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

Title: Oklahoma: Appeals Court reverses trial court’s decision for modification of custody. BY: Aimie S.

Link for Opinion: http://caselaw.findlaw.com/ok-court-of-civil-appeals/1590612.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawOklaCivApp+(FindLaw+Case+Law+Updates+-+OK+Court+of+Civil+Appeals)

The Oklahoma Court of Appeals held in Johnson V. Wingert 268 P.3d 145 (OK CIV APP DIV. 3, 2011) that a modification of custody based on a change of circumstances requires application of the Gibbons test which requires a showing of “a permanent, substantial and material change of condition”. The Appeals court determined the evidence failed to prove such a change.

The Father of the minor child petitioned the court for a modification of custody when the child was age 6. Until then the child had lived with the mother, with the mother being the custodial parent, and the father having visitation.

At the hearing for the father’s motion, the mother failed to appear and the father was granted sole custody, at which time the child was removed from school, without notice to the mother, and taken to Virginia.

The mother filed a motion to vacate alleging the father had told her to disregard the motion to modify because he was not planning to proceed. The motion was vacated on a temporary basis and an evidentiary hearing was held.

The trial court concluded based on evidence regarding the father’s improvement in circumstances relating to employment and remarriage and the mother’s failure to prove a record of responsibility, that the child’s best interest was to be placed in the primary custody of the father and granted visitation to the mother.

On appeal, the appellate court held that the trial court applied the wrong standard in its custody determination. Because there was no actual “joint custody”, the mother acted as “de facto sole custodian” of the minor, the “best interest of the child” test should not have been used in determining custody but rather the Gibbons test which states the parent asking for modification must establish: 1) a permanent, substantial and material change in circumstances; 2) the change in circumstances must adversely affect the best interests of the child; and 3) the temporal, moral and mental welfare of the child would be better off if custody is changed to the other parent as requested.

The appellate court determined that neither parent was “glaringly inadequate” or presented safety concerns, and also determined that the evidence failed to show that the child’s temporal, moral and mental welfare would be better off with the custody changed.

Labels for the post: child visitation, modification of custody, gibbons test

Title: Ohio: Appeals Court Holds Mother denied residential parent and legal custodian. BY: Juston S.

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

In the case of D.W., Appellee v. T.R., Appellant; Appellee father filed a motion to modify the allocation of parental rights and responsibilities, seeking to be designated as the residential parent and legal custodian. Over objections, the Lucas County Court of Common Pleas, Juvenile Division (Ohio), adopted the magistrate’s decision designating the father as the residential parent and legal custodian. Appellant mother filed an appeal.

The mother’s main argument was that the father failed to demonstrate any substantial change of circumstance. The court held that there was evidence of a change of circumstances warranting that reallocation of parental rights, pursuant to R.C. 3109.04 it would be in the interest of the children. There have been many times that the mother interfered with the father's visitation. This included the mother’s refusal to allow the father access to counselors, or to notify him that the younger child had a prosthesis, which demonstrated an overall desire by the mother to undermine the father’s role.

On December 7, 2006, the parties filed a consent judgment entry with the trial court, designating defendant-appellant T.R. ("mother") as the sole residential parent and the legal custodian of the parties' two minor children.

On February 2, 2010, father filed a motion to modify the allocation of parental rights and responsibilities. In his motion, father alleged, inter alia, that a change of circumstances had occurred because of mother's consistent failure to follow the trial court's order regarding visitation. The court held a hearing on this motion on August 30, 2010. At the hearing, father testified to numerous dates that mother denied him visitation, including instances in December 2006, January 2007, and on various holidays and vacations throughout 2007 and 2008. Mother denied that she withheld visitation from father on any of the dates he mentioned.

Mother withheld things from the father such as the oldest child threatening suicide if they had to stay with the father. Father’s visitation was taken away until such time as the child’s mental health was secured. After this time the visitation was resumed and there have been no such threats. Father suggested during his testimony that it was mainly mother's attitude and actions in front of the children regarding father that caused the older child to become hysterical and threaten suicide.

On November 2, 2010, the magistrate entered her decision granting father's motion to modify the allocation of parental rights and responsibilities. In her decision, the magistrate found, inter [**8] alia,

[T]here were numerous times that mother denied father his visitation. Mother has repeatedly and consistently allowed father to parent as little as possible. She thwarts him in any way she can even to the detriment of the children. She gives lip service to fostering a relationship between father and his sons, but her actions are to the contrary.

