The Value of Services as Spouse and Parent. I took care of the house and the kids. Now Pay Up!

“The Value of Homemaker and Parental Caretaker Services”

When it comes time to divide up the marital assets in a divorce case an analysis is done of the respective direct (financial) and indirect (non-financial) contributions of the parties. A similar analysis is done in the calculation of alimony or spousal support.

For example, under the law of New York and many other American jurisdictions, the courts must consider the “contributions and services as a spouse, parent, wage earner and homemaker”. However, such “contributions and services” are only one factor in the court’s overall assessment of a marital asset division or alimony determination. The larger question is whether such services have intrinsic and calculable value which should be compensated separately, in addition to other divorce awards involving the division of assets and alimony?

In China a husband was directed to pay his ex-wife $7,700 to compensate her for the five years she spent cooking, cleaning, raising children and nursing older relatives . This lump sum direction was in addition to the Court’s award of monthly alimony to the ex-wife, as well as an equal division of the marital assets. This historic decision followed the enactment of a new civil code in China which, in part, allowed divorcing parties the right to seek compensation from their spouse when they perform more of the homemaker and parental caretaker duties.

According to Chinese newspapers this case has sparked a “heated debate about putting a monetary value on unpaid work – still mostly done by women-at-home", with the topic viewed by 400 million times on Weibo, China’s Twitter-like service. Many of the people who weighed in on the topic felt that the amount awarded (about $4.30 per day) was too little to cover the five years of housework and childcare. Such critics noted that globally women take on two-and-a-half times as much unpaid care-taking and household work as men - a circumstance which serves to continue stereotypes and impoverish women disproportionately. A recent study, using actual salary data, has indicated that if you are a stay-at-home parent/homemaker your medium average salary would be $178,201 for the host of services provided, many of which are performed around the clock.

It will be interesting to see if other countries around the world enact similar statutes or issue analogous court rulings with regard to the actual payment of such services. So far little has been seen except for occasional blips on the screen. In one New York case a clever but unsuccessful husband tried to turn the argument around, suggesting that his soon to be ex-wife should receive a smaller percentage of the marital assets because she never “cooked a meal, dusted a table or mopped a floor” – an argument ultimately rejected by the appellate court which decided the case.

Covid-19 Vaccinations, Children and Custody

As the Covid-19 pandemic has grown and intensified across the globe, literally touching every corner of the earth, so has the debate over how to counter its spread. We, as a global community, have spent the last few years debating and discussing when to vaccinate, how many vaccinations are necessary, at what age people should be vaccinated, should children be vaccinated, what are the short and long-term risks of vaccination versus non-vaccination, when to mask, when to socially distance, what social distance is required, etc., etc., etc.. This topic has dominated the news, the internet, our social discourse and daily conversations. Is it any wonder that this debate has now landed in the courts across the United States and beyond?

This surge in Covid-19 related litigation is especially dramatic in the context of Divorce and Family Law cases dealing with the custody and visitation of children between warring parents. Can a family law court order a parent or child be vaccinated? Can a court order a change in custody based upon the vaccination or non-vaccination status of a parent. Can the court suspend a parent’s visitation with the child unless and until he or she is vaccinated? How does a Judge (a person trained in the field of law not medicine) “follow the science” when it is ever changing and constantly debated? Is expert testimony required? The questions are as endless as the cases which have presented such issues.

As one reviews the landscape of court decisions from across the country and beyond one common principle is discernible. In virtually every case presented the court has lined up in favor of vaccination. What changes from case to case is the context within which the court makes its determination.

Cases approving the vaccination of the child

For example, one broad category is those cases where a judge is asked to order the child’s Covid-19 vaccination. In upstate New York a judge ruled in favor of a mother’s application to vaccinate her 11 year old daughter, in the face of opposition by the father, a science professor at Rochester Institute of Technology , directing that the child to be vaccinated “immediately.”

Similarly, in Alberta, Canada the court ruled that the mother was authorized to vaccinate her 10 and 12 year old children over the father’s strong anti-vaxx objections. Indeed, the court went even further. The court also directed that the father was no longer permitted to discuss COVID-19 vaccines, or the pandemic in general, with his children, nor was he permitted to supply them with social media or other information about the virus.

A Quebec Superior Court Justice ruled that a 12-year boy in the Montreal suburb of Longueuil had the right to get his two doses of the vaccine, despite opposition from his father, who, according to the court, failed to present any evidence in court that the shots would be dangerous.

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Cases where the Court directs the parent to be vaccinated

While there have been a number of cases where the court has directed the child to be vaccinated, the question of whether the judge has the authority to direct a parent be vaccinated is far from clear. Even the judge in the most pro-vaxx decision handed down so far questioned his legal right to make such a determination, saying "requiring an adult to be vaccinated... would stretch the authority of a matrimonial court to unprecedented lengths."

However, some judges have actually done so. Rebecca Firlit told The Chicago Tribune that she and her ex-husband, Matthew Duiven, were in a child support hearing when Judge James Shapiro asked if she’d been vaccinated. Firlit said she had not, because other vaccines made her sick and a doctor recommended that she not get vaccinated. Judge Shapiro then immediately suspended her parenting time with her 11-year-old son until she provided proof of vaccination. He later vacated his decision not because he believed himself to be wrong but because judges are not allowed to summarily change custody without a hearing.

Similarly, constitutional concerns did not stop a judge in Liberty County, Texas, from making such a direction. In the case the Judge’s handwritten order dated 5/10/21 says "both parents are to get vaccinated for COVID by end of this week." The father failed to show for his vaccination by the deadline but was still allowed to see the children even while not vaccinated. It appears that the court’s order was never enforced

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Cases where visitation is suspended until a parent is vaccinated or tested

Apart from directing that a parent be vaccinated – as indicated above a direction of dubious validity- the Court has presented the unvaccinated parent with an alternate Hobsian choice - vaccinate or have your access to the children suspended or altered.

