Category Archives: child custody

New Case Law: When does the Obligation to Pay for College End?

May 20, 2010

In re Marriage of Baumgartner, Ill, No. 109047 (per Freeman)


In their judgment for dissolution of marriage, Susan and Craig Baumgartner both agreed to contribute to the postsecondary educational expenses of their son Max. After Max was convicted of a criminal offense and was serving a three-year sentence, Craig motioned the court for the removal of the couple’s obligation to pay postsecondary educational expenses for Max.  Without receiving any evidence on Craig’s motion, the circuit court ruled sua sponte that son Max’s incarceration constituted his full emancipation and that any future obligation on Craig’s part to pay for Max’s college education was abated.  The circuit court denied Susan’s motion for reconsideration. Finding no authority to support the argument that Illinois would recognize incarceration as a self-emancipating event, a divided panel of the appellate court reversed, finding the trial court erred in ordering the termination of Craig’s obligation to contribute to Max’s education expenses based solely on the basis of Max’s incarceration.   


Whether the trial court erred in determining that incarceration alone is a self-emancipating event for a minor?


Yes.  The trial court erred in determining that incarceration was a self-emancipating event for a minor. Appellate court judgment affirmed. Cause remanded.


The minor’s incarceration alone was not dispositive as to whether he was emancipated.  Although lengthy incarceration is one of the many situations in which a minor may be found to be emancipated, based on the circumstances of a particular case, the circuit court failed to complete the required analysis to determine the minor’s status in this case. The circuit court record contained no evidence whatsoever pertaining to the parents’ care, custody, control, or support of the minor or whether the minor voluntarily abandoned that support. Minors can emancipate themselves, i.e., place themselves beyond the care, custody and control of their parents. However, emancipation cannot be presumed.  Whether a minor is emancipated depends upon the relevant facts and circumstances of each particular case.

Further, emancipation is not necessarily a continuing status.  A minor may become unemancipated if there has been a sufficient change in circumstances.  The burden of proving emancipation is on the one asserting it.  Changes in life circumstances for a minor such as entering into marriage or the armed services may or may not lead to emancipation, depending on the resulting effects on the minor’s status relative to his or her parents.  Even the commission of a crime by the minor, by itself, is not dispositive of emancipation, although lengthy incarceration is one of many situations in which the minor may be found to be emancipated. The inquiry is whether the minor has become self-emancipated by any means other than reaching majority age, which was not addressed in this case.


The basic ruling here is not necessarily radical. The trial court probably should have heard some evidence before ruling.  Neither the statute nor the case-law automatically presume emancipation. But what I find interesting about this case is the notion of emancipation potentially morphing back to unemancipation. Under this ruling, a child could be married for ten years, divorce, and then potentially have a court order one or both  parents to contribute to her expenses.  In my mind this is particularly egregious in light of the fact that children of in tact families have no right to any contribution from their parents.  The legislature needs to correct this legal anomaly. SNP


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Filed under Case law, child custody, divorce, Divorce court, Uncategorized

What is a Parent?

Every so often I stumble across some great legal writing. Here is an interesting commentary by Judge Mosk in a decision he wrote in a 1979 California custody case (In re Marriage of Carney, 24 Cal. 3d 725). The basic facts were that a custodial father became quadriplegic and the formerly absent mother sought custody based upon the father’s new physical disability. The trial court granted her custody based upon the father’s limitations.  The Supreme court reversed. The case, while 30 years old, provides timeless insights into what constitutes a parent:

On a deeper level, finally, the stereotype is false because it fails to reach the heart of the parent-child relationship. Contemporary psychology confirms what wise families have perhaps always known — that the essence of parenting is not to be found in the harried rounds of daily carpooling endemic to modern suburban life, or even in the doggedly dutiful acts of “togetherness” committed every weekend by well-meaning fathers and mothers across America. Rather, its essence lies in the ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative years, and often beyond. The source of this guidance is the adult’s own experience of life; its motive power is parental love and concern for the child’s well-being; and its teachings deal with such fundamental matters as the child’s feelings about himself, his relationships with others, his system of values, his standards of conduct, and his goals and priorities in life. Even if it were true, as the court herein asserted, that William cannot do “anything” for his sons except “talk to them and teach them, be a tutor,” that would not only be “enough” — contrary to the court’s conclusion — it would be the most valuable service a parent can render. Yet his capacity to do so is entirely unrelated to his physical prowess: however limited his bodily strength may be, a handicapped parent is a whole person to the child who needs his affection, sympathy, and wisdom to deal with the problems of growing up. Indeed, in such matters his handicap may well be an asset: few can pass through the crucible of a severe physical disability without learning enduring lessons in patience and tolerance.


Filed under child custody, Parenting, Uncategorized

Is Marriage Different?

Illinois’ policy is that children born to unmarried parents have the same rights as those children whose parents never marry.  But does that mean the restrictions on that child’s parent are also the same?  Illinois law requires a  custodial parent who wants to  permanently remove  a  child from the state to obtain permission of the court. The obvious policy of this law is to protect and preserve the relationship between the child and his other parent. Without arguing the merits of this law generally, the question is whether courts should apply this law if the parents were never married. Can the state limit where a never married custodial parent lives?

Assume an unmarried couple conceive a child as a result of a casual liason.  And assume mom, who has physical and legal custody, wants to move to Hawaii. Should the court restrict her freedom of movement, applying the same standard it would if mom and dad had been married, and at one time were an intact family?  Considering the policy behind relocation restrictions, a different standard makes no sense. But something seems wrong to me about restricting this never wed mother’s mobility.  I can’t put my finger on it, but it seems qualitatively different to me.  My visceral sense is that the unwed custodial parent should not be limited in their ability to move with the child.  But I can’t articulate why. Anybody have any thoughts?