Based upon the in camera interview and evidence adduced at hearing and upon consideration of the factors contained in O.R.C. 3109.04, a change has occurred in the circumstances of the children and in the circumstances of the residential parent such that a modification is necessary to serve the best interest of the children and the harm likely to be caused by a change if [sic] environment is outweighed by the advantages of the change of environment to the children.

Based upon the evidence adduced at hearing and in consideration of the in camera interview of the child, it is in the best interest of the children that their father be designated as the residential parent and legal custodian.

The mother subsequently filed objections to the magistrate's decision. On April 21, 2011, the trial court affirmed the magistrate's decision in [**9] all aspects.

The appeal was affirmed also stated “It is clear from the record that independently mother and father are good parents who love and care for their children. Unfortunately, the parties disdain for each other has resulted in a nearly constant state of contentious litigation over ten years, with the children caught in the middle. In moving forward, we exhort the parties to give greater consideration to the effect their disagreements have on their children. For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Mother is ordered to pay the costs of this appeal pursuant to App.R. 24.”

 CORE TERMS: guardian ad litem, interview, visitation, older, younger, closing arguments, recommendation, best interests, appointed, custody, parental rights, in camera, assignments of error, counselor—, change of circumstances, residential, modification, parenting, guardian, child's best interest, prior decree, evidence adduced, appointment, custodian, juvenile, modify, recommended, maternal, suicide, inter alia

Title: North Dakota: Scott D. Thompson, Plaintiff and Appellee v. Amanda S. Thompson, n/k/a Defendant and Appellant Amanda S. Thompson Wetch. BY: Rhene Rehn

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

The Cass County District Court, East Central Judicial District (North Dakota), denied the mother’s motion to amend a second amended judgment. The Judgment granted the father sole physical custody of the parties’ two minor children throughout the school year and joint physical custody in the summer.

The mother appealed. She filed a motion to amend the judgment stating that the one child had not lived with the father for a few years, and also did not have regular visitation with the father. She also alleges that the children had been living with her for a few years and the father had only seen the children less than once a month.

The trial court denied the motion that the mother filed to amend the second amended judgment. The reasoning for this was that the mother had not alleged a prime facie case showing modification was necessary.

The state supreme court found that the mother had made a prima facie case for modification pursuant to N.D.C.C. (statute)14-09-06.6(6), and that the trial court should have an evidentiary hearing to determine if the modification was necessary. 

The state supreme court reversed the trial court’s judgment and remanded the case to the trial court for further proceedings.

Labels for the post: child custody

Title: New Mexico: Appeals Court holds order modifying custody and parenting plan. Mother has custody and father visitation. BY: Susanne M.

Link for opinion: http://statecasefiles.justia.com/documents/new-mexico/court-of-appeals/30-985-12.pdf

The New Mexico Court of Appeals held in Perrault v. Perrault, 2011 N.M. App. Unpub. LEXIS 282 (N.M. Ct. App. July 11, 2011) that order modifying custody and parenting plan for mother Debra Ann Perrault, a/k/a Debra Ann Poor can move with the children to the state of Arkansas with her now new husband.

Jacob Henry Perrault (Father), appeals from the district courts order on Debra Ann Perrault (Mother) verified motion to modify parenting plan and time-share agreement. The order allows mother to move children, ages five and two, to Arkansas for the school year with visitation in summers and holidays to father.

Father also contends that the district court erred in refusing the deposition testimony of his son, that mother had beaten him and that she forces her son to tell people that father beats him. He goes on to say that the district court erred in refusing testimony of CYFD investigators had substantiated child abuse against mother for beating their son, also father says district court did not give proper weight to the photographs that lawyer submitted showing bruises on his son from beating from mother. Father argues that the child should be close by so he can monitor whether they are being beaten my Mother. Mother admits hitting the child once and deeply regrets it and she has been subject or CYFD intervention, and that she had complied with all of CYFD’s requirements for regaining primary physical custody of the children.

The court held that the five year old son is not capable of understanding the questions asked of him during a deposition, so the court quashed it. The court believes the one time incident of the mother hitting son was a lapse in mother’s otherwise normally good judgment, and father could not specify any other specific time that children had been in danger or produce any evidence thereof. The court held to the best interests of the children in allowing them to move to Arkansas with mother, in retaining legal joint custody in father and mother, granting father summers and other visitation. The court weighted all the evidence relevant to the best interest of children including father’s allegations and photographs, mother’s disclosures, and mother’s affidavit concerning her actual job prospects, the available schools, and a family support system that are available to her in Arkansas and not as available to her in New Mexico.

