Family Law Prof Blog

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

Sunday, September 27, 2015

Utah Supreme Court Sets High Bar for Grandparent Visitation Orders

From The Salt Lake Tribune:

In 2000, the U.S. Supreme Court ruled a "mere disagreement" over a child's best interests cannot override the presumption in favor of a fit parent's decision regarding grandparent visitation.

This week, the Utah Supreme Court ruled that grandparents seeking to override parents must present proof that a visitation order is narrowly tailored to advance a compelling governmental interest — such as protecting children against substantial harm.

In Ellie and Tracy Jones Sr.'s dispute with their former daughter-in-law over visitation with their granddaughter, the couple argued that they had acted in a parent-like role as caregivers. But the state Supreme Court said there was insufficient evidence of such a relationship and upheld a Utah Court of Appeals decision that invalidated a visitation order issued against the wishes of the mother.

"Grandparent visitation orders must be limited to the exceptional case where the failure to override the parent's wishes would cause substantial harm to the child," Associate Chief Justice Thomas Lee wrote for the court in Wednesday's unanimous decision.

The exceptional case identified by state statute is where the grandparent has filled a role similar to that of a parent, Lee said, adding, "No such proof was presented here." Anthony Kaye, an attorney who represents the mother, said Friday that the ruling will subject grandparent visitation orders to strict scrutiny and limit interference in parental decisions regarding visitation.

Read more here.

September 27, 2015 in Visitation | Permalink | Comments (0)

Wednesday, July 15, 2015

Judge Jails Kids for Refusing Lunch with Father

From Detroit Free Press:

Three Oakland County children who refused to go to lunch with their father, as part of a bitter divorce and custody battle between their parents, are spending their summer in the county's juvenile detention center, according to court records.

"We'll review it when school starts, and you may be going to school there," Oakland County Family Court Judge Lisa Gorcyca told the children during a June 24 hearing, referring to the center in Waterford Township called Children's Village, where authorities house as many as 200 juvenile offenders.

Gorcyca, who blamed their mother for poisoning the children's attitude toward their father, ordered the children be sent to the center for defying her orders — while in court — that they go to lunch with their father.

The children — ranging in age from 9 to 14 — were deemed in contempt of court last month by Gorcyca for disobeying her orders to "have a healthy relationship with your father."

Read more here.

July 15, 2015 in Visitation | Permalink | Comments (0)

Saturday, July 11, 2015

Parent-Child Visitation In Prison

From KAGS News:

It’s not “cupcakes and lollipops” for most children who visit a parent in prison.

Two-thirds of those children report having negative experiences such as fear, anger, anxiety, and related reactions, according to a study funded by the National Institute of Justice by Melinda Tasca, assistant professor of criminal justice and criminology at Sam Houston State University.

The study, “‘It’s Not All Cupcakes and Lollipops:’ An Investigation of the Predictors and Effects of Prison Visitation for Children during Maternal and Paternal Incarceration,” found that 65 percent of children reacted negatively to prison visitation, resulting in crying, emotional outbursts, depressive symptoms, poor attitudes, acting out, and developmental regression, according to interviews with caregivers of 40 children who have a parent incarcerated in the Arizona Department of Corrections. 

One-third of children were reported to have had a positive experience, which included excitement and improved attitudes and behaviors.

“In-prison visitation may be considered a ‘reset’ button for prisoners, caregivers, and children as they attempt to settle the past, discuss the present and plan for the future,” Tasca said. “At the same time, however, prison visitation can be an arduous undertaking emotionally, physically, and economically for children and caregivers.”

Two primary factors shaped how children responded to visits with an incarcerated mother or father: the institutional environment and the parent-child relationship.

Read more here.

July 11, 2015 in Visitation | Permalink | Comments (0)

Thursday, June 25, 2015

New Visitation Law for Grandparents

From Sun Sentinel:

A new Florida law is being trumpeted as the first advancement in grandparent visitation rights in decades.

Despite this measure, which goes into effect July 1, grandparents still have almost no legal standing in Florida when it comes to visiting their grandchildren — even if those youngsters lived with them for years while their parents struggled with addiction, divorce or other problems.

