Family Law Prof Blog

Post-divorce Parenting

"For children of divorce, what happens after their parents split up may be just as important to their long-term well-being as the divorce itself.

A new study found that children who lived in unstable family situations after their parents divorced fared much worse as adults on a variety of measures compared to children who had stable post-divorce family situations.

“For many children with divorced parents, particularly young ones, the divorce does not mark the end of family structure changes – it marks the beginning,” said Yongmin Sun, co-author of the study and associate professor of sociology at Ohio State University’s Mansfield campus.

“A stable family situation after divorce does not erase the negative effects of a divorce, but children in this situation fare much better than do those who experience chronic instability”

The study appears in a recent issue of the Journal of Marriage and Family. Sun conducted the study with Yuanzhang Li of the Allied Technology Group." by Newswise, Ohio State University 

Link to Article (last visited 5-8-08 NVS)

Case Law Development: Alabama Supreme Court Clarifies Change of Custody Standard

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.

Amici briefs were filed on behalf of mother by Doctors Opposing Circumcision and on behalf of father by national Jewish organizations, including the Union of Orthodox Jewish Congregations of America.

In re Boldt, Oregon Supreme Court, January 25, 2008
Opinion online (last visited February 9, 2008 bgf)
Hear the NPR Report on the case

Case Law Development: Loss of Child Custody Results from Failure to Appear at Status Conference

The Maine Supreme Court disagreed over whether a default judgment was appropriate for a father's failure to appear at a Magistrate's status conference.  The majority affirmed the trial court's entry of default judgment awarding mother custody based on father's failure to appear at the status conference.  The court noted that father's excuse that he was confused about the hearing was not credible.  The dissent used the case as an opportunity to criticize the practice of Magistrate's scheduling of repeated status conferences, noting that the scheduling order in this case provided little notice regarding what issues would be determined at the hearing.  The dissent commented:

This pre-trial conference scheduling order was not an aberration. It reflected a widespread practice of Family Law Magistrates scheduling repetitive pre-trial status conferences, requiring parties to appear at court, but without any specific objective to be achieved in the court appearance. In a November 2006 report, our Family Division Task Force expressed concern about "too many case management conferences at which little is accomplished." Family Division Task Force Report at 3 (2006). The Task Force noted that "some current scheduling practices indiscriminately promote numerous conferences in pre-and post-judgment family matters." The Task Force report also stated a goal "to reduce the number of magistrate events that do not address substantive issues.

The majority had agreed that there was cause for concern regarding magistrate practices, but concluded that:

While the scheduling of repetitive case management conferences could lead to confusion or frustration on the part of litigants, this matter is hardly a case study in injustice....While critical review of scheduling practices is generally a worthwhile undertaking, the instant matter is not a productive forum for this discussion.

Conrad v. Swan, 2008 ME 2 (January 8, 2008)
Opinion online (last visited January 10, 2008 bgf)

Case Law Development: Temporary Custody Change During Parent's Deployment Becomes Permanent Custody Change

Mother and Father had a joint custody arrangement regarding their child from ages 2 to 10, with child living primarily with Mother in New York with her husband and their child and having substantial visitation with Father in Virginia.  When Mother was deployed to Iraq in 2004, Mother sought to have their nine-year-old child live with her husband and son.  Father moved for a change of custody.  While that action was stayed pursuant to the Service Members Civil Relief Act, the court awarded Father temporary custody.  Diffin v. Towne, 787 N.Y.S.2d 677 (N.Y. Fam. Ct. 2004).

When Mother returned from Iraq, the court concluded after trial that primary physical custody should be transferred to Father.  While noting that Mother's deployment was not, in itself, a change in circumstances, the fact that the child had adjusted well to living with Father, and that Mother had since divorced, were all factors that made a change in custody in the best interests of the child.  Finding no abuse of discretion in this ruling, the New York Supreme Court, Appellate Division affirmed.

Matter of Diffin v. Towne, 2008 NY Slip Op 21 (January 3, 2008)
Opinion online (last visited January 8, 2008 bgf)

For more information on the Service Members Civil Relief Act, see the ABA Family Law Section guide by Mark E. Sullivan, A Judge's Guide to the Service Members Civil Relief Act

Case Law Development: Attorney for Child May Not Act as GAL

The confusion between the status of attorney for the child and guardian ad litem was the target of appeal in Marriage of Anderson, an Iowa Court of Appeals decision.  In this case, Mother requested appointment of a guardian ad litem in a custody case.  However, the trial court's response was to appoint an attorney under the Iowa statute allowing appointment of an attorney for the child.  The court then rejected the attorney's report and request to testify, finding that the attorney had not been appointed as a guardian ad litem. 

Read In Re Marriage of Anderson (Iowa Court of Appeals, Dec. 28, 2007) (Last visited January 7, 2008 bgf)

The case is a fine example of the continuing debate regarding the role of attorney representatives for children.  The Standards of Practice for Lawyers Representing Children in Custody Cases require that a judge appointing a lawyer for a child specify whether the attorney is a “Child’s Attorney” or a “Best Interests Attorney.”  The ABA’s Standards of Practice for Attorneys Who Represent Children in Abuse and Neglect Cases, while recognizing the hybrid attorney/guardian ad litem role for lawyers under certain circumstances, expresses a clear preference for the attorney for the child model.  Based in part on these standards, the National Conference of Commissioners on Uniform State Laws is preparing a Uniform Representation of Children in Abuse and Neglect and Custody Proceedings Act.   Professor Atwood's fine article exploring the policy choices in the uniform act can be accessed from her SSRN page: Atwood, Barbara Ann, "The New Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act: Bridging the Divide Between Pragmatism and Idealism" . Family Law Quarterly, 2007 Available at SSRN: http://ssrn.com/abstract=938211

For tables reflecting a 51-state analysis of the standards of representation of children in adoption and guardianship, see 41 Family Law Quarterly (Summer 2007) article "Hearing Children's Voices and Interests in Adoption and Guardianship Proceedings" of the American Bar Association Child Custody and Adoption Pro Bono Project.

