Missouri Appeals court affirmed the original decision to award full physical custody of the children to the father. BY: Terilea W.

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

Title: Missouri Appeals court affirmed the original decision to award full physical custody of the children to the father.

The Missouri court of appeals held in CHESTER JOE WILMES QUERRY v. STEPHANIE JEAN QUERRY, WD 74342 2012 Mo. App. LEXIS 1439 that the court did not err in [*17] failing to appoint a guardian ad litem.

The couple was married October 23^rd 1999 and from that union two children were born. When the marriage was dissolved on January 7, 2910, the court awarded Father and Mother joint legal and joint physical custody of the minor children. The parties were ordered to alternate parenting times on a week to week basis, with exchanges occurring every Sunday at 6:00 p.m. There was no child support ordered.

Approximately seven months after the dissolution, on August 4^th, 2010, Mother requested sole legal and sole physical custody of the children as well as child support from Father and moved to modify the dissolution decree. While in the care of Father, Mother had concerns about Fathers mental state, the stability of the environment provided to the minor children, and the ability to care for the children when with Father unsupervised. Mother was also concerned about the poor hygiene, rashes, and bruises she found on the minor children when they were returned to her by Father. Mother also alleged that Father was not capable of providing adequate care and support for the children when in his care. The parenting plan arrangement set forth by the court is also having a negative impact on the children, alleged Mother.

At the new trial Mother testified that she no longer wanted sole legal and sole physical custody of the children. Mother admitted that she failed to comply with the previous parenting arrangements and purposely denied Father parenting time and failed to timely provide Father her new address. She requested that Fathers parenting time be changed to every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. Mother also admitted that she had no complaints about Father’s child rearing and thinks he is a good Father.

The court awarded joint legal custody to Mother and Father and sole physical custody to Father. Visitation for Mother was during the school year every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. and every Wednesday from 5:00 p.m. to 8:00 p.m. Every other week Mother was awarded during the summer. Father was also awarded child support in the amount of $460.00 per month and $1,500 judgment against Mother for Father’s partial attorney fees.

Labels for the post: custody, parenting, neglect, physical custody, minor children, modification, alternating, guardian ad litem, plain errors, pled, custodian, custodial, modify, best interests, prior decree, substantial change, dissolution, appointment, marriage, appoint, weekend, bruises, visitation, mandatory, stability, incapable, dissolution decree, manifest injustice, miscarriage of justice, original judgment

Supreme Court of Maine Affirms Ruling Enforcing Child Support Provisions of 1992 Divorce Judgment. BY: Jason S.

Link: http://law.justia.com/cases/maine/supreme-court/2012/2012-me-4.html

Title: Supreme Court of Maine Affirms Ruling Enforcing Child Support Provisions of 1992 Divorce Judgment

The Supreme Court of Maine affirmed the earlier judgment of a District Court in Cloutier v. Turner, 2012 ME 4 that the child support provisions of a 1992 divorce judgment would stand. Robin M. Turner had filed the motion seeking the enforcement. Raymond Coultier appealed on the grounds that (1) Turner lacks standing to bring the motion to enforce because she filed it after the children became adults; (2) the limitations period on a claim of overdue child support is six years; (3) the court’s failure to apply the six-year statute of limitations deprived Cloutier of his constitutional right of equal protection; and (4) laches should apply due to Turner’s delay in bringing the motion to enforce.

Cloutier and Turner were married in 1983 and divorced in 1987. An amended divorce judgment was entered in 1992. The amended judgment gave Turner primary custody of their two daughters and required Cloutier to pay $40.00 per week, effective October 2, 1992, as the total child support for both children. The 1992 order also required Cloutier to provide health insurance for the children, and to pay thirty-seven percent of any uninsured medical expenses.

On September 1, 2010, Turner filed a motion to enforce the judgment, seeking unpaid child support and Cloutier's portion of the uninsured medical expenses she had paid for the children. The court held a hearing on December 10, 2010 and ruled in her favor three days later.

Coultier appealed to the Maine Supreme Court on the above stated ground, and ultimately was unsuccessful in his attempts to avoid his legal obligations.

Labels: child support, divorce, appeal

Indiana: Appeals Court Holds that Father’s request for child visitation is denied . BY: Chi S.

Link for opinion: http://scholar.google.com/scholar_case?case=17917917383618116728&q=indiana+courts+child+visitation&hl=en&as_sdt=2,50&as_ylo=2012

Title: Indiana: Appeals Court Holds that Father’s request for child visitation is denied

The Indiana Court of Appeals held Hazelwood v. Hazelwood, No. 03A04-1109-DR-493 (Ind. Ct. App. Feb. 28, 2012). that the father of a child, who is incarcerated, should not have visitation with the child as it is not in the best interest of the child.

The father of the child (S.H) petitioned the court to establish a parenting visitation agreement while he was incarcerated.  He appealed and argues that the trial court abused its discretion in denying the petition.

The mother, Melissa Butler, was given custody of the minor child (S.H) with the father, Gary Hazelwood, to receive parenting time.  Gary was incarcerated for dealing methamphetamines when the minor child (S.H) was only three years old.  His sentence will allow him to be released when the minor child is the age of eighteen.  The minor child (S.H) lives with his mother.

