Monday, February 11, 2008
The Alabama Supreme Court has reversed two of its previous decisions regarding the standard for change of child custody, emphasizing that the standard under Alabama law requires a party seeking a change in custody to show that the change "will materially promote [the] child's welfare." Previous appellate courts had additionally required that the movant prove an "overwhelming necessity for a modification of custody." The court noted that its original standard is "typically a heavy one, recognizing the importance of stability" but found the "overwhelming-necessity requirement places a nearly insurmountable burden on the party seeking a modification of custody, and in doing so, elevates stability above the best interests of the child."
Ex parte Cleghorn, 2008 Ala. LEXIS 26, Alabama Supreme Court (February 8, 2008) bgf
Case Law Development: Child's Opinion Should Be Considered in Custody Battle over Circumcision of Adolescent
The Oregon Supreme Court held that a custodial father’s decision to have his 12-year-old son circumcised so the child can convert to Judaism may provide a basis for a change in circumstances allowing a custody modification if the boy opposes the circumcision. The child had been raised as Russian Orthodox, his mother’s religion. His father began studying Judaism at about the time of the divorce, at which time he also was awarded custody of then 4-year-old boy. When father informed mother that the child (then age 9) would be converting and would need to be circumcised, mother petitioned for a change in custody or for an order preventing the circumcision.
The supreme court noted that “the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs--medical, religious or otherwise." However, the court concluded that "at age 12, [the child's] attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of change of circumstances sufficient to warrant a hearing concerning whether to change custody….because forcing [the child] at age 12 to undergo the circumcision against his will could seriously affect the relationship between [him] and father, and could have a pronounced effect on father's capability to properly care for [him]." Thus, the court remanded to the trial court for factual findings regarding the child’s attitude toward the circumcision and how that might affect the parent-child relationship.
In an unpublished opinion, the Illinois Supreme Court has held that the termination of parental rights does not extinguish a child support obligation unless the child is being adopted. The court relied on the language of the Illinois statute, which refers to termination of parental obligations as to “a child sought to be adopted.” The court stated: "We conclude that, after the entry of an order terminating parental rights, where the child is not adopted, [the Act] applies as its plain language indicates, only where the child is 'sought to be adopted'…. To hold that this language is of no effect, as respondent urges, would render the language superfluous or meaningless." The court rejected the appeals court’s interpretation of the “sought to be adopted” language as including any child 'available for adoption', noting that the legislature could have specifically used this language.
Three judges dissented, arguing that the court’s interpretation created significant inconsistencies in the law, both between the termination statute and the juvenile code and between this holding and prior precedent.
Illinois DHFS v. Warner, Ill., Illinois Supreme Court, January 25, 2008
Opinion on the web (last visited February 9, 2008 bgf)