Tuesday, 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)
Tuesday, 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)
Tuesday, February 7, 2006
Case Law Development: Appointment of Parental Coordinator to Resolve Grandparent Visitation Dispute Violates Parent's Right of Privacy
Family Courts are increasingly making use of parental coordinators and other professionals to assist in mediating ongoing disputes in family law cases. However, the Florida Court of Appeals has provided a strong reminder that courts may not require cooperation with these professionals and processes unless the underlying dispute is grounded on legal rights. In this case, the court reversed a trial court’s order appointing a parental coordinator and mandating that Father meet with the coordinator in order to resolve visitation dispute between him and his children’s maternal grandmother. The court found that, since grandmother had no right to visitation absent of showing of harm to the children, the orders appointing a parental coordinator violated Father’s constitutional right to privacy.
Cranney v. Coronado, 2006 Fla. App. LEXIS 1094 (February 1, 2006)
Opinion available on the web (last visited February 6, 2006 bgf)
Friday, January 27, 2006
The Wisconsin Legislature has codified provisions regarding electronic communications for visitation. As summarized by the Wisconsin Legislative Service, "This bill provides that, if the court grants periods of physical placement to both parents, the court may grant to a parent a reasonable amount of electronic communication at reasonable hours during the other parent’s periods of physical placement with the child. Electronic communication is defined as time during which a parent and his or her child communicate by using various types of communication tools, such as the telephone, electronic mail, instant messaging, and video conferencing or other wired or wireless technologies via the Internet. The basis for granting electronic communication is whether it is in the child’s best interest and whether equipment for providing electronic communication is reasonably available to both parents. Electronic communication may be used only to supplement, and not as a substitute or replacement for, the physical placement that a parent has with the child. The bill provides that a parenting plan that a party files with the court before a pretrial conference when legal custody or physical placement is contested must include any electronic communication a parent is requesting and must indicate whether equipment for providing electronic communication is reasonably available to both parents. The bill also provides that, if a parent is proposing to move with the child and the other parent objects to the move, the court may not use the availability of electronic communication as a factor in support of a modification of physical placement or a refusal to prohibit the parent from moving with the child."
To read more about it, see the entire summary of the bill from the Wisconsin Legislative Service.(last visited January 26, 2006 bgf)
Thanks to the Iowa Family Law Blog for highlighting this development.
Wednesday, January 25, 2006
A grandmother who found her pregnant daughter dead, her womb slashed open and the baby gone, has been given the right to spend more time with the child by a Missouri judge. Under the four-page visitation plan the grandmother will be able to visit the child one full weekend each month, on various holidays and on extra days in the summer. However, she has been ordered to not discuss any of the events or circumstances concerning the death and demise of the child’s natural mother with the child. That decision is left up to the child’s father. Prosecutors are seeking the death penalty against the woman who is accused of strangling the mother with a rope and using a kitchen knife to perform a crude Caesarean section. Source: The Kansas City Star, kansascity.com. For more information on this story, please click here (last visited January 25, 2006, reo).
Sunday, January 22, 2006
Case Law Development: Iowa Supreme Court Ends Grandparent Visitation Rights Despite Judgment Based on Mother’s Original Agreement Allowing Visitation
On Friday, the Iowa Supreme Court ruled that grandparents have no right to visitation with grandchildren over a mother's objections, even though she had earlier agreed in a hearing to allow her children’s grandparents such a right. She had never appealed the judgment incorporating that order.
The dispute began when following their son’s divorce, Wanda and Jim Spiker filed a petition for grandparent visitation under Iowa law. Their son had apparently stopped seeing the children and their daughter-in-law, Sherry, stopped allowing the children to visit them. In the course of the litigation, Sherry entered into a stipulated agreement providing that Wanda and Jim would be allowed visitation with the children. However, they could not agree as to the length or time of the visitation, so they left that issue for the court to decide. Following a hearing, the court granted Wanda and Jim visitation with the children on the first weekend of every month beginning September 2001. Sherry did not appeal.
Visitation occurred as ordered for almost a year when Sherry began withholding one of the children from visits. By 2004, Sherry refused to allow Wanda and Jim to visit either child. In February 2004, Wanda and Jim initiated contempt proceedings against Sherry for refusing to allow visitation with the children pursuant to the stipulated agreement. She asserted that the grandparent visitation statute was unconstitutional and that enforcement of the visitation order would violate her due process rights.
