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.

The Third Judicial District Court- Salt Lake County-State of Utah. By: Tracey J.

Dewsnup vs. Dewsnup- CS # 114901236

The Third Judicial District Court- Salt Lake County-State of Utah

Temporary orders are as follows: The 3 minor children reside with their mother in Lewiston Utah, The father Paul Dewsnup, has visitation every other weekend, as long as he pays the defendant $ 50.00 to bring children down. There are also temporary orders that Paul Dewsnup does not know the address of the defendant.

FACT

Fabiola Dewsnup(Defendant), has made  false allegations against Paul Dewsnup(Plaintiff), for improper behavior towards the children, and has accused him of raping her on a nightly bases, based upon here say only, in order to obtain temporary orders of custody of the minor children. Also Defendant's Attorney has asked the court to request that Defendant's address be concealed, when in fact the defendant has allowed the plaintiff to spend the night up at her home and has spent the night at the residence of the plaintiff. 

Therefore this whole charade that the defendant is trying to portray to the court is a farce and should be investigated by the court and DCFS; she is using the children to try to get the end result that he would like to obtain, not for the well-being of the children.

There is a pre-trial conference set up on this, to set a date for trial. You can go to www.utahcourts.com, and look this case up.

Florida Court Reverses Motion Allowing Relocation of Child. By: Elizabeth F.

Florida Court Reverses Motion Allowing Relocation of Child

Citation: Mata v Mata, 75 So. 3d 341 (Fla. 2011)

This is a case between Jose and Beth Mata.  They lived in Miami-Dade county Florida and have one child.  When the marriage ended and the couple decided to get a divorce, it was decided that it was in the child’s best interest that the parents would live in close proximity to each other and share the custody of the child equally in a time-sharing schedule.  In March 2011, the mother petitioned the court to allow her to relocate the child to Durham South Carolina, where she now resides.  The father objected and counter-petitioned the court to not allow her to relocate the child.   The trial was scheduled for August 12, 2011. 

On August 2, 2011, the mother filed an emergency motion to allow her to temporarily relocate the child during the impending hearings.  When the August 12 court date arrived, counsel for the father was feeling ill, and the court decided to adjourn the hearing until November 18, 2011.  Then the court decided to address the mother’s emergency motion for temporary relocation pending the final hearing. The court heard argument from counsel for an hour during which the court neither heard new testimony nor received evidence.  In the end, the court granted the mother's emergency motion to relocate, stating in its order that the decision was "based upon the review of the pleadings and argument of counsel."

Jose Mata, the father appeals the court’s decision because the court did not follow the rules as described by section 61.13001(6)(b), Florida Statutes (2011), which states:

“(b) The court may grant a temporary order permitting the relocation of the child pending final hearing, if the court finds:

. . . .

 [*343]  2. From an examination of the evidence presented at the preliminary hearing, that there is a likelihood that on final hearing the court will approve the relocation of the child, which findings must be supported by the same factual basis as would be necessary to support approving the relocation in a final judgment.”

The father further argues that the court did not consider any of the following rules in the statutes that require evidence to prove one way or another that it was or was not in the child’s best interest to allow the relocation.  Also, because the court records didn’t show that the court heard new testimony or evidence to determine that “there is a likelihood” that the court would approve the relocation at the final judgment, the court made an error in the matter of law and misapplied the proper legal standard set forth in section 61.13001, see Canakaris v. Canakaris, 382 So. 2d 1197, 1202-03 (Fla. 1980). The court's decision to grant the mother's motion was limited to a review of the pleadings and argument of counsel. The court never received any evidence or testimony which would have shown a factual basis permitting relocation.  The court decided that it made an error in allowing the mother’s emergency petition to relocate the child and it reversed its original decision.  

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

This is a link to the School library for copy of the case file.  Case # No. 3D11-2297

http://www2.miami-dadeclerk.com/public-records/Search.aspx

Florida law currently prohibits display of Family Court Papers on a publicly available web site. We display the blacked out image to allow you to order a certified copy online as this is faster than requesting the documents through the mail. You can also view and print an uncertified copy of the entire image using the Premier Account at the $5 level.

http://www.flsenate.gov/Laws/Statutes/2011/61.13001

Florida Statute governing the temporary relocation of a child

CORE TERMS: relocation, temporary, emergency, relocate, final hearing, abused, final judgment, factual basis, nonrelocating, matter of law, rule of law, minor child, failed to comply, best interest, evidence presented, abuse of discretion, necessary to support, approving, approve, order permitting, minor children, argument of counsel, preliminary hearing, preponderance, time-sharing, educational, emotional, objecting, marital, alimony

Smith v. Guest, 16 A. 3d 920 - Del: Supreme Court 2011. By: Laura F.

