#TBT: Buffy is back (from the dead)!

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March 30, 2017

I’ve been listening to the songs from Once More with Feeling a lot lately. [I’m glad La La Land helped spread some new love for musicals in Hollywood but it doesn’t hold a candle to the greatness that is Buffy’s musical episode.] And then I learned that it was twenty years ago this month that Buffy the Vampire Slayer, the TV show, began. So the signs were clear: it was time for me to write a post about my favorite geek TV show of all time.

I missed the beginning of the Buffy phenomenon, turned off both by the name (a problem I had with Jane the Virgin and My Crazy Ex-Girlfriend too, shows I’m now obsessed with) and the movie. I only caught on to the Buffy phenomenon a few years later, when I was in law school and FX started broadcasting reruns back to back. Back then–pre-DVRs, Hulu, and Netflix–reruns were the only way to catch up on a show you had otherwise missed. Once I caught up on the old ones I started watching the new episodes. And if I missed one of the new episodes, I had to go to Television Without Pity to find out what I missed. [Wow, how did we ever manage before all of these awesome new technologies that let us watch our shows whenever and wherever we want?]

Season five ended with one of the most amazing cliffhangers ever (spoiler alert!): Buffy realizes what her gift is and sacrifices herself to save her sister and the world. It was also the 100^th episode of the show and the last episode on the WB so the wait to see what happened the next year on the UPN was excruciating.

Season six was criticized by many for being too dark, but I loved it. And the fact that Buffy’s death and resurrection brought us one of the most amazing Hollywood musicals ever only proves how amazing that season was. [I was just temporarily distracted by a review of the season six and it reminded me of how much I loved that season and its finale as well—Big Bad Willow was awesome! I’m also pleasantly surprised at what a true superstar Jonathon became. I loved Danny Strong’s acting on both Buffy and Gilmore Girls but I guess he’s even stronger as a writer!]

Season six was obviously about the entire Scooby Gang dealing with the ramifications of bringing Buffy back from the dead. Bringing her back was an impressive act of witchcraft by Willow, but as a legal geek, I was more interested in the logistics: What kind of paperwork does that involve?

The answer: A lot. It’s a painful process without a guaranteed solution so try to avoid this situation if at all possible (a good rule for hellmouths as well).

The usual reason a non-dead person has to deal with coming back from the dead is because their “death” was the result of a typographical error or they were declared dead in absentia. Buffy, of course, doesn’t fall into either of these categories–she actually came back from the dead and had to bust out of her own gravesite. Can’t blame her for falling into a destructive relationship with Spike after that trauma.

So what happens when you die?

“For three days after death, hair and fingernails continue to grow,
but phone calls taper off.” -Johnny Carson

More importantly, you get entered in the Social Security Administration’s Death Master File. Creepy as it sounds, that’s where the Social Security Administration has been keeping track of the Social Security numbers of everyone who’s died since 1980. Unfortunately, those numbers are still entered into the file by humans and sometimes errors occur, leading to people who are very much alive and well being told they are, in fact, dead.

And if your Social Security number comes up as “dead,” then you’re going to be treated like a zombie: no tax filings or refunds, no new driver’s license, rejections of any application where you’re required to provide a Social Security number. For some, it’s a brutal, years-long process that leaves them impoverished and depressed.

In addition, there can be other legal ramifications for being declared dead, especially if you were declared dead by a court in absentia. That means your estate has been disbursed, life insurance benefits paid, and Social Security disbursements made to dependents. California Probate Code Section 12408 addresses this in a section entitled “Reappearance of missing person; recovery of property; limitations of actions; order for final distribution conclusive as to parties; disputed identity of reappearing missing person.” Under that section, if you reappear you can recover assets (minus fees and costs) that are still in the possession of your estate’s personal representative. §12408(a)(1). You might be able to recover assets that have already been given to your beneficiaries, if that recovery is deemed “equitable in view of all of the circumstances.” §12408(a)(2). And if you reappear more than five years after your assets have been distributed, you’re out of luck. Id.

