship, a court does not need to
find specific intent by each cohabitant as to each piece of property.
 ● Domestic partnerships/civil unions: marriage like agreements issued by the state
(were typically used before Obergefell) Georgia does not have these
- No one rule as to what rights and duties they come with. Different for every
state and locality
- Do not create federal benefits
● Cohabitation
- Ensure in Georgia, that sex was not a part of the deal of cohabitation
- Theories of liability for cohabitation
o Implied trusts: in some situations, courts will create a fictitious entity
that is endowed with benefits or duties. When there are significant
assets purchased by one of the parties using funds or efforts
belonging to both partners there is an implied trust
o Contract (rarely exist for cohabitation
o Equitable division of property: The court can use unjust enrichment to
make an award
- Difficult to determine what rights and duties come along with it

Divorce
● Ways to sever a marriage
- Divorce
- Annulment
- Legal separation
● Annulment
- Very rare and is frowned upon by the courts
- Religious annulment is more common than legal annulment
- Is usually sought for emotional reasons or if there is some type of property
issue
- Georgia does not grant this where there are children or pregnancy
- Courts will almost always void the marriage when the fraud goes to the
essence of the marriage (reproduction and maintaining fidelity)
● Legal separation
- A status like married or divorced
 - In Georgia it is the suspension of marital relations between husband and
wife with the suspension of the conjugal rights and obligations without
the suspension of the marital status
- As long as the couple remains in the marital bedroom there is no separation
- Separation must be willful
- This is different from desertion
- The state of separation may be used to establish grounds for divorce
- There is no “separate and apart” in Georgia
- Almost all divorce cases include separation
- Judicial separation or limited divorce is included under this. It divides
property and deals with the children but does not result in an actual divorce.
● Under English law the only divorce recognized without an act of parliament was
divorce a mensa et thoro, or divorce from bed and board.
● Grounds for divorce in Georgia
- Incest
o Intermarriage by persons within the prohibited degrees of
consanguinity or affinity
o This is the case because it is possible that the parties didn’t know
when they got married
- Mental incapacity when the marriage was formed
- Impotency at the time of the marriage
- Adultery
- Force or fraud in obtaining the marriage
- Incurable mental illness
- Desertion (must be willful, must be for at least a year, and can be actual or
constructive)
o Requires the end of cohabitation (this can be in a different room in the
house), without consent of the other spouse, intentional separation,
without justification, that is continuous.
- Conviction of the party for a crime involving moral turpitude for imprisonment
for 2 years or more
- Habitual intoxication
- Cruel treatment (this varies between the states, in Georgia this is a very
broad standard)
- Incurable mental illness
- Habitual drug addiction
 - The marriage is irretrievably broken (the no fault clause)
o It is enough for one of the spouses to claim this
o There is a 30-day waiting requirement from when the papers are
served on the other spouse
o Courts in Georgia do not go into whether or not the marriage is
irretrievably broken
● Georgia likely did not fully remove the fault grounds for divorce in order to allow
the courts to still inflict judgement on the party at fault as opposed to California
which only has no-fault grounds for divorce.
● Defenses to divorce (all of these are applicable in Georgia except insanity
because it is grounds for divorce).
1. Insanity
2. Connivance: where the misconduct of one spouse has destroyed the
marriage
3. Condonation: where the injured spouse, knowing of the marital wrong,
continues or resumes marital cohabitation
o If a party repeats the conduct that was forgiven courts can cancel the
earlier condonation
4. Recrimination: where both parties have committed actions that would be
otherwise grounds for divorce
5. Collusion: the parties colluded in some illegitimate way (rarely used today)

Case: Kucera v. Kucera (1962)

Court: North Dakota
Issue: Whether the divorce agreement was proper?
Holding: No, recrimination was ordered.
Rule: Recrimination is a denial of divorce where on a showing of the defendant
that both parties have plead and proved facts constituting statutory grounds for
divorce against each other.
1. Under the fault system fault had to exist on only one of the parties.
2. In some states today parties are required to corroborate accusations of adultery
if they are to be used as grounds for divorce. To establish divorce on the basis
of cruelty it required violence or at least intentional and seriously injurious
conduct that reasonably led to fear for life or health. In order to establish fault on
the basis of desertion a departure from the home without the consent of the
 other and without justification was required. Many states specify a minimum
period between 1-5 years that must be continuous.
3. Under the fault scheme, there were several defenses to divorce. They were
generally treated as affirmative defenses and therefore must be specifically
pleaded and proved.
o Insanity: could be a ground for divorce or was generally recognized as a
defense to divorce actions founded on adultery or desertion.
o Connivance: Where the misconduct of one spouse has destroyed the
relationship
o Condonation: where the injured spouse, knowing of the marital wrong,
continues or resumes marital cohabitation.
o Recrimination: where both parties have committed actions that would
otherwise be grounds for divorce.
4. Doctrine of collusion is sometimes listed as a defense to divorce. It exists when
the parties agree to frustrate the divorce proceeding in some way. Can occur
when couples try to present that infidelity has occurred when it in fact has not.
● No fault divorce: where the state recognizes some ground for divorce that does
not require finding one of the parties at fault.
- Different ways states have approached no fault divorce
o States with only no-fault grounds
o States which revised their fault grounds and added fault grounds
o States which just added no fault grounds (Georgia)
o States which just created a no fault exit in one of the existing grounds

Case: Flanagan v. Flanagan (2008)

Court: Maryland Court of Appeals
Issue: Whether the grounds for constructive desertion exist?
Holding: Yes
Reasoning: A grave threat to a spouse’s self-respect may be sufficient to
establish this.
Notes: This case is a relevant example of fault grounds in divorce cases today.

● Summary dissolution procedures are often restricted to short-term marriages

with no minor children and typically dispense with any requirement of a hearing
as long as the parties have agreed to the distribution of material property and
abandoned spousal maintenance claims
Division of Property
● Two types of marital property systems in western nations
1. Those in which spouses own all property separately except those items that
they have expressly agreed to hold jointly
2. Those in which spouses own a substantial portion or even all of their
property jointly unless they have expressly agreed to hold it separately
● Under the common law, during the marriage each spouse owns the property
that he or she buys or is given
- Spouses can own property as tenants in common, joint tenants, or in some
states tenants by entirety.
- A wife who survives her husband recaptures her rights with respect to real
property she brought into the marriage. During the marriage her husband
could not alienate the property without her consent.
- A married woman had an inchoate life interest in the land that her husband
had owned and possessed during the time of the marriage.
● Community property recognizes that both spouses own wealth acquired by the
labor of either of them during the marriage
- Under the Roman-Dutch scheme all property becomes community property
upon marriage.
- Under the Spanish scheme premarital wealth is regarded as separate
property and its ownership is not affected by marriage.
● Steps to divide property at divorce
1. Determine which property is subject to the court’s dispositional authority at
state law.
2. Then the property is valued, and the court allocates the divisible property
between the spouses according to the governing legal principles
3. The final order implements the decisions and may provide who gets exactly
what assets.
● Equitable Distribution of Marital or Community Property: gives judges more
discretion over property division at divorce than the title system, but less than
an equitable distribution system. This is the most commonly used system in this
country.
 - Most states provide for equitable distribution of some or all of the parties’
property. These statutes grant Judges discretion without providing either
governing principles or ultimate goals.
- Equitable distribution of marital assets does not mean equal. It is supposed
to be based on what is fair and just to the parties.
- There is an underlying assumption that when looking at equitable
distribution, you start with equal
● Pure Equitable Distribution: gives the judge discretion to divide all the property
of both spouses as is just and proper or through some equivalent formula.
● Georgia is an equitable distribution of marital property state.
- The first step is to determine what is property
- Then what is marital property vs non-marital property
- The third step is that you evaluate the marital property
- After these steps, you determine the award which in Georgia is supposed to
be based in equitable principles.
● Georgia has no statutory law when it comes to the division of property upon
divorce.
- This means that there is a lot of judge made law and that it depends on the
judge
- When you are doing a divorce and there is a contested division of property
you want an attorney from the same county who knows the judge and has a
good relationship with them
o This means that pro se individuals are at a disadvantage
- You are going to want to read the specific judge’s cases
- There is room for your advocacy to make a significant difference.
● Title-Based Distribution: under this system courts have little or no express
discretion over property division, since the governing principle is that property is
awarded to the spouses as they owned it during the marriage.

