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.

BY: Emily J.: Title: Washington Court of Appeals determines that it is unconstitutional to deny parental rights to a parent who had never been subjected to a contested custody hearing.

In re the Custody of: T.L., A Minor Child, Pamela J. Link v. Tia Link, No. 28919-2-III (2011)

Link for opinion: http://scholar.google.com/scholar_case/case=18187818267976252582&q=child+custody+

The mother of the minor child temporarily gave up her parental rights to the minor child, T. L. to her mother, Pamela because of a struggle with substance abuse.  The mother, Tia Link, appealed to the Court of Appeals that it was unconstitutional that her parental rights were threatened because she did not meet the requirements necessary of a parent who had previously lost parental rights due to a contested hearing.

In December 2007 Tia Link filed a joinder to her mother Pamela’s petition for custody of her son, T.L.  Tia wrote a handwritten note that explained that she would give temporary custody to her mother Pamela until she was stable.  On February 19, 2008 the trial court found in favor of Tia’s mother Pamela and granted her custody of Tia’s son, T. L.

The federal government of the United States and the State of Washington has recognized the fundamental rights of parents for the care and custody of their children.  These rights are protected by the due process clause of the Fourteenth Amendment and the equal protection clause of both the Fourteenth Amendment and the Ninth Amendment.

The Court of Appeals found no evidence that proved that Tia was an unfit parent or that her custody of T. L. would be detrimental to him.  The trial court never proved that Tia was an unfit parent.  Pamela did not gain custody of her grandson by a contested hearing.  It was unconstitutional for the trial court to hold Tia to the high standard of proving her fitness as a parent who had previously lost a contested hearing of parental custody.

Vanessa J.: Title: Wisconsin: IN THE MATTER OF THE GRANDPARENTAL AND OTHER VISITATION OF S.J., O.J. & A.J.

Link for opinion: http://scholar.google.com/scholar_case?case=2582529827621729719&q=visitation&hl=en&as_sdt=4,50&as_ylo=2013

The Wisconsin Court of Appeals reversed the decision in IN THE MATTER OF GRANDPARENTAL AND OTHER VISITATION OF SJ, Wis: Court of Appeals, 3rd Dist. 2013, that an allowance that the children of Paul Jenson are able to have contact with the mother’s sister, Melissa Dierks and their mother’s cousin, Amanda Bryan when they are in the care of their maternal grandmother, Terri Keopple.

The maternal grandmother, maternal Aunt and maternal cousin once removed initially petitioned for visitation rights of the Jenson children after their mother passed away and their father Paul Jensen stopped all contact with Koepple, Dierks and Bryan.

Koepple was given visitation but Dierks and Bryans’ petitions were dismissed by the court. That same petition giving Koepple visitation also stipulated that Koepple not share information about when she was going to have the children or let Dierks and Bryan visit the children while they were in Koepple’s custody.

Then Paul Jensen filed contempt motions against Koepple because she gave one of the children a phone and allowed the child to text Dierks and Bryan. Koepple then requested a modification that would allow the Jensen children to have contact with Dierks and Bryan. The court lifted the restriction and so allowed the Jensen children to have contact with Dierks and Bryan. Paul Jensen then appealed the lifting of the restriction.

The Court of Appeals of Wisconsin, District III looked over the facts of the case and decided to reverse the circuit court’s decision to take away the restriction of Dierks and Bryan having contact with the children. This is based on both Dierks and Bryan’s behavior showing contempt and disdain for Paul Jensen’s parenting purposes, Dierks’ hostility toward Paul and his girlfriend, Dierk’s anger issues and Bryan taking the children to their mother’s grave without Paul’s permission.

BY: Heidi J.: Title: Hardin County Court of Common Pleas’ final judgment entry of divorce designating the ex-wife custody of the minor child and declining to adopt Plaintiff-appellants proposed shared parenting plan. Has been affirmed.

Link for opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/3/2012/2012-ohio-5133.pdf

Husband filed a divorce complaint alleging gross neglect of duty, extreme cruelty and adultery. Also filed a paternity test.

On December 1^st, 2010, the paternity test was submitted to the trial court indicating that the husband was the biological father of the child.