The statute change, however, is limited to a very select group: families where the grandchild's parents are both dead, missing, or in a persistent vegetative state. It also applies if one parent meets any of the previous requirements and the other parent has been convicted of a felony.

Otherwise, grandparents remain blocked from having their visitation legal petitions considered in court, as Florida rulings have consistently upheld that parents have the right to control who has access to their children.

Read more here.

June 25, 2015 in Visitation | Permalink | Comments (0)

Monday, June 15, 2015

Child Custody Laws in India

From Hindustan Times:

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

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

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

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

Read more here.

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

Tuesday, December 15, 2009

Irish Court Grants Visitation to Sperm Donor

CBS News reports on a recent decision from the Irish supreme court:

The Irish Supreme Court ruled Thursday that a gay man who donated his sperm to a lesbian couple should be permitted to see his 3-year-old son regularly - in part because Ireland's constitution doesn't recognize the lesbians as a valid family unit.

The ruling was a legal first in Ireland, where homosexuality was outlawed until 1993 and gay couples are denied many rights given to married couples. Critics contend the case highlights how Ireland's conservative Catholic 1937 constitution conflicts with contemporary European norms and fails to address the reality that hundreds of gay couples in Ireland have children.

In their unanimous decision, the five judges of Ireland's ultimate constitutional authority said a lower court erred by trying to apply the European Convention on Human Rights in favor of the lesbian couple. The Supreme Court concluded that when the two are in conflict, the Irish constitution is superior to European human rights law.

In her written judgment, Supreme Court Justice Susan Denham said the lesbian couple provide a loving, stable home for their son - but that the constitution defines parents as a married man and woman, and gays are not permitted to marry in Ireland.

She said Irish law does identify the sperm donor as the father, and he therefore had a right to have a relationship with his son.

"There is benefit to a child, in general, to have the society of his father," Denham wrote. "I am satisfied that the learned High Court judge gave insufficient weight to this factor."

Read the full article here.


December 15, 2009 in Visitation | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 21, 2009

Montana Supreme Court Recognizes Parental Interest in Non-Biological De Facto Parent

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.

Read the entire opinion here, and some interesting blog commentary on it here.


October 21, 2009 in Custody (parenting plans), Visitation | Permalink | Comments (1) | TrackBack (0)

Friday, January 30, 2009

Conference - Drugs, Pregnancy and Parenting

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:

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:

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

RR (thanks to Maria Arias)

January 30, 2009 in Child Abuse, Custody (parenting plans), Termination of Parental Rights, Visitation | Permalink | Comments (1) | TrackBack (5)

Wednesday, October 8, 2008

Case Law Development: Trial Court follows dissent to allow co-parent claim

According to LawProf Art Leonard:

New York County Supreme Court Justice Harold B. Beeler has allowed NY Court of Appeals Chief Judge Judith Kaye's dissent in the 1991 case of Alison D. v. Virginia M. To guide his steps in ruling that a woman should have a hearing to attempt to establish that she is a “de facto parent” of the child born to her former same-sex domestic partner, who was also her New York City registered domestic partner and her Vermont civil union partner.  Debra H. v. Janice R., No. 106569/080.

Professor Leonard's discussion of the case can be found at his blog, Leonard Link, here.


October 8, 2008 in Visitation | Permalink | Comments (0) | TrackBack (0)

Saturday, September 27, 2008

Conference Announcement

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

View Conference Announcement

Featured Speakers

§      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

Conference Details

§      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).

September 27, 2008 in Child Abuse, Custody (parenting plans), Termination of Parental Rights, Visitation | Permalink | Comments (0) | TrackBack (0)

Saturday, January 12, 2008

Lessons from Brittany

Some time ago, the editorial staff of Family Law Prof decided we would no longer cover celebrity family law problems as a routine matter.  However, Professor Joanna Grossman has provided a lovely essay on the Britney Spears family law saga you may wish to share with your students.  The essay, "Britney Spears: Why She Lost Visitation Rights, And What Her Case Teaches Us About Family Law" is available at FindLaw's Writ (last visited January 9, 2008 bgf)

January 12, 2008 in Visitation | Permalink | Comments (0) | TrackBack (0)

Saturday, August 18, 2007

Case Law Development: No Separate Cause of Action Available to Request Extended Visitation Under Texas Family Code

The Texas Court of Appeals, in a matter of first impression, holds that a custodial parent ("a possessory conservator" under the language of the Texas statutes) may not bring an independent cause of action seeking extended visitation. Such a request must, the court holds, be made before or at the time of an original custody order or a subsequent modification order. 