Case: Arneault v. Arneault (2006)

Court: West Virginia
Issue: Whether the 35/65 split of property was appropriate?
Holding: No, the court held that Mr. Arneault’s accumulation of wealth and skills was a
result of Mrs. Arneault’s contributions as such to entitle her to an even split.
● If you can put a cash value on it, it is divisible and could qualify as marital
property
● Courts generally try to stay away from goodwill and reputation
- Courts in Georgia distinguish between the personal goodwill of the spouse
(not divisible) and of a business (is divisible upon valuation of a practice).
● The law is likely headed in a direction where pets are not treated merely as
property
● Ultimately in divorce cases everything is equitable so that if you can make an
argument for it a judge might hear it.
● Pensions funds, 401k’s, advanced degrees, and intellectual property are difficult
to divide and are not considered property in a lot of states.
- Vacation and sick days are also items that are not easily divisible because
they might be worth a lot and do not have a set value
- Stock options are another item which is difficult
- Courts will not touch goodwill even though it is quite valuable.
● Degrees and professional licenses are not considered marital property in
Georgia
● Some things will be property for some purposes but not for purposes of division
of property upon divorce.
- Professional licenses are examples of this
● Ways to appraise property
- Fair market value: the price a willing buyer would pay to a willing seller where
neither party is under compulsion to sell
- Cost to replace: how much it would cost to buy that item if it were gone
- Income approach: with assets that produce income you determine how
much income it is expected to bring and for how long. How much will it be to
liquidate. Then it is divided as to what is equitable.
● Sometimes the court will allow for the value of a non-marital asset to be
appraised
- This might be done in cases where a non-marital asset is very valuable for
purposes of equity
 ● Non-marital contributions include nonproductive contributions and the use of
marital assets for one’s own personal wants
● We can value housework, home keeping, and childcare.

● The duration of the marriage is also important to take into account when it
comes to the division of property upon divorce.
● Two approaches to dividing items in the house
- Litigate it
- List it out, divide it, and sign a waiver of appraisal that is filed with the court
along with the separation agreement

Case: Siefert v. Siefert (2012)

Court: Ohio Court of Appeals
Issue: Whether the trial court abused its discretion in finding that the appellant
relinquished her separate interest in a 1992 Ford Mustang when she transferred title of
the vehicle into the joint names of the parties after marriage?
Holding: No, the decision was reversed.
Rule: The required elements for an inter vivos gift are (1) the intent of the donor to
make an immediate gift; (2) the delivery of the property to the donee; and (3) the
acceptance of the gift by the donee after the donor has relinquished control of the
property. The donee bears the burden of proving by clear and convincing evidence that
the donor made an inter vivos gift.
Reasoning: The appellee did not meet the required evidentiary burden and the title of
the car in both parties’ names is not sufficient to establish and inter vivos gift.

● Courts tend to hold that when the owner of separate property jointly titles it,
intent to transmute the asset’s character is presumed.

Case: Geldmeier v. Geldmeier (1984)

Court: Missouri Court of Appeals
Issue: Whether the division of property was fair.
Holding: Yes.
Notes: She kept the house because she had primary custody of the children. The court
will do what is in the best interests of the child.

● Debts are treated like assets in Georgia. They are to be divided equitably. They
are described by attorneys as negative assets.
- Technically they are assets, just not the type that you want to have.
● Methods for dividing debts include
- Equitable division of all
- Divide debts proportionately to the division of assets
- Total netting out
- Netting out the specific assets
● Discounted cash flow method for valuing streams of payments: present value =
future value divided by 1 + the interest rate.
● Courts, in child custody cases, courts will do whatever is possible to keep the
children in as consistent of a living situation as possible. This trumps other
forms of equity.
● Marital property: an asset or something of value that resulted from the
investment of resources from the marital estate.
- If one spouse does work that money goes to the marital estate.
- Investment of any assets of the marital estate also goes towards this
- Anything acquired subsequent to the marriage
● Separate property: premarital property, inheritances, and gifts.

● Third party gifts are considered separate property if it is explicit that the gift is
only to one spouse.
● When determining what type of property, it is the court will look at (all of these
are relevant as to whether a certain asset is or is not marital)
- When the property was acquired. Before the marriage or after the marriage.
Before the divorce or after the divorce.
- Whether the asset grew out of the marital effort or resources of one of the
spouses during the marriage
o Title is not considered in almost every jurisdiction as creating even a
presumption of ownership. It is never presumptive
- When that effort took place
- The source of funds
● Lots of marital assets have components that are nonmarital if they can be traced
out
- You have to determine how much of the changes in value can be attributed
to passive conditions versus those that are a direct result of the other
spouse’s effort.
 ● Transmutation*:
- Pre-nups and post-nups solve the issue of transmutation of property
● Four ways to transmute property
1. Comingling: when you mix up marital and non-marital assets. Occurs when
the court thinks it will occur so long as you can trace out the non-marital
asset from the marital asset then it can be unmingled.
2. Animation: transmutation by intent or agreement
o Can be inferred by actions of the parties
3. Joint titling: this is still not a definite way of transmuting
4. Transmutation by common use: if both spouses regularly use an asset
owned by one spouse it can be transmutated by use.
o Is often an underlying assumption rather than an official or explicit one

Spousal Support

● Purposes of alimony
- Stability
- Justice/fairness
- Compensation for opportunity cost/opportunity lost
- To keep the unmoneyed spouse from needing government assistance.
● Permanent alimony (traditional alimony)
- Only permanent in a few states
- Georgia is normal and here permanent alimony is not common
o The joke is that there is nothing more temporary than permanent
alimony
- The purpose is not to compensate but to give the unmoneyed spouse
compensation for the opportunity cost/lost. The assumption is that the
moneyed spouse developed their career at a cost to the supporting spouse
and this makes it an asset.
- This form is going extinct and only still exists in highly traditional marriages
where the wife was purely a homemaker
- Rule of thumb in Georgia is that there is no alimony for marriages under five
years. No permanent alimony for marriages less than 20 years. The formula
is third of the length of the marriage and then a third of the value of the
household.
● Rehabilitative alimony
- The purpose is to give the wife time to get back into the workforce and to
readjust to working
 - Typically for marriages that are shorter in length
- Is done to help the wife acquire education, skills, or opportunities.
- The opportunity is expected to be no better than that of the other spouse.
- Is temporary
- Two or three years is a lot to receive alimony for these days
● Transitional alimony
- The purpose is where both parties are capable of supporting themselves and
one needs time/help to get readjusted or back into the workforce
- Does not exist in Georgia per se. Is called alimony pen dent lite or temporary
alimony. Only occurs while the litigation is ongoing.
● Reimbursement alimony
- Usually involves compensating one of the spouses for input into the marital
estate to support another in some kind of endeavor.
- Does not exist in Georgia per se. Here it is considered in “permanent”
alimony
● Lump sum vs. regular payments
- Often in Georgia alimony will be considered in division of property. This
makes it seem more lump sum.
● In Georgia when dividing alimony, the courts will examine need and the ability to
pay.
● Alimony orders can change when
- There is a change of financial circumstances
- Upon remarriage of one of the spouses (one of two situations where you
don’t even need to go to court to modify a judicial decree)
- If the party receiving the alimony dies because the obligation is personal
- If a former spouse moves in with a partner that can be considered a change
of circumstances

Child Support
● The presumptive child support amount is their expenses all added together and
this is the amount both parents are expected to pay together to support the
lifestyle of the children
- The purpose of child support is to allow the child to maintain the same
lifestyle as before the divorce.
- The societal mentality regarding child support is maximization.
- The greater the ability, the more the parent is expected to pay
● The three things required for in child support are
1. Food
 2. Shelter
3. Clothing
- We have added additional things since then. These can include
o Health care when you are able to provide it. Even if you cannot
provide insurance you are expected to pay for treatments for the child.
o Education: you are expected to pay for the education of your children
until the mandatory age in the state.
o Extra-curricular activities/needs: when the parent has the ability to pay
o Transportation: includes regular travel but in some instances (such as
when the parent lives very far away) can include more major travel
expenses
o Child-care so that the parents can work
o Recreational activities that the children are previously accustomed to
depending on the ability of the parties to pay
o Assumed to include spiritual and religious needs
o Education: will also take into consideration extraordinary needs such
as learning disabilities. This is also true for health care.
- Courts will generally side with keeping circumstances as stable and as
consistent as possible for the children while also considering need of the
child and the ability of the parents to pay.
● Child support is owed to the children and not to the recipient
- If you want to recalculate child support, you must always go to court and it is
subject to the court’s scrutiny.
- The court will almost always ask the parties to appear before the court even
when the parties are in agreement.
● If one of the following happens the child support ends automatically
- The child dies
- The child becomes emancipated
- The child marries
- In some cases when the child joins the military
● Calculation of Child Support is not dependent on fault or how the relationship
ended.
- There is no fault on the part of the child
- Child support obligations have nothing to do with how the child behaves,
how much the payor provides, or how much the child obeys the parent.
o Parental alienation: where one parent makes it impossible for the
other to see the child is the only scenario in Georgia where behavior of
the parties affects child support. This is super rarely used.
● Unmarried legal parents’ child support duties are the same as those of divorcing
parents.
● All states are required to use child support guidelines under 42 U.S.C. §667
(2022).
- Child support guidelines must take into consideration all earnings and
income of the noncustodial parent, be based on specific descriptive and
numeric criteria and result in a computation of the support obligation.
● Flat Percentage Guideline: This system sets child support as a percentage of
obligor income, with the percentage varying according to the number of
children.
● Income shares model: Based upon the precept that children should receive the
same proportion of parental income that would have been received if the
parents live together. It calculates child support from each parent’s income as if
the child and parents were living intact in the same household. Three steps to
compute under this model
1. Income of the parents is determined and added together
2. Basic child support obligation is computed based on the combined income
of the parents.
3. The total obligation is the pro-rated between each parent based on their
proportionate shares of income.
● To calculate child support under the income shares model
1. Determine the household income
2. Determine the basic child support amount
o E.g., see Georgia’s Basic Child Support Obligation Table
(georgiacourts.gov)
3. Add specific expenses for:
o Childcare
o Extraordinary healthcare needs
o Extraordinary educational needs
o Extraordinary travel costs
4. Based on the custodial arrangements, using the State’s calculator, reach a
presumptive support amount for each parent
5. Consider and make upward or downward deviations for, e.g.:
o Prior support obligations (both alimony and to other children).
o High or low income of either parent
o High or low parenting time amount
● Delaware Melson Formula: The basic principles are that parents are entitled to
keep sufficient income for their most basic needs to facilitate continued
employment. Until the basic needs of the child are met, parents should not be
 permitted to retain any more income than required to provide the bare
necessities for their own self-support.

