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.

Michigan: Appeals Court Holds that the custody shall remain the same. - BY: Jennifer M.

Link for opinion: http://scholar.google.com/scholar_case?case=9079530742697056466&q=michigan+child+custody+cases++decided+2012&hl=en&as_sdt=2,24&as_ylo=2012

The Michigan Court of Appeals held in Wardell v. Hincka, 822 N.W. 2d 278 (Mich: Court of Appeals 2012)

Defendant Joshua Hincka and plaintiff, Kristine Wardell were married December 31, 2007 and then divorced on January 5, 2010. After the divorce they had a consent judgement that stated they had joint legal and physical custody of their minor child born July 11, 2006 and which gave them a week on week off parenting time schedule. The child was to attend school in Posen, Michigan which was halfway between the plaintiff’s residence and the defendant’s residence.

In April 2011 the defendant moved to Cheboygan and filed a motion for a change of custody, citing a change in circumstances brought about by his move and his discovery that the plaintiff's husband had a criminal record.

In this case the trial court evaluated the factors and concluded that no change in custody was warranted in that the only real circumstance that had changed was the defendant’s move to Cheboygan.

The court issued an order on December 30, 2011 denying the parties’ respective motions to change custody. It found that the current custody arrangement appeared to be working and was in the best interest of the child to remain spending the most time with both parents.

Did the Trial Court erred in Terminating the Biological Mother’s Parental Rights - BY: Diane M.

LA265 Family Law

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

In the case of State v. Elizabeth M (In re John G.), 2012 WI App 73; 342 Wis. 2d 253; 816 N.W. 2d 352; 2012 Wisc. App. LEXIS 355, the Wisconsin Appeals Court had to decide if the trial court erred in terminating the parental rights of Elizabeth M. on the facts that it was in the best interest of the child.

In the two and one-half years since the birth of John G. his biological mother Elizabeth M. had only seen him twice, had made no attempt to get custody and made no attempt to transfer her probation from Iowa to Wisconsin.

On April 30, 2009, John G. was born to Elizabeth M. and unknown father in a Milwaukee hospital. A few days after his birth, John G. was taken from Elizabeth and placed in the foster care of Melissa F. There was an open warrant for the arrest of Elizabeth in Iowa. Elizabeth was being extradited back to Iowa on theft charges and where she has since resided.

A BMCW case worker did reach out to an aunt and sister of Elizabeth in Iowa. The case worker spoke with and conducted an interview with the aunt. The case worker did start legal proceedings to place John G. in the care of the aunt, but the proceedings were stopped due to the lack of cooperation by the aunt. The BMCW then tried to place John G. with Elizabeth’s sister which also failed due to the sister’s criminal and child protective service history, her housing and financial situation.

Elizabeth waived her rights to a trial and agreeing that legal grounds did exist for the termination of her parental rights of John, the court did find legal grounds that existed, Elizabeth failed to assume her parental responsibilities and she was also found to be unfit. The court also ruled it was in the best interest of the child that his biological mother’s parental rights should be terminated. Elizabeth appealed the trial court decision.

In the Appeals Court, Elizabeth argued that the trial court improperly exercised its discretion when deciding it was in the best interest of the child (John G) to terminate her parental rights, and the BMCW failed to transfer John to Iowa, which prevented her from having custody of him.

Even though Elizabeth had only seen her son twice since his birth, she felt it was time for her to resume her parental rights of him. By placing John in her custody, Elizabeth stated that John “would not be harmed in any way if he were reunited with her.”

The factors that were used and applied in the trial court determining if it was in the best interest of the child to terminate his biological mother’s parental rights, were looked at again by the Appeals Court.

Some of the factors that the court applied to make their decision: For the two and one-half years of his life John G. has only lived with his foster mother. The foster mother testified in the trial court that she wanted to adopt John G. and she had already completed the adoption process. John G. has been taken well cared for, is healthy and is well-adjusted in the hands of his foster mother. Elizabeth had only visited John G. twice and each time he was skittish around her. John G. has never met his other siblings. The only mother John G. has ever known is his foster mother and he calls her “mommy”.

The court concluded that John G. was living in a permanent, stable and loving environment with his foster mother, and it was in the best interest of the child to terminate the biological mother’s parental rights. The best placement of the child is with the foster mother. The Appeals Court affirmed the trial court decision.  

Washington: Supreme Court Domestic Violence Protection Order Does Not Qualify as a “Court Ordered Parenting Plan” - BY: BevAnna M.