The court held that mandatory visitation while the father was incarcerated was not in the best interest of the child as a visit inside of a correctional facility might endanger the child’s physical health or impair the child’s emotional development.  In this case, the child displayed behaviors after reading written correspondence from the father that led the mother to believe the child was not developed mentally or emotionally to deal with a visit with the father. 

The court ruled at this stage, the child is not mature enough emotionally to make visits mandatory.  f the child (S. H) requests to see his father,  mother is ordered to advise father so that appropriate arrangements can be made to transport the child to the Indiana Department of Corrections. The Court will not order mother or step-father to provide transportation although they may certainly do so if they are willing. Father’s request for child visitation was denied.  The court further ordered that the mother provide the father with any changes in her address so that written correspondence can be sent to the child.

Labels for the post: child visitation, father visitation, incarceration, incarceration of a parent

Illinois Court Denies a Father’s Petition for Primary Physical Custody. BY: Jessica S.

Link for opinion: http://www.isba.org/cases/illinois/appellate/2012/10/17/grunstadvcooper

In the case of Grunstad v. Cooper, 2012 IL App (3d) 120524, the father filed a petition for primary physical custody of his two children Olyvia and Keegan. The mother, Grunstad, had primary physical custody of them. The reasons for the change was because he thought that she did not provide a stable home by exposing the children  to domestic violence and she did not meet the children’s educational and medical needs.

A hearing Grunstad testified about the possible domestic violence exposure to the children and witnesses from both parties testified about the children’s welfare. Coopers witnesses included a teacher and a social worker from the school. Attorneys for both parties brought up their past history of drinking alcohol which both sides denied. It came out that both parties had difficulty communicating with each other.

On November 23, 2011, the circuit court ruled in favor of Grunstad based on the evidence presented. Cooper filed a motion for a camera interview to be done of his daughter and it was denied. Cooper appealed.

The Appellate Court affirmed the circuit court decision. It found in the matter of the camera interview not being allowed to agree with the circuit court decision based on Section 604(a) of the Illinois Marriage and Dissolution of Marriage Act because the court can use its discretion in deciding this matter. The court ruled that the daughter’s opinion was not the only factor to consider and would have “emotional impact” on her even though she wanted to live with her father. As far as Cooper’s argument that the decision for granting Grunstad a direct verdict, after analyzing the evidence presented by Cooper the court found he failed show there was a need to change the custody arraignment. This case shows the how law tends to not change rulings of previous decisions in custody cases.

Labels for the post:  Camera Interviews of Children, Best Interest of Child, Modify Custody

Utah: Appeals court holds that fathers decrease in salary constitutes a substantial change in circumstances. BY: Michael R.

Link for opinion:  https://a.next.westlaw.com/Document/I8e558b83436e11e1bd928e1973ff4e60/View/FullText.html

Title:  Utah:  Appeals court holds that fathers decrease in salary constitutes a substantial change in circumstances.

The Utah court of appeals held in Busche v. Busche, 272 P.3d 748 (Utah App. 2012) that the loss of ex-husband’s job and resulting in a much lesser salary constituted a substantial change in circumstances in which it was reversed and remanded back to the circuit court to analyze whether or not he was in fact voluntarily underemployed.  The court also affirmed the attorney fees that the district court awarded the wife in the amount of $3324.71 resulting from the August 29, 2005 order, but reversed and remanded the additional attorney fees that were included in the cross-appeal.

The ex-husband lost his job with Tahitian Noni on January 28, 2005 at that time he was making a monthly salary of $7067.  After this he began contractural employment with Tahitian Noni for a salary of $5000 monthly which ended in early 2006.  He was unemployed until October 2, 2006, when he began work with SupraNaturals at a monthly salary of $4583.33.  The district court held a hearing on the basis that the husband was aware by way of warnings that he was in jeopardy of losing his job due to bad behavior.  In the process of the hearing the court found that since he agreed to the child support and alimony awards with the knowledge of his potential loss of job that he was in fact voluntarily underemployed and that it did not constitute a change to the order.

The appeals court decided that the reason the husband lost his job was due to misconduct and that alone cannot be a reason to be voluntarily underemployed.  The District Court conflated the substantial change in circumstances analysis with the imputation analysis.  The husband had a loss in income of 35% which falls under applicable law to be reviewed as a substantial change in circumstances. “A substantial change in circumstances may include ... material changes of 30% or more in the income of a parent.” Utah Code Ann. § 78B–12–210(9)(b)(iii).

The attorneys fees awarded to the wife in the amount of $20,000 of which $3324.71 were upheld in the appeals court.  The court decided to remand the remaining amount of $16,675.29 back to the district court for further analysis based on the fact that the court did not distinguish between fees incurred to enforce existing support orders (OSC hearing fees) and those incurred in establishing a new order (trial fees) in making the award.

Tags:  Child support, modifying orders, underemployment, substantial change, imputation.

Nebraska: Appeals Court held that the grandparent did have visitation rights. BY: Anndrea P.

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

Title: Nebraska: Appeals Court held that the grandparent did have visitation rights.