• Appendix A—Appointment Provisions in Adoption Cases
• Appendix B—Appointment Provisions for Guardianship Cases

(last visited Jan 7, 2008 bgf)

Case Law Development: South Dakota Supreme Court Holds that Child Should Keep Stepfather's Last Name

The Supreme Court of South Dakota in a 3-2 ruling has held that a girl conceived when her mother had an affair must keep the last name of her mother's husband, overruling the trial court order that had changed the child's name to that of her biological father.  The child's mother reconciled with her husband before the child was born and her husband's name was on the child's birth certificate.  The majority found that the daughter, now 3, should have the same last name as everyone else in the home in which she lives.

The Supreme Court majority said it is in the child's best interest to keep the same last name as that of her mother, stepfather and half-sister.  "It makes no sense to change her name after two years to her natural father's name," Justice Richard Sabers wrote for the court majority.  "From the standpoint of her best interest, her name should remain the same as her family unit because she socializes with them, will go to school with them and live with them the majority of the time. Why should she be unnecessarily required to explain why her surname is different from her family unit in all these circumstances?" The majority opinion said the circuit judge placed too much importance on the possibility that the girl's mother and stepfather might get divorced. Tiede also disregarded testimony that indicated the relationship was improving among the mother, biological father and stepfather, the justices said.

The two dissenting justices would have given deference to the trial judge.  The trial judge had concluded that not allowing the name change might lead to estrangement with the biological father, who had visitation rights with the child for the past two years.  "With the high divorce rate and increased numbers of blended families, it is not unusual for a child to have a different surname than the child's mother or half-siblings," Justice Judith Meierhenry wrote.  Justice Steve Zinter also dissented, saying he believes the court majority mistakenly focused on only one factor whereas most name change cases focus on a variety of factors.

In the Matter of the Change of Name of L.M.G., (South Dakota August 8, 2007)
Opinion online (last visited August 10, 2007 bgf)

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Case Law Development: Abuse of Discretion in Change of Custody Actions

The Florida Court of Appeals split over whether the trial court had abused its discretion in changing custody from Mother to Father based on Mother's failure to have child vaccinated, her frequent moves, and Father's remarriage and improved home circumstances.  The case presents a fascinating window into how difficult it is to separate out financial considerations from the custody determination.  Mother had refused to have her child given the chicken pox vaccine, because of her concerns with the vaccine, and the child contracted chicken pox at age 4.  Mother also had not taken the child to the doctor as often as Father and had moved six times in four years.  Mother claimed that her moves and the fact that she had not taken the child to the doctor as often as Father were due to her financial circumstances.  In particular, she argued that she waited for Father to take the child to the doctor because child was insured by Father's wife and Father had refused to give Mother a copy of the insurance card.  The majority found Father's remarriage of 2 1/2 years and stable and economically improved home life, along with Mother's moves and neglect of medical appointments, were changed circumstances sufficient to change custody.  The dissent found these same circumstances to simply be a choice between the relative financial security of a couple when, "in every other aspect, the parties have an equal capacity and disposition to provide the child with her needs."

San Marco v. San Marco, 2007 Fla. App. LEXIS 11413 (July 25, 2007)
Opinion on line (last visited August 2, 2007 bgf)

Case Law Development: Joint Physical Custody in Domestic Abuse Cases

The Iowa Supreme Court's analyzed the effect of domestic abuse on child custody decision-making, noting that "Because domestic abuse reflects the ability of the parties to listen to one another and respect one another’s opinions and feelings, the existence of domestic abuse is a significant factor in determining whether joint physical care is appropriate."  The court then went on to explain the legal status of the parents when it rejects a joint physical care arrangement:

When joint physical care is not warranted, the court must choose one parent to be the primary caretaker, awarding the other parent visitation rights.... Under this arrangement, the parent with primary physical care has the responsibility to maintain a residence for the child and has the sole right to make decisions concerning the child’s routine care.... The noncaretaker parent is relegated to the role of hosting the child for visits on a schedule determined by the court to be in the best interest of the child. Visitation time varies widely and can even approach an amount almost equal to the time spent with the caretaker parent. .... Thus, the main distinction between joint physical care and primary physical care with liberal visitation rights is the joint decision making on routine matters required when parents share physical care.

The case is interesting for the court's recognition that conduct need not result in broken bones, noting that in this case Father's "personal disagreements with [Mother's] decisions soon led him to behave in a way that not only alienated [her], but ultimately caused her to fear for her safety....  While his desperate efforts to learn why his wife had left him are understandable, we cannot ignore the fact that eventually his actions reflected not the attempts of a husband trying to save his marriage, but the bitterness of a man who had been rejected and who resented his former partner."  Finding this, the court concluded that the trial court had not erred in find that the father would be unable to cooperate in joint physical case.