The trial court held a hearing on the issue and issued an order finding Sherry in contempt of court. Sherry then filed a motion to enlarge or amend the order, arguing that enforcement of the visitation order would violate her due process right to raise her children without undue interference by the State. She also argued that the stipulation agreement she entered into was unenforceable and did not validly waive her constitutional rights. The court denied the motion. Sherry did not appeal.
In April, 2004, Sherry filed another challenge to the order, arguing that the decree providing the grandparents with visitation was unconstitutional. This time the court granted Sherry’s motion for summary judgment and vacated the visitation order. Wanda and Jim appeal.
The Iowa Court affirmed the trial court’s decision. In doing so it accepted the view that res judicata does not apply to orders concerning custody and visitation--that a court always has jurisdiction to modify such a decree. It held that Res judicata does not bar Sherry’s petition to modify or vacate the visitation order because the change in the law recognizing the unconstitutionality of Iowa law is a substantial change in circumstances justifying modification of the order. It said that giving continued effect to the visitation order is unjust because it constitutes a continuing violation of Sherry’s constitutional right as a mother to make decisions regarding her children’s well-being absent a showing of harm to them or her unfitness. The fact that the order was based on a stipulation of the parties does not alter this result. News Source: press-citizen.org.
Spiker v. Spiker, 2006 Iowa Sup. LEXIS 7 (January 20, 2006) A copy of the Slip Opinion of the Iowa Supreme Court may be found here (last visited January 22, 2006, reo).
Wednesday, January 18, 2006
A proposed bill in the New Hampshire Legislature is aimed at putting teeth into visitation enforcement. If passed, the bill would make it easier for a parent denied visitation to obtain a remedy. It provides for an expedited court hearing for motions to enforce parenting plans and if the judge determines there is no legitimate reason for blocking visitation, the Department of Health and Human Services would be notified of a possible case of child abuse and neglect. Source: Commentary by Kathleen Parker, Lowellsun.com. Please click here for the complete story (last visited January 18, 2006, reo). Download New_Hamshire_HB_1585_(2006)as_introduced..doc (reo).
Saturday, January 14, 2006
Michigan Supreme Court to Review Visitation Dispute Involving Challenge to 19th Century Law Forbidding Cohabitation
A Michigan ex-husband now living in California, who cannot exercise overnight visitation with his children when his girlfriend is present, is challenging the order made at the time of his divorce. The trial court had ordered that “neither parent was to have overnight visitation with the children when they had unrelated guests of the opposite sex stay overnight.” The ex-husband complies with the ruling by sometimes staying in a van outside the house. In an unpublished opinion by the Michigan Court of Appeals, (Muller v. Muller, issued October 27, 2005), it observed that “Plaintiff did not believe that the children should be exposed to the cohabitation of unmarried couples. The trial court found that defendant did not express a position one way or the other about the cohabitation of unmarried couples. Because only one party expressed an opinion on this issue, the trial court issued an order honoring that opinion. We are not persuaded that this constitutes an abuse of discretion or legal error. . . . We are not commenting on the morality of the situation, but we respect the cohabitation statute that remains in existence.” The matter is now before the Michigan Supreme Court for review. Source: Carol Hopkins, The Oakland Press, theoaklandpress.com. Please click here for the complete story (last visited January 14, 2006, reo). Download Muller_v. Muller (Unpublished).pdf
Wednesday, January 4, 2006
A couple may seek court-ordered visitation with the 8-year-old daughter of a woman they helped raise, even though they are not related by blood or marriage to either the mother or child, the Pennsylvania Supreme Court ruled. A dissenting justice warned that the new interpretation of Pennsylvania's Grandparent Visitation Act may lead others to push for access to children to whom they are not related. Source: Mark Scolforo, AP, phillyburbs.com. For the complete story, please click here (last visited January 4, 2006, reo). The Pennsylvania Supreme Court decision, Peters v. Costello, decided December 30, 2005, may be found here (last visited January 4, 2006, reo).