Link: http://www.courts.wa.gov/index.cfm?fa=controller.managefiles&filePath=Opinions&fileName=858608.pdf#search=jose veliz

The Washington Supreme Court reversed and dismissed petitioners request in Veliz v. Velasco in 176 Wn.2d 849; 298 P.3d 75; 2013 Wash. LEXIS 157, on the basis that a Domestic Violence Protection Order does not qualify as a Court Ordered Parenting Plan.

Veliz and Velasco parented N.V. in 2004; they were married in 2006. They separated in April 2008, Velasco obtained an order for protection on May 5, 2008 pursuant to the Domestic Violence Prevention Act (DVPA), chapter 26.50 RCW. In the order, there was a handwritten provision that stated, “[Veliz] will be allowed visitation as follows: Weekends 10 a.m. on Saturdays to 5 p.m. on Sundays; or in accordance with a Court approved parenting plan”. The protection order was signed by Veliz, Velasco, and the Judge. Veliz filed for dissolution of his marriage on May 14, 2009.

Both parties complied with the protection order’s visitation provision over the next three months without incident. The Saturday morning pick up on Saturday, August 16, 2008, happened without incident. However, Veliz did not return N.V. at 5 p.m. that Sunday evening as in the order. Veliz had taken N.V. out of the state of Washington, first to Los Angeles, CA and later to cities in Mexico.

August 22, 2008, prior to any formal parenting plan being filed, the prosecutor charged Veliz with first degree custodial interference under RCW 9A.40.060(2)(a). The information stated:

“[D]uring the time intervening between the August 16^th and August 17^th, 2008; then and there being the parent of and with intent to deny access from Lorena [Velasco], the other parent having the lawful right to time with N.V. pursuant to a court ordered parenting plan, did retain N.V., a child under eighteen years of age, and intended to hold N.V. permanently or for a protracted period.”

Three days later, on August 25, 2008, the court entered a temporary parenting plan in the dissolution proceeding pursuant RCW 26.09.197 which has never been amended. Veliz and N.V. did not return to the United States until December 21, 2008 where Veliz was arrested at the Mexico-United States border.

Prior to trial in the criminal case, Veliz filed a Knapstad motion to dismiss. With the argument that the May 5, 2008 protection order was not a court ordered parenting plan and that there was insufficient evidence to prove first degree custodial interference under RCW 9A.40.060(2). The trial court denied the Knapstad motion. A jury convicted Veliz of first degree custodial interference under above mentioned statute. The Court of Appeals affirmed Veliz’s conviction holding that the May 5, 2008 protection order was a court ordered parenting plan for the purposes of the custodial interference statute. State v. Veliz, 160 Wn. App. 396, 408, 247 P.3d. 833 (2011). Review was granted on the limited basis as to whether or not a domestic violence protection order can constitute a court ordered parenting plan. The Supreme Court reversed the Court of Appeals decision and dismissed the conviction on the criminal case for insufficient evidence.

Ohio: Same Sex Couple Argue about Which Court Can Grant Child Visitation Rights - BY: Tanya L.

Link for opinion: https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-ohio-4313.pdf (Supreme Court Decision)

http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2011/2011-ohio-2809.pdf

(Court of Appeals Decision)

 The Ohio State Supreme Court reversed the judgment from the Court of Appeals to reinstate the Trial Court’s original Order in Rowell v. Smith, 133 Ohio St.3d 288, 2012-Ohio-4313.

Julie Ann Smith gave birth to a daughter with artificial insemination by an unknown man. Julie Ann Smith was in a relationship with Julie Rose Rowell. Several years later the relationship ended and Rowell petitioned a juvenile court for shared custody and a temporary order granting her companionship time with the child.

A magistrate granted the order, and Smith moved to have the order set aside. The juvenile court granted Smith’s motion, but issued another temporary order that again granted Smith and Rowell shared custody. Shortly thereafter, a modification was issued making Smith the child’s legal custodian and residential parent and granting Rowell visitation rights.

Smith did not comply with the order arguing the court did not have jurisdiction to order visitation rights to Rowell. A motion for contempt of court was filed by Rowell. The trial court found Smith in contempt and held that it did have the authority to issue temporary orders.

The Court of Appeals reversed the finding of contempt. This case continued between Smith and Rowell for two years until the Supreme Court issued their judgment.

The Supreme Court held in exercising its jurisdiction under R.C. 2151.23(A)(2), a juvenile court may issue a temporary visitation orders that are in the best interest of the child during the litigation. Judgment reversed.