In re Marriage of Hynick, February 16, 2007
Opinion on the web (last visited February 26, 2007 bgf)

Read the commentary of Iowa Attorney Alexander Rhoads at Iowa Family Law Blog

Case Law Development: De Facto Parent Doctrine Rejected by Utah Supreme Court

The Utah Supreme Court has held that individuals who have no biological or legal relationship with a child have no standing to seek visitation. Reversing the district court's decision that a former domestic partner could assert a claim to visitation under the common law doctrine of in loco parentis, the court held that Utah's doctrine of in loco parentis does not independently grant standing to individuals to seek visitation after the in loco parentis relationship has ended.

The couple in the dispute had entered into a civil union in Vermont and, after one bore a child conceived through artificial insemination, they were both obtain co-guardianship of the child and raised the child together until their relationship dissolved two years later.  The court emphasized the temporary nature of the in loco parentis doctrine, concluding that it may be terminated by either the legal parent, the parent standing in loco parentis, or the child.  The court further refused to expand the doctrine to recognize a new doctrine of de-facto or psychological parent, finding that a legislative task beyond the competence or power of the judiciary and in conflict with legislative policy.

Chief Justice Durham dissented, emphasizing that there had been no legislative pronouncements at all on the issue of surrogate parent standing to seek visitation or custody and finding the extension of such a doctrine to be an appropriate exercise of the court's power to adapt the common law to changing social realities.

Jones v. Barlow, Utah (February 16, 2007)
Opinion on web (last visited February 26, 2007 bgf)

Law Review Article: Incarcerated Fathers

Solangel Maldonado, Recidivism and Paternal Engagement, 40 FAM. L.Q. 191 (2006).  This article surveys social science and legal literature concerning relationships between incarcerated fathers and their children. The author concludes that stronger father-child relationships lead to decreased delinquency in children and lower rates of recidivism for fathers. Link to Article on Westlaw (last visited 2-21-07 NVS)

Law Review Article: Abuse vs. Alienation

Michele A. Adams, Framing Contests in Child Custody Disputes: Parental Alienation Syndrome, Child abuse, Gender, and Fathers' Rights, 40 FAM. L.Q. 315 (2006). This article analyzes PAS from a social constructionist and framing perspective. The author focuses on two competing frames: abuse of a child by a noncustodial parent versus alienation of the child from a noncustodial parent. The author discusses a possible middle ground where parental alienation is viewed as a potential issue rather than a psychological disorder. Link to Article on Westlaw (last visited 2-21-07 NVS)

Gag Orders in Family Court Cases

Our readers may be interested in the Op Ed piece by Professor Eugene Volokh in the LA TImes.  Professor Volokh questions whether divorce courts violate the first amendment when they mandate or forbid certain kinds of speech by parents or order that condition custody or visitation on a person's speech. 
Read the piece in the LA Times

(last visited February 7, 2007 bgf)

Case Law Development: Caretaking does not Include Breadwinning in Proving De Facto Parent Status

The Massachusetts Supreme Court considers two questions of first impression in a case involving a custody dispute between a lesbian couple. The court concludes that an adult who is neither the biological nor the adoptive parent of a minor child may assert custody and support rights as a "de facto parent," but affirmed the trial court's finding that the second parent in this case had not proven sufficient facts to prove her status as de facto parent.  The non-biological parent was the primary breadwinner and was away from home with her employment a significant period of time.  She argued, however, that her economic contributions to the family should be considered as caretaking for proving de fact parent status.  The court disagreed, however, citing the ALI Principles of the Law of Family Dissolution, the court noted that "he notion of "caretaking" as the particular subset of parenting tasks having most directly to do with interacting with and on behalf of the child serves as a valuable tool for assessing the adult's bond with the child."  The court also rejects the invitation to recognize estoppel principles as creating parental rights where the party claiming such rights is neither the biological nor adoptive parent of the child and does not meet the criteria of a de facto parent.

A.H. v. M.P., 2006 Mass. LEXIS 692 (December 8, 2006)
Opinion on the web (last visited December 13, 2006 bgf)

Case Law Development: Missouri Court Addresses Child's Preferences in Custody Modification Litigation

The Missouri Court of Appeals reviewed a custody modification case presenting some classic issues in custody litigation regarding a child's preferences and bonds with a sibling. The case involved a motion for change of custody of an 11-year-old son and 17-year-old daughter. For seven years, the parents had joint custody of the children, but Mother in this action sought sole custody, alleging that father was abusive to the children.  Daughter, who was pregnant at the time of the custody modification, strongly objected to living with her father.  The trial court modified the original custody order, continuing the joint custody but revised the parenting plan to provide that the children would live primarily with mother and restricting father's parenting time with daughter until he had completed counseling sessions.  Father argued on appeal that there was no substantial change in circumstances had occurred with respect to the son so as to justify a modification. However, the court found that the son's strong bond to his sister coupled with her refusal to return to her father's home were sufficient evidence of changed circumstances. At the suggestion of the GAL, the court ascertained the wishes of both children regarding custody (both preferred living with mother) through in-chambers interviews with the children. Father argued that the court's refusal to allow Father's counsel to directly question the children during their interview in chambers was reversible error, but the court of appeals disagreed, noting that Father had not objected at that time and that the attorneys could have interviewed the children directly by calling them as witnesses.  Father also alleged that the requirement that he complete anger management or counseling sessions was too vague, but the court found the condition clear, especially given that daughter was already in counseling and the order specified that completing family counseling with daughter would fulfill this requirement. The court reversed and remanded to the trial court for the trial court to fulfill the statutory requirements regarding specifying parenting time as to certain holidays and special occasions which the trial court had omitted from the plan.

