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.

Tennessee: Appeals Court Awards Full Custody to Father for Reasons of Parental Alienation. BY: Erin L.

Link for Opinion: http://www.tncourts.gov/sites/default/files/jonathanscbopn.pdf

Title: Tennessee: Appeals Court Awards Full Custody to Father for Reasons of Parental Alienation

The Tennessee Court of Appeals decided In re Jonathan S. C. B., 2012 Tenn. App. LEXIS 603 (Tenn. Ct. App., Aug. 20,2012) after finding the accusations of sexual abuse to the child were inaccurate awarded custody of the minor child to the father.  Custody of the child to the father was decided to be in the best interest of the child after deciding the mother’s actions of accusing sexual abuse was fueled due to the mother’s desire to remove the father from the child’s life.

Jonathan S. is the child of unmarried father Dr. Stephen Bruehl and mother Dr. Ok Yung Chung.  The initial trial regarding custody and visitation of Jonathan was concluded on October 6, 2009 with the following results; Mother was awarded primary residential parent, with the father allowed supervised visits.  The father was also ordered to abstain from prescription drugs and alcohol and continue with an aftercare program to remain sober.  After two years of sobriety the father was able to file for a modification of visitation schedule.  The mother was also ordered to inform father of all child’s doctor’s appointments and assist in selecting a psychologist to help build a positive relationship between the child and father.  Both parents were also warned about making negative remarks about the other parent.

Shortly after initial hearing father filed a motion to modify the courts order.  The hearing took place November 25, 2009.  At which time the court permitted the father to have phone visitation with the child two days a week, as well as enlarging the individuals who could supervise the fathers visits with the child.  The court also made plans for the parents to exchange the child at the Belle Meade police station before and after all visits.

Regardless of the courts attempt to help better the relationship of the parents, the relationship continued to deteriorate.  Father filed a petition against the mother for criminal and/or civil contempt and other relief.  In the petition the father asked the court to increase fathers parenting time, as well as lift the requirement for supervised visits.  Father also accused the mother of not allowing him phone visitation.  The mother was also accused by the father of making negative remarks about the Father to the child, and that she did not follow the October order and did not involve the child with a child psychologist.   The father also indicated he had been visited by The Department of Children’s Services with an anonymous complaint alleging the Father had used drugs and physically abused his son Jonathan during his parenting time.

After Fathers petition was filed Jonathans Mother filed an Emergency Petition to suspend all visitations as well as a restraining order against the father.  Mother stated the basis for this request was the fact DCS was investigation a complaint of child abuse against the Father. The court decided during this hearing not issue a ruling on Mother’s petition, instead would wait it had the chance to review the evidence from the Father’s contempt petition.

Finally throughout numerous petitions and motions filed the trial court finally made a decision to award Jonathans Father full custody with primary decision making responsibility.  The court also ordered the Mother to receive ample amount of parenting time with the child.  The Mother was ordered to pay child support as well as the attorney fees the father incurred during litigation of this matter.  The guardian ad litem as well as a child psychologist appointed by the court involved in the case were awarded judgments for their services as well.  The mother after, filed a motion for stay of the court’s order and a motion to amend the order.  This decision of the trial court came from the fact the court found the Mother had engaged in deliberate process known as alienation, by accusing the Father of child abuse and refused to accept fact indicating the abuse did not occur.  Soon after, an appeal by the mother followed.

The decision of the trial court was affirmed in the Court of Appeals.  The Court of Appeals remanded the case to the Juvenile Court of Davidson County to determine necessary attorney fees to be awarded to the Father that were incurred on appeal, as well as any other further proceeding necessary.

Nevada: Supreme Court holds that had enforceable jurisdiction. BY: Joseph L.

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

Nevada: Supreme Court holds that had enforceable jurisdiction

The Eighth Judicial District Court, Family Court Division, Clark County, Nevada, granted the mother's motion to establish a fixed monthly child support obligation for the father, set the father's monthly child support obligation at $1,300 and used that figure to calculate his support arrearages, which it then reduced to judgment. Both parties filed separate appeals, which were combined.

