August 25, 2006
Case Law Development: Pennsylvania's Grandparent Visitation Statute Upheld
The Supreme Court of Pennsylvania has issued a thorough analysis of the constitutionality of its grandparent visitation statute, upholding the statute. The opinion proivdes a catalogue of the state court opinions regarding whether a finding of harm to the child is necessary before grandparents can be given visitation, concluding that it would join those states that do not require such a finding. A concurring opinion suggests that the time has come to analyze these cases from a child's rights perspective, providing a description of the historical development of children's rights and how that analysis should be applied in these cases. One justice dissenting, arguing that a showing of harm to the child should be required.
All in all, a fabulous case for summarizing the current state of the law of grandparent visitation and the underlying policies driving the different approaches.
August 11, 2006
Case Law Development: Third-Party Visitation in Washington State Survives Even Without Statutory Basis
The Washington Court of Appeals determines that, while Washington statutes no longer provide third-party visitation rights, right awarded under the statute prior to the Supreme Court's decision in Troxel could still be enforced. In this case, step-father was awarded visitation with his stepdaughter in a 1998 parenting plan incorporated into a divorce decree. When he sought to enforce those rights, the trial court ruled that he had no rights given a 2005 Washington Supreme Court opinion declaring that the third-party visitation statute was frought with too many constitutional problems to be enforceable without legislative action to correct its constitutional defects. (In re Parentage of C.A.M.A., 154 Wn.2d 52, 109 P.3d 405 (2005)). The Court of Appeal reversed, holding that a retroactive application of the C.A.M.A. case was improper given the the US Supreme Court's had held that the statute was not per se unconstitutional. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Moreover, the court held that even if no third-party visitation rights existed under Washington statutes, equity principles provided an alternative ground for enforcing the stepfather's visitation rights. "It is well recognized, both in Washington and nationally, that child custody and visitation orders may be established by reliance on courts' equity powers and the common law." The court referenced a recent Washington Supreme Court statement that a child's "fundamental right to a stable and healthy family life . . . include[s] independently valued protections of a child's relationship with siblings and with adults other than his or her biological parents with whom the child has formed a critical bond." In re Custody of Shields, 157 Wn.2d 126, 2006 Wash. LEXIS 495, (Wash. June 2006) (Bridge, J., concurring).
Anderson v Anderson, 2006 Wash. App. LEXIS 1691 (Div 2 August 8, 2006)
Opinion on the web (last visited August 10, 2006 bgf)
July 19, 2006
Case Law Development: New Jersey Supreme Court Decides Not to Decide Constitutional Right of Siblings to Visit One Another
The New Jersey Supreme Court vacated its grant of certification in a case in which the Law Guardian had asked the court to decide "whether the Division of Youth & Family Services or the courts have an affirmative duty to ensure that contact between siblings is maintained, even in a post-adoption context, when the siblings are in a separate home." While the court noted that "we cannot underestimate the value of nurturing and sustaining sibling relationships" it concluded that there was no case or controversy before them as the child in question was afforded ample and regular visitation with siblings who had been adopted into a different home. Rather, the court suggested that the topic was one the legislature should address:
The competing public policy concerns presented by the parties and amici curiae would benefit from legislative review. The state legislatures that have addressed the issue of sibling visitation after adoption have taken a variety of approaches. Thus, our Legislature may have an interest in addressing the issues discussed here. The Court expresses no opinion on the merits of the issues raised by the parties and amici curiae.
New Jersey Div. of Youth & Family Servs. v. S.S., 2006 N.J. LEXIS 1083 (July 18, 2006)
Opinion on Web
June 27, 2006
Case Law Development: Police Interference with Parent's Visitation Rights Did Not Violate Parent's Substantive or Procedural Due Process
The United States Court of Appeals for the Ninth Circuit examines the constitutional interests at stake when police act in visitation disputes. The case involved an ongoing custody and visitation dispute. Father had sole custody of the son and Mother had visitation rights. Police were regularly called upon to intervene when the parent's transferred the child. In this case, Father came to pick up son from Mother and Mother insisted that she had a week of additional visitation time. Father then called the police to assist in retrieving his son. Mother alleged that Father knew the police officer that was called and that he and the officer had conspired to deprive her of visitation. The district court found sufficient factual questions regarding this alleged conspiracy to deny defendant's motion for summary judgment.