Labels for the post: custody, best interest, deposition, investigator, photographs, beating, visitation, quashing, modify, parenting

Title: New Jersey: N.H. Gives up Custody of Two Children. BY: Dana M.

Link for opinion: http://scholar.google.com/scholar_case?case=9307893643036032811&q=New+Jersey+2012+grandparent+visitation&hl=en&as_sdt=2,50

January 26, 2012 it was decided in the Superior Court of New Jersey defendant N.H. would lose custody of her two children.  N.H was unable to provide for her children and being with their mother was noted by the New Jersey Division of Youth and Family Services that N.H. was unfit and unwilling to provide a stable safe envrioment for the children.  Due to the safety and development of the children they were removed from her care and placed in foster care in January 2009.

The fostering parents showed interest in adopting the children; N.H. tried to regain custody in appeals in November 2010 and failed to show up to court.  This terminated N.H.’s parental rights

N.H. then argued the Division failed to provide the correct options and services to her by not allowing her sister to accept custody of both children.  The court ruled that going back on their judgment would do more harm than good for the children being they have been with the adopted family for so long.

Labels for the post: child visitation, aunt, grandparents visitation

Title: In RE the marriage of: Christine M. Schroeder, now known as Christine Reuter, Petitioner-Respondent, v. Ronald E. Schroeder, Respondent-Appellant. BY: Amber L.

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

The court of appeals of Wisconsin, district one affirmed the judgments of the circuit court. The circuit court’s order was consistent with the recommendation of the child’s guardian ad litem to be in the best interest of the child.

Ronald E. Schroeder appealed the order of the circuit court relating to child custody, support modification, access to school records, and waiver of fees. The court concluded the circuit court properly exercised its discretion as to each issue, and was affirmed.

April 2008, Schroeder was sentenced to six years initial confinement and twelve years extended supervision on thirty-one various charges, including two counts of second-degree sexual assault of an unconscious victim, in Waukesha County. June 2008, the state filed a motion to hold open his child support obligation during his imprisonment. In September 2008, he moved to modify the placement order to include supervised visits, every other weekend, for two hours. He also sought to write letters to and receive letters from, A.S. on a regular basis.

The court denied the change in placement he had no insight into the trauma his child would likely experienced by visiting him in prison.

The mother, Christine Reuter petitioned the court to enforce the existing placement order by prohibiting Schroeder from sending any correspondence to A.S., contending that the letters were technically unsupervised.

On August 13, 2009 the circuit court denied Schroeder’s request to change placement. It concluded that it was not in the best interest of the child and that it was impractical in any event because the court-approved visitation supervisor would not be ordered to travel to the correctional facility. They also declined to force Christine Reuter to bear the cost of transporting the child two hundred miles in order to facilitate the visits. They were not denying Schroeder the physical placement that was previously provided, but it was noted that enforcing the order was impractical under the circumstances.

Title: Nebraska Supreme Court Upholds Appeal. BY: Becki E.

Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/lnacui2api/delivery/printdoc.do?jobhan

The Nebraska Supreme Court held that IN RE INTEREST OF KARLIE. D., A CHILD UNDER 18 YEARS OF AGE; STATE OF NEBRASKA, APPELLANT, v. GARY D., APPELLEE, AND MARTHA D., INTERVENOR-APPELLEE 283 Neb. 581; 2012 Neb. Lexis 44

it would be in Karlie’s best interest to be permanently awarded to her paternal grandmother, Martha D.

Karlie was born in August 2007 to Kara B. The state immediately petitioned custody of the minor child after she tested positive to drugs at birth. At this time the child’s biological father was unknown. Karlie was placed in foster care a few days after birth. On September 10th 2007, Gary D. petitioned the court for custody claiming he was Karlie’s father. The order was denied until paternity could be established. However. Gary was granted visitation to which he frequently brought his mother, Martha D, to accompany him on these visits. In August 2008 paternity was established and Gary D. was granted custody. Due to his hectic work schedule Martha D. often provided Karlie with daycare, sometimes overnight. The courts were aware and never expressed any conflict with this arrangment.