The Supreme Court noted that there was only one child support order; the order was issued by the Nevada district court as part of the divorce decree. The order controlled; neither of the parties nor their children resided in Nevada when the child support motion was filed, and neither party declared that he or she consented to the Nevada court's continued implementation of jurisdiction.

The district court needed subject matter jurisdiction to modify the support obligation contained in the divorce decree, Nev. Rev. Stat. § 130.205(1). Under the terms of the decree it was probable for the father's monthly support obligation to change from year to year.

The court set his monthly support obligation at the permanent amount of $1,300 per month, the district court practically altered the parties' rights, such that the district court modified, rather than clarified, the support obligation contained in the divorce decree and thereby went beyond its jurisdiction in violation of § 130.025(1).

Court of Appeals of Wisconsin. Ellen Wall Payne, Petitioner-Respondent, v. Phillip Charles Brande, Respondent-Appellant. BY: Kayla K.

Link for the opinion: http://web2.westlaw.com/result/default.wl?cfid=1&mt=LawSchool&origin=Search&sri=58%2c59%2c71%2c73&sskey=CLID_SSSA9789739531913&query=Child+Custody+in+Wisconsin&method=WIN&db=ALLFEDS%2cALLSTATES%2cAMJUR%2cALR&rlt=CLID_QRYRLT8159940531913&rltdb=CLID_DB1888139531913&service=Search&eq=Welcome%2fLawSchool&rp=%2fWelcome%2fLawSchool%2fdefault.wl&srch=TRUE&vr=2.0&action=Search&sv=Split&fmqv=s&fn=_top&utid=1&rs=WLW13.01

Title:  Court of Appeals of Wisconsin. Ellen Wall Payne, Petitioner-Respondent, v. Phillip Charles Brande, Respondent-Appellant.

Payne and Brande got married in North Carolina in 1986.  During their marriage, they had one child named Michael.  Michael was born on November 2, 1988.  In February of 1992, Payne and Brande separated and they were divorced in 1993.  Their son Michael continued to live with Payne, but he would visit is father Brande and have overnight stays with him.

Payne got remarried to a Wisconsin resident on August 30, 1996.  Payne filed a petition four days later in Wisconsin seeking sole legal custody, primary physical placement of her son Michael, and child support from Brande.

Brande received a North Carolina temporary ex parte order that granted him an immediate temporary custody of their son Michael.  Soon after, Brande  filed a motion to dismiss his ex-wife, Payne’s Wisconsin petition for lack of jurisdiction.

The Wisconsin court and the North Carolina court both had jurisdiction to make a custody determination.  Both parties then would participate in a conference call during the hearing.  Sole custody and physical placement of Michael to Payne by the Wisconsin court and order Brande to pay child support.

Brande claims that the trial court cannot make a custody determination due to lack of jurisdiction.  Brande argued that the Wisconsin court did not have jurisdiction under §822.03(1)(a) because Michael’s home state is North Carolina.

Payne states that Michael has a significant connection to Wisconsin because of her and her husband whom is Michael’s step-father.  Brande does not respond further in the argument.

The court agreed with Payne that the trail court had jurisdiction to make the custody determination.

SCOTT VAN, Plaintiff-Appellant, v MARY ZAHORIK . BY: Jennifer J.

Citation:                                 460 Mich. 320; 597 N.W.2d 15; 1999 Mich. LEXIS 1868

Parties:                                   SCOTT VAN, Plaintiff-Appellant, v

MARY ZAHORIK, Defendant-Appellee

                                               

