BY: Diann Z.: Title – California: Court of Appeal Finds Agency Did Not Make Good Faith Effort, Awards Additional Services to Father

Link for the opinion - http://www.courts.ca.gov/opinions/archive/D062170.PDF

In the case of Christopher D. v. Superior Court of San Diego Cnty., 210 Cal.App.4^th 60 (Cal.Ct.App. 2012), the California Court of Appeal determined that the San Diego County Health and Human Services Agency had failed to provide reasonable child visitation services to the father while he was a patient in a residential drug rehabilitation center.    

San Diego County filed for termination of the father’s reunification services and paternal rights due to non-completion of drug rehabilitation and additional drug charges.  The father filed a petition to stop the termination of services and paternal rights.

After an arrest for drug charges, the father was granted child visitation with his minor daughter during his incarceration and subsequent residential drug treatment.  The father left the rehabilitation facility two days prior to completion, used drugs, was re-arrested and re-incarcerated.  At a review hearing upon the father’s release, the father contested that he did not receive reasonable child visitation services during his in-patient drug rehabilitation, and asked for additional reunification services.     

Family reunification services include treatment and counseling plans for parents to facilitate their return to the family unit.  Child visitation services are an important factor during treatment and rehabilitation.  Visitation helps maintain the family bonds which will facilitate a successful parent-child reunification.  

The California Court of Appeal was faced with deciding if the San Diego County Health and Human Services Agency had delivered reasonable child visitation services to the father during his in-patient rehabilitation stay.  According to California’s Welfare and Institutions Code § 361.5, it is wrong to deny child visitation to a parent receiving reunification services unless there is sufficient evidence that indicates such visitation would be detrimental to the child. 

Upon extensive review of the circumstances, the Court of Appeal held that the limited child visitation the father received during his rehabilitation was extremely adverse to him.  The court cited the reunification plans which stated the father was to have weekly supervised visits – he had two occurrences during his 12 week stay despite repeatedly asking his social worker for additional visits.  The court found that the social worker’s excuses of having too full a caseload and of the father’s facility being too far away did not provide a good faith effort to fulfill the visitation provisions of the reunification plan.  

The court subsequently reinstated the father’s reunification services, including child visitation during future drug rehabilitation.  The court also cancelled the county’s petition for termination of paternal rights against the father. 

BY: Barbara W.: Title: Nebraska Child Custody-Sole Legal and Physical or Joint Custody

Link for opinion: http://www.leagle.com/decision/In%20NECO%2020090130285

The Nebraska District Court of Appeals held in Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009) that there was no error in their decision to grant full physical and legal custody of a minor child to the mother. Sohel Mohammed Imroz is appealing the Douglas County District court’s decision to award full legal and physical custody of his son to his ex-wife.

  In December of 2004 Kamal moved out of the apartment she shared with her Husband and into her parent’s home with her son. The couple lived separate lives until July 2006 when Kamal filed for divorce. She filed a motion for a restraining order against her Husband and for sole legal and physical custody of the son, stating her ex-husband could be aggressive and angry, and she feared for her son’s safety as well as fearing he would take their child out of the country to Bangladesh without her consent or knowledge.

Other allegations against her ex-Husband included that he would lock her in the apartment for the day while he was at work, that he did not provide for her during their marriage and that he was an Islamic Fundamentalist and wished to raise their son as one. Kamal feared her ex-husband would take their son out of the country to Bangladesh without her knowing, or with her consent. Imroz denied the claims.

The facts of the case were that Kamal was working from home and was the primary care-giver for their son. She is an International Student, who is sponsored by her Mother and is seeking to retain her student visa. Imoz is a U.S citizen, working full time. He is seeking joint custody, or sole custody of their son. Both parties’ attorneys have had to be involved with visitation decisions due to high tension between the couple.

The courts held that though both Kamal and Imroz were fit to have custody of the child, joint custody was not an option due to the tension between the parents. For their son’s best interest they decided the child should remain in the Mother’s sole custody, as she has a much more flexible schedule working from home, awarded liberal visitation to Imroz, and that neither party will remove the child from the country without the others written consent.

Neb.Rev.Stat. § 42-364(3) (Reissue 2008) States (3) Custody of a minor child may be placed with both parents on a joint legal custody or joint physical custody basis, or both, (a) when both parents agree to such an arrangement in the parenting plan and the court determines that such an arrangement is in the best interests of the child or (b) if the court specifically finds, after a hearing in open court, that joint physical custody or joint legal custody, or both, is in the best interests of the minor child regardless of any parental agreement or consent.

BY: Scott T.: Title: Harrison v. Morgan Appeal from the District Court of Texas County, OK affirmed in part, reversed in part and remanded regarding relocation issues

Link for opinion: http://www.oscn.net/applications/oscn/deliverdocument.asp?id=452372&hits=

THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I held in Harrison v. Morgan 2008 OK CIV APP 68 191p.3d 617 case 104342 the mothers request to modify the existing custody agreement was not affirmed we conclude that the evidence will be reversed with the case being remanded for modifications in visitation orders.