Sunday, December 11, 2005
An Iowa trial judge ruled this week that Dieter Erdelt, 67, should be given additional visitation with his 21-month old child born to Edna Schrock, 30, an Amish woman with whom he had an affair while working at his landscaping business. Edna Schrock had requested a reduced amount of visitation, citing concerns about the differences in culture her daughter will be exposed to. In a hearing, Edna Schrock said once Rachel left with Erdelt the girl would likely see televisions, radios and telephones --- things members of the Amish abstain from using. The judge rejected a request for joint physical custody. The case is expected to be appealed to the Iowa Supreme Court. Source: Jessica Miller, Courier Staff Writer, WCFCourier.com. For more information, please click here (last visited December 11, 2005, reo).
Tuesday, November 29, 2005
In case involving a complex and contentious visitation plan, the Ohio Court of Appeals upheld contempt against Mother for attempting to change a visitation schedule without seeking amendment of the court order. The court rejected Mother’s argument that the court order was void because it had contained a provision invalidating the order upon Father’s failure to exercise visitation and that Father had failed to meet the required visitation schedule. The court sentenced her to thirty days in jail, suspended on condition that she purge her contempt by paying Father's attorneys fees and providing additional visitation.
Robinson v. Robinson, 2005 Ohio 6240; 2005 Ohio App. LEXIS 5612 (November 23, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-6240.pdf (last visited November 29, 2005 bgf)
Friday, November 25, 2005
Case Law Development: My Husband Made Me Do It not a Defense to Contempt for Failure to Provide Visitation
The Alabama Court of Appeals upheld a contempt conviction against Mother for failing to deliver her children to Grandparents for their court-ordered visitation. The court rejected Mother’s argument that she had merely passively acquiesced in her husband’s refusal to comply with the visitation order. L.A. v. R.H., 2005 Ala. Civ. App. LEXIS 670 (November 10, 2005)
What an eerie testament to the tragedy of domestic violence that three of the grandparent visitation cases in the past six months have involved denials of visitation to paternal grandparents based, in part, on their continued denial or defense of their son’s criminal violence against his wife.
In North Carolina, Maternal Grandparents had been granted custody of their grandchild after Father had arranged an attack on Mother, which resulted in her death and his incarceration. The court of appeals upheld the trial court’s dismissal of their petition to modify their visitation rights, concluding that they had failed to allege a substantial change in circumstances warranting modification. The opinion notes with concern that the Paternal Grandparents continued to deny their son’s role in killing Mother.
Adams v. Wiggins, 2005 N.C. App. LEXIS 2450 (November 15, 2005) Opinion on the web at http://www.aoc.state.nc.us/www/public/coa/opinions/2005/unpub/050099-1.htm (last visited November 25, 2005 bgf)
In Alabama, the appellate court held hat Grandparents had not proven clear and convincing evidence that the child would be substantially harmed by the denial of visitation in a case in which the Grandparents had intervened in Mother’s divorce against Father, brought after he had attempted her murder. Mother had denied visitation because the Grandparents continued to deny Father’s actions, for which he had been criminal convicted, and to blame Mother for Father’s incarceration. C.D.P. v. D.P., 2005 Ala. Civ. App. LEXIS 642 (October 28, 2005)
Finally, the New York Supreme Court Appellate Division (2d) found that the grandmother failed to show any basis for judicial intervention in a custody action in which Father had abducted the children and took them on a nine-month journey across the country until he was arrested in California. The court found that the grandmother attempted to minimize the traumatic impact the abduction had on the children and had engaged in inappropriate behavior, such as “renting a billboard on a busy public road to communicate with the grandchildren, and hiring a private investigator to "spy" on them and on the mother.”
Matter of Kenderes v. Norton, 2005 NY Slip Op 8120; 2005 N.Y. App. Div. LEXIS 11600 (October 31, 2005) Opinion on the web at http://www.courts.state.ny.us/reporter/3dseries/2005/2005_08090.htm (last visited November 25, 2005 bgf)
Tuesday, November 22, 2005
The Alabama Supreme Court affirmed a trial court’s change of custody from Mother to Father based on the conduct of Mother’s new husband, providing an extraordinary discussion of the limits of a trial court's ability to consider religious practices and training when those practices alienate children from one parent.