Facts:                                      As of March 21, 1996, when Mr. Van started a relationship with another woman, Ms. Zahorik refused to allow Mr. Van to see the children.  However, on March 25, 1996, Ms. Zahorik filed a paternity complaint against Mr. Van in which she alleged that he was the father of both children. Ms. Zahorik apparently dismissed this action.  On July 26, 1996, Mr. Van filed a petition to establish paternity in which he alleged that he “believed and continues to believe he is the father” of the two children.  On August 22, 1996, Ms. Zahorik filed a motion for summary disposition under MCR 2.116(C)(8), in which she argued that Mr. Van was not the biological father of either child ¹ and could not be an “equitable parent” to them because Mr. Van and Ms. Zahorik were never married. In response, Mr. Van conceded that blood testing showed that he was not the biological father but argued that he was an “equitable parent” and that Ms. Zahorik was equitably estopped from denying that he is the father. The trial court granted Ms. Zahorik's motion for summary disposition. The trial court indicated that its ruling turned on two factors:  1) that Mr. Van apparently was not the biological father of the children, and 2) that Mr. Van and Ms. Zahorik were never married. The Court noted that Michigan's public policy favored marriage and concluded that the doctrines of equitable estoppel, equitable parenthood, and equitable adoption require marriage.

Prior Proceedings:                Plaintiff Scott Van and Defendant Mary Zahorik cohabited from 1986 to 1991 but were never married.  Mr. Van claims that he and Ms. Zahorik continued their relationship for several years after they stopped living together.  Ms. Zahorik had two children in the course of this relationship;  one in 1989 and the other in 1993.   Mr. Van alleges that Ms. Zahorik informed him that he was the father of the children.  He believes that he was named as the father on the birth certificates of both children.  He claims that he cared for and financially supported the children both during and after his relationship with Ms. Zahorik.

Issue:                                      Whether a person with a longstanding relationship to a child, but who is not a biological or legal parent of the child and not related by marriage to the child's biological parent, may pursue parental rights with the child under a theory of equitable parenthood or equitable estoppel.  

Holding:                                 We hold that because the requested extension of the equitable parent doctrine would affect the state's public policy in favor of marriage, the Legislature is clearly the appropriate entity to consider this issue.        

Reasoning:                             Under M.C.L. § 722.23;  MSA 25.312(3), a trial court is given extremely broad latitude in deciding what is in the best interest of the child. The plain language of  two provisions, in conjunction with the wording in M.C.L. § 722.26;  MSA 25.312(6), demonstrates that the Legislature fully recognized the courts of Michigan as necessary to defining the process.

Disposition:                                     The Court of Appeals decision is affirmed.

Wisconsin: Court of Appeals holds that mother’s arguments for challenging a placement change are moot. BY: Kristen J.

Link to the case

http://web2.westlaw.com/find/default.wl?cite=soronen+v+soronen+342+Wis2d.250&rs=WLW13.01&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=Westlaw

Title: Wisconsin: Court of Appeals holds that mother’s arguments for challenging a placement change are moot.

The Wisconsin Court of Appeals held that the placement change in favor of the father was not erroneously made, and that the mother had no grounds for challenging the change in Soronen v. Soronen, No. 01-AP-1237 2012 WL 1605353 (Wis. App. May 09, 2012).

During a divorce action, the parent’s stipulated to a custody and placement arrangement regarding their minor children. The arrangement was in place for over five years when the father petitioned the court for a change in placement. The stipulated agreement that was ordered held that the mother was to have primary placement and the father was to receive one weeknight and every other weekend.

The father filed the motion for change after the children’s caretaker was arrested while driving while under the influence of illegal drugs. Further investigation showed that the caretaker was a habitual, know user, and the mother still relied upon her to care for her children. The father alleged in his petition, and filed affidavits, that the mother and her live in boyfriend were using drugs, trafficking drugs, and the minor children’s safety was in danger. The court ordered an ex parte that granted the father sole physical placement of the children, a guardian ad litem, and a scheduled hearing on the matter.

The mother disputed the allegations, filed for an ex parte motion and provided negative drug test on her own will to show the grounds for the allegations had no standing and that the children be returned to her care. Following this new ex parte motion filed by the mother, the father responded with further affidavits showing that the children were doing poorly in school.

The Guardian ad litem indicated that there was no evidence of drug use, trafficking, or other abuse in the home of the mother. She also noted that there was marijuana concern at the father’s house. Through her investigation she state that nether parent was very involved in the schooling of their children and recommended shared placement.