That’s not as bad as what happened to Donald Miller in Ohio. Declared dead by a court at the request of his ex-wife (he wasn’t paying his child support and couldn’t be found), he showed up years later and tried to be officially declared alive again. The court refused, however, explaining that under Ohio law he could only challenge a finding of death within three years of the order being entered. Miller had waited longer than that so the court told him he had to stay dead!

Presumably, the Scooby Gang was too busy fighting monsters in Sunnydale to notify the Social Security Administration about Buffy’s death – or distribute her meager assets. So all Buffy had to deal with was settling back into her old life, going through the motions as best she could:

Ah, Buffy and the Scooby Gang. It wasn’t a perfect show but it was a great show and many of its alum have gone on to make other great TV shows and movies. But there will never be another Buffy–she can only come back from the dead so many times! Next time, I’ll have to figure out what happens when a vampire regains his soul. Is there anyone tracking that?

What Happens when the President is Actually An Alien?

By

Josh Gilliland

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March 29, 2017

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Supergirl knows how to create a Constitutional crisis. The big surprise at the end of “Distant Sun” is that the President of the United States is a shape-shifting alien.

This…is legally problematic. What the real President Olivia Marsdin kidnapped? Or has she been an alien all along?

The requirements to be President are that the individual must be a natural born citizen, at least thirty-five years old, and a resident within the United States for fourteen years. Article II, Section 1, United States Constitution.

A “natural born” citizen is someone who was born in the United States or their parents are US Citizens, thus they are a citizen by birth. Elliott v. Cruz, 137 A.3d 646, 655-56 (Pa. Commw. Ct. 2016). While this has made interesting debates for Presidential candidates born on military bases abroad or to US citizens while overseas, there is a key similarity between all of them: they are human beings.

An actual “alien” born on a different planet, or born in the United States to non-human parents, is not a human being. The Framers intended for human beings to serve as President, which is why there is a lengthy debate as to human beings who are foreign born. There is nothing more foreign than being born on a different planet.

This raises interesting issues on Supergirl. If the President was kidnapped and replaced by a shape-shifting alien, any acts by the imposter would be unlawful. Bills signed would be invalid, because the President did not sign the legislation or Executive Order.

The situation is more complicated if the President was an alien all along who committed fraud on the American people. If that is the case, “Olivia Marsdin” was never eligible to serve, thus any actions by her would be unenforceable. The Vice President of the United States would then assume the presidency, assuming that individual is also a human being.

Thrawn’s Web: Were Rebel Forces in Zero Hour a Lawful Target?

By

Thomas Harper

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March 27, 2017

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Cue up those ominous pipe organs from Grand Admiral Thrawn’s theme song, because the Empire’s master tactician finally cornered the Rebellion in Zero Hour, the season finale of Star Wars Rebels. After discovering the Rebel Alliance’s secret base on the planet Atollon, Thrawn swept in with his fleet to crush the Alliance and, in true bad guy style, delivered some dastardly lines to the heroes about their impending doom.

How many times did you practice saying that one in front of the mirror, Grand Admiral?

In Zero Hour, Imperial forces took decisive offensive action against the Rebel fleet and its secret base (as well as a very pissed off Bendu). The episode was truly unique because we have never seen the Imperials launch a large-scale attack against a combined element of the Rebel Alliance in the show.

In the real world, offensive military operations are shaped through careful and deliberate planning. A critical part of that planning process involves making sure that the use of force will be lawful. Since the audience was mercifully spared from any scenes involving the inner workings of the lengthy and arduous military planning process, let’s fill in the gap by analyzing whether Thrawn’s assault was legal.

The nature of the attack really sets the Imperial assault on Atollon apart from other skirmishes in Rebels. Time and again Rebels has shown the Imperials in a reactive stance in which the Rebels attack and the Imperials respond. In those situations, Imperial forces typically rely upon their inherent right to self-defense to justify their use of force. Unlike those scenarios, Thrawn’s assault in Zero Hour is an offensive operation in which the Imperials seize a tactical advantage to surprise and destroy the Alliance. Here, instead of defending themselves from attack, the Imperials are the ones pressing the fight.