Case: In re Marriage of Turk (2014)

Court: Illinois
Issue: Whether a custodial parent is required to pay child support to a noncustodial
parent?
Holding: Yes
Reasoning: Not requiring a significantly wealthier custodial parent to pay support to a
noncustodial parent has the potential to damage the child particularly when the child
spends significant amounts of time with both parents.

Case: McLeod v. Starnes (2012)

Court: South Carolina
Issue: Whether the father can be required to contribute to the college expenses of his
oldest child?
Holding: Yes, Risinger was held not to violate the equal protection clause because
there is a rational basis to support any disparate treatment Risinger and its progeny
created.
Rule: Requiring a parent to pay, as an incident of child support, for post-secondary
education under the appropriate and limited circumstances outlined by Risinger is
rationally related to the State’s interest.

● A big difference between the calculation of child support and alimony is that
child support is calculated with a more concrete goal and thus there is a more
consistent way of calculating child support as compared to spousal support.
- There is lots of flexibility regarding the calculation of spousal support. This is
not the case with child support.
● There is a more tangible end date for child support in that it usually ends when
the child turns 18 as compared to what is equitable for spousal support.
● For child support a marital relationship does not need to have existed
- In the past illegitimate children were not entitled to support.
- Inheritance is a little trickier
- A child deserves support regardless of the parents so long as some form of
tie to the parents can be established
● So long as the marriage is intact, courts will not order alimony. Child support is
the opposite.
● After looking at the above, you examine where the children spend most of their
time (or with whom).
 - There is no standard for custody arrangements
- The assumption for custody is that 100% of custody starts with one of the
parents (the custodian) and then you adjust from there to the other parent
(the non-custodian). The assumption is that the non-custodian pays support
to the custodian because the custodial parent is already paying for the
household estate where the children reside.
● The best interest of the child is the equivalent of the “Jesus” answer in Sunday
school to family law.
● Parties can agree to pay more for child support and if the court approves it is
ordered.
● In Georgia there is an explicit statute that does not allow for child support
payments to be required past 20 and only then if it is needed for the child to
finish high school.

In order to determine child support amount

● First you need to determine the monthly gross income
- Other child support orders, foster payments, any income of a non-parent
custodian, and a few select programs to keep people warm and fed are not
included in gross income.
● The court can impute income in cases where under employment or voluntary
unemployment is occurring on the part of one of the parents
● Next you enter the number of children and whether each child is included or
excluded
● After that you adjust the gross income
- He won’t ask us about these
- Adjustments are an integral part of determining what income is part of child
support calculations
- The adjustments we care about are self-employment taxes cut in half and
previous child support obligations
● Then you add the adjusted income together and this tells you the basic child
support obligation
- This also tells you the pro rata shares of each parent
● The following step is to determine who is the custodial parent. The parent with
whom the child resides at least 50.01% of the time is the custodial parent.
- In cases where time is divided 50/50 the parent which makes less money is
the custodial parent and the parent who is making the payment is the
noncustodial parent
 ● After that you go to adjustments. In Georgia you look at health insurance
policies, work related childcare costs (not non-work-related childcare costs),
and uninsured healthcare expenses
- With health insurance it is only the additional amount that the children add to
the policy. If you do not know you pro rata share the policy
● Moving forward you look at deviations (best interests of the child)
- High-income deviation: if there is more income the judge or jury can increase
the payment
- Low-income deviation: the goal is to make sure that the judge and jury do
not push people to the brink of starvation
- Parenting time: if one of the parents does not use all of their parenting time
or the parents disagree on the custodial vs. noncustodial classification some
kind of calculus is done
- Extraordinary expenses deviation:
- Medical expenses: when they lead to extreme economic hardship. Does not
have to be the medical expenses of the child.
- Extracurricular and living expenses: specific needs and ability to pay are
taken into account here
● When in doubt assume that the party bearing the unknown cost is the custodial
parent.
● When there is a question of whether something only goes throughout the school
year assume it is the entire year.

Child Custody
● Best Interest of the Child Considerations in Georgia:
1. Existing relationships (“love and affection”) (19-9-3(a)(3)(A)-(B))
2. Parental capacity (19-9-3(a)(3)(C), (M))
3. Knowing and understanding the child (19-9-3(a)(3)(D))
4. Availability of material resources (19-9-3(a)(3)(E))
5. Ability and availability to provide care (19-9-3(a)(3)(E), (K), (M))
6. “The home environment” and whether it would be nurturing and safe (not just
materially comfortable) (19-9-3(a)(3)(F))
7. Stability and continuity (19-9-3(a)(3)(G))
8. Stability of the parents’ family, social, and community life and their support
systems that could benefit the child (19-9-3(a)(3)(H))
9. The mental and physical health of each parent (19-9-3(a)(3)(I))
10. Prior caretaking and involvement in child’s life (19-9-3(a)(3)(J), (M))
 11. The child’s condition and needs (19-9-3(a)(3)(L))
12. Ability to facilitate and encourage a “close and continuing parent-child
relationship between the child and the other parent” (19-9-3(a)(3)(N))
13. Expert custody evaluator opinion (19-9-3(a)(3)(O))
14. Any evidence of family violence, abuse, prior criminal history, and substance
abuse (19-9-3(a)(3)(P)-(Q) and 19-9-3(a)(4))
15. Preference of the child (19-9-3(a)(5)-(6))
16. Continued relationships with both parents and grandparents (19-9-3(d))

Case: Painter v. Bannister (1966)

Court: Iowa
Issue: Whether the child should remain with his grandparents or return to his father?
Holding: The child was to remain with his grandparents.
Reasoning: There were conclusions from a child phycologist that it was in the best
interest of the child to remain with his grandparents.

● In Georgia, joint custody means equal custody

- It means parental rights are split 50/50
- Sole custody: only one parent is a custodian
- Co-custody: both parents are custodians. If both parents have any measure
of custody, they are co-custodians
● Physical custody: where the child sleeps
- There are situations where children will spend the night with parties which
are not the custodian. This is an example where the legal custody does not
follow the physical custody
● Legal custody: the party which has the right to make decisions on behalf of the
child.
- Applies to major decisions such as educational or medical
- Anything that one does as part of day-to-day parenting, parents do not need
to consult with each other about. But there are four areas where parents can
make significant decisions for their children that go beyond day-to-day
decisions
1. Healthcare
2. Education
3. Religious
4. Extra-curriculars
● Split custody: each parent has custody of at least one child
- This is disfavored due to the denial it places on the children to develop a
relationship with their siblings
 ● Supervised visitation: the parent has visitation but only under the supervision of
another
- Occurs when there are accusations of abuse or when a parent is alienating
● Courts can condition custody and visitation on therapy, receiving parental
support, or attending a workshop
● When a child turns 14 in Georgia, they can make their own choices regarding
familial choice with a rebuttable presumption that they know what is in their best
interest
- When a child turns 14, that itself constitutes a significant change in
circumstances
- When a child is 11 the court will begin to consider what the child wants but it
does not create a presumption that they know what is in their best interest
● Guardian Ad-Litems: usually were attorneys who have worked in family law for a
number of years who has dealt with child custody and will serve as an advocate
for the child.
- Will have home visits and evaluations
- Will try to get the parents to agree and if not will write a report to the court
● In Georgia there can be an adjudicated equitable custodian: if the child spends a
considerable amount of time with someone, they fulfill the role of the parent, the
child views them as a parental figure, and it would be against the best interests
of the child to separate them the court can grant that party custody or visitation
even if they are not one of the child’s parents.