The court scheduled an evidentiary hearing for a de novo review and did not amend the changes at that time.  The hearings spanned through 2010 and into early 2011 when the court finally ordered that it was in the best interest of the children to remain in the primary care of their father and the mother was awarded placement every other week from Thursday to Sunday. Over the summer break, the roles would switch and the mother would have primary care of the children and the father would take the Thursday to Sunday placement. The court granted sole medical care decisions of one of the minor children to the father and shared the decision with the other.

The court held that the mother’s lack of discipline, awareness, and presence in her children’s life were causing the children to suffer in school. During the hearing process, the education level of the children improved significantly.

The mother appealed on the grounds that there was not sufficient evidence to prove a substantial change in circumstances that rendered such a change in their placement. The original placement order was stipulated when the mother was not delegating her responsibilities to another, let alone a known drug user, the children were not of school age, the differences in parenting styles, and before the minor child exhibited signs of ADHA (which the mother persistently denies). With all of these circumstances, the court denied this allegation, as found that the father met his burden of proof to show that the circumstances were substantially changed.  

The mother also argued that the court erred when determining the best interest of her children. Again, the court denied the allegation stating that the findings with the education itself was warranted to show that the children were doing better, and that at this point in their life they need the regime and discipline that has not been provided by the mother.

The mother brought up the fact of expired restraining orders against the father, to attempt to show that since there had been no further incidences that it was not meaningful.

The court deemed the rest of her arguments as moot, having no meaning or relevance, to the issue and affirmed the circuit courts determination of placement.

Washington: Appeals Court Hold that Student was not emancipated before 21 years of age. BY: Nicole I.

Link for opinion: http://www.courts.wa.gov/opinions/pdf/68357-8.unp.doc.pdf

Title: Washington: Appeals Court Hold that Student was not emancipated before 21 years of age

The Washington Court of Appeals held in McMinn v. McMinn (unpublished opinion) that the commissioner erred in determining whether the student was emancipated before he turned 21

On February 12, 1997, the Indiana court entered a decree of dissolution of the marriage of Lori and Daniel McMinn.  Daniel was ordered to pay child support until the Student was emancipated or turned twenty-one.

Student inherited a trust in the amount of $112,000, 200 shares of Pacific Power and Light, and approximately $33,000 when his great aunt passed away. When his grandmother passed away, the student inherited another $25,000. The terms of the trust stated that it was for “health, education and support needs.”

In September 2008, student went off to college and Daniel stopped paying his child support to Lori. Lori insisted that the student was not emancipated until he was 21 and that Daniel owes the child support from 2008 to November 18, 2010.

On January 26, 2012, the superior court commissioner ruled in favor of Daniel, and Lori appealed.

The appeals court held that the superior court commissioner erred in failing to determine whether the student was emancipated after he left home to go to college in September 2008.  The appeals court reverses and remands to determine whether Aaron was emancipated. If Aaron was not emancipated before he turned 21, the commissioner shall then determine the amount, if any, of past due child support.

Ohio: Court of Appeals Holds that the Parental Rights are to be Terminated and Custody be given to JFS so the Children may be Adopted by Foster Parents. BY: Mindy I.

http://www.sconet.state.oh.us/rod/docs/pdf/5/2012/2012-ohio-6265.pdf    

Ohio: Court of Appeals Holds that the Parental Rights are to be Terminated and Custody be given to JFS so the Children may be Adopted by Foster Parents

The Ohio Court of Appeals held in the matter of S. Children, Case No. 2012-CA-00164 (Ohio Ct. App. 2012) that the parents of children that had been in and out of foster care would have their parental rights terminated permanently to allow their current foster parents to adopt them.

The appellant in this case Donald S. (“Father”) appealed the Stark County Court of Common Pleas, Juvenile Division, decision that was made on August 16, 2012, to terminate his parental rights, privileges and responsibilities in regards to his two minor children and gave permanent children to appellee Stark County Department of Job and Family Services (“JFS”).

Father is the biological father of both minor children T.S. and L.S. both born on May 21, 2012. The mother of the minor children is not a party to this appeal, but is married to Father and resides with him. The children were placed in temporary custody of the JFS on May 23, 2012 due to frequent drug and alcohol use, inappropriate supervision of the young children, numerous criminal convictions, and severe mental health concerns.

