Archives for Family Law

WAIVER OF RETIREMENT ACCOUNTS: ENFORCEMENT OF POST NUPTIAL AGREEMENT: DC DIVORCE

The Court of Appeals in Oshinaike v. Oshinaike, addressed spousal claim on a retirement account where there existed already a post martial agreement on that very subject. Specifically, on appeal Marcia Oshinaike sought review of the trial court’s ruling that her former husband (Solomon Oshinaike), did not expressly waive his rights with respect to her foreign service retirement benefits and thus was entitled to portions of that retirement benefit. Oshinaikes were married in 1989. After Ms. Oshinaike joined the State Department as a Foreign Service officer parties executed a post marital agreement expressly stating that: Mr. Oshinaike waives all rights
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CHILD CUSTODY ORDER CHANGE DURING CIVIL CONTEMPT HEARING: RECENT COURT OF APPEALS DECISION

The Court of Appeals in Cheek v. Edwards decided on September 5, 2019, reversed and remanded a change of custody order in the midst of a civil contempt hearing. After holding a custody hearing, the trial court had decided and ordered shared physical and legal custody among parents even after considering the allegation of domestic violence.  But before issuance of a final order, the mother-Edwards filed a civil contempt motion alleging that the father had violated the order against not assault, stalking and harassment in being arrested for domestic violence and assault against her. The trial court while addressing the
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RECOVERING ATTORNEY FEES IN FAMILY CASES: RECENT COURT OF APPEALS DECISION

The Court of Appeals in Khawam v. Wolfe decided on August 22, 2019, delineated all legal theories available to recover attorney’s fees in a child custody and by extension in relating family matters. Here, Wolfe moved to recover attorney’s fees ($700K) against Khawam for a rather protracted and vexatious litigation and under three theories: Common law theory of “necessaries” which permits an award of attorney’s fees in a child-custody case if the court finds that engaging an attorney was necessary to protect the interests of the child; The “bad faith” exception which permits recovering fees against a party who has
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ADMISSIBILITY OF AN OUT OF COURT STATEMENT IN TRIAL: HEARSAY EXCEPTIONS

In both criminal trials as well as the civil cases often the outcome hinges on a witness statement that is hearsay (out of court statement) but admissible under one of the exceptions. The Court of Appeals in Sims v. U.S., decided on August 15, 2019, expanded and explained in details the admissibility of the “present sense impression” exception to the hearsay rule. Sims was convicted of murder at trial and a significant corroborating evidence was introduced through the present sense impression statement/exception to the hearsay rule. One of witnesses at trial testified that he arrived to the scene shortly after
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LEGAL ELEMENTS FOR CHILD’S NAME CHANGE PETITION AFTER DC DIVORCE

The Court of Appeals in Melbourne v. Taylor[1], analyzed and opined on the legal standard for a parent to change the child’s name after separation and divorce. The general legal standard for a name change petition by either parents after separation or divorce is the best interests of the child criteria as listed in defined in the legal custody statute § 16-831: The child’s need for continuity of care and caretakers, and for timely integration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages; The
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APPELLATE PROCESS IN THE FAMILY CASES

In most family cases, the litigation does not and should not end by the Associate Judge or the Magistrate Judge’s final ruling. As these cases are not jury demandable, often times the assigned Judge may issue multiple rulings, including final decree of divorce, division of property, alimony and child support as well as the physical and legal custody of the children.  Significant and life altering decisions and all by a single Judge who may be subjectively objective. And although most family judges are experienced, fair and equitable in dispensing decisions well supported in fact and law – there are cases
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DC CHILD SUPPORT & STATUTE OF LIMITATION

The Court of Appeals in Massey v. Massey, decided on June 20, 2019, highlighted statute of limitation on child support payments. Massey who owed over several thousand dollars of arrears in child support had petitioned the court for his support payment to be erased relying on the “Debt Statute of Limitations”. The Court of Appeal affirming the lower court decision ruled that essentially the debt of child support in arrears would be erased after the twelve year statutory period from the last payments due. Specifically, support payments constitute judgment debts as each installment becomes due and payable.  As such, the
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ESTABLISHING PATERNITY: PRESUMPTIONS AND CHALLENGES TO PATERNITY

In order to either file or move to establish child custody or child support, first parentage has to be established. There are several ways in which the court can make a parentage determination as outlined below. Presumption of Paternity In the District, father-child paternity is presumptive under the following circumstances: If the putative father and the child’s mother are married, or in a domestic partnership either at the time of conception or birth, or between conception and birth, and the child is born during the marriage or domestic partnership. If prior to the birth of the child, the putative father
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COMMON LAW MARRIAGE: LEGAL ELEMENTS: SAME SEX COUPLES: DC DIVORCE LAWYER

The Court of Appeals in Gill v. Nostrand, decided on April 25, 2019, defined and analyzed the legal elements for common law marriage pertaining to same sex couples. Here Gill moved for legal separation against Nostrand requesting alimony and division of property shortly after Nostrand legally married another partner. The trial court in short determined that the relationship did not meet the requisite requirements of common law marriage, the Court of Appeals with further detailed analysis affirmed. In its ruling, the Court held that a party in a same-sex relationship must be given the opportunity to prove a common law
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CONSTITUTIONAL CLAIMS ARISING OUT OF REMOVAL OF CHILDREN DUE TO NEGLECT

The DC Court of Appeals in J.C v. D.C., reversed and remanded some of the constitutional claims raised by the biological parents after the removal of their eight months old twins due to the allegations of abuse and neglect. Factually, the parents had taken one of the babies to the Children’s hospital due to excessive vomiting, retching, and general irritability.  At the hospital, the treating physician had diagnosed the child as suffering from “shaken baby syndrome” and the contacted Child Protection Services (“CPS”).  CPS thus removed also the twin baby from the home in the middle of the night and
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