The magistrate issued a decision awarding residential custody of the child to the mother and denied the fathers motion for shared parenting.

The magistrate concluded that shared parenting would not be in the child’s best interest since the parents could not cooperate or communicator with one another. The father initially destabilized the family relationship and the mother has been the child’s primary caregiver.

BY: Cyndee J.: TITLE: Georgia: Supreme Court Held that the Trial Court didn’t error in the Decision to Deny Father’s Motion to Modify Visitation Rights.

Link for opinion: http://caselaw.findlaw.com/ga-supreme-court/1624792.html

The Georgia Supreme Court held in Vines v. Vines, 292 Ga. 550 (2013) that the Trial Court did not abuse its discretion when denying the father’s motion to modify visitation rights.

Thomas and Anita Vines were divorced in 2005 and Anita was awarded the primary physical custody of the children and Thomas was granted secondary physical custody. Thomas had visitation with the children every other week from Thursday afternoon through Monday morning.  In 2007 Anita presented the court with evidence that Thomas was using pornography in his home when his children were under his supervision.  Thomas and his wife were also using inappropriate language about Anita in front of the children trying to alienate the children from their mother.  The court found that Thomas was suffering from a histrionic personality disorder and was not receiving proper treatment for his disorder.

The Trial Court decided to modify the final divorce decree based off of the evidence provided.  Thomas’s visitation with the children was reduced to 1.5 hour visits supervised by Compassion House and only occurred every other week.  Thomas’s wife was not allowed to participate in the visitations with the children. 

In the 2007 order Thomas was no longer allowed to have visitation with his children until he underwent professional treatment from a qualified therapist and the therapist confirmed that Thomas had improved recognizing his condition, its causes and symptoms, the results from his conditions, and the effect that it has on his children.

In November of 2011 Anita filed a petition to suspend Thomas’s visitation and to modify child support.  Thomas then filed a counterclaim wanting to modify the visitation stating that he wanted more unsupervised visitation with the children.  Thomas had failed to abide by the court orders from 2007; he did not seek out professional help with his personality disorder, and he failed clean up his inappropriate language used against Anita. 

The Georgia Supreme Court agreed with the Trial Court in regard to denying the father’s motion to modify visitation rights based off of the actions of the father.  The Trial Court also did not abuse its discretion because the judge based his decision on the information presented to him along with the actions and comments that the father had made in front of the children with his wife. 

BY: Danica H.: TITLE: Florida: Appeals Court Reverses Holding of Rotating Custody

Link for opinion: https://a.next.westlaw.com/Document/I44cdb34ddcbc11e2a160cacff148223f/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad6040b00000140cb5df18dee2744c4%3FNav%3DCASE%26fragmentIdentifier%3DI44cdb34ddcbc11e2a160cacff148223f%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=2c4116967f85d12ae825a0ea758e828f&list=CASE&rank=5&grading=na&sessionScopeId=e5ea9c155e79a2f997c476a99decc47b&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29

The District Court of Appeal of Florida, First District held in Waybright v. Johnson-Smith, 115 So.3d 445, 38 Fla. L. Weekly D1393 that the trial court erred in categorically excluding alleged police reports of mother’s criminal activity, and the trial court erred in ordering rotating child custody.

The father of the child, Jesse Lee Waybright appealed a final order that established visitation and residential custody with the child (S.L.W) he fathered with appellee. In 2012, Waybright filed a petition to establish paternity and other relief. He requested sole physical custody of the child while allowing the mother only supervised visitation. He claimed that the mother had a criminal history, was unable to support the child financially, and had a transient lifestyle.

At the hearing, Waybright presented police reports that stated the mother committed acts of violence against him. However, the court denied the written statements. The court then ordered rotating custody on a weekly basis with Waybright being responsible for transportation.

On appeal, the Court found that “domestic violence and other forms of violent behavior are probative matters in a child custody case.” They ordered a new trial on the basis that the police statements in regards to the mother’s violent history should have been allowed and that there were no findings to support that either party requested weekly rotating custody schedule.

BY: Deb F.: TITLE: California: Appeals Court Upholds Loss of Parental Custody Rights for Failing to Protect Child in Family Home.