In New York a judge suspended a father's visitation until he was vaccinated or was tested on a regular basis timed to the proposed visitation with the 3 year old child. While the father is appealing the order he is seeing his children based upon a regular testing protocol.

Similarly, a judge in Los Angeles, California ordered a father to either get vaccinated or provide a statement from a medical doctor explaining why he couldn't. His access with the children was suspended until he complied with these directives.

In New Brunswick, Canada a divorced father has lost his right to see his three children in person after refusing to get the COVID vaccine particularly where one of the children, age 10, was immunocompromised. Nevertheless, the Court’s ban directed him to stay away from all three of his children.

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Cases where a change of custody is requested based upon a parent's vaccination status

Finally, the court has the authority to change custody from one parent to another based upon the vaccination status of the parties. For example, in a New York case from Rockland County the Judge turned aside a father's request for a change of custody based upon the mother's expressed intent to vaccinate the children, ages 12 and 14, finding that there was insufficient evidence to upset the mother's previously exercised final decision-making authority.

In another New York case, B.S. v. A.S. the court found that the parents' disagreement over the vaccination of their children was sufficient to trigger a hearing to change the parties' joint custody arrangement to sole custody. Wisely, the parties elected to settle their case before the hearing.

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Cases where parents exercise self-help

Unfortunately, there are times when parents take the law into their own hands. In one Canadian case the court overruled the father’s objections to vaccination and directed the mother to vaccinate the child. In response the father fled with his daughter, age 11. The Royal Canadian Mounted Police issued a warrant for his arrest when the father failed to return the child following a scheduled visit. The father and child are still missing.

Finally, there have been cases when a parent simply brings the child to a doctor for a vaccination without the other parent‘s knowledge or consent. Several court decisions in New York have held that a parent who does so cannot be held in contempt of court or sanctioned since the other parent cannot show that they were prejudiced by this act.

Conclusion

With the recent spike in serious Covid-19 cases among children, largely attributable to the omicron variant, there will be an explosion of cases dealing with this issue. Not only will judges be sorely tested to decide these difficult, emotional yet highly significant cases but they will also be tasked with the responsibility of sorting out the parents who have legitimate good-faith differences about this subject from the parents who are misusing or manufacturing an issue to advance their own personal agendas.

My, People Come and Go So Quickly Here

In the classic movie “The Wizard of Oz", Dorothy was heard to observe; “My, people come and go so quickly here.” While speaking in a different context, she could easily have been talking about the process of divorce. Let’s take a look at the various ways that countries around the world make it harder or easier to “come and go.” First, we start with the countries that make it hard to leave your lover.

How about making divorce non-existent? In Vatican City (an independent Catholic-run country controlled by the Pope) citizens are not allowed to divorce. Given how many citizens of the Papal City are Cardinals, Bishops, Priests, Nuns or people who work for the Vatican, this is not a major issue, especially since they are not married.

Similarly, divorce is not permitted in the Philippines. The one exception to this country-wide prohibition is for Muslim citizens (5% of the population) who are allowed to obtain a religious divorce. Over the last several years, proposed statutes allowing divorce have come closer to passing but there is still fierce opposition to the change. The country is so opposed to divorce that if you get one somewhere else the Philippines will not recognize it.

Another largely Christian country, Chile, did not permit its citizens to divorce until 2004. Even with the change, the government still makes it extremely difficult to get out of your marriage. Currently, there is a lengthy waiting period which must be complied with. If a couple mutually agrees to split up there is a one year period of separation required before they may seek a divorce. However, if one of the spouses opposes the divorce, there is a three year period of separation required, absent significant fault issues such as infidelity, drug addiction or abuse.

In France, even the grave offers no relief from marriage. France permits a “posthumous” marriage if you can prove that the dead person “intended to marry you.” Go ahead, ask him. He’ll tell you.

While many countries have made it harder to get a divorce, others seem to make it available for almost any reason. In Samoa, a woman has the right to divorce her husband if he forgets her birthday. And in Saudi Arabia, a husband is risking a divorce if he doesn’t bring his wife the cup of coffee she asked for.

Similarly, getting a divorce in Japan is pretty simple, if you are not fighting about custody of the children. There is no need to go to divorce court. Rather the unhappy couple can sign and file a simple form. However, Japan has no provision for “joint custody” of the child or children, making custody battles long, expensive and acrimonious.

Finally, in Australia, Aboriginal women can have a divorce for the asking. If she asks her husband for a divorce and he says “yes” the marriage is over. Alternatively she can simply say “I do” to another man and she is then considered divorced from her husband. Apparently inspired by the ease of such an “uncoupling”, the American actress Lisa Bonet and her actor husband Jason (“Aquaman”) Momoa recently declared after an 18 year relationship, “we free each other to be who we are learning to become.” Call me a pessimist but I think that it is going to be a lot harder than that once the divorce attorneys get involved.

Closer to home a number of different states in the US have interesting laws about grounds for divorce. In Delaware, you can get a divorce if the marriage was the product of a jest (“I was only kidding”) or a dare (“I Double Dog Dare You”). In Tennessee, a husband was able get a divorce if he left his wife a certain amount of dried beans, dried apples and yarn to knit stockings.

And no more of those mother-in-law jokes. In Kansas a divorce is available if you don’t get along with your in-laws. Finally, in Mississippi you can leave your spouse if they are an idiot. Boy, talk about making divorce easy.