Georgia: Driving Drunk Can Get More Then Your License Revoked - BY: Ashley L.

Link http://law.justia.com/cases/georgia/supreme-court/2013/s12f1737.html

In the case of Bishop v. Baumgartner 292 Ga. 460; 738 S.E. 2d 604 2013, the father,  Mr. Bishop appealed to the Georgia Supreme court to try to overturn the trial court’s decision to grant sole legal custody of their daughter to his ex-wife and revoking his visitation rights to the child.  Mr. Bishop claimed that the trial court abused its discretion in denying Mr. Bishop visitation rights.  The appellate court had previously upheld the trial court’s decision. 

Mr. Bishop and Ms. Baumgartner were married in April 2008 in Ohio and had a baby girl in February of 2009 in Ohio, where the mother resided while Mr. Bishop was serving the U.S. military in Iraq.  The couple separated at the end of 2009 and Ms. Baumgartner moved with her daughter to Georgia where she petitioned for divorce in a court in Colombia County. 

In regards to custody for their daughter the court found Mr. Bishop to be morally unfit for visitation and that he had failed to act in the best interests of his child.  The court used the standards set forth in OCGA § 19-9-3 which outlines 17 factors to be used in determining the best interests of the child.  In putting Mr. Bishop to this litmus test the courts could only find one of the 17 factors in his favor, which was that the guardian ad litem recommended visitation.  Some of the factors were taken into consideration against Mr. Bishop were that he had not seen the child in 18 months and had made no attempts to locate her, he had been twice arrested for operating a vehicle under the influence of alcohol or drugs and spent three days in jail and had his license revoked. 

A guardian ad litem was appointed in December of 2010 and in her assessment she determined that Mr. Bishop was unfit for visitation however she did recommend that he be given visitation in order for his parents to have access to their grandchild.   The trial court ruled that the father’s lack of interest in the child and alcohol abuse made him unfit for visitation.  Both the appellate court and the Georgia Supreme court upheld the trial court’s decision. 

Florida BY: Emily K.

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

Citation: 103 So. 3d 968; 2012 Fla. App. LEXIS 21614; 37 Fla. L. Weekly D 2857

The Florida Court of appeals did three things with the listed case. The case was reversed in part, affirmed in part, and remanded for further proceedings in a modification of child support case in the state of Florida.

A former wife filed several appeals on a previously determined child support case after a dissolution of marriage between her and her former husband.  The dissolution took place in 2003, and the former husband had been on time with child support payments, and even made advance payments throughout the years that totaled $23,000 in overpayment.

The former wife sought a modification after the children’s needs increased and the former husband’s salary also increased.  She was also seeking money for attorney’s fees in the course of the appeals. The first appeal awarded the former husband a credit for the overpayments he had initially paid, and the increase was not made retroactive. The request for attorney’s fees was also denied. 

After more appeals made by the former wife, the Court of Appeals reversed the credit that was initially awarded to the former husband, stating he was not entitled to the credit because there was never any agreement made between the parties for the additional advanced payments.

The former wife’s request for attorney’s fees was also denied.  The former husband’s child support payments rose, but the split on extracurricular activities of the children remain. Few other points have been remanded for further proceedings.

Kansas: Supreme Court addresses the validity of Co-parenting Agreement. - BY: Mary Jo K.

Link for option:http://scholar.google.com/scholar_case

Frazier v. Goudshaal, Kan. Sup. Ct. No. 103,487 (2013). Kansas Supreme Court addressed an issue that has only been addressed by a few other states.

The couple have two children one born in (2002) and the second in (2004). Utilizing artificial insemination, Goudschall is the biological mother of both children. Before the birth of the first child and again at the time of the birth of their second child the women signed a co-parenting agreement. At this time, consent for medical authorization and durable power of attorney for health care decisions was also executed .A last will and testament naming the other as the children’s guardian was included.

In 2008 after the two had split up Goudschall attempted to relocate with the children to Texas. As a result, Frazier filed an action with the court seeking to divide the couple’s assets and resolve custody and parental responsibility issues.

The lower court divided the couple’s assets and awarded joint custody with residential custody going to Goudshaal, granted Frazier parenting time and ordered her to pay support.

Goudshaal appealed the lower court’s ruling; the key in this decision was the planning tools utilized by the couple. The decision was upheld based on the co-parenting agreement. The court cited specific language in the co-parenting agreement which identified Frazier as a “de facto parent “and specified that her “relationship with the children should be protected and promoted.”