Case: Arnott v. Arnott (2012)

Court: Wyoming
Issue: Whether the Mother’s relocation constitutes a material change in circumstances
sufficient to warrant consideration of a change in custody?
Holding: Yes
Rule: A relocation by the primary physical custodian, as well as factors that are
derivative of the relocation including the inherent difficulties that the increase in
geographical distance between parents imposes may constitute a material change in
circumstances sufficient to warrant consideration of the best interests of the children.
Notes: In this case a circumstance has not changed yet in order to file for a change in
custody. A change of circumstances, after this case, does not need to be generally
shown but is merely an invitation to make your case. Showing how the other parent will
still be able to maintain a meaningful contact with the child is an important factor in
looking at permitting the parent to move far away. To allow the other parent to maintain
their custodial rights is important. In this type of case there are no presumptions. You
have to have a fully fleshed out “best interests of the child” argument.
Case: Weisberger v. Weisberger (2017)
Court: New York Superior Court
Issue: Whether it was in the best interests of the children to be in the father’s sole legal
custody?
Holding: No
Rule: A religious upbringing clause cannot be enforced to the extent that it violates a
parent’s legitimate due process right to express oneself and live freely.
Reasoning: You cannot force the mother to adopt a Hasidic lifestyle even though you
can make her provide a Hasidic upbringing to the children.
Notes: In this case the court relied upon the agreement the previous parents made.
This is the court’s general policy.

● When we talk about changes in circumstances, we are talking about changes in

circumstances for the relevant parties (the children).
● When a parent wants to move, we have to ask two questions. If the answer to
either of these is yes, then you need to ask the court for a modification.
- Will the move significantly affect the parental rights of the noncustodial
parent
- Will the move be outside of the court’s jurisdiction.
● A significant number of custody orders contain clauses which expressly allow
parents to move within a certain distance. Usually require notice to the other
party.
● Courts cannot truly prevent someone from moving. You cannot restrict
someone’s freedom to move unless they’ve had a criminal conviction. You are
free to move but if you choose to do so, that constitutes a change in
circumstances significant enough to allow for consideration in a change of
custody agreement.
● Courts are allowed to take in consideration language or identity when they are
using it as a positive.
- The Florida Supreme Court in Palmore v. Sidoti held that the Constitution
does not allow the court to consider private biases in matters of custody.
- The court is not allowed to stamp their approval to anything that has racially
based exclusions in a child custody case.
● The Nexus approach: you can trash talk the suspect category about how it will
negatively affect the child but a clear nexus between the parental choice and the
reasonable likelihood of harm to the child.
Modification and Enforcement
 ● In most jurisdictions, support duties terminate at the death of the obligor or
recipient
- In some instances, support can be imposed upon an estate.
● Involuntary decreases in an obligor’s pay are generally considered sufficient to
allow for a modification of a support order

Case: Sharpe v. Sharpe (2016)

Court: Alaska
Issue: Whether Jolene’s decision to be unemployed was reasonable?
Holding: No, the holding of the superior court was upheld.
Reasoning: The financial impact of a career change on the obligor’s children has
always been regarded as an important factor when a trial court examines whether
voluntary unemployment is reasonable

Case: Peterson v. Peterson (1989)

Court: South Dakota
Issue: Whether Janey should continue to receive alimony even though she has
remarried?
Holding: No, she has shown no extraordinary circumstances to rebut the argument
that alimony should terminate.
Reasoning: The alimony was not a property settlement disguised as spousal support.
It is illogical and unreasonable that a spouse should receive support from a present
spouse and a former spouse at the same time.

Case: Turner v. Rogers (2011)

Court: U.S.
Issue: Whether the due process clause grants an indigent defendant a right to state-
appointed counsel at a civil contempt proceeding, which may lead to his incarceration.
Holding: No
Rule: The Due Process Clause does not automatically require the provision of counsel
at civil contempt proceedings to an indigent individual who is subject to a child support
order, even if that individual faces incarceration.
Reasoning: When the right procedures are in place indigence is a straightforward
question. A requirement that the State provide counsel to the noncustodial parent
could create an asymmetry of representation that would alter the nature of the
proceeding. There is an available set of substitute procedural safeguards which can
reduce the risk of an erroneous deprivation of liberty.
● Expedited process: to expedite the collection of child support, states must have
an administrative or quasi-judicial process for obtaining and enforcing support
orders in IV-D cases.
● Enforcement by wage withholding: this is the most important enforcement
device and states must require it in all child support cases unless a court or
administrative agency hearing officer finds good cause, put in writing not to
implement withholding immediately or the parties agree not to implement
withholding immediately.
● Other enforcement devices: states must provide other ways to enforce child
support including judicial authority to impose liens against real and personal
property for amount of overdue support, allowing failure to pay child support to
be reported to consumer credit bureaus, withholding state tax refunds payable
to a parent of a child receiving child support services if the parent is delinquent
in payments, and suspending licenses of delinquent obligors.
● Efforts to locate parents: federal legislation requires the establishment of a
national directory of new hires. It also requires creation of a national and state
registries of child support orders.
● The law in Georgia regarding division of property is equitable distribution.
- The statute is not specific as to what this is
- The orders are modifiable, but it is unfair to do this due to parties relying on
the division of property, so it is not done.
● A marital asset is an asset that grew from investment of resources that occurred
during the marriage. The assumption is that the work that one does belongs to
the family estate.
● Situations where spousal support orders will be changed
- When there is a change in income or financial status of the spouses. You
must wait two years between the orders when it is by the same spouse.
o Georgia does not require that the change in circumstances be
unforeseeable nor that there be a significant change.
- Remarriage of the recipient (19-6-5b)
- If someone moves in with a partner in a meretricious manner, then a
modification can occur
- When the recipient dies. If one spouse receives alimony from the other, then
that precludes the allocation of property from the estate.
o Even if the obligor dies, the estate is obliged to continue payments to
the recipient. This can often be done in a lump sum.
- All of these changes are conditioned on what the previous order states.
● Georgia does not draw a distinction between different types of alimony. The
ideas behind them can be taken into consideration but the state does not
distinguish between different types.
● Situations where child support orders will be reconsidered
- Where one spouse undergoes an involuntary loss of income
o Loss of job
o Reduction in hours
o Strike
o Loss of health
o Adversity (must be a loss of at least 25% of income)
- The modification will apply the date of the petition assuming that the spouse
has been properly notified.
- Substantial change in either parent’s income or financial status or the needs
of the child. No petition to modify may be made within a period of two years
from the date of the final order.
● DEFAX is the enforcement agency for child support in Georgia
- Georgia law requires that child support orders, subject to its enforcement, be
re-reviewed by DEFAX once every three years.
- Federal Law requires it be done every four years
● Three scenarios where child support ends
- The child marries
- Is emancipated
- reaches age of majority
● A custody agreement may be reviewed at any time where there is a change in
material circumstances. It can also be done every two years without any change
- When the child turns 14 in Georgia, that is automatically a change in material
circumstances. There is also a rebuttable presumption that the child knows
what is in their best interest and it will be taken into consideration.
● Enforcement of support awards (garnishments and contempt are the most
important for us)
- Contempt is the first option*
o The distinction between civil and criminal contempt is that a motion
for civil contempt is purgeable where a criminal contempt order is not.
o The purpose of civil contempt is collection or compliance. The goal of
criminal contempt is punishment.
- Wage garnishments*
- Suspension of any type of licenses whether recreational, trade, or
occupational.
o If you need a license to meet your obligation, go talk to the court
 - Liens on property to fulfill a child support order
o Liens for child support get priority
- The state will allow for private entities to do their collection for them
- The IRS can withhold federal and state tax returns
- Enforcement through DEFAX
o Will do alimony orders when a child support order is also being
handled by the agency
- Reporting the obligor to a credit agency
- Revocation and denial of passports
- Federal and state non-support crimes
o A misdemeanor in most states

Tax Implications of Divorce

● Due to tax rates being progressive, a system that treats the individual as a
taxing unit, is likely to extract a different amount of tax from a family with two
income earners than a family earning the same amount with one income earner
● Initially, federal income tax was marriage neutral

● Two principles of tax law are at the heart of divorce tax planning
1. The income tax is progressive, so that people with higher incomes pay a
higher rate
2. Property division and child support payments had no income tax
consequences, but spousal support was a deduction for the payor and
income for the recipient.
● The 2017 revision provided that all transfers between ex-spouses imposed after
the legislation took effect have no income tax consequences.
● Property may be divided at divorce without income tax consequences

● No income tax consequences if one spouse transfers property to a third party

for the benefit of a former spouse if
1. The transfer is required by the decree or separation agreement
2. The transfer is made pursuant to a written request from the former spouse or
3. The transferor receives written consent or ratification from the former
spouse.
● Payments must satisfy the following test in order to receive tax treatment as
alimony
1. Payments must be in cash or cash equivalent to or for the benefit of a former
spouse
2. Payments must be required by a
a. Written separation agreement or
 b. Divorce or separate maintenance decree or
c. Other support decree such as an order of temporary support
3. If the payments are made after a final decree of divorce or legal separation,
the payor and payee cannot live in the same household. The parties have a
one-month grace period to establish separate households.
4. Payments must end at the payee’s death, and the payor cannot be required
to make substitute payments to the payee’s estate or third parties after the
payee’s death
5. The payments may not be treated as child support.
● Child support payments are tax-free to the payee and not deductible to the
payor.

