Tuesday, May 18, 2010
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.
Thursday, May 6, 2010
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.
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.
Tuesday, March 30, 2010
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.
Tuesday, February 23, 2010
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.
Wednesday, January 13, 2010
In answering a question certified for interlocutory appeal, an Illinois Appellate Court determined that the Mental Health Confidentiality Act does not protect communications with Section 604(b) court-appointed psychiatrist in custody-visitation evaluation. The party did no receive mental health services under the Act and the relationship was not therapeutic. Here, the party also had no expectation of the confidentiality of the communications.
Tuesday, January 5, 2010
With the Brazilian custody dispute recently resolved (see here), the media has been focusing on another one that has been ratcheting up, with the child recently gone missing.
From the Associated Press:
MONTPELIER, Vt. – A Vermont woman locked in a child custody battle with a former partner who has since renounced homosexuality asked a judge Monday to hold her ex in contempt and help find her and their 7-year-old daughter.
A lawyer for Janet Jenkins filed an emergency motion for contempt for not surrendering the couple's daughter, Isabella Miller-Jenkins, on Friday.
The motion seeks court sanctions and the assistance of law enforcement in locating Lisa Miller, whose last known address was Forest, Va., but whose whereabouts are now unknown.
Read more here.
Hat Tip: Elizabeth MacDowell
Wednesday, December 30, 2009
A quadriplegic mother is fighting her ex-boyfriend in court to retain custody of their son. The ex-boyfriend claims she cannot be a competent mother because of her disability. It is a case that touches on important questions about the rights of the disabled.
Kaney O'Neill, 31, lost the use of her legs and much of the use of her arms 10 years ago when she fell from a balcony in Newport News, Va. Now, as she tries to raise her 5-month-old son, Aidan, she is locked in a court battle with her ex-boyfriend, David Trais, over custody rights.
That disability says little about ability to parent, said Tuleja, the disability advocate.
"Even if someone is helping a parent who has a disability, the parent can orchestrate so they remain central," she said, explaining that the child understands that the disabled parent is directing their upbringing. "It's the richest part of parenting…that psychological and emotional connection to the child."
While disability itself does not have much, if any, bearing on a parent's fitness, in O'Neill's case, other factors may be at work. O'Neill sustained her injuries when she was knocked off a balcony during Hurricane Floyd. The balcony was lower than regulations dictated, but she was found to be partially negligent, possibly owing to alcohol, according to the Virginia court ruling on her lawsuit against the housing company, meaning she could not collect damages from the housing company under Virginia law.
Experts say the incident itself does not bear on her ability to raise a child, or how a court will judge her.
"The fact that she was injured, perhaps doing something irresponsible, will weigh, but not greatly," said Caplan. "Courts can be relatively forgiving…if it's a single incident."
"She may have been in the past irresponsible in some way," said Allen. "Those kinds of things are way less extreme than things which parents are accused of every day which never lead to the loss of a child."
Read the full ABC News story here.
Monday, December 28, 2009
This article explains why the child welfare process was used in the 2008 San Angelo, Texas raid on the FLDS community which resulted in the removal of more than 400 children from their families. It argues that the criminal justice system, not the child welfare system, should be the preferred means by which state officials attempt to prevent the practice of polygamy. The criminal justice system contains many more time honored protections of civil liberties than the child welfare system. In addition, using the child welfare system contains one additional danger: the contamination and expansion of child welfare law to permit coercive intervention, authorizing state officials to remove children from families based on notions of morality. The article suggests that the ultimate danger of the San Angelo raid is that child welfare interventions will become too much about the (mis)behavior of parents, with a particular emphasis on conduct that is criminal or "immoral," and too little about what should always remain the central inquiry: whether children are in danger.
Friday, December 18, 2009
A New Jersey man embroiled in a long custody battle over his 9-year-old son living in Brazil has won custody of the child.
A Brazilian federal court, in a closed session, ruled Wednesday that Sean Goldman should be returned to his father, David, at a U.S. Embassy on Friday.