Because the co-parenting agreement was enforceable, the lower court had the authority to enter orders addressing child custody, parenting time, and child support.

Holding that the Kansas Parentage Act (KPA), K. S. A. 38-1110 et seq., governs this case and provides sufficient statutory frame work to resolve the legal issues advanced by Frazier in her favor as to whether she is a no biological parent under the law and entitled to enforce the co-parenting agreement.

New York: Court of Appeals Holds Imprisoned Parents Have Visitation Rights - BY: Jamie F.

Case Link: http://www.nycourts.gov/ctapps/Decisions/2013/Apr13/Apr13.htm

  

In the case Granger v. Misercola, 72, being incarcerated is not enough on its own to loose visitation rights with a person's child during the imprisonment period. The New York Court of Appeals affirmed the Family Court's decision to allow the petitioner to have periodic four hour visitations with his child at the prison where he was being held.

The petitioner sought visitation with his child while he was in a New York prison. He wished to maintain a relationship that he had established with the child before imprisonment. The Family Court, based on the evidence, agreed and awarded him periodic four hour visitation with the child at the prison. The child's mother did not agree with this decision and the case was then heard by the Court of Appeals.

The Court of Appeals held that the lower court had correctly applied the standard while deciding this case. The courts held that there needs to be proper evidence that the visitation would be harmful to the child if they are to deny the visits. The court feels that it is a positive thing for a child to have visitation with a noncustodial parent whenever possible and that incarceration is not enough on its own to warrant a denial. The father was interested in and making efforts to maintain a good relationship with his child and continuing to have the visitations was in the best interests of the child in this case. Also, the respondent was unable to show proper evidence that the visitations would be harmful to the child's welfare. Therefore, the court found no reason to deny the request for the visits.

While this case was pending the petitioner was transferred to another prison that was further away from the child's home than the previous location had been. The child's mother then argued that the visitation request should be denied due to the longer distance that the child would need to travel in order to fulfill the visitation order. The court of Appeals thought that there was no evidence to suggest that the travel would be harms to the child in any way. Also, the court also held that the respondent should have filed a modification request with the Family Court rather than bringing this issue up during the appeal process. Therefore, the court did not take this matter into consideration when deciding if the visitation should be allowed.

In summary, the New York Court of Appeals holds that a parent who is imprisoned is still eligible to be granted visitation with their child while in prison unless preponderance of the evidence can prove that the visitations would be harmful to the child's welfare. The lower court's decision was affirmed.

Louisiana: Appeals Court Holds Child’s Right to Change Surname - BY: Kimberly B.

Link for opinion: http://www.la4th.org/opinion/2012/321971.pdf

In Louisiana, the 4^th District Court of Appeals held in St. Philip v. Montalbano, 108 So.3d 277, 2012-1090 (La.App. 4Cir. 1/9/13) that the child has the right to change his surname at the appropriate age.

Tina St. Philip filed for custody of her minor child and filed for child support. After the District Court granted the mother and biological father joint custody and specifying that the child (“LStP”) would retain the mother’s surname, however LStP  could choose to change his surname when he reached an appropriate age. Ms. St. Philip appealed.

LStP was born out of wedlock. During the initial hearing in 2011; the judge ruled that Ms. St. Philip and Mr. Montalbano will share joint custody as co-domiciliary parents. At all times any major decisions would be made by both parents including decisions about school, medical, mental health, extracurricular activities, religion and the like. Mr. Montalbano will have LStP every other weekend, as well as an additional six days during September and October 2011 as well as February, March and April 2012. Holiday visitation would be equal and alternated each year. Summer visitation will allow Mr. Montalbano three weeks in both June and July. LStP should have a notebook and the ability to speak to the other parent on the telephone. 

On appeal, Ms. St. Philip argued that the court ruled in error due to the “vague ruling” that LStP could make the decision on whether he would like to change his surname was contrary to the provisions of Louisiana law. Mr. Montalbano contended the court erred in ordering the transportation be paid by him 60% of the time and Ms. St. Philip 40% of the time. He also contended that the court erred in failing to designate him as the domiciliary parent.

The Appellate Court held that trial court’s ruling does not reflect any intent to change LStP’s surname and that the decision to change the surname was to be a joint decision.  Both of Mr. Montalbano arguments were declined due to lack of notice as well as unpersuasive arguments. The trial court’s judgment is affirmed.