Legislation Notes:
● When a transfer qualifies for non-recognition treatment it does not qualify as
gross income for tax purposes
- It must be related to the cessation of marriage
- Most property settlements relating to divorce do not result in gross income
to either spouse
● Division of property made incident to the divorce is not treated as a gain or loss
for tax purposes
- In reality, there are tax implications, but they do not take effect until the
property leaves the family. We don’t have to worry about this here.
- It does not have to be court ordered and can even happen after the divorce
so long as the transfer is incident to divorce and occurs within a year of the
divorce.
- This is to allow couples to transfer property as if they were married up to one
year later
● Spousal support (alimony)
- The law before 2019 was that alimony payments were deductible by the
payor (they can get exemptions for it) and it is counted as income for the
recipient (payee).
o This has the effect of lowering the tax base for the payor (making it
look like they make less money) so that they ultimately pay less in
taxes
o The alimony payments, for the payor, is treated as though it is pre-tax
money.
o The recipient are usually of a lower tax base so they will likely pay less
than the payor would have.
- The law after 2019 no longer treats alimony as income for the recipient and
the exemption for payors is eliminated.
 o Recipients are no longer required to report alimony as income
o We now tax alimony when the payor receives it on the front end, and
he pays alimony with what is left. This has the effect of taxing the
payor from a higher tax base due to the elimination of exemptions
o There has to be a divorce or separation instrument that calls for the
payment. Otherwise, it is not alimony. If the agreement was signed
and written in 2018 then the rules from that agreement apply.
- The old law applies to December 21, 2018, or earlier. The new law applies to
January 1, 2019, or later.
● There are no tax implications for child support
- No exemption for the payor
- No reporting as income for the recipient
- Is considered a neutral or non-taxable event
● Dependency exemptions are where tax breaks are given where a party has a
child
- In Georgia the child can be in utero, as well as in some other states
- Under federal and state law, if you have a child, a certain amount of income
is set aside as non-taxable for each child.
- The default under the law is that whoever pays more support to the child,
gets the child’s exemption. However, the federal government will accept if a
couple contracts otherwise.

Family Contracts
● Three types of common agreements in family law
1. Divorce settlements
2. Prenups
3. Post-nuptial agreements: entered into during the marriage
● Prenuptial agreements: an agreement between two people about to enter a
marriage. Generally, deal with the terms of divorce such as assets and debts.
- Often deal with alimony and alimony waivers where there is a big
discrepancy in earning
- Regulation of property
- Can include provisions on ADR or provisions that will null the prenup
o Adultery is a misdemeanor in Georgia
- Clauses having to do with children are not binding on the court except where
there is a contract that goes beyond the minimum requirements of the law
 o Unless one relinquishes all custody forever custody agreements are
unlikely to be honored. This is due to it being in the best interests of
the child.
● In Georgia there is no explicit case law that you can enter a prenup or post-
nuptial
● Family law contracts require
- Capacity to contract
o If you have the capacity to marry, you have the capacity to contract
regarding that marriage.
- Voluntary entry
- Consideration
- Satisfy statute of frauds
- Some states require that it be given thirty days
● To be enforceable, prenuptial agreements must satisfy the usual contract
requirements
- Must be entered into voluntarily
o Ensure that both parties are independently represented
- Be supported by consideration
o In Georgia marriage is considered valuable consideration for contract
purposes
- Satisfy statute of frauds
● Three things to look out for to ensure that nuptial agreements are enforceable
- Agreement wasn’t obtained through fraud or duress
- Is the agreement unconscionable
o What constitutes unconscionability is unclear in Georgia. In essence,
would a party be mad who had to sign this agreement or would it be
unethical for the other party to enforce this agreement
o 2nd look doctrine: looking at the agreement again during the execution
to see if the circumstances have changed significantly so as to make
the agreement unconscionable now.
- Have facts and circumstances changed to make the agreement unfair
● Most of the time courts will approve any settlement agreement the parties come
to in a divorce so long as they don’t go below the presumptive child support
amount.
- Matters dealing with child support get greater scrutiny but other than that
Courts in Georgia are less attentive to agreements between parties in
settlements
 - For courts to go into detail about a settlement agreement it needs to be
grossly unfair
● Requirements for antenuptial agreements
- Must be in writing
- Must be signed by two witnesses, one of whom is a notary public
● Pre-nups are highly scrutinized on the front end because they are highly likely to
be contested
● The standard for an unconscionable agreement in Georgia is that it is an
agreement that no reasonable person will enter into unless they were forced or
under duress and that no one but a rotten person would seek to enforce.
- In essence, after Mullen antenuptial agreements are not invalidated regarding
unconscionability.

Case: Simeone v. Simeone (1990)

Court: Pennsylvania
Issue: Whether the prenuptial agreement should be enforced?
Holding: Yes
Reasoning: The contract was not made under conditions of duress and both parties
have power to contract.

Case: Lane v. Lane (2006)

Court: Kentucky
Issue: Whether events occurring during the marriage in the nine years since render
enforcement of the prenuptial agreement unconscionable?
Holding: Yes, the judgment of the trial court which awarded alimony was reinstated
Reasoning: The disparity in incomes of the parties substantially grew during the
marriage. A trial court may modify or invalidate all or part of an ante-nuptial agreement
where enforcement is unconscionable in its application.

Case: Bedrick v. Bedrick (2011)

Court: Connecticut
Issue: Whether this post-nuptial agreement is valid and enforceable?
Holding: Post-nuptial agreements as a whole are valid and enforceable. The terms and
agreements of a post-nuptial agreement must be fair and equitable at the time of
execution and not unconscionable at the time of dissolution. The terms of agreement
were unconscionable at the time of dissolution and as a result, this agreement is
invalid.

● Separation agreements must satisfy basic contact law requirements to be

enforceable.
 - The law has gradually moved towards a model of contractual freedom
regarding separation agreements.

Case: Huss v. Weaver (2016)

Court: Pennsylvania Superior Court
Issue: Whether the lower court erred in concluding that the parties’ agreement was not
enforceable as a matter of public policy?
Holding: Yes
Reasoning: The record reflects nothing that this provision constitutes any limitations
on Weaver’s ability to seek court intervention to modify the custody and/or visitation
provisions in the Agreement between these parties in the best interests of the child.

Case: Mallen v. Mallen (2005)

Court: Supreme Court of GA.
Issue: Whether the trial court’s decision to enforce a prenuptial agreement was
proper?
Holding: Yes
Reasoning: None of the factors in making a prenup unenforceable were met.

Case: Corbett v. Corbett (2006)

Court: Supreme Court of GA
Issue: Whether the lower court’s decision not to enforce a prenuptial agreement were
valid?
Holding: Yes
Rule: Disclose everything, specifically regarding finances and assets, when drafting
antenuptial agreements.
Reasoning: The agreement was found unenforceable due to husband’s failure to
disclose his income.

● Regarding child support, Georgia law is explicit in that Child support amounts
must meet the spreadsheet. If there is a deviation, it is subject to scrutiny
● Regarding custody in Georgia, everything is in the best interests of the child, but
in Georgia it will depend on the child and if the submitted parenting plan makes
sense or is familiar, most judges are likely to approve it.
- The assumption is that parents know best for their children and presumably
act in their best interests most of the time
- Generally, when it comes to child custody, so long as the parties can agree,
the court will not question the agreement
● Georgia is not a UPAA or a UPMAA jurisdiction

● Georgia is generally loathe to uniform statutes

Domestic Violence and Abuse
● Protective orders: civil orders restraining the offender from conduct that
endangers the person seeking that order.

Case: Williams v. State (2006)

Court: Alaska Appellate Ct.
Issue: Whether a prohibition on returning to live with a spouse during the pre-trial
period for a domestic violence case, violates one’s fundamental rights when both
spouses wish for the aggressor spouse to return?
Holding: Yes
Rule: The statute as applied to individuals on pre-trial release, violates the Alaska
Constitution, thus they cannot be prevented from returning when both spouses wish it.

Case: J.D. v. M.D.F. (2011)

Court: N.J.
Issue: Whether the facts are sufficient to find that the defendant committed an act of
harassment sufficient to entitle plaintiff to a domestic violence restraining order?
Holding: No, the case was remanded to the trial court.