In re Murphey, 2006 Mo. App. LEXIS 1830  (December 4, 2006)
Opinion on the web

Case Law Development: FPKPA Requires Virginia Must Enforce Custody Determination of Vermont Court in Civil Union Dissolution

Virginia has taken a step toward resolution of the on-going tension over whether Virginia would recognize a Vermont civil union between two women as providing a basis for custody rights in the non-biological parent-partner (See Family Law Prof Blog postings of August 7 and March 15) The Virginia court of appeals today unanimously accepted a ruling of the Vermont Supreme Court that conferred parental rights on both women. The court ruled that the trial court erred in failing to recognize that the Parental Kidnapping Prevention Act prevented its exercise of jurisdiction and required it to give full faith and credit to the custody and visitation orders of the Vermont court. Because biological mother filed papers in Vermont to dissolve the civil union in 2003, the appeals court said, the Vermont courts thereby gained sole jurisdiction over custody and visitation issues concerning the child born during their union.

Regarding the effect of the federal and state DOMA acts, the court concluded

Nothing in the wording or the legislative history of DOMA indicates that it was designed to affect the PKPA and related custody and visitation determinations. Simply put, DOMA allows a state to deny recognition to same-sex marriage entered into in another state. This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont. Rather, the only question before us is whether, considering the PKPA, Virginia can deny full faith and credit to the orders of the Vermont court regarding IMJ’s custody and visitation. It cannot. The law of Vermont granted the Vermont court jurisdiction to render those decisions. By filing her complaint in Vermont, Lisa invoked the jurisdiction of the Vermont court. She placed herself and the child before that court and laid before it the assertions and prayers that formed the bases of its orders. By operation of the PKPA, her choice of forum precluded the courts of this Commonwealth from entertaining countervailing assertions and prayers.

Janet Miller-Jenkins v. Lisa Miller-Jenkins (November 28, 2006)
Opinion on web (last visited November 28, 2006)

Case Law Development: Modification of Joint Custody in Relocation Case Does Not Require Proof of Changed Circumstances if Joint Custody Continues after Move

The California Court of Appeals has handed down a fascinating decision involving modification of joint child custody plans.  The richness and complexity of the facts would make this a fine opinion to craft into a child custody problem for students.  In terms of the legal developments, the majority and dissenting opinions' debate over the "changed circumstances" test  in child custody modifications is extensive and well-written.

The case involves an unmarried mother and father whose relationship was, in the words of dissenting judge Bedsworth, "Byzantine in its complexity."  The couple had an on-again, off-again relationship for over ten years after the child was born, despite the fact that Father was married to another woman for most of this time.   Custody and paternity proceedings were filed when the child was five years old and a custody order entered over four years later.   The custody order provided a 50/50 joint custody arrangement and ordered that neither parent could relocate out of the state without the other parent's permission or the permission of the court. A year later, mother moved to modify the parenting plan and for permission to move to Colorado, based on her allegations that she could no longer afford to live in California, her sister had offered her employment in Colorado, and father was "very controlling" and was abusing son in his sports workout sessions.  Father argued that mother's request was in bad faith because his wife was expecting their first child and he believed mother wanted to move away in order to prevent son from bonding with his new half-sibling. 

The court heard the custody issue de novo under a best interests standard, rather than applying a changed circumstances rule.  It appointed an attorney for the child and a child custody evaluator.  Father employed a psychological expert to evaluate son, but the expert was unwilling to testify (with father alleging that his reluctance was due to pressure from mother and child's attorney).  The court refused to accept that expert's report into evidence, concluding that the expert had freely chosen not to testify.  Finally, the court refused to hear the testimony of the 12-year-old son or interview him in chambers, stating that it had a policy against children testifying and that it had sufficient information from the custody evaluator and child's attorney.

The trial court modified the child custody judgment, granting mother's move-away request and establishing a new co-parenting plan for joint physical custody, with son living with mom in Colorado during the school year, Dad during the summers and on alternate Thanksgiving and spring breaks.

The court of appeals affirmed, noting that ordinarily the parent seeking to change custody would have to prove changed circumstances, but such a requirement did not apply here "because the court did not change custody. Although the court gave [mother] permission to relocate [son], the court
continued joint custody with a modified co-parenting arrangement."  The court also found no error in the trial court's refusal to allow the child to testify.

The dissenting opinion is a lovely piece of writing in which Judge Bedsworth takes the majority to task for its conclusion that changed circumstances were not required in this case.  Here is a small excerpt to give you a flavor of the opinion:

They [decide the changed circumstances rule does not apply] by concluding that a thousand-mile move is not a change in physical custody, but merely some kind of “modification of the coparenting arrangement.” ... In essence, they’ve said something akin to: “Your pet is still a golden retriever, only now instead of orange fur, big floppy ears and a long tail, it has silver scales, fins and gills and isn’t quite as huggable.” I am not yet willing to throw in the towel on something as important as finality of judgments, and would not allow what I believe is a reassessment of a final  custody judgment in this case, absent a showing of significant changed circumstances.

Niko v. Foreman (October 30, 2006)
Opinion on the web (last visited November 3, 2006 bgf)

Case Law Development: UCCJEA Prohibits Court From Altering Custody of Foreign Decrees, Even in Relocation Cases

A second move-away case from the California Court of Appeals this past week involved the application fo the UCCJEA to enforcement of a French custody decree.   The French decree gave custody of the child to mother, visitation rights to father, and enjoined mother from moving away with the child.  However, mother did move with the couple's 14-year-old child from Fance to California, resulting in this action by father, requesting return of the child.  The trial court ordered that the child be returned to France or else the father would obtain sole legal and physical custody.  The court of appeals reversed, holding that  as it violated the Uniform Child Custody Jurisdiction and Enforcement Act by changing custody, and by ordering that the mother not move away with the child.