Goldman has been working tirelessly for the past five years to get Sean returned to the United States. Bruna Bianchi, Goldman's ex-wife, took the child to her native Brazil in 2004 on what was supposed to be a two-week vacation.
She later remarried and died during child birth last year. Her Brazilian husband argued that he should have custody of Sean.
Over the summer, the boy's Brazilian family said Sean met with a psychologist and stated he wanted to stay there. Sean told the psychologist that if he was sent back to live with his father in New Jersey, he will "break down totally," according to a transcript of the interview with the child.
Over the summer, a lower court in Brazil had ruled that Sean be returned to the U.S. However, that decision was later put on hold by a Supreme Court justice based on a petition that argued removing Sean from his current family environment would hurt him.
However, during Wednesday's ruling the court agreed with Goldman that the boy belongs in New Jersey under an international treaty governing cross-border child abductions.
Read the full story here.
But see this CNN report on how the father's celebration was short-lived. Just hours after the appellate decree was entered, Brazil's high court issued an order prohibiting the father from removing his child back to the U.S. More on this case to come . . .
Monday, December 7, 2009
A mother's hiding of her son for nearly two years in his grandmother's home, often in a crawl space behind a wall, amounted to neglect, a judge ruled Friday.
Franklin County Circuit Judge Melissa Drew's ruling was based partly on her agreement with a counselor's belief that the seclusion left the boy, now 7, with post-traumatic stress disorder.
Authorities have said the child's mother, Shannon Wilfong, began hiding him in 2007 during a custody dispute with his father, Michael Chekevdia. Wilfong and her mother, Diane Dobbs, kept the windows of Dobbs' house near Royalton blocked off with shades or other items and deprived the boy of contact with peers, medical care and education, Drew said.
Testimony showed the boy was allowed outside only at night or in a fenced-in area not visible to passers-by.
The crawl space was roughly 5 feet by 12 feet and about the height of a washing machine, hidden behind what Drew said was "nothing more than a hole in the wall" concealed by a bookcase.
Wilfong's attorney, Susan Burger, argued there was no neglect during the boy's time in seclusion. He was home-schooled, had no issues requiring a trip to the doctor, and was allowed to play outside, she said.
"This was not a case where the child was locked up, put in a crawl space, behind walls," Burger said.
The child at issue is currently in the temporary custody of a relative, while his parents battle for custody. Mom can't expect to fare too well when the court issues its ruling, expected in early January.
Read the full story here.
Friday, November 27, 2009
The Wisconsin Law Journal reports on a movement to bring the Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet, used in many criminal cases, into family court to provide evidence pertaining to allegations of alcohol abuse.
Read the full story here.
Wednesday, November 18, 2009
The NY Times reports on the impact more women in the work force is having on child custody rulings.
There are now 2.2 million divorced women in the United States who do not have primary physical custody of their children, and an estimated 50 percent of fathers who seek such custody in a disputed divorce are granted it.
“Men are now able to argue that they spend more time with the kids than their working wives do,” says the veteran New York City divorce attorney Raoul Felder. “This is one of the dark sides of women’s accomplishments in the workplace — they’re getting a raw deal in custody cases, while men are being viewed more favorably.”
Or is it a raw deal? Is it not, in effect, the same presumption — the parent who works harder, parents less — that men have faced for years? You could make that argument, Abrahms says. You could also argue that working women are held to a higher parenting standard than working men, paying a price for not conforming to the cultural expectation that mothers be more hands-on than fathers.
Read the full article here.
Tuesday, November 10, 2009
An Ohio Court of Appeals has affirmed a district court judgment banning a mother from smoking in the presence of her ten year-old daughter.
In the Warren County case, even with no evidence that Victoria suffers specific reactions or health issues from exposure to smoke, the court ruled that a smoking ban was in the child's best interest.
To reach that conclusion, the court did something unusual. It "took judicial notice" - without anyone presenting proof in court - of an "avalanche of authoritative scientific studies" that say second-hand smoking poses risks to children.