Link for opinion: http://scholar.google.com/scholar_case?case=5668571176687532975&q=child+custody+visitation+cases+in+delaware+2011&hl=en&as_sdt=4,8&as_ylo=2011

The Supreme Court of Delaware held in Smith v. Guest, 16 A. 3d 920 that Guest award of custody stands.

Smith thought she could say her Constitutional rights were violated because she was not a legal parent to Ans, the minor child in which she is seeking visitation. Smith is the adoptive parent to Ans, In April 2010 the court awarded joint custody to both parents, but upon appeal custody was awarded to Guest.

The Supreme Court held the decision to Guest as custodial parent to Ans. Smith was saying her constitutional rights were violated and equal protection laws were due to her in this case.

Labels for the post: child visitation custody 

Divorced Military Parents Fight for Custody of Son. By: Theresa F.

Link for opinion:  http://lexisnexis.comInacui2api

The Colorado Supreme Court vacated a Maryland family court ruling when discrepancies in residency were essentially established for the parties involved in the suit-In re Marriage of Brandt, 2012 Colo., Jan23, 2012 Case No. 2011DR1312.

The parties were divorced in Maryland but the father was transferred to Colorado. The son stayed with the mother in Maryland until she was transferred to Texas. She was eventually deployed to Iraq. The son went to live with his father in Colorado. When the mother returned from Iraq, the son again moved to Texas to live with her. Once again, the mother was transferred, this time back to Maryland. The father stepped in, and petitioned the Colorado court to give him custody of the son and placement with him in Colorado. 

Colorado assumed jurisdiction of the case because technically no party actually resided in Maryland.  Consequently the order assuming jurisdiction was vacated because the mother maintained a home, driver’s license, nursing license and voter’s registration in Maryland. Her return to Maryland was certain to occur.

 Colorado Laws of Personal jurisdiction is power over the parties to the case. If one spouse moves to, say, Texas, that state won't necessarily have jurisdiction to enter orders which affect the out-of-state spouse. C.R.S. 13-1-124

Labels for this post: custody, jurisdiction, residency, military, assuming jurisdiction, home state, child custody order, personal jurisdiction

North Dakota: State Supreme Court Holds that Mother will still receive her Spousal Support. By: Tyler S.

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

Summary: The parties to the case, Becker v. Becker, 2011 ND 107; 799 N.W.2d 53 received a divorce after 20 years of marriage. The ex-wife was diagnosed with ADHD and depression, which affected her return to her job as a speech pathologist. The ex-husband was bringing in a constant income. It had been years since the wife had not worked and she did not believe she would be able to ever return.

The couple went to the district court to dissolve their marriage and the judgment of the court was to award the ex-wife permanent spousal support and establish her child support obligation. The district court looked at N.D.C.C. §14-05-24.1 to help determine that the ex-wife was eligible to receive permanent spousal support. The ex-husband appealed this decision because he did not believe that he had an obligation to support his ex-wife.

The case then went to the State Supreme Court. The justices looked at the evidence about the ex-wife’s earning ability and whether or not she had a medical condition that was affecting her ability to return to work. The ex-husband stated that the judgment of the district court to award the ex-wife permanent spousal support was erroneous. The State Supreme Court however stated that based on how the district court came about to their decision was not flawed. The State Supreme Court affirmed the spousal support, revered the child support obligation and remanded the case to recalculate the ex-wife’s child support obligation. 

New Jersey DIV. OF YOUTH v. KLW. By: Kelly N.

Link for opinion:

http://scholar.google.com/scholar_case?case=1470713874142041878&q=New+jersey+child+custody+2011&hl=en&as_sdt=2,24&as_ylo=2010

P.L.J. and K.L.W. the mother and father of K.K.W. appeal separately from a judgment terminating their respective parental rights. They are arguing that the Division of Youth and Family Services failed to meets its obligation to initiate a search for relatives who may be willing and able to provide the care and support required by the child.

K.K.W. was born in late March 2008. She was born premature and her mom tested positive for cocaine and the baby required intensive care. Her mother had not had prenatal care and told the hospital staff about her drug use and history of depression. She told them that she was homeless and didn’t have any furniture that she needed for the baby or any other supplies. She admitted that she was neglecting the baby.

The mother was 35 when she gave birth and this was not her first child or her first encounter with the Division of Youth and Family Services. She voluntarily transferred custody of her first four children to their maternal grandparents. When K.K.W. was born P.L.J.’s other kids had been living with their grandparents for about 3 years. P.L.J. asked the Division not to contact her parents because they did not know about her drug use. Instead she wanted them to contact the baby’s father K.L.W.