Thrawn, the skilled maestro…except instead of violins and trumpets he conducts scathing batteries of turbolasers and legions of deadly ground forces.

One of the central legal issues is whether the Empire could lawfully attack the Rebels, who were not actively engaged in any type of combat at the time. Militaries cannot legally use force against anyone they wish. Under the law of war, force can only be used against those who are considered hostiles or are part of a hostile force. A person or group can be considered “hostile” in one of two ways: By being declared a hostile force or by demonstrating hostility through one’s conduct.

Certain high-level officials have the legal authority to designate (or declare) that a group is a hostile force. Once the proper authority makes that designation, that group is officially called a “declared hostile force.” That status has a serious effect. Declared hostile forces can be lawfully attacked even if they are not openly engaged in hostilities. For example, in World War II, the German Army was declared a hostile force as part of the United States’ declaration of war. That status means that if Americans spotted a group of German soldiers singing kumbaya around a campfire they could attack them, even though the Germans weren’t engaged in combat.

Alternatively, if an person or group is not part of a declared hostile force, they can become a lawful target through certain conduct. If a person or group displays hostile intent or commits a hostile act, they can be lawfully attacked based on that hostile conduct. In other words, if someone’s conduct reveals that they are hostile, they can be lawfully attacked. The Jedha ambush scene in Rogue One is a great example of conduct-based targeting. Before the attack, Saw Gerrera’s fighters were indistinguishable from other civilians milling about in Jedha City. Therefore, Imperial forces had no legal basis to attack them. However, once they started firing on the stormtroopers, they were committing hostile acts—conduct that revealed their status as fighters and legally justified the Imperials’ use of force against them.

In Star Wars Rebels, those in Imperial high command would have almost certainly designated the Rebel Alliance as a declared hostile force by the time of Thrawn’s attack. The Alliance would have given them good cause to do so, having staged numerous significant attacks against the Empire across the galaxy. These attacks meant that the Rebellion was engaged in open hostilities with the stated purpose of overthrowing the Imperial government, which would have justified the designation.

The Empire would have wanted to grant field commanders like Thrawn the tactical flexibility to respond to the growing threat and crush Rebel forces. Labeling the Rebels collectively as a declared hostile force would have done just that, opening the doors for Imperial forces to hunt and destroy without first waiting to observe a hostile act or hostile intent. In Zero Hour, that meant that the Rebel base on Atollon and fleet above it were valid and legal military targets, even though they weren’t actively engaged in any sort of fighting. Having discovered the location of the base, Thrawn was free to bring his tattooed Star Destroyer and the rest of Seventh Fleet to bear on the unsuspecting Rebels.

If sound could carry in space, Thrawn would have ordered the fleet to blast ‘Thunderstruck’ by AC/DC (an orchestral version, of course) as it arrived in orbit above Atollon.

Even if the Empire had not declared the Rebel Alliance to be a hostile force, Thrawn could have still been legally justified to attack based on the Rebels’ actions. To do so, the Rebels would have to display certain conduct in the form of hostile intent or a hostile act. Under the law of war, hostile intent is defined as the threat of imminent use of force against friendly forces.

At the start of Zero Hour, Thrawn reveals that a Rebel attack is indeed imminent. Thrawn first discloses Imperial intelligence reports that a large Rebel attack is coming. Additionally, General Dodonna’s Massassi Group, one of the largest Rebel military cells, was known to be on the move for a rendezvous, which strongly suggested that a coordinated attack was coming. Thrawn surmised that the TIE Defender factory on Lothal was the target, given its location and significance.

Agent Kallus then delivered the final piece of the puzzle, as his intercepted transmission synced with Dodonna’s trajectory to reveal the hidden Rebel base. That last bit of intelligence effectively corroborated the other pieces, thereby establishing that the Rebels were moving to launch their first coordinated multi-cell attack.