If a possessory conservator fails to ask for extended visitation under section 153.317 until after the modification order is issued, then the request is untimely by virtue of the statute itself. Generally, a possessory conservator may seek a modification of a possession order under section 156.101 only when modification is otherwise justified under one of the three enumerated grounds: (1) the circumstances of the child or other party affected by the order have materially and substantially changed; (2) the child is at least twelve years old and wishes to change his or her primary residence; or (3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary  care and possession of the child to another person for at least six months....Thus, we conclude and hold that a request for extended visitation must be requested before or at a hearing on a modification request that meets these statutory prerequisites as well.

The court noted that, while the extended visitation statute does not expressly dictate decision based on a best interests standard, the general policy of the family code declare the best interests standard to govern in all child custody decisions.  Moreover, because original custody decisions and modification decisions are governed by the best interests standard, requests for extended visitation, which necessarily must be heard at the same time, are also governed by that standard.

In the Interest of C.A.P., Jr. and M.M.P., 2007 Tex. App. LEXIS 6616 (August 16, 2007)
Opinion online (last visited August 18, 2007 bgf)

August 18, 2007 in Visitation | Permalink | Comments (1) | TrackBack (0)

Tuesday, April 10, 2007

Cost of Supervised Visitation

"Custody battles are rarely gentle affairs, but if you are poor, such fights can carry an added frustration: waiting months to get a court-approved visit with your own child. In cases involving allegations of domestic violence, which are increasing, or other issues, such as drug abuse and long absenteeism, judges often require that child’s visits with the noncustodial parent take place only in the presence of a professional, like a social worker. But when judges order supervised visitation, neither the court nor other government agencies pay for the service, a growing problem in New York City and across the nation.

Because he cannot afford to pay for supervised visitation, which routinely costs $100 an hour, Juan Manuel Fernandez, 51, of Washington Heights, said, he has not seen his two daughters, ages 6 and 11, since last October. A year ago, he said, his wife walked out, moved the girls to New Jersey, and told the court he was threatening her. He denies the accusation, but the judge in his case ruled that supervision was necessary. So now he is waiting for free supervision through a nonprofit agency, which can take months." By Leslie Kaufman, N.Y. Times Link to Article (last visited 4-10-07 NVS)

April 10, 2007 in Visitation | Permalink | Comments (4) | TrackBack (0)

Tuesday, March 27, 2007

Supreme Court Declines Grandparent Case

"A widowed father lost his bid Monday to have the Supreme Court decide whether grandparents should have court-ordered visits with his son. The justices refused to get involved in the dispute between Shane Fausey, a federal-prison guard in Pennsylvania, and his dead wife's mother. Cheryl Hiller won rulings in Pennsylvania courts giving her regular visits with Fausey's son, Kaelen, over the father's objection. Grandparents do not have to prove that being kept away would be harmful to their grandchildren in order to get court-ordered visitation, the Pennsylvania Supreme Court said. Fausey said the court ruling violated his constitutional right to make parenting decisions." AP, N.Y. Times Link to Article (last visited 3-27-07 NVS)

March 27, 2007 in Visitation | Permalink | Comments (0) | TrackBack (0)

Monday, February 26, 2007

Amicus Briefs in Grandparent Visitation Case Before Supreme Court

In other developments on Grandparent Visitation, you can read the amicus briefs filed for and against writ of certiorari in the Pennsylvania Grandparent Visitation case Fausey v. Hiller (See Family Law Prof Blog post of August 25, 2006).  The briefs are posted at Howard Basham's blog How Appealing (last visited February 26, 2007 bgf)

February 26, 2007 in Visitation | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Grandparent Visitation Statute Upheld

Grandparent visitation cases seem to be taking center stage once again.  Recently, the New York Court of Appeals unanimously upheld a constitutional challenge to New York’s grandparent visitation law.    The court distinguished the New York law from the Washington law struck down Troxel v Granville, noting that the New York statute gave parents the presumption that they were acting the in their children's best interest. The Court noted that:

. . . courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one. And while ...the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. "It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement" ...