The father was about 40 years old and was not living with the mother. The caseworker from the Division talked to the father but he said he was a long distance truck driver and could not take care of the baby. He agreed to let the caseworker assess his home and said he would speak with family members that could assist him. The baby has never been in custody of a parent or relative. On April 3, 2008 the Division filed an order to show cause and a complaint alleging abuse and neglect and obtained custody of K.K.W. The baby did not go through withdrawals but did have feeding problems and other medical issues. The baby was kept in the hospital until May 2008. When she was discharged she was placed with St. Clare’s Home for Children, and agency that addresses the needs of medically fragile children. She stayed there until 2008.

The baby was placed with a foster family. The division should have contacted the maternal grandparents that were taking care of K.K.W.’s siblings. In this case the division’s failure to meet its obligation had ramifications relevant to K.K.W.’s best interests. The Division should not proceed when it has not met its obligation to assess a relative, especially one that is caring for the child’s siblings.

The court reversed and remand for further proceedings to permit the judge to reconsider termination with additional information pertinent to his findings on the second and fourth prongs of the statutory standard. The judge continued visitation during the pendency of this appeal.

Labels for the post: child, custody, New Jersey

Nevada: Appeals Court Reverse That Grandmother is Entitled Visitation Rights. By: Jennifer M.

Link for opinion: http://scholar.google.com/scholar_case?case=5920887283538118788&q=nevada+child+custody+or+child+visitation+cases&hl=en&as_sdt=2,24&as_ylo=2011

The Nevada Court of Appeals Reversed in Rennels v. Rennels, 127 Nev. Adv. Op.49( Nev: Supreme Court) that the grandmother of the child is entitled to visitations since there was not any substantial change in circumstances before it was terminated therefor it was not in the best interest of the child.

The paternal grandmother petitioned the court for nonparental visitation pursuant to NRS 125C. 050 which allows a nonparent to seek visitation rights. The father opposed to this and filed a motion to dismiss or for summary judgment.

The grandmother, Aubrey Rennels, had built a bond with the child (Martina) after the father Roger and child moved in with grandmother in northern California. They lived with Aubrey for five months where the child and Aubrey became very close. Father and daughter moved to Texas where Aubrey had visited Roger and Martina several times, and the child visited with Aubrey for several weeks in 2002. Then in 2003 Roger and child moved to Las Vegas, Nevada where Roger married his current wife who adopted Martina in 2006, Roger disapproved of the contact between Aubrey and child and had not allowed the child to see Aubrey since 2004.

The court reversed the order after they found that there was no substantial change in circumstances before the termination of the appellant’s nonparent visitation rights with her granddaughter therefor it was not in the best interest of the child.

Labels for post: child, grandparent, visitation.

Grandmother Appeals Unclear Decision Over Additional Visitation With Grandchild. By: Wendy M.

Link for opinion: www.mtlawlibrary.wordpress.com/2012/01/04/opinion-and-order-visitation-of-m-m-larsen

The Supreme Court of Montana heard the case In Re The Grandparent Visitation of M.M. and Linda Larsen, Grandmother.  DA 11-0270 2011 MT 329.  The Supreme Court of Montana dismissed the appeal by the grandmother, and remanded this case to the District court for further proceedings that conform to the opinion and order of the court.

The grandmother of minor child M.M petitioned the court for additional visitation rights.  In August 2010 the District Court entered an order visitation for grandparent and grandchild.  This order was issued over the mother’s objection.  In the order issued by the District Court found that the parents of M.M were both incarcerated and that M.M was under the care of a family chosen by the parents.  The court ordered that the grandparent have visitation at the home of the foster parents on the first, second and fourth Saturday every month.

Ms. Larsen filed a petition to increase grandparent contact and increase her visitation with the court in November 2010.  The petition was heard in April 2011 at which time no final judgment was written into the order.  At this hearing the court stated “grandparent visitation should be reasonable and I’m hopeful that the parties can then work out something that would be reasonable without a specific order on a date and time schedule.”  No change was made to the existing order, and the grandparent was left with questions as to whether her request had been granted or not.

Ms. Larsen filed an appeal based on three issues.  The first issue was that the District Court did not allow her to have an expert witness testify about her interactions with the minor child during one of their weekend visits.  The second issue raised on appeal was whether or not the District Court erred when it found the incarcerated parents as “fit”.  The third issue is whether or not the court had granted additional visitation to the grandmother.  The Supreme Court found that the records were very vague, and confusing and did not clearly state the findings from the proceedings and stated that they were left with a record that was impossible to review so they dismissed the matter and remanded the case to the District Court for further proceedings that are consistent with this opinion and order.  The Supreme Court stated that the lower court was directed to enter written findings, conclusions and an order that addresses the issues brought up in Ms. Larsen’s petition, and appeal.