In reversing the district court, the court of appeals acknowledged that Mother had a liberty interest in her visitation with her son, but held that the officer's acted reasonably in interpreting the custody order and the deprivation of one week of visitation did not rise to the level of a federal constitutional violation.
The court noted the prudential considerations supporting this holding: "In so holding, we are mindful that this case arises in the intersection of several fields of law where federal courts have shown the greatest hesitation in creating new federal mandates. We will not disregard this justifiable caution lightly. Substantive due process vindicates those interests which are fundamental and, contrary to [Mother’s] theory, may not to be used as a font of tort law to be superimposed upon whatever systems may already be administered by the States.... If every custody dispute, including ones only concerning a weekend or even an hour of visitation, can give rise to a federal claim necessitating federal interpretation of a state custody order, federal courts could rapidly become de facto family courts. Such a result is not permitted by Supreme Court jurisprudence."
The court noted the fact-specific nature of its holding: "We need not hold that visitation rights will never give rise to a substantive due process claim.... We need not reach the question whether interference with a lengthy visitation period or repeated interference with shorter periods may give rise to a cognizable substantive due process claim. We need not decide here whether interference that affects the existence of visitation rights altogether, rather than discrete instances of visitation, might give rise to a viable claim. Nor need we reach the question whether custodial parents may bring suit. "
As to the procedural due process analysis, the court concluded that no pre-deprivation hearing was required in enforcing this visitation order, as Mother could have sought to have the order clarified at an earlier time and the state's interest in promptly enforcing these orders was significant.
Justice Silverman wrote separately to note his disagreement over the court's statement that “'a single instance of visitation, of a single week in duration', is not a fundamental right.... Even though a non-custodial parent may have visitation “only” every other weekend, to some parents that weekend is the moon and the stars." However, under the circumstances of this case, given the reasonableness of the police officer's actions, he agreed that the district court should be reversed.
Brittain v. Hansen, 9th Circuit No. 03-57012 (June 22, 2006)
Opinion on the web (last visited June 26, 2006 bgf)
June 12, 2006
Baldwin/Basinger Psychological Evaluations
"Alec Baldwin may have requested last year that his ex-wife,Kim Basinger, be forced to undergo psychological evaluation, but a Los Angeles court has instead ordered the 48-year-old actor to consult a therapist before he is allowed extra visits with his 10-year-old daughter, Ireland, L.A. City News Service reported Friday." By Natalie Finn, Yahoo News Link to Article (last visited 6-11-06 NVS)
June 09, 2006
Case Law Development: Nebraska upholds grandparent visitation statute
The Nebraska Supreme Court has upheld the constitutionality of its grandparent visitation statutes and affirmed a trial court's award of visitation to the children's paternal grandparents. Under the Nebraska grandparent visitation statutes, grandparents can seek visitation only under certain circumstances: if the grandchild’s parent or parents are deceased, divorced or in the process of seeking a divorce, or have never been married but paternity has been legally established. Moreover, a court is without authority to order grandparent visitation unless a petitioning grandparent can prove by clear and convincing evidence that (1) there is, or has been, a significant beneficial relationship between the grandparent and the child; (2) it is in the best interests of the child that such relationship continue; and (3) such visitation will not adversely interfere with the parent-child relationship. The court concluded that these statutes are narrowly drawn and explicitly protect parental rights while taking the child’s best interests into consideration so as to withstand strict scrutiny.