The court of appeals reversed, holding:

We agree that the trial court violated the UCCJEA by changing custody. We also
agree that the UCCJEA required limited enforcement of the visitation schedule but
prohibited the trial court from enforcing the other aspects of the visitation award,
including the order that [Mother] not move away with [Child]. This not only follows from
the language of the UCCJEA, but also avoids any conflict between enforcing custody and
enforcing visitation. Thus, we accord comity to the French decree to the extent -- but
only to the extent -- that the UCCJEA requires.... The trial court ... had no jurisdiction to enforce any visitation provisions other than the visitation schedule. If [Father] came to California, the trial court could have required [Child] to visit him according
to the schedule. It erred, however, by requiring that [Child] be returned to France.

Marriage of Paillier, (October 31, 2006)
Opinion on the web (last visited November 3, 2006 bgf)

Court Sides With Divorced Father on Circumscision Decision

"A judge has sided with a divorced father who did not want his 9-year-old son circumcised, in a case that has drawn attention from groups opposed to the surgical procedure. Cook County Circuit Judge Jordan Kaplan's ruling, issued Tuesday, said the boy can decide for himself about circumcision when he turns 18. Until then, there will be no circumcision, a surgery that removes the foreskin of the penis. The Associated Press is not naming the parents to protect the child's privacy. The father was born and raised in Poland; The mother is from Slovakia. Both now live in suburban Chicago. A 2003 divorce decree gave the boy's father the right to offer advice on medical decisions." AP, Cnn.com Link to Article (last visited 10-25-06 NVS)

Case Law Development: Massachusetts Court of Appeals Reaffirms Use of "Real Advantage" test in Relocation Cases

The Massachusetts court of appeals reversed a probate court's denial of a custodial mother's petition to relocate, finding that the court had given undue weight to the effect of the move of father's visistation and reaffirming that the "real advantage" test remains the standard by which relocations by custodial parents are to be measured. 

The 'real advantage' test is grounded on the 'realization that after a divorce a child's subsequent relationship with both parents can never be the same as before the divorce . . . [and] that the child's quality of life and style of life are provided by the custodial parent.' . . . Although the best interests of the children always remain the paramount concern, '[b]ecause the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child's best interest requires that the interests of the custodial parent be taken into account.

Here, the court concluded that

On its face, the mother's case would seem to present a relatively straightforward application of real advantage principles: her marriage had dissolved; she had lost her three-day per week job with Fleet Bank that paid $ 70,000 plus bonuses; the house in which she and the child had lived in Newton was not available after July, 2005, on a month-to-month basis; and she could not afford to purchase a home in Newton that would enable the child to stay in the local school. The move to Old Saybrook offered her free lodging in an upscale community, the companionship of family, and readily available child-care assistance from family while she looked for and established herself in a suitable job. As of the time of trial, she had accepted a three-day per week job as a mortgage originator at a Sovereign Bank in Old Saybrook. These circumstances establish a "good reason" for the move to Connecticut, and the probate judge's determination to the contrary is clearly erroneous.... the findings and rulings concerning removal concentrated almost exclusively on the father's relationship with the child, and in particular the desirability of frequent, short visits with the father. While those findings cannot be considered erroneous, disruption in visitation with the noncustodial parent cannot be controlling or no removal petition would ever be allowed. It is clear from the probate judge's findings that undue -- in effect, dispositive -- weight was given to this criterion.

A dissenting judge would have given greater deference to the trial judge.

Cartledge v. Evans, 2006 Mass. App. LEXIS 1069 (October 19, 2006)
Opinion on web (last visited October 20, 2006 bgf)

Michael Jackson and Deborah Rowe Settle Custody Case

"Michael Jackson and his ex-wife, Deborah Rowe, have settled their lengthy legal battle over custody and visitation rights for their two children, their lawyers said Friday.

"We're still dealing with the details but it addresses all of the disputes between the parties," said attorney Marta Almli, who represents Rowe. "I can't say anything about the terms of the settlement but I don't think it would have happened if both parties didn't agree it was appealing to both of them."" AP, Cnn.com Link to Article (last visited 10-4-06 NVS)

Case Law Development: Costs for Recovering Abducted Child from Another Country as Child Support or Attorneys Fees

The Maryland Court of Special Appeals addressed a case that I'm inclined to assign to students at the end of the semester with the instructions, "Here, read this case about all the topics we barely touched upon in the course and don't ever let me hear you say -- 'if I can't find a job, I can always do some family law!'"   

The case involves a factually and legally complicated story of Mother and Father who had a son (while Mother was married to another man).  When the son was 2 1/2 years old, and while a custody action between the parents was pending in Maryland, Father abducted him and took him to Turkey.  The court chronicles Mother's efforts to recover her son, which required 2 1/2 years, 11 trips to Turkey, multiple court hearings in both Maryland and Turkey, and over $350,000 in legal and private investigation fees and expenses.  Simply reading the story of what happened in this case to the point of the child's return is like a short course in international child custody litigation.

However, the case before the Maryland court required even more, as Mother was awarded some of her expenses in securing her son's return to the United States, which Father challenged in this appeal and sought to avoid through a separate bankruptcy proceeding.  The trial court had granted Mother $200,000 in costs in one proceeding and then $252,930 in a second hearing, which it treated as an award of counsel fees and costs.  Mother sought to have the first award characterized  as a contempt sanction and argued that the trial court had erred in overruling her motion to have the second award made as child support. 