Under the circumstances, the Rebel attack on Lothal would have almost certainly been deemed to be an imminent use of force. Phoenix Cell was heavily armed and had a history of combat operations against the Empire. Meanwhile, General Dodonna was a known Rebel military commander flying through hyperspace with a bunch of combat-ready vessels, not some gaggle of cargo freighters. The Rebels ordinarily avoided massing their forces, so the rendezvous of Phoenix Squadron and Massassi Group strongly suggested that an attack was in the works.

Similarly, the impending rendezvous also underscored the imminent nature of the attack. Dodonna’s forces were on the move at the start of the episode, which meant that the Rebels were in the process of marshaling their forces. Given the Rebellion’s aversion to massing their fleet for extended periods, it was highly likely they would spring their attack soon after linking up.

Under the law of war, Thrawn had no obligation to wait and engage the Rebels above Lothal. Once Imperials determined that the Rebels were displaying hostile intent, they were free to move in and use force. Grand Admiral Thrawn did what all tactically proficient commanders should by seizing upon the element of surprise and attacking at a place and time the enemy was not ready. Therefore, the Rebels’ conduct represented hostile intent that justified Thrawn’s attack.

Thrawn’s devastating attack on the Rebels showcased the escalating stakes of war for the Alliance. Although the law of war sets certain boundaries for lawful conduct within a war, it does not guarantee that you get to fight on favorable terms. The Rebellion’s own successes painted an ever-growing target on their backs, fueling the Empire’s desire to burn them out. Fortunately for the Alliance, buffoons like Admiral Konstantine and Admiral Ozzel exist, helping them escape and fight another day.

For his efforts above Atollon, the Empire posthumously honored Admiral Konstantine by granting him the glory of naming a trash compactor inside the Death Star after him.

What are Iron Fist’s Duties as a Landlord?

By

Josh Gilliland

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March 26, 2017

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Danny Rand purchased the building where Colleen Wing had her apartment and dojo in Netflix’s Iron Fist. Romantic [albeit stalky], overtures aside, what are Danny’s new obligations as a landlord?

The first is that landlord warrants the property is fit for human habitation. N.Y. Real Prop. Law § 235-b. Moreover, those living in the property “shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.” Id. However, damages caused by the tenant or those under the tenant’s direct control, shall not be a breach of the warranty of habitability. Id.

Danny Rand as a landlord is entitled to “reasonable compensation” for Colleen’s use of the property. N.Y. Real Prop. Law § 220. Danny also has a duty to provide a written receipt for rental payments. N.Y. Real Prop. Law § 235-e.

No super-hero show explores the intricacies of landlord-tenant duties, but Danny has unusual liability for his new building. First, Danny, Colleen, and Claire all kidnap Madam Gao from China and falsely imprison her in Colleen’s dojo. Second, there is extensive property damage to the dojo from different factions of the Hand and a DEA raid.

International kidnapping is a crime; regardless of the fact Danny was fighting an ancient terrorist organization of ninjas selling heroin. Danny had actual notice of the ceiling being breached in a raid, plus the door by the DEA.

Danny would have a duty to have the ceiling repaired under N.Y. Mult. Dwell. Law § 78:

Every multiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair. The owner shall be responsible for compliance with the provisions of this section; but the tenant also shall be liable if a violation is caused by his own wilful act, assistance or negligence or that of any member of his family or household or his guest. Any such persons who shall wilfully violate or assist in violating any provision of this section shall also jointly and severally be subject to the civil penalties provided in section three hundred four.

Danny knew rappelling members of the Hand had breached the ceiling of the dojo. This could subject the dojo to flooding, to say nothing of the roof being safe and sound. Prior case law has found that landlords have been responsible for property damage caused by water invasion from damaged roofs. Excellent Holding Corp. v. Richman, 155 Misc. 257, 258 (N.Y. Mun. Ct. 1935). There is no question that three human sized holes in the ceiling would cause water intrusion to the property [assuming Colleen’s dojo is on the top floor].

