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.

ABC

 

 

 

 

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.

MR

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 securitychoice.com)
  • 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.

MR

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).

MR

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

From MSNBC:

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.

MR

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.

MR

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.

MR

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.

MR

 

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.

AC

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.

AC

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.

MR

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.

MR

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.

AC

June 30, 2010 in Custody (parenting plans) | Permalink | Comments (7) | TrackBack (0)

Tuesday, June 1, 2010

Mom Finds Her Kidnapped Kids on Facebook

From Fox News:

A father is behind bars, arrested for allegedly kidnapped his own children from California 14 years ago, and bringing them to Central Florida to live.

For years, investigators have been searching for him, but it was the social networking website Facebook that delivered the break it took more than a decade to get, MyFoxOrlando reports.

Faustino Utrera is now charged with two counts of kidnapping, and two counts of violating child custody orders.

According to the Osceola County Sheriff's Office, Utrera was at a bus stop on Wednesday at about 2:30 in the afternoon, waiting to pick up his 16-year-old son from school, when he was taken into custody.

Faustino's 16-year-old son and 17-year-old daughter had been attending celebration high school. Investigators said the family of three had actually been living in the palm key mobile home park in Polk County.

Investigators said that in 1995, Utrera took his two kids from the family's San Bernardino, California home and disappeared.

Then just last march, investigators said the mother of the children was on Facebook and found her daughter. When she began conversing online, her very own daughter, who hadn't seen her since she was 3 years old, told her mom she wanted nothing to do with her and deleted her Facebook page.

Read the full story here.

AC

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

Tuesday, May 18, 2010

Supreme Court Rules in International Child Custody Case

From the Associated Press:

The Supreme Court ruled Monday that a Texas mother illegally moved her son from Chile to the United States during a custody dispute with the boy's British father in the first test of the boundaries of an international child custody treaty.

The high court ruled that the Hague Convention on child abduction — aimed at preventing a parent from taking children to other countries without the other parent's permission — demands that the child goes back to the South American country.

However, Justice Anthony Kennedy, who wrote the 6-3 decision, said Jacquelyn Abbott can argue in lower courts in the United States for an exception to the international treaty that could allow her son to stay in the U.S.

The child, born in Hawaii, is a U.S. citizen.

Timothy Abbott accused his estranged wife of violating a court order in Chile by taking their 10-year-old son to Texas without the father's consent.

Timothy Abbott asked an American court to order the child returned to Chile, based on the treaty. The Chilean courts had given him visitation rights and the authority to consent before the other parent takes the child to another country, known as "ne exeat rights".

The mother argued that she has exclusive custody of the boy, and that U.S. courts are powerless under the treaty to order his return.

A federal judge acknowledged that taking the son to the United States violated the Chilean court order but sided with the mother, and the New Orleans-based 5th U.S. Circuit Court of Appeals agreed.

The Supreme Court reversed the appeals court decision.

"To interpret the Convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the Convention's purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes," Kennedy said.

Justices John Paul Stevens, Clarence Thomas and Stephen Breyer dissented from the court's opinion.

Stevens said the boy's father never had custody rights, only visitation rights. That means that the father cannot determine where the boy lives, he said.

"A parent without 'rights of custody,' therefore, does not have the power granted by (the treaty) to compel the child's return to his or her country of habitual residence," Stevens said.

Kennedy said that an exception to the Hague Convention deals with the safety of the parent.

"If, for example, Ms. Abbott could demonstrate that returning to Chile would put her own safety at risk, the court could consider whether this is sufficient to show that the child too would suffer 'psychological harm' or be placed in an intolerable situation," Kennedy said.

Lower courts can also take into account the child's wishes if he is mature enough to express them, Kennedy said.

Read more news coverage here and the Supreme Court decision here.

AC

May 18, 2010 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Thursday, May 6, 2010

Appellate Reversal of Child Removal for Parent's Drug Possession Charge

The Nebraska Court of Appeals has overturned a trial court decision to remove a child from the home based on his father's arrest for posession of crack cocaine.

