Family Law Prof Blog

Editor: Margaret Ryznare
Indiana University
Robert H. McKinney School of Law

Saturday, September 26, 2015

Facebook Profile is Fair Game in Custody Battles

From New York Post:

A Westchester judge has allowed a dad to use his wife’s Facebook profile as a weapon in their custody battle, a groundbreaking ruling that could alter the way New York couples fight it out in court.

Anthony DiMartino, 54, claims a review of his estranged wife’s Facebook page will prove she was frequently out of state while he was raising their now-4-year-old son.

“The data will show that it is he, and not she, who has spent the majority of time with the child during the past four years,” DiMartino’s legal papers argue in the fight for physical custody of the boy.

The social worker “has been the primary caregiver,” his lawyer, Gordon Burrows, told The Post.

But mom Christina Antoine, a psychiatrist who works with multiple state agencies, tried to block the move, arguing that her profile is private and that she “unfriended” her hubby when they split.

Antoine, 47, assumed she would prevail, Burrows said, because there were no previous rulings granting access to Facebook pages in New York state custody cases.

Read more here.

September 26, 2015 in Custody (parenting plans) | Permalink | Comments (0)

Thursday, September 3, 2015

New York's Craziest Custody Case: Four Parents, One Child

From New York Post:

She’s seen paternity battles, struggles for alimony, vicious tugs-of-war over children, but veteran family attorney Susan Bender had never handled a custody fight quite like this.

A gay male couple donated sperm from one of the men to a lesbian couple, resulting in a baby. Each couple bought identical New York apartments and decorated them exactly the same. The intention was to split the year into four quarters and rotate the primary parenting duties amongst themselves.

The complex plan was intended “so that they could all parent the child or children in some meaningful way,” the attorney said. “They were good people and they loved this child, but within nine months the experiment collapsed.”

Bender represented one of the women.

“We walked into the courtroom, and the judge was reading the petition. I’ll never forget the look on the judge’s face,” Bender says. “She looked up and looked at the parties, and she looked at me and said: ‘Counsel, explain.’ ”

Read more here.

September 3, 2015 in Custody (parenting plans) | Permalink | Comments (0)

Thursday, August 6, 2015

In Massachusetts and Elsewhere, A Push For Custody Reform

From The Boston Globe:

The State House hearing room seemed an unlikely place for grown men to bare their souls.

But as father after father took a seat in a committee room, urging lawmakers to support proposed legislation to revamp Massachusetts’ child-custody statute, they laid out the particulars of their divorces and personal lives in blunt detail.

Battles over custody and child support are as old as divorce itself. But as parenting norms have shifted in the past half-century — the “Leave It To Beaver” setup giving way to one in which 71 percent of women work outside the home and more fathers are engaged in child care — lawmakers seem increasingly willing to consider that long-standing child custody statutes might warrant review.

Read more here.

August 6, 2015 in Custody (parenting plans) | Permalink | Comments (0)

Sunday, July 12, 2015

Child Custody Reforms Push for Equal Time with Both Parents

From Herald Times Online:

Nearly two dozen states have been considering shared parenting after divorce or separation as part of a reform of current child custody laws, which could mean more shared time for noncustodial parents with their children.

According to a press release from the National Parents Organization (which advocates for shared parenting in divorce situations), those states currently considering parental reform legislation could "provide children what they most want and need — equal time with both parents in instances of divorce or separation."

The NPO hopes people have taken time during this part of the year when fathers are celebrated to consider "the gender inequality that presently exists in the family courts," and to advocate for change as a gift to fathers everywhere, who want equal time with children.

The Wall Street Journal reported on the issue in April. "Prompted partly by fathers concerned that men for too long have gotten short shrift in custody decisions, about 20 states are considering measures that would change the laws governing which parent gets legal and physical control of a child after a divorce or separation."

Most of the proposals of reform are simply urging that judges implement custody schedules maximizing time for both parents. Some proposals would require equal time for both parents unless there is evidence that the arrangement would not meet the child's best interests, the WSJ wrote.

Read more here.

July 12, 2015 in Custody (parenting plans) | Permalink | Comments (0)

Monday, June 15, 2015

Child Custody Laws in India

From Hindustan Times:

The urgent need to resolve child custody cases have prompted the law commission to recommend a root-and-branch change in the way courts resolve child custody battles.

