Tag Archives: Topic: Child Custody

SCOTUS Blog: The Court’s decision in Chafin v. Chafin, issued on Tuesday, appears to qualify as one of the easy ones.  As I explained in my preview of the case in December, the case arises out of an international child custody dispute between an American father, Sgt. Jeff Chafin, and a Scottish mother, Lynne Chafin.  Under the Hague Convention on the Civil Aspects of International Child Abduction, a parent whose child is abducted to another country can file a lawsuit in that country seeking to have the child returned to her home country, so that courts there can resolve any custody disputes.

NY Times: The Supreme Court on Wednesday struggled to decide whether it was capable of doing anything to affect the outcome of a custody dispute before the Sheriff Court in Airdrie, Scotland.

Here’s the key legal issue, and the holding: Reviewing an unpublished opinion of the court of appeals, we address whether, in seeking to terminate a guardianship established by parental consent, fit parents may invoke the constitutional presumption that they make custodial decisions in the best interests of their child . . .

ABA Journal: At issue is whether Michael Turner had a due-process right to an appointed lawyer when he was sentenced to a year in prison for failing to pay child support.

Leonard Link: “The Texas Court of Appeals (1st District – Houston) ruled on February 10 that the Harris County District Court had properly ordered the registration of a California parentage judgment involving a gay male couple who were intended parents under a gestational surrogacy agreement. Ruling unanimously in Berwick v. Wagner, No. 01-09-00834-CV, the court found that such registration complied with the requirements under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a uniform law that has been adopted by both states.”

WLS Chicago: “A woman who is now married to a Hasidic Jew accuses her ex-husband of not following their custody agreement to support her religion.” | For background on this case, see this ADF Alliance Alert compound tag: http://www.alliancealert.org/tag/state-illinois+topic-child-custody/

Religion Clause: “In Winters v. Brown, (FL App., Jan. 26, 2011), a Florida appellate court upheld applying the ‘best interest of the child’ test to affirm a trial court’s award of control over health care decisions for his minor child to the child’s father.”

Life in Italy (ANSA): “A Sicilian court on Wednesday turned down a separated father’s appeal for exclusive custody of his children on the grounds that his ex was living with another woman.”

Boston.com (AP): “The New Hampshire Supreme Court has thrown out a court order awarding visitation rights to a disabled 15-year-old girl’s grandparents, saying the wishes of her mother were not given enough weight.”

John Culhane, Professor of Law at Widener University, writing at 365Gay.com: “First, [Gallagher is] right that civil unions and domestic partnerships are leading to marriage. Here’s some evidence: In Vermont, the first state to create the civil union, the legislature moved to full marriage equality in less than 10 years. Why? I’m sure each law-maker had his or her own reasons, but among them was surely a recognition – informed by a decade of experience and the report of a civil union commission – that this creative half-step was inadequate, confusing, and – most centrally – discriminatory.”

Christian Institute: “A baby girl looks set to become the subject of a bitter legal battle between her lesbian mother and her father.”

Related:

UK: “Lesbian mother loses battle to stop gay father spending time with children”

Telegraph: “A lesbian mother has lost her Appeal Court battle to stop the wealthy gay father of her two children spending more time with them. The three appeal judges unanimously rejected her bid to overturn an order giving the father joint residency of the children a boy of ten and girl of seven.” Decision is here.

Via The Volokh Conspiracy: “The case is Charara v. Yatim (Mass. Ct. App., decided today) [opinion can be accessed at this link]: ‘Following a trial, a judge of the Probate and Family Court concluded that no deference was due the custody order issued by a Jaafarite religious tribunal (Jaafarite Court) in Lebanon. The probate judge based his decision on evidence, including the testimony of experts, that the Jaafarite Court’s custody order was not made in “substantial conformity” with Massachusetts law regarding the best interests of the children . . . ”

Toronto Sun: “The fight between two Calgary gay ex-lovers over custody of their daughter could advance same-sex parenthood rights in Alberta, says one of the litigants. The man says Court of Queen’s Bench is expected to rule Dec. 8 on whether the province will be paying his past and future legal fees in a four-year battle that could fill a void in Alberta’s Family Law Act that fails to legally define gay men as fathers.”