Bonnie Harrison (Morgan) and Curtis Morgan chose to dissolve their marriage in 2000. Curtis Morgan father is in the appeals process of a court order which is denying him to take custody of his children and move from Guymon, OK to Poteau, OK. Curtis had temporary custody of both children in 2003. On March 18, 2004 the trial court approved both parties request to terminate joint custody and granted sole custody to the father allowing the mother to have visitation rights.

Curtis waited for two years to move due to 43 O.S. Supp. 2002 § 112.3 gave notice of his intent to move and moved to Poteau, OK. The mother decided to file an objection to modify custody. The trial court did not modify the custody agreement but upheld her objection to relocation.

BY: Alesha Q.: Title: Mississippi Court of Appeals Awards Primary Physical Custody of Child to Mother

Link for opinion: https://a.next.westlaw.com/Document/I00e2b3c043cd11e2a531ef6793d44951/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad6040b00000140bb31fee3d9df0b3a%3FNav%3DCASE%26fragmentIdentifier%3DI00e2b3c043cd11e2a531ef6793d44951%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=ac865e4e8083c057e8724cf027d07cfc&list=CASE&rank=5&grading=na&sessionScopeId=f81d85088ee7bdcdef4c713c99c209ab&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29

The Mississippi Court of Appeals held in Jordan v. Jordan, 105 So. 3d 1130 (Miss. Ct. App. 2012) Ronald Jordan, who divorced from his wife Stacy Jordan in 2010, was granted visitation with his son and was required to pay some of his ex-wife’s attorney fees.

In 2007 the Jordans were married; in November of 2009 Stacy gave birth to their son. Although the couple was separated prior to their son’s birth Stacy did not file for divorce until December of 2009, and the divorce was finalized in 2010.

Stacy Jordan had been married once before her marriage to Ronald and had two children with her previous husband, whom live with her. Her ex-husband Kevin McQuirter testified that Stacy was a good mother and he was very pleased with the care she provides for their two children. Ms. Jordan had also been a stay-at-home mom since the birth of her child with Mr. Jordan, with intentions of going back to work. At the time of court Stacy had found a job but had yet to start working. Her future boss did however testify that Stacy’s work schedule would be very flexible and her job would allow her to bring her son with her to work every day.

The court gave Stacy primary physical custody of the child, allowing Ronald visitation rights every other weekend, one day during each week, one week around Christmas, alternating Thanksgiving and spring holidays, father’s day, visitation on the child’s birthday from 4p.m. to 7 p.m. and an extra weekend in the summer until the child reaches first grade at which point the parents will alternate every other week. Stacy was awarded primary physical custody because while both parties were natural in most of the Albright factors Stacy was favored in three of them; age of the child, continuity of care prior to separation, and employment responsibilities.

The Court of Appeals affirmed the judgment of the lower courts granting primary physical custody of the child to Stacy and asked Ronald Jordan to pay his ex-wife $100 a month until he paid her a portion of her attorney’s fees back.

BY: Korinn P.: TITLE: Tennessee: Appeals Court decided to transfer the matter to Davidson County, Juvenile Division

http://www.tsc.state.tn.us/sites/default/files/ramonwilliamsopn2.pdf

The Tennessee Court of Appeals held in Williams v. Randolph, No. E2012-02110-COA-R3-CV (Tenn. Ct. App. 2013) that the Father, Ramon Williams, wanted to modify the custody of the minor Child and the judge, John W. McClarty transferred the case to the Davidson County Juvenile Court. The Father appealed this decision despite that it is the better forum for any further proceedings.

The Father had filed a petition with the juvenile court in Davidson County, Tennessee asking the Court to deny the Mother’s request to move to Colorado with the minor Child, Iyana, and to grant the Father primary residential parent of the minor Child.

The case was then transferred to Bradley County, Tennessee, and a hearing was ordered to be heard in November of 2009. The Court found that it was in the best interest of the Child, to change custody from the Mother to the Father. The ruling was then appealed to the Court of Appeals that reversed the custody change and the Juvenile Court of Bradley County and set the hearing for visitation for the Father and the Child.

The trial court did limit the testimony and evidence to the date of June 8, 2001, which is the date that the court order was entered. The custody of the Child was then returned to the Mother. The Father had no reason to seek any action in the trial court because the Father had custody of the Child until the court reversed its decision.

The Mother did move back to Davidson County. The Mother, Child, and the rest of the Child’s family reside in the Nashville area, with the exception of the Father.  The evidence does support that it would be logical that the case should be moved back to Davison County Juvenile Court because it would be more convenient so that the court can determine any future issues that can arise.

The trial court decided to transfer this matter to Davidson County to conduct any further proceedings. The costs of the appeal were assessed one-half to the appellant, Ramon Williams and one-half to Dana Randolph, the appellee.

BY: Damita N.: Title: Supreme Court of Nevada denies father writ of mandamus challenging issuance of a fictitious address.

