A sperm donor who signs a document waiving his parental rights doesn’t have to pay child support, right?

Posted June 30, 2014 in Family Law by Michael Lonich.


June 30, 2014
A sperm donor who signs a document waiving his parental rights doesn’t have to pay child support, right?
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The answer is: not necessarily. Early in 2014, a Kansas man who donated sperm to a lesbian couple while also signing documents waiving his parental rights may have to pay child support anyhow. “I donated sperm and that was it for me,” he told CNN.

A judge ruled otherwise, saying that he must pay child support. This was because the lesbian couple conceived the child through an artificial insemination procedure that was carried out at home, which fails to conform to Kansas law. In Kansas, a licensed physician must be involved in an artificial insemination process.

After following up on an ad on Craigslist in March of 2009, sperm was donated and documents were signed waiving parental rights. Now that the child is four years old, Kansas law says he is the father and has to pay up.

The issue has come up in California as well. In 2012, a California appellate court held that the renowned bodybuilder Ronnie Coleman was not required to pay child support for triplets (one of whom tragically died) he fathered through artificial insemination after a court ordered him to pay over $4,000 per month.

In 2006, Coleman agreed to donate sperm at a California Sperm bank for a friend. He admitted having no interest in having parental duties but was willing to donate his sperm to a woman who allegedly had an on-again off-again sexual relationship with the bodybuilder in his past. Four years later he was slapped with a paternity suit forcing him to pay child support. After dutifully paying the child support for several years, an appellate court overturned the verdict.

California Family Code section 7613 says that the donor of semen provided to a licensed physician or licensed sperm bank for use in artificial insemination or in vitro fertilization 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.  The court found that because the facts of Coleman’s case fell squarely within the parameters of 7613, any agreements between them as to parenthood were void.

The language of Code section 7613 can also help women who want to withhold parental rights from men who have donated sperm. A previous California case, Steven S. v. Deborah D., is a prime example. There, a man attempted to establish paternity for a child he fathered through artificial insemination with a woman he was intimately involved with but to whom he was not married. The woman argued against paternity and the court agreed that 7613 guaranteed the right of women to bear children without fear of paternity claims.

Paternity cases can be dramatic and complicated. If you find yourself in a difficult child custody situation, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Our attorneys have decades of experience handling complex family law proceedings and offer a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

See California Family Code § 7613.

Source: http://www.cnn.com/2014/01/23/justice/kansas-sperm-donation/


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Sometimes Diamonds are Not Forever

Posted June 23, 2014 in Family Law by Julia Lemon.

California is a community property state, which means that all property acquired during marriage by either spouse is presumed to be community property.  Conversely, any property acquired by a spouse before marriage, by gift or inheritance during marriage, or after separation is presumed to be the acquiring spouse’s separate property. However, it is possible for a spouse to change the character of an asset by transmuting a community property asset into one spouse’s separate property, or vice versa.

Generally speaking, to qualify as a valid transmutation, there must be an express written declaration made, consented to, or joined in by the spouse whose interest in the property is adversely affected. These strict requirements were enacted to avoid “he said/she said” situations where one spouse was presenting “pillow talk” evidence.

For example, a couple buys a car during marriage with community funds for the wife to drive. When the couple later divorces, the wife claims the car is her separate property because she was the only one who drove it.  Unless there is a written agreement signed by her husband stating that the car is her separate property, her argument will fail because there was not a valid transmutation.

This rule makes sense for expensive items, like a car. However, spouses give gifts to each other all the time, and requiring a written agreement for every birthday gift or anniversary gift would be impractical and somewhat annoying.  Imagine, “Dear Wife, Happy Anniversary! I love you so much. Here is a necklace that I am gifting you as your separate property.” Fortunately, the Family Code does not require an express written declaration for gifts such as clothing, jewelry, or other tangible items of a personal nature used solely or principally by the spouse receiving the gift unless the gift is “substantial in value taking into account the circumstances of the marriage.” In other words, an expensive gift to one spouse may be considered community property absent a transmutation.

In Marriage of Steinberger, 91 Cal. App. 4th 1449 (2001), the husband purchased a diamond ring and gave it to his wife on their fifth wedding anniversary with a card congratulating her on her recent promotion. The ring was worth at least $14,000.  At divorce, the wife argued that the ring was her separate property because her husband gifted it to her on their anniversary. The husband, however, argued that he purchased the ring as an investment for them both to enjoy, and that it was not his intent to give her the ring as her separate property.  He testified that the most expensive gift he had given her during the marriage was a Christmas gift card that cost a couple hundred dollars. The trial court found that the ring was a gift to the wife since it was tangible personal property.

However, the California Court of Appeal reversed the trial court’s finding. The appellate court reasoned that the ring was of substantial value considering the circumstances of the marriage, so the exception to the written declaration requirement did not apply.  Since there was no express written declaration, there had not been a valid transmutation, and the ring was a community asset that should have been divided equally upon divorce. When it comes to substantial gifts in California, formality takes precedence over informality.

If you have any questions about how your personal property or your last anniversary gift may be classified, feel free to contact our experienced family law attorneys at Lonich Patton Erlich Policastri for further information.

Remember that each individual situation is unique. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

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