The Straits Times: “Malaysia’s top court on Friday sidestepped a ruling on whether children can be converted to Islam by one parent, a lawyer said, in a case closely watched by the nation’s non-Muslim minorities.”

London Telegraph: “A homosexual sperm donor who fathered two babies by a lesbian after placing an advert in a magazine is now engaged in a legal dispute over access to the children.”

“The justices on Monday turned down an appeal from Lisa Miller, the biological mother of an 8-year-old girl.”

FRCblog: “It is a tragic consequence of the civil ‘right’ that, unfortunately, Lisa Miller, fought for – and now has to live in spite of. Only this time, an innocent child suffers at the hands of adults in a political milieu where the innocent loses and no one, especially little Isabella, wins.”

“The Vermont Supreme Court says a family court was right to award custody of an 8-year-old girl to her non-biological mother in a lesbian custody case.”

Religion Clause: “In Forthner v. Forthner, (MS App., Oct. 19, 2010), a Mississippi court of appeals rejected a father’s religious free exercise challenge to a judge’s decision giving his wife custody of their children and denying the husband separate maintenance.”

Religion Clause: “In Greene v. Greene, (GA Ct. App., Oct. 1, 2010), a Georgia appellate court upheld a trial court’s finding that a divorced husband was in contempt for violating a Settlement Agreement that gave his former wife final decision-making authority over matters related to their daughter’s religious upbringing. The wife was Jewish and the husband was Christian.”

Metro.co.uk: “The woman, known as JM, was awarded £2,550 in damages and £15,275 in costs after the European Court of Human Rights ruled there was no justification for the discrimination . . . Her child maintenance payments to her ex-husband were assessed in 2001 – but she was told a reduction if the absent parent had entered into a new relationship, whether married or not, did not apply to same-sex couples . . . ‘her maintenance obligation towards her children had been assessed differently on account of the nature of her new relationship.’”

Case of J.M. v. The United Kingdom (Application no. 37060/06)

“After the birth, Daniel insisted Karen get a passport for the boy, so he could visit his native Brazil. When she refused, Daniel sued her for joint legal and physical custody.”

Maternal and Joint Custody Presumptions for Unmarried Parents: Constitutional and Policy Considerations in Massachusetts and Beyond
Bernardo Cuadra, 32 W. New Eng. L. Rev. 599 (2010)

“This Note examines the statutory custodial presumptions that distinguish the unmarried father from the unmarried mother, as well as from divorcing parents, with a focus on Massachusetts legal custody awards. Given the gender-based distinction built into these statutes and the distinctions drawn between the putative father and the divorcing father, this Note first asks if these statutes are subject to constitutional challenge. Second, this Note questions if these statutes reflect sound policy decisions by evaluating the benefits of joint custody arrangements. Third, this Note focuses on the Massachusetts custody statute to determine if it can be more narrowly crafted to protect the interests of willing and involved unwed fathers, especially those similarly situated to their child’s unwed mother. This Note ultimately argues that the Massachusetts statutes should be amended to ensure equal treatment of unmarried fathers in custody disputes.”

OneNewsNow: “The U.S. Supreme Court is being asked to decide a child custody battle that has an unusual twist. Alliance Defense Fund (ADF)-allied attorney David Dye tells OneNewsNow the fight over the child developed after ‘a mom and a dad had a baby [and] subsequently divorced. Both parties got remarried, and then unfortunately mom died. But even more unfortunately, mom’s new husband was given custody of their child.’”

