Nebraska: Appeals Court Holds that Paternal father Casey S. holds full custody of their minor child instead of maternal mother Tarah L. and she is ordered to pay child support.. BY: May X-R.

Link for opinion: http://www.supremecourt.ne.gov/sites/supremecourt.ne.gov/files/coa/opinions/memorandum/a12-265.pdf

Title: Nebraska: Appeals Court Holds that Paternal father Casey S. holds full custody of their minor child instead of maternal mother Tarah L. and she is ordered to pay child support.

The Nebraska Court of Appeals held in Casey S. v. Tarah L. Case No. A-12-265 (NE Ct. App., Dec. 31, 2012) that Casey S. is granted full custody of their minor child, Sawyer L., and ordering Tarah L. to pay child support.

Appellant Tarah L. argues on appeal that the court abused its discretion in awarding Casey full custody, limiting her regular parenting time, and refusing to decrease her child support obligations despite the financial burden of exercising her visitation rights.

In 2007 Casey and Tarah informally arranged for alternating custody of Sawyer.  In 2008 Tarah moved in with Casey in Kearney, Nebraska along with Sawyer.  In 2009, Tarah left Kearney with Sawyer.  In July 2009 Tarah dropped Sawyer off with Casey in exchange for $700.00.  It was then that Casey filed a petition for paternity and full custody of Sawyer. 

In December 2009, the court held a hearing on temporary custody and awarded Casey temporary full custody subject to Tarah’s parenting time of 1 week per month.  The court also ordered child support.  It required Tarah to pay $422 each month in basic support for Sawyer.

In July 2010, the court granted Casey’s motion to have the parties submit to a psychological and custodial evaluation conducted by Dr. John Meidlinger. 

The court held a custody hearing in February 2012. Several witnesses testified at the hearing, including Dr. Meidlinger, the expert who performed a psychological and custodial evaluation. Dr. Meidlinger recommended awarding custody to Casey.  He opined that Sawyer needed a patient parent who would administer nonphysical discipline. He liked the way Sawyer calmly interacted with Casey and thought Casey had done a good job implementing successful disciplinary procedures. Dr. Meidlinger was less confident in Tarah’s abilities to parent Sawyer, because she had been subject to “extreme domestic violence” and because he received reports that she was emotionally unstable and had difficulty controlling her anger.

The court found that there were “pluses and minuses” to awarding either parent custody.

The court noted that both parties seemed “aware of Sawyer’s limitations” and “actively concerned in his physical, intellectual, and behavioral development.” The court opined that

Sawyer was improving in Casey’s custody, but it noted that programming to help him continue

to improve would be available in Missouri as well.

Appellate Court of Illinois Denys Request of Plenary Guardianship. BY: Lori W.

Link for opinion: 976 N.E.2d 431, *2012 Ill. App. LEXIS 643, **2012 IL App (1st) 112957, ***364 Ill. Dec. 153

Title: Appellate Court of Illinois Denys Request of Plenary Guardianship

IN RE THE GUARDIANSHIP ESTATE OF TATYANNA T., a minor (Cary T. and Frances T., Petitioners-Appellants, v. Francine Barnes, Respondent-Appellee). Cary T and Frances T requested plenary Guardianship over Tatyanna T.stating that Tatyanna’s biological mother Francine Barnes relinquished her parental rights to Tatyanna.

Francine Barnes had asked Cary T. and Frances T. to care for her daughter Tatyanna shortly after her birth. Cary T. and Frances T. took Tatyanna into their home two days after she was born and took care of her on a daily basis for seven years.

During these seven years, Tatyanna’s biological mother Francine Barnes still had contact with her. She would take her to some (not a lot) of her doctor’s appointments, she would take her on her birthday, holidays and requested to have her a couple of weeks throughout the summer. Cary T. and Frances T. were in agreement with this.