The Nebraska Court of Appeals held in BEAL v. ENDSLEY 3 Neb.App. 589 (Court of Appeals of Nebraska 1995) (1) divorced mother of the children was properly made party, and (2) court order granting visitation rights required clarification.

The district granted the grandparents limited visitation rights of their maternal grandchildren, the grandparents appealed.

The maternal grandparents of children whose parents had divorced petitioned the court for visitation rights to the children. The maternal grandparents challenge the amount of time granted.

Bart and Jacquelyn are the divorced parents of Nicholle and Tyler. At the time of the hearing on the Beals' petition, Jacquelyn resided in the Denver, Colorado, area and Bart resided in Alliance, Nebraska. Nicholle and Tyler are in Bart's custody. The Beals filed their petition in Box Butte County, naming Bart as the sole defendant. The petition alleges that “since the divorce of the grandchildren's parents,” the Beals had attempted to maintain a relationship with the grandchildren, but that these attempts had been unsuccessful, the differences between the parties becoming irreconcilable. The Beals allege that they had established a significant beneficial relationship with their grandchildren and allege that due to Bart's actions, the grandchildren had been limited in their ability to see their grandparents and spend time with them.

Bart answered the Beals' petition, alleging an oral agreement between him and the Beals providing that they have visitation with the minor children “the last weekend of each month that had five weekends in the month” and alleging that Jacquelyn “has the children for visitation during the months of June, July and August which allows adequate time for visitation with Plaintiffs.

The court found that a reasonable balance was stricken between the goal of allowing the mother her weekends and allowing the grandparents' visitation during her custody and the father's custody periods as well. The court also found the fifth weekend provision was sufficient as it interpreted that provision in a manner under which more such weekends existed than under the grandparents' interpretation.

Labels for the post: child visitation, grandparents’ visitation

Oklahoma. BY: Shelia M.

After performing some research I found a case on child support modification in the state of Oklahoma. This case took place October 10, 2012 between Mark Anthony Scungio, Appellee, Margaret Sue Scungio, Appellant. The case is SCUNGIO v. SCUNGIO, 2012 OK 90, Case Number: 110251.

            The Oklahoma Department of Human Services filed a "Motion to Determine [Child Support] Arrearage" and a "Motion to Modify [reduce] Child Support" in its administrative court on behalf of the father of children receiving child support services. The mother moved to dismiss the motion to modify based on provisions of the parties' settlement agreement which had been incorporated into their divorce decree. The administrative law judge issued an order transferring the matter to the District Court of Oklahoma County and filed it in the divorce action. Mother moved to dismiss the motion to modify in the district court. The trial court, Honorable Lynne McGuire, denied the motion to dismiss, holding that the parties' agreement failed to demonstrate an intent to be free from the statutory provisions governing modification of child support. The order was certified for immediate appeal and this Court granted certiorari review of the certified interlocutory order.

            In September, 2001, Mark Anthony Scungio (Father) and Margaret Sue Scungio (Mother) adopted their three foster children, siblings, two of whom were special needs children with serious psychological disabilities. In July, 2004, in contemplation of divorce, the parties entered into a written agreement titled "Contractual Agreement - Separation and Parenting Plan to be incorporated into divorce decree." A divorce action was filed in 2007 and the document was incorporated into the divorce decree in October, 2009. Under the Agreement, Mother became the custodial parent and Father assumed support obligations.

The Agreement and the divorce decree recited facts that are key to understanding the parties' intent concerning child support at the time of contracting. The parties were married in California in 1988 and have resided in Oklahoma since 1991. In the 2004 Agreement, Father admitted he committed "emotional abuse to his wife and children such that irreconcilable differences have arisen between the parties in consequence of which the parties are now living separate and apart." Concerning child support, the Agreement provided: "Husband agrees that his emotional abuse toward Wife and children exacerbated the any [sic] mental illnesses preexisting in the children and as such he has an even greater responsibility to support them." The Agreement also acknowledged that each parent: agrees that he or she understands that due to the psychiatric disabilities of [two of the children], their disabilities may continue into adulthood, and that either or both may require substantial care and personal supervision and may not be capable of self-support and that under [the applicable Oklahoma Statutes] it is the parent's duty to maintain such person. If such is the case, the Mother agrees to provide the continued care beyond the age of majority and the Father agrees to provide continued child support as established above.         

The trial court denied Mother's motion to dismiss the request for modification of child support without addressing the procedural issue and holding that Mother "failed to demonstrate an intention by the parties to the Separation Agreement not to be subject to the statutory conditions for modification of child support." The trial court set the motion to modify child support for an evidentiary hearing. Father joined Mother in urging that the order be certified for interlocutory appeal. The order was certified and this Court granted certiorari review of the procedural issue as well as the substantive issue presented in this matter.

Husband agrees that [two of the children] were known to be emotionally disturbed prior to adoption and that they are currently psychiatrically disabled to the extent to which they require substantial care and personal supervision such that Wife is now unable to work. Furthermore, the many psychiatric professionals involved with [the two children] say that in the next few years their need for care and supervision may only increase. Therefore, Husband agrees to pay Wife the sum of $615.00 alimony per month by the first of each month in the form of an allotment into Wife's checking account commencing with the signing of this Contractual Agreement and each month thereafter until all three children are no longer dependent on Wife for her care and supervision that is to include adult children.

