New Hampshire: Supreme Court Holds that Burden of Proof of Childs Safety and Best Care Lies with Guardian. By: Taylor W.

Link For Opinion: http://scholar.google.com/scholar_case?case=155223627148019717&q=child+custody+cases+%22new+hampshire%22&hl=en&as_sdt=4,30&as_ylo=2011&as_yhi=2012

                                                                                                                                

The New Hampshire Supreme Court held that in  In re Guardianship of Reena D. 2010-187, 12/28/11 , the burden to prove where the best care of the child is, lies with the guardian.

           

The child, Reena, was given to her paternal grandparent for care while her parents went to India to visit her mother’s family and start a tile company. The paternal grandparents, at the request of the parents, filed for guardianship and were granted it in March of 2002. In March of 2003, the grandfather dies making Reena’s grandmother her sole legal guardian.

In 2003, the parents, or Petitioner, and Reena's actual parents, filed a motion to terminate the guardianship saying the purpose had been filled. The court denied the motion because of the respondents, or grandmothers, motion to dismiss upon Reena’s parents not submitting alcohol tests. At this point, the Petitioner and his wife did not make an attempt to renew the motion until 2007.

The trial court ruled that the petitioner and his wife had the burden to show by a preponderance of the evidence "that substitution or supplementation of parental care and supervision [was] no longer necessary to provide for [their daughter's] essential physical and safety needs" and that terminating the guardianship would not "adversely affect [their daughter's] psychological well-being."

 The petitioner first argues that the trial court erred when it failed to terminate the guardianship because he and his wife did not knowingly, intelligently and voluntarily consent to it in 2002. However, he makes no mention of the 2003 decision to have Reena stay with her grandmother.

The case then went to the New Hampshire Supreme Court and the Petitioner claimed that the trial court violated his state and federal constitution rights when they said the burden of proof was with them to bear in terminating the guardianship. The Supreme Court found that the burden does in fact lie with the guardian of the child and the case was vacated and remanded.

Nebraska High Court Applies Common Law of “In Loco Parentis” to confer standing on former Same-Sex Domestic Partner in Child Custody Dispute. By: Jack'que S.

Link for opinion: http:// www. Fed-soc.org/Nebraska-high-court-applies-common-law-doctrine

The Nebraska High Court held in Latham v. Schwerdtfeger, 282 Neb. 121(2011). On December 14, 2009, Latham filed a complaint for child custody and visitation. On January 7, 2010, Latham file a motion for parenting time. Then on February 12, Schwerdtfeger file a motion for a summary judgment[1].                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

The court overruled the motion from the bench. That the partner Latham was not entitled to child custody and visitation rights, under “the in loco parentis doctrine”[2] stating this did not apply to her because there is “no genuine issue as to a material fact” and Latham is neither the biological nor adoptive parent.

However, Latham alleged under the common-law right to standing based on the doctrine of In Loco Parentis, she was in the loco parentis to (P.S.). The right under this doctrine said “that nonparent where to exercise the rights is in the best interest of the child. In addition, Latham was seeking custody and visitation of a minor child under their jurisprudence applying the doctrine of in loco parentis. Latham establish that she meet all guidelines of jurisprudence and was entitled to custody and visitation as one who stands in loco parentis.

The courts reverse the granting summary judgment in favor of Schwerdtfeger. The court was convinced that Latham has raised genuine issues of material fact. The court realized that they were paying more attention to the end of relationship with both parties instead of the best interest of the child. Latham was involved in everything concerning (P.S.) from the conception all down to all parental duties.

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[1] A court order ruling that no factual issues remain to be tried and therefor a cause of action or all causes of action.

[2] The legal doctrine under which an individual assumes parental rights, duties, and obligations without going through the formalities of legal adoption.

Missouri Court of Appeals denies grandmother visitation rights. Katie R.

Link for Opinion: http://scholar.google.com/scholar_case?case=17191970844846018867&q=Missouri+child+visitation+rights+cases&hl=en&as_sdt=2,50&as_ylo=2011 

The Missouri Court of Appeals held in Hauter, et al v. Barnes, No. SD30830 S. Dist. 2d (Mo. Ct. App. 2011) found that the grandparent of said children (A, B, and C) does not get visitation rights even though grandmother raised A from birth to age 5 as legal guardian.

Father’s mother petitioned the court to have visitation rights to children and she felt the court erred in the ruling. Stating that the court misapplied the law and they abused its discretion in finding visitation to be in the best interest of the children.