After Mother had remarried and submitted herself to the religious views and control of her new husband, he moved the family from Alabama to rural Indiana and Mother and Stepfather acted in ways that the trial court found had alienated the children from not only their father but from both parent’s extended family. For example, Mother’s parents testified in favor of Father’s petition for change of custody. Mother claimed that the change in custody was improper, as the actions she and her husband had taken were grounded in their religious beliefs. The Supreme Court of Alabama held that “the trial court was not precluded from considering the effect on the child of [Stepfather and Mother's] parenting practices simply because those practices were based on religious beliefs.” Citing the ore tenus rule of deference to the trial court's findings, the court found that the trial court's order was based on the bests interests of the children.
The issue that split the court, however, was in the issue the majority concluded was not presented for review: the trial court’s restrictions on Mother’s religious instruction during visitation. The trial court ordered that : "The religious training of the child while in the home of the Mother for visitation shall be made by example, and not by any religious training which would otherwise be disparaging or critical of in any way the beliefs of the Father, and/or the way in which his household is conducted." The majority found that the order “when read fairly and objectively” merely prohibited Mother from disparaging Father in religious teaching and thus did not infringe on Mother’s free exercise. Thus, the court concluded “this case does not warrant the exercise of the Court's power to overlook [Mother's] failure to assert the ground, based on her reading of the order, in her petition for the writ of certiorari.
Justice Parker’s vigorous dissent provided a thorough review of the evidence presented in the case and argument regarding the important role of religious freedom in the upbringing of children. “The right to worship God according to the dictates of one's conscience is the most cherished star in our constitutional constellation. Thus, civil government can overreach in few ways more egregious than by invoking the law to restrict a mother from teaching her child the worship of God.”
Snider v. Mashburn, 2005 Ala. LEXIS 205 (November 18, 2005) (bgf)
Sunday, November 20, 2005
The New Jersey Appellate court held that grandparents seeking visitation must meet a heightened pleading standard for their petition to survive a motion to dismiss. Grandparent petitions must have a “clear and specific allegation of concrete harm to the children. Mere general and conclusory allegations of harm … are insufficient.” Moreover, the court held that a court need not provide plaintiffs with an opportunity for discovery to meet this heightened pleading standard since, if the type of harm required to be pled “generally rests on the existence of an unusually close relationship between the grandparent and the child, or on traumatic circumstances such as a parent's death, it should not be necessary for the grandparent seeking visitation to obtain discovery in order to be able to plead specific facts to support his or her claim of harm to the children. Those facts should already be within the grandparent's knowledge.”
Daniels v. Daniels, 2005 N.J. Super. LEXIS 338 (November 16, 2005)
Opinion on the web at http://lawlibrary.rutgers.edu/courts/appellate/a7123-03.opn.html (last visited November 18, 2005 bgf)
Friday, November 11, 2005
Case Law Development: Grandparents as Third Party Beneficiary to Custody Agreement; Relocation Presumptions
Husband and Wife agreed in the settlement of their divorce, incorporated into the divorce decree, that the couple would have joint custody with primary custody vested in Mother. The agreement also provided that paternal grandmother would continue to babysit the child. Despite the primary custody provision of the decree, the couple shared custody of child roughly equally.
Four years later, when Mother indicated her intent to relocate, Father and Mother each filed petitions requesting sole custody of their daughter. The circuit court characterized Grandmother as a third-party beneficiary of the divorce decree, found that she was a necessary party to the litigation, and allowed her to intervene. The court further ruled that she had the right to enforce the provision of the settlement agreement stating that she would continue to babysit her granddaughter.
Arkansas law provides a presumption in favor of relocation of a custodial parent with primary custody. Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). The custodial parent does not have the obligation to prove a real advantage to the child and relocation alone is not a material change in circumstances sufficient to justify a change in custody. The trial court, however, found that this rule was inapplicable, based on the parent's pattern of sharing custody. The trial court ordered that the parent's informal agreement to share custody continue while Mother remained close enough to continue the agreement. However, the court ordered that, if Mother relocated in a way that would make the current arrangement unworkable, the decree would be modified to award custody of child to Father.
The Arkansas Court of Appeals reversed. As to Grandmother's rights, the appellate court found that the fact that Grandmother was mentioned in the divorce decree gave her no rights, either under contract or domestic-relations law. "Parents cannot elevate grandparents into a quasi-parental role by agreeing to name the grandparents as babysitters." Rather, the court noted that Grandmother's rights, if any, needed to be determined under provisions of the Arkansas Grandparent visitation statutes. The court held that she failed to satisfy the statutory requirements pertaining to grandparent visitation, and found that the trial court committed reversible error when it allowed her to intervene as a third-party plaintiff.