JFS first came in contact with this family in 2006 with regards to another minor child due to factors pertaining to factors mentioned in the previous paragraph. Mother completed case plan in 2007 and minor child was then returned to her. In 2008, JFS had to intervene again in 2008 due to gross sexual imposition of an eight year old child. The children were placed in foster care.

The guardian ad litem at this time recommended that the children were bonded with the foster parents and not the biological parents and permanent custody should be granted to JFS. The trial court awarded permanent custody of the minor children to the JFS for the purpose of the foster family to adopt both minor children who are bonded to them.

The appellant claimed that the court did not make sufficient efforts to reunite the children with their biological parents.

The court found that ample time and opportunities had been made for both parents to complete their case plan. The court finds that the biological parents did not make necessary efforts to complete the case plan and that the permanent termination of parental rights is in the best interest of both minor children.

Hutchison v. Hutchison - BY: Nancy H-M.

Case Brief:                          Hutchison v. Hutchison

Citation:                              Hutchison v. Hutchison, 47 Kan. App. 2d 851 (2012)         

Parties:                                                Jeffrey E. Hutchison v. Karen I. Hutchison

Facts:                                    This appeal is an ongoing dispute over child custody between Jeffrey and Karen. Karen was married in 2000, during the marriage they had one child that was born in 2001. In 2002 Hutchinson filed a petition for divorce in the District Court of Douglas County, Kansas. The district court entered the divorce degree and stated that the child custody, parenting time would be figured out at different time.  The parties agreed upon parenting time which was approved by the district court. Jeffrey and Karen were both granted joint legal custody of E.H. Karen was granted residential custody and Jeffrey was granted weekly parenting time. The custody that was agreed upon also covered holidays, birthdays and vacations. In 2004 Jeffrey filed a motion requesting the district court appoint a case manager and orders the parties to do case management.  Both parties do mediation. In 2007 Susan Kraus saw that the mediation was not working, and thought that case management would be a good idea. The court appointed Cheryl Powers as the case manager. Over the next four years motions were filed by Karen seeking removal of Powers as the case manager. Also requesting the court rescinds the court’s decision to do case management. Karen’s motions were denied. Karen argued the due process claim. In the end Karen did not indicated she was appealing an order or lack of an order regarding the judge’s recusal.

Issue:                                    Is a party’s failure to timely file a motion requesting that the trial judge recue himself or herself from the proceedings below bars that party from raising the issue of an appeal?

Holding:                              No, the court lacks jurisdiction to entertain any appeal of mother’s alleged motion to change

https://a.next.westlaw.com/Document/Ic41da04cc29f11e1b60ab297d3d07bc5/View/FullText.html?originationContext=docHeader&contextData=(sc.History*oc.Search)&transitionType=Document&docSource=83ed20609eed4d8399946ba78e3ed6cf

California: Court of Appeals Held Trial Court Should Have Granted the Father’s Motion - BY: Patty H.

Link for Opinion: http://www.courts.ca.gov/opinions/documents/G045920.PDF

Title: California: Court of Appeals Held Trial Court Should Have Granted the Father’s Motion

The Court of Appeals of California held in re the marriage of Christina Adams and Jack A. Adams v. Jack A. 209 Cal. App. 4^th 1542; 148 Cal Rptr. 3d 83; 2012 Cal. App. Lexis 1078 that the trial court should have granted the motion of the father to have the evaluator removed from the case. Trial court had found the evaluator had lost his objectivity and the findings had been supported by evidence that the evaluator had been acting on the mother’s complaints. The trial court has award the mother sole legal custody based at least in part on a biased report and the statements from the minor child.

Both parties had disagreed fundamentally the best way to raise their highly intelligent son who had been diagnosed at the age of two with Asperger’s Syndrome, which is a form of high functioning autism. Both parents care deeply for their son but have opposed views on the extent of their son’s disabilities and the types of treatment for autism.

The court reversed the order denying the father’s removal motion and the legal custody modification order, including an order for each party to pay half of the evaluator’s fees, with directions that on remand the trial court appoint a successor special master in accordance with the provisions of the stipulated divorce judgment and review the evaluator’s billing statements and determine fair compensation.

