An embryo custody case that even Solomon couldn’t resolve

An embryo custody case that even Solomon couldn't resolve

Gary L. Schlesinger
Illinois Fellow
American Academy of Matrimonial Lawyers
October 2022

Our society strongly encourages the rights of both parents in raising a child. But what happens when that child is only a gleam in a lab technician's eye?

This question rests at the center of the Second District Illinois Appellate Court decision In Re the Marriage of Eneya Katsap and Alexander Katsap, which was decided in August 2022. It's the first Illinois case in several years to deal with embryos, and it cries out for clarification from the Illinois legislature.

The Katsaps were a married couple living in Israel, where they created embryos using in vitro fertilization in 2013. When they subsequently moved to upstate New York, they placed the frozen embryos in storage at the New England Fertility Institute in Connecticut. In 2015, they filed a contract with the institute stating that, if the parents were to divorce, Eneya would gain custody of the embryos.

The Katsaps became parents to a child using one of the embryos and a surrogate birth mother. Eneya—who is medically unable to bring a child to term— had planned to have another child via surrogacy. But in April 2020, Eneya took their child and moved to Naperville, where her parents lived, and then to Buffalo Grove; she did not inform Alexander of either location.

The couple soon separated and Eneya claimed the remaining embryos under the contract filed with the fertility institute. But Alexander denied signing that contract and testified that in the event of separation or divorce, they actually had agreed to donate the embryos. And in what had become an acrimonious dispute, he definitely did not want them going to his ex-wife.

The original trial court in DuPage County sided with Alexander, granting him "exclusive possession and control of the embryos." The Second District Appellate Court said, "Not so fast," and cited precedents for three methods in which courts have dealt with cases involving frozen embryos:

The court simply can enforce the original contract filed with the fertility institute, in this case giving the embryos to Eneya.
The parties can mutually consent to scrap the earlier contract and maintain the status quo, in this case leaving the embryos in storage.
The court, in the absence of an enforceable agreement, can use a balancing approach to weigh the separate parties' interest "in seeking or avoiding procreation."

In August 2022, the Appellate Court chose the third option, and applied a test to balance the rights and privileges of the former spouses. Relying on the only Illinois precedent for such a test, the Court gave the embryos to Eneya, deciding that her "interest in...procreation." This decision was colored by the fact that she cannot have children on her own (or even produce more eggs) and that the embryos represent her only chance at more offspring. In addition, these facts outweigh Alexander's interest in removing the embryos from her possession.

This raises a further question.

If the mother implants the embryo, is the sperm donor (Alexander) responsible for child support and other duties? Two Illinois statutes come into play here. The Appellate Court cited one of them, the Gestational Surrogacy Act, in concluding that the husband is not an “intended parent,” and thus not liable for support. As a gamete donor, however, he is indeed a parent under the Parentage Act, and thus liable for support—unless he reaches an agreement with Eneya relieving him of that responsibility.

Given the bitterness between these parties, such a compromise seems unlikely. And should Eneya herself decide to donate the embryos—and neglect to inform Alexander—how would he even learn if one of their children has been born?

A divorce already contains enough emotional issues; the presence of frozen embryos complicates things exponentially. The legislature must address the issues raised in this case via the Illinois Marriage and Dissolution of Marriage Act (IMDMA), as well as the Parentage and Surrogacy Acts. These are sturdy pieces of state law, in part because they remain flexible to amendment by the legislature. If nothing else, the details of the contract originally filed in Connecticut provide a cautionary tale for attorneys in Illinois and across the nation.

The Katsap case, now on its way to the Illinois Supreme Court, underscores the need for further clarification.

(The author has no involvement with the case described here.)

Gary Schlesinger

Reach him at glschles@aol.com and 847-680-4970.

In international family law, the Hague Convention helps navigate the course

Staci Balbirer
Illinois Fellow
American Academy of Matrimonial Lawyers
September 2022

I practice family law in Illinois. So why would a potential client call me from Ecuador?

He phoned because his wife had fled from Quito with their two children in the middle of the night and, after paying off guards at the Ecuador-Colombia border, smuggled them into Chicago.