The court of appeals also found reversible error in the trial court's rejection of the presumption in favor of relocation. The appellate court noted that the parent had never formally sought court modification of the custody order, which had given Mother primary custody. "The parties cannot modify the divorce decree without permission from the court. Absent a subsequent modification, the language in the divorce decree is controlling. Thus, the circuit court had no basis for holding that the terms of the divorce decree had essentially been nullified by the parties' conduct." Thus, the Hollandsworth presumption should have been applied. The appellate court found that the trial court "ordered a prospective change of custody, citing relocation as the triggering event, thereby finding that appellant's relocation would constitute a material change in circumstances to justify a change in circumstances. Such a finding violates our supreme court's holding that relocation, by itself, does not constitute a material change in circumstances."
Hurtt v. Hurtt, 2005 Ark. App. LEXIS 772 (November 2, 2005)
Opinion on the web at http://courts.state.ar.us/opinions/2005b/20051102/ca041298.html (last visited November 10, 2005 bgf)
Tuesday, November 1, 2005
The Michigan Court of Appeals affirmed a trial court's decision to modify visitation to prohibit any overnight guests of the opposite sex while the children had parenting time with either parent. Father argued that he and his girlfriend wished to cohabit. The court, however, noted that this consideration had nothing to do with the best interests of the child. Because only Mother had expressed an opinion regarding the effect of exposing children to cohabitation, the court could honor that opinion in limiting parenting time. The court noted that Michigan custody statutes allow "restrictions on the presence of third persons during parenting time." Moreover, the court commented that, "The social policy of the state of Michigan is established by the Legislature, not the courts, and we note that [a Michigan criminal statute] prohibits lewd and lascivious cohabitation. The Legislature has not repealed this statute." "We are not commenting on the morality of the situation, but we respect the cohabitation statute that remains in existence. Such issues are better directed at the Legislature."
Muller v. Muller, 205 Mich. App. LEXIS 2659 (October 27, 2005)
Opinion on the web at http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20051027_C259271_57_259271.OPN.PDF (last visited November 1, 2005 bgf)
For commentary from the bar on the decreasing prevalence of these "morality clauses" see the Georgia Family Law Blog post on the subject.
Tuesday, October 11, 2005
Case Law Development: Ohio Supreme Court Upholds Constitutionality of Grandparent Visitation Statute
The Ohio Supreme Court resolved a split among its districts and upheld the constitutionality of its grandparent visitation statute. In the case, Father and Mother had never married, but had a child together. Mother had custody until the child was about 2 years old, when Mother died. Maternal Grandparents obtained an order of custody over child. After continued legal skirmishes, father finally obtained custody when the child was five years old. Grandparents filed a motion seeking visitation. The juvenile court denied the motion, concluding that under the standards established by the US Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57 (2000), Grandparents had not presented evidence sufficient to overcome the required presumption that Father's decisions regarding visitation were in the child's best interest.
The court of appeals reversed and the Ohio Supreme Court agreed. The court distinguished the Ohio statute from that of the Washington statute in Troxel. Unlike the Washington legislation, Ohio statutes specifically require judges to consider the parents' wishes in determining whether visitation with a non-parent is in the child's best interest. Moreover, unlike the Washington visitation statute, the Ohio statute allows only a limited class of persons to seek custody.
Harrold v. Collier, 2005-Ohio-5334 (October 11, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-5334.pdf (last visited October 11, 2005 bgf).
Read about the decision in the New York Times.
Sunday, October 2, 2005
Following a 28 day custody trial in New York State Supreme Court, the trial judge ruled that the child’s mother could move to Canada with her. However, to ensure monthly visitation in New York with the child’s father, the mother was required to post a $60,000 bond and pay for the son’s travel and hotel expenses. In his decision, the trial judge wrote that “Visitation with a parent is not the privilege of the parent but the right of the child. Both [the father and the boy] must have this right preserved by maximizing defendant's opportunity to maintain a positive and nurturing father-son relationship." By: Robin Topping, Newsday.com.For the complete story, click here (last visited October 2, 2005, REO).