Title- Connecticut: Appellate Court holds that there is no deprivation of due process and her constitutional rights were safeguarded during proceeding before the superior court in Connecticut. BY: Rebecca H.

Link for opinion- http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/

The Connecticut Court of Appeals held in 134 Conn. App. 382; 38 A.3d 130; 2012 Conn. App. LEXIS 118 that the Connecticut court had subject matter jurisdiction to make the initial child custody determination.

The Maternal mother and father challenged a judgment adjudication their child neglected and committing the child to the custody of the commissioner of children and families.  They argued that the trial court lacked jurisdiction.  The trial court found that at the time of the institution of the proceedings, the mother and father were residents of Connecticut.  Also found that Connecticut was the child’s home state

The respondent father and the respondent mother filed separate appeals to this court from the judgment of the trial court.  The respondent mother, had given birth to the child in Massachusetts.  The personnel from the deparment of children and families had sought and obtained an order of temporary custody, which then the departments social worker removed the child from the hospital in Massachusetts and places her in a foster care in Connecticut.  The trial court granted a motion to dismiss the order of temporary custody filed by the respondents.  The commissioner filed for a second order of temporary custody and a neglect custody.  Trial court denied the second motion.  The findings that Massachusetts was not the child’s home state, and has been in foster care in Connecticut since she was born supported that the subject matter jurisdiction under 46b- 115k (a) to make the initial child custody determination. 

Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy present by the action before it.  The court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. 

The respondent mother has failed to establish a right to have a Massachusetts court exclusively make the ignition child custody determination, and there is no deprivation of due process because a hearing was not conducted there.  Her constitutional rights were safeguarded during the proceeding before the Superior Court in Connecticut.  The judgment was affirmed

Title: Minnesota Supreme Court finds that a father who voluntarily terminates his employment to attend college is not automatically considered to not be voluntarily unemployed. BY: Kristy B.

The link to my case is: www.lexisnexis.com.proxy.msbcollege.edu/hottopics/Inacademic

The case my summary is on is Putz v. Putz, 645 N.W.2d 343, 2002 Minn. LEXIS 405 (2002)

In re: Paul Daniel Putz, n/k/a Paul Ben-Yehuda, Respondent, vs. Jamile Therese Putz, Respondent below, County of Benton, petitioner, appellant.

The issue is whether the child support magistrate and the Court of Appeals applied Minnesota Statute §518.551 correctly when they reduced the child support obligation of Paul Ben-Yehuda.

The facts of the case are:

 1. The dissolution of marriage and original child support obligation was ordered in October, 1999.

2.  In January, 2001 Ben-Yehuda filed a counter-motion to Benton County’s proposed increase in child support and other obligations. He stated at that time his income had decreased to a military benefit of $460 per month, and that he was dependent on his current wife for financial support because he was attending college.

3. He was $5,321 in arrears at that time for child support payments.

4. The child support magistrate found Ben-Yehuda had a substantial change in circumstances and ordered the 1999 order as unreasonable and unfair.

5. Mr. Ben-Yehuda had voluntarily terminated his employment with the U.S. Postal Service to attend college. His annual income prior to terminating his employment was $40,000. He stated that after attending college for 3 ½ to 4 more years his annual salary might be $70,000.  

6. The County of Benton appealed the order to the Appellate Court, which affirmed they decision of the child support magistrate.

7. The County of Benton appealed the order to the Minnesota Supreme Court.

The Minnesota Supreme Court found that Minn. Statute §518.551, subd. 5b (d) (1) did not limit the power of the court to consider whether a child support obligor’s unemployment or underemployment was in bad faith toward his or her support obligation; (2) the child support magistrate abused his discretion by making a clearly erroneous conclusion that was against logics and the facts on record; (3) the father was voluntarily unemployed and failed to prove that his unemployment was temporary or that it would lead to an increase in income.[1] The Court found that both the magistrate and the appeals court erred in their decision by not considering the voluntary termination of employment by the father. The courts ruled that someone who voluntarily terminates their employment to attend college is automatically considered to not be voluntarily unemployed.