Leonard Link: “A five-member panel of the New York Appellate Division, 2nd Department, unanimously ruled on August 3 that a woman is obligated to make child support payments to her former same-sex partner. Reconsidering the case after the state’s highest court, the Court of Appeals, had reversed the appellate division’s previous ruling that the Family Court did not have jurisdiction over the child support claim because New York State did not recognize the non-biological mother as a parent of the child, the Appellate Division panel now endorsed the use of the doctrine of equitable estoppel to resolve the case. In the Matter of H.M. v. E.T., 2007-09323 (Aug. 3, 2010).”

Eugene Volokh writing at The Volokh Conspiracy: “That’s the issue in In re Adoption of A.M., decided yesterday by the Indiana Court of Appeals. The biological father was fine with the adoption, which terminated father’s parental rights — the plan was basically for the grandfather (on the mother’s side) to take on the father role, with the mother retaining her role as mother. Indiana law appears not to allow this; the relevant statutes provide that an adoption severs both biological parents’ parental rights, unless ‘the adoptive parent of a child is married to a biological parent [or previous adoptive parent] of the child.’ There is no provision for a child’s parents to switch from biomom+biodad to biomom+someone who isn’t married to biomom.”

Redefining the Legal Family: Protecting the Rights of Coparents and the Best Interests of Their Children
Marissa Wiley, 38 Hofstra L. Rev. 319 (2009)

“Part II of this Note begins by explaining the ways in which a gay or lesbian coparent can claim some degree of parental rights over his or her former partner’s biological child, who was planned for, conceived, and raised within the context of a committed same-sex relationship. The benefits and weaknesses of every method are examined in each section of this Part. Section A details second-parent adoption. Section B describes coparenting agreements. Section C discusses the judicial doctrines of de facto parenthood, in loco parentis, and equitable estoppel. Section D expounds the legislative solutions of same-sex marriage, alternatives to marriage, and third party statutes. Part III turns to the evolution of the rights of coparents in New York State, examining the past in Section A and detailing the transition to the present in Section B. Section B reviews New York State’s approach to each method of asserting parental rights. Part IV identifies changes that need to be made in the law of New York in order to suit the needs of the modern family. Part V concludes that each remedy must be available to same-sex coparents to protect the best interests of the children of same-sex couples.”

Religion Clause: “Applying the rule that ‘a parent’s religious beliefs and practices may not be considered by the trial court as a basis to deprive [a] parent of custody unless there is a showing of actual harm to the health or welfare of the child,’ a Kansas appellate court, in a 2-1 decision, has rejected a Muslim father’s objections to granting of residential custody to his son’s mother because of her practices as a Jehovah’s Witness.” | Harrison v. Tauheed (KS Ct. App., July 16, 2010)

Jessica Dixon Weaver, The Texas Mis-Step: Why the Largest Child Removal in Modern U.S. History Failed (2010). William and Mary Journal of Women and the Law, Vol. 16, p. 1, 2010; SMU Dedman School of Law Legal Studies Research Paper No. 58. Available at SSRN: http://ssrn.com/abstract=1621788

“This article sets forth the historical and legal reasons as to how the state of Texas botched the removal of 439 children from the Fundamentalist Church of Jesus Christ Latter Day Saints’ parents residing in El Dorado, Texas. The Department of Family and Protective Services in Texas overreached its authority by treating this case like a class action removal based on an impermissible legal argument, rather than focusing on the facts and circumstances that could have been substantiated for a select group of children at risk. This impermissible legal argument regarding the ‘pervasive belief system’ of a polygamist sect that allowed minor females to spiritually marry older adult males sparked questions of how far the Free Exercise Clause of the First Amendment and the Fourteenth Amendment go in protecting religious freedom and parental rights. Ultimately, there was a failure on both sides of the case – harm caused by the unnecessary removal of hundreds of children who were not in immediate danger of abuse, and harm caused by the return of teenage girls who were at risk for sexual abuse on the Yearning For Zion Ranch. The article concludes by discussing key factors that would have made a difference in the outcome of the case and the impact of this decision on the interrelationship between parents, the state, and the child.”