Cary T. and Frances T. filed for plenary guardianship over Tatyanna. The courts denied this as there was no evidence that Tatyanna’s biological mother relinquished her parental rights. Cary T. and Frances T. stated that there was an oral agreement that Cary T. and Frances T. take care of Tatyanna until Francine were to finish high school and be able to provide a better life for her daughter. When Francine requested her daughter to live with her permanently Cary T. and Frances T. filed for plenary guardianship.

The courts found that Francine Barnes did not give up parental rights to her daughter Tatyanna to Cary T. and Frances T. there was no written documentation and that the oral agreement was to have Cary T. and Frances T. care for Tatyanna only until Francine was able to.

New Mexico: New Mexico Supreme Court Rules State and Tribal Court Must Share Jurisdiction in Child Custody Case. BY: Eve S.

Link for opinion: http://caselaw.findlaw.com/nm-supreme-court/1001192.html

Title: New Mexico: New Mexico Supreme Court Rules State and Tribal Court Must Share Jurisdiction in Child Custody Case

The New Mexico Supreme Court held in Garcia v. Gutierrez, 2009-NMSC-44, 147 N.M. 105, 217 P.3d 591 that the state court and tribal court must share jurisdiction and work out their differences in a custody dispute between a Native American father and non-Native American mother whose children are enrolled as members of the Pojoaque Pueblo-state.

Angelina Garcia married Matthew A. Gutierrez, a member of the Pojoaque Pueblo in 1998. The couple lived much but not all of their married life on Pueblo lands. In August 2002 the wife left her husband and took their children to live at her father’s house after a series of domestic violence incidents. When he realized that his wife had left Mr. Gutierrez went to his father-in-law’s house and stabbed Ms. Garcia repeatedly for which he faced criminal charges. The wife was awarded temporary custody by the district court and filed a petition to dissolve the marriage in district court while the husband filed a parallel motion in tribal court.

In spite of receiving notice for the tribal court’s proceedings, Ms. Garcia did not appear in the tribal court and was found in contempt. The wife and husband were awarded joint custody by the tribal court. The district court entered the divorce decree and declared that it had jurisdiction over child custody issues. The Court of Appeals reversed the district court and held that only the tribal court had jurisdiction over the child custody issues in the case. The wife appealed to the New Mexico Supreme Court who agreed to hear the case.

The question before the Court was whether the state had jurisdiction over the child custody dispute. Its inquiry was governed by a state statute, the Uniform Child-Custody Jurisdiction and Enforcement Act (“UCCJEA”), NMSA 1978, §§ 40-10A-101 to-403 (2001) and a federal statute, the Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C. §173A (2000).

The UCCJEA or a similar earlier version has been passed in all 50 states with the purpose of preventing couples from shopping around for a more favorable venue in child custody cases. If a home state can be established in a custody case, other jurisdictions with similar statutes cannot exercise jurisdiction in the same case. If a home state cannot be established than a court in a state with which the child and one or both of the parents has “significant connections” can establish jurisdiction. If more than one state has significant connections those courts must communicate to determine which state has the most significant connections to the child. See NMSA § 40-10A-202(a)(1)-(2); § 40-10A-206.

One of the key issues in this case was whether home state jurisdiction of the Pojoaque-Pueblo state could be established based on location of the wife’s father’s house, which was on non-Indian fee land within the boundaries of the Pueblo lands. The Court held that this did not establish Pueblo jurisdiction in this case based in part on the U.S. Supreme Court’s ruling that a tribe’s efforts to exert civil authority over nonmembers on non-Indian fee land are “presumptively invalid”. See Atkinson Trading Co. v. Shirley, 532 U.S. at 659. Although the Court found that no home state could be established for the children or either parent in this case, it did find there were significant connections for all parties with the state of New Mexico and the Pojoaque-Pueblo. Since the Pueblo had not adopted the UCCJEA or similar statue, the Court found the State had proper jurisdiction in the case although this did not exclude tribal jurisdiction given strong Congressional support for tribal self-determination in the raising of tribal children.

