Friends don’t let friends donate sperm for friends

A man in Kansas donated his sperm to a lesbian couple so they could have a child. Now, even though none of the parties intended it, he has been ordered to pay child support:

Shawnee County District Court Judge Mary Mattivi wrote Wednesday that because a licensed physician was not involved in the artificial insemination process, William Marotta is more than a sperm donor and thus responsible for the child.

The Topeka Capital-Journal reports the Kansas Department for Children and Families filed the case in October 2012 seeking to have the Topeka man declared the father of a girl born to Jennifer Schreiner in 2009.

Marotta argued that he didn’t intend to be the child’s father and signed a contract waiving his parental rights.

Could this happen in Canada? Karin Galldin and Leslie Roberson, writing for Slaw, note that this case has several features unique to the United States and Kansas in particular, but that a Canadian sperm donor could potentially be on the hook for child support if the parent seeks it:

As I told my friend, there are a few things about this story that differ from how things would go down in Ontario (his observations about heteronormativity is not one of them). First, Canadian law doesn’t distinguish between DIY and physician-led insemination. Here we’re more concerned with whether the donor is known or anonymous, i.e. sperm purchased from an international sperm bank. The other major difference here is that unlike Kansas, the province of Ontario doesn’t go after people for child support against the wishes of the custodial parent (oh and not to mention that here the state doesn’t ask us to reimburse them for hospital bills).

Despite these differences, the big question is the same: does the law consider known sperm donors to be parents? This question has yet to be answered in Ontario. In fact it is an unknown in all provinces other than Quebec where the Civil Code explicitly recognizes the intended “parental project”. The question of sperm donor rights (and presumably financial responsibilities) is at issue in an upcoming family law trial in Northern Ontario where a sperm donor is now requesting rights of access to the child of two lesbian moms. In both the Kansas and Ontario cases the parties signed a contract identifying their intentions that the donor not be considered a father and the validity of these contracts remains to be seen.

So I had good news and bad news for my friend. The bad news is that yes sperm donors in Ontario could still potentially be ordered to pay child support. But the good news is that it wouldn’t happen against the wishes of the parents.

A commenter notes, however, that Ontario legislation does require a social assistance recipient to make every effort to obtain income from another source, including child support. Most other provinces have similar laws in place, so while the provincial department of Community Services might not commence the support application itself (as apparently happened in Kansas) it may still lean on the support recipient to go after the other parent. I doubt they would distinguish between someone who fathered a child the “old-fashioned” way, and someone who donated his sperm.

As for a case where social assistance is not a factor, I can’t see any court agreeing to uphold an agreement that no child support would be paid by a sperm donor. In cases where a child is conceived “naturally,” it’s a non-starter – child support is considered to be the right of the child, not the custodial parent, and a parent is not allowed to bargain away the little one’s right to financial support. I’ve worked on many divorces where the parties have agreed on everything, but it’s been held up by a Justice who wants a good explanation for why the agreed-upon child support payments are lower than the Child Support Guidelines amount. (If the payor doesn’t make enough money to pay support under the Guidelines, the court will not order it – but it will insist on annual disclosure of income information.)

Courts in this country have generally taken a very expansive view of when child support should be paid, and I can’t see that changing just because a laboratory was involved. Until we see some decisions saying otherwise, I would hold off agreeing to provide sperm to a willing couple unless you understand that you could find yourself forced to pay up.

Crime doesn’t pay. Criminals do.

So your income went down after you were convicted of a criminal offence, and now you can’t pay child support?  Too bad:

When it comes to paying child support, courts won’t sympathize with parents who are the authors of their own financial demise through criminal activity, a family court judge recently ruled this month.

In Rogers v. Rogers, Superior Court Justice Alex Pazaratz found an Ontario father who lost his well-paying job due to criminal convictions couldn’t use his reduced income as an excuse to stop paying child support.

The father, Scott Rogers, “is intentionally under-employed. His intentional behaviour caused him to lose employment and limit his opportunities to find replacement employment,” wrote Pazaratz.

Rogers drove without a licence for 10 years and was convicted of driving while suspended 12 times, according to the ruling. He kept driving after each conviction until “it all caught up with him” in February 2011, wrote Pazaratz. The court sent him to jail for eight months, the judge noted.