The Supreme Court reversed and remanded the case back to the child support magistrate for reconsideration with directions that any modification of the father’s child support obligation had to be based on his imputed income and the magistrate had to consider the statutory factors before determining the final amount of the father’s support obligation. The Court found that the father deliberately decreased his income to avoid paying his child support obligation; therefore, causing his ex-wife and daughter to apply for state assistance. The father’s imputed income is his prior earnings history, education, and job skills and whether the available jobs in the community fit the parent’s qualifications.

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[1] Taken from the Court opinion on the Lexis Nexis Academic website.

Title: John and Jane Doe, Appellants, v. Baby Girl. BY: Natalie V.

Link for opinion: http://webservices.lexisnexis.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=beehfj&searchTerm=eSQW.OCTa.UYGX.NcjG&searchFlag=y&l1loc=FCLOW

In this adoption case The Supreme Court of South Carolina held in Doe v. Baby Girl, 376 S.C. 267; 657 S.E.2d 455; 2008 S.C., that South Carolina would assume jurisdiction because it was in the baby’s best interest.

On June 16, 2006, the birth mother gave birth in Illinois to a full-term baby girl (“Baby Girl”). On June 19, 2006 in Illinois circuit court, attorney Denise Patton represented the birth mother, who stated under oath that she intended to place Baby Girl up for adoption and the parents lived in South Carolina. The birth mother agreed that all matters relating to the adoption of her child, including, but not limited to the right to evoke my relinquishment, to notice of further proceedings in the adoption and termination of her parental rights, shall be determined in accordance with the laws of the state of South Carolina.

The birth mother checked a box in the identification document that she did not know the identity of the biological father. She stated she was raped and knew the birth father through friends of friends and did not know his full name and she would not say his first name. In the consent to adoption she refused the name of the birth father but stated he had not supported her and had not paid any pre-birth expenses.

On June 20, 2006, appellants returned to South Carolina with Baby Girl and filed an action for adoption in South Carolina family court. On July 14, 2006, the birth father filed a petition in Illinois circuit court requesting that the court void ab initio the June Illinois order which appointed Patton guardian of Baby Girl for the purpose of transporting her to South Carolina. The birth father petitioned that the birth mother knew his identity and whereabouts at all times and had told him the baby had been born brain dead. The birth father argued that because he received no notice, the Illinois court was without jurisdiction to enter the June Illinois order. Appellants were not named as the parties in the birth father’s petition although they had physical custody of Baby Girl in South Carolina.

The appellants filed an amended adoption complaint in South Carolina family court on July 21, 2006. The birth father was named and referenced in the amended pleading. The family court granted appellant’s request for an emergency hearing. The hearing took place on July 31, 2006 and Judge Turbeville issued a temporary order on August 2, 2006 which granted temporary legal custody of Baby Girl to appellants. The Judge also ordered a paternity test to determine whether the birth father was the biological father of Baby Girl. Also, the family court discovered information regarding the birth father’s criminal history which included domestic violence and drug offenses. The family court found under South Carolina’s Uniform Child Custody Jurisdiction Act (UCCJA), South Carolina is Baby Girl’s “home state” and it was in the baby’s best interest for South Carolina assume jurisdiction.

Labels for post: adoption, physical custody, parents, birth mother, birth father

Title: South Dakota Supreme Court holds that a father can choose when to allow his twin children visitation with their maternal grandparents. BY: Sarah W.

Beach & Beach v. Coisman, No. 26129, 2012 S.D. Sup. Ct., LEXIS 31 (7^th Cir. May 2, 2012)

Links for opinion:

http://www.lexisnexis.com.proxy.msbcollege.edu/lnacui2api/api/version1/getDocCui?lni=55JF-WGX1-F04K-300R&csi=144753&hl=t&hv=t&hnsd=f&hns=t&hgn=t&oc=00240&perma=true

http://www.sdjudicial.com/Uploads/opinions/26129.pdf

The South Dakota Supreme Court upheld the decision in Beach & Beach v. Coisman, No. 26129, 2012 S.D. Sup. Ct., LEXIS 31 (7^th Cir. May 2, 2012) by the 7^th Judicial Circuit to grant a motion for a judgment as a matter of law submitted by the Defendant/Appellee  that denied the maternal grandparents court ordered visitation under SDCL 25-5-29.

