Nebraska: Appeals Court Holds that Grandparents are not Entitled to Visitation Rights - BY: Kristie W.

Link for opinion: http://www.supremecourt.ne.gov/sites/supremecourt.ne.gov/files/coa/opinions/a12-192.pdf

The Nebraska Court of Appeals held in Muzzey v. Ragone, 20 Neb. App. 669 (2013) that the maternal grandparents of a child are not entitled to grandparent visitation rights if the parents get married after the commencements of court proceedings.

The mother and child lived with the maternal grandparents for the first year and four months of the child’s life. The grandparents cared for and supported the mother and child since the mother and father were still in high school. The grandparents took the child to daycare, doctor’s appointments and bought him diapers, formula, and necessities. The mother and father were not married. The mother and child moved out of the grandparent’s home, and the mother informed the grandparents that they would no longer be able to see the child. The grandparents then filed for grandparent visitation on the basis that the mother and father were not married, but paternity had been determined as per the grandparent visitation statutes. After court proceedings had started, the mother and father got married. The mother and father filed a motion to dismiss on the grounds that the grandparents no longer had standing.

The district court found that a significant beneficial relationship exists, or had existed, between the grandparent’s and child and that it is in the best interest of the child to continue the relationship. The parents appealed this decision on the grounds that the grandparents no longer had standing in the case since the parents had been married after proceedings started.

The Court of Appeals concluded that the grandparents did in fact have a legal right to seek grandparent visitation, but as a result of the marriage of the parents the issue of grandparent visitation is moot according to the grandparent visitation statutes.

In Contrast to Statutory Provisions, Oklahoma Supreme Court Rules to Deny an Order to Modify Child Support Based on the Basis of Parent’s Divorce Agreement. - BY: Kristyn T.

Family Law Case Summary: Oklahoma Jurisdiction

SCUNGIO v. SCUNGIO, 2012 OK 90 - Okla: Supreme Court (2012)

In Contrast to Statutory Provisions, Oklahoma Supreme Court Rules to Deny an Order to Modify Child Support Based on the Basis of Parent’s Divorce Agreement

In 2001, Mark Anthony Scungio (Father) and Margaret Sue Scungio (Mother) adopted their three foster children, siblings, two of whom were special needs children with serious psychological disabilities. In 2004, the parties separated in contemplation of divorce due to the Father’s admitted “emotional abuse to his wife and children” resulting in irreconcilable differences. In preparation for the divorce, the parties entered into a written agreement entitled “Contractual Agreement – Separation and Parenting Plan to be incorporated into divorce decree.” Under the agreement, the Mother became the custodial parent and the Father assumed support obligations. In consideration of the disabled children, the Agreement acknowledged that said children may require substantial care into adulthood; the Mother agreed to provide continued care and the Father agreed to provide continued child support. In 2009, the divorce was finalized and the Father retired from his position with the United States Air Force.

Subsequently, the Oklahoma Department of Human Services filed a "Notice to Review and Modify Support Order" in its administrative court on behalf of the Father asserting that the child support was not in accord with state guidelines and that the Father’s change in income required a reduction in the amount. The matter was transferred to district court. The mother moved to dismiss the motion to modify based on provisions of the parties' written Agreement which had been incorporated into their divorce decree. The Mother argued that the Agreement clearly expressed an intent that child support not be subject to the statutory requirement of modification in the event of a change in Father’s income.

The trial court denied the motion to dismiss, holding that the parties' Agreement failed to demonstrate intent not to be subject to the statutory requirements. Both the Mother and the Father requested appeal and the Supreme Court granted certiorari review to resolve the procedural issue of whether the motion to modify child support was properly before the district court, and the substantive issue of whether the Agreement clearly demonstrates intent to be free of Oklahoma statutory provisions concerning support modifications. 

The Court concluded that the procedure utilized to place the motion before the district court was authorized by statute. In reviewing the substantive issue, the Court applied contract law to the Agreement. Specifically, the Court pointed to two contradictory provisions in the parties’ Agreement; one of which stated clearly that the Agreement’s support provisions “…shall not be modified or changed except by written mutual consent of the parties...” and the conflicting provision which  provided that the Agreement should be “…governed in accordance with the laws of the state of Oklahoma.” On the primary basis that any decision regarding child support must always be guided by the best interests of the child, the Court argued that ambiguity in a contract must be clarified by viewing the facts and circumstances of the respective case and not simply via the language itself. The Supreme Court therefore concluded that the parties clearly demonstrated their intent that there be no modification of child support without their mutual assent and it was an error for the district court to hold to the contrary. The trial court was directed to deny the petition to modify child support.

http://scholar.google.com/scholar_case?case=4014974430190752090&q=%22child+custody%22&hl=en&as_sdt=4,223,224,226&as_ylo=2012

Texas Court of Appeals - BY: Crystal T.

Link for Opinion:  http://www.supreme.courts.state.tx.us/ebriefs/11/11089101.pdf

The Texas Court of Appeals states there is no citation for this opinion yet. 