Leonard Link: “Custody of the children is shared, with the birth parents having various designations as primary residential parent, the children going back and forth at various times and being separated at various times. The current dispute reaches the court of appeals because of the insistence by Gibson County Chancellor George Ellis on including and enforcing a ‘paramour provision’ in the court’s order governing custody and visitation, as part of the latest round of revisions in the parenting plan. This provision says that when a child is in residence, an unmarried partner of the parent may not be there overnight. … Rather than remand for further consideration by the trial court, the court of appeals reversed outright the trial court’s ‘finding’ that a paramour provision was in the best interest of the children, and ordered that costs of the appeal be awarded to Angel.”

ACLU: “A three-judge panel of the Tennessee Court of Appeals has unanimously ruled today that a trial court judge was wrong to impose a ‘paramour provision’ barring a mother’s lesbian partner of more than 10 years from being in the home during the mother’s overnight visits with her children.”

AP: “Lawyers for Lisa Miller argued their case Wednesday in Montpelier challenging a Family Court judge’s decision to award custody to former partner Janet Jenkins, of Fair Haven, Vt.”

WCAX: “The Vermont Supreme Court weighs in later this week in the long running custody dispute between former lesbian partners.”

Martin Kornel, Parental Custody Disputes: Criteria Used by the Courts in Central Europe (July 16, 2009). West University of Timisoara and European Studies, pp. 353-418, July 2009 . Available at SSRN: http://ssrn.com/abstract=1520564

“The paper explores statutes and court practice on the field of child custody in the Czech Republic, Slovakia and Poland. Some conclusions are made on such comparison. Regardless differences in written law, usual court decision on custody in countries under consideration are very close. Strong maternal preference is visible. It is primarily the outcome of ‘Tender Years Doctrine’ and the effect of father’s resignation to seek for the child custody. Furthermore, the fact that statutory criteria for decisions on child custody are very vague implicates that fathers aim their actions and negotiation skills on other divorce related questions, e.g. contact with their child, alimony or the settlement of marital property.”

Washington Post: “According to the General Social Survey, 15 percent of U.S. households were mixed-faith in 1988. That number rose to 25 percent by 2006, and the increase shows no signs of slowing . . . But the effects on the marriages themselves can be tragic — it is an open secret among academics that tsk-tsking grandmothers may be right. According to calculations based on the American Religious Identification Survey of 2001, people who had been in mixed-religion marriages were three times more likely to be divorced or separated than those who were in same-religion marriages.”http://www.washingtonpost.com/wp-dyn/content/article/2010/06/04/AR2010060402011.html?hpid=opinionsbox1

Associated Press: “An 8-year-old girl at the heart of a long-running child custody fight between former lesbian partners may have fled to Central America with her birth mother, a lawyer for one of the women said.”

Associated Press: “Eight-year-old Isabella Miller-Jenkins and birth mother Lisa Miller failed to appear for a court-ordered Jan. 1 custody swap in which Miller’s former partner, Janet Jenkins, was to get the girl.”

Dr. S. Magnet and Heather Ann Hillsburg, Protecting Children’s ‘Best Interests’: Mature Minors, Faith and Canadian Jurisprudence (April 13, 2010). Available at SSRN: http://ssrn.com/abstract=1589208

“Jehovah’s Witnesses are consistently marginalized within the Canadian legal system. This discrimination is particularly noticeable in cases involving children such as child custody battles, as well as in the language used at law to describe the Witness religion. Children are characterized at law as ‘choosing’ mainstream religion, whereas Witness elders “coerce”, “force” or “inculcate” children into a religion that will ultimately harm them. The biases within this language played a key role in the 2009 A.C. v. Manitoba decision. In this case, the court rules that a 15 year-old girl suffering from Crohn’s disease was ordered to undergo a blood transfusion against her will. The court grounded its decision in sections 25(8) and 25(9) of the Canadian child and family services act, stipulating that a child could be subjected to medial treatment that doctors deemed to be in their ‘best interests’, and that a child under the age of 16, unless deemed to be a mature minor by psychiatrists, could not make their own medical decisions. While psychiatrists decided that A.C. was a mature minor, the court overruled these findings. A.C. challenged the decision on the grounds that sections 25(8) and 25(9) of the Child and Family Services were arbitrary and discriminatory, but was ultimately forced to undergo a blood transfusion.”