The Court also found that the PKPA did not apply in this case as Congress had not specifically included tribal lands as being obligated under its provisions. Since tribal lands are specifically obligated in other federal statutes the court found that the lack of such a reference in this act was intentional.

In summary, the court stated that while there was no definitive answer to this complex jurisdictional dispute, there was a long tradition of the New Mexico state and tribal courts sharing jurisdiction and they must work out their differences guided by the universally accepted principals of doing what was in the best interests of the children.

Utah: Husband Objects to Wife’s Custody of Child. BY: Katherine S.

Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/

Title: Utah: Husband Objects to Wife’s Custody of Child

Stephen Norris ALEXANDER, Plaintiff and Appellant, v. Diane Jean ALEXANDER, Defendant and Respondent

The Utah Supreme Court held in Stephen Alexander v. Diane Alexander, 737 P.2d 221 (Supreme Court of Utah, 1987) that the custody of the three children of divorced parents is going to to the ex-husband.

The parties’ family life was marred by conflicts that climaxed in March 1984, when their oldest daughter attempted suicide by shooting herself in the head. Although the child recovered and is now doing well, she became impulsive and volatile as a result of brain damage, causing further stress to the parties’ relationship.

In July 1984, defendant took the parties’ youngest child, who was then four, to Missouri to live with the defendant’s brother. Defendant and her child traveled with a male family friend. During the trip, the defendant and her child slept in the same bed with the friend. Although defendant disavowed a sexual relationship with him, the trial court found that one existed. Plaintiff was granted a divorce after a trial held in April 1985.

The court held that the custody of the couple’s three older children should go to the husband and custody of the youngest child should go to the wife.

Plaintiff assigns as error the district court’s award of custody of the youngest child to defendant. Plaintiff was awarded custody of the three older children, who were then sixteen, fourteen, and thirteen years old. Plaintiff proffers three reasons why it was not proper for the district judge to award defendant custody of the youngest child: the decision was not in the child’s best interest; it was inappropriate to separate the children; and the decision was based on a maternal preference.

The trial court awarded defendant, who has only a tenth-grad education, no alimony, but gave her half of the marital estate and ordered plaintiff to pay the couple’s outstanding debts in lieu of alimony. Neither party was awarded child support.

Nebraska Court of Appeals Denies Mother Her Application to Remove Her Child from Nebraska to Texas. BY: Trisha P.

Link for opinion: http://scholar.google.com/scholar_case?case=11275397260239338236&q=recent+Nebraska+child+visitation

Title: Nebraska Court of Appeals Denies Mother Her Application to Remove Her Child from Nebraska to Texas

The Court of Appeals of Nebraska held in Elton v. Elton, No. A-12-180 (Neb. Ct. App. Oct. 23, 2012) that the mother failed to demonstrate that it would be in the best interests of the minor child to be removed from Nebraska to Texas and that she failed to demonstrate that she was entitled to a modification of child support.

Sarah Elton, the mother of the minor child, was awarded primary physical custody in the joint custody arrangement after dissolution of marriage to Michael Elton on March 30, 2010. Michael Elton, the father had a parenting time schedule to see the minor child.

On June 20, 2011, Sarah filed an application to relocate and remove the minor child to Texas. Her reasons included: that she wanted to be closer to extended family, that she could earn a potentially higher salary, and the climate would be beneficial to some health issues that she was experiencing. Michael filed an objection and said there was a need for discovery before the hearing could be held. On January 31, 2012, the district court entered an order denying her request for removal. Sarah appealed to the Nebraska Court of Appeals.

The court looks at many different aspects in considering a parent’s request to remove a minor child out of state. First, the parent must satisfy the court that they have a legitimate reason for leaving the state. Second, the parent requesting the move has the burden to prove that it is in the child’s best interests to continue living with him or her.