The court commented on the parties' motivation for this characterization dispute: "The only reason the parties are arguing over whether the court could sua sponte treat Mother's motion as one for counsel fees and costs, and whether the $ 252,930 judgment is for child support, is that they believe the answers to those questions will determine ... whether that judgment was entered in violation of the automatic stay in bankruptcy.... [T]hat issue is to be decided under federal law, not Maryland law; and federal law about what obligations are child support, or "in the nature of child support," differs from Maryland law on that subject. Therefore, our answers to these two questions do not have the significance the parties believe they do."  Indeed, the court went on to explain that, while under state law "counsel fees and costs incurred by a parent in a custody case are not child support, even when they are for the benefit of the child", under federal law, these same expenses are "in the nature of child support" and thus non-dischargeable.

Regarding the characterization of the first award, the court found that the trial court had erred in characterizing that award as one for contempt, as there were no purge conditions in the first award. Rather, the court found that the trial court had retroactively re-characterized the first award in the hearing on the second award.  That error required reversal and remand.

While Father prevailed in this round of the litigation, the court was not without commentary on his approach to the litigation. The court addressed Father's argument that he should not be required to pay Mother for the expenses incurred in recoverying the child because Mother's husband -- not Mother -- had actually paid those expenses. In rejecting this argument, the court noted "If nothing else, this argument is notable as a fine example of chutzpah" with a footnote that explored the definition of the term and its use by the courts.

So, read and enjoy, and save the opinion in case you have trouble convincing your curriculum committee that there is sufficient content to justify offering an advanced child custody class.

Corapcioglu v. Roosevelt, 2006 Md. App. LEXIS 219 (September 20, 2006)
Opinion on web (last visited September 22, 2006 bgf)

Case Law Development: Trial Court Errs in Basing Custody Solely on Statements of Four-Year-Old

The Tennessee Court of Appeals reversed a decision transferring custody of a 4 1/2 year old child from Mother to Father. Mother had restricted Father's visitation with child after she received opinions from two professionals that the child had likely been sexually abused by father.  The trial court, however, interviewed the four year old, who maintained that she had lied about the abuse, and based his decision "almost entirely" on that interview.  Despite two different experts who testified that the child had likely been abused, the trial court stated, "There's nothing that has been said by anybody that is going to overcome what that child said to me."  Thus, finding that no abuse had occurred, the court transferred custody to Father based on Mother's interference with visitation. 

The court of appeals reversed, finding that "the evidence simply does not support the findings by the trial court that are pivotal to the issues of custody, visitation, contempt and attorney fees."

In re C.A.R., 2006 Tenn. App. LEXIS 583 (August 30, 2006)
Opinion on web (last visited Sept. 5, 2006 bgf)

Case Law Development: Wife Estopped from Using DNA Test Results to Deny Husband's Paternity

The Kentucky Court of Appeals affirmed a trial court's use of equitable estoppel to preclude a mother from denying her husband's custody rights based on DNA test results.  Mother had concealed the fact that Husband was not the father of the child during the marriage and a custody evaluator testified that father and son were strongly bonded.  Mother argued that Husband would have continued his relationship with and support for the child even if she had told him the child was not his.  Thus, she argued, there was no detrimental reliance to support the application of equitable estoppel.  The court of appeals disagreed, however, noting that "By withholding the true state of [Husband's] relationship to the child, [Mother] precluded [Husband] from seeking legal advice as to the extent of his relationship with [Child].... For example, had [Husband] known the truth, he might have sought to have [Mother] institute legal action to terminate the biological father's parental rights so that he could adopt the child. As an adoptive parent, [Husband] would have been on equal footing with [Mother] in any custody dispute. Given the knowledge denied [Husband] by [Mother's] actions, we conclude it was not error for the court to conclude that [Husband] relied on [Mother's] representations to his detriment. The court affirmed the trials court's grant of joint custody with primary residential custody with Father.

Hinshaw v. Hinshaw, 2006 Ky. App. LEXIS 275 (September 1, 2006)
Opinion on the web (last visited Sept. 5, 2006 bgf)

North Dakota Residents May Vote on Shared Parenting Initiative

"North Dakota's general election in November will probably include a ballot on a Shared Parenting Initiative, a measure that would make joint child custody the default option in cases of divorce or separation unless one parent was proven to be unfit. A petition for SPI's inclusion has the required signatures and is currently being verified. But the fact that both state and federal officials have come out against the SPI may cause its defeat. . . . The proximate cause of the SPI's reduced prospects was an op-ed in the Herald by Carol Olson, executive director of the North Dakota Department of Human Services. Olson stated, "If the measures pass, the state could not certify that its programs meet federal requirements, and North Dakota would lose about $71 million in federal money for those programs during the 2007-2009 biennium." (The Initiative includes more than one measure; the support regulations basing support on a child's needs are particularly in dispute.)" By Wendy McElroy, FoxNews.com Link to Article (last visted 8-31-06 NVS)

Case Law Development: Parent's Continual Litigation to Increase Parenting Time Grounds for Granting Sole Custody to Other Parent

The couple in this case divorced in 1997 and agreed to joint legal custody of their 3-month-old child, with mother having primary physical custody and father having every other weekend visitation.  In 2000 and 2002 the court approved modifications that increased father's parenting time and required mother's consultation with father on a wider range of decisions.  In 2003, father moved for another modification, to further increase his parenting time and to eliminate his child support obligation.  Mother responded with a motion to modify the joint custody arrangement to give her sole custody.  The court denied father's motion and granted mother's request for sole custody based on the prior history of litigation:

...evidence from the family relations counselor, psychologist and court-appointed guardian ad litem.... indicated that the child suffered extensively from the detrimental effects of consistent litigation initiated by the defendant in his efforts to spend more time with the child. The court found that the frequent and repeated litigation served to harm the child and deprived him of the ability to grow and develop. The court found that the defendant failed to recognize the harm caused by his "strategy of attrition by repeatedly asking for small increases in his parenting time." Each success resulted in encouraging the defendant to seek more time. The court concluded that to break this cycle, it was in the child's best interest to deny the defendant's request for additional time.