ASSIST News Service: “The widow of a Vietnamese Christian who was brutally tortured and murdered may be in danger of losing her children to the state . . . In an updated media release from ICC, new information states that on May 3, 2010, his widow, H’Nguen, was forced to take her two children, H’Danh and Y-Ly, to the Nhan Hoa Police Station and told she must sign documents giving custody to the government.”

Joanna Grossman writes at Findlaw: In a recent ruling, Debra H. v. Janice R., the New York Court of Appeals — the state’s highest court — granted “legal parent” status to a woman, Debra H., whose same-sex partner gave birth …

Wall Street Journal: “Shamala Sathiyaseelan has spent the better part of her children’s youth fighting for the right to raise them. A Malaysian woman of Hindu descent, she was married to her husband, Jeyaganesh, in a Hindu ceremony in 1998. In 2002 Jeyaganesh secretly converted to Islam. Days later, he ‘converted’ his children to Islam without consulting his wife and consequently obtained custody rights over the children from a Shariah court. Shamala protested in the civil courts, arguing that she is not bound by Shariah court rulings as a non-Muslim and that her children’s conversion is void. Now, the country’s highest court is hearing the appeal.”

Norwalk Reflector: “Madison smith has two mothers — or at least two women willing to hire a small army of lawyers to establish or slap down maternity claims. Madison, 6, lives in northeastern Columbus with the one woman who is indisputably her mother: Julie Smith, a 44-year-old deputy director of the Ohio Department of Job and Family Services . . . Smith is being represented by David Langdon, a Cincinnati lawyer best known for his work in conservative causes . . .”

NBC Chicago: “Laura Derbigney of Chicago has found herself in the middle of a custody battle between her Catholic husband and his Jewish ex-wife over how their 7-year-old son is cared for during paternal visits. A court order restricts Laura Derbigney and her husband, Nelson, from driving the boy in a car, allowing him to use electronics or to be fed pork and other foods as outlined in Orthodox Judaism.”

Interfax: “Finnish social workers warned Rimma Salonen at her last meeting with her son that she was not entitled to pray together with Anton, cross herself or talk to him about religion . . . In 2008, after divorcing Finn Paavo Salonen, Russian subject Rimma Salonen took their 5-year old son Anton to the Nizhny Novgorod Region. Several people, including the boy’s father, kidnapped the child from Rimma on April 12, 2009.”

Reuters: “Malaysia’s highest court began proceedings on Monday on a landmark inter-religious child custody dispute whose outcome could further raise political tension in this mainly Muslim country.”

Salt Lake Tribune: “A Utah father is fighting an order that bars him from sharing his Fundamentalist Mormon views with his children — or even taking them to this small town he now calls home, where most residents hold a religious belief in polygamy that a judge deemed ‘harmful.’”

Chicago Sun-Times: “Their divorce was settled three years ago, but there they were Friday, back in Cook County Domestic Relations Court, this time fighting over a contentious religious issue: Could a devout Jewish mother force her ex-husband, who isn’t Jewish, to feed their 7-year-old son kosher food when he has the boy?”

San Francisco Chronicle: “Two frozen embryos and two gut-wrenching lawsuits have added up to a national controversy pitting a Pleasanton family against a suburban St. Louis family over control of what both call their ‘pre-born children.”