There were numerous occasions when the grandmother would call hotline call for child abuse and neglect and they would come out to investigate and find that the call was unfounded. The first time was when the grandmother called reporting the parents abused and neglected child A. It turned out no evidence was found to support that.

The second time was during a scheduled visitation that was granted before this decision. Grandmother called the hotline again, this time saying the father sexually abused child B. That too was unfounded.

With all the false claims of abuse and neglect the parents of children A, B, and C, feel that it is not in the best interest of the children to have visitation with grandmother whether it is supervised or unsupervised. They feel that they cannot trust her with their children and have her not put ideas in their head. The oldest child (A) is already aware of relationship between the parents and grandmother. The parents did not want it to go further.

The courts ruled in favor of the parents, even though they were separated, they both wanted and agreed that their grandmother should not be allowed visitation rights.

Labels for post: grandmother, visitation, Missouri, and child.

 

Massachusetts: A complaint for modification, filed on April 21, 2006, was heard by David G. Sacks, J., on a motion for summary judgment. By: Paula M.

Link for opinion: http://www.massachusetts-divorce.com/cases/RS-V-MP.htm  

Citation: R.S. vs, M.P. Docket 07-P-619  March 11, 2008 – October 9, 2008, Hampden County

The Probate court dismissed the complaint for modification filed by Gelinas, former husband, wherein he sought an increase in visitation with the two minor children of the parties marriage.  Vacating the judgment and remand the matter to the Probate and Family Court for further proceedings consistent with this opinion. 

The summary judgment reflect the following. Two children, were born of the parties marriage, the court ordered that the mother was to have physical custody of the children and that the father was to have liberal and reasonable rights of visitation, including , without limitation.

Arguments about the mother not having enough time to spend with children, due the birth of her younger children, that the judge wanted affidavits  from the children.  In his judgment the father could not demonstrate a material and substantial change in circumstances this case so as to require modification of visitation.

Concerning the mothers availability for the parties children in light of her new family obligations and the  impact on the parties children of any possible inattention by the mother.

The judgment on motion for summary judgment regarding visitation is vacated and the matter is remanded to the Probate and Family Curt for further proceedings consistent with this opinion.

The husband was to have the children every other weekend from Friday evening at 6:00 p.m. until Monday evening after dinner or until 7:30 P.M., providing he took Monday off from work otherwise the children were to be returned to the mother Sunday evening.  The husband was also to have the children on and additional midweek overnight during every alternating week at times specified by the judgment. In addition the judgment contained provisions for visitation with the children during vacations and on holidays.

The father was granted leave to file a supplemental appendix subject to possible further action by the panel designated to decide the appeal. This was to coordinate visitation schedule adjustments to extensive changes  in parenting time and the children’s schedules.

Although the father  asserts on appeal that the children’s statements are admissible as evidence of their states of mind, his opposition to the mother’s motion for summary judgment suggest that he was seeking to have the statements used as substantive evidence.

The court do not rule out the possibility  that a grant of summary judgment may be appropriate where the only evidence in support of a complaint for modification of visitation is that the custodial parent has remarried and has had additional children.

While the court conclude that summary judgment should not have entered for the mother, we express no opinion whether the complaint for modification should be allowed.

Maine: Judgment affirms Grandparents Appeal on Visitation Rights. By: Tracey M.

Link for opinion: http://scholar.google.com/scholar_case?case=15130490503433092290&q=Katon+v.+Brandi+ME+2011&hl=en&as_sdt=2,24

The Supreme Judicial Court of Maine held in Katon v. Brandi, 2011 ME 131 (Me Sup. Jud. Ct. 2011) that the grandmother was not entitled to visitation rights.

The maternal grandmother appealed from the District Court’s dismissal of her petition for visitations. This is the third time Katon requested visitation rights of her granddaughter from her daughter and former son-in-law.

Laurie Katon’s granddaughter resided with her from August 2008 to August 2010. Katon continually undermined the father’s determinations to have custody or visitations with his child. Katon was diminishing the relationship that the paternal father was attempting to have with his daughter.

Katon is seeking grandparent visitation rights under the Grandparents Visitation Act, 19-A M.R.S. §1803 (2010).  For the majority of the granddaughter’s life Katon held a typical grandparent relationship. By withholding the granddaughter from the father Katon could not establish standing. Grandparents may act as de facto parents granting them rights under “urgent reasons”. The court will not allow “urgent reasons” in this situation due to Katon with holding a child from their parent(s). The entry is Judgment affirmed.