The case includes significant excerpts from the trial testimony of the child psychologist and would provide an excellent vehicle for class discussion on the effects of extended divorce litigation on children.

Daddio v. O'Bara, 2006 Conn. App. LEXIS 390 (August 29, 2006)
Opinion on web (last visited August 29, 2006 bgf)

Effect of North Dakota's Shared Parenting Ballot Initiative on Federal Funding Debated

Even before a proposed child custody initiative has been approved for the ballot in North Dakota, an argument is raging about whether its language would cost the state $71 million over two years in federal aid to families. The possibility, raised by a regional U.S. Department of Health and Human Services administrator who was asked to review the measure, has prompted charges of bureaucratic intimidation.  The ballot initiative requires joint child custody arrangements in divorces, if one of the former spouses wants the option and both are considered fit parents. It limits either parent's child support payment to "the actual cost of providing for the basic needs" of the couple's child or children.

Read the AP story from the Grand Forks Herald (last visited August 28, 2006 bgf)

Child Visitation with Mothers in Prison

"The Tennessee Prison for Women has long recognized the need for mothers and their children to bond while the children are young. Each week, the prison sponsors a weekend visitation program that allows children between the ages of three months and five years (up to their 6th birthday) to spend a weekend with his/her inmate mother/grandmother. Through recent renovations, the Tennessee Prison for Women has established separate quarters away from the general inmate population for the child visitation program.  Through the efforts of this program, infant and toddler children of qualifying inmates may be given the opportunity to bond with their incarcerated mothers during approved hours on the weekends.

An approved child visitation will allow only one child per visit, however a total of sixteen children may stay with their mothers in single cell units in the new visitation space dedicated for the program.  The child and mother eat their meals in a more relaxed family setting within the unit.  There is also space dedicated for activities designed to foster child development.  Future plans include an outdoor recreation area that will have playground equipment and picnic tables." Tennessee.Gov, Department of Correction Link to Article (last visited 8-23-06 NVS)

Law Review Article: Supervised Visitation

In Defending Neutrality in Supervised Visitation to Preserve a Crucial Family Court Service, Nat Stern and Karen Oehme discuss the role of neutrality in the operation of supervised visitation centers. They favor neutral enforcement of rules even though enforcement might entail taking action in response to inappropriate parent behavior. Nat Stern and Karen Oehme, Defending Neutrality in Supervised Visitation to Preserve a Crucial Family Court Service, 35 Sw. U. L. Rev. 37 (2005). Link to Article on Westlaw (last visited 8-23-06 NVS)

Visitation Centers Lack Funding

"Many times when a marriage dissolves into shouting matches between parents, the children are caught in the crossfire. For the past three years warring parents have been ordered by judges to exchange their children at three safe sites around Pinellas County: St. Petersburg, Pinellas Park and Clearwater. The parents never see each other to avoid confrontations. But now the nonprofit agency that operates these "visitation centers" says it may have to close the St. Petersburg and Clearwater locations because it did not receive a two-year, $350,000 federal grant. The Justice Department received 95 proposals for $36-million but doled out only $13-million. Community Action Stops Abuse, or CASA, was notified last month it would not receive the grant, which it first won three years ago.

Unless the 29-year-old domestic violence agency can get additional funding, the two sites may have to close at the end of September, said Kris Nowland, CASA's director of youth education and support services. The result: Dozens of children will have to wait longer between parent visits. "We are sending out a plea to all of our supporters," Nowland said. "Parents were waiting up to six months prior to this grant. We're very fearful we'll have to go back to that."" By Melanie Ave, St. Petersburg Times Staff Writer Link to Article (last visted 8-23-06 NVS)

Race as a Consideration In Custody Actions

While we're looking at race and adoption, it seems appropriate to point out that the debate over how and if race should be considered in custody actions is not settled.  A recent Illinois Appeals Court decision affirmed a trial judge's decision to grant sole custody of a 2-year-old bi-racial child to her African-American mother rather than her Caucasion father.  The bitter custody battle included 15 days of trial, 128 exhibits and 15 witnesses (including four experts, the admissibility of whose testimony was a central issue in the appeal).  The trial judge found both parents equally fit to care for the child but favored mother in part because "the mother was able to provide the child with the support she would need in a world that was potentially hostile to biracial individuals."

The court considered the effect of Palmore v. Sidoti, 466 U.S. 429 (1984) and concluded that, while race cannot be the sole factor in a custody determination, "Volumes of cases from other jurisdictions have interpreted Palmore as not prohibiting the consideration of race in matters of child custody."

A strongly worded dissent argued that  "Despite this court's weak protest to the contrary, the remarks in the trial court's letter of opinion show that the court's decision for custody improperly hinged on the sole factor of race: that only an African-American person can properly raise a biracial child in this society."