Rogers’ employer refused to take him back after he got out of jail, forcing him to take up another job that pays far less than his previous income of $74,500. Rogers also accumulated convictions for uttering threats and harassing his ex-wife.

According to the judge, the father “made conscious decisions to do things — illegal things — with the full knowledge that his reckless and anti-social behaviour would make him unavailable (let alone, unacceptable) for employment. The net result is the same as if he’d handed in his resignation.”

The father of two had gone to court with an application to stop paying child support once his income plummeted to an expected $33,000 in 2013. But Pazaratz said his children and ex-wife shouldn’t have to pay for his bad decisions.

[…]

The Ontario Court of Justice decided similarly in Costello v. Costello. In that case, a father sought reduced support for his two children after losing his job following run-ins with the law.

Toronto family lawyer Bill Rogers calls the decision a “really good reminder” for both family lawyers and litigants of how the courts treat parents who lose their jobs through their own actions. “It’s basically like quitting your job,” he says.

According to Pazaratz, the definition of intentional doesn’t require establishing that the father lost his job just so he could stop paying child support. “There is no requirement of bad faith or need to find a specific intent to evade child support. Rather, as the objectives of the child support guidelines state, parents have a joint and ongoing obligation to support their children. Imputing income is one method which courts can use to give effect to this obligation.”

He added: “The expectations placed on the applicant were not terribly onerous: Obey the law. Support your children. It would be counter to public policy to allow the applicant to deliberately breach the first obligation and then use his own misconduct to avoid the second.”

Nova Scotia’s Maintenance Enforcement Mess

The Dexter government’s inexplicable decision to move the Maintenance Enforcement Program from Halifax to Cape Breton is creating massive headaches for support recipients:

More stories of confusion and uncertainty emerged Tuesday over the NDP government moving the offices and staff tasked with tracking down deadbeat dads.

As of this month, the Justice Department has closed all its maintenance enforcement offices — in Amherst, Sydney, Dartmouth, Kentville and New Glasgow — to the public. The service is to be relocated to New Waterford, with a new office opening in the spring.

Carolyn Stewart of Halifax, who last received a payment in August and is now owed $18,000, said Tuesday that she just talked to her caseworker in the Amherst office Monday and was told her file would be moved to Cape Breton. The caseworker, like others on the mainland, isn’t making the move to the new office.

Stewart said she didn’t realize the Cape Breton office isn’t open yet.

[…]

Justice Department figures showed that, as of March 31, 2011, there were more than 15,000 cases in the province’s maintenance enforcement program, which collects and distributes court-ordered payments like spousal support. More than 9,000 cases were in arrears, by a total amount of $81 million by Dec. 31, 2011, according to the department.

A single mother quoted Tuesday in The Chronicle Herald said she had been waiting six weeks to hear from a caseworker after leaving several voice messages and was having problems with the program’s 1-800 number.

Justice Minister Ross Landry said Tuesday he called the woman and left a message expressing his concern about her situation.

Another woman contacted The Chronicle Herald on Tuesday saying she also had trouble with the automated telephone message system.

Rachelle Purcell said in an interview that she’s tired of getting the runaround while chasing the court-ordered payments for her teenage daughter. The last payment she received arrived Nov. 12, and arrears total about $9,600, she said.

“I can’t get hold of one person,” she said, referring to enforcement workers on her file. “They don’t call you back.”

“This is the judgment day for your children. It’s not about you.”

Every child custody/access litigant should read these words, from South Carolina family court judge Paul W. Garfinkel:

A custody case is much different than any accident case or a criminal trial. In those cases, an attorney is only asked to prove what happened at a specific date and place. All of the events have been fixed and are unchanging. A custody case is much different. You are asking your attorneys not to paint a picture in time but to present a movie. The movie must show over a broad range of time how each of you parent. Then I must decide which of you is the better parent.