The defendant was married to the plaintiff’s daughter and had twin children from this union. The maternal grandparents assisted with taking care of the twin children during their infancy. Three years after the birth of the twins, the mother died. The defendant continued to allow visitation with the children’s maternal grandparents until December 2009 when Plaintiff’s kept the children for ten (10) days longer than had been arranged. Following this visitation, defendant expressed his concern that the children were not being properly supervised and his concern that the children were being exposed to heavy equipment and recreational vehicles. Defendant communicated that the children would not be allowed to visit the grandparents at their home, and encouraged the grandparents to visit the grandchildren at the Defendant’s home instead.

Between March 2010 and September 2010 no visitation between the twin children and the maternal grandparents took place. In August of 2010 the Plaintiff’s filed a petition for visitation with the South Dakota courts requesting that they have the children at their home for one weekend per month during the children’s school year, one week during Christmas break, and four consecutive weeks during the summer. Defendant did not accept this visitation plan, but did allow for visitation at the children’s home during the court proceedings.

In response to the petition for visitation submitted by the Plaintiffs, Defendant submitted a motion for a directed verdict which was granted.  The Plaintiff’s appealed this decision to the South Dakota Supreme Court. The Supreme Court of South Dakota affirmed the decision.

The South Dakota courts applied S.D. Codified Laws §§ 25-5-30 and 25-5-29(4) in reaching their decision. Under these statutes when the parent has been deemed fit to care for their child, there must be evidence of circumstances which would suggest serious detriment to a child in order to grant visitation to a non-parent. No such evidence was presented in this case.

Labels for the post: visitation, twins, extraordinary circumstances, grandparent, custody, detriment, ranch, matter of law, best interests, parental rights, time spent, grandchild, nonparent, conclusions of law, custody and control, parental unfitness, parental, bonded, lived, substantial relationship, right to custody, child’s parent, primary caretaker, grandchildren

Title: Rhode Island: Supreme Court Affirms Fathers Rights Remain Terminated. BY: Korinne T.

Link for Opinion: http://caselaw.findlaw.com/ri-supreme-court/1588123.html

The Rhode Island Supreme Court held In Re: Jazlyn P., No. 2010-387-Appeal., December 09,2011 – RI Supreme Court that the father of a minor child would not be entitled to parental rights, despite there was insufficient evidence in the record of cruel and abusive conduct.

The maternal father of a minor child appeals from a Family Court decree terminating his parental rights with respect to his daughter. The child’s father argued certain exhibits during the trial were improperly admitted into evidence and that the trial court erred in terminating his parental rights.

A trial on the petition to terminate Mr. Patino’s parental rights was held in Family Court in September and October 2010. The Rhode Island Department for Children, Youth, and Families (DCYF) alleged that both parents had “committed, or allowed to be committed, conduct toward any child of a cruel or abusive nature.”

The minor child’s half brother, Marco, had been admitted to the Hasbro Children’s hospital for injuries and died in the evening hours of his admission to the hospital. Doctor’s manifested a concern for minor child, Jazlyn, and requested that she be admitted that same day “for medical evaluation of possible child maltreatment and safety.” It was discovered that Jazlyn had sustained posterior rib fractures that were in the process of healing.

Testimonies of both Marco’s injuries and Jazlyn’s injuries were admitted as full exhibits label exhibit 1and exhibit 2 over father’s objection. Dr. Baron testified about Jazlyn’s fractures and went on to testify about how Jazlyn’s maternal mother and grandmother had reported to her that the Marco had been injured by Jazlyn’s father, Michael Patino.

The transcript of the interview which had taken place with Detective Cardone was also listed as a full exhibit revealing that the day before the boy was admitted to the hospital the two of them had been wrestling on the bed when they both fell off and Mr. Patino had fallen on top of the boy. Mr. Patino also acknowledged he had “accidently’ punched Marco through a text message he had sent to the boy’s mother.

When Mr. Patino was called to the stand he exercised his Fifth Amendment privilege. The trial justice then delivered his bench decision and the decree terminating Mr. Patino’s parental rights was entered.

The Rhode Island Supreme Court reviewed all of the evidence that was presented by DCYF showing the Jazlyn suffered abuse in the household in the presence of Mr. Patino. Mr. Patino did not produce any evidence or witnesses to prove that he would not endanger Jazlyn. Which in turn the Supreme Court affirmed the decree of the Family Court terminating his parental rights.