● The law has changed dramatically in the area of domestic abuse as recently as
three years ago.
● This entire order is for equitable relief

● § 19-13-1 creates a civil cause of action for family violence

- We are dealing with a petitioner and a respondent in this specific area of law
not a plaintiff and a defendant.
● This type of legal proceeding is unique in the practice of law. Everything
happens the same day.
- The judge will speak to them directly and will often issue an order in the
same day. Usually, it is a temporary restraining order for example, ten days.
- This is the most relaxed procedure anywhere in the practice of law
- Judges also have a large amount of discretion in this area because these
orders can be almost anything.
● § 19-13-3 explains the process for the petition and hearing
- The only rule about who cannot file is a minor, but a child can be added to a
parent’s representative order as one of the petitioner’s
- The kind of conduct that falls under this statute includes stalking, violence, or
any kind of felony
● A dating relationship under the act is defined as a committed relationship that is
unlike normal social or business relationship
● These cases are filed almost always pro se and it almost always happens same
day. Petitioner needs to establish that a family violence has occurred in the past
and that it is likely to occur in the future.
- The standard of proof is probable cause. The judge needs to have a
reasonable suspicion in order to grant the order. In essence the judge needs
to believe that the person is genuine.
● After the judge issues the order, the second hearing needs to be held within ten
days. Here the parties are more likely to have representation. The respondent in
particular needs to lawyer up because they will then have a TPO on their record.
● To get to the second hearing
- Respondent must have been served with notice of the hearing
o In some cases, the sheriff’s will do it and in other counties the parties
must make private arrangements
o In certain cases, if the petitioner is unable to serve the respondent an
extension can be granted for up to 60 days. This is usually granted in
cases where the respondent is dodging service.
● At the second hearing there is typically a lawyer in the room. The judge is fairly
sympathetic to petitioners in these cases.
- At this hearing the standard becomes preponderance of the evidence.
- The cases where petitioner asks that the order be lifted are the most
dangerous but there is very little that the court can do.
● Remedies in TPO or the Ten-day (second) hearing § 19-13-4 (a)
- Grant a restraining order against the respondent
- Award custody
- Award spousal support or child support
- Order the respondent to receive appropriate psychiatric or psychological
services to prevent further recurrence of family violence (family violence
intervention program)
o This is unusual in the law
o Not complying with this order can result in a holding of contempt
- Provide for possession of the personal party of the property
o The pets are often the property at issue here
- Order attorney’s fees and costs
- Order the eviction of the party from the residence
 ● After the ten-day hearing the order can take effect for up to a year and then
there is another hearing where the order can be extended for up to three years
or to a permanent order
● The dating violence law asks whether the parties were in a committed
relationship that was not casual. This allows parties to be eligible for Temporary
Protective Orders
● When domestic violence or credible threats of it exist, it plays heavily into
custody considerations.
● Child abuse is constituted by
- Physical injury or death inflicted upon the child, other than by accidental
means, physical forms of discipline may be used so long as there is no
physical injury to the child
o Regarding corporal punishment, don’t leave marks or things that a
doctor would detect. The punishment must be inflicted by the parent
or guardian.
o Must be reasonable. Unfortunately, this is culture, time, and judge
based so it’s hard to determine what is acceptable.
o Rule of thumb is open hand, no instruments, and cannot leave a mark.
o In Georgia mental injury is not abuse. Causing a child excessive
mental pain is considered child endangerment and not abuse. This is
a criminal offense. This can still lead Defax to remove a child from the
home, but it is not within the realm of family law.
- Neglect or exploitation of the child by a parent or caretaker
- Endangering a child (endangerment can only apply to the aggressor and not
the victim)
o Exposing the child to family violence. Degrees such as maliciously,
recklessly, or negligently here. The children do not have to be in the
room so long as they can see or hear it.
o Transporting or driving a child while under the influence
o When the mother drinks or has chronic exposure to controlled
substances while pregnant is considered child endangerment.
- Sexual abuse of a child
- Sexual exploitation of a child
● When there is a finding of family violence, the judge is required to make that the
primary consideration regarding child custody. Judges may only give custody
and visitation if they can ensure the safety of the child and the victim. This is the
default under Georgia law.

PR
 ● A lawyer shall not counsel a client to engage, or assist a client, in conduct that
the lawyer knows is criminal or fraudulent.

Case: In re the Discipline of Ortner (2005)

Court: South Dakota
Issue: Whether the previous public censure was an appropriate punishment?
Holding: No, he was suspended from the practice of law for nine months.

● Advisory Opinion No. 47: It is ethically permissible for a lawyer to charge a

contingency fee to collect past due alimony or child support because
- Collection occurs after divorce
- In many circumstances contingent fees are the only way these services can
be avoided.
● Advisory Opinion No. 86-7: A lawyer may acquire a security interest in marital
property to secure reasonable attorney’s fees in a domestic relations case if the
security agreement is fully disclosed and consented to by the client in writing
and does not violate any court order. The security interest may serve no other
purpose.
● In Georgia you cannot represent both clients in a divorce case.

● Under the ABA a lawyer shall not have sexual relations with a client unless there
was pre-existing consensual sexual relationship when the representation
commenced.
- In Georgia a lawyer shall continue to represent a client if there is a significant
risk to the lawyer being able to provide adequate representation in one or
more cases.
● In Georgia a lawyer shall not enter into a contingent fee on the amount of a
divorce or child support settlement however, this provision does not preclude a
contingent fee for recovery of post judgment balances
● Rule 1.5 b allows for enforceable agreements to arbitrate
- You cannot contract away a client’s ability to file a bar claim against an
attorney
● Under the ABA you have to report ethical violations by other attorneys. In
Georgia you should report ethical violations, but you are not required to.
 ● In Georgia if you receive a document related to opposing counsel’s
representation of a client shall promptly notify the sender
● A lawyer shall not withdraw from representation of a client if withdrawal shall
cause a violation of the Georgia rules of professional conduct. Withdrawal is
allowed if it will not materially adversely affect your client.
● In Georgia a lawyer shall not represent a person in the same or substantially
related matter if while at a former firm information was acquired while in
representation of said former client.
- The ABA would allow this if screens were put in place to prevent the lawyer
from working on that new case in the new firm.
● Georgia 1.6 b 1 (ii)

● The ABA has a civility rule stating that it is professional misconduct for a lawyer
to engage in harassment due to protected status. Georgia does not have this
rule.
● Guardian ad litems do not have any lawyer-client relationships so there is no
duty to keep quiet
● A lawyer may acquire a lien granted by law to acquire attorney’s fees so long as
it is not prejudicial to the client
● A lawyer shall abide by a client’s decisions concerning the scope of
representation. A lawyer may take such actions on behalf of the client.
- You can make tactical decisions without first consulting your client

ADR
● Options for ADR
- Arbitration: the parties agree before the arbitration which sets the parameters
for what the arbitration will look like. This is an express agreement which
holds that a third-party neutral will issue a decision for the parties which then
binds the parties
o Litigation is almost always more expensive
o Recommend it when the parties want to make things simpler and less
formal
- Mediation: a third-party neutral helps the parties in negotiations
 o Only as good as the mediator themselves
o Almost every court around here will offer the parties some form of free
(in some cases mandated) mediation
o Can happen at any point in the case
o The court may only overturn if it finds a positive reason to do so in the
best interests of the child
- Collaborative practice: occurs before either party files for divorce, relies on a
team approach, according to an agreement set out by the parties.
o The parties agree that if they are going to misbehave, the attorneys
will resign. All parties sign an agreement (including the attorneys) with
each other that they are then bound by.
o You have to trust the other party (the person you are divorcing) in a
moment where trust levels are likely the lowest, they have ever been in
that relationship. This makes this option difficult and unattractive.
● Four main things about mediation
1. Self-determination: the parties get to decide for themselves what they want
as compared to arbitration or litigation. Parties have a tendency to follow
their own agreements more than they follow court orders.
2. Confidentiality: what is said in mediation stays in mediation.
o Sometimes in the process of mediation, the parties meet separately
3. Neutrality on the part of the mediator: you have to be, and the parties have to
believe, that you are neutral and impartial
4. Fairness: as the mediator you are the guardian of this process even though
the parties themselves are the actual decisionmakers.
o You do not take credit for or responsibility for what happens in the
mediation
● Arbitration usually involves a contractual agreement to designate a third party to
resolve a dispute without the formality and expense of litigation.
- Is typically faster than litigation
● Mediation is the process by which a mediator, an impartial third party, facilitates
the resolution of family disputes by promoting the participants’ voluntary
agreement. The mediator assists communication, encourages understanding
and focuses the participants on their individual and common interests. Works
with the participants to explore options, make decisions and reach their own
agreements.
Case: Fawzy v. Fawzy (2009)
Court: Supreme Court of New Jersey
Issue: Whether child-custody and parenting-time can be resolved by arbitration?
Holding: Yes
Rule: In respect to these issues only, a record of all documentary evidence shall be
kept, all testimony shall be recorded verbatim, and the arbitrator shall state in writing or
otherwise record his or her findings of fact and conclusions of law with a focus on the
best interests standard.