Tuesday, November 3, 2009
Campbell: "Exploring Judicial Appreciations of Parental Addiction in Child Custody and Access Decisions: Quebec as a Case Study"
Angela Campbell (McGill University) has posted Exploring Judicial Appreciations of Parental Addiction in Child Custody and Access Decisions: Quebec as a Case Study, Windsor Review of Legal and Social Issues (forthcoming), on SSRN. Here is the abstract:
In all decisions that affect children, courts in Quebec, as in many other jurisdictions, are instructed to give preeminent weight to the “best interests of the child.” Courts have applied and discussed this standard most frequently in cases where child custody and access matters must be settled as corollary issues to a couple’s divorce or separation. While these cases have generated extensive discussion about how parents’ conduct and characteristics should be factored into the best interests inquiry, little attention has been given to questions about how parental substance dependence should affect custody and access outcomes. The lack of discussion on this issue is conspicuous, given the relative frequency with which custody issues involving addicted parents arise before Quebec courts.
This paper seeks to make a contribution to filling this gap in the family law scholarship within Quebec civil law. It examines how courts in Quebec factor a parent’s alcohol or drug misuse into the best interests analysis when called upon to settle custody or access matters, and questions whether greater openness should be shown to custody and access claims advanced by addicted parents. To this end, the paper begins by contrasting the way that the medical community understands and evaluates addiction with the approach to this issue undertaken by family law courts. Juridical - specifically, judicial - perceptions of addiction are then explored through an analysis of Quebec family law cases that have considered this issue in the context of custody and access claims. The judicial analysis and discourse emerging in these cases reveals an appreciation of substance dependency differs considerably from that presented in the medical literature. Last, this paper questions whether legal outcomes might benefit by relying more fully on medical interpretations of addiction. It considers whether it is possible to recognize addiction’s physiological aspects in deciding custody and access claims, in particular, by acknowledging the necessity of rehabilitative treatment for this condition. Accordingly, it explores the relevance, and practical and moral implications, of treatment orders for parents coping with addiction who seek custody or contact with their children. This analysis ultimately concludes that such orders are feasible, yet would only be appropriate once a court has sufficient awareness of the accessibility of appropriate treatment resources in each case and for the particular parties concerns.
Friday, October 30, 2009
A recent case out of the U.K. has brought renewed attention to the issue of whether morbid obesity in children is a sign of abuse and neglect, such that the parents of those children should lose custody.
The latest case to make headlines concerns a Scottish couple who lost custody of two of their six children on the basis of what was, their lawyer claims, a failure to reduce the kids' weight following warnings from Scottish social services. The couple lost their Oct. 14 appeal in a case that is far from clear-cut — representatives of Dundee City say they would never remove children "just because of a weight issue." But obesity appears to be the primary reason South Carolina mom Jerri Gray lost custody of her 14-year-old, 555-lb. son in May. She was arrested after missing a court date to examine whether she should retain custody after doctors had expressed concern about her son's weight to social services. The boy is currently living with his aunt, and his mother is facing criminal child-neglect charges.
Several other cases in recent years — in California, New Mexico, Texas and New York, as well as Canada — have garnered attention because a child's obesity resulted in loss of custody. "It's happening more than the public is aware of, but because these cases are usually kept quiet [as a result of child-privacy laws], we have no record," says Dr. Matt Capehorn, who sits on the board of the U.K.'s National Obesity Forum. The issue of whether parents should lose custody of their obese children took center stage two years ago with a British television documentary about Connor McCreaddie, an 8-year-old who weighed more than 200 lbs. and was at risk of being taken from his mother by authorities. She eventually weaned him off processed foods and retained custody.
Read the Time story here.
Wednesday, October 21, 2009
In Kulstad v. Maniaci, the Montana Supreme Court recognized a parental interest, and thus upheld visitation, in a non-biological former lesbian partner (Kulstad) over the objection of the children's adoptive mother (Maniaci). The court ruled that Kulstad established a long-term de facto status as parent to the six and ten year-old children adopted by Maniaci when Kulstad and Maniaci were involved in a live-in relationship. The relationship created between Kulstad and the children was held to outweigh Maniaci's Troxel-recognized fundamental right to make decisions for her children.