On March 23, 2009, both Gary and Karlie tested positive for methamphetamines. Karlie was placed with Martha at this time. On March 26, 2009 Karlie was removed from Martha’s home due to the positive drug test. Martha disputed stating it was due to a child molestation allegation against Karlie’s uncle. After a department investigation, it was determined this accusation was false. But Karlie was not placed back with Martha. In November 2009, the state moved to have Gary D., rights terminated and Martha filed to have Karlie placed with her. Shortly after this Gary D. died. On March 31, 2011, the juvenile court held that it would be in Karlies best interest to reside with her grandmother, but does not remove the court as guardian. And would schedule another hearing to determine if any subsidy or medicaid coverage was needed. At that June 16, 2011 hearing the Department presented a transitional plan that increased Martha and Karlies time together and over the course of 11 ½ months. At this time the courts did not remove themselves as guardian or grant custody to Martha.

Martha argued that the State could come in at anytime and take Karlie away. The State argued that Martha was too old to care for Karlie and that it was in Karlie’s best interest to stay with her younger and bonded with foster parents. While it is recognized that Martha is older that does not disqualify her from caring for Karlie. And while Karlie is attached to her foster parents she also has a lifetime bond with her paternal grandmother, Martha D. The State argues Karlies behavioral problems are linked to visits with Martha, there is no evidence to support that. A child psychologist was brought in as well but the court finds that her conclusions are not of a consistent or solid merit and the courts will not put much consideration to them.

Nebraska §43-246(5) (Cum. Supp. 2010), when separation from the juvenile’s home is necessary, relatives are to be considered “as a preferred potential placement resource.” This is also stated in the Departments own rules. Martha, wishes to adopt Karlie and records show she is physically, financially and in every other way capable to care for Karlie on a permanent basis.  Karlie best interest is served by placement with Martha.

Labels for post: child custody, grandparent rights, visitation, custody, parental death.

Title: Michigan: Change of Domicile can lead to change in custody of a child. BY: April A.

Link for Opinion: http://scholar.google.com/scholar_case?case=2188650731694083991&q=Michigan+court+cases+with+child+visitation+&hl=en&as_sdt=2,45&as_ylo=2012

The Michigan Court of Appeals held that in Peck V. Peck, Minn. Ct. App (Peck V. Peck, 2012) the circuit court was in err to change the custody of a child because a move out of state was not necessarily going to better the life of the child, but was reversed by the court of appeals stating that even a small raise and better benefits would better the livelihood of the child.

The defendant (Sarah Catherine Peck) and plaintiff (Scott Kevin Peck) shared joint legal custody of their son, with Sarah having sole physical custody and Scott receiving parenting time every other weekend. Plaintiff has consistently exercised his parenting time with his son.

In April 2011, Sarah moved the circuit court for permission to change her son's domicile from Midland, Michigan to Fayetteville, Arkansas, where she had accepted a lateral transfer with her employer. Sarah proposed a modified parenting time schedule for Scott, providing him with 7 to 12 visits per year, including all holidays and the entire summer, for a total of 95 to 98 overnights, in addition to frequent telephone and Skype contact. Although he only received 87 overnights under the schedule then in place, he believed the proposed plan would reduce his parenting time because he would be unable to participate in day-to-day events, such as doctor visits, sporting events, and school functions. Scott argued that Sarah's move constituted a change in circumstances and that it was in their son's best interests that he be given sole physical custody.

The parties appeared before a referee who denied both motions. Both parties objected and requested a de novo review by the circuit court. They stipulated that the circuit court could make its determination based on the transcripts and exhibits from the referee hearing.

The circuit court denied Sarah's motion for change of domicile. The circuit court concluded that, while the proposed move was not based on her desire to defeat Scott's parenting time, however, the move to Arkansas would not improve the child's quality of life. In support of that conclusion, the circuit court found that the move would result in a loss of access by the child to his extended family here in Michigan, and that Sarah's lateral job move, even though it involved a raise, would not provide a better quality of life for her and that any potential future job advancement was speculative. The circuit court also noted its confidence that the parties would comply with a modification of Scott's parenting time, if a change of domicile was granted, but nevertheless, held that "[n]o order of this Court as to Scott's parenting time could provide the kind of positive, intimate and regular parenting time he has enjoyed."