Alabama Awards Maternal Grandparents Custody - BY: Amanda A.

M.W.H. v. R.W. 100 So.3d 603 (Ala. Civ. App.) (2012).

Link for opinion: http://scholar.google.com/scholar_case?case=14119849504351512530&q=M.W.H.+v.+R.W.+100+So.3d+603+%28Ala.+Civ.+App.%29+%282012%29.&hl=en&as_sdt=2,24

       On July 19, 2006, the maternal grandparents filed a dependency petition in juvenile court for their grandson. The grandparents alleged that the father is unknown and the mother has manic depression and is unfit to care for the child. The mother wanted to take the child and move to Illinois, the grandparents allege that the home to where the child would be living was also unfit and it would be abandonment of the child. In August 2006, the court awarded custody of the child to the grandparents.

            The mother filled a motion to set aside the default judgment. On September 26, 2006, the Juvenile court set aside the default judgment that awarded the grandparents custody “after colloquy with the parties.” The court granted visitation to the mother that was to be supervised by the grandparents.

            On August 16, 2007, the grandparents filled a petition to revise the visitation rights of the mother on the basis that the mother had been in an abusive relationship and her visitation rights should be terminated, and that they should receive child support from the mother. On August 22, 2007, the mother filed an answer to the motion and a counterclaim requesting sole custody of the child. The mother said that circumstances had changed and the child’s best interest would be to be with her. The court entered a pendente lite order with agreement of the mother and grandparents. The grandparents kept custody of the child, the mother was granted visitation rights, was ordered to pay $150 a month in child support, and to see a psychiatrist. The grandparents were ordered to attend family counseling.

            On April 28, 2010, the mother filed a motion to set a final hearing and to have custody of the child. The mother claimed to have gone through treatment and to had a stale home for the child. The Juvenile court awarded “primary care, custody, and control” to the grandparents, awared the other with visitation, and ordered the mother to continue paying child support.

            On June 17, 2011, the mother filled for an appeal and it was granted. The mother argued the Juvenile Court did not have subject-matter jurisdiction and erred when applying the McLendon standard to her request for custody.

            The court found that there was “no procedural irregularity.” The court finds no merit in the juvenile court not having subject-matter jurisdiction. The court in regard to the argument of using the McLendon standard, said that they concluded that the September 2006 judgment found that the child was found to be dependent and that was a final judgment.

District court abused its discretion by awarding sole legal and sole physical custody of minor child (A.L.R) to grandparents. BY: Kiley C.

In Re the Custody of A. L. R., No. 65-FA-11-112, 2013 MN A12-1602 (Minn. Ct. App. April 8, 2013)

Title: Mother was 17 years old and father was 15 years old when the child was born; they have never been married. Mother began living with the father and his parents (grandparents), while she was pregnant with the child in 2009. Mother continued to live with grandparents with the child and the father until September 2011, when an altercation occurred between the mother and the grandmother. As a result of the altercation the mother and child moved out of their home and the grandparents filed a petition for custody of the child. It went to trial.

District court found that it is in the child's best interests for the grandparents to receive sole physical and sole legal custody of the minor child. They found the grandparents had established by clear and convincing evidence that they are interested third and that they established by clear and convincing evidence that extraordinary circumstances existed. The child was removed from mother's care and placed in grandparents' care.

Mother moved for amended findings or a new trial. District court denied the motion so she appealed.

Did district court err by determining that grandparents established by clear and convincing evidence that they are interested third parties under Minn. Stat. § 257C.03, subd. 7(a), because extraordinary circumstances exist?

The mother says there are no extraordinary circumstances present; that the grandparents never alleged or proved that she abandoned or neglected the child or subjected her to any physical or emotional harm. She contends that the district court erred by determining that grandparents had established they are interested third parties and that they failed to consider whether extraordinary circumstances triumphed over Minnesota’s presumption in favor of parental custody. Minnesota courts traditionally find that the child's parent is entitled to custody, but they have also found that there are circumstances when the court may take control of a fit parent's right to custody and control of that child.

The court of Appeals reviewed the district court's findings and they did not find anything that would constitute extraordinary circumstances that would affect mother's ability to parent the child. They ruled that the district court’s decision be reversed and remanded because their records lack clear and convincing evidence to support their finding of the existence of extraordinary circumstances and its ability to prove that the grandparents are interested third parties. Ultimately deciding that the district court abused its discretion by awarding sole legal and sole physical custody of the child to grandparents and gave custody  back to the mother.