Monday, October 12, 2009
Courts and legislatures have rejected the presumption that mothers should win custody of their young children in the case of divorce. Such a presumption, the tender years’ presumption, has been determined to be against public policy that strives to treat the genders equally, as well as in conflict the equal protection clause embedded in the fourteenth amendment. In practice, however, courts still often treat women more favorably than men in custody disputes. In the court of public opinion as well, mothers are still often viewed as victims of divorce and are therefore treated with more sympathy and favor—as Jon and Kate (of plus eight fame) seem to continually illustrate.
Wednesday, July 1, 2009
University of Dayton Family Law Prof Pamela Laufer-Ukeles contends the nanny of Michael Jackson's children ought to have a legal claim for visitation or custodial rights to the pop star's children, but Grace Rwaramba's status as a paid caregiver will likely squash any chance of that. Her article, "Money, Caregiving and Kinship: Should Paid Caretakers Be Allowed to Obtain De Facto Parental Status?" published in the spring edition of the Missouri Law Review and available at SSRN, explains that state laws and the American Law Institute principles almost always exclude caretakers who receive compensation — foster parents, paid childcare providers and surrogate mothers — from the categories of psychological parents or de facto parents to whom courts may grant such rights. Her article contends that paid childcare providers should not automatically be disqualified from obtaining custodial rights in certain cases.
"Had Rwaramba been unpaid, or Jackson's live-in girlfriend or domestic partner of 10 years, she would have a good case for custody. But, add in some financial compensation and she becomes irrelevant," Laufer-Ukeles said. "This is despite everyone's acknowledgement that Rwaramba loves the children, has raised them their whole lives and is the only mother figure they know. The children have no relationship with their legal mother and their grandmother is almost 80 years old and not in the prime of her life to care for young children." Yet, as a paid nanny, the value of her bond with the children and her status as a functional caregiver, become legally irrelevant. This case is an excellent example of how society's disdain for paid caregivers hurts children." Her article cites some attempts by paid or unpaid caregivers, but all of those failed. She argues that excluding those who receive compensation for the care they give denigrates the value of care given by paid caregivers, misjudges the strength of the psychological bond between paid caregivers and children and discriminates against the poor and racial minorities. Although Laufer-Ukeles believes Rwaramba should receive some consideration as a de facto parent, her prediction is that Rwaramba and Michael Jackson's mother, Katherine, who now has temporary custody, would likely lose out to Debbie Rowe, mother to Michael Jackson's two oldest children, if Rowe chooses to pursue custody.
Monday, April 27, 2009
The Iowa Supreme Court recently held that a parent’s statutory right to access to her child’s mental health records could be limited by the child’s best interest. In that case, Mother had pled guilty to assaulting one of the children and, after custody was transferred to Father and Mother was denied further contact until 2012, Mother sought the mental health records of the children from the social worker who had been their therapist prior to the custody modification. The court held that Iowa statues prohibited licensed social workers from disclosing information acquired from a client without his or her consent. In interpreting that statute, the court found that “the legislature did not exclude minors from the physician-patient privileges established under [the act].” While the court acknowledged that parents normally can consent to the release of their child's mental health records,” and that Iowa statutes appear to provide parents a right to these records, the court found that neither the statutes nor the common law “does not give either parent an absolute right to those records. . . . the best interests of the child always prevail. … Similarly, the rights given to parents under [the Iowa code] are tempered by the overriding principle that when dealing with a matter concerning a child whose custody was determined by a court decree in a dissolution-of-marriage action, the first and governing consideration a court must apply is the best interest of the child.”
The court agreed that the release of the records was not in the children’s best interests.
Harder v. Anderson, Arnold, Dickey, Jensen, Gullickson and Sanger, L.L.P., Iowa , No. 08-0475, 4/17/09). (last visited April 27, 2009) bgf