It's hardly a situation that family law practitioners handle on a regular basis. But when we do receive a frantic international call, we need to know the right questions to ask when advising a prospective client, starting with: Is this a Hague Convention¹ case?

The Hague Convention ensures the prompt return of a child who has been wrongfully removed from a contracting state and dictates that rights of custody be exercised between all participating nations. It is part of the Hague Conference on Private International Law (HCCH). As of 2022, the HCCH counted 90 countries among its signees, as well as another 65 "connected parties" that operate in agreement with HCCH practices.

To determine if the Hague Convention comes into play, ask: Was the child removed from one of the Hague Convention's signatory countries?

If not, the conversation ends there; the Hague Convention would not apply. In this case, Ecuador had signed the Convention.

Then, continue with:

Were the children wrongfully removed? To determine that, we need to know what constitutes a wrongful removal under the Convention.²

Ecuadorian law requires either the consent of both parents or a Court order before the removal of minor children. The children for my case had both Ecuadorian passports—held by their father, an Ecuadorian citizen—and U.S. passports—;held by their mother, a U.S. citizen now living in Ecuador.

But because the mother had failed to get her children's U.S. passports stamped when they crossed the border from Ecuador into Colombia, we could argue that the children's mother had indeed wrongfully removed them.

We also provided the court with text messages showing that when the father asked to speak with their children, the mother refused, falsely claiming they were sick. When the father finally went to check on his two children, they and his wife were gone.

Having determined that the Hague Convention applies, we can drill down further: Does the potential client have visitation rights or actual custodial rights?³ And are the children "habitual residents" of the nations from which they were taken?⁴

So far, so good. The father indeed had custody rights under the Convention; and the children only had resided in Ecuador, confirmed by their school attendance records and doctors' appointments there. They unquestionably were "habitual residents" of Ecuador; and both were under 16, a further requirement for the Hague Convention to come into play.

One final consideration remained: How long have the wrongfully removed children resided in Illinois?

In this case, we filed for the children's return within three months of their removal from Ecuado—well within the one-year limit set by the Convention.⁵

In the U.S., Hague Convention cases can be filed in state or federal court; the choice usually comes down to docket traffic and deadlines. With all our ducks in a row, we made the decision to file in federal court, which redirected us to Illinois state court. Faced with lengthy delays there and in the best interests of the children, all parties chose to resolve the case out of court.

The father chose to move to the U.S. and enjoys co-parenting time with his kids. His decision was based on his belief that the children needed to have both parents nearby—complicated by the fact his wife's actions in wrongfully removing the children could subject her to criminal charges, and would deter her from ever travelling to Ecuador. Although he had a strong case to bring the children back to Ecuador, the father instead opted to serve the best interests of his offspring.

While this case did not go to trial, it provides a primer on how the Hague Convention works. In Illinois, family law practitioners' clients can extend significantly beyond the state line—or even the U.S. borders. As it turns out, future clients can live anywhere, even internationally. But you do have to know to ask the right questions.

For more information about Hague Convention provisions
¹ In 1980, the HCCH enacted the Hague Convention on the Civil Aspects of International Child Abduction, commonly known as the Hague Convention.
² Article 3 of the Hague Convention states that wrongful removal (or retention) of a child occurs when (a) it constitutes a breach of custody rights as recognized by the country where the child resided; and (b) when the applicant—the father, in this case—was actually exercising those rights at the time the child was removed (or would have exercised those rights "but for the removal or retention").
³ The Convention notes that "rights of access" include taking children from their home for a limited period of time (visitation rights); and "rights of custody" relate to an adult's care of the children—and particularly the right to determine their residence. In this case, the father was exercising his custody rights; if not, he would have no claim to bring his children home. (The definition of "rights of custody" varies among nations, making it essential to dive into the specific laws involved.)
⁴ The Convention does not define this term, but the U.S. Supreme Court has held that a child's habitual residence depends on a full understanding of the specific circumstances, as opposed to any actual agreement between parents on where to raise their child.
⁵ Article 12 of the Convention specifies that cases be filed within one year of the wrongful removal (although the article makes exceptions designed to prevent the "grave risk" of physical or psychological harm to the children).

Staci Balbirer

Reach her at sbalbirer@agdglaw.com or 312-755-3145.

