Question for Lawyers: Child Support Case

[Al Macy (aka TromboneAl)]

The first scene of my book will show the main character, an attorney, in his everyday life, working on an unusual child support case.

A woman's husband is infertile, and she and her husband turn to hubby's identical twin brother for a sperm donation.  The donor has a strong contract written up making sure that he would not be on the hook for child support.

Afterward, the couple and the donor become estranged. Then, hubby dies. Woman is destitute and asks the court to force the donor to aid in supporting the child.

No one is willing to settle.

I don't want to present that story as backstory. I would like to show the attorney presenting the full story in front of the judge.

Here's my question:

Could that happen, or would the judge have received the arguments in written form? Alternatively, I can have the new client present the case to the attorney, but I'd prefer to have the book open with courtroom action.

Thanks.

[bardsandsages]

Not a lawyer, but I have a friend who is a family court lawyer, who helped us navigate the family court when we were getting custody of our nephew. 

First thing's first, family law is a specific specialization in law. So unless your character is a FAMILY LAW attorney, he wouldn't be handling a case like this.

Most U.S. states have specific laws that would prevent this type of problem (Uniform Parentage Act).

However, a lot depends on how well-written the contract is.

https://www.cnn.com/2014/01/23/justice/kansas-sperm-donation/index.html

In the above case, the issue was that the donation was made outside the required legal channels. In the case, the couple performed the fertilization at home (now THERE is a story for you) instead of through a licensed physician.

In most states, anything involving children is going to be handled in FAMILY court, not civil court or criminal court. And family court is a different animal from anything else. For starters, there is no jury. The judge has 100% say in all rulings. And honestly, there probably won't be a lot of "courtroom action."

When going through all of the issues with our nephew, we spent most of our time waiting in the hallway instead of in the courtroom. The judge gets all the documentation ahead of time for review. There is no "prosecutor versus defendant" or opening and closing statements. You get called in. The judge asks his questions in relation to the documents he already reviewed, and he makes a decision.

[Al Macy (aka TromboneAl)]

Thanks. That's an interesting case.

I've learned that courts generally rule based on the best interests of the child. Good points about family law and family court.

[EB]

The first scene of my book will show the main character, an attorney, in his everyday life, working on an unusual child support case.

A woman's husband is infertile, and she and her husband turn to hubby's identical twin brother for a sperm donation.  The donor has a strong contract written up making sure that he would not be on the hook for child support.

Afterward, the couple and the donor become estranged. Then, hubby dies. Woman is destitute and asks the court to force the donor to aid in supporting the child.

No one is willing to settle.

I don't want to present that story as backstory. I would like to show the attorney presenting the full story in front of the judge.

Here's my question:

Could that happen, or would the judge have received the arguments in written form? Alternatively, I can have the new client present the case to the attorney, but I'd prefer to have the book open with courtroom action.

Thanks.

Like Julie said, the judge reviews the motions & supporting evidence prior to the hearing. By the time of the hearing, the judge has already made a decision. The way it worked with my cases (multiple family court cases), our lawyers were given the tentative ruling before we walked into the courtroom, and the lawyers were given an opportunity to briefly argue for or against it.

One point you might find useful is that child support is not something that the parties have the right to bargain with; the right to child support is the right of the child (at least in my state). Although parties frequently include such stipulations in their negotiations (my stellar ex refused to settle unless there was a clause stating neither party would seek child support; by the 4th court battle I was onto him and knew it had no bearing on if I wished to seek child support or not, so it was kinda funny he thought he was winning something by refusing to settle until I agreed to it and I let him keep thinking that, since he was getting poor advice from his lawyer), the right to child support remains the right of the child and supersedes any agreement by the parties.  Along those lines, child support will not be considered unless the party is legally the parent, meaning being on the birth certificate as the parent or proven by a paternity test. Until the sperm donor in your story was confirmed to be the father with a paternity test, it's not a question of child support, since the child is legally still the child of the deceased husband. Also, the event that the sperm donor was confirmed legally to be the father, there is still the evidence of the sperm donor contract that the judge would take into consideration. Depending on what state the characters live in, that evidence could be a big factor.

[Al Macy (aka TromboneAl)]

Thanks for the info.

I've decided to avoid the court appearance. The donor will come in to the attorney's office. Attorney will explain that the court is going to put the child's interests first. The question of paternity will come up (is the hubby totally infertile) as well as the issue of determining paternity with identical twins (it's possible).

In the end, the attorney will convince the angry donor to do the right thing.

[RPatton]

So I've stayed out this despite almost responding several times.

Most judges would never circumvent the law surrounding adoption. From the court's perspective, if a child is adopted, whether at birth or through surrogacy, genetics don't matter.

Most family judges would say no this in a heartbeat, in fact, they'd likely have the entire bench weighing in clerks working overtime to throw this one out from every possible angle. Like they wouldn't even read past the summary.

The issue isn't how the case would be handled. The issues is that it would never get in front of a judge to decide. The minute the judge ruled that the biological father hat any parental obligations would be the exact minute every adoption would become invalidated in the state because he just said that biology is more important than the basic tenet of the law surrounding adoption, which is the law considers there to be no difference between a child who shares DNA from one who doesn't.