Family Law Prof Blog

Resolving Custody and Visitation Concerns

From Brian E. McKinley (Lawyers.com):

Divorces can be emotional and stressful, and when children are involved, child custody arrangements can make things even more challenging and may cause additional concerns. What if your ex-spouse doesn’t abide by the arrangement and doesn’t meet you with your children on time? What if they talk about moving out of state? Luckily, there are laws in place and legal professionals available to help enforce the terms of these types of agreements.

If your divorce has been finalized and you are wondering how the custody and visitation part of the agreement will work out between you and your ex-spouse, it is not unusual to feel uneasy about it. Below are the common custody and visitation concerns that divorced parents experience, and what you can do:

Failure to Comply with Requirements of an Agreement – You may wonder what happens if one or both parties fails to abide by the terms of the custody or visitation agreement. For example, a parent might intentionally extend their visit with the child to either spend more time with him or her or to intentionally deprive the other parent time with the child. If a parent fails to observe the terms of a custody agreement, you can contact your lawyer or a legal professional so they can help you enforce the terms of the agreement or to seek modification of the agreement. Keep in mind that there may be situations where the withholding of custody may be permissible, such as if an ex-spouse is keeping the child safe from danger or if they are late to an exchange due to traffic during the commute.

Read more here.

Mom Faces Jail and $14k Sanction for Contempt of Grandparent Visitation Order

From The Indiana Lawyer:

A DeKalb County mother who refused to comply with court-ordered visitation between her children and their paternal grandparents must now serve jail time and pay a $14,000 sanction after the Indiana Court of Appeals upheld visitation and contempt orders on Friday.

The grandparents in D.G. v. W.M., et al., 18A-MI-2115, were awarded visitation time with D.G.’s four children in March 2016 after previously raising the children in their home for several years. Despite that order, the visits between the grandparents and grandchildren generally did not occur, so the grandparents moved to show cause why D.G. should not have been held in contempt.

In response, the trial court ordered that the mother serve 12 days in jail and pay $1,000 in attorney fees. D.G., however, never resumed visits with the grandparents, nor did she go to jail or pay fees.

Read more here.

Australia: Family Law Act Gives Grandparents Rights

From Lexology:

Grandparents are playing a greater role in many families, often due to the high cost of childcare and increasing rates of divorce. But what happens when a grandparent is refused time with their grandchild or wishes to assume full care of a child? What are grandparents’ rights in these circumstances?

The Family Law Act 1975 (the Act) recognises that significant persons in a child’s life (such as grandparents) have a right to a meaningful relationship with that child, and in certain circumstances may seek parenting orders through the Family Court.

A grandparent may seek an order:

• to spend regular time with the child, usually sought where parents have refused the grandparent any involvement with the child. Whether this will be granted depends on the circumstances, however the Court will generally award the grandparent less time than may be ordinarily awarded to a parent.
• for the primary care of the child, typically sought where parents may be unwilling or unable to care for the child. An order for a child to live with a grandparent (and for that grandparent to have sole parental responsibility for them) places them in an equivalent role to a parent and allows that person to make decisions for the child without the need to consult the parents.

Read more here.

Programme aims to help people affected by 'parental alienation'

From The Guardian:

Parental alienation – a phenomenon where one parent poisons their child against the other parent – has become such a feature of the most difficult family breakdowns that Cafcass, the Children and Family Court Advisory and Support Service, is to offer targeted support for those affected following a government-funded intensive therapeutic pilot programme.

Distinct from the all-too-common acrimony between divorcing parents, the syndrome is an internationally recognised phenomenon. In America and Canada, “parenting coordinators” are ordered and supervised by the courts to help restore relationships between parents and children identified as “alienated”. In Mexico and Brazil, alienating a child from a parent is a criminal act.

Psychiatrist Richard Gardner developed the concept 20 years ago, defining it as “a disorder that arises primarily in the context of child custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the target parent.”

Read more here.