● Kelm v. Kelm held that the trial court has a continuing responsibility to protect
the best interest of the children and that the parties’ agreement to arbitrate
custody and visitation disputes impermissibly interferes with the court’s ability to
carry out this responsibility.
● You should tell you clients that they can use alternate dispute resolution

● Mediators cannot give legal advice.

● The process of mediation ultimately relies on the voluntary cooperation of the

parties even if the court has ordered mediation.
● The parties to a mediation must have the legal capacity to mediate.

● Techniques that are important for mediators

- Listening without the intention to respond. You have to do this with both
parties
o You have to help your parties separate the person from the problem

Parentage
● For the final exam focus only on Georgia law.

● Places where the determination of parenthood will be important

- Where trying to determine the legal rights of unmarried parents
- Child support issues, usually when someone is trying to avoid or trying to
impose child support
- Visitation rights
- Stepparent (or third parent) adoption
- Situations where couples are getting a divorce and one of the parties (usually
the mother) tries to disestablish a parental relationship between the child and
the other party
● Courts will never let an adoption move forward for more than two people.
- The law recognizes no situation where anyone can have more than two
parents
● What makes someone a mother
- Usually gives birth to the child (gestational)
- The woman assumes responsibility for and care for the child
- Holding it out as her own (supporting the child)
- Are the parties genetically related to each other
● How to determine paternity
- Presumed paternity if he is married to the mother at the time of birth
- If the person claiming to be the father is on the birth certificate, they are
presumed to be the father (rebuttable presumption)
- If the parties were married but have separated and it is within 300 days of the
marriage
- Living with the child and providing care
- Providing support for the child
- Artificial insemination: if both parents consent to it, it is an irrebuttable
presumption that the party is the father.
- Genetically related to the child
- A connection to the child’s mother.
o The court cares about whether the father ever lived with or cared for
the child’s mother either before birth or even after it
- The putative father registry: a registry where someone thinks that they might
have had a child where they sign up asking that if a child gets born to let
them know.
o Creates a very strong presumption of Fatherhood
● Two primary differences between legal paternity and maternity
- Maternity is very clear and is irrebuttable. It is unheard of for it to be
challenged.
o Paternity is almost never irrebuttable and is almost always just
presumed. It is way more likely to be challenged.
- Maternity is determinable and exists even before birth. Paternity is never
established before birth.
o Under Georgia law it cannot technically be determined before birth.
 ● Georgia has almost no black letter law on surrogacy.
- There are almost no cases on this as well because attorneys are hesitant to
bring cases to court because of this.
● Marriage is still the most common way to establish legal parenthood.

● In 19 states, a man who is not married to a child’s mother may be presumed to

be the father when he has lived with and held out the child as his own.
● Paternity and filiation suits are usually brought as a part of child support
proceedings, they are usually adversarial, and depend on biological paternity.

Case: Pavan v. Smith (2017)

Court: U.S.
Issue: Whether or not Arkansas is required to apply the marriage rules to birth
certificates for the children of same sex couples?
Holding: Yes

● In Stanley v. Illinois (1972) the Supreme Court held that the Constitution protects
unmarried fathers’ custodial rights.

Case: Lehr v. Robertson (1983)

Court: U.S.
Arguments: Lehr makes the argument that he didn’t know about the putative father’s
registry.
Issue: Whether the state of New York has adequately protected the appellant’s
opportunity to form parental tie to his child?
Holding: Yes
Rule: The Due Process Clause does not require notice of an adoption proceeding to be
given to a biological father who may be an interested party to the proceeding.

● Gomez v. Perez (1973) held that denying a nonmarital child the right to support
from the father when marital children had such a right violates the equal
protection clause.
● The general rule is that proof of biological parenthood is sufficient for imposing a
duty of child support and courts/legislatures are extremely reluctant to excuse
said duty.
 ● The statutory rape rule: a number of courts have held that teenage and even
pre-teen boys were liable for child support for children born to older girls and
adult women. This is an extreme result of holding biological fathers responsible.
● In a number of cases men have argued that the woman lied about using birth
control and therefore they should be excluded from child support. The courts
have rejected these claims.

Case: McGee v. Gonyo (2016)

Court: Vermont
Issue: Whether the VAP was valid?
Holding: No, the facts support the motion to set aside a voluntary acknowledgement
of paternity as a fraud on the court.

● Four terms relating to parentage

1. Biological parenthood
o Gestational motherhood
o Genetic motherhood
2. Legal parenthood: usually is tied to genetic parenthood but does not have to
be
o Includes adoptive parents
3. De facto parenthood (does not exist in Georgia):
● Types of suits in Georgia: suits to determine paternity for the purposes of child
support.
- Could be brought by
o The mother
o The child
o Any relative in whose care the child has been placed
o DHS
o One who is alleged to be the father
- Usually brought in cases where he is the genetic father of the child. The
statute makes it explicit that the courts in Georgia have to hear evidence that
he is not the biological parent. Almost always requires the father to be
genetically related.
● If the child is legitimate, they have a legal father and if they have a legal father
paternity does not need to be established.
 - Someone who wants to remain an equitable caregiver cannot be recognized
as a legal parent in Georgia. To legitimate a child, you have to be a biological
parent.
- Legitimation suits cannot be filed before the child is born in Georgia
● The result of a paternity suit is not that one is held as a legal father but one is
found to be a biological father.
- Courts can impose declarations of paternity as well as orders of child
support. The court can also issue a declaration of non-fatherhood
- That the man lived with the mother, provided care for the child, and
resources can be used as evidence to establish paternity
● If there is a child born out of wedlock, only the mother is entitled to custody. The
mother also exercises all parental power over the child.
● The difference between a paternity suit and a legitimation suit is that in a
legitimation suit the primary concern is the best interests of the child versus
making sure the state does not have to pay in a legitimation suit.
● If one of the parties refuses to comply with genetic testing, the court is
instructed to issue an order against that party.

Third Kind of lawsuit regarding paternity: one party is trying to take away legal
parenthood from another (usually the father from themselves)
● This is a lawsuit to disestablish paternity or a de-legitimation lawsuit

● 19-7-54

● Can only be filed as a motion where there is another lawsuit involving the
support of the child
● Requires an affidavit that there is new evidence as well as a genetic test
showing that there is 0% probability that he is not the father
- Usually, the court needs to order the child to undergo a genetic test
● This section allows for the severance of parental ties and the duty to pay child
support at the same time

Adoption
● Adoption occurs as a two-stage process
1. Termination of the first parent-child relationship
 2. The creation of the new legal parent-child relationship
● The goal is to be able to read the adoption scenario and know which section of
the Georgia Code to use.
● Adoption is a matter between the child, the state, and the adopting parents. It
can be organized through contract, but it is not inherently a contractual matter.
● Start by asking who is doing the adopting
- What is their legal relation to the child
o Are they relatives? If so, they may get preferential treatment under the
law for adoption
o Are they a foster parent? This is considered something in between a
legal parent and a stepparent. They get preferential treatment in some
circumstances
- The parties need to be of a certain age. You cannot adopt someone who is
the same age or older than you.
o In Georgia there is a minimum age difference requirement.
- Marital status of the adopter is important
o In Georgia you cannot adopt on your own before 25 but you can
afterwards
- Are they an adjudicated equitable caregiver?

Case: Monty S. v. Jason W. (2015)

Court: Nebraska
Issue: Whether the relinquishments in this case were invalid?
Holding: Yes, due to the retention of parental rights.
Rule: The court will not recognize open adoption arrangements in a private adoption
context and will hold that relinquishments signed with the promise of an open adoption
are invalid.
Notes: This is a very rare case where a court overturns an adoption.