In its report ‘Reforms in Guardianship and Custody Laws in India’, which it submitted to the law ministry on May 23, the commission says that the child’s welfare must be paramount in any decision relating to custody. It also lays out a framework - unprecedented in India - for awarding joint custody of the child whenever it is possible.

As the present law lacks the concept of shared parenting, many cases are reduced to ugly fights for over the sole custody of the child or children. Cases generally conclude when the court names one of the parties as the primary guardian, leaving the other with weekly or fortnightly visitation rights.

And while sole custody is a necessity in many cases, the law presently offers no options for shared custody, even in cases where it is possible and desirable for the child’s best interests. Instead, the all-or-nothing fight for primary custody can often aggravate an already tangled set of circumstances. Experts HT spoke to said courts have had to intervene in many cases to stop estranged couples from using their children to browbeat each other.

Read more here.

June 15, 2015 in Custody (parenting plans), Visitation | Permalink | Comments (0)

Tuesday, June 9, 2015

Rape Survivor Child Custody Act


A new federal law, the Rape Survivor Child Custody Act, will protect women who are victims of rape and decide to keep their baby. Shauna Prewitt, an attorney who co-founded Hope After Rape Conception, first spearheaded the idea along with rape survivor Analyn Megison.

Rebecca Kiessling, who has been working to protect mothers across the country who decide against having an abortion after they were victimized, has helped pushed the legislation on a state level. Kiessling tells LifeNews that the new law “provides an incentive to states to pass legislation providing for a means to terminate the parental rights of rapists, using the “clear and convincing evidence” standard from the U.S Supreme Court case of Santosky v Kramer.”

Read more here.

June 9, 2015 in Abortion, Custody (parenting plans), Termination of Parental Rights | Permalink | Comments (0)

Friday, September 6, 2013

In re Adoptive Couple of Baby Girl ("Baby Veronica"): Okla. Supreme Court grants stay to keep girl with biological dad

From CBS News:

The Oklahoma Supreme Court has granted an emergency stay to keep a 3-year-old Cherokee girl with her biological father and plans to hear arguments from his lawyers and those of the girl's adoptive parents later Tuesday. 

The United States Supreme Court held in June that portions of the Indian Child Welfare Act that allowed Baby Veronica's biological father to gain custody were, in fact, inapplicable.  For the entire article, and discussion of the ongoing battle in Oklahoma's state courts, click here.






Veronica's birth mother was pregnant when she put the girl up for adoption, and a South Caroline couple, Matt and Melanie Capobianco, have been trying to adopt Veronica since she was born. Veronica's biological father, Dusten Brown, has been fighting the Capobiancos for custody ever since.

September 6, 2013 in Current Affairs, Custody (parenting plans) | Permalink | Comments (2) | TrackBack (0)

Wednesday, May 29, 2013

Presumed Shared Parenting in NC

From PR Web:

On April 2, 2013, North Carolina State Senator Clodfelter filed Senate Bill 610 entitled “An Act to Amend the Laws Pertaining to Child Custody to Incorporate a Presumed Shared Parenting Standard”. Family law attorneys throughout the state, including those at Miller Bowles Law, have had strong reactions to and differing opinions regarding this proposed law and how it will affect their clients.

Read more here.


May 29, 2013 in Current Affairs, Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Monday, April 8, 2013

Guest Post by Jennifer Smith--Family Law: In the Event of an UnSafe Parent

A divorce is an unforgettable event to a child as they will feel pain and emotional conflict having to choose which parent they to whom they side and the idea that the individuals that pronounce their undying love will no longer stay present in their daily lives. The child will feel as if they are stuck between the conflict, and may see the event as a result of their doing which creates deep psychological imprints on the child.

The child, however, may not realize that the divorce is due to the result of an unfit parent. One of the parents may not provide adequate safety and security to the child which puts them at risk.

This break in safety could be the result of any number of factors:

  • Inadequate home security to defend the child from home intrusion (read more about these items and how to protect on
  • A parent that has little or no self-control due to addictions
  • An unfit environment from the friends and relatives of the parent

Family law had been a streamlined process that allowed either parent to make their case and the result being some or no visitation rights but this is beginning to change and become difficult to conduct.