In re Gambla, 2006 Ill. App. LEXIS 667 (July 31, 2006)
opinion on the web (last visited August 17, 2006 bgf)

Case Law Development: Standard for Minor Modifications of Joint Physical Custody Arrangements

The Court of Appeals of Missouri worked through a nice little problem of statutory construction in a case that would provide a wonderful vehicle for class discussion of custody modification standards. (The case also provides yet another reason why statutes should speak in terms of "parenting time" rather then joint custody or sole custody + visitation).  Missouri's child custody statute provides that a change in custody requires proof that "a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child." Caselaw requires that the change in circumstances be "substantial."  However a separate statute provides that a court "may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child." 

The courts of appeals of Missouri have split on how to interpret these two statutes.  The Southern District holds that the more lenient BIC standard should apply to any minor change in custodial arrangements while the Western District prefers the bright-line test of applying the more strict standard to any change in a joint custody arrangement and reserving the BIC standard only for changes in what is denominated as visitation in the original decree.  Here, the Eastern District noted the split of authority and the costs and benefits of each district's approach.  (See further reading below for excerpts) While agreeing with the Western District's bright-line test because of the benefit of predictability and ease of administration, the court transferred the decision to the Missouri Supreme Court.

The case also has some interesting facts regarding what income to include in calculating child support -- overall a nice case to construct into a class problem.

Russell v. Russell, 2006 Mo. App. LEXIS 1186 (August 8, 2006)
Opinion on the web (last visited August 9, 2006 bgf)

One problem with the Southern District approach is the lack of a bright line test, which could lead to confusion and inconsistency from case to case.  Under the Southern District approach, a trial court would be forced to decide whether the modification it wants to make is significant, drastic, or something less before it could determine what standard of proof to apply to the evidence.  We agree with the Western District that this approach is impractical or illogical because it leaves the determination of what standard of proof to apply until the end of the case.

There is also the possibility of an illogical result when the Western District approach is applied. For example, a joint custodial parent who seeks only a minor modification of his parenting time would have to prove a substantial change in circumstances, while a parent with visitation rights seeking a major modification of his parenting time would only have to prove such a change would be in the best interests of the child.

Nevertheless, because the Southern District approach leaves the determination of whether to apply section 452.410.1 or section 452.400.2 until the end of the case, we find that the Southern District approach is less desirable than the Western District approach. For this reason, we agree with the Western District that if the original dissolution judgment characterizes a physical custody award as joint physical custody, then an attempt to modify the time that either parent has a child under his or her care and supervision is an attempt to modify custody, requiring the application of section 452.410.1. Accordingly, we find the trial court erroneously declared Baker to be the law.

We will now discuss when a trial court's physical custody award is properly characterized as "joint physical custody." Section 452.375.1(3) defines "joint physical custody" as "an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents." Section 452.375.1(3). Consequently, when a court's order awards significant periods of time where the child is under the care and supervision of each of the parents, the award is one of joint physical custody, regardless of what terminology the court used to designate the award. If a trial court erroneously designates an order awarding significant periods of time where the child is under the care and supervision of each of the parents as an award of sole physical custody with visitation rights to the other parent, the party awarded visitation rights may request an appellate court to modify the dissolution judgment so that it is designated as an award of joint physical custody. A court's order awarding one parent custody of the child 57 percent of the time and the other parent custody of the child 43 percent of the time is an award of joint physical custody.

(Citations and quotation marks omitted)

Case Law Development: Massachusetts Supreme Court Denies Relocation of Parent who has Joint Custody of Child

The Massachusetts Supreme Court upholds a trial court's denial of a mother's relocation in a case in which the parents had joint physical and legal custody.  Massachusetts provides that children may be removed from the commonwealth only with the consent of both parents or "upon cause shown," meaning a showing that removal is in the children's best interests. 

The case is a prime example of the difficulties of relocation cases.  Father and Mother shared roughly equal custody of their two children.  Both had remarried.  Father had moved to New Hampshire, about 17 miles away.  "The mother objected privately but had little advance notice of the move and did not file suit to prevent it."  Some weeks after father's notice to move, Mother gave notice of her intent to relocate with her new husband, his two children and their newborn, to New Hampshire, where mother's parents live.  Father objected and each parent filed for sole custody.

The trial court denied Mother's requested relocation and ruled that the joint custody arrangement should continue.  Among the factors the court considered where the special educational needs of the older child, which the judge found would be better served by continuing to attend the private school in Massachusetts, that allegations by the children that they had been abused by one of their stepsiblings weighed against increased time in the mother's household; that uprooting the children would be detrimental to their interests; that the move would cause a reduction of the father's parenting time that would not be in the children's interests; and that there was insufficient evidence of financial imperative to justify the mother's move to Bristol.  The court rejected the GAL's recommendation in favor of the relocation. 

The Supreme Court of Massachusetts held that the trial court's decision was not an abuse of discretion.  The court cited a number of authorities from other states, and a number of law review articles on the subject, along with the ALI Principles.  The court observed that:

Where physical custody is shared, the "best interest" calculus pertaining to removal is appreciably different from those situations that involve sole physical custody...  Where physical custody is shared, a judge's willingness to elevate one parent's interest in relocating freely with the children is often diminished... No longer is the fortune of simply one custodial parent so tightly interwoven with that of the child; both parents have equal rights and respon-sibilities with respect to the children. The importance to the children of one parent's advantage in relocating outside the Commonwealth is greatly reduced.

Mason v. Coleman, 447 Mass. 177; 850 N.E.2d 513 (Modified Opinion July 27, 2006)
Opinion on web (last visited August 1, 2006 bgf)