Family Law Term Paper

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Mr. Smith deserves custody of Samantha Smith

In the hypothetical custodial and child support-related case of Smith v. Smith, Mr. Smith is suing for child support payments for Samantha Smith, a child whom is not biologically the natural child of either Mr. Or Mrs. Smith. However, as a result of in vitro parentage and surrogate pregnancy, Samantha became the child of both parents, to be raised as if she were biologically their child, according to an agreement both of them signed. During the first year of her life Samantha lived with both Mr. And Mrs. Smith. During the second two years of Samantha Smith's life she lived solely with Mr. Smith. These two years were marked by at first frequent and then sporadic visitation by Mrs. Smith.

Of course, the issue of child custody is a difficult one even in cases where reproductive technology is not involved. But in the case of the Smiths, it seems like the best standard to determine both custody and the grounds for support, regardless of the convoluted way in which the child was conceived, applying the best interests standard is the clearest way to determine both custody and support payments. Because the biological and surrogate parents of Samantha stake no claim towards her, nor does her adoptive mother, clearly Mr. Smith should be awarded custody of Samantha.

When applying the 'best interests standard' the question in every custodial decision is the question as to which parent can function best caring for the child, as opposed to the gender and tender years presumption or ex-parte devine (Supreme Court of Alabama, 1981, as discussed in Areen 574-581) which presumes the mother to be the best primary caretakers simply because of their gender. Clearly, Mrs. Smith, nor the surrogate who forsook her legal claim to the girl at birth are not the best potential parents of the child, in contrast to Samantha's adoptive father. Mrs. Smith has supported the girl, financially and emotionally, for the past three years. Furthermore, in making presumption regarding who is the best primary caretaker, it would seem that the values as upheld in the cases of Garskca v. McCoy (Supreme Court of Appeals of W. Virginia, 1981, Areen 695-701) to be most suitable in that, unlike the later case of Young v. Hector (Court of Appeals in Florida, 1998, Areen 701-705).

Although the economic and social fitness of a parent is not based solely in who has the higher income, but whose lifestyle and economic and emotional stability best facilitates a normal lifestyle for the child, unlike the surrogate mother, Mr. Smith can provide an economic and emotional situation of stability for Samantha. Also, unlike his wife, Mr. Smith can provide an emotionally stable household as well. Despite Mrs. Smith's claim that the surrogate mother is the 'real mother' of Samantha, the surrogate's evident financial straits in deciding to become a surrogate, the surrogate's willingness to surrender custody, combined with the financially stable occupation of Mr. Smith that still renders him able to care for the child, all indicate his willingness and ability to assume primary custody is in the best interest of the child.

Given that Mr. Smith's custody is best for Samantha, the next problem the court must address, however, is why he is deserving of child support. In it is interesting to note, as outlined under the five guiding principles of bestowing alimony or support during a divorce, Mr. Smith has made a clear contribution to his child's welfare by electing to take on work only as a substitute teacher, so he may care for Samantha as much as possible, rather than leave her care in the hands of strangers. Mr. Smith's lower income in relation to Mrs. Smith's demonstrates his need for support, as well as his new status as the primary economic and now emotional caretaker for the child, given Mrs. Smith's voluntary, decreased visitation. Although no fault between the parents is alleged regarding their own performance as spouses, nor no rehabilitation for any past wrongs, in keeping with the best interests of the child, satisfying Samantha's financial and physical needs should be paramount in deciding who receives support for child care. If Mr. Smith receives financial support he will be able to achieve a maximum status of financial stability without sacrificing quality of care. (Areen, 761)

The only reason that the question of who was at fault for a divorce became such a factor in allocating alimony (and occasionally, child support) is because of such guiding laws' history before 1974. Alimony was usually, according gender role stereotyping and female's greater financial needs upon assuming the role of primary childcare, given to women. However, this is not applicable in the Smith's mutual instance. Subsequent acts such as the 1984 Child Support Enforcement Act and the 1988 Family Support Act mad such laws more uniform for men and women. Acts such as Interstate Family Support Act of 1992 have also made it easier for restitution to be sought for delinquent child support payees, although this statute is often referred to colloquially as applicable to 'deadbeat dads,' showing that the Smith's case is relatively strikingly, legally speaking.

Still, child support modification cases have increasingly stressed appropriateness of situation, in lieu of traditional family structures, such as Graham v. Graham (Court of Appeals of the District of Columbia, 1991, Areen 822-825). This case stressed how cohabitation and remarriage should not necessarily be a factor in deciding fitness, unless these issues adversely affect the life of the child, as well as the fact that states are taking a more active role in ensuring that individuals continue to take an active financial and personal life in the lives of their child, even subsequent to a divorce. This goes even so far as to suspend driver's licenses for individuals who shirk appropriate court-ordered support payments, as in State Department of Revenue v. Beans (Supreme Court of Alaska, 1998, Areen 853-856).

Simply because Mrs. Smith is female, given that she has acted that Samantha was her child up until this point, is no reason to legally absolve her of her role as a parent. It is unfortunate that the situation, emotionally speaking, has reached the point that it has, however, for Samantha's sake. Arbitration in this instance probably would have been the best way to mediate the conflicts this situation, given its peculiarity, although mediation, and conciliation earlier may have stemmed the ire between the two spouses. Still, all should be done to ensure that the three-year-old girl does not have to testify in court, especially given that the woman she thinks of as her mother is now making the claim that the girl was never her child, nor that the girl's primary caretaker is her father.

Arbitration, given the hostility between the two parents, might be the best recourse. Chief of Justice Warren Burger in his "Annual Report on the State of the Judiciary: 1982" (Areen, 900-903) is strongly in favor of arbitration between warring parents, in contrast to Jay Folberg, whom advocates divorce mediations as the most workable alternative to court battles. This may be feasible if divorce is not yet officially decided upon as an option. However given that the parties in question are clearly sundering and the main question is who is the best custodial parent and if Mr. Smith's custody and child support are defensible under the law, arbitration before court proceedings seems to be the most likely option. (Areen 909)

Of course, the main problems in this case are the definitions of families and the problems posed by new reproductive techniques that challenge the idea of what is a family although, given the circumstances -- is the surrogate, the father, the mother, or some combination thereof the parents of Samantha? (Areen 931-959). Because the parents did not biologically 'begin' Samantha from a genetic standpoint, Mrs. Smith claims she has no financial reason to support her. However, in the case of Jhordan C. v. Mary K. (Supreme Court of California, 1986, (Areen (1059-1065), surrogacy is no guarantee of parental rights.

For sperm donors, one relevant statute states that the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived.

It is true that in this case, Jhordan C. was given rights to see his child, but only because the act was not that of a sperm donation, but an informal agreement. Even the California Court of Appeals noted that the statute's language regarding the decision originated from the Uniform Parentage Act, which stated that the semen donor was not the natural father of the child in the insemination of a 'married' woman, and Mrs. Smith was clearly married at the time of Samantha's conception and the semen was 'provided to a licensed physician for use in artificial insemination,' making the sperm donor to not become the natural father of…

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Works Cited

Areen, Judith. (1999) Family Law: Cases and Materials. Fourth Edition. New York: Foundation Press.

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