Child support remains a significant area of interest for family law practitioners in the domestic and international arenas, and recent developments have highlighted the need for a focus on this topic. In this column, we report on two interesting cases from Kansas as well as the United States’ adoption of The Hague Convention on the International Recovery of Child Support.
Almost all media outlets have reported the story from Kansas in which a sperm donor is now being asked to support the child conceived as a result of the donation. In this case the father answered an ad on Craigslist asking for sperm donation for a lesbian couple who wished to have a child. He and his wife met with the women and decided to donate the sperm. Rather than use a medical practitioner, the women used the sperm to inseminate the mother at home. This is becoming an increasingly popular practice primarily for financial reasons. The women and the sperm donor entered into a written agreement that he would not be financially responsible for the child.
Sometime after the child was born, the women separated, and the mother was forced to accept benefits from the state. As is usually the case, the state required the mother to provide the identity of the father and then sought reimbursement from him for the money provided for the child. The father defended on the basis of the contract entered into between him and the child’s mother. The state, however, has taken the position that a contract between parents does not override the state-mandated duty to support.
In Kansas, as in almost all states, a man donating sperm used in a physician-assisted insemination is not held to be financially responsible for the child. The law is modeled on a previous version of the Uniform Parentage Act. The Uniform Act has since been amended to eliminate the requirement of a physician’s assistance; however, the current Kansas law remains modeled on the previous version of the act. The reason that states give most frequently for requiring physician-assisted insemination before excusing a biological father from a duty of support is a concern that actual biological fathers will attempt to evade support obligations by asserting that the child was born as a result of artificial insemination as opposed to natural methods of conception. The father who donated sperm in this case has requested a hearing, which was originally scheduled for January but has now been rescheduled to April.
It is not surprising that Kansas is pursuing the donor in this case. With state budgets increasingly strapped, states are stepping up efforts to pursue every avenue possible to seek reimbursement for funds expended on behalf of a child. They are doing so also in response to a decline in the number of children receiving support from their parents. According to the U.S. Census Bureau, the number of custodial parents receiving child-support payments due under court orders declined from 76 percent in 2007 to 70 percent in 2009.
A DIFFERENT APPROACH
What makes the Kansas case particularly interesting is a previous case involving a known sperm donor decided by the Kansas Supreme Court in 2007 that also generated national attention. In In re KMH, 169 P.3d 1025 (Kan. 2007), the mother who wished to bear a child requested and received a sperm donation from a friend. Again the insemination was done privately and not through a physician. The insemination resulted in the birth of twins. After the birth, the sperm donor sought to establish paternity and a corresponding right to have contact with the children.
Here, however, Kansas seems to have taken a different approach when it comes to paternal rights as opposed to responsibilities. The Kansas Supreme Court upheld a state statute that provided that a known sperm donor only has rights regarding the child of the unmarried mother if there was a written agreement between them concerning these rights. It did so over a vigorous dissent, which argued that the law violated the father’s fundamental right to parent his children without due process of law.
Given the increase in the number of children who are born through artificial insemination by known sperm donors, these cases are likely to continue to generate litigation. Family law practitioners are cautioned to advise clients of the dangers of entering into informal arrangements that may have lasting consequences. A written agreement between the parents is advisable with the caveat that some jurisdictions will not honor such an agreement.
THE HAGUE CONVENTION
On an international note, the United States will soon begin implementing the Hague Convention on the International Recovery of Child Support. The convention was initially adopted in 2007 after four years of deliberation. The treaty was ratified by the Senate in 2010 but implementing legislation was necessary. Several months ago, the House of Representatives approved this legislation.
The convention contains procedures for processing international child-support cases that are simplified and efficient for U.S. citizens seeking support in other countries. The provisions of the convention are modeled after the Uniform Interstate Family Support Act (UIFSA), which has been adopted by all states as a requirement for participation in federally subsidized welfare programs.
Although the United States has historically enforced child-support obligations incurred in foreign countries, many foreign countries have not been as accommodating when U.S. citizens attempted to enforce child-support orders abroad. Adoption of the convention in the United States will allow more children residing here to obtain support from their parents who reside in the foreign countries that have also adopted the convention.
Lawyers in this country should find it of significant benefit in enforcing U.S. child-support orders in convention countries. Each country that ratifies the convention will also be required to have the central authority in that country receive and transmit the applications for services. This will significantly streamline the process of enforcement.
What makes this treaty unusual is that the subject matter is a matter of state law and not federal law in the United States. The treaty cannot be self-executing because federal law does not cover child support in this country. Medellin v. Texas, 552 U.S. 491 (2008). What will need to happen is the enactment of legislation at the state level to implement the convention. UIFSA was amended in 2008 to add Article 7, which applies to child-support orders from countries that are parties to the convention. See www.uniformlaws.org/shared/docs/interstate family support/uifsa_final_08.pdf. Because many states have not adopted the 2008 version of UIFSA, it is anticipated that Congress will require all states to adopt this version which implements the treaty, in order to continue receiving federal welfare funds.
CIVIL LAW COUNTRIES
One of the most significant obstacles to the enforcement of child support internationally relates to issues of jurisdiction that are significantly different in civil law countries than they are in the United States. Under most civil law regimes the mere presence of the child or the person receiving support would be sufficient to establish a child-support order against a debtor who had no personal ties to the forum.
Such a basis of jurisdiction would violate the U.S. Constitution. In order to resolve this issue, the convention adopts a rule of indirect jurisdiction that requires a tribunal to register and enforce the order of another tribunal only if certain basic jurisdictional prerequisites have been satisfied.
This provision allows a court in the United States having jurisdiction over the noncustodial parent to establish a new order in circumstances where U.S. jurisdictional requirements were not met in the country issuing the order that is sought to be enforced. The convention will have no effect on interstate or interstate support cases in the states, nor will it affect our substantive child-support laws. The convention is primarily concerned with efficient procedures for processing international cases and hopefully will be successful at doing so.
Mary Kay Kisthardt is a professor at the University of Missouri-Kansas City School of Law. She can be reached at KisthardtM@umkc.edu. Barbara Handschu is special counsel to Dobrish Michaels Gross in New York. She can be reached at Handschu@dobrishlaw.com.