Hamit v. Hamit, 271 Neb. 659 (June 2, 2006)
Opinion on the web (last visited June 6, 2006 bgf)
Case Law Development: Removing Child from Person With Whom Child Has Strong Attachment but No Legal Rights is Not AbuseAfter their relationship ended, the former lesbian partner of Mother sought to continue contact with the seven-year-old daughter born during their relationship. When Mother denied visitation, Partner brought a dependency action, alleging that depriving the child of contact with someone with whom she has a primary or secondary attachment constitutes abuse. After a hearing, the trial court dismissed the petition, concluding that "depriving [the child] of contact with [her mother's partner], someone to whom the child has no legal connection, constitutes the level of abuse needed to support a finding of a dependency." In a brief opinion, the Florida Court of Appeals affirmed. D.E. v, R.D.B., 2006 Fla. App. LEXIS 8605 (June 2, 2006) Opinion on the web (last visited June 8, 2006 bgf)
June 06, 2006
Case Law Development: Child has No Standing to Modify Parenting Time
An eleven-year-old daughter filed an action to modify her parent's summer parenting time schedule to enable her to participate in certain sports and band programs. Her attorney was employed by her mother and stepfather. The Kansas Court of Appeals noted that parenting time and visitation rights extend only to parents, grandparents, and stepparents and that any expansion of the categories of individuals who have standing to seek visitation rights should originate with the legislature. Thus, the court held that a minor child has no legal standing to file a motion to modify visitation or parenting time in a divorce case.
In re Marriage of Osborn, 2006 Kan. App. LEXIS 522 (June 2, 2006)
Opinion on the web (last visited June 6, 2006 bgf)
June 02, 2006
Case Law Development: Parent Can't Harass Child By Trying To Visit
Here's an interesting juxtaposition of legal rights that almost slipped by me. The Maine Supreme Court held that a father who continued to show up for visitation with his daughter, sent her notes, called her, and attended her school events was acting consistent with his court-ordered rights of visitation and shared parental rights and a trial court erred in entering a protective order on his daughter's behalf on the basis of harassment. Daughter feared her father and did not want contact with him, but that was insufficient to prove harassment when father had a legal right to attempt to maintain the relationship. Wiley v. Wiley, 2006 ME 45 (May 1, 2006)
Opinion on the web (last visited June 4, 2006)
May 10, 2006
Kentucky Court of Appeals Rules 2-1 that Inmate Awaiting Trial on Triple Murder Charges May Visit Children
In an unpublished opinion, the Kentucky Court of Appeals in a 2-1 ruling restored child-visitation rights to a Lexington, Kentucky man in prison for offering to kill a man and awaiting trial on triple murder charges. It said that the trial judge made several procedural errors when he denied the inmate visitation to his three children, ages 9, 12 and 14.
The court said that the trial judge had improperly placed the burden of showing harm to the children on the inmate noncustodial parent, contrary to Kentucky law. It observed that “his status as an inmate in a penal institution alone does not make visitation with his child inappropriate.” It also said that there was “not a finding in the record that visitation would seriously endanger the child’s physical, mental, moral, or emotional health, and there is no evidence in the record to support such a finding.” Other errors committed by the trial judge included the use of letters and affidavits without placing them into evidence or allowing the inmate an opportunity to cross examine the authors. The Appeals’ court then ordered that the inmate be granted visitation. The dissent would have remanded the case for trial because “the possibility exists that it could be properly shown by clear and convincing evidence that visitation with the appellant in the prison setting, given his history of violence, brutality and lawlessness, could seriously endanger the mental, moral or emotional health of these children.” News Source. Brandon Ortiz, Herald-Leader, Kentucky.com. For the complete news story, please click here (last visited May 10, 2006, reo). A copy of the unpublished slip opinion, Meese v. Meade, can be obtained in PDF format by clicking here (last visited May 10, 2006, reo). A copy of the opinion may be downloaded in PDF format by clicking here.pdf
April 14, 2006
Case Law Development: Excessive Grandparent Visitation Awards Unconstitutional
The Missouri Court of Appeals reversed an award of grandparent visitation that allowed grandmother four weeks of visitation during the summer and visitation whenever grandmother was in town if she gave seven days notice. While reaffirming that the grandparent visitation statute was constitutional in allowing grandparent visitation, the court reversed the visitation orderd in this case as "the visitation awarded here is not a minimal intrusion on the family relationship." To be constitutional, the court held, the visitation order "must still be only occasional, temporary visitation that is not commensurate with parental visitation and is only a minimal intrusion on the family relationship."