Labels for the post:  Grandparent visitation, unfit parent, child custody, incarcerated parent.

Mississippi: Court rules that Grandparent visitation is in the best interests of children. By: Samantha M.

Link for Opinion: http://scholar.google.com/scholar_case?q=Grandparent+visitation&hl=en&as_sdt=4,25&as_ylo=2010&as_yhi=2012&case=17536198929719650981&scilh=0

In the case of Walley v. Pierce, No. 2010-CA-00409-COA (Miss. Ct. App 2011), the Court of Appeals of Mississippi affirmed the decision of the chancellor awarding the grandparents unsupervised visitation with the three minor children of the Walleys. The Court found it was in the best interests of the children and the chancellor had made no error when awarding visitation to the maternal grandparents.

The maternal grandparents petitioned for visitation of their grandchildren on February 11, 2009 after the Walleys moved into a rental home in 2008. The Walleys were originally residing in a mobile home on the property of the Pierces, the maternal grandparents, and thus allowing the grandparents to develop a relationship with the children. The Walleys left due to growing tensions between the parents and grandparents of the minor children.

The grandparents argued that the Pierces were unreasonably withholding visitation, to the detriment of their grandchildren. After reviewing all evidence, the chancellor decided that, despite the fact that the family was intact and the Walleys were not unfit parents, it was still in the best interests of the children to set aside the wishes of the parents and grant the Pierces visitation.

On appeal the parents argue that the visitation should be overturned based on the findings in Troxel v. Granville, 530 U.S. 57 (2000) and that the chancellor committed an error by not giving special weight to the parents decisions regarding visitation involving their children. However, the appellate court found that the chancellor did in fact give special weight to the Walleys wishes, but simply found them lacking and granted the visitation because the grandparents had met their burden in proving the visitation was in the best interests of the children.

Labels for the post: grandparent visitation, intact family, Troxel v. Granville, third party visitation

Michigan: State Supreme Court of Michigan Appeals Court Reverses Appellate Judgment and Finds That Court Could Not Find “Initial Custody Determination” Under The UCCJEA. By: Paige L.

Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/lnacui2api/results/docview/docview.do?docLinkInd=true&risb=21_T13959982026&format=GNBFI&sort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T13959982034&cisb=22_T13959982033&treeMax=true&treeWidth=0&selRCNodeID=24&nodeStateId=411en_US,1,2&docsInCategory=11&csi=7784&docNo=3

The Michigan Court of Appeals held in Foster v. Wolkowitz, 785 N.W.2d 59 (Mich. Ct. App., Sept. 15, 2010, 2011) granted the leave to the appeal.  The parties were asked to address whether or not the Court of Appeals had made in error when relying on the Acknowledgement of Parentage Act (APA) instead of the Uniform Custody Code Jurisdiction and Enforcement Act (UCCJEA) in order to substantiate whether Michigan was the “home state” of the child and the “convenient forum” for the decision of the custody of the minor child to be enacted.

Leah Foster and David Wolkowitz conceived a child together, hereinafter referred to as “M.”, but were never married.  The child was born on October 12, 2006.  Before the child was even born, the couple lived in Illinois, but moved to Michigan a few months before M. was born.  At M.’s birth, Wolkowitz signed a document recognizing that he was the biological parent of M.

Later on, both of the parties decided to move back to Illinois with M, but would sporadically return to Michigan to visit relatives and others that were close with the parties and their minor child, M. 

At some point in May of 2008, the non-marital relationship between the parties dissolved, prompting Foster (the Plaintiff) to take the child and move to Michigan, where she had her family support system and close ties.  The Plaintiff ended up moving in with her parents, along with M.  When the Plaintiff tried to start a custody dispute using Michigan as the child’s home state, the trial judge refused to address the issue of custody that had arisen.  Wolkowitz, the Defendant, then filed his own custody action, but this time, he filed in Illinois, as he assumed this would be the proper jurisdiction in which to raise the dispute.  The original file date for the Defendant’s motion would have been June 4, 2008.

After the trial court had used the “best interest factors” of the child, the court granted the couple the joint legal custody, but held that Foster (Plaintiff) would have sole physical custody of the minor child, allowing the Defendant liberal parenting time to be used at his convenience.

Because the Defendant did not believe that Michigan had home-state jurisdiction, he appealed the order of the trial court.  The Appeal Court upheld the decision of the lower court.

When the case went to the Supreme Court of Michigan, the decision was that the Court of Appeals had made an error when they presumed that the custody should be awarded to the Plaintiff because of the APA.  The judgment was reversed and remanded for the Monroe Circuit Court.

Labels for the post: UCCJEA, custody, establishing paternity