Jeri Hogarth might argue Danny’s liability is either limited by the actions of organized crime or seek damages from the government for the DEA raid. This would be highly problematic, as Danny was acting in violation of international, Federal, and New York state law, when they kidnapped Madam Gao from China. Moreover, the government had been given false evidence, which does not mean the DEA was acting in bad faith when they sought a warrant. As far as they knew, there was probable cause to arrest Danny Rand for being a drug dealer.

What is not easy to tell, is how difficult it will be in the future for Colleen Wing to get renter’s insurance in the future.

King Kong vs JAG

By

Josh Gilliland

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March 18, 2017

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King Kong is the inspiration of “Monster Kids’ across the globe. Army JAG officer, and guest blogger on The Legal Geeks, Thomas Harper, sat down with me to discuss the military law issues in the newest “King Kong” movie, Kong: Skull Island. We debate whether Colonel Preston Packard (played by Samuel L. Jackson) committed dereliction of duty when his squadron first engaged Kong, whether Packard gave unlawful orders in his pursuit to kill Kong, and if John C. Reilly’s character Hank Marlow was entitled to 28 years of pack pay.

Parental Liability for Rampaging Monsters

By

Josh Gilliland

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March 9, 2017

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Are parents legally liable for property damage caused by monsters summed to their city by their minor child? If parents can be sued for forest fires, can they be sued for fire-breathing monsters controlled by a child?

The Marvel mini-series Monsters Unleashed tells the story of Kei Kawade, an Inhuman child who can summon classic monsters by drawing them on a piece of paper. Kei’s art projects summoned creatures that rampaged in Atlanta and St. Louis, forcing his family to move [possibly to escape civil liability].

Parental liability for torts of a child did not exist under common law. As one California Court explained, “statutes imposing parental liability are therefore ‘in derogation of the common law,’ and the rule is that statutes which increase liability, or provide a remedy against a person who was not liable at common law are to be narrowly construed in favor of those sought to be subjected to them.” Curry v. Superior Court, 20 Cal. App. 4th 180, 183-84 (1993), citations omitted.

The amount of recovery for parental liability for the acts of a child varies state to state. In Georgia, parents with custody of a minor child are liable for the “willful or malicious acts” of their child up to $10,000 for reasonable medical expenses and/or property damage caused by a child’s rampage. The law specifically states:

Every parent or guardian having the custody and control over a minor child or children under the age of 18 shall be liable in an amount not to exceed $10,000.00 plus court costs for the willful or malicious acts of the minor child or children resulting in reasonable medical expenses to another, damage to the property of another, or both reasonable medical expenses and damage to property.

Ga. Code Ann. § 51-2-3(a).

Missouri has similar laws for parents whose children have caused personal injury or damaged property by “purposely marking upon, defacing or in any way damaging any property,” except that damages are limited to $2,000. Mo. Rev. Stat. § 537.045.

Kei’s early monster rampages were in Georgia and Missouri. Those states limit recovery for property damage to $10,000 and $2,000. By way of comparison, California’s limit for property damages is $25,000 under Cal Civ Code § 1714.1. That means those with property damage could sue Kei’s parents for up to the maximum amounts in Georgia and Missouri. While these laws were not meant to cover damages from a monster attack, the combined damages from multiple property owners could add up fast for the Kawades and their insurance company.

The issue in Georgia is whether Kei acted recklessly drawing a picture of a monster that then appeared and destroyed property. In one Georgia case, a mother was not liable where her unlicensed teenage son stole her car keys and got in an accident, because there was no evidence the son’s actions were reckless. Jackson v. Moore, 190 Ga. App. 329, 378 S.E.2d 726 (1989).

The monster-sized issue for liability is that Kawades knew their son was an Inhuman whose drawings summoned monsters. The act of drawing a picture is not willful or malicious, however, having the knowledge that said drawing would summon a monster would be willful conduct. While there is a strong defense that the first time a monster appeared was not foreseeable, the parents would know of the danger after the first incident. Allowing Kei to draw with that knowledge arguably is a willful and malicious act.