Richard Hompesch, III. and Carrie Dean were married September 2010.  The couple separated 19 days after they were married, and Carrie who was already pregnant with Richard’s child moved to New Mexico without notifying Richard of this decision.  In February 2011, Richard filed for divorce in Dallas County.  Richard also filed a child custody proceeding in Texas before their child was born, and Carrie filed her own child custody proceeding in New Mexico after the child was born.  Carrie gave birth to a son in New Mexico, and he has lived with Carried in New Mexico since his birth.  Richard feels the right to have shared custody, and feels that Texas is the home jurisdiction, and that Carrie and their son should have to move back to Texas in order to share custody. 

Carried alleges that New Mexico is her son’s home state, because her son was born in New Mexico and has spent his whole life there, even though it has only been 5 months at the time.  Under the Uniform Child Custody Jurisdiction and Enforcement (UCCJEA), which is adopted by both Texas and New Mexico, says that New Mexico has jurisdiction to hear the child custody proceeding. However, a Texas trial court found it also had jurisdiction over the child custody proceeding.  Because Richard had filed the custody proceeding in Texas before the child was born, and Carrie answered it, a Texas court issued temporary orders regarding the child and New Mexico dismissed its case. 

On September 27, 2011 as Associate Judge ordered that Texas had and retained jurisdiction. The UCCJEA provides that it has exclusive jurisdiction basis for making a child custody determination.  Also there may be a court that has jurisdiction over a divorce, but not over a child custody determination.  This case questions the interpretation of the jurisdiction provisions of the UCCJEA. 

The Court concludes that a mandamus should be granted to render a correct judgment that the previous trial courts orders are void, that Texas lacks the subject matter to hear a child custody case, and that the trial court issuing the order dismiss the child custody proceeding.  New Mexico should have jurisdiction of the child custody proceeding. 

Wilson v. Davis - BY: Cheryl S.

Link: http://caselaw.findlaw.com/ms-court-of-appeals/1629712.html

The Mississippi Court of Appeals presumes that it is in the best interest of the child’s natural parent to have custody, not a grandparent. Grandparents do not have legal right to custody of grandchildren against a natural parent. Lucas v. Hendrix, 92 So.3d 699, 705–06(17) (Miss.Ct.App.2012) (citing McKee v. Flynt, 630 So.2d 44, 47 (Miss.1993)).     

Wilson v. Davis is an appeal that involves a child custody issue between the natural father and the maternal grandmother. The chancellor granted the grandmother custody of the minor child in respect that this would be in the best interest of the child. The child’s natural mother has recently deceased. The chancellor did not know that the natural parent presumption had been rebutted.

This case started out as a paternity and custody dispute between Concetter Davis (mother of minor child) and James Wilson in 2008. James is the natural father, but Concetter was granted custody. James has not been in Sha’Nyla’s life being an active father and taking responsibility for her, therefore should James be allowed custody? After Concetter died, the maternal relatives did not want to return Sha‘Nyla (child) to the father. Wilson then filed a petition to modify custody based on Consetter’s death. Pearlean Davis (maternal grandmother) tried to intervene and wanted to be guardian of Sha’Nyla.  

Because grandparents do not have legal custody rights when a natural parent is still involved, the case was reversed. However it is still in the making as to whether or not James is a fit father or if the grandmother’s request for guardianship shall be granted, or visitation rights applied.

Tennessee: Appeals Court Reverses Order that Father was to Receive Primary Placement of Children. - BY: Kelly S.

Link for opinion:  http://www.tncourts.gov/sites/default/files/garrettopn.pdf

  

The Tennessee Court of Appeals reversed the order in Garrett v. Garrett, No. E2012-02168-COA-R3-CV (Tenn. Ct. App. 2013) that the father of the children was to receive primary placement so the children could attend the school that they were attending prior to the divorce of the father and the mother.

The father had petitioned the court for change in placement because the mother had relocated her residence and by doing so changed the children to a different school that was within her local school district.  He argued that the mother violated the court order by enrolling the children in a different school because it was not a unilateral decision based amongst the two parents. 

The mother argued that she needed to change the children from their old school that they were attending prior to the divorce to the new school because it was close to her residence and since she was the primary placement provider, the children needed to change schools according to the jurisdiction laws. 

The Board of Education filed on behalf of the mother stating that the children could not attend the school they were attending because they no longer had a primary residence address within that school’s jurisdiction.

The father was given primary placement of the children and it was removed from the mother so that the children could still attend the school that they were familiar with and it was said to be in the best interest of the children. 

The court reversed the decision because the father failed to prove that there was a material change in circumstances that should award him placement and stated that the trial court erred in their decision of changing the custody order.

Nevada: Do paternal grandparents have legal right to see grandchild after Father terminates rights? - BY: Heather R.