Can you imagine if you had to prove that DaVinci’s “Last Supper” was a better painting than Michelangelo’s “Creation,” and say that you had to prove this to someone who had never seen either painting and you weren’t allowed to show the paintings to them? I suppose you could hire the curator of the Metropolitan Museum of Art who would come to court and testify about composition, color, depth, character, and proportion. Or I suppose you could bring in some ordinary people to say which one they think is better. Maybe you could take a poll. This is what you are asking your attorneys to do in this case. They have to prove to me which is the better parent, but they have no way of showing me exactly how you parent. They can’t take me to the study sessions so I can see you how a good tutor Dad is. They can’t bring me into your child’s bedroom at 5 a.m. to see how Mom comforts the child who is awakened with a fever. I want you and I want your attorneys to bring up those incidents which show you to be caring and loving parents, and I am sure they will try. However, it is more likely that they will be forced to show the other parent at his or her worse. Neither of these efforts will work very well. In trying to prove the positives you will discover that with the passage of time, the inability of witnesses to describe the situation with the same force with which it occurred, just the difficulty of putting into words other peoples’ thoughts, feelings and actions, all of these combine to make grey what you felt was vivid or blunt . . . what you thought was poignant. On the other hand, the negatives will seem to make you look like the worse parent that ever lived. Did you ever send one of your children to school without [their] lunch? Did you ever forget to give one of your children [their] medicine? Did you ever say about your child “I could have strangled her?” We probably have all done those things, and it will be presented as if you are the most neglectful or abusive parent. At the end of the trial any goodwill each of you had for the other, if there is any, will have been totally destroyed.

It is both of you who must be parents of these children until either you or they die. Neither I nor any of these lawyers . . . will be there for you for the remainder of this long journey. We could try to do our best to get you pointed in the right direction and maybe even help you along, but it is only in the first few steps. In the end it is both of you who must raise these children.

[…]

I know that your children want you to settle this case. You can do the right thing and you can start now. Put aside what has happened in the past. This is the judgment day for your children. It’s not about you. And think about the additional damage you are going to cause to these children. I can tell you right now it has happened and it happens every time. Put aside your own egos and swallow them. Leave it is in this courtroom . . . we’ve had a lot of egos left in this courtroom. You don’t see them but I do because I see parents who are willing to put their children’s welfare above their own ego. And they leave it right here and they know and understand what is really best for the children.

“Preglimony”

An American law professor says would-be fathers should be responsible for paying support to the women they’ve impregnated – before the child is born:

A prenatal blood test makes it possible to link a woman’s partner to her pregnancy, according to University of Richmond law professor Shari Motro. A potential ramification, she writes for the New York Times, is that men might be asked to support their partners before a child’s birth. “They might be asked to chip in for medical bills, birthing classes and maternity clothes, to help to cover the loss of income that often comes with pregnancy, or to contribute to the cost of an abortion,” Motro writes.

Most states frame men’s pregnancy obligations as an element of child support or as part of a parentage order that takes effect after the birth of a child, she says. Motro suggests men should have financial responsibility even if there is no birth. “Former spouses are often required to pay alimony; former cohabiting partners may have to pay palimony; why not ask men who conceive with a woman to whom they are not married to pay ‘preglimony’?” she writes.

Motro considers, then discounts a criticism. “The most frequent objection I hear to this idea is that it will give men a say over abortion,” she writes. “A woman’s right to choose is sometimes eclipsed by an abusive partner who pressures her into terminating or continuing a pregnancy against her will, and preglimony could exacerbate this dynamic. But the existence of bullies shouldn’t dictate the rules that govern all of society. In the name of protecting the most vulnerable, it sets the bar too low for the mainstream, casting lovers as strangers and pregnancy as only a woman’s problem.”

But preglimony could deter a different kind of sex abuse, Motro says. Men who pressure partners into unwanted sex would be liable for the consequences. And men will also benefit, especially those who want to help but are turned away.

Unsurprisingly, this proposal has whipped up a huge debate in the NYT comment section – 264 comments and counting.  A typical response:

I completely disagree that men have any legal responsibility to support a pregnancy financially, until such time as a child is actually born. I am a supporter of choice, and the pro-choice view has traditionally been that a fetus is not a “child” or a legal person until it’s actually born.

Children have legal rights in the US, such as the right to financial support from both parents. Under our current laws, fetuses are not legal persons with any rights to financial support.

Granting additional rights to fetuses would just be ammunition for abortion opponents to argue that a fetus is a legal person. What the author is proposing would set a very dangerous precedent, and might be used to chip away at abortion access. I don’t think this is a road that most pro-choice people (like myself) want to go down.

It’s true that women often bear more financial costs than men during pregnancy. I’d certainly argue that it’s morally right for men to offer support to their pregnant partners; however, they should not be *legally required* to support a fetus financially. I would add that pregnant women are not legally required to support the pregnancy, either- they can obtain an abortion (at least up to a certain point), or pursue adoption.