At such time as Husband retires from the military if the share of retirement pay due to Wife is greater than what would be due in alimony, then when retirement pay starts, support alimony will cease.

  The retirement pay is part of the property division and is not alimony. Wife accepts the payments specified in and to be made under this section in full satisfaction and settlement of all her right, claim and demand against Husband for support, maintenance and alimony excluding retirement pay which will continue permanently. Furthermore, if Husband chooses to forgo his federal pension and leave the military early, he agrees to provide the $615.00 alimony [which] will continue permanently. The amount of alimony was changed to $265.00 when the contract was executed in 2004.

Mother's request for attorney fees is beyond the scope of the two issues certified by the trial court for interlocutory review. It is therefore denied.

Texas: Grandparent Access Suit, Reversed due to trial court abused discretion. BY: Marie M.

Link for opinion: http://caselaw.findlaw.com/summary/opinion/tx-supreme-court/2010/11/05/252675.html

Title: Texas: Grandparent Access Suit, Reversed due to trial court abused discretion.

The Supreme Court of Texas  in RE; Richard Scheller, No. 09-1072, November 05, 2010, ruled that the previous order of grandfather, William Pemberton,  visitation would be reversed due to the grandfather not providing a preponderance of the evidence that it would be detrimental for the children not to see or spend time with him.

Amanda Scheller, the children’s mother, passed away in September of 2007. The maternal grandfather had visitation every six weeks with the two girls.  Mr. Scheller remarried Sylvia and they had primary custody of the two girls.  William and Judy Pemberton provided assistance to Richard and Amanda Scheller, caring for their

girls, when Amanda took ill.

The Schellers and Pemberton’s relationship deteriorated because according to Richard, William would not adhere to conditions set forth for visitation.  One of the conditions were bed times that the girls should go to sleep and another were topics of conversation to avoid.  Mr. Pemberton felt that since Richard got married to Sylvia the relationship between then had deteriorated

Pemberton filed a suit against Richard Scheller, under the Tex. Fam.. Code & 153.432, providing suits by grandparents for possession or access to grandchildren, the courts ruled to give access to the grandchildren while a study was performed.  The following conditions were set forth:

·         Weekly telephone or webcam access for 10 minutes

·         Possession every even-numbered month

·         Access December 28^th through December 30^th

·         Possession for the July weekend or Vacation Bible School

Scheller requested mandamus relief, which the court temporarily allowed, the courts ruled that the trial court did err in granting access to the children but did not err in appointing an expert to serve as guardian ad litem and a psychologist of evaluate the case and report back to the courts of what was in the best interest of the children.

Labels for the post: child visitation, grandparents, visitation

Mississippi: Appeals Court Holds that Father is Not Entitled to Change in Child Custody or Decrease in Child Support. BY: Heather M.

Link for opinion: http://www.leagle.com/xmlResult.aspx?xmldoc=In%20MSCO%2020121023356.xml&docbase=CSLWAR3-2007-CURR

Title: Mississippi: Appeals Court Holds that Father is Not Entitled to Change in Child Custody or Decrease in Child Support

The Mississippi Court of Appeals held in Goolsby v. Crane , No. 2011-CA-01596-COA  (Miss. Ct. App. 2012) that the father of the two children was not entitled to a change in child custody or a decrease in the child support.

The father of the minor children had petitioned the district court for a change in the child custody arrangement. The children's mother fought that it was not in the best interest of the children for a change in child custody to take place and petitioned the court to increase the child support because of the children’s increased needs and asked the court to modify the visitation agreement.

Angela and Michael were divorced on April 25, 2007. At that time they agreed to shared joint legal custody and with Angela having primary physical custody. The agreement granted Michael visitation on alternating weekends. When Michael did not have weekend visitation, he was allowed to pick the children up from school on Monday afternoon and return them to school on Wednesday morning.

After 6 to 8 months they both deviated from that agreement. They changed Michael's weekday visitation to Wednesday afternoon to Friday morning instead of Monday through Wednesday.

In court Angela and Michaels oldest daughter (13 years old) testified that she did not like the current visitation schedule making her go back and forth during the week. She told the court that she was struggling in math and her step father was the one that helped her with it. With her getting older she also wanted to be with her mom because of female changes that were occurring. She told the court that she would like to go to her dad’s just every other weekend. It was also brought up that both children had activities that conflicted with the visitation schedule.

Angela filed a petition with the court on June 8, 2010 to change child support. Michael paid $400 a month for child support. Angela was requesting that the child support increase because of the material change in circumstances. The family master increased the child support to $671 a month and to pay $250 in attorney fees.

On November 24, 2010, Michael filed his response and a counter-petition to modify the final judgment. He requested for the child support to be decreased.  Then he filed a petition to modify the custody arrangement. He wanted it to be modified so it would grant both Angela and Michael joint physical custody.

The Chancellor found that there wasn’t any reason to modify the custody arrangement because the current arrangement did not adversely affect the children. The Chancellor did find it necessary to change the visitation schedule because the current visitation schedule did not work for the children and was not in their best interest. The chancellor granted Michael visitation every other weekend on the first, third, and fifth weekends of every month. Also, Michael received six weeks of visitation in the summer and alternating spring and fall breaks. The chancellor modified Michael's child support obligations to $651.23 a month. The Chancellor also made it so that Michael didn’t have to pay for half of the children’s activities anymore.