 The circuit court determined that Sarah's move to Arkansas was a change in circumstances sufficient to revisit custody. After evaluating the statutory best interest factors, MCL 722.23, the circuit court concluded that the parties were equal on all except factor (d) (continuity), factor (j) (facilitating a relationship), and factor (l) (any other factor), for which it concluded Scott held the advantage. On the basis of these findings, the circuit court granted Scott's motion to change custody and awarded sole physical custody of the minor child to the Scott.

The Court of appeals reversed the circuit court's denial of defendant's motion to change domicile and its grant of plaintiff's motion to change custody, and remand for entry of an order granting the change of domicile and denying plaintiff's motion to change custody

Labels for the post: Custody, visitation, change of domicile

Maryland: Appeals Court Holds that Maryland Uniform Child Custody Jurisdiction and Enforcement Act not a violation of due process. BY: Jenn W.

The case of Toland v. Futagi , Mr. Toland wants to have full Custody of his daughter who is currently in the custody of her grandmother in Japan. Part of the issue here is who has actual jurisdiction over this case. The child has lived in Japan her entire life. The court dismissed the original case after deciding because the child had never lived in Maryland they had no actual jurisdiction. After being denied custody Mr. Toland appealed on the grounds that his right to due process was being taken away, and that the Maryland Uniform Child Custody Jurisdiction and Enforcement Act were not applied correctly.

The court after careful consideration upheld the original decision to dismiss the case as they found that (1) the Japanese guardianship decree did not constitute a violation of Toland's due process rights; and (2) Japan was the home state of Erika under the Act because Erika had lived exclusively in Japan for her entire life. The Court of Appeals affirmed, holding (1) the circuit court's dismissal of Toland's complaint did not violate his due process rights, as they were not implicated by the Japanese decree; and (2) the circuit court properly applied the Act to conclude that it should not exercise jurisdiction over Toland's complaint to establish custody, as the child had no connection with Maryland, and Japan had not declined custody jurisdiction.

http://mdcourts.gov/opinions/coa/2012/83a11.pdf

Labels/Tags: Toland v. Futagi, Maryland Uniform Child Custody Act, Enforcement Act, Japan

Title: Maine: Supreme Court holds that grandmother not entitled to visitation under Grandparents Visitation Act. BY: Kara S.

Link for opinion:  http://caselaw.findlaw.com/me-supreme-judicial-court/1589364.html

The Maine Supreme Court held in Katon v. Brandi, 2011 ME 131; 32 A.3d 1047 that a grandmother who had improperly withheld her granddaughter from her father was not entitled to visitation under the Grandparents Visitation Act.

Laurie Katon, the maternal grandmother in this case, petitioned the court for visitation rights to her granddaughter.  Throughout her granddaughter’s life, she had a normal grandparent relationship with her granddaughter with the exception of the time period from August of 2008 to August of 2010 when the granddaughter lived with Katon.  During this two year time period where the granddaughter lived with her grandmother, Katon did everything she could to prevent the child from having any contact with her father.

The Grandparents Visitation Act requires that there be “urgent circumstances” at hand in order for a grandparent to be granted visitation rights.  The Maine district court denied Katon’s petition on the grounds that she did not have any standing for urgent circumstances based on the fact that she had undermined the relationship of the child and the child’s father while the child was in Katon’s care.  The Supreme Court held the district court’s decision on the same basis and also added that Katon was trying to “…benefit from her own unwarranted conduct.”

Labels for post:  child visitation, grandparents, Grandparents Visitation Act

Title: Louisiana: Father is entitled to more visitations but still cannot claim the income tax deduction for his child every other year. BY: Marisol S.

Link for opinion: 2012 La. App. LEXIS 82, *

The Louisiana court of appeals held in Skipper v. Skipper , 2012 La. App. (La.App. 2 Cir. Feb. 1, 2012) Mark(Father) shall have visitation with Jake every other weekend, from Friday evening, through Tuesday morning, when he returns the child to school. Michele (Mother) shall pick the child up from school every other Tuesday afternoon. If Mark is required to work during any of his periods of visitation, or for any reason cannot transport the child to or from school during his periods of visitation, Mark shall return the child to Michele, with advance notice, at the normal exchange location. The judgment of the trial court is amended with regard to child visitation and is affirmed as amended. The portion of the judgment which would allow the father to claim the income tax deduction every other year is hereby reversed. Costs are assessed to both parties.

