Friday, January 30, 2009
Drugs, Pregnancy and Parenting:
What the Experts in Medicine, Social Work and the Law Have to Say
Wednesday, February 11, 2009, New York City
People working in the field of criminal law, family law, and child welfare often have cases that involve issues of drug use. These lawyers, social workers, counselors, advocates and investigators, however, are often trying to do their jobs without the benefit of evidence-based research or access to experts knowledgeable about drugs, drug treatment and the relationship between drug use, pregnancy and parenting. Drugs, Pregnancy and Parenting: What the Experts in Medicine, Social Work and the Law Have to Say will provide a unique opportunity to meet and learn from the experts. Register at: http://napwtraining.eventbrite.com/
This dynamic program features nationally and internationally renowned medical, social work, and legal experts as well as people with direct experience who will help distinguish myth from fact, evidence-based information from media hype and provide meaningful tools for improved advocacy, representation, care and treatment. Panelists will discuss current research on marijuana, cocaine, methamphetamine, as well as other areas of research regarding drug use, prenatal exposure to drugs, recovery, treatment and parenting. This research is critical for effective representation and care.
Discussion points will include:
• What does a positive drug test predict about future neglect and abuse?
• What tools can I use to distinguish between myth and fact regarding the effect of drugs and other claims made about drug use and drug users? Is there such a thing as a "crack baby"?
• Is there a difference between drug use and abuse? Can a person parent and be a drug user?
• How should social workers, lawyers, counselors, advocates and judges use and interpret drug tests?
• How do we determine what, if any, treatment should be required and how do we measure its success?
• What is the relationship between drug use, abstinence, relapse and recovery?
• What does evidence-based research tell us about the effectiveness of different kinds of drug treatment?
• How can we implement safety plans that keep families together?
• How can I best advocate for/ help my client when drug use is an issue?
No matter what kind of work you do or practice you have, this course will challenge your assumptions, identify valuable resources and generate hope about families where drug use is an issue.
When: Wednesday, February 11, 2009, 9am to 6pm.
Where: NYU School of Law, 40 Washington Square South, Manhattan
Registration: The fee is $20 in advance or $25 at the door. Breakfast, lunch and beverages will be provided. Financial aid is available. Please register at: http://napwtraining.eventbrite.com/
This program was developed in consultation with representatives from all aspects of New York City 's child welfare system. It is co-sponsored by National Advocates for Pregnant Women, New York University School of Law, and the New York University Silver School of Social Work.
Continuing Legal Education, (7 NY-CLE Credits: 5 Areas of Professional Practice, 2 Skills), Social Work (8 Credits) and CASAC (NYS OASAS 7.5 clock hours approved for CASAC, CPP and/or CPS initial credentialing and/or renewal credits) for full or partial day program available for New York. This program is appropriate for practitioners at all levels. Students are welcome.
For more information, contact Allison Guttu, NAPW Equal Justice Works Staff Attorney, at 212-255-9252 or firstname.lastname@example.org.
RR (thanks to Maria Arias)
Saturday, October 4, 2008
According to the Washington Blade, attorneys for both sides call it the first same-sex parental rights trial in Montana:
A district judge on Monday ruled in favor of a Turah woman who sought parental rights to children adopted by her former same-sex partner. Michelle Kulstad sought joint custody of two children - an 8-year-old boy and a 5-year-old girl - adopted by Barbara Maniaci. "To discriminate further against Ms. Kulstad because of her sexual preference in this day and age is no different than telling a person to go to the back of the bus because of her skin color," Judge Ed McLean wrote. . . . McLean said Kulstad was a legal parent, even though Maniaci adopted the two children - the boy in 2004 and the girl in 2006. The judge also ruled that Kulstad must receive joint decision-making authority in the children's lives, including their "education, activities, health care and spiritual upbringing."
Link to full story in Washington Blade here.
(RR last visited October 4, 2008)
Saturday, September 27, 2008
The Center for Children, Law & Policy announces
Child Centered Jurisprudence and Feminist Jurisprudence: Exploring The Connections And The Tensions
Friday, November 14, 2008 @ the University of Houston Law Center
§ Prof. Annette Ruth Appell, Associate Dean of Clinical Affairs and Professor of Law, Washington University School of Law
§ Prof. Martha Albertson Fineman, Robert W. Woodruff Professor of Law, Emory University School of Law
§ Prof. Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law, New York University School of Law
§ Prof. Angela P. Harris, Professor of Law; Executive Committee Member, Center for Social Justice, Boalt Hall, UC Berkeley
§ Prof. Barbara Bennett Woodhouse, David H. Levin Chair in Family Law and Director of the Center on Children and Families at Levin College of Law, University of Florida
§ With Commentary by Prof. Ellen Marrus, Co-Director, Center for Children, Law & Policy, George Butler Research Professor of Law, University of Houston Law Center, Prof. Laura Oren, Co-Director, Center for Children, Law & Policy, Law Foundation Professor of Law, University of Houston Law Center
§ Date: Friday, November 14th, 2008
§ Location: University of Houston Law Center
§ Event Time: 8:30 a.m. to 12:30 p.m.
§ Registration Cost: Pre-Registration $25, after November 1st increased to $50.
§ CLE: 2.75 Hours
More details at website here.
(RR September 27, 2008).
Thursday, May 8, 2008
"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)
Monday, February 11, 2008
The Alabama Supreme Court has reversed two of its previous decisions regarding the standard for change of child custody, emphasizing that the standard under Alabama law requires a party seeking a change in custody to show that the change "will materially promote [the] child's welfare." Previous appellate courts had additionally required that the movant prove an "overwhelming necessity for a modification of custody." The court noted that its original standard is "typically a heavy one, recognizing the importance of stability" but found the "overwhelming-necessity requirement places a nearly insurmountable burden on the party seeking a modification of custody, and in doing so, elevates stability above the best interests of the child."
Ex parte Cleghorn, 2008 Ala. LEXIS 26, Alabama Supreme Court (February 8, 2008) bgf
Case Law Development: Child's Opinion Should Be Considered in Custody Battle over Circumcision of Adolescent
The Oregon Supreme Court held that a custodial father’s decision to have his 12-year-old son circumcised so the child can convert to Judaism may provide a basis for a change in circumstances allowing a custody modification if the boy opposes the circumcision. The child had been raised as Russian Orthodox, his mother’s religion. His father began studying Judaism at about the time of the divorce, at which time he also was awarded custody of then 4-year-old boy. When father informed mother that the child (then age 9) would be converting and would need to be circumcised, mother petitioned for a change in custody or for an order preventing the circumcision.
The supreme court noted that “the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs--medical, religious or otherwise." However, the court concluded that "at age 12, [the child's] attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of change of circumstances sufficient to warrant a hearing concerning whether to change custody….because forcing [the child] at age 12 to undergo the circumcision against his will could seriously affect the relationship between [him] and father, and could have a pronounced effect on father's capability to properly care for [him]." Thus, the court remanded to the trial court for factual findings regarding the child’s attitude toward the circumcision and how that might affect the parent-child relationship.
Friday, January 11, 2008
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)
Tuesday, January 8, 2008
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
Monday, January 7, 2008
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)
Thursday, August 9, 2007
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)
Friday, August 3, 2007
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)
Monday, February 26, 2007
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
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)
Thursday, February 22, 2007
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)
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)
Thursday, February 8, 2007
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)
Wednesday, December 13, 2006
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)
Wednesday, December 6, 2006
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
Wednesday, November 29, 2006
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)
Friday, November 3, 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)