The Mississippi Supreme Court affirmed the judgment of the Desoto County Chancery Court. All costs of this appeal are to be paid by Michael Goolsby.

Labels for the post: child custody, father, mother, child support, visitation

Tennessee Appeal Court finds that custody of the child is better with the father. BY: Sherri J.

Link: http://www.tncourts.gov/sites/default/files/herbertiopn.pdf

Title: Tennessee Appeal Court finds that custody of the child is better with the father.

The Tennessee Court of Appeal agreed with the lower courts finding that there was a material change in circumstances to grant the father custody of the minor child in question in Irtira Herbert v. Jerald L. Harding.

Background

The child in question with this case was born June 27, 1997 to Irtira Herbert and Jerald Hardin who at the time of the birth were not married. When the mother started to receive public assistance The Department of Children’s Services began paternity proceedings against the father and on July 28, 2000, both parties entered an agreement for paternity and support which gave the mother custody of the child and the father was ordered to pay child support along with payments on the past due in installments. There was not a visitation provision established at this time.

On November 21, 2001, Child Support Services of Davidson County filed a petition for criminal contempt against the father for failure to pay ordered support. They were acting on behalf of the mother. They asked the court at this time to have all the future payments of child support made through wage assignment. At this time the father pled guilty to eighteen counts with a sentence of ten days contingent on him paying the amount owed.  In November 2002, the court found that the father had come into compliance with the support order by remaining current and having the obligation increase several times with change of employment and improvement in income.

Around June 23, 2008, the mother asked the father to take care of the child for a few weeks because she was moving, which proof has shown that stable housing was an issue for the mother with multiple moves. The father had ample room for the child in his four bedroom house located in Antioch, that he currently shared with his wife and another child. The father then enrolled the child in a football program and boy scouts, and also the fall semester in Thurgood Marshall Middle School, all with the permission of the mother. While in school the child obtained A’s and B’s in the majority of his courses.

It took the mother approximately six month to secure a permanent place to stay. During this time she moved in with a member of her church. During this time the mother was still receiving child support payments through the income withholding, even though the child was living with the father at this time. The mother also used the child as a dependent for the purpose of receiving public assistance.

On October 21, 2008, the father filed a petition with the court to change custody with the allegations of the mother not having a stable home life and with the frequent moves it was affecting the child at school and in other places, but now that he was in his care he has shown great improvements. At this time he also asked the court for a temporary restraining order prohibiting the mother from interfering with his peaceful of the child or removing him from his school. This was granted and remained in effect pending further orders of the court.

The mother then filed an answer and counter-petition stating that there was no material change in the circumstances and that the best interest of the child was to remain with her. There was also a motion filed to set visitation and an order to attend parenting classes and mediation. On February 8, 2009, there was an order agreed upon giving the mother visitation every other weekend. There was mediation involved, but it was not successful.

Lower Circuit Courts Findings

The case was heard on December 8, 2009 with testimony not only from the father and mother, but other witness including the mother’s mother, friends of both parties, and the child himself. There was not a court reporter in this hearing pursuant to Rule 24 of the Tennessee Rules of Appellate Procedure, so all of the information here comes from a Statement of the Evidence.

The father’s involvement in the child’s life in the early years differs greatly among witnesses. The father admits to not having a relationship with him before paternity was established, but once it was establish he states that he developed a relationship. The only time this was disrupted was when the mother would move without giving notice to him. The mother testified that the father did visit in 2003, but in 2004, 2005, and 2006 he did not have interactions with the child. Then in the summer of 2007 he began visitation every other weekends. She also stated that she only lived in four different places since 2003 and that the child lived with her mother, Renee Herbert, between kindergarten and fifth grade, which was confirmed by Ms. Herbert.

There were transcripts submitted showing that the child earned A’s and B’s in most of his classes until he was enrolled in an accelerated program in the fourth grade when he earned C’s and D’s. This record also showed that he had fifteen absences from school, nine were unexcused, and was tardy twenty-five times. As stated above once in the father’s care his grades improved greatly. The father testified that he worked with him to get his homework completed nightly, and that he went to the school 25 to 30 times to meet with teachers. He also stated that he was the one to take the child to his football practices and Cub Scout meetings. It was also noted that the mother made promises to come to football games on many occasions, but only came to one, which made the child feel disappointed.

One incident the court looked at involved the mother’s arrest and conviction for shoplifting in 2004. At this time there was proof that showed the child was with the mother when this arrest occurred. She also admitted to another arrest for shoplifting, but stated the child was not with her when this occurred. She also testified that “while shoplifting was wrong, she actually had no regrets in life and can only teach that shoplifting is wrong.”

It was also noted that in 2009, while in the care of his father, the child and another boy stole money from a candy fundraiser box in home room. A police report was entered into record regarding this and the child stated that “his mother would steal all the time but his father broke him from doing that.”

When the child took the stand he expressed a preference to reside with his mother and did not plan to live with his father.  He also stated that he knew his mother had shoplifted and was with her on two occasions; and that he himself had stolen on two occasions.