Link for opinion: http://web.lexisnexis.com/research.retrieve?pushme=1&tmpFBSel=all&totaldocs=&tagge...

The California Court of Appeals held in In re T.W., 214 Cal.App. 4^th 1154, 154 Cal. Rptr. 3d 669 (2013) LEXIS 238 that parental custody can be terminated if it is proven that a violation of section 387 of the Welfare and Institutions Code has occurred, and reasonable efforts have been made to prevent the removal of a child from both parent’s custody. 

The four year old child, T.W. was removed from the mother, L.T., when the San Diego Health and Human Services Agency filed a petition in juvenile court.  The petition alleged that L.T. subjected T.W. to a substantial risk of harm after subjecting T.W.’s sister, to serious physical harm and excessive discipline.  The Court placed T.W. in the custody of her father, Timothy. Later it was revealed that Timothy had sexually abused T.W.’s older sister, and she was removed from his custody and returned to the mother.  During the next 12 months, both parents refused to participate in services referred to as “reunification” programs. 

L.T. was found to lack the necessary parental skills to provide the child with safety and security against possible sexual abuse of the father.  She refused to complete court-ordered services and refused to keep the father away from the child.  The father, who is homeless refused to complete sex offender programs and violated a court order against unsupervised visits.   

The Court found the social worker’s testimony credible and substantial evidence to support a violation of section 387 of the Welfare and Institutions Code.  They applied the procedures and protections of section 361 that required, “before a minor can be removed from the parent’s custody, the court must find by clear and convincing evidence that there is or would be a substantial danger to the physical health, safety, protection, or emotional well-being of the minor if the minor were returned home.” Welf. & Inst. Code § 361, subd. (c)(1). The court relied on this high standard of proof by which a removal is made because it “is an essential aspect of the presumptive, constitutional right of parents to care for their children.” ( In re Henry V., 119 Cal.App.4^th 525).  When the parents cannot care for their children or disregard efforts to reunite with their children, additional action is required.  

The court found substantial evidence to supported that reasonable efforts were made to prevent or eliminate the removal from L.T.’s custody and both parents consistently ignored the restrictions on visits and demonstrated unwillingness to participate in any type of services.

BY: Lindy E.: TITLE: Parties: Anthony Hirtz, Appellant, v. Cameron Hirtz, respondent

Citation: 969 N.Y.S. 2d 553, 108 A.D. 3d 712, 2013 N.Y. App. Div. LEXIS 5370

Parties: Anthony Hirtz, Appellant, v. Cameron Hirtz, respondent

Facts: In July of 2009, the parties agreed to joint legal custody of their two children with primary physical custody to the father. The parties divorced in 2010 and the consent order was incorporated but not merged into the judgment of divorce. In 2012, the father, who is employed with the United States Military, was sent military orders reassigning him from West Point in New York, to Fort Bragg in North Carolina. The father filed an instant petition for permission to relocate to North Carolina with the parties’ two children; which was later denied in a Family Court hearing.

August 9, 2012, during that Family Law hearing when the court denied the father’s petition to move the two children to North Carolina with him, the court granted sole legal and physical custody to the mother with visitation to the father, and also set forth a custodial plan that would take effect in the event that the parties decided, in the future, to reside in the same state.

Rational: The Court thought that the move to North Carolina would have a negative effect on the children’s relationship with their mother, so the Court decided that it would be best for the children to remain in New York with their mother.  

Prior Proceedings: Mr. Hirtz, the appellant, petitioned to relocate with the parties’ children and the court had originally denied the petition and modified a prior order so as to award the appellee mother sole legal and physical custody of the children with visitation to him, and set forth a custodial plan that would take effect in the event that the parties decided, in the future, to reside in the same state.

Holding: The order was modified by deleting the modification and the future custodial plan, and as so modified, the order was affirmed.

Link where I found the case: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/

BY: Lauren D.: TITLE: IN RE THE CUSTODY OF DTR v. Reiter, Minn: Court of Appeals 2012

In the Court of Appeals for Minnesota, an appeal was brought to court for a paternity dispute between Michael Richards, the petitioner, and the respondent Derek Reiter.