The child will generally be placed under temporary custody to one of the parents or a third-party within the family unit during the divorce process.

The custody of the child will result in the four following arrangements:

  • Legal – A parent is given the responsibility for a child’s health and welfare.
  • Physical – The child will go with one of the parents and may have an option for joint custody or visitation rights.
  • Joint – The child has the opportunity to interact with both parents because they share custody.
  • Sole – A child goes to one of the parents that makes the daily decisions of the child (but may still have joint legal custody).

The court will use a number of factors to determine which type of arrangement will come to process based on many factors such as the financial stability of a parent, location, general well-being, and safety.

Safety can be show through a variety of actions:

  • Being consistent in emotions and physical contact
  • Showing patience with the child
  • Avoiding acquisitions and blaming
  • Being forgiving
  • Not being a victim of one’s lifestyle

The most important factors a family court will use in the case greatly rely on the history of violence, destructive behavior, drug/alcohol use, mental issues, or neglect. It’s unfortunate but many parents will use minor faults, or even the child, to gain custody when it’s apparent that both are fit for the job; it’s generally the result of a bitter breakup.

The child, too, may come as a factor within the decision for which parent gains custody; these factors will be taken into account and used to determine the best outcome for the child.

In all, the legal ramifications of a divorce will ripple through the lives of each individual involved and the children caught between the conflicts. The end result will find closure based on the cases presented by both sides and the history of each individual involved. A child’s well-being and mental stability should become one of the main aspects to cater throughout the process as it will have a profound impact on the child throughout their later years.

April 8, 2013 in Current Affairs, Custody (parenting plans) | Permalink | Comments (6) | TrackBack (0)

Saturday, December 8, 2012

Chafin Oral Arguments Transcript

Wednesday's oral arguments in Chafin v. Chafin, a Hague return case before the U.S. Supreme Court, are available here.


December 8, 2012 in Current Affairs, Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Saturday, October 6, 2012

Custody Case Against Fit Parents

Here is an interesting case in which a "psychological" parent asserts custody against two fit parents (note: password protected, only for Bloomberg BNA subscribers).


Hat Tip: Naomi Cahn

October 6, 2012 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Thursday, August 9, 2012

Punished for Child's Chalk Sidewalk Drawing


A Virginia mom has been ordered by a judge to perform community service after allowing her daughter to do chalk drawings in a public park.

Last Tuesday, Susan Mortensen appeared in a Richmond, Va. court and agreed to serve 50 hours of community service by January 3, or return to court for sentencing and possibly a $2500 fine. Some parents have responded with outrage that a treasured childhood pastime could result in legal action.

Read more here.


August 9, 2012 in Custody (parenting plans) | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 7, 2012

Australian Custody Battle

From the Australian:

Family law experts yesterday welcomed the decision of the bench to throw out an appeal brought on behalf of four Italian sisters who claimed to have been denied natural justice because they were unable to represent themselves in a battle over their forced return from Queensland to Italy.

The Australian mother of the Italian-born girls, aged between nine and 15, was ordered by the Family Court to return the children to Italy, where she has joint custody with their Italian father. She has appealed that decision in the full court of the Family Court.

Read more here.


August 7, 2012 in Custody (parenting plans) | Permalink | Comments (2) | TrackBack (0)

Wednesday, February 15, 2012

Shared Parenting Presumption in England?

From the Guardian:

Fathers will get improved contact with their children following divorce, amid plans to rewrite the law governing custody disputes.

A ministerial working group will decide how to amend the Children's Act 1989 and might include in it a "presumption of shared parenting". The changes are part of an overhaul in family law that is described by the Law Society as "the most important" in more than 20 years.

Currently, family courts decide to leave children with their mothers in the vast majority of divorce cases, meaning that one in three children – around 3.8 million – is living with their father absent from their lives. Just 8% of single parents in Britain are fathers living with their children, according to the Office for National Statistics.

Read more here.


February 15, 2012 in Custody (parenting plans) | Permalink | Comments (3) | TrackBack (0)

Saturday, June 4, 2011

New Child Custody Laws in Japan

From CNN:

Bowing to intense international pressure, Japan has taken a step closer to changing its international child custody policies.

