Property and children are usually the most contentious issues in a divorce. However, in the case of Drake and Mandy Rooks, who recently got divorced, it’s a bit more complicated than it usually is.
In a case decided on by the Colorado Court of Appeals on Oct. 20, 2016, the appeals court confirmed the earlier decision of a trial court that found favor with the husband in the case of the custody of frozen embryos. When Mandy and Drake divorced, Mandy was awarded custody of their three children and she also sought custody for the six embryos that was deposited in the fertility clinic that helped them conceive their three children—the court clarified that, for unspecified reasons, Mandy would be unable to conceive without the frozen embryos. Drake also wanted custody of the embryos, but instead of making children with them, he wanted them destroyed.
The appeals court stated that no state considered embryos as people: until they become implanted in a uterus, they are considered property.
Turning to other states for guidance, the Colorado appeals court has to consider three approaches: the “balancing of interests” approach, the “contemporaneous mutual consent” approach, and the “contract” approach.
The trial court judge used the balancing of interests approach, ruling that Drake’s interest in not having a child is greater than Mandy’s interest in having a child from the embryos, in the sense that Drake stands much to lose if a child is conceived from the embryos, such as the logical possibility of having to pay for child support.
Our North Carolina family legal attorneys at Marshall & Taylor PLLC in Raleigh specialize in property division, alimony, domestic violence and restraining orders, mediation and arbitration, divorce, and child custody, among other family legal matters. Call our offices today at (919) 833-1040.