Link for opinion: http://scholar.google.com/scholar_case?case=4125385506054896638&q=child+visitation+for+grandparents&hl=en&as_sdt=4,29

The Supreme Court of Nevada held in Bopp v. Lino, 885 P.2d 559 (Supreme Ct. Nevada 1994) that the grandparents of a child (who’s biological parent gave up rights) have no legal right for visitation with the child. Since the legal bond was done when the adoption papers were signed to the mother’s new husband took over custody. However, this is now being looked at with this type of situation case by case. Some rule that if it’s in the best interest of the child, then as long as the paperwork was filed in a certain matter of time. The Linos’s didn’t file a petition for visitation right at the time when the adoption was being taken placed.

The paternal grandparents of child (K.B) petitioned to have visitation 8 months after the adoption was final of K.B’s stepfather being given the right by biological father to adopt. The mother of K.B and new father (step-dad) challenged the visitation of the grandparents.

The court held that visitation be granted and the first Wednesday of the month they could have K.B for 2 hours over lunch. The parents of K.B were married shortly and divorced when K.B was 7 months old. Three months later the mother remarried and with consent of biological father, the new husband adopted K.B. The parents of K.B shot back and brought the Lino’s back to court stating that once the child is legally adopted, that the legal rights of the natural kindred of K.B’s grandparents were terminated at time of adoption.

The Bopps took the Lino’s back to court stating that the petition was not filed in a timely manner. The courts decided to reverse the court order that approved the Lino’s visitation on Wednesday’s due to the fact of the petition not being put in a timely manner. Therefore the court sided with the Bopps and visitation rights were terminated.

Alaska: The Superior Court Granted Shellie Sole Legal and Physical Custody of Children and Barred Charles from Any Contact until he Produced Professional Evidence - BY: Sheila P.

Link for opinion: http://courts.alaska.gov/

http://weblinks.westlaw.com/result/default.aspx?cfid=1&db=AK-CS-WEB&eq=search&fmqv=s&fn=_top&method=TNC&mt=Westlaw&origin=Search&query=da%28aft+4%2F30%2F2012%29+%26+%28CHILD+CUSTODY%29&rlt=CLID_QRYRLT8261453411185&rltdb=CLID_DB3739653411185&rp=%2FSearch%2Fdefault.wl&rs=AKCS1.0&service=Search&sp=AKCS-1000&srch=TRUE&sskey=CLID_SSSA2339653411185&sv=Split&tempinfo=date&vr=2.0

The Supreme Court of Alaska held in Charles J. v. Shellie J., Not Reported in P.3d, 2013 WL 1933117 (Alaska).the father of the children barred from any contact with the children until he produced professional evidence that such contact would no longer be harmful to them.

Charles and Shellie J. married for the second time in 2004. They have three children together: Faith, born in 2005; Jeremiah, born in 2006; and Grace, born in 2008. Shellie has another minor child, Joshua, born in 1999, who lived with the family as well.

Shellie suffered from mental illness during the second marriage. She was diagnosed with depression, post-traumatic stress disorder, and personality disorder. She was hospitalized many times.

There were two reported cases of domestic violence during the marriage. The first incident occurred in April 2009, when Charles struck Joshua on the face and head while the boy was fighting with his sister Faith. The second incident occurred in January 2011. Charles was alone with the children when two of them began to fight in a dark room. Charles responded by throwing a light bulb, which shattered and caused some small cuts to Jeremiah’s face.

Shellie obtained a Long Term Domestic Violence Protection Order for herself and the children. Charles also faced criminal charge of 4^th degree assault, which was heard in Veteran’s Wellness Court and dismissed after he successfully completed the Vet Center Anger/Domestic Violence Program.

Shellie filed a complaint for divorce. At trial the children’s counselor testified that the children were afraid of their father and that they claimed he had sexually and physically abused them. The children’ psychiatrist testified that the children’s anxiety and other symptoms had shown improvement through therapy but that contact with Charles would cause the children to regress.

Shellie and Charles gave conflicting testimony. Shellie testified that she had endured mental, physical, and sexual abuse from Charles, which Charles denied. He testified that Shellie was overly critical of his parenting and denied abusing the children.

The two treatment providers were not retained experts; their testimony was based on experience attending to the patient rather than being hired to review a file and develop an opinion.  Counselor Laurel Searcy, LPC, and Psychiatrist, Dr. Jill Abram, both examined the children as a member of the treatment team and based their testimony on their direct observations.

The court admitted the children’s hearsay statements because the counselor and psychiatrist testified that the statements were credible and were likely not the product of coaching. The court considered the evidence of Shellie’s past hospitalizations due to mental health. The court held that due to Shellie’s continuing treatment, she was currently able to act effectively in the world, which includes taking care of her children.

The Superior Court’s decision to bar all contact was based on adequate findings, relying as it did on the opinions of the children’s counselor and psychiatrist that any contact with Charles would cause regression in the children’s fragile but improving mental health. The Superior court ordered that Charles have no contact with the children until professional evidence is submitted to the court that contact with the father will not be harmful to the children. Since this evidence is not in Charles’s control, he may request the Superior Court’s help in obtaining it.