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For Book: Child Support Trial in Family Court
Old 10-08-2018, 10:19 AM   #1
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For Book: Child Support Trial in Family Court

I hope I don't wear out my welcome with all these legal questions!

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.

Here's my question:


I don't want to present that story as backstory (which bores readers if presented in the first chapter). I would like to show the attorney presenting the full story in front of the judge.

Could that happen, or would the judge have received the arguments in written form?

Thanks.
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Old 10-08-2018, 11:33 AM   #2
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I don't know the specifics, but I believe the woman, likely through her attorney, would file a complaint with the court laying out the facts as she sees them. The paperwork would also involve a summons to the donor.

If the donor chooses not to settle, then in my state the two would probably be forced into non-binding arbitration by the court. If they could not reach an agreement through arbitration, then a court hearing would be set.

But my understanding of how court proceedings actually work is that the attorneys could make opening statements, then they could call witnesses who would be asked questions, and then at the end they would make their closing arguments.

I think if an attorney presented the story, it would probably be in opening statements and only if there were a jury. I think most judges would take a dim view of having an attorney waste their time with a back story that would become quite obvious through the questioning of the witnesses.

As an aside, in my state I would guess that the donor would lose the case badly. The welfare of the children is prioritized well above any consideration of the father. Basically if there is a father who can be identified (by DNA if needed) and he has any assets or income, then he's paying child support.
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Old 10-08-2018, 12:12 PM   #3
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Okay, thanks. I'd like to have witnesses, but I can't think of a good reason for a witness. Someone to show that the woman is indeed destitute? Show that the donor has sufficient funds?

Might the donor testify that the couple had assured him that they would never turn to him for support??

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Originally Posted by SecondCor521 View Post
As an aside, in my state I would guess that the donor would lose the case badly. The welfare of the children is prioritized well above any consideration of the father. Basically if there is a father who can be identified (by DNA if needed) and he has any assets or income, then he's paying child support.
Yes, that's exactly how I plan to have this case turn out.

I'm basing this case on a similar one described in the excellent book Keeping it Civil.
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Old 10-08-2018, 12:40 PM   #4
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Well in terms of witnesses, both the woman and the donor would likely be called to testify. The woman could testify to her own destitution. As far as the donor having sufficient funds, that might be handled pre-trial in what are called - IIRC - interrogatories. Basically these are lists of questions that each side can ask each other pre-trial in written form and the answers are effectively given under oath. Asking the donor for his income and copies of his tax returns for the previous several years would be pretty typical.

It's pretty unlikely because I would think it would be irrelevant and costly to do, but the woman might bring in the medical professional who determined that her husband was infertile.

If the woman had hypothetical conversations with others about what might happen if her husband died, or any other relevant conversations about child support or the contract that she and the donor signed, those people might be called to testify. However, if any of those people were her attorneys at the time (or probably ever), I believe they would be able to decline to answer questions on the basis of attorney-client privilege.

The donor could testify to whatever he chooses in the trial. He and his attorney would clearly discuss beforehand what to include and what to exclude. If there were some sort of contract between the donor and the woman, that would probably be brought in as an exhibit for the defense. He would be under oath of course, and if he lied would be subject to charges of perjury.
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Old 10-08-2018, 01:13 PM   #5
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Originally Posted by TromboneAl View Post
I hope I don't wear out my welcome with all these legal questions!

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.

Here's my question:


I don't want to present that story as backstory (which bores readers if presented in the first chapter). I would like to show the attorney presenting the full story in front of the judge.

Could that happen, or would the judge have received the arguments in written form?

Thanks.
Can the mother prove the paternity between identical twins even though one is supposedly infertile? Is that a plot point?
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Old 10-08-2018, 02:04 PM   #6
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^ I'm not T-Al, but not with standard DNA testing it seems. They look at a few small areas which differ from person to person, but typically not from twin to twin. A site I saw suggested you could sequence the entire genome of all three individuals (twin potential dads and child) at a cost of thousands of dollars and look for epigenetic changes (changes that occur due to random gene-copying errors, which vary between twins and are passed on to children.

In the book's case, the mother might have to find some way to finance the cost of such testing. It also might be a groundbreaking case.