Santiago Times: “Six years after judge Karen Atala lost the custody of her three daughters, the Interamerican Commission on Human Rights (IACHR) ruled in her favor, proclaiming the Chilean Supreme Court had been biased in her case because she is a lesbian . . . The IACHR recommended Chile change some of its laws and public policies so discrimination based on sexual orientation could be eliminated.”

JURIST: “The European Commission on Wednesday proposed reforms to simplify and clarify international divorce laws. Under the proposal, married couples from different European Union countries could choose the country of the divorce, and the various courts would use a common formula to decide which country’s law applies when a couple disagrees. EC Vice President Viviane Reding said the law will protect the weaker spouse and reduce the costs of litigation.”

Christians feel their freedoms are being eroded bit by bit and the government’s reaction to a Muslim girl’s conversion to Christianity is one example . . . When the girl decided she wanted to be baptized in a church, government officials said the foster parent failed in her duty to preserve the girl’s religion . . .

Religion Clause Blog: “In D.R.S. v. L.E.K., (LA App., March 10, 2010), a Louisiana state appellate court held that a parent holding court-awarded custody of a child generally may not shield the child from exposure to the non-custodial parent’s religious beliefs . . . ”

Citizen-Times.com: “After their breakup in 2008, Harmon says, Davis cut off Harmon’s contact with the children, prompting Harmon to sue in Wayne County Circuit Court in a long-shot bid to win joint custody. It’s a battle she is prepared to take to the Michigan Supreme Court in an effort to secure joint custody rights for nonbiological, unmarried partners, gay or straight . . . ”

LifeSiteNews: “The daughter of ex-lesbian Lisa Miller appeared to have suffered emotional trauma following forced visits with Miller’s ex-partner, according to sworn testimony submitted to a Vermont court.”

Santa Cruz Sentinel: “The one-time lesbian parents of twin boys have settled a paternity dispute that allows the women to maintain joint custody, The National Center for Lesbian Rights announced Friday.”

AP: “The attorney for an Ohio couple says they just want a reasonable chance to reconcile with their daughter, a teenager who converted from Islam to Christianity and ran away to Florida.”

ABC: “Joseph Reyes faces jail time for taking daughter, Ela, to a Catholic church in defiance of a temporary court order forbidding him from exposing the child to any religion but Judaism.”

Leonard Link: “I am delighted to report that on January 21, 2010, the Pennsylvania Superior Court issued an en banc decision in M.A.T. v. G.S.T., 2010 PA Super. 8, 2010 Westlaw 204148, in which Constant A. was officially overruled as a precedent. It took a quarter of a century, but finally we are rid of that homophobic presumption against gay parental custody in Pennsylvania . . . ”

In re Custody of: E.A.T.W. and E.Y.W., No. No. 81945-9 (Wash. Feb. 25, 2010)

J.M. JOHNSON, J. — Vito and Yasuko Grieco brought a nonparental custody action for permanent custody of their two grandsons, E.A.T.W. and E.Y.W., under chapter 26.10 RCW. The superior court found adequate cause to proceed to a hearing on the Griecos’ petition based solely on the boys In re Custody of Wilson, No. 81945-9 being in the Griecos’ custody for several years. Sachi Wilson, the boys’ father, argues RCW 26.10.032 also requires the Griecos to set forth facts establishing cause for an order on the merits before any hearing may occur.

We hold that RCW 26.10.032 requires a superior court judge to deny a hearing on a motion for a third party custody order unless the nonparent submits an affidavit (1) declaring the child is not in the physical custody of one of its parents or neither parent is a suitable custodian and (2) setting forth facts supporting the requested custody order. The facts supporting the requested custody order must show adequate cause that the parent is unfit or that placing the child with the parent would result in actual detriment to the child’s growth and development. We remand to the superior court for an adequate cause determination based on the correct legal standard.

“In a case that reached the U.S. Supreme Court, a Bay Area woman has won the right to parental status and visits with the daughter of her former lesbian partner, who moved out when the girl was 3 months old.”