The Japanese Cabinet on Friday approved a plan that would bring the country's laws in line with the Hague convention on international child abduction, according to Prime Minister Naoto Kan's office.

The plan basically requires an overhaul of Japan's family law system. It would put the Foreign Ministry in charge of the cases related to international child abduction, including finding abducted children, taking measures to prevent child abuse and advising parents on the voluntary return of children, according to a statement from Chief Cabinet Secretary Yukio Edano.

Read more here.



June 4, 2011 in Custody (parenting plans) | Permalink | Comments (3) | TrackBack (0)

Sunday, March 13, 2011

Bill on Equal Time Presumption Dies in SD Senate

SD Senate kills joint custody bill:

The South Dakota Senate rejected a measure Tuesday to encourage more divorced parents to equally share custody of their children, despite months of campaigning by a political action group established to get such a law passed.

The bill would have required judges in a custody dispute to presume that both parents should get equal time with their children, unless one parent waives joint custody or proves the other parent shouldn't have the same amount of time.

Supporters said it would protect the rights of fathers and ensure that children have access to both parents after a divorce. "The bill helps ensure both parents are equal in the eyes of the court," said Sen. Dan Lederman, R-Dakota Dunes.

But others argued the bill would restrict the ability of judges to decide custody disputes and would cause more strife between parents. Sen. Joni Cutler, R-Sioux Falls, said Tuesday that the bill would unfairly treat children as "property to be equally divided."

The Senate voted 20-13 to reject the bill. The South Dakota House had already passed it.

Major bill supporters included two lobbyists from a new group, the Children Need Parents PAC, founded to advocate a change to state custody laws.

Cutler argued Tuesday that the bill would set South Dakota's custody laws apart from other states with joint custody.

"Why would we want a standard less than the best interests of the children of South Dakota?" she said. "There's a reason no other state has done this, and we shouldn't either.

Senators made at least three references to the actor Charlie Sheen — an example, they said, of parents who don't deserve joint custody. "Under this bill, Charlie Sheen has immediate physical custody half of the time of his children," Cutler said.

Read more here.


March 13, 2011 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Sunday, February 20, 2011

The Best Time to Serve Custody Documents?

From the Los Angeles Times:Click here to find out more!

Arenas_300 Magic guard Gilbert Arenas, a former star at Van Nuys Grant High and Arizona, got a surprise as he left the court at halftime on Thursday night in a game against the Miami Heat at Amway Center in Orlando: He was served with court papers in a child-support and custody case.

Arenas, acquired this season by Orlando from the Washington Wizards in a three-team trade, was walking to the locker room when a process server handed him the court documents, copies of which were attained by the Associated Press, on behalf of California resident Laura Mendoza Govan, who identifies herself as his former girlfriend and mother of three children he fathered.

Read more here.


February 20, 2011 in Custody (parenting plans) | Permalink | Comments (3) | TrackBack (0)

Friday, October 8, 2010

Custody Battle

These custody battles are most unfortunate:

From the Chicago Tribune:

NEW ALBANY, Ind. — The lawyer for a southern Indiana couple trying to adopt a 3-year-old boy who they've raised since birth says they've agreed to mediation with the child's biological father from Ohio who's trying to gain custody.

Attorney Tom Hectus declined to elaborate after a closed Floyd County court hearing Tuesday involving Christy and Jason Vaughn of Sellersburg and Benjamin Wyrembek of Swanton, Ohio.

The Courier-Journal of Louisville, Ky., reports a statement signed by the Vaughns and Wyrembek says they are trying to resolve their dispute in the boy's best interests.

The Ohio Supreme Court on Tuesday stopped action on Ohio adoption and custody proceedings while it considers an appeal of a ruling in Wyrembek's favor.

Read the article here.


Hat Tip: ER


October 8, 2010 in Custody (parenting plans) | Permalink | Comments (1) | TrackBack (0)

Thursday, August 26, 2010

Child’s Interests Paramount

An interesting family law case coming down from the Abu Dhabi Supreme Court:

From The National

ABU DHABI // The interests of a child must be paramount in decisions on custody disputes between divorced parents, the Federal Supreme Court has ruled.