Lynette Marthe and Derek Reiter began dating in 1996 and then were engaged in 2002. During August 2003, Marthe who was still engaged to Reiter met Michael Richards and started having sexual relations with him. Marthe found out that she was pregnant and she also believed that Reiter would be the father. In November of 2003 Marthe and Reiter got married and the child D.T.R was born on May 13, 2004. Reiter’s name was put on the birth certificate. Reiter was a very involved farther to the child, he also supported him financially. In 2006, Reiter and Marthe had another child together.

Marthe and Richards, once D.T.R was conceived they were in little to no contact at the time. They were only trading a few e-mails and text messages. Richards was aware that Marthe was married to Reiter and had a child, but Richards did not know that the child was in fact his biological child.

In spring 2008, D.T.R turned four; Richard was told that he may be in fact D.T.R’s biological father. He then took a DNA test, and found out on July 2, 2008 that he was the child’s biological father.

In 2008, Richards served Marthe and Reiter with a petition for the custody of the child, D.T.R. This was filed with Wright County District Court. After the filed petition in the fall of 2008, Reiter filed for divorce with Marthe. Marthe and Reiter were granted equally-shared parenting time of D.T.R and his brother for a temporary basis. On April 20, 2009 the district court issued a temporary order that granted Richards parenting time with D.T.R one weekend per month so that Richards would be able to start a relationship with the said child. Richards, while the trial was going on only participated in the court-ordered weekends twice. The agreement with Marthe, he spent and additional time with D.T.R which included two or three overnight visits. With visits to the therapist, D.T.R was eventually told that Richards was his biological farther and not Reiter.

In December 2009, a district court held an evidentiary hearing to determine which of the two men should be adjudicated the father of D.T.R.

Under Minnesota Law, the parties were told that they were both presumed fathers.  D.T.R. lived with Reiter since birth and Richards first met D.T.R. and became aware that he may be his farther in spring 2008; Reiter learned that he was not D.T.R.'s biological father in July 2008. Richards decided that he wanted to be in D.T.R life and the child knew that Richards was his biological father.  Marthe had said that she wanted D.T.R to be involved with Richards and Reiter.

The district court adjudicated Reiter as D.T.R’s father and dismissed the petition with prejudice. Marthe then appealed this adjudication. The court dismissed the appeal for lack of standing. The Supreme Court reversed this claim and then said that Marthe had standing because of “the determination of paternity directly impacts her responsibility for child support and her rights related to child support, and directly impacts her rights related to care, custody, and control of her child.”

Under the Act, Richards and Reiter are both presumed fathers of the minor child. Richards is a presumptive father because of conclusive genetic testing. The district court found that with the “weightier considerations of policy and logic support” they determined that Reiter is D.T.R’s father. Even with biology is not being used with the paternity, the court said that they considered and gave a great thought to D.T.R and Reiter relationship. The court also thought of the best interest of the child. The court said that D.T.R and Reiter have, “spent the last five and half years forging a deep and loving father-son relationship.” Reiter also with being in the child’s life all these years, the court had said that Reiter has provided D.T.R with emotional, physical, and financial support throughout his life.

This claim is supported under Minn. Stat. § 518.17. The court also found that D.T.R is close with his brother, who is also Reiter’s biological son, and that D.T.R has also called Reiter “Dad” his whole life.

The court of B.J.H affirmed the district courts conflicting paternity conclusions that were in favor of Richards, the biological father. This finding was "consistent with the policy of not unnecessarily impairing blood relationships and is logically based on the facts." D.T.R was at the time only four years old when he had met his biological father, Richards and had only known Reiter has his father. The court B.J.H, the Guardian Ad Litem for the child supported the adjudication of paternity in the biological father which was based on the best interest of the child.

The district court applied the statutory standard that policy and logic were in finding for Reiter being favored as D.T.R’s father. The district court affirmed the adjudication of Reiter as D.T.R’s legal father.

Link for opinion: http://scholar.google.com/scholar_case?case=13445312352992757764&q=child+custody&hl=en&as_sdt=4,24&as_ylo=2012

BY: Jacob B.: TITLED: Louisiana: Appeals Court Holds that Mother will remain in Custody of Two Children.