Now I'm thinking it might be relevant to prove that the deceased twin was in fact infertile (which could be due to an illness such as the mumps).
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Old 10-08-2018, 02:07 PM   #7
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Can the mother prove the paternity between identical twins even though one is supposedly infertile? Is that a plot point?
Whoa, excellent point! I hadn't considered that. That could be a great plot point. Dueling experts as to whether the husband was totally infertile or not, testimony as to whether they had sex at the right time.

Thanks!

Yes, you're right, 2Cor:
A standard paternity test relies on the differences between the DNA of two potential dads. And identical twins have so few that these tests miss them.

This is why you need a more comprehensive test. Instead of the usual 15 or so markers that a standard test looks at, you need a test that looks at six billion or so markers. Only then do you have any chance of telling which identical twin is the real dad.

You can only get this much information from sequencing the entire set of DNA (or the genome) of each twin, the mother, and the child. Until a few years ago this would have been way too expensive. But nowadays, with the cost coming down, you could probably do something like this for tens of thousands of dollars.
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Old 10-08-2018, 04:51 PM   #8
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Additional plot twist ideas:

Can they get the DNA of the deceased husband? Maybe he was cremated or his body lost at sea or in the wilderness, thus destroying their ability to do so.

They can't get the deceased husband's DNA, but they can prove by negative inference because the donor's DNA and the child's DNA have enough mismatches that it must have been the deceased husband's kid. Maybe too much science and statistics.
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Old 10-08-2018, 06:55 PM   #9
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I like it.

From my Googling, I'm inferring they'd need to get samples from both twins. There will be mutations that distinguish the twins, and with samples from both twins, they could see which ones were passed down.



But with a sample from only one twin, any differences that are seen could be the result in mutations in the child.

Donor will argue that it may not be his kid.

I think I'll give the husband a very low sperm count, possibly due to mumps or a bad hernia repair.

This is why authors know a little bit about a lot of things.
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Old 10-08-2018, 07:08 PM   #10
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From my point of view, a contract is a contract. Otherwise this would open up a huge can of worms with any anonymous sperm donor. Granted, they know who the donor is in this case, but donors can be traced.
This would put huge deterrent to sperm donations, if the donor was liable for child support at some future date.
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Old 10-08-2018, 11:09 PM   #11
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If her ex is listed on the birth certificate as the father, then she would be entitled to social security for the child. And if the child is under 16, she will also collect $ for herself. I was in this situation about 27 years ago. My husband died and we had a 14 year old son. I was collecting about $1800/month back then. It was cut in half when my son turned 16, ended when he turned 18.
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Old 10-09-2018, 08:56 AM   #12
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If her ex is listed on the birth certificate as the father, then she would be entitled to social security for the child. And if the child is under 16, she will also collect $ for herself. I was in this situation about 27 years ago. My husband died and we had a 14 year old son. I was collecting about $1800/month back then. It was cut in half when my son turned 16, ended when he turned 18.
Oof. Good point. I'll have to figure out a way to deal with that. Undocumented alien? Didn't pay in to SS?

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From my point of view, a contract is a contract. Otherwise this would open up a huge can of worms with any anonymous sperm donor. Granted, they know who the donor is in this case, but donors can be traced.
This would put huge deterrent to sperm donations, if the donor was liable for child support at some future date.
That will be the position of the donor. Here's a narrow ruling from the Pennsylvania supreme court (from Keeping it Civil):
A woman, the court said, “who cannot conceive through intercourse” ... should be able “to seek sperm from a man she knows and admires.” In order for those men whom women “know and admire” to be willing to donate sperm without the protective cloak of anonymity afforded by a sperm bank, the court acknowledged that a valid, enforceable child support waiver is a necessary part of the deal. They reversed the lower courts and ruled that the contract was enforceable. McKiernan was off the hook for child support.
BTW, here's something interesting I learned from that book:
People at the dinner table were astonished to learn that birth certificates are altered in adoptions. I share their astonishment. I was shocked by this practice the first time I handled an adoption. It seems so odd and so completely unlegalistic: the intentional creation, by judicial decree, of a false document. It is not called an “adoption certificate”; it is called a “birth certificate,” and it’s a back-dated, official “birth” record, which contains the names of two parents, at least one of whom was not in fact the parent at the time of the child’s birth.