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Filed under child custody, Child Relocation, Uncategorized

Toxic Parenting

It’s no secret that people often use their children to achieve their goals in family court. Despicable, but all too common. Probably the most disturbing dynamic is the parent that tries to gain custody by being a child’s friend or buying the child’s affection through permissiveness or other bribery. While the other parent wants to impose structure, rules and discipline, the subversive parent destroys those constructive attempts to parent.

If the child is younger,  responsible parents can counteract the ploy  since courts  can remedy–or at least contain– this conduct.  But what if the child is 16? Courts are loath to defy a strong-willed adolescent who wants to live with dad or mom,  regardless of  their lousy parenting. And naturally that child, embroiled in adolescent turmoil, craves the more permissive household–not knowing how potentially toxic it may be to their long term welfare.

The parent who successfully gets the child, the so-called  winner (at least in their mind),  achieves their goal at the cost of their child’s welfare.  And there  is little the more responsible parent (or the court) can do. Nefarious conduct is rewarded. One of the truly disturbing dynamics in family court.


Filed under child custody, Parental Alienation, Parenting, Uncategorized

When is too much too much?

Increasingly Lex Familia is confronted with visitation schedules that are almost impossible to accomplish.  Parents have children enrolled in so many activities, it is difficult to find time for the child to spend with the non-residential parent. Should a child be allowed to participate in activities if they interfere with the the non-residential parent’s time with the child? There is no easy solution to this dilemma.

How should a court respond when the time-slighted parent objects? To be certain, it  would be unfortunate to deny a child of divorce access to activities available to a child of an intact family.  However, a child from an intact household presumably sees more of both parents and the need for uninterrupted time is less crucial. Perhaps, like in so many instances in the law, the courts need to use a balancing test. But what factors should be weighed?  Perhaps the court could consider the child’s aptitude at a given activity versus the benefits of time with the non-residential parent. For example, are circumstances different if the child is a superstar baseball player with potential to be a pro, versus an average player that will be lucky to make the high school varsity squad?  Should the social benefits of participation be weighed against the benefits of additional parenting time?  Also the court can consider the quality of parenting of the non-residential parent. It should matter that the child sits in front of a television during visitation rather than being actively engaged with the parent. 

The over-involvement of children is a symptom of modern society.  It is not limited to children of divorce. Children today have very little time to goof off or even daydream. While children clearly benefit from participation in organized activities, Lex wonders if sometimes they are fulfilling certain dreams their parents did not get to realize. Indeed, in this instance, forcing children into the activity is exploitation and should not be tolerated as a basis to limit visitation. But, where the child is genuinely interested in an activity and has aptitude, do the benefits of participation outweigh the missed time with the non-residential parent?

Years ago, Lex was involved in a case where the child wanted to go to a football camp that would deprive the non-residential parent of a large amount of his summer visitation time. He objected and it went before the judge. The child attended the hearing and begged the judge for permission to go.  She listened to the boy’s pleas and simply said, “Young man, you may not understand this today, but perhaps someday you’ll appreciate this comment.  Nobody has ever laid upon their death bed and said ‘I wish I had more opportunities to go to football camp.’ But there have been countless people laying there that have wished they had more time to spend with their parents or other people they loved.”  The boy went with his father instead of football camp.

Indeed, life is short.  When is too much too much?


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Filed under child custody, Parenting

Is it Time to Reconsider the “Tender Years Doctrine”?

Last Saturday I was at Shabbat services at my synagogue. Also there was a handicapped little boy who was struggling to get around. Virtually every little girl at the service was coming to his aid, without any prompting by their parents. The other little boys seemed oblivious and generally unconcerned. My observations made me question whether there is some innate (or culturally developed) nurturing skill in little girls, seemingly lacking in boys. My generation grew up in a gender neutral political environment that emphasized the equality of the sexes in all respects. However, from my observation, it does seem that girls are wired differently, and have a tendency of care that boys rarely possess. 

Perhaps there may be something to the “tender years doctrine,” long rejected as being a relic of the past. The “tender years doctrine” arose early in the twentieth century, as a judicial presumption that children of divorce should ordinarily be placed with their mothers. It arose from Victorian views of the superiority of women morally and with regard to the rearing of children. This maternal preference replaced an earlier paternal preference in custody cases, long observed by American culture, which made women’s rights to their children secondary to the interests of their husbands.

In the 1960s the tender years doctrine, employed by virtually all states in resolving custody disputes, came under attack due to a variety of societal reasons that included challenges to women’s traditional roles in the home, and men’s claims of sexual discrimination in contested custody cases.  To be sure, these concerns were valid and deserved redress. On the other hand, the lack of any presumption in determining custody has created problems that may well exceed the progressive benefits of a gender neutral “best interest” standard. 

Custody litigation is the most toxic of all litigation. Undeniably, the litigation itself doesn’t serve a child’s best interest. The best interest standard, relied on by virtually all states in adjudicating custody, is an indeterminate standard that invites both parents to take their best shots, thus increasing custody litigation. If a rebuttable maternal presumption existed, courts still could award custody to worthy fathers and dispossess unworthy mothers; but much litigation caused by the leveling of the custody playing field would be avoided.


The maternal presumption reflects the politically incorrect reality that nature or society has equipped women with certain definite skills, equipping them to care for young children. While little boys are playing with cars and trucks, little girls for the most part are dragging around baby dolls. From my observation, most women have a caretaking instinct that the law currently ignores. When the law disregards principles of nature, unforeseen consequences occur–including more people competing to “win” the prize of custody. Perhaps it is time for legislatures and courts to rethink the notion of gender neutrality.


Filed under child custody