Cal. Rules of Court, rule 5.220, governs child custody evaluators appointed under Evid. Code, § 730, and requires them to maintain objectivity, provide and gather balanced information for both parties and control for bias. A court appointed evaluator in a child custody proceeding under the Family Code is prohibited from engaging in ex parte communication with a party’s counsel or with the court, except in limited circumstances.

New York Appeals Court Adheres to Uniform Child Custody Jurisdiction and Enforcement Act for Affirmation of Prior Ruling - BY: Peggy F.

Link for opinion: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00910.htm

Title: New York Appeals Court Adheres to Uniform Child Custody Jurisdiction and Enforcement Act for Affirmation of Prior Ruling

The New York court of appeals affirmed the prior trial court’s decision in Agueda v. Rodriguez, 518360 N.E.2d 00910 (N.Y. 2013) that the jurisdiction of the child custody was correctly dismissed in the state of New York.

The New York trial court granted the father’s motion for dismissal petition for lack of subject matter jurisdiction and denied the mother temporary custody of the child. The mother is appealing the trial court’s decision.

The child had lived at times with both the mother and the father.  At one point when the child was living with the mother, the mother contacted the father regarding having the child visit the father for several weeks at his home in Texas.  The father agreed.  The father then stated that the child would like to continue to reside in Texas.  The mother agreed only to allow child to remain in Texas through the 2010-2011 school year and then the child would be returned to New York.  At the end of the school year, the father notified the mother that the child would not be returning to New York.  The mother filed a petition for custody in the state of New York.  The father submitted a petition for dismissal based on the Uniform Child Custody Jurisdiction and Enforcement Act as the child had been residing with him for more than six consecutive months.  The trial court so ordered the dismissal. 

The court of appeals found no merit to the mother’s appeal based on the lack of jurisdiction as outlined in the Uniform Child Custody Jurisdiction and Enforcement Act.  The appeal was dismissed.

Nonmonetary Care is not a Defense for Failing to Provide Financial Support as Stipulated in Minn. Statute § 609.375. BY: Mary C.

Link for Opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/lnacui2api/api/version1/getDocCui?lni=577J-YJ81-F04H-11DY&csi=7839&hl=t&hv=t&hnsd=f&hns=t&hgn=t&oc=00240&perma=true

Title:  Nonmonetary Care is not a Defense for Failing to Provide Financial Support as Stipulated in Minn. Statute § 609.375.

Citation:  823 N.W.2d 908; 2012 Minn. App. LEXIS 139

The Minnesota Court of Appeals affirmed a lower court decision to exclude evidence of defendant's nonmonetary care for his children that he intended to offer as a defense to the charge of failing to provide care and support for his two minor children in violation of Minn. Stat. § 609.375 (2006). 

"Care and support" in the statute refers exclusively to a person's financial obligations to a spouse or child. Defendant's failure to provide nonmonetary care was not an element of the offense and the State was not required to prove that he failed to provide nonmonetary care to his children.

By complaint filed August 14, 2008, the state charged appellant Larry Allen Nelson with felony failure to provide court-ordered support of his two minor children in violation of Minn. Stat. § 609.375.  Between July 2004 and May 2008, appellant made five payments totaling less than $1,000, all involuntary. As of April 30, 2008, appellant's total arrears were $83,470.27. 

The appellant moved to dismiss the charge against him. Appellant argued that because Minn. Stat. § 609.375 criminalizes the failure to provide court-ordered "care and support" to one's children, the state was required to prove that he failed to provide his children both nonmonetary care (e.g., companionship, supervision, and emotional care) and monetary support.  Because it was undisputed that appellant provided his children with nonmonetary care, he argued that the state lacked probable cause to charge him. The district court denied appellant's motion.

Appellant waived his right to a jury trial and submitted the matter to the court on stipulated facts pursuant to Minn. R. Crim. P. 26.01, subd. 4. The district court found appellant guilty as charged, stayed the imposition of a sentence for two years, placed appellant on probation subject to various conditions, and stayed the sentence pending the appeal.