The Custody Conundrum of X-23

By

Kean Zimmerman

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March 4, 2017

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With the movie Logan already making its mark, it’s no secret that X-23 (a.k.a. Laura Kinney) is one of the main characters. As Professor Xavier states, this girl is “a lot like [Logan].” The intricate relationship between Logan (Wolverine) and X-23 has been extensively covered in the comic books, but that does not make it any less convoluted.

[SPOILER WARNING]

In the after credit scene of X-Men Apocalypse we see individuals from Essex Corp collecting Wolverine’s blood at the Weapon X facility. This scene is likely the connecting factor between the new X-Men timeline and the events of Logan. The inference is that somehow, Nathaniel Essex, or at least his corporation, somehow had a hand in the making of X-23. In the comic books, X-23 gets her name because the DNA sample from Wolverine is damaged. The only part they are able to successfully recover is his X chromosome. As a result, any successful attempt at cloning him was restricted to female clones. X-23 was the 23rd attempt at creating such a clone. So, unbeknownst to Wolverine, he has a clone running around with his DNA. The question is, does he have custody over this clone like a child? Or does he have any legal basis to claim paternity?

Property over Parenthood

The first hurdle is whether or not X-23 can be considered a person. In the case of Toybiz Inc. v. United States the United States Court of International Trade ruled that the X-Men were considered “nonhuman creatures.” No. 96-10 (Ct. Int’l Trade 2003). In this sense there may be an argument that no mutant actually has “human rights.” This case however, was not about civil rights and focused on whether or not the X-men action figures were classified as “toys” or “dolls” for import duty purposes.

Specific to X-23, the fact is that Essex Corp created her in a lab, not as an instance of an in vitro fertilization procedure or surrogacy agreement, but with specific DNA to create a specific result. In some jurisdictions the courts have allowed for the patenting of a specific DNA strain to create a specific result. The best example is the Oncomouse. The Oncomouse, or Harvard Mouse, is a laboratory mouse that was genetically modified by Harvard University professors to make it more susceptible to getting cancer. In this way, the mouse had been used for multiple research experiments since the 1980’s. However, Harvard was not always successful in getting its patent.

While the patent application was granted in the United States without ever having to go to Court, there was significantly more fanfare in the Canadian patent system. Originally, the Canadian Court’s denied the patent application in the case of Harvard College v. Canada (Commissioner of Patents), [2002] 4 SCR 45 Docket No. 28155. In that case the Court held that a higher life form could not be patentable because it was not a “composition of matter” in the definition of invention under the Patent Act. After the ruling by Canada’s Supreme Court, the patent application was granted after it was amended to exclude the “composition of matter” claims.

In this vein of thought, some courts may not consider mutants to be human per se. As a result, Wolverine would not be afforded any parental rights in regards to X-23. Instead Wolverine, and any other mutant, would be categorized as property. To give him rights within the pretext of the Oncomouse case law would be akin to granting property rights to property.

Custody of Clones

Assuming that mutants in general, including X-23, are afforded human rights, then the next question revolves around the custody of cloned individuals. As you can imagine, at present, there is very limited case law on cloned individuals. After the now famous cloning of Dolly the sheep in 1996, President Clinton ordered for a multidisciplinary panel of experts to study the ethics of cloning and identify the potential implications. As part of this, Nanette Elster wrote an article for the Hofstra law review entitled Who is the Parent in Cloning?. (1999) Hofstra Law Review: Vol. 27: Iss. 3, Article 6. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol27/iss3/6 . The article ultimately concludes that modern laws are not yet equipped to handle the complex questions involved in the custody of clones. Rather than the two parent model, clones could ostensibly have as many as four, or as few as one parent. Since the time this article was written many states have evolved beyond the presumed two parent model.

Intending Parents

Recent Connecticut case law has highlighted the importance of “intended parent,” or parents who sign a valid surrogacy agreement, but have no genetic link to the resulting child. The case of Raftopol v. Ramey, established that in Connecticut, two parents who have a signed surrogacy agreement, thus representing their intention to be parents, can put their names on a child’s birth certificate, even if they have no genetic link to that child. 299 Conn. 681, 12 A.3d 783 (2011). The case of X-23 might be much simpler than this though.