Bryan v. Garrison, 2006 Mo. App. LEXIS 430 (April 11, 2006)
Opinion on the web (last visited April 13, 2006 bgf)
April 11, 2006
Case Law Development: Texas Supreme Court Reviews Grandparent Custody Bases
The Texas Supreme Court reversed a trial court's grant of generous grandparent visitation in a case in which Mother had objected to her mother-in-law's visitation with the child after Father had died. The trial court had rejected Mother's claims that the statute was unconstitutional and awarded her mother-in-law "possession" of the child for one weekend a month, two weeks in the summer, four days during Christmas vacation, and alternating Thanksgiving weekends, as well as access through weekly telephone calls. The Texas Supreme Court found the situation in this case to be "virtually the same" as the facts of Troxel v. Granville, 530 U.S. 57 (2000). "In this case (as in Troxel) there was no evidence that the child's mother was unfit, no evidence that the boy's health or emotional well-being would suffer if the court deferred to her decisions, and no evidence that she intended to exclude [Grandmother's] access completely."
In re Mays-Hooper, 2006 Tex. LEXIS 256 (April 7, 2006)
Opinion on the web (last visited April 11, 2006 bgf)
Case Law Development: It Takes a Judge To Decide Custody and Visitation Issues
The Florida Court of Appeals reversed a trial court's orders that a guardian ad litem, appointed for the parties' minor son in a dissolution proceeding, had the authority to make all decisions regarding visitation of the child with his parents. The court emphasized the statutory language requiring that courts make these decisions and noted that courts may not delegate their statutory authority to determine visitation to guardian ad litems, attorneys, or experts.
Shugar v. Shugar, 2006 Fla. App. LEXIS 4856 (April 5, 2006)
Opinion on the web (last visited April 10, 2006 bgf)
March 28, 2006
Case Law Development: Visitation Disputes under the International Child Abduction Remedies Act
The United States Court of Appeals for the Fourth Circuit affirmed a trial court's dismissal of visitation claims in a suit under the International Child Abduction Remedies Act. The court held that the Act provides remedies only for violations of the Hague Convention on the Civil Aspects of International Child Abduction. Since the treaty does not address visitation or access issues outside the context of wrongful removal or retention of a child, the federal courts have no jurisdiction under the act. Rather, parties seeking to enforce visitation right should file suit in state courts.
A dissenting judge would have interpreted the act to cover these issues.
Cantor v. Cohen, 2006 U.S. App. LEXIS 6915 (4th Cir. March 21, 2006)
Opinion on the web (last visited March 26, 2006 bgf)
March 22, 2006
Iowa Fathers Rights Group Seeks Through Legislation More Time with Children
An Iowa father’s rights group has submitted a bill to the Iowa legislature that if adopted would require that state’s courts to presume that joint physical care is in the best interest of a child unless physical or emotional harm would come to the child because of the new arrangement. Opponents of the proposal, including the Iowa Bar Association and the Iowa Coalition Against Domestic Violence, allege that the bill, if passed, would make women and children more susceptible to violence. They also allege that the bill is unnecessary because the existing law works. Finally, they claim that the child's best interests a child can only be considered on an individual case basis instead of imposing a one-size fits all standard. Source: Jens Manuel Krogstad, WCFCourrier.com. Please click here for the story (last visited March 22, 2006 (reo).
March 20, 2006
Divorce put David List and his 2-year-old daughter on opposite sides of the Atlantic Ocean, and he worried that she would soon forget him.She hasn't, though. Mr. List's divorce agreement guaranteed him "virtual visitation" – the chance to talk with his daughter through an Internet video connection – and he and Ruby Rose, now 5, usually connect at least twice a week. The chats sustain them between their in-person visits, which come only a few times a year. "When she gets off the plane, I know what she had for dinner last night," said Mr. List, 49, of Santa Cruz, Calif. "She'll run right up to me and jump in my arms because I know exactly what she's all about."
Advocates of virtual visitation want states to spell out in their laws that judges can make it part of a divorce agreement. The benefits go beyond helping parents and children stay close, supporters argue. They say noncustodial parents are more likely to pay child support regularly if they can stay in touch, and electronic visits can help keep children from getting caught up in fights when bickering exes meet in person." By Ann Sanner, Associated Press, DallasNews.com Link to Article (last visited 3-19-06 NVS)
March 10, 2006
Case Law Development: When Does Spring Break Begin?