The court then examines these other issues: the best interests of the child, each parent’s motives, the quality of life for the child and the custodial parent, the child’s emotional, physical, and developmental needs, the minor child’s preference is some situations, the enhancement of income or employment, the housing conditions, educational advantages, the quality of the child’s relationship with each parent, the child’s ties to community and extended family, any hostilities between the parents,  and the move would impact the non-custodial parent’s relationship or contact with the child.

Sarah satisfied the court that she had a legitimate reason for wanting to relocate but failed to demonstrate that it was in the best interests of the child to be removed to Texas. She additionally failed to show cause that she was entitled to a modification of child support.

Texas: Parental rights revoked upon charges of child endangerment. BY: Cori M.

Oxford v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, No. 03-11-00261-CV (Tex. App. Mar. 21, 2012).

As Linked: http://scholar.google.com/scholar_case?case=17881838881850999050&hl=en&as_sdt=2,50#[1]

Texas: Parental rights revoked upon charges of child endangerment  

Bobby Oxford, Jr., the appellant in this matter, contested an order from the District Court regarding the termination of parental rights to 2 year-old daughter (hereon referred to as “S.B”).  In the district hearing, the Court found cause due to Oxford’s history of leaving S.B. in the care of persons whose conduct may have endangered the child, and in environments considered hazardous to S.B’s well-being. Oxford also committed criminal activities leading to his imprisonment, and therefore, no viable means to tend to the child. 

Upon appeal, Oxford contested the original ruling with the following three issues: Oxford cited failure by the Court to take in consideration his prior role as primary caregiver; the evidence of cause behind termination of his rights was insufficient; and finally, such ruling as a result of Oxford’s criminal conviction lacked necessity—Oxford was attempting to have his conviction overturned.

Actions of the Appellate Court may not be properly cited through reporter document, as the appellant did not have the funds to appropriate publication.  Therefore, issues requiring reporter record for ruling could not be decided upon appeal.  See Tex. R. App. P. 37.3(c).  All three issues raised by the appellant required reporter documentation for a valid ruling.

Upon publication of this opinion, no evidence existed of any appeal regarding Oxford’s criminal conviction, and no request was issued for reporter publication. Therefore, the Court could only affirm the prior ruling.

Mississippi Appeals Court: Albright Factors Applied Correctly; Custody Order Stands. BY: Shari M.

From the Mississippi Appellate Court, this is the case summary of May v. May from LexisNexis Academic. Link: http://statecasefiles.justia.com/documents/mississippi/court-of-appeals/2012-ca-00402-coa.pdf?ts=1360094734

Title: Mississippi Appeals Court: Albright Factors Applied Correctly; Custody Order Stands.

The Appellate Court in Mississippi reviewed the decision of the case May v. May, to determine if the Albright Factor was correctly applied to the case. The decision stands due to the lack of merit to the appellant’s claims.

The mother and appellant, Victoria Sebren May, divorced appellee James May on June 14^th 2011, due to irreconcilable differences. Custody of their minor son, Eli, was awarded to James and Victoria was ordered to pay $300.00 a month for child support.

Victoria believes the chancellor was incorrect about four of the factors applied to her case. Those factors were as follows: the continuity of care prior to separation; parenting skills and the willingness and capacity of primary child care; employment and responsibilities of that employment; and the home, school, and community record of the child. The chancellor found that the first two factors did not favor either parent but the last two factors favored James; which was ultimately why custody was granted to him.

The argument Victoria brought to the Appeals Court did not prove that the chancellor erred in his decision when applying the factors of Albright to her case. Sighting that James’ mother would care for Eli more than James would, did not prove the chancellor erred in his decision. Victoria also sights that James had six different jobs during the nine years they were married. Again, this was not sufficient evidence of an err by the chancellor. Without the sufficient evidence required to overturn the decision made by the district court, the original ruling is affirmed.