Language, Language! In Family Law, It Can Make The Case

Language, Language! In Family Law, It Can Make the Case

Steve Rakowski
Illinois Fellow
American Academy of Matrimonial Lawyers
August 2022

Illustration: 2 people yelling at each other through megaphones

Walking the walk is one thing. But can you talk the talk?

Attorneys, who serve ethnic communities, soon learn a vital lesson: their clients, when choosing a lawyer, prioritize language. Specifically, they want a lawyer who can communicate in the client's native tongue. This question takes precedent over a C.V. listing years of experience, multiple law-journal articles or even five-star Google ratings.

The most important question for anyone seeking legal advice is if an attorney can fully convey the nuances of the law—especially in domestic cases, where emotions run high—and then provide clear advice on next steps. When the client and attorney literally speak different languages, the process gets significantly more complicated. This is especially true when parents enlist their children—who may be directly impacted by the case—as translators.

This goes beyond the words alone. Language is the threshold to culture, and culture encompasses deeply ingrained ways of thinking. A client's culture may foster an outlook different from that of an opposing lawyer, or even from that of the judge. That's when the attorney must find a way to translate not only the words, but also the concepts on which the case rests.

I am Polish—fifth generation. Yet despite 32 years in practice, I still do not understand the thought processes of my first- and second-generation Polish clients. My family lost the language in the 1950s, when the anti-communism campaign conducted by Sen. Eugene McCarthy led my grandparents to ban the speaking of Polish both in and outside the house. As proud Americans, they wanted to assimilate fully, and also wanted to ensure that their kids got a fair shake when applying for schools and jobs.

But assimilation is no longer the goal of every immigrant. Ethnic communities now maintain their native culture. They buy goods and services from those who speak the same language, usually because it facilitates trust. Because I cannot talk to my Polish clients in the language they find most comfortable, I do not presume to know exactly what or how they may think, even though we share the same ethnicity.

For example, I have one Polish client who speaks passable English but prefers Polish, and when we discuss her case, we always end up quarreling. Her responses and questions convey a mistrust I cannot assuage; the harder I try to reason with her, the more arduous our conversations become. In frustration, I asked my Polish-fluent paralegal—my wife, Joanna Zagozdon—to handle these communications. This simple change elicited a remarkable change in the client's demeanor, from suspicious to cooperative—even grateful. I collaborated closely with Joanna and directed the messaging, so I know this transformation went beyond the choice of words.

I have seen a similar dynamic at play in court, when non-English-speaking pro se litigants use interpreters to translate exchanges between the judge and both attorneys. Such third-person communication, taking place in the crucible of a court appearance, is not conducive to making informed decisions, no matter what the interpreter's level of legal knowledge. In my experience, the lack of cultural understanding in the courtroom can lead to acrimony and defiance.

Miscommunication is all but guaranteed if an attorney does not speak the client's native language. The best solution? Always have someone on staff who is fluent in clients' language—Polish, in the case of my practice. A native speaker with legal experience can put the client at ease, while clarifying the sensitive details of family law and, of course, maintaining confidentiality.

As a second option, in the absence of a bilingual staffer, use a client's family member or friend as a go-between. This arrangement entails reminding the client of the confidentiality challenges posed by third parties. The downside? Family members may be so emotionally invested in a divorce or custody case that, in translation, they inadvertently corrupt legal advice, through inflection or adlibbed commentary.

Some might see the use of free online translation apps as a third option. But this is really no option at all, given the contextual nuances of the law as it applies to each case. You get what you pay for.

Beyond its cultural implications, language also influences perception, to a degree best explained by neuroscientists who have identified a critical link between language and emotion. Such research posits that the use of “emotion words” to label facial expressions may help concretize otherwise ambiguous facial expressions. Other neuroimaging studies show that brain regions involved in perception and experience also become active when one weighs semantic judgments. This evidence helps explain why language, rather than merely describing emotions, may play an integral role in shaping that emotion in the first place.

vAnd in our business, emotion is prevalent. As divorce attorneys we strive to separate ourselves from a client's emotions. But most clients see the situation differently. They relish their emotion; it is their currency. In such instances, our ability to relate directly to that mind-set may determine whether the client retains an attorney at all, and then how the case will proceed.