After the close of proof, the trial court announced its findings and its ruling on the and reserved the issue of child support for further hearing. The final custody order was entered on October 15, 2010 in which the court found a material change of circumstances had occurred affecting the child’s welfare. This change was described by the court as being “due to a combination of events including the child moving in with his father in June 2008, the improvement of his grades with the assistance of his father, the arrest of the mother in the presence of the child and subsequent conviction for shoplifting.”

The court then looked at the factors in Tenn. Code Ann. § 36-6-106(a) to analyze the best interest of the child. The court determined it was in the best interest of the child for the father to be awarded custody and be designated primary residential custodian, and his child support obligation to be terminated as of June of 2008. The mothers then filed a motion for a new trial, or alter, or amend the judgment which was denied by the trial court. The appeal was the followed.

Appeal Court’s Decision

The court starts off by stating a decision on a request for modification of a parentin plan or chane of custody requires a two-step analysis. Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003). The party petition to change an existing custody order must prove both (1) that a material change of circumstances has occurred and (2) that a change of custody or residential schedule is in the child’s best interest. Kendrick v. Shoemake, 90 S.W.3d 566, 575 (Tenn. 2002).  The court then went on to say that only after a threshold finding that a material chane of circumstances has occurred in the court to o on to make a fresh determination of the best interest of the child. Kendrick, 90 S.W.3d at 569.

The court then went on to state that resolving questions of custody and parenting are among the most important decisions that our courts are called upon to decide. Boyer . Heimermann, 238 S.W.3d 249, 255 (Tenn. Ct. App. 2007). On appeal, we review the trial court’s findings of fact de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). When the evidence is in conflict and the trial court bases its factual findings on witness credibility, we must ive conderable deference to those findings, because the trial court is in a far better position to observe the demeanor of the witnesses than is the appeal court. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995). However, we review a trial court’s conclusions of law de novo, with no presumption of correctness. Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006).

Material Change in Circumstances

When the mother brought the case before the trial court she stated that the trial court erred in finding that there had been a change in circumstances that could not have been reasonably anticipated since the agreed order of September 28, 2002. She stated that her frequent moves should be considered a normal consequence of the life of a single mother, and that there was no proof that those moves affected the child’s well-being in a negative way because he did well in school before being placed in the accelerated program. The court stated that even with that argument accepted there would not have been an anticipation that the mother would turn over the child’s care to the father for an indefinite period of time, and that the evidence strongly suggest that the father’s care affected the child’s well-being in a positive way.

The mother also challenged the consideration of her shoplifting arrest and conviction because it occurred four years before the petition was filed by the father. She also stated that the father did not file the petition immediately following the incident, and the court stated that the passage of time irrelevant and there was not any proof the father was aware of the arrest record or her inclination to steal. The court also looks at the admission by the mother of being convicted twice, but they did not know how many times she was not caught. Also they noted that the child was aware that she would steal all the time and that she testified she knew it was wrong, but had no regrets. The court also stated that there was evidence that the child followed her example and this did affect his well-being in a negative way. It was also shown in the record of the police report that his father’s attitude was different and the child recognized this.

With this information and evidence presented the appeal court rules on this aspect that it did not preponderate against the trial court’s conclusion that there was a material change of circumstance that affected the child’s well-being.

The Best Interest of the Child

The appeal court also look at what was in the best interest of the child using ten factors set forth in Tenn. Code Ann. § 36-6-106(a) just as the trial court had. The list that was handed to them from the trial court showed that neither the father or mother had a monopoly on the factors and that they tilted in favor of the father only after the passage of time from the assumption of custody in June of 2008. At this time the mother’s attorney suggested that the only reason and motivation for asking the father to take care of the child was to let the child let to know his father better. The attorney suggested that the mother was being punished for doing the right thing for her child. The court stated that the proof suggest that the mother acted as much for her own convenience.

The mother had several issues with the trial court’s finding on the best interest factors. She stated that they relied too much on recent circumstance and ignored evidence that the child did well earlier while still in custody of the mother. They appeal court stated however, that the trial court was aware that some of the factors that favored the father were a direct result of the actions in the seventeen months of him having temporary custody. For this reason they do not find error in this by the trial court.

Once again the mother objected to the trial court’s finding that her shoplifting conviction was relevant to the physical and emotional safety of the child. With it occurring five years earlier it should not have been considered. Once again this continued to influence the child’s conduct even after he was with her father, and there is no indication that her future behavior will change. Once again they stated that the evidence did not preponderate against the trial court finding to having the child remain with his father.

They affirmed the trial courts finding. Also stating that any further proceedings be heard by the Circuit Court and the tax and costs of appeal be put on the mother.

Tag: change of custody

Nevada: Mother challenged an order of the Third Judicial District Court of Churchill County, Nevada. BY: Becky J.

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

Title: Nevada: Mother challenged an order of the Third Judicial District Court of Churchill County, Nevada.

The Churchill County, Nevada, denied the mother her petition to vacate its earlier certification of her relinquishment of her parental rights, arguing that the district court lacked jurisdiction over the relinquishment of her parental right pursuant to section 1911(a) of the Indian Child Welfare Act (ICWA).