Mere possession of an illegal drug does not mean the state can take custody of a child, according to a Nebraska Court of Appeals decision.

The father, whose full name is not used in the opinion, was picked up with a small amount of crack cocaine in March 2009.

That summer the Douglas County Juvenile Court determined that his infant son lacked proper parental care and supervision and took custody of the child.

The Appellate Court, in a split decision released Tuesday, overturned that ruling .

Juvenile Judge Donna Taylor based her decision that the child faced potential harm because the father might be incarcerated on a drug conviction.

However there was no evidence that the father was actually charged with any crime.

And if he were charged, he could get probation rather than a prison sentence, according to the Appellate Court decision.

Basing a decision on whether a parent might be incarcerated could apply to someone who got a number of speeding tickets or who wrote a bad check, said Stephen Kraft, a Douglas County public defender who represented the father.

In addition, the Appellate Court decision noted that there was no evidence that the father had a history of drug use.

The majority of the Appellate Court panel which heard the case also responded to a dissenting opinion that used information about drug addiction and abuse from government reports on websites.

"We strongly believe that we are limited to the evidence in the record," they wrote.

Read more news coverage here or the appellate opinion here.

AC

May 6, 2010 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

IL Brings Finality to Disputed Custodies Earlier

The Illinois Supreme Court recently amended its rules to allow immediate appeals of child custody judgments, overruling In re Marriage of Leopando, 96 Ill 2d 114 (Ill. 1983).  The change aims to bring stability to children subject to custody disputes, so that they no longer have to wait while all other legal issues are being resolved.

MR

May 6, 2010 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 30, 2010

Tennessee Bill on Equal Physical Custody Drawing Attention

A bill pending in the Tennessee legislature to mandate equal sharing of a child's time with each parent (with few exceptions) is sparking serious debate between women's advocacy groups and fathers' rights groups.

On one side is an alliance of women's groups, some judges and the Tennessee Bar Association, who say the change would make divorces tougher to settle and give abusive ex-husbands leverage they shouldn't have. Spending half of the time with each parent would also impose impractical schedules on kids, they say.

On the other side are fathers' rights groups who say kids get deprived of full relationships with both parents. Courts have too long ignored laws calling for custody decisions to be made in children's best interests, they say, and judges are overly influenced by notions about the mother-child bond.

The state's House Children and Family Affairs' Family Justice Subcommittee is scheduled to meet today to review divorce-related data it requested from the Tennessee Bar Association, as it works to determine whether to send the bill to a second committee that could send it to the full House.

Other states, including Missouri, start from a presumption of an even custodial split unless there has been abuse, said Janet Richards, a law professor at the University of Memphis who specializes in child custody matters. Tennessee would be alone in requiring clear, convincing evidence that one parent is unfit before dividing custody unequally, she said.

"This law sets up a standard of proof that's just short of the criminal standard of beyond a reasonable doubt," Richards said.

Committee hearings on the bill have drawn standing-room-only crowds full of mothers wearing saucer-size lapel stickers that read "Vote no on HB 2916" and fathers wearing everything from military fatigues to business suits.

Read the bill here or more news coverage here.

AC

March 30, 2010 in Custody (parenting plans) | Permalink | Comments (7) | TrackBack (0)

Tuesday, February 23, 2010

Ruling in White Supremacist Custody Case in Canada

A Canadian judge has ruled that two children of a father with white supremacist beliefes will remain permanent words of Child and Family Services.

The children were first apprehended by CFS after white supremacist markings were found drawn on the girl's body when she went to school in March 2008.

In the judge's decision, she says that drawing slogans on the daughter does not justify a permanent removal. But during the trial a social worker testified the daughter said black people need to die. The judge said the children have a right to be protected from the wilful promotion of hatred against specific groups.

Read the full story here.

AC

February 23, 2010 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)