The two issues before the Appeals Court are did the district court err in its interpretation of Minn. Stat. § 609.375?  Secondly, did the district court abuse its discretion by excluding as irrelevant any evidence that appellant provided nonmonetary care for his children?

In regard to the first issue, the court ruled the statute as a whole and its intended purpose, that "care and support," as used in Minn. Stat. § 609.375, refers exclusively to a person's financial obligations to a spouse or child.  Appellant's contention that he can avoid prosecution under the statute by demonstrating that he has provided nonmonetary care to his children is wholly without merit.

In the second issue, the court found the challenged evidence in this case is irrelevant to prove a violation of section 609.375; the district court properly granted the state's motion to exclude it.

Judgment: Affirmed.

Child Custody state court had residual jurisdiction over custody matter involving an Egyptian family. - BY: Courtney B

Link for opinion: http://scholar.google.com/scholar_case?case=4590415366527786188&q=amin+v.+bakhaty&hl=en&as_sdt=2,45&as_vis=1

 The Louisiana Supreme Court held in Amin v. Bakhaty, 798 So. 2d 75, 91(La. 20001) that the mother of a child who was born in Egypt and his father lived in New Jersey and could come to see his wife and his son. Ms. Amin took her son to Louisiana to visit her sister. Once she had arrived in Louisiana, Ms. Amin contacted her husband to tell him that she was here. Mr. Bakhaty made it sound like he would come to his wife and son, but he went to Egypt and filed for divorce from his wife because she took his son from Egypt without notice or permission from him.  

After Ms. Amin found out that Mr. Bakhaty was not coming to Louisiana to be with her she also filed for divorce in Louisiana. Mr. Bakhaty finally came to come and fight the custody battle over their son. Once they were both in Louisiana the courts took away their past ports so that both the Ms. Amin and Mr. Bakhaty can make sure that both stay in Louisiana.

Louisiana Supreme court ruled in favor of Ms. Amin for her son to stay with her. And both Ms. Amin and her son have to stay in Louisiana to wait any other or future court proceeding about any child custody dealing in the future.

The Supreme court of Louisiana awarded Ms. Amin $850 a month and Mr. Bakhaty is also to provide medical coverage for his son.

                          

J.D. v. Lauderdale County Department of Human Resources and T.T. -BY: Darcy B.

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

Title: J.D. v. Lauderdale County Department of Human Resources and T.T.

The Alabama Court of Appeals held in J.D. v. Lauderdale County Department of Human Resources and T.T. (Alabama. Ct. App. 2011) ordered that the juvenile court vacate its judgment, comply with the requirements of § 30-3B-204, and communicate with the Texas district court to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

In the appeal the father argued that a juvenile court lacked subject-matter jurisdiction to declare a child dependent. The court agreed. The child here was the subject of a Texas district court order awarding custody of the child to the father. The Texas district court had not declined to exercise its jurisdiction over the child. A juvenile court exercising temporary emergency jurisdiction under Ala. Code § 30-3B-204 did not have jurisdiction to adjudicate dependency and award custody by virtue of the limited jurisdiction provided to it. Thus, the judgment of the juvenile court was void.

The child’s mother took him from his home in Texas, where he was residing with his father, and went to Alabama. Under Texas jurisdiction the mother only had supervised visitation of the child. This directly violated Texas’s version of the UCCJEA. The child was then removed from the mother’s possession and taken into custody of Alabama’s DHR. The DHR took the child in custody and filed for emergency temporary custody because the child alleged abuse from his father.

When the father was able to show that the allegations were false and that Alabama did not have jurisdiction to file for temporary custody, because Texas did not give up jurisdiction and because the Alabama court directly violated the UCCJEA the courts rendered the trial court’s decision void.

The complete ruling in this case was that the judgment of the juvenile court was void, and this appeal was dismissed with instructions that the juvenile court vacate its August 20, 2012, judgment. That the court comply with the requirements of § 30-3B-204 by amending the orders entered under its emergency temporary jurisdiction to include the appropriate limitations on those orders, and that it communicate with the Texas district court "to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order."