The ruling is the latest in a number of decisions by the country’s highest court that experts say will influence the continuing reform of the family law system, under way since 2005.

Under current law, a divorced mother’s custody ends when a boy turns 11 and a girl turns 13. Judges can also follow the Islamic school of thought adopted by the UAE, Al Maliki, under which custody may be extended until a boy reaches puberty or a girl is married.

However, the Federal Supreme Court has now ruled that a court should look into the interests of the child before deciding on custody, regardless of the child’s age.

Read more here.


August 26, 2010 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 30, 2010

Medical Marijuana and Custody

The Associated Press reports on recent cases denying custody and/or visitation to a parent making use of medical marijuana:

More than a decade after states began approving marijuana for medical use, its role in custody disputes remains a little-known side effect.

While those laws can protect patients from criminal charges, they typically haven't prevented judges, court commissioners or guardians ad litem from considering a parent's marijuana use in custody matters — even in states such as Washington, where complying patients "shall not be penalized in any manner, or denied any right or privilege," according to the law.

Arbiters often side with parents who try to keep their children away from pot. Medical marijuana activists in several states, including Washington, California and Colorado, say they've been getting more inquiries from patients wrapped up in custody-divorce cases in recent years as the ranks of patients who use marijuana swell.

Lauren Payne, legal services coordinator with a California marijuana law reform group called Americans for Safe Access, said that since mid-2006 her organization has received calls about 61 such cases.

In Colorado last month, an appeals court ruled that medical marijuana use is not necessarily a reason to restrict a parent's visitation. Washington courts have held otherwise.

"The court cannot countenance a situation where a person is using marijuana, under the influence of marijuana and is caring for children," an Island County, Wash., judge ordered in one such dispute. "There's nothing in the medical marijuana law that deprives the court of its responsibility and legal authority to provide for proper care of children so that people aren't caring for children who are under the influence of alcohol or drugs."

In that case, the medical marijuana patient, Cameron Wieldraayer, was granted only supervised visits with his two young daughters — a decision upheld by an appeals court.

Many patients insist that using pot makes them no less fit as parents, and that they shouldn't lose custody or visitation rights if there's no evidence they're abusing the drug.

According to the Washington, D.C.-based Marijuana Policy Project, two of the 14 states with medical marijuana laws — Michigan and Maine — specify that patients won't lose custody or visitation rights unless the patient's actions endanger the child or are contrary to the child's best interests.

Pouch, who grows marijuana in an old chicken coop, smokes a few puffs three or four times every day, and says he doesn't get high the way he did when he used marijuana recreationally in his younger days. He said he uses it to treat pain from carpal tunnel syndrome aggravated by glassblowing, as well as a shoulder that frequently pops out of its socket due to old sports injuries.

"I'm an outgoing, upstanding person. I do three different farmers markets and I'm a member of the Mason County Chamber of Commerce," said Pouch, 37. "I am not an activist at all, but I have the right to use this. It aids my pain, and it allows me to function in my everyday activities, where pills and opiates don't."

Opposing spouses often argue that they have a right to keep their children away from illegal substances, and marijuana remains illegal under federal law.

With some other medications, such as narcotic painkillers or bipolar medications, judges can require tests to establish how much of the drug a parent has in his or her system, said Eleanor Couto, a family law attorney in Longview, Wash.

But treatment providers can't prescribe specific amounts of marijuana without running afoul of federal law, so it isn't always clear what constitutes an appropriate level of the drug.

"How do you monitor how much someone can smoke?" Couto asked. "How do know they're able to adequately care for that child? I think it's got to be a case-by-case basis."

Seattle lawyer Sharon Blackford noted that urine tests can establish how much marijuana is in a patient's system based on current use, and that monitoring is "as easy to do for medical marijuana as it is for alcohol."

Early this year, a judge who called Washington's medical marijuana law "an absolute joke" and "an excuse to be loaded all the time" ordered that stepfather, Julian Robinson, to keep at least a quarter-mile from the teenagers because of his marijuana use, according to a transcript of the hearing.

That means Robinson can't be around the children he has raised for the past 13 years, even though they live in his home near Castle Rock, with his wife and their four younger children.

Read the full story here.


June 30, 2010 in Custody (parenting plans) | Permalink | Comments (8) | TrackBack (0)