Who are we kidding? What interests do we serve by issuing these phony documents? You can be prosecuted for using a fake ID at a bar when you’re nineteen, but somehow courts can wipe out one identity and replace it with a new one with the stroke of a pen.
--------------

The first scene is congealing coming together in my brain.

I'll start with something like:

Defense lawyers are said to see bad people at their best, while family lawyers see good people at their worst. In the case of the man who walked into my office on Dec 3, 2018, however, I was dealing with a bad person at his worst.

-----------

The guy who comes in will be the donor. He'll explain the situation. GG will try to convince him to do the right thing, with a lot of resistance. GG takes the case, and is obligated to follow the client's wishes* but still tries to persuade him to help. They bring up the DNA and infertility issues, etc.

In a later scene GG works together with the plaintiff's attorney, and eventually convinces the mean donor guy to help support the child.


*Is that true?
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Old 10-09-2018, 07:12 PM   #13
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I don't like the premise that the poor guy, who was only trying to help to begin with, is "mean" or "bad" for not wanting to be saddled for life with a huge expense he was specifically promised he wouldn't be liable for.

Now, if he's a monster for some other reason, so be it. But not because he wants someone to fulfill their promise, or (and here we get back to the subject of FIRE) doesn't want to have to put his life plan on hold during his peak earning years.

Remember, these child support payments are often NOT insignificant.
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Old 10-09-2018, 08:21 PM   #14
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He will be a bad guy in other ways, but I will bring that up. It's a good point, and I'll make him 3D. I will probably make him rich.

I'm thinking I'll deal with the SS issue by having the dead hubbie leave wife with crippling debt.
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Old 10-10-2018, 02:04 PM   #15
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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.
I talked to a retired family lawyer about this.
Given that above situation, the lawyer felt that the donor would not be on the hook for support. Upon my asking, it turns out that it is possible that the method of impregnation may make a difference. If she became pregnant via the test-tube way using the brother's sperm and used a clinic, the brother donor would not be on the hook. However, if they were boffing their brains out to get the woman pregnant--even with strong contracts written up, the donor might be on the hook.

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Old 10-10-2018, 02:27 PM   #16
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I talked to a retired family lawyer about this.
Given that above situation, the lawyer felt that the donor would not be on the hook for support. Upon my asking, it turns out that it is possible that the method of impregnation may make a difference. If she became pregnant via the test-tube way using the brother's sperm and used a clinic, the brother donor would not be on the hook. However, if they were boffing their brains out to get the woman pregnant--even with strong contracts written up, the donor might be on the hook.

Thanks for looking into that for me! Hmm.

Also: would this all come about via a suit by the wife? That is, she would sue the donor for child support?
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Old 10-10-2018, 02:28 PM   #17
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I know someone who was infertile in that he had no vas deferens (google it haha). However, sperm could be extracted by the docs with a syringe and transferred to the woman’s uterus. Your plaintiff could admit near the end of the trial that they used this method as well as asking identical twin for sperm, to muddy the waters—the twin could win regardless of the contract if paternity could not be proven (I would of course have twin and widow fall in love during the trial and him adopt the kid anyway but that’s the chick lit writer in me).
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Old 10-10-2018, 02:47 PM   #18
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I know someone who was infertile in that he had no vas deferens (google it haha).
Is there a reason you want haha to google "no vas deferens"?
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Old 10-10-2018, 02:54 PM   #19
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Thanks for looking into that for me! Hmm.

Also: would this all come about via a suit by the wife? That is, she would sue the donor for child support?
After asking the lawyer about the two methods of impregnation he is no longer talking to me. However, I would imagine that suing the donor would be the way to go. I think that in Calif. if the plaintiff in cases like this can't afford an attorney that the family court or some entity in the court system will assign an attorney to the plaintiff with no charge.
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Old 10-10-2018, 02:57 PM   #20
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Is there a reason you want haha to google "no vas deferens"?
Because I wanted to see who would run with my set up?
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