And another:

I cannot help but point out a dichotomy between the rights and privileges of women versus those of men. When a man and a women engage in sex, they are both equally choosing to do so, and at that point they still have control over whether the woman has a chance of becoming pregnant. However, once conception occurs, our current law places all of the power into female hands as to what happens to the fetus. If a woman wants an abortion, fine, and if she chooses to give life to someone, that’s also fine. However, requiring men to pay assistance without having the same choice as women-namely, to end the pregnancy and avoid further struggles and financial strain-is unfair to men. If a women does not feel ready to raise a child, then all she need to do is have an abortion. But if a man does not feel ready to raise a child (albeit indirectly through child support or “preglimony”), he has no similar choice.

Once a man impregnates a woman, the man loses the ability to choose whether he will be financially responsible, although the woman keeps this ability for months to come. I don’t care what you call it, but from a male perspective, this seems decidedly skewed. I propose that if you obligate men to provide support before and after childbirth, at least give them the same choice that women have-ending the pregnancy if they do not want to go through with it.

To some extent, mothers-t0-be in Nova Scotia already have this right.  She can commence an application under the Maintenance and Custody Act for “lying-in expenses” before the child is born (though, in practice, this usually arises after the birth, in combination with an application for child support).  Expenses related to an abortion, however, are not included – and, given that the federal and provincial governments are terrified to even touch that issue, I doubt we’ll see it come up any time soon.

The latest professional athlete unable to make his child support payments is…[drum roll]…Warren Sapp:

Former NFL star Warren Sapp owes more than $6.7 million to creditors and back child support and alimony, according to a Chapter 7 bankruptcy filing in South Florida.

Sapp’s $6.45 million in assets includes 240 pairs of Jordan athletic shoes worth almost $6,500, a $2,250 watch and a lion skin rug worth $1,200. He also reported losing his 2002 Super Bowl ring with the Bucs and his 1991 national championship ring from the University of Miami.

[…]

Sapp’s average monthly income is $115,881, according to the filings, and includes $45,000 for a final contract payment with Showtime, $48,000 for an appearance with CCA Sports and $18,675 as an advance for a book deal. His contract with the NFL Network ends in August, the filings show, and it was unknown if the contract will be renewed.

Related: “Why athletes go broke: Too much spending, little liquidity.”

The legend of “Here, My Dear”

It’s one of the most enduring urban legends in music history: that a family court Judge ordered Marvin Gaye to pay his ex-wife all the royalties from his next album, so he deliberately recorded a stinker that no one would buy.

The truth, according to Snopes.com, is more complicated (and much more interesting):

By the time Marvin’s day of financial reckoning arrived, he had little cash and was well in arrears for a large amount of back taxes, so his attorney worked out a settlement under which Anna would be paid off from the royalties earned by Gaye’s next album. That next album turned out to be Here, My Dear, a harrowing “concept album of divorce” which chronicled the turmoil of Anna and Marvin’s relationship. The record’s symbolism was hardly subtle: The inner sleeve depicted a Monopoly-like board game emblazoned with the word JUDGMENT, across which a male hand passed a record to a female hand. On the man’s side of the board were only a piano and some recording equipment, while the female’s side of the board included money, a house, a Mercedes, and a diamond ring.

Although Marvin and Anna’s divorce settlement was indeed tied to the royalties generated by Here, My Dear, the common legend surrounding the record — that Marvin was ordered by a judge to hand over all his royalties from the album to Anna, and that Marvin was in a position to spitefully deprive Anna of those royalties by intentionally recording an album so bad it would not sell — is largely untrue. First off, the payment-through-royalties scheme was a settlement worked out through mutual agreement, not one devised and mandated by a judge. Second, rarely does a competent attorney accept (or a responsible judge impose) a dissolution of partnership settlement under which the amount of compensation received by one party is completely dependent upon a future endeavor of the other party, precisely because such a settlement could allow one side to cheat the other by deliberately underperforming. (A similar legend about producer Phil Spector is based on this premise.)

The circumstances in Marvin Gaye’s case were that he agreed to pay Anna a total of $600,000, the first $307,000 coming from the advance against royalties he was guaranteed for his next album, and the remaining $293,000 to be paid out of any royalties earned beyond the advance. But Anna would lose nothing if the record sold poorly, because the agreement specified that if the album failed to earn $293,000 within two years, Gaye was obligated to pay Anna the difference himself, and thus he had nothing to gain by tanking the sessions and purposely turning out substandard product. (In fact, he was in a position to lose a great deal by doing so, both because he was entitled to keep any royalties earned after the first $600,000, and because he stood to earn additional monies not payable to Anna through his publishing rights.)