Its well worth the time and energy needed to see things from the client's perspective: it often leads to a better relationship with a more appreciative client who can better navigate the pitfalls of the case. And besides, we all could use a few more five-star Google ratings.

Steve Rakowski gratefully acknowledges the patient guidance of Polish attorney Joanna Zagozdon in developing the content of this article.

Steve Rakowski

Reach him at steve@lsrfamilylaw.com or at 847-412-9950

Managing the Dollars and Sense of Divorce

Katy Mickelson
Illinois Fellow
American Academy of Matrimonial Lawyers
July 2022

Jenny, a successful CEO, retains counsel for her contentious divorce from Bruce, a stay-at-home father. Jenny and Bruce have had their share of disagreements over the years, mostly related to their financial responsibilities: Jenny pays all the recurring bills, while Bruce uses their joint account to handle larger, one-time expenses and their children’s everyday needs.

Fueled by her belief that Bruce devalues her financial contributions—and oblivious to the best interest of the kids—Jenny reacts by refusing to adopt a temporary support plan or even a temporary parenting schedule.

Bruce’s extremely litigious attorney responds by filing one emergency motion after another. This onslaught of motions unnerves Jenny; normally calm and collected, she calls and emails her attorney every day, racking up hours. But she forgets to tender her financial discovery documents—which prompts her husband’s attorney to file more motions, this time for compliance. These actions harden Jenny’s refusal to compromise on even small requests from her husband.

Jenny initially paid her attorney a $7,500 retainer; one month later, the retainer is exhausted. In fact, Jenny now owes the firm another $1,500. She is exasperated. How could this happen in only four weeks of litigation?

This hypothetical case will ring true for every family law attorney and offers important guidance for matrimonial-law clients as well. When people getting a divorce focus so much on “winning” each small point, they overlook the big picture. And then they are shocked to discover they have squandered their retainer. Suddenly, the budget for their divorce has doubled (or more).

The subject of fees can strain any lawyer-client relationship, but family law cases seem to supercharge the situation, for two main reasons.

Family law proceedings offer no clear answers to the most frequent client questions: “How long will this take?” and “How much will this cost?” The answer is, “It depends.”

Clients may read these exchanges as a legal song-and-dance. But family law encompasses more variables than most other practices: current financial transparency, contingency planning, child-related matters and especially the actions of the family itself. Clients’ own behavior greatly influences how much they will spend on legal fees.
During divorce proceedings people are at the most stressful juncture of their lives, and skeletons can practically come tap-dancing out of the closet. The process can be embarrassing and depressing. Many clients wonder why an attorney should charge additional fees to take them through this house of horrors; it’s easy to see how emotions rise as fees mount.

But skilled, thorough representation is essential in family law. The Courts have wide discretion when it comes to rules and procedures, especially with regard to evidence. Unclear decrees cause havoc for subsequent determinations that rely on the original settlement. Attorneys must be hyperalert to these issues for clients’ protection, and clients should be prepared to compensate their attorney fairly and promptly.

The divorce process need not break the bank: clients can manage costs by avoiding unreasonable or time-consuming demands. They also should know what they can't and can control in the divorce process.

What is not within a client's control? The personality of their spouse or partner; the personality of the opposing attorney; and the Court system itself, including the presiding judge.

What is within a client's control? Clients can respond quickly and concisely to queries. Clients can minimize communication with their attorney by consolidating their questions into succinct emails and making fewer phone calls. They also control decisions about when and where to compromise—or even if they want to go to Court at all. (The cost of litigation far exceeds that of mediation.)

Each client has the obligation to handle their own financial responsibility to their lawyer. Surprisingly, this is not as clear-cut as it might seem. In their effort to manage costs, some clients seek to negotiate lower fees with their attorney—something they would rarely attempt with accountants, doctors, plumbers or any other professional providing a valuable service at an established rate.

Perhaps this stems from the drawn-out nature of many family law proceedings, in which the finish line can be hard to see as the costs add up. These matters may be second nature to lawyers, but to most clients they're terra incognita. It falls to family law attorneys to set expectations at the outset and then reinforce guidelines for making good decisions as well as containing costs.