It's that time of year, when parents dispute visitation provisions regarding spring break. The Florida Court of Appeals has cleared up the calendar issue: in a case involving contempt for violation of a visitation order that provided that Father would have spring break visitation from "the time Leon County public schools close for the Spring recess until the morning the Leon County public schools reopen" the appellate court affirmed the trial court's decision that the clause was too ambiguous to uphold contempt. However, the court of appeals noted that the trial court erred in construing the clause to provide a five-day visitation period beginning on Monday and ending on Friday. Rather, spring break begins and ends on Monday morning when the school reopens.
Saunders v. Bassett, 2006 Fla. App. LEXIS 3203 (March 7, 2006)
Enjoy your spring break, whenver it begins (or began)! BGF
March 08, 2006
Case Law Development: Supreme Court Rejects Review of Ohio Decision Favoring Grandparents
The Supreme Court refused Monday to consider an appeal in a case involving an Ohio father who asked that the Court strike down Ohio visitation laws on the grounds that they interfere with a parents' right to raise a family free from government interference. Certiorari denied, March 6, 2006, 05-871. The father, who had never married the girl’s mother, won custody of the child but refused to allow her to see her maternal grandparents. The Ohio Supreme Court ruled that the girl should be allowed to maintain contact with the grandparents who had raised her until she was 5 years old.
The father, Brian S. Collier, shared a relationship with the mother that produced a daughter in 1997. They never married, and following the child’s birth, the child’s mother was designated as her residential parent and the father received supervised visitation with the child twice a week. From her birth, the child resided with her mother at the home of her maternal grandparents. The child’s mother was suffering from cancer, and the grandparents cared for her and their granddaughter until the mother’s death in 1999. Following their daughter’s death, the grandparents were granted temporary legal custody of the child. The father later filed for legal custody and in 2002 an Ohio Juvenile Court designated him as the residential parent. On July 31, 2002, he removed the child from her grandparent’s home, where she had lived for the previous five years, and refused to permit any further visitation her and her grandparents.
A juvenile court judge found that visitation with the grandparents was in the child’s best interests, but refused to allow it on the theory that Troxel v. Granville 530 U.S. 57 (2000), requires courts to find “overwhelmingly clear circumstances” that support forcing visitation for the benefit of the child over the opposition of the parent. It said there was insufficient proof in the record to find overwhelmingly clear circumstances for overruling the wishes of the child’s father.
The Ohio Supreme Court disagreed with the trial judge’s theory. It observed that “The plurality [in Troxell] stated that the problem was not that the trial court intervened into the private realm of the family, but that when it did, `it gave no special weight at all’ to the mother’s determination of her daughters’ best interests. The plurality stated that if a fit parent’s decision regarding nonparental visitation becomes subject to judicial review, `the court must accord at least some special weight to the parent’s own determination.’ However, the plurality explicitly declined to “define * * * the precise scope of the parental due process right in the visitation context.”
The Ohio Supreme Court observed that Ohio’s statutes are more narrowly drawn and capable of a more narrow construction than the Washington statute in Troxel. It held that courts are, of course, obligated to afford some special weight to the wishes of parents of minor children when considering petitions for nonparental visitation made pursuant to R.C. 3109.11 or 3109.12. However, “Ohio’s nonparental-visitation statutes not only allow the trial court to afford parental decisions the requisite special weight, but they also allow the court to take into to consideration the best interest of the child and balance that interest against the parent’s desires. Further, while Troxel states that there is a presumption that fit parents act in the best interest of their children, nothing in Troxel indicates that this presumption is irrefutable. The trial court’s analysis of the best interests of a child need not end once a parent has articulated his or her wishes. By stating in Troxel that a trial court must accord at least some special weight to the parent’s wishes, the United States Supreme Court plurality did not declare that factor to be the sole determinant of the child’s best interest. Moreover, nothing in Troxel suggests that a parent’s wishes should be placed before a child’s best interest. The state has a compelling interest in protecting a child’s best interest.”