In September of 2002, the social services division of the Fallon Paiute Shoshone Tribe removed the S.M.M.D and T.A.D. (the children) due to the welfare; the social services returned the children to Raena but the situation didn’t change. In December of 2003 the children were again removed from the home because the children did not meet the tribal blood line requirements.

The children were returned to Raena once again and the tribal social services and DCFS to conduct a second joint investigation in January 2005, the children we welfare dependency. Raena put the children in foster care of Tim and Mayris T. of Fallon.

In January 2006, the tribe changed its blood line requirements so this made a change in the children’s eligible for tribal membership and brought the within the purview of the ICWA. But Raena didn’t file the papers for her children.

In December 2006 DCFS petitioned the district court to terminate Raena’s parental tight over the children. In January 2007 the DCFS predicted the tribal court determined that the tribe and state maintained concurrent “legal and physical custody” over the children and that the “current plan and placement of the children is appropriate” and it “approved” the “termination petition proceeding in the state court.”

Raena presented three arguments for invalidating the district court’s taking of her relinquishment. First, she argues that the tribe the state court jurisdiction had known termination right of her parental rights. Second, she proposes that the state court’s sole basis for jurisdiction over Indian children. Third, she argues that the district courts termination proceeding disregarded the ICWA’s tribal and parental notice requirements.

The outcome of the district court was affirmed.

Alaska: Supreme Court Affirms Termination of Parental Rights. BY: Carissa H.

Link for opinion: http://courts.alaska.gov/ops/sm-1432.pdf

Title:  Alaska:  Supreme Court Affirms Termination of Parental Rights.

The Supreme Court of Alaska held in Edward C. v. State Of Alaska Dept. Of Health and Social Services, Office of Children’s Service, Supreme Court No. 1432 S-14619, that the Superior Court of Alaska had correctly terminated the parental rights of Edward C. in relation to his four young children. 

The Superior Court had terminated the rights on the grounds of abandonment, incarceration, risk of sexual abuse, and risk of mental injury in accordance with AS 47.10.011.  The father had been accused of sexually abusing his four children and was currently facing criminal charges of sexual abuse.   In January 2007 allegations of child abuse were substantiated by the Office of Children’s Services, who found evidence of sexual, mental, and physical abuse by Edward and paternal neglect due to substance abuse by the children’s mother, Philippa.  After the divorce of Edward and Philippa, the children were placed with Philippa who was instructed to keep her children away from Edward, who was not allowed to contact the children until he had participated in family therapy and mental health counseling.

In November 2009 the Office of Children’s Services filed an emergency petition for temporary custody of the children.  At the time, the children were with their mother and had not had contact with their father for over 2 years.  OCS filed a termination petition in March 2011, and The State initiated criminal proceedings against Edward for sexual abuse.  The Superior Court terminated Philippa’s and Edward’s parental rights in January 2012.

Edward appealed to the Supreme Court, alleging that the children were not in need of aid under AS 47.10.011 (1) (abandonment) and (2) (incarceration).  He also argued that because he was under trial for the criminal charges of sexual abuse, the hearing for termination should have been continued until after his trial was completed.

The Supreme Court found that because Edward had failed to challenge the superior court’s finding that the children were in danger of mental injury (AS 47.10.011(8)), the court had not erred and the Supreme Court affirmed the superior court’s decision to terminate rights. 

Michigan: Appeals Court Reverses Order to Allow Grandparent Visitation Rights. BY: Katherine G.

Link for opinion: http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20121108_C306090_50_306090C.OPN.PDF

Title: Michigan: Appeals Court Reverses Order to Allow Grandparent Visitation Rights

The Michigan Court of Appeals held in Hollis v. Miller, 2012 Mich. App. LEXIS 2221 (Mich. Ct. App. Nov. 8, 2012) that the plaintiff maternal grandmother of the defendant’s son would be denied visitation rights because during trial court, she did not show sufficient evidence to prove that her grandson would suffer substantial harm if they did not visit with each other on a regular basis. 

The defendant, Jason Miller and his son’s mother, Lindsay Rue, were never married and separated when their son was between one and a half and two years old.  At that time, Rue was ordered no-contact with her son and Miller was awarded sole guardianship.  Rue’s family, including her mother Hollis-plaintiff had contact with defendant’s son regularly. After some time, defendant denied visitation due to his child’s “acting out” after time spent with plaintiff, which is backed up by witnesses and an expert therapist. 

Testimony shown by defendant evidenced that if visitation with plaintiff were to cease, the child would unlikely be harmed by having less contact, as well as witnesses saying the child acted out less when the visitations stopped. Plaintiffs only gave testimony relating to bond between plaintiff and defendant’s son, not that defendant’s son would be harmed if visitation stopped. 

The trial court awarded plaintiff visitation rights but the Court of Appeals reversed the order stating the plaintiff did not show any evidence stating defendant’s son would be harmed.  The Court of Appeals stated:

A trial court must give deference to a fit parent's decision regarding grandparenting [*4] time. DeRose v DeRose, 469 Mich 320, 333-334; 666 NW2d 636 (2003).