The Louisiana Court of Appeals held in Blocker v. Ferguson, 98 So.3d. 439 (La. Ct.App. 3 Cir. 2012) that the mother will remain in custody of her children with visitation given to their father of ten hours per month because it was in the best interest of the children. 

The couple lived together in Concordia Parish until they separated in April of 2011.  At the time of the separation both parties filed for sole custody of the two children.  On May 5, 2011, Jesse Blocker filed a petition for sole custody of the couple’s two children.  He alleged that Kimberly Ferguson abused one of the sons.  Kimberly Ferguson answered and reconvention demand on June 21, 2011.  She stated she wanted full custody of the children because of a nolo contender plea by Jesse Blocker to the delinquency of a juvenile in Morehouse Parish.

Jesse Blocker appealed the case because of error based on the court granting sole custody to the mother and not awarding at least joint custody status to Jesse Blocker.  The trial court also erred according to Jesse Blocker, by imposing supervision requirements on the visitation privileges.  Finally, the trial court erred in providing for only ten hours per calendar month of visitation of the two children. 

The court disagreed on Jesse Blocker assertions of granting sole custody of the couple’s children to Kimberly Ferguson.  The standard of custody matters has been stated clearly in Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365: The trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial court's determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.

The court also disagreed on Jesse Blockers assertions of imposing supervision over his visitation with his children.  According to Gowins v. Gowins, 391 So.2d 48, (La.App. 3 Cir. 1980), a trial court is vested with a broad discretion in its award of visitation privileges to a parent.

The court also disagreed on Jesse Blockers assertions of providing only ten hours per calendar month of visitation with his children.  A court shall be guided by several best interest  factors in deciding whether to deny or limit visitation according to Maxwell v. Leblanc, 434 So.2d 375 (La. 1983) and La.Civ.Code art 134. 

The Louisiana Court of Appeals affirms the decision of the lower court.

BY: Courtney B.: TITLE: ALABAMA: Father knew where child in day care snatching case was, mother’s attorney contends

In the case of Father knew where child in day care snatching case was, mother’s attorney contends Vertrees v. Rupe (July 2013) the father of 5 year old, Rebecca Vertrees is being charged for allegedly knowing where his daughter was the entire time she had be reported as abducted from the child care center, Training Wheels Child Care Center located in Mobile, Alabama. On June 14, 2013 the child had been reportedly snatched at her day care center, the custodial parent, Aric Vertrees had given no evidence of who may have taken the girl. The day care staff had stated that they received a phone call from the father giving permission for an older lady, named as Cynthia Rupe’s mother. Cynthia is a noncustodial parent of the little girl. The staff of the day care had stated that there was a younger lady in the passenger seat of the vehicle that left with the child, this lady is suspected to be Cynthia Rupe.

Attorney of Cynthia, Michael McDuffie, states that Mrs. Rupe is being charged with custodial interference charges. However, she states that Mr. Vertrees was aware of his daughter’s whereabouts the entire time. She stated that Aric was not always sure that Rebecca was his daughter, due to Mrs. Rupe being with another man previously. A co-defendant, William Rupe, had made a statement that Vertrees “knew where the child was and that he had wanted her to be with her mother”.  Mr. Rupe is being charged with similar charges as Cynthia Rupe as he is claimed to have worked together in the abduction with Mrs. Rupe.

The Mobile County District Judge Bob Sherling is not impressed with the case and the parties, he feels their stories do not line up. He has given William Rupe a bail bond of $7500 but has refused to reduce a $30,000 cash-only bail bond for Cynthia Rupe. The judge does not trust any of the electronic safeguards for this case. He stated that the safeguards “do not give me and assurance that we will not be dealing with the same thing next year” and that “she has defied a court order and disappeared with the child”. 

On July 25, 2013 Mrs. Rupe had called WALA Fox10 and stated that she had the little girl and that she was not going to return her. The little girl had finally been tracked down and located in Lancaster County, Pennsylvania on July 31, 2013 by a U.S. Marshall.

LINK FOR OPINION: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/