Miller v. McKenna: When NEITHER Parent Deserves Custody

"There's no hope for that kid."  Unfortunately, that is a phrase used amongst divorce and family law professionals, from lawyers to social workers to Attorneys for the Child.  It means that there is such bitter and selfish infighting between the parents that the child is going to grow up in a custody maelstrom.

Having read the decision from the New York Court of Appeals and the New York Times article, about the child of U.S. Olympic skiier Bode Miller and U.S. Marine and firefighter Sara McKenna, I can only say:  unless these parents change their behavior in a drastic way, I don't have high hopes for the stability which will be provided for this child.  He was the subject of a major Court of Appeals decision (NY's highest court) when he was in utero.  The parents can't decide what his name should be.  The father and his new wife (he and McKenna never married) parade the child around on the social media like he's Boo the Pomeranian.

I don't think either parent deserves custody and I hope there are grandparents or siblings in the picture who can step in and provide some stability for the child.

The New York Times' headline about this case was "Custody Battle Raises Questions about the Rights of Women."  Does it?  Or does it raise questions about whether there are cases where two people are so selfish that neither one of them should be parenting this child.  The two had been living in California and McKenna moved to New York, while 7 months pregnant, to start school at Columbia on the G.I. Bill.  Miller started a family court action and the Court held that McKenna had improperly moved with her fetus to New York.  A California court granted custody of the fetus to the father, setting off a whole chain reaction as to what this means for women's rights.

Meanwhile, the baby was born into a Family Court action which recently went up to our highest State Court.  On November 14th, the Court of Appeals held that McKenna's rights had been violated and that "putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty."

What about the child's rights?  After all, if a child is born addicted to drugs, Social Services will step in and remove the child for his/her own protection.  Trust me, Family Court petitions can be as harmful to a child's health as drug addiction, maybe even more so.  At least there is rehab for drugs, there is no rehab for Family Court litigation.  And people get as addicted to Family Court litigation as they do to drugs.  They just can't stop themselves.

The Court also ruled that New York had jurisdiction, so now there will be a custody hearing about change of custody, in Family Court for this 9-month-old child.  Shame on the parents, shame on the lawyers, shame on everyone involved.  I hate to say it but, unless there is a sea change with both parents:  there is no hope for this kid, and in Mrs. Lo's opinion, NEITHER parent deserves custody.

Juliana LoBiondo
www.LoBiondolaw.com

PROMISES, PROMISES ... Why You have to be Married to get Divorce Relief

One of the main legal benefits of marriage is the protection afforded to a spouse should the marriage end either because of death or divorce.

Without a Will, an unmarried person has no rights in the Estate of another person.  Not so for a married person. Even with no Will in place (absent a valid prenuptial agreement), a Widow or Widower will take 1/3 of the Decedent's testamentary estate.

If a marriage ends by divorce, a Spouse will receive an equitable share of the marital estate, and has the potential for alimony.  However, without the benefit of marriage, Courts will not enforce "equitable distribution" on a breakup, even if there is a writing and payments made based on the writing.  Public policy in New York State is to encourage marriage, as was made clear in a recent case, which Mrs. Lo likes to call "Promises, Promises."

The case is out of Rockland County, where Acting Supreme Court Justice Alfieri ruled in favor of the Plaintiff (we'll call him BF), who had promised to pay his "special friend" (GF) $500,000.00 after "relationship" ended.

The Court ruled that the writing in question was not a valid contract, and also ordered the GF to pay the BF's attorney's fees.  In the ultimate slap in the face, the Court ordered the GF's lawyer to pay $2,500.00 in Sanctions for bringing on a frivolous claim.  

The BF had written a letter to GF, apologizing for hurting her and promising to pay her $500,000.00 in the future, according to the Decision, Wu v. Xu, 031636/2013.  BF actually made two payments totaling $47,020.00 to GF.  Then he went to see a lawyer and things changed.

He brought a lawsuit to declare the letter to be null and void, and not enforceable since they were never married.  GF then hired a lawyer to enforce the writing.  

The Court cited a 1906 New York Court of Appeals decision: Platt v. Elias, which stated:  

"Generally, contracts tending to impair familial relationships are found to be against public policy," 

Justice Alfieri's 2013 decision stated: "Although the August 2012 letter is not an express agreement to marry or to encourage a divorce, it does involve the institution of marriage and the well-being of the familiar relationship of Plaintiff and his wife to the extent that this Court finds is against public policy ... as such," Alfieri added, "the Court finds that the letter is not a valid, enforceable contract."  This is especially true where the BF was already married.

Thus, written in between the lines of the deicison is the fact that the Court is protecting the Wife of the BF and preserving the marital estate.  BF is married with a grown child and GF is single.  GF said BF had promised that he would divorce his wife, leave his family and marry her.

BF was not seeking to get back the $47K he had already paid GF, just to get out of having to pay another $450K.   

Incidentally, that 1906 case was the source of a great scandal back in the day.  In that case, BF was a millionaire glass manufacturer.  He sued to have his GF, Hannah Elias, repay him the $685,385.00 he said he spent on her between 1896 and 1904. BF, age 86 in 1906, claimed Elias had threatened extortion or blackmail by revealing their long-time affair unless he continued to maintain her affluent lifestyle.  Did I mention BF was married and Hannah was African American?  Hence, the scandal in 1906.

Thus, the title of the blog, "Promises, Promises" could alternately be "Take the Money and Run."  In any event, no marriage, no divorce protection.

Juliana LoBiondo

www.LoBiondoLaw.com