Hollis v. Miller, 2012 Mich. App. LEXIS 2221

Labels for the post: risk of harm, grandparenting, clear and convincing evidence

Wisconsin Supreme Court Denies Father in Reduction in Child support. BY: Nicole F.

Wisconsin Supreme Court Denies Father in Reduction in Child support

Case Citation: May v. May, 339 Wis.2d 626, 813 N.W.2d. 179

Issue(s): Mr. may sought a court order against his ex-wife of contempt of court charges for failing to comply with prior court orders on shared placement of children, decision making, previous adjudicated child care costs and reduction in child support.

Mrs. May had also filed motion of contempt to modify judgment regarding extracurricular activities and to also dismiss father’s motion to reduce child support.

Holding:  The Supreme Court, held that the father was equitably estopped from challenging stipulation and resulting a 33-month unmodifiable floor of $1,203 as father’s child support obligation.

Affirmed.

Rule of Law: Under Wis. Stat. 767.59(1f)(b)2.                                                                               

Unless the amount of child support is expressed in the judgment or order as a percentage of parental income, the expiration of 33 months after the date of the entry of the last child support order, including a revision of a child support order under this section.

May v. May Link

BACKGROUND

1.      Couple was married on November 9, 1996

2.      Petition for divorce was filed from Suzanne in mid-2005 in Will County, Illinois

3.      The couple had two children together

4.      Divorce was granted on October 25, 2

5.      The couple shared custody and child support payments from father to mother.

6.      At time the stipulation was made, Michael was unemployed and parties agreed to lower child support payments.

7.      September 26, 2006, Michael registered the Illinois court’s judgment into the Dane County circuit court and moved to modify the judgment of divorce.

8.      January 9, 2007 motion was denied on grounds there hasn’t been no substantial change.

9.      July 2007, Commissioner Schutte ordered a new stipulation that established Michael’s child support payments.

10.  September 2007, Commissioner issued an order to show cause regarding remedial contempt for Michael’s failure to make medical and daycare payments, as well as other payments owed under the July 2007 order.

11.  October 2007, Michael moved to modify support payments

12.  December 2007, parties prepared for hearing, again Michael withdrew the motion. Parties entered into another comprehensive stipulation.

13.  January 7, 2008, court entered an order on that stipulation, with the parties agreed, ”shall be the minimum amount due for a period of no less than thirty-three (33) months from December 11, 2007 and Michael cannot file for reduction in that amount for the full 33 month period.

Georgia Supreme Court held in Walls v. Walls, 732 S.E.2d 407 (Ga. 2012) that trial court’s deviation from presumptive amount of child support calculated under guidelines, without including any findings, warranted remand. BY: Savannah C.

Link for opinion: http://web2.westlaw.com/result/default.wl?cfid=1&mt=Westlaw&origin=Search&sskey=CLID_SSSA94200017172311&query=%22WALLS+V+WALLS%22&db=GA-CS&cnt=DOC&rlt=CLID_QRYRLT76512017172311&method=TNC&service=Search&eq=search&rp=%2fsearch%2fdefault.wl&srch=TRUE&vr=2.0&action=Search&rlti=1&rltdb=CLID_DB58200017172311&fmqv=s&sv=Split&n=-1&fn=_top&rs=WLW12.10

Title: Georgia Supreme Court held in Walls v. Walls, 732 S.E.2d 407 (Ga. 2012) that trial court’s deviation from presumptive amount of child support calculated under guidelines, without including any findings, warranted remand.

Case Information:

Todd Wall (husband) file for divorce from Pamela Walls (wife) in 2007. The grounds for the divorce were an irretrievable broken marriage. Todd requested in his complaint that both parties have joint legal and physical custody of their two children. When Pamela answered the complaint she sought primary physical and legal custody of the children and allowed her husband liberal visitation. Pamela also asked for child support at this time as well. The Todd amended his complaint adding that the Pamela was adulterous as another grounds for the divorce.

The trial court issued its ruling in 2011 granting the divorce to on the grounds of adultery and that the marriage was irretrievably broken. The decree from the court ordered that Pamela and Todd share joint legal custody. However, the court awarded Todd (husband) primary custody and gave the Pamela (wife) liberal visitation rights. The divorce decree also ordered Pamela to pay child support. The court used a child support worksheet to determine the monthly amount. The amount determined was $640.96. However, the court found merit to deviate from that amount on the grounds of extraordinary medical expenses. 

Pamela argued on appeal that at the trial level the court erred in allowing Todd’s sister to testify because Todd’s sister would not be able to be bias. The Supreme Court found that there was no error and that the testimony was admissible. The Pamela (wife) also argued that the trial court erred in its determination of child custody. Pamela state that that Todd only requested joint custody in his original complaint. The Supreme Court found that the trial court did not make a mistake when it gave Todd primary custody. The trial court has the right to determine what is in the best interest of the child. Pamela also contested that the trial court did not provide an order explaining the reasons that the child support was reduced. The Supreme Court reversed this part of the trial courts judgment and sent the case back for redetermination of child support. The Supreme Court required that any deviations from the required amount of child support be in written form, attached to courts order and supported with reason to the trial courts order.

Labels for the post: Joint legal custody, child support, child custody, husband, wife visitation