In the case of X-23, there is no surrogacy agreement. In fact, Wolverine was completely unaware that his DNA was being used to create a clone. In the story of X-23: Innocence Lost, the revitalized Weapon X project involved Wolverine’s DNA being taken, unbeknownst to him, and being generated into a viable sample. This sample was then placed in the uterus of Dr. Sarah Kinney to act as the surrogate for X-23. The comic is unclear on whether the fertilized egg belonged to Dr. Kinney, but for the sake of simplicity, we can assume that it was. With these facts, the only two parents X-23 has are Wolverine, and Dr. Kinney. Even without this information, Connecticut law creates the presumption of parental rights with the birth mother, so Dr. Kinney would not have to do anything more to secure her parental rights to X-23.

Wolverine’s Paternity

In the comic books, Dr. Kinney is killed by her own daughter as a result of a triggered rage, planned by the very people Dr. Kinney worked with in order to create X-23. As a result, Wolverine is the only parent left. He must establish his paternity though, as he presumably is not on X-23’s birth certificate (realistically since she is part of a secret quasi-government experiment, she may not even have a birth certificate since a paper trail would defeat the purpose of keeping it a secret). To claim paternity for X-23 Wolverine has two options. One would be to file an Acknowledgment of Paternity with Dr. Kinney, while the other option would be to file an action claiming paternity in Connecticut Superior Court. If Wolverine does not know of X-23’s existence until after Dr. Kinney’s death, then option one is out. To complete option two, Wolverine would file a paternity action, and then secure a DNA test.

The DNA test presents another unique problem. X-23’s name comes from the fact her DNA is made up of two of Wolverine’s X chromosomes. As a result, any DNA test will result in a 100% match with her “father.” In all actuality then, Logan’s parents, Elizabeth Howlett and Thomas Logan, would be more like her parents. However, since they have long since been dead, her closest living relatives are Wolverine and interestingly enough, Dog Logan, Thomas Logan’s other son. Despite the fact Wolverine and X-23 would be more like twins, the law does not recognize this as granting Wolverine any more rights than Dog when it comes to custody.

Best Interests of X-23

Ultimately, if Wolverine and Dog Logan both applied to get custody of X-23, the Court would have to take into consideration the best interests of the child. Fish v. Fish, 285 Conn. 24, 28 (2008). The bests interests of the child includes an analysis of 16 factors which the court can consider under Conn. Gen. Stat. sec. 46b-56(c), The eleventh factor in that analysis happens to discuss the stability of the child’s proposed residences. If Wolverine and Dog Logan had competing applications for custody, then a Court might be compelled to analyze each applicant’s current residence. For Wolverine, this would be the Jean Grey School for Higher Learning, while Dog Logan is the physical education teacher at the Hellfire Academy. Absent a compelling reason otherwise, a court might have a difficult time determining that either one of those residences may be suitable for a young child. For one thing, the Hellfire Academy potentially has on its list of faculty persons with criminal records. A Court could find that this does not present a stable environment.

The Jean Grey School for Higher Learning may not be much better. Although this is the new name of the school, it is still premised on Charles Xavier’s original school, which was a part of X-Mansion. As any Marvel fan knows, X-Mansion has not only been infiltrated on numerous occasions, but it has also been razed more than once. It would be hard for the Court to consider this a stable environment, despite the staff’s uncanny speed and efficiency in reconstruction.

Conclusion

Overall, if X-23 were to be considered a human and not property, it is not clear that Wolverine would be able to get custody of her. In fact, he and his half brother Dog Logan may have the same legal rights to any claim over their “biological sister.” At that point, a court would have the unenviable position of having to decide whether it would be in X-23’s best interests to live in an Academy full of super villains, or to live in a Mansion which tends to implode every other Tuesday. In the grand scheme of things, either option may be preferable to being held captive by a quasi-government organization, so the court would likely have to weigh the factors carefully. I do not envy the Court tasked with this analysis.