Supreme Court Restores Visitation Rights to Lesbian Adoptive Mother

From The New York Times:

In a pair of unsigned opinions, the Supreme Court on Monday restored the rights of an adoptive mother who had split with her lesbian partner and reversed a murder conviction tainted by prosecutorial misconduct.

The adoption ruling reversed one by the Alabama Supreme Court, which had refused to recognize the woman’s adoptions of three children, which had been granted by a Georgia court in 2007.

The woman, identified in court papers as V.L., said she was overjoyed.

“I have been my children’s mother in every way for their whole lives,” she said in a statement. “I thought that adopting them meant that we would be able to be together always. When the Alabama court said my adoption was invalid and I wasn’t their mother, I didn’t think I could go on.”

The United States Supreme Court’s opinion, which had no noted dissents, said the Alabama court had violated the Constitution’s “full faith and credit” clause. “A state may not disregard the judgment of a sister state because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits,” the opinion said.

The two women in the case, V.L. v. E.L., No. 15-648, were in a committed relationship that started in 1995 and lasted about 17 years. They shared a last name.

One of them, identified in court papers as E.L., gave birth to a child in 2002 and to twins in 2004, both times by insemination from an anonymous donor. They raised the children together in Alabama until they broke up in 2011, and the adoptive mother, V.L., continued to see the children for a time afterward.

When a dispute about the visits arose, V.L. turned to an Alabama court, which granted her visitation rights based on the Georgia adoption judgment. The Alabama Supreme Court reversed that, saying in an unsigned opinion that the Georgia judgment was not entitled to the “full faith and credit” ordinarily required by the Constitution “to the public acts, records and judicial proceedings of every other state.”

Read more here.

Grandparent Visitation 15 Years After Troxel

From Indiana Lawyer:

Fifteen years after Troxel v. Granville, 530 U.S. 57 (2000), grandparent visitation is alive and well in Indiana and across the country. In Troxel, Justice Sandra Day O’Connor noted, “The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household.” Indeed, the last 15 years have only enhanced this sentiment. Given continued high levels of divorce and out-of-wedlock births, the role of grandparents continues to be an important source of stability in some families. Thus, in 2015, grandparent visitation made several appearances on the Indiana court dockets.

In one such case, In re the Visitation of L-A.D.W. R.W. v. M.D. and W.D., 38 N.E.3d 993 (Ind. 2015), a child’s maternal grandparents filed for visitation under the Grandparent Visitation Act after their relationship with the child’s father became contentious. Their daughter had recently died of cancer and expressed her wishes in her will for them to have generous visitation with her child. Based on the opinion of mental health experts, the trial court determined that it was in the child’s best interest to have a meaningful and ongoing relationship with grandparents, with visitation totaling approximately 79 days per year. While noting the lack of guidance regarding the proper amount for grandparent visitation, the Court of Appeals determined that 79 days was improper under the Grandparent Visitation Act because it was too significant and resembled the parenting time a non-custodial parent would have in such a case. However, after reviewing the circumstances of this particular case – including the closeness of the child to the maternal grandparents due to the father’s demanding work schedule – the Indiana Supreme Court affirmed the trial court’s order of visitation.

In another grandparent visitation case, Jocham v. Sutliff, 26 N.E.3d 82 (Ind. Ct. App. 2015), the Indiana Court of Appeals determined that a grandmother was no longer a “grandparent” with standing to seek visitation under the grandparent visitation statute at the time she filed the petition because the stepparent already had adopted the child. The court held that “visitation rights,” as referenced in the grandparent visitation statute, refer to already-established visitation rights at the time of the stepparent adoption, rather than the right to seek visitation in the future.

Read more here.

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.

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.

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.

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 2015 grandparent rights bill, co-sponsored by Sen. Joseph Abruzzo, D-Wellington, was signed into law by Gov. Rick Scott this month. Some had hoped it would allow grandparents to tell the family courts why they should be able to see their grandkids.

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.

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.

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.

AC

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.

AC

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 protected]

RR (thanks to Maria Arias)

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.

RR

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).

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)

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)

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)

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)