Marcus Joe Skipper and Michele Baker Skipper were married on April 28, 2001, and divorced on June 26, 2008. Of the marriage, one child, Jake, was born on February 19, 2003. Jake has been diagnosed with Usher Syndrome, a genetic condition which affects his hearing, vision and mobility.

On June 26, 2008, the parties entered into a joint stipulation whereby they agreed to share the joint custody of Jake, with Michele being designated the domiciliary parent. Their visitation schedule provided that Mark would have visitation with Jake every other weekend and two weeks during the summer months. The trial court entered a consent judgment, ratifying the joint stipulation. The right to claim Jake as a dependent for state and federal income tax purposes was not mentioned in the joint stipulation/consent judgment.

On March 7, 2011, Mark filed a motion to modify custody, alleging, inter alia: Michele had refused to be flexible with the visitation schedule, refused to agree to reasonable requests for additional visitation, scheduled events and appointments that conflicted with Mark's visitation, refused to allow Mark the opportunity to provide childcare for Jake when she was unable to care for him, failed to notify Mark about appointments, activities and events concerning Jake. Mark also requested a reduction in child support and to be allowed to claim Jake each year as a dependent on state and federal income tax returns.

In response, Michele filed a rule to increase child support, alleging: (1) the income of both parties had changed; (2) Jake's monthly expenses had increased due, in part, to his disabilities; (3) daycare costs had increased. Michele also objected to Mark's request that he be allowed to claim Jake as a dependent for income tax purposes each year.

A trial court granted the father's motion to modify custody under La. Civ. Code Ann. arts. 131 and 134, finding that the four and a half days of visitation out of every 30 days that the mother proposed were insufficient. On appeal, the court noted that both parents were fit and loving. However, the visitation schedule set out by the trial court was not in the best interest of the child where it followed the father's work schedule. Also the statute clearly provides that the non-domiciliary parent, is entitled to claim the dependency deduction if the court finds that the right to claim the deduction would substantially benefit the non-domiciliary parent without significantly harming the domiciliary parent. Here, Mark failed to present any evidence to prove that the income tax deduction would substantially benefit him, without substantially harming Michele.

Labels for the post: child visitation, child support, best interest of child.

                                                                  

Title: Kentucky: Appeals Court Reverse and Remands Judgment on Custody Modification Motion. BY: Crystal S.

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

The Kentucky Court of Appeals ruled that in Corns v. Corns, 343 S.W. 3d. 622, 2011 Ky. App. LEXIS 113 (Ky. CT. App. 2011) the mother’s motion to change custody violated the father’s right to due process under the 14^th Amendment because he had not received notice that such hearing would be taking place.

Taffy and Gary Corns, who had divorced in 2007, have a daughter, Allison Corns of whom they share joint custody. When joint custody was established, there had been no primary residence decided. In 2008, Taffy Corns had filed for a custody modification based on the idea that her and Gary could not decide on which district Allison should go to school in. Taffy felt that it would be in the best interest of the child for her to go in the specific county. The Court found that there was no proof that it would be in the child’s best interest, and denied the motion.

In 2009, Gary filed in court to prevent Taffy from allowing Allison to have a tonsillectomy. Gary felt that the procedure was unnecessary despite the medical opinions Taffy had received. The Court allowed Gary to get a second opinion from a doctor of his choice. The doctor Gary had sought opinion from also concluded that the procedure was unnecessary.

At the hearing for the tonsillectomy case, Taffy’s lawyer also asked that the Court review and consider custody modification due to the fact that it had become impossible for Taffy and Gary to agree on any major decisions regarding their daughter, and that sole custody was needed.

In this situation, the Court has no option but to change the custody arrangement. The Court decided that Gary’s inability to agree to a tonsillectomy for his daughter put her in medical danger, and awarded Taffy with sole custody. The Court also stated that Gary would be allowed visitation rights three weekends per month. The established time would be from 6pm Friday to 6pm Sunday, and that Gary and Taffy would meet halfway between the residences to exchange the child.

Gary appealed this decision of the Court stating that the initial hearing had only been scheduled in regards to the tonsillectomy case, and had not been a modification of custody hearing. The Appeals Court found that even though it had been discussed, Taffy’s attorney had only filed as a Response, not as a Response and Motion.

Due to this finding, the Court ruled that due process had not been followed as Gary had not been given the opportunity to be heard or call witnesses. The Appeals Court reversed and remanded the trial court’s decision.

Labels for the post: child custody, Kentucky