While this presumption creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost four until he was seven, grandmother was his surrogate, live-in mother. The court then properly went on to consider all of the many circumstances bearing upon whether it was in the child's best interest for his relationship with grandmother to continue — e.g., the reasonableness of father's objections to grandmother's access to the child, her caregiving skills and attitude toward father, the law guardian's assessment, the child's wishes — before making a judgment granting visitation.

The court concluded that the New York statute "does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild."  First, the court must find standing based on death or equitable circumstances; and if the court concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild.

Matter of E.S. v. P.D. (February 15, 2007)
Opinion from Legal Information Institute

February 26, 2007 in Visitation | Permalink | Comments (0) | TrackBack (0)

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)

February 26, 2007 in Custody (parenting plans), Paternity, Visitation | Permalink | Comments (0) | TrackBack (0)

Sunday, February 11, 2007

North Carolina Court must Decide Whether Child may Visit Mother who is in Prison for Having Murdered the Child's Father

The parents of a Raleigh, North Carolina man who was poisoned by his wife are trying to keep their granddaughter away from the her mother. An expert took the stand and presented the other side of the case.  That expert was another psychologist with a different view. The psychologist thinks the court's ban on Clare Miller visiting her mother, Ann Miller Kontz, in prison has not been good for the child.

Read the article and see the video news report on ABC11TV  (Last visited February 11, 2007 bgf)

February 11, 2007 in Visitation | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 12, 2006

Visitation Rights of Same-Sex Parent Considered by Minnesota Supreme Court

"Marilyn Johnson and Nancy SooHoo, like a growing number of gay and lesbian couples in Minnesota, became parents through international adoptions a decade ago. Now separated, they are embroiled in a child-visitation dispute that has reached the Minnesota Supreme Court. The court's decision could set a precedent in a new frontier in family law: determining the future visitation rights of nontraditional parents. SooHoo never legally adopted the children, but was granted visitation privileges in 2005. Johnson, who is the sole legal parent, appealed those privileges to the state's highest court." By Jean Hopfensperger, Star Tribune Link to Article (last visited 12-11-05 NVS)

December 12, 2006 in Visitation | Permalink | Comments (0) | TrackBack (0)

Friday, December 8, 2006

Case Law Development: Using a Power of Attorney to Assign Visitation Rights

May a parent exercise a power of attorney to designate other family members to exercise that parent's visitation rights?  The answer is not terribly clear under most state law, but under Idaho's statute providing for a power of attorney to delegate parental powers, the answer is much clearer according to the Idaho Supreme Court. That case involved a father who, while serving military duty in Iraq, had assigned his visitation rights to his parents.  Mother argued that the Idaho statute should not be interpreted to allow such a designation, as it "contravenes the purpose of the power of attorney statute and removes from the courts the power to scrutinize such decisions prior to the designation."  The Supreme Court of Idaho interpreted the statute according to its literal wording and found that it did indeed provide him authority to designate his visitation rights.  The Idaho statute, expressly allows for parents to create temporary guardianships through execution of a power of attorney for a period of up to six months. 

What makes this case easy for the court is the presence of the statute allowing appointment of a temporary guardian through the power of attorney.  The statute is modeled on 5-104 of the Uniform Probate Code, which has been adopted by at least18 states. (See the National Center for State Court's listing or Cornell Law School's LII Uniform Probate Code locator)  For states without such a statute, it would be unclear whether a parent would have the ability to designate a temporary guardian without a court order.  Some states provide for the use of POAs for medical or educational purposes only.  A 2002 student comment in the Journal of the AAML surveys this and other state guardianship provisions.

Webb v. Webb, 2006 Ida. LEXIS 152 (November 29, 2006)
Opinion on the web (last visited December 4, 2006 bgf)

December 8, 2006 in Visitation | Permalink | Comments (0) | TrackBack (0)