Labels for the post: child visitation, grandparent’s visitation, Grandparent Visitation Act

The Magistrate’s order dismissing Belinda Alexia Rodriguez’s petition to modify visitation. By: Kara L.

http://scholar.google.com/scholar_case?case=16417342635292085834&q=Idaho+Cases+child+custody&hl=en&as_sdt=4,13&as_ylo=2011

Court of Appeals of Idaho Ryan J. Rodriguez, Plaintiff-Appellant v. Belinda Alexia Rodriguez, Defendant-Respondent. 249P.3d 413(2011) No. 37375.

The Idaho Court of Appeals held in Ryan J. Rodriguez v. Belinda Alexia Rodriguez 249p.3d 413 (2011) the mother was ordered to pay child support of the amount of $289 a month. She failed to pay the child support. Ryan filed a motion to modify custody for full physical custody and Belinda failed to show up and a warrant was issued. She was sentenced to forty-five days in jail.  During her time in Jail their son was diagnosed with leukemia. During this time she was granted temporary additional visitation while her child was in the hospital. During the case Belinda Alexia Rodriguez filed for a motion to modify her child support, showing that it was impossible for her pay the child support. The magistrate failed to make a determination of whether it was presently impossible for Belinda to purge herself of her contempt of court. The magistrate erred in failing to make this determination before it decided whether or not to conduct a hearing on Belinda’s motion to modify child custody.

Ryan is seeking attorney fees on the appeal and all court costs.

Conclusion they granted that the magistrate erred in failing to conduct a hearing on Belinda’s motion to modify her child custody without first determining whether it was impossible for Belinda to purge herself of her contempt. They affirm the district court’s decision and remand to the magistrate for further proceedings. Cost on appeal, but not attorney fees, are awarded to respondent Belinda Alexia Rodriguez.

Chief Judge GRATTON and Judge GUTIERREZ concur.

Illinois: People v. Strelioff: Mother found guilty of Parental Abduction. By: Alicia K.

Link for opinion: www.state.il.us/court/R23_Orders/.../2011/.../2091220_R23.pdf

The Illinois Court of Appeals held in People of Illinois v. Strelioff 2011 IL App (2d) 091220-U, that the trial court did not err in denying motion to dismiss indictment, that there was sufficient evidence to convict Crystel Strelioff of four accounts of child abduction and award ex-husband Brian Strelioff expenses that were incurred during search for children. The courts sentenced defendant to two concurrent terms of three years on 2 merged counts and awards $73,340 to Brian Strelioff in reimbursement of expenses incurred.

Brian and Crystel Stelioff were married and had two children L.S. and M.S. while living in California and then later moving to Illinois. Defendant filed for divorce in California and it was discovered that Illinois had jurisdiction over case. During the dissolution of their marriage which was final April 28^th, 2000 Brian was awarded sole custody of children and allowing defendant visitation; also within that order neither parent was to permanently remove children from the jurisdiction of Illinois without either written consent of other parent or granted by courts; however both were allowed to travel out of the state of Illinois for vacations as long as other parent was notified and children were returned.

In the Summer of 2004 Defendant, Crystel Strelioff, failed to do such. She had taken the children to California without notifying her ex-spouse and failed to return them. Both M.S. and L.S. had been staying with defendant due to a DCFS investigation involving allegations of abuse against Brian where he was asked to voluntarily give up his visitation and contact with both children during the time of the investigation and choose to allow them to reside with defendant or be put in foster care for the duration of the investigation, in which Brian chose residing with defendant to be less traumatic for the children. Investigation was found unfound and Brian sought to regain his custody and contact when he discovered the children had been taken out of Illinois.

Originally defendant was charged with six counts of child abduction on June 29, 2005 where Counts I and II were dropped by state and Counts III through VI alleged that defendant committed child abduction under section 10—5(b)(2) for both M.S. and L.S. Count III alleged that defendant violated Judge Brown’s April 28, 2000, order by removing M.S. from the court’s jurisdiction. Count IV alleged the same regarding L.S.

While court was pending defendant and children remained in California with defendant reporting to Illinois probation department from May 2005 until May 2008 where she than stopped reporting and a warrant was issued for her arrest, and was later arrested in Las Vegas, Nevada.

Throughout the years there were numerous motions to dismiss defendant’s indictment on many different claims which were all denied. Children had been ordered to be returned to Illinois on numerous occasions but defendant failed to follow the court orders. There were also many investigations regarding Brian and alleged sexual abuse against his children in both California and Illinois, the investigation in California was never resolved and Illinois investigations were found unfound.

Final order was filed August 2011 and in the end the court affirms the decisions of the Kane County court and held the above stated orders.