Labels: Terminate, Parental Rights, Cruel and Abusive Conduct, DCYU, Temporary Custody

Pennsylvania Supreme Court Changes Paternity Standard to Best Interest. BY: Anthony T.

Links for opinion: http://www.pacourts.us/T/SupremeCourt/SupremePostings.htm, and http://caselaw.findlaw.com/pa-supreme-court/1595238.html.

The Pennsylvania Supreme Court in K.E.M. v. P.C.S., J-74-2011, No. 67 MAP 2011, 2012 WL573638 (Pa. Feb. 21, 2012) reconciled the related doctrines of paternity estoppel and the presumption of paternity by establishing a new guideline, the best interest of the child.

The case stems from the birth of a child due to the mother’s extra-marital affair. The married couple had separated, but neither had filed for divorce. A genetic test eliminated the husband as the child’s genetic father. The alleged father refused to be tested. The husband did not sign the birth certificate, but claimed the child on the couple’s joint tax filings. The alleged father provided some contact and gifts.

The mother filed a complaint to have the alleged father pay child support. The alleged father filed to dismiss on the grounds the child had been held out as the husband’s own in an intact marriage. The common pleas court granted the motion to dismiss considering that reconciliation was possible and the husband “continued to provide emotional and financial support”. KEM, No. 01174SA2010, slip op. at 9 The mother appealed. The Superior Court affirmed the lower court and the case moved to the Pennsylvania Supreme Court for consideration.

The Court considered arguments from both sides citing two cases concerning paternity, Fish v. Behers, 559 Pa., 741 A. 2d (1997) and Brinkley v. King 549 Pa., 701 A. 2d (1997). The Fish case determined limitations on presumption of paternity in cases of marriages that are not intact. The Brinkley case holds that a husband cannot deny parentage unless he can prove lack of access or an inability to produce children.

On page 19 and 20 of its decision, the Court stated that “we do not believe a court should dismiss a support claim against a purported father based on estoppel theory” rather, a court could consider genetic testing results and application of the Uniform Act on Blood Tests to Determine Paternity. The Court considered the lower court’s thought of reconciliation possibilities unsustainable and that without the possibility of child support in a broken marriage, the child’s best interest must be served. In support of this notion, the Court’s decision, in remanding the case for further development, advised that suspected fathers testify and be subject to testing and recommended that a court appoint a guardian ad litem to look after the child’s best interests.

It could be expected that this decision will have family courts examining the financial status, father-child relationship and other aspects of a potential father. It is noteworthy that in the KEM opinion, on page 15, the Court seems to call for legislative action, stating that the “role of paternity by estoppel…in absence of definitive legislative involvement” apparently necessitated the Court having to rule on the matter.

Tags: presumption of paternity, child support, paternity by estoppel

Title: Oregon Father’s Request for Custody Modification Reversed. BY: Amanda S.

Link for opinion:  http://www.publications.ojd.state.or.us/Publications/A147616.pdf

The Oregon Court of Appeals held in In the Matter Of Marriage Of Sconce, a father who is seeking custody modification would not be granted this motion on the grounds of substantial change in circumstances just because the mother wanted to move the children to another state.

In this case, the mother and the father had had a baby with Down Syndrome in 1999.  In November 2001, the mother was granted custody of the child and the father was granted liberal visitation rights.  In 2003, the father wished to gain custody because of the mother’s new husband who had threatened the child; however, this motion was denied in 2004 because the husband was killed in a car accident. 

In June 2010, the mother moved the court for an order modifying the parenting time of the father, in order for her to relocate the child and her three other children to Idaho to attend college.  In response to this motion, the father took this opportunity to again ask for a change of custody alleging that the mother would not be able to meet the needs of the child if she were to relocate.  The court denied the mother’s motion to modify parenting time, stating that it was not in the best interest of the child to move.

The trial court addressed the father’s request by agreeing with the father that circumstances had changed dramatically since 2001 and he should be granted custody.  However, the Oregon court of Appeals determined that that trial court erred because they should have looked at the starting point as the 2004 decision because it was the last decision about custody.  Given this error, the court reversed the decision stating that the proposed move alone was not a substantial enough change to require a change in custody.

Labels for the post: child custody, substantial change in circumstances, custody modification