Sep 30, 2013

Many Family Types, One Goal: Children’s Best Interest in Custody Agreements

Although Ryan Jurica’s initial divorce filing is loaded with inflammatory allegations, My Fair Wedding host, David Tutera, and his partner, Ryan Jurica, have entered a temporary custody agreement that places the parties’ fraternal twins 3,000 miles apart on separate sides of the US. The LA Times reported on September 13, 2013, that the judge entered a temporary order granting Tutera, who lives in California, custody of “his” daughter and Jurica, who lives in Connecticut, custody of “his” son.

While this case has garnered national attention because of factors including a celebrity same-sex partnership, birth of fraternal twins via surrogacy and each father being the biological parent of one of the children; the case is truly unique because the parties have agreed and the Court has allowed the children to be physically separated from each other without the parties offering any definite visitation plan for the children. Tutera was quoted in saying he “absolutely” wanted the children to have a relationship with each other but it will not happen right away.

In Illinois, case law has established that it is typically “in the best interest of the children that they not be separated.” In re Marriage of Slavenas, 139 Ill. App. 3d 581 (2d Dist. 1985). Courts determine custody by using the best interest of the child standard and while courts have occasionally found it in the children’s best interest to reside in different homes, Illinois Courts presume that “there is much to commend [in] keeping together [] siblings of the family in order to preserve what remains of the family.” In re Marriage of Ford, 91 Ill. App. 3d 1066 (4th Dist 1980).

Pursuant to section 502 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) terms of an agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds … that the agreement is unconscionable (750 ILCS 5/502). Meaning that despite the parties’ accord to raise their infant fraternal twins on opposite coasts of the United States with no definitive plan to establish and facilitate a relationship between the siblings, the Court, using the best interest standard and its own discretion, could have refused to enter Tutera and Jurica’s custody agreement based on a finding that the parties’ proposed plan to go their separate ways was not in the best interest of the twins.

Not only do couples involved in surrogacy need to seek legal counsel and plan appropriately for the birth of their children; they also need to consider how an inherently conventional domestic relations court will view their proposed custodial and parenting arrangements in the event of a divorce. Most importantly, all divorcing parents need to remember that not only are they, as the litigants, experiencing emotional trauma due to their dissolution, but that their children are as well. Consequently, divorcing parents need to contemplate what is in the best interest of their children while planning their post-divorce lives.

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