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

299 P.3d 378: 2013 Nev. LEXIS 32: 129 Nev. Adv. Rep. 28

The father petitioned for a writ of mandamus against the Nevada Secretary of State to remove the mother from a fictitious address program.

The father and mother have a child together, but after they separated, the mother obtained a temporary restraining order against the father. When this order expired, the court awarded them both joint legal and physical custody. Five months later the mother petitioned for and was granted a fictitious address, after she claimed being a victim of domestic assault and stalking. The father responded by seeking a writ of mandamus to remove the mother from the fictitious program because of his rights as a custodial parent of being allowed to know where his child is, even when in the mother’s physical custody, which then made the Secretary a party to the writ petition as a respondent, being charged with keeping the address a secret, with the mother becoming a real party in interest.

In order for the mother to receive the fictitious address, she had to submit an application that showed specific evidence that she had been a victim of domestic assault and stalking to the Nevada Secretary of State, who then must approve the application and issue the fictitious address. The mother provided the temporary restraining order. The Secretary is then only allowed to release the address to a law enforcement agency or by lawful order of a court of competent jurisdiction, and then only to the person identified in the order.

The courts found that the Nevada Secretary of State followed all proper procedures in issuing the fictitious address which then makes it where the father must provide proof that a writ of relief is warranted. However, in seeking disclosure of the address, the mother had to have proof the co-parent was the perpetrator of the domestic violence, which she did by providing a copy of the temporary restraining order, which is consider that acceptable proof.

The courts denied the petition for a writ of mandamus because it would require making factual determinations and as an appellant court they could not do this, it would have to be done in a district court.

BY: Jackie M.: TITLE: Stephanie F. vs. George C., 270 P. 3d 737 (2012)

LINK:

http://scholar.google.com/scholar_case?case=18294456417537784415&q=alaska+child+custody&hl=en&as_sdt=4,2&as_ylo=2012

CITATION:

Stephanie F. vs. George C., 270 P. 3d 737 (2012)

ISSUE:

Under Alaska law, should a parent be awarded full custody of their children if it is in their best interest, even though they have a history of domestic violence?

KEY FACTS:

Stephanie and George separated in August of 2006 and both sought legal custody of their two children, Elizabeth (1999) and Brian (2002). Elizabeth has a neurological disorder called Nonverbal Learning Disorder (NLD) and Brian has no special needs.

While in Kindergarten, Elizabeth was assaulted by classmates multiple times and this was the beginning of the failing marriage for the two parties. Stephanie filed for a restraining order against George in August of 2006 alleging of two incidents. Stephanie obtained an ex parte domestic violence protective order and afterwards, George filed for divorce and sought shared legal and physical custody of their two children. Stephanie sought sole physical and legal custody in her answer.

The superior court appointed Pamela Montgomery to conduct a custody investigation in August 2007 to make a custody recommendation. She was aware of the domestic violence history and observed there was no hint of violence.

Dr. von Hippel (psychiatrist) evaluated Elizabeth and explained that she required special attention and services such as an Individualized Educaion Plan (IEP) at school

Montgomery recommended shared physical custody of three days per week/four days per week schedule. Since Stephanie was more involved in the day-to-day caretaking at that time, the report suggested she receive interim legal custody.

In January 2008, the custody investigator testified that for children with difficulties like Elizabeth, the recommendation is to “get them to school early, and be ready to roll in the morning.” In the Fall of 2007, Elizabeth was tardy 37 days and absent seven days out of the 85 days in school while in Stephanie’s Custody. When asked about them, Stephanie stated that Elizabeth was very resistant.

George started therapy for Elizabeth’s assaults in May 2006 from his private therapist, Lisa Turner. She testifies that George completed 12 sessions and has made progress on improving his empathy skills.

In 2008, Stephanie relocated to Anchorage due to a pay increase in her job and also provided that they wouldn’t need to travel there for Elizabeth’s therapy. She enrolled the kids into a German immersion charter school despite the principal’s objections. He stated that the school had “minimal special education services” and could not admit Elizabeth without her IEP.

She enrolled them anyway and the school could not keep up with Elizabeth’s special needs and she did not fit in socially. Brian was also having a hard time with this school and would often isolate himself from the activities. After one month, Stephanie was informed that she would have to take the children out of the school.

Montgomery’s updated custody report stated that Stephanie was unwilling or unable to accept responsibility while the children were in her care. Her recommendation was putting the kids back in the Homer school under George’s primary physical custody.

In June 2010, the superior court issued findings of fact, conclusions of law, and a final custody order granting sole legal and physical custody of both children to George.

CONCLUSION:

The superior court's written findings of fact reflect its analysis of the statutory "best interest" factors under AS 25.24.150(c) for both children, including consideration of Elizabeth's special needs. In particular, the court found that arriving late to school was "very disruptive" for Elizabeth, and that Stephanie failed to meet Elizabeth's basic and critical need to arrive at school on time, "depriv[ing Elizabeth] of academic and social opportunities."

HOLDING:

Remanded so the superior court can consider whether George rebutted the presumption.