The Ohio Supreme Court held that the trial court properly placed the burden of proving that visitation would be in the best interest of the minor child on the grandparents, thereby honoring the traditional presumption that a fit parent acts in the best interest of his or her child. However, the trial court misinterpreted Troxel as requiring courts to find “overwhelmingly clear circumstances” to support forcing visitation for the benefit of the child over the opposition of the parent. “Troxel did not articulate such a standard.” Harold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, certiorari denied, March 6, 2006 (reo). Download here Ohio decision, Harold_v_Collier_grandparent_visitation.pdf
February 21, 2006
Case Law Development: Kansas Court of Appeals Affirms Grandparent and Stepparent Visitation Where Parent's Refusal in Unreasonable
The Kansas Court of Appeals decided two cases interpreting its Stepparent and Grandparent Visitation statute, granting visitation over the objection of the parents in both cases.
In the first case, involving a stepparent visitation, the court found that the statute's grant of unlimited discretion in granting visitation violates the due process requirements set forth in Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000). However, the court found that it could engraft on the statute the limitations set forth in other visitation statutes in order to satisfy constitutional standards. Accordingly the court held that a trial court may order stepparent visitation "upon a finding that (1) the visitation is in the child's best interest, and (2) there exists a substantial relationship between the child and the stepparent." The court noted that
"the trial court must give material weight and deference to the position of a fit parent and ... not substitute its judgment for the parent's, absent a finding of unreasonableness." The mother, who had divorced stepfather, had proposed that stepfather not have visitation with her 7-year-old unless the child wanted that visitation. The trial court had denied visitation but the court of appeals reversed, finding mother's proposal unreasonable and concluded that it "abdicates all parental guidance over the child and is tantamount to no visitation plan at all."
In re Marriage of Riggs, 2006 Kan. App. LEXIS 130 (February 17, 2006)
Opinion on the web (last visited February 20, 2006 bgf)
In a second case decided the same day, the court rejected an argument that the courts should give absolute deference to the decision of two fit parents in an intact family to cut off grandparent vistitation. Instead the court of appeals noted that the Kansas grandparent visitation statute requires only a showing that the grandparents have a substantial relationship with the grandchildren and the court must presume that parents are acting in their children's best interest and give their decisions "special weight." Under that standard, the court affirmed a trial court's decision to grant grandparent visitation to children whom the grandparents had last seen when the children were 3 and 1 year old. The parents had cut off contact with grandparents after Grandparents had insisted that parents pursue investigation and counseling of an incident of alleged sexual abuse of the 3 year old by a cousin. The trial court found that decision to be "unreasonable, arbitrary and punitive." The court concluded that there was a substantial relationship between the grandparents and the 3 year old and, to the extent there was only a "developing relationship" with the one-year-old child, the court concluded that the need to treat siblings similarly justified granting the motion for visitation with the younger child as well.
Davis v. Heath, 2006 Kan. App. LEXIS 124 (February 17, 2006)
Opinion available on line (last visited February 21, 2006 bgf)
February 14, 2006
Case Law Development: Maine Supreme Court Strikes down Grandparent Visitation Standing Based on Death of Parent
The Maine Supreme Court holds its grandparent visitation statute unconstitutional to the extent it grants grandparents standing to sue for visitation when one parent has died. "In effect, the Act adopts a per se rule that the fact of a parental death in itself justifies imposing on the surviving parent the burden of litigation that ...itself infringes on the parent's fundamental rights and may result in court-ordered visitation that more significantly infringes those rights. We do not see, however, how the fact of a parental death standing alone can be an urgent reason for a court's interference in family life over the objections of a custodial parent.... We conclude that the death of one parent in itself is not an urgent reason that justifies forcing the surviving parent into litigation under the Act.... In the absence of a compelling state interest, forcing Patricia to defend against the grandparents' visitation petition for the sole reason that her daughter's father is dead would violate her substantive due process rights."
Conlogue v. Conlogue, 2006 ME 12 (February 9, 2006)
Opinion on the web (last visited February 14, 2006 bgf)