[…]

Critical reaction to Here, My Dear was mixed. As Gaye biographer Steve Turner wrote, “Reviewers didn’t seem to know whether the double album was a huge joke at the expense of Anna Gaye and Motown, or a work of genius.” The record was not a hit, failing to sell well enough to even recoup the advance against royalties paid by Motown, so Marvin Gaye (who was by then officially bankrupt) was obligated to begin making monthly payments to Anna to cover the shortfall. However, Gaye was killed in 1984 still owing Anna the additional $293,000 due her, and monies earned by his estate since his death have gone to paying off the IRS rather than benefiting his ex-wives and children, thereby proving the maxim about life’s only two certainties.

Here, My Dear is No. 462 on Rolling Stone‘s list of the 500 greatest albums of all time.  The track listing includes “When Did You Stop Loving Me, When Did I Stop Loving You,” “Anger” and “You Can Leave, But It’s Going to Cost You.”

How to ensure you don’t get custody of your children

Lawyer Jacqueline Harounian makes a list at the Huffington Post.  If the children are older it might be too late to make up for not being the primary caregiver, but her instructions should be followed to the letter:

1. Not being the primary caretaker: In most households, one parent is most responsible for caring for the children’s basic needs — the so called primary caretaker. The parent who is the most involved in the children’s daily lives usually has the edge in a custody case. Therefore, if you are not putting in the time to do homework with your child, feeding, bathing, reading, taking him or her to the bus stop, you are at a disadvantage in a custody case. There is no better way to lose custody than to demonstrate to a judge that you are simply not involved in raising your child.

2. Not being active in your child’s schedule and activities: Do you know the names of your child’s teachers? Have you ever supervised your child on a play date or taken your child to the doctor? Do you regularly attend school conferences and school events? If the answer to these is no, then it is an indication that someone else (i.e. the other parent) is the primary caretaker, not you.

[…]

4. Leaving a paper trail that will hang you in court: Thanks to new technology, virtually every custody trial features the submission of evidence that can be used to portray the other parent in a very damaging light. Sometimes the evidence can make or break the custody case. The evidence can include text messages, photos and negative emails. Also potentially harmful are video and voice mail recordings (a la Alec Baldwin). If you are prone to sending impulsive emails and texts, ranting and raving at the other parent, third parties, or your own child, you are at risk of losing custody.

[…]

7. Failing to follow your attorney’s advice: Going through a divorce and/or custody proceeding is one of the most stressful experiences there is. Whether you are seeking primary custody of your children, joint decision making, or a customized parenting plan, your goal should be to survive the process while protecting your rights to your most valuable asset — your children. It is critical that you seek out the advice of an experienced family law attorney, who has handled contested custody trials (not the attorney who did the closing on your house, or the lawyer who charges the lowest retainer to do an uncontested divorce.) With an experienced advocate by your side, you can avoid making the mistakes outlined above, and you can be successful in your custody case.

“Surviving the Holidays After Divorce”

Marybeth Sampsel, a family lawyer in Kalispell, Montana, posted some excellent suggestions for getting through Christmas.  A sample:

Keep your anger, resentment, annoyance, disgust about your ex, his sports car, his/her new love and his family, to yourself. Remember, your kids are part of both of you and when you slam your child’s other parent, your child feels slammed as well.

Do not make your children responsible for your happiness. “Go have a good time with Dad in Jamaica, while I sit here miserable and all alone,” only breeds resentment and guilt in your child.

Don’t compete. If he can afford more than you – fine. Rather than resenting his/her father( or mother), appreciate that your child can experience things you can’t buy him/her. Don’t overspend to keep up. Make memories by doing fun things together – bake cookies, read a Christmas story, build a snowman. Money does not buy love.

The new girlfriend (or boyfriend) cannot and will not take your place.Children are unbelievably loyal. They can love many people, but the title and honor of parent is yours and will be only yours forever. So, relax. Deal with your jealousy without making your kid responsible for your feeling threatened. This is simply not the job of the child.

Good advice for the rest of the year, too.