● Who is being adopted

- Age
o In Georgia, at a certain age, the adoptee has some say. Starting at a
certain higher age (14) the child gets to decide.
- If the child has special needs that could be met by the prospective adoptive
parents
 - If they have siblings
o The goal is generally to keep siblings together
- Cultural, religious, or ethnic considerations
o There is a general goal to match the child with adoptive parents who
share these traits
- If the child is an orphan
- Is the child a dependent
o Whether whoever currently has child cannot provide for its needs
- Does the child live with a stepparent
● What are the remaining connections the child might have to their previous lives
- Is there any blood family out there who would be willing to adopt the child
- What are the restrictions placed on adoption relating to the child’s previous
life. This can often require something related to a custody arrangement.
Known as open adoption
o The state of Georgia allows for open adoption
● Where is the adoption going to take place
- There is a huge difference between local adoptions, adoptions across state
lines, and international adoptions
- There is no such thing as a court-less or stateless adoption
● Who currently has custody of the children
- Are they with the birth parents, in an orphanage, or with an adoption agency.
● What connections are being maintained and what are being severed
- Pay attention to the putative father registry
- If there is a legal father, the child cannot be adopted without first severing
that connection
- When a child is up for adoption and the mother knows who the father is, and
the mother is not the petitioner for adoption, neither the mother of the
attorney are required to provide the father’s information and he is not
required to be informed.
- Under Georgia law, biological fathers who are not legal fathers do not
deserve notice in every case
● There are both private and public adoption agencies
- Some are purely state run (defax), and some are completely private. There
are also everything in between
 Different types of adoption
● Agency adoptions: any kind of adoption that is facilitated by a third-party
agency
- In international adoptions, the U.S. immigration agency will be involved
- There are usually steps to this process such as the home study/visit. Often
done by the same person who would be appointed as a guardian ad litem.
This process gets pretty intrusive and can be waived in some circumstances
such as when the child already lives with the adopters or when the child is
going to be adopted by their much older sibling.
- Usually provide counseling to the birth parents and usually require the
adoptive parents to be supervised for a while after the adoption takes place.
The adoption could in theory be rescinded after a while if things are not
going well and the order has not been signed by the court.
● Private adoptions: when there is no state agency involved in the adoption. All
parties involved are private parties except for maybe the court and the
immigration agency if involved
● Direct placement adoption: happens directly where an attorney organizes the
whole thing and brings it to court
- Georgia allows for this to occur
- These days adoptive parents must be vetted although a home study does
not have to occur
- There will be no payment for the child.
- Usually involves healthy babies. Most of the time it is a newborn who is
handed over to the placement parents as soon as it is born.
- No subsequent supervision
● 19-8-5: direct placement adoptions
- A home study must have been completed and recommends the placement
of the child within that family home
● Stepparent adoptions
- In all states there are no laws that allow for more than two legal parents
● 19-8-6: requirements for an adoption by a stepparent
- The remaining legal parent must give their consent to the adoption
● Parental consent
 - The easiest is when both parents give their consent to the adoption.
- Consent is ideally explicit and in writing
- Almost all states have surrendering statutes where the child can be handed
over within a certain period of time after birth and this is considered consent
to the child being released from the parent’s legal custody
● Adoption without consent
- Consent is not needed when the child has been abused or neglected
- Consent from the father is not needed when the child is conceived through a
crime or when the parent is biological but not legal and have not done
anything to assert their legal rights.
- In Georgia, fathers who have not legitimated their child born out of wedlock
do not have to give consent for an adoption to go through
● 19-7-1: parental rights can be lost by contract, consent to adoption, or a court
order
● Courts will terminate parent’s rights where
- The child has been abandoned
- The parent cannot be found after a diligent search
- The parent is insane or otherwise unable to voluntarily surrender parental
rights
- The parent caused the child to be conceived non-consensually or the mother
is under 10 years old
- The parent, without justifiable cause, failed to exercise proper care for the
child (they were neglectful)
- In cases of stepparent adoption, has the legal parent done the bare minimum
to show a desire to remain in the child’s life as compared to the relative who
wants to adopt
● 18-8-1: defines legal father as a male who has not lost parental rights and
- Has legally adopted the child
- Was married to the mother at the time of birth
- Married the mother after birth and recognized the child as his own
- Has legitimated the child
● 19-8-3: requirements for the adopter, any individual in Georgia can adopt
- We need to know if they are married, what is their age, and how far apart in
age are they from the adoptee
 - If they are married, they can adopt at any age so long as there is a ten-year
gap between them and the adoptee
- If single, must be 25 unless it’s a relative then they can be 21
- Married couples must adopt jointly
- No co-parent (joint) adoptions
o You have to be married if you want to adopt as a couple
- Must be financially, physically, and mentally able to have permanent custody
of the child
● 19-8-4: agency adoptions/when are parental right surrendered and what does it
entail
- Additional condition is that the agency consents to the adoption
● 19-8-7: relative adoptions/requirements for adoption by a family member
- By blood or marriage
- Very specific relatives
- The home study is waived in relative adoptions
● 19-8-8: the international adoption statute/requirements for a foreign adoption
- Section A: foreign adoption under the laws of whatever country they are in
that is being domesticated
- Section B: where the adoptive parents are made the guardians of the child.
The foreign court is required to sever the legal rights of the biological
parents. Then a petition for adoption of the child must be undergone in the
U.S.
● 19-8-9: surrender of rights can be withdrawn within four days after they are
surrendered
- A mother in Georgia may not surrender a child before birth. A father may do
so but not a mother.
● 19-8-28: orphans are adoptable without a surrender of rights

● When a child turns 14 it counts as a significant change of circumstances and the

child now has a say in what happens to them. They must give their consent to
the adoption
- When one turns 14, they are automatically considered a party to the
adoption agreement meaning that if they don’t like it, they can reopen it
 ● We need to know what the child’s remaining legal connections to their previous
family
- If they have a legal parent, we need to have a surrender from each of their
legal parents
o Surrender must be voluntary, in writing, and unrevoked for four days.
o Stepparent adoptions are the only situation where the child enters an
adoption proceeding and the initial legal parent remains so.
● Courts in Georgia are allowed and expected to enforce post adoption contracts
with two exceptions
- Enforcement of the contract cannot be grounds for setting aside the
adoption
- Whenever a court is asked to enforce, modify, or set aside an adoption
agreement it must consider the best interests of the child.
● In Georgia, open adoption agreements must be in writing and signed.

Assisted Reproductive Technology

Case: Gatsby v. Gatsby (2021)
Court: Idaho
Issue: Whether the non-birthing mother has parental rights over a child conceived in
the course of her same-sex marriage through artificial insemination?
Holding: Not in this instance because the parties failed to follow the legislation of this
State regarding artificial insemination.

Case: P.M. v. T.B. (2018)

Court: Iowa
Issue: Whether the district court erred in enforcing the gestational surrogacy contract,
terminating the presumptive parental rights of the surrogate mother and her husband,
and placing permanent custody of Baby H with the biological father?
Holding: No
● Assisted reproductive technology: any instrument or tool used to achieve a
desirable pregnancy with the result of a viable offspring
- In Vitro Fertilization: the fertilized eggs are placed inside the uterus
- Artificial insemination
- Genetic surrogacy: where the surrogate donates her egg, is also known as
traditional surrogacy
- Gestational surrogacy: where a mother gives birth to a child that is not hers
after it has been implanted through IVF in her
 ● Commercial surrogacy: when a surrogate does it in order to gain a financial
benefit
● Altruistic surrogacy: where the woman offers the surrogacy services in order to
help people
● Vanity surrogacy: when one seeks a surrogate solely for the purpose of not
going through a pregnancy
● Surrogates who do not have a genetic connection to the baby they carry will
almost always lose in court
● In Georgia a traditional surrogate is considered a legal mother and cannot sever
her parental ties until birth
● IVG In Vitro Gametogenesis: when you take a somatic cell, it is reverted back
into an embryonic stem cell, and then it is transformed into a sex cell (gametes).

Case: Dobbs v. Jackson (2022)

Court: U.S.
Issue: Whether all pre-viability prohibitions on elective abortions are constitutional?
Holding: No, the Constitution does not confer a right to an abortion. Roe and Casey
are overruled and the authority to regulate abortion is returned to the states.
Rule: Roe and Casey are overruled. The issue of abortion is kicked back to the states.

Case: Patton v. Vanterpool (2017)

Court: Supreme Court of Georgia
Issue: Whether the irrebuttable presumption of legitimacy applies to children
conceived by in vitro fertilization?
Holding: No, the legislature has not expressly stated that artificial insemination as it
relates to legitimacy includes in vitro fertilization even though it has had ample
opportunity to do so.

● Georgia’s law on assistive reproductive technologies is relatively sparse

● Private ordering: where attorneys write contracts to govern an area of law that
the statutes and the court’s do not cover
- In the area of assistive reproductive technologies this is the standard
● Georgia courts are unwilling to stretch the artificial insemination statutes to other
areas
● You cannot pay for the sale of a child in Georgia, but you can pay for the
gestational process for a woman gestating a child who is not theirs biologically
(presumptively)
- It’s okay to pay for medical expenses or even housing
● Georgia has an embryo custody law
- An ex-utero embryo (outside of the body) is not a person but it’s also not a
piece of property
● The LIFE act amends the definition of a natural person to include an unborn
child
● If the embryo is in utero, it is considered a person and if it is ex-utero, it is not

● The LIFE act holds that no abortion is authorized if an unborn child has been
determined to have a detectable human heartbeat except in cases of rape or
incest before 20 weeks or in cases of medical futility
● You can seek a prebirth order of paternity in surrogacy cases in Georgia