Of course, attorneys should encourage clients' questions about their bills and then explain, clearly and without umbrage, the actions taken on their behalf. By helping clients foresee and manage their expenses, we promote a level of trust that fortifies attorney-client partnerships.

This includes conveying the one great truth about the divorce process—that in terms of emotions and finances, it is a marathon, not a sprint.

Katy Mickelson

Reach her at khmickelson@beermannlaw.com or at 312.621.9700

Why do family law attorneys care about Law Day?

Brendan Hammer
Illinois Fellow
American Academy of Matrimonial Lawyers
May 2022

In 1961, the U.S. Congress designated May 1 as "a day of national dedication to the principles of government under law," enshrining the concept of Law Day that was established in 1958 by President Dwight D. Eisenhower. This year, Law Day commemorates "The Constitution in Times of Change." But most family law cases involve state statutes and case law: in general, the Constitution doesn’t apply.

And yet, by providing an aspirational creed, an outline for governance, a mechanism for the allocation of power and an articulation of rights, the Constitution embodies the quest to promote and pursue the concepts of fairness and progress. And in no area of law are these more fundamental than in family law.

More than in most other areas of law, clients served by family law attorneys present myriad, unique contexts and circumstances that bear on their claims. Our clients can be married or unmarried, with or without children (whether biological or adopted). They cover the entire gamut of identifiers—racial, ethnic, economic, gender, sexual orientation, religious, educational, vocational—that characterize America.

Attorneys and judges must navigate intersecting areas of law, including bankruptcy, personal injury, employment, immigration, trusts and estates, criminal and real estate law. Because our field presents such a diverse client base, and because it is the most intimate and personal of legal practices, it challenges the court and legal systems to operate as broadly and dynamically as possible. As a result, the underlying message of Law Day—the idea that "government under law" can prove flexible in its application to a diverse population—has perhaps the most relevance for family law attorneys and litigants.

In addition to serving their individual clients, family law attorneys can offer critical assistance to other legal professionals.

In cases involving corporate buy-sell agreements, certain trust agreements and other contracts, documentation often references an array of issues that intersect with matrimonial law. Among these are access to income, terms for repayment or forgiveness of debt, asset control rights and valuation of property.
Settlements in employment and other professional disputes can have family law implications for situations in which a litigant recovers for injuries or claims arising during the marriage. In a divorce proceeding (depending on the jurisdiction), such seemingly straightforward provisions and agreements might be interpreted by a divorce court so as to place greater reliance upon principles of equitable distribution found in domestic relations law.

Thus, the value and benefit of experienced matrimonial law counsel can extend well beyond the simple representation of a husband or wife and the individual issues of marital assets, custody rights and spousal or child support.

To best serve our range of clients, whose diverse problems often call for unique approaches, the Illinois court system addresses family law matters with a flexibility designed to promote equity, a preeminent consideration in our field. Domestic relations courts, known as “courts of equity,” allocate marital property to achieve “equitable division.” But what is the practical application of this emphasis for people living in an increasingly multicultural society? In an era of historic shifts in demography, mobility, work/life balance, economics and moral norms?

Fortunately, the structure of family law permits it to adapt to real-world shifts with unusual agility. From issues such as co-parenting, relocation, spousal and child support, and division of assets, the law is equipped to yield results consistent with the tenor of the time. In our practices, we have seen remarkable shifts in accepted norms on all of those issues and more. As culture and circumstances continue to evolve, these new norms will be subject to additional shifts, and the law should evolve accordingly.

Certainly, the law, the legislature and the judicial system are not perfect. As with most human endeavors, they derive from a complex mix of compromise, tradition and aspiration. Then they are mediated by individual legislators and judges subject to the commitments and biases endemic to humankind. Significant inequities persist and require additional calibration.

But on a day of commemoration such as Law Day, we can look back at where we have been to survey where we are, and then look forward to where we want to go. The trajectory we chart will not be free of controversy or conflict. But under the rubric of the Constitution, we have a robust system of law by which to resolve, procedurally and substantively, family law issues in the interest of fairness, equality and equity—ideals that hold particular significance in the practice of family law.

Brendan Hammer

Reach him at bhammer@sdflaw.com and 312-578-7108