Adoptive Couple v. Cherokee Nation, The Indian Child Welfare Act

The Court affirmed the family court order denying the private adoption of an Indian child and the award of custody to the biological father. Because this case involves an Indian child (Baby Girl), the Indian Child Welfare Act applies and confers conclusive custodial preference to the Indian parent. The father did not consent to Baby Girl’s adoption, and the Court could not say beyond a reasonable doubt that custody by him would result in serious emotional or physical harm to Baby Girl. Thus, under the federal standard, the father’s parental rights could not be terminated.
Adoptive Couple v. Cherokee Nation, the full opinion here.

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What justifies a Judge transferring custody?

In South Carolina, as a general rule a change of custody occurs when there is a substantial change in circumstances and the focus is on the best interests of the child, rather than the parents.  A recent court decision involving an awarded change in custody was reversed and remanded for a new trial by the South Carolina Court of Appeals.

The court further seems to address the issue the importance of child preference in determining custody, finding that a 10-year old child is, basically, not old enough to express a preference.  See the entire opinion which states, [t]hird, the family court placed some emphasis on Peter’s supposed preference to live with Tillman.  We find the preference of a ten-year-old on the important issue of a change in custody to be of little value, if any.”   This is particularly important as many parents ask and wonder how much weight a Judge places on a child’s preference for living with either parent.  Many wonder if the child can choose the parent they want to live with.

The SCRFC, Rule 26(a) requires the court to set for all the findings of fact relied upon in making their decision.  The court noted that in this case, “the order contains vague references” and provides no explanation of some issues which influenced the outcome of this case.  The court further states that by “failing to set forth all “material” changes in circumstances, the order violates Rule 26(a).” This is a big issue for many readers as most people want to understand why judges rule the way they do.

Read more here, and share you story or opinion.

Posted in Alimony, Child Custody, Divorce | Tagged , , , , , , , , | 1 Comment

Should Veteran Disability Benefits be divided in Family Court

In recent news, a disabled veteran has asked the U.S. Supreme Court to reconsider whether individual states should be allowed to consider a veteran’s disability compensation in calculating spousal support; and additionally whether federal law bars state courts from considering Veterans Administration disability benefits communal property to be divided in divorce like other marital assets.

This case involves the divorce of Peter James Barclay, an Air Force veteran, wherein an Oregon district court judge in 2010 considered the value of Peter Barclay’s VA disability payments in awarding spousal pay of $1,000 a month. He was married for nearly 20 years and his only income comes from VA benefits and Social Security Disability Insurance, a tax-free total of just more than $4,400 a month.  Barclay, 42, suffers from post-traumatic stress from his role as a Tinker Air Force Base first-responder to the 1995 bombing of the federal building in Oklahoma City, Okla. Subsequent PTSD made him unemployable and eligible to draw VA compensation at the 100 percent disabled rate.

Barclay argued at trial that to include his disability pay in calculating spousal support would violate federal law. The court ignored that argument and the Oregon court of appeals affirmed the decision.  Following an appeal, the U.S. Supreme Court is being asked to consider whether Title 38 U.S. Code, Section 5301(a), which makes VA disability benefits immune “from taxation, claims of creditors, attachment, levy and seizure,” also doesn’t bar inclusion of disability pay, directly or indirectly, in spousal support calculations.

What is your opinion on this subject?  Do you think that states are ignoring the federal law or do you think disability pay is designed to compensate solely the veteran for loss of income because of a service-connected medical condition?

This situation is further confused by the fact that different states follow different rules regarding veteran disability benefits.

I would love to hear your opinion about this or you can share your personal story.

Story source, Tom Philpott, Military Update


Posted in Alimony, Child Custody, Divorce, Military Retirement | 3 Comments

Should anyone have pay alimony for life?

Do you think anyone should have to pay alimony for life even when their financial situation changes? A new law looks at that idea.

Posted in Uncategorized | 3 Comments

S.C. legislator proposes shortening time for divorce

Do you think there should be a waiting period for getting a divorce?  If so, how long should it be?  Currently South Carolina requires a 1 year separation period for a no-fault divorce.  South Carolina lawmakers are considering shortening that time.

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New changes to Joint Custody in SC

In the latest headlines, “SC Senators Consider Bill to Increase Joint Custody After Divorces”.  This could make for a significant change in how judges decides joint custody issues.  Read more about it here and tell me what you think.  Could this affect you if you are involved in a custody dispute or agreement.

Posted in Uncategorized | 3 Comments

Is your spouse entitled to your military retirement benefits?

In Ball v. Ball, 314 S.C. 445, 445 S.E.2d 449 (1994), the South Carolina Supreme Court ruled that a spouse’s nonvested military pension (nonvested retirement benefits are those that are earned, but subject to forfeiture under certain conditions” was marital property subject to equitable distribution.

What are your thoughts?

Posted in Alimony, Divorce, Military Retirement | Tagged | 2 Comments

Should reaching retirement age terminate the obligation to pay alimony?

According to the recent South Carolina Court of Appeals case, June T. Fuller v. James T. Fuller, filed January 25, 2012, the court overruled a Greenville County Family Judge’s decision to terminate the alimony payments of a 67 year old gentleman.  What are your thoughts?  Should age be sufficient alone to terminate the obligation to pay alimony?

In the court’s opinion “age alone is sufficient to justify a reduction or termination of alimony.”

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Pro Se Divorce – Is it a good or bad thing?

The South Carolina Bar website now offers instructions and forms that allow individuals to represent themselves in family court regarding divorces on one year continuous separation or ‘no fault’ divorces as they are commonly called. This “Self-Represented Litigant Simple Divorce Packet” is available for both Plaintiffs and Defendants involved in the litigation. There are differing opinions on providing the forms online, however, it will definitely be useful to those who feel comfortable navigating their way through the legal system. Are there any thoughts or opinions regarding the forms? Has anyone used them?

Posted in Divorce | 14 Comments

What is Equitable Division?

South Carolina courts have determined that equitable division of the marital estate needs to be “appropriate.” But what is appropriate in the eyes of the law?  There is a trend in courts for an equal apportionment of marital property.  While it is in the discretion of the Judge, there are several factors that should be considered including the length of the marriage, fault of parties, assets and debts, etc.

Take a look at this case for more information.

Posted in Divorce | 19 Comments