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.
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.
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: 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 email@example.com.
RR (thanks to Maria Arias)
October 08, 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.
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).
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)
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)
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)
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)
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)
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
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 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)
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 08, 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 04, 2006
Case Law Development: Change in Circumstances as a Matter of Law
My students are sometimes frustrated by the large degree of deference given to trial courts in custody and visitation matters, leading to an attitude that "no case is predictible." To counter this perception, I like to share cases in which discretion is limited by the facts alone. The North Dakota Supreme Court provides one such case in which it holds that a trial court erred in determining that no change in circumstances justified modification of a visitation schedule. Mother and Father had lived in the same town when visitation was established, but Mother and the child moved to a distant town thereafter. That same month Father was diagnosed with a serious disease requiring a twelve-month-long course of weekly treatments. He received treatments on Fridays, resulting in his exhaustion. He requested that Wife be required to assist in getting the child to him for his twice-a-month visitation, as driving to her home to pick up his child became physically difficult as well as more expensive and time-consuming.
On this record, the court concluded that "the change in circumstances since the original decree is material as a matter of law."
Ibach v. Zacher, 2006 ND 244 (November 28, 2006)
Opinion on web (last visited December 4, 2006 bgf)
October 20, 2006
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)
October 10, 2006
Kim Basinger Charged with Criminal Contempt Over Alec Baldwin's Visitation
"Kim Basinger will go to trial after pleading not guilty Wednesday to disregarding court orders concerning ex-husband Alec Baldwin's visitation rights with their daughter, a court official ordered. Court papers filed by Baldwin allege that in 2005, the Academy Award-winning actress ignored court orders by not letting her ex-husband know she would be out of town working so that he could take care of their 10-year-old daughter until she returned. On one occasion, Basinger also did not tell Baldwin their daughter, Ireland, was injured and required medical help, according to the court papers. The girl's injuries were not specified. Basinger's attorney entered the pleas on her behalf to 12 misdemeanor counts of criminal contempt. The Academy Award-winning actress faces up to 60 days in jail and a $12,000 fine if convicted of all counts." AP, CNN.com. Link to Article (last visited 10-9-06 NVS)
October 05, 2006
Opinions on Grandparent Visitation
"Judges have been settling family disputes since King Solomon's proposed "solution" of splitting a baby in half in a custody battle. That Bible story has some parallels to how courts today grapple with demands of grandparents to visit their grandchildren over parental objections. Many thought the U.S. Supreme Court had essentially settled this issue in 2000 when it ruled that Tommie Granville, a mother in Washington state, could limit to once a month her two girls' contact with their paternal grandparents after the girls' father had committed suicide. But the issue is flaring anew. The highest courts of Pennsylvania, Utah and Colorado recently ordered grandparent visits in disputes strikingly similar to the 2000 case. The cases are heartbreaking because all involved a child who had lost a parent, and the surviving parent - whose fitness wasn't in question - wanted to limit visits." USA Today.com, Yahoo News Link to Article (last visited 10-5-06 NVS)
"Though it is undoubtedly true that the rights of the parents in a grandparent visitation dispute are important, it is also true that they are not the only people whose rights and desires should be considered. Most states have some version of a statute that gives grandparents the right to seek visitation with their grandchildren, and this right should not be overlooked. There are many reasons that parents and grandparents find themselves unable to agree on visitation, and those reasons can have more to do with issues in the relationship between the grandparents and their adult children than with the quality of the relationship between grandparent and grandchild. It is naive to assume that parents who are not abusive or neglectful will always make the right decision where their children are concerned." By Traci Truly, USA Today.com Yahoo News Link to Article (last visited 10-05-06 NVS)
August 28, 2006
Case Law Development: Utah Upholds Constitutionality of Grandparent Visitation Statute
The Utah Supreme Court has upheld its grandparent visitation statute. The statute does not require a showing of harm to the child, but does limit the circumstances in which grandparents may bring an action for visitation. Those situations include "where a family has been divided by some turn of fate--death, divorce, loss of custody, a missing person, or a declaration that a parent is unfit or incompetent."
The statute recognizes that when a family unit has been touched by these events a situation may arise where the child's interests differ from those of the parent. This is particularly true where the direct family line between grandparents and grandchildren has been severed, leaving the "in-law" relationship as the only remaining adult connection. Id. § 30-5-2(2)(c), (e), (f). Recognizing the potential for conflict in the relationship between the parent and the "in-law" and the resulting potential for interference with the grandparent-grandchild relationship, the statute provides an avenue for grandparents and grandchildren to maintain their relationship"
Court noted that the statute was not especially clear and urged the legislature to clarify the statute.
In re Estate of Thurgood, 2006 UT 46; 2006 Utah LEXIS 138 (Utah Supreme Court
August 25, 2006)
Opinion on the web (last visited August 27, 2006 bgf)