Nevada Supreme Court Holds that Modification of Joint Child Custody Decree is warranted - BY: KERI R.

Link for opinion: https://a.next.westlaw.com/Document/I161b21707b9011e2bae89fc449e7cd17/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad7052000000146025944648357aba6%3FNav%3DCASE%26fragmentIdentifier%3DI161b21707b9011e2bae89fc449e7cd17%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=d884fa31a8aafc0de9a12c7bd3f1e876&list=ALL&rank=2&grading=na&sessionScopeId=479d8356c36d4608ea6b26f797636162&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29 Title: Nevada Supreme Court Holds that Modification of Joint Child Custody Decree is warranted. Citation: Roo v. Roo, No. 60272, 2013 WL 621205, at *1-3 (Nev. Sup. Ct. Feb.15, 2013). The Supreme Court of Nevada held in Roo v. Roo, No. 60272, 2013 WL 621205, at *1-3 (Nev. Sup. Ct. Feb.15, 2013) that mother should be awarded primary physical custody of minor child. Parents shared joint physical and joint legal custody of their minor child pursuant to the 2007 divorce decree. On June 4, 2011, father picked up the minor child to begin his custodial time. Father then took the minor child to Portugal, with the intent to remain with the child in Portugal. Father also sent several disparaging letters to mothers’ family and friends, expressing his intention to permanently remove the child from mother and to live in Portugal. When mother discovered that father had taken their child to Portugal, she filed several motions in the district court seeking the return of the child. Father initially refused to return the child. Mother travelled to Portugal in an attempt to visit with the child but, father would not permit mother to see the child. Eventually father returned the child to Nevada. The court held that father took the minor child to Portugal without informing mother of his plans. The court concluded father intended to deprive mother of a relationship with the parties’ child and hid the child from mother when mother attempted to visit child in Portugal. The court concluded father could not relocate the child outside of Nevada in 2011, and consequently violated his custodial rights by wrongfully removing the child from Nevada to Portugal. The judge issued an order awarding primary physical custody to mother and setting supervised visitation for father,

New Jersey: Superior Court allows parent to relocate child to another state - BY: AMBER M.

Link for opinion: https://a.next.westlaw.com/Document/I7e8f3899719411e28a21ccb9036b2470/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad604040000014607ef314ee7671903%3FNav%3DCASE%26fragmentIdentifier%3DI7e8f3899719411e28a21ccb9036b2470%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=7fc79b5448ae68ddaf3effbacf1b9530&list=CASE&rank=14&grading=na&sessionScopeId=8ffa4148c77ab88de066204933329fbe&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29 Title: New Jersey: Superior Court allows parent to relocate child to another state. The New Jersey Superior Court held in Benjamin v. Benjamin, 430N.J. Super.301 (N.J. Superior Ct. 2012). That a parent does have the right to relocate their child to another state even if they do not have employment set up in that state. After a divorce both parents were awarded joint legal custody of their child. The mother is the residential custodian and the father having visitation every other weekend and an occasional dinner visit during the week. The mother has now filed a post judgment motion wishing to relocate her child. The mom Latifah Benjamin has filed a post judgment to relocate her child (S.B.) from New Jersey to North Carolina. The father Winer Benjamin rejected the purposed removal and filed a cross motion for transfer of residential custody of the child to his care. The father noted that the mother does not have employment in the new location and that could be a financial hardship and not be in the best interest of the child (S.B.). Without employment set up there is no guarantee for his child to have a stable future. The mother argued that she and her child (S.B.) have close relatives in North Carolina. In fact the child (S.B.) with permission of both parents has spent several summers and extended periods of time in North Carolina with close relatives. The court is permitting the mother to relocate her child (S.B.) to North Carolina. It does not matter if the she has employment arranged in the new permanent location. The mother has proven to support her daughter financially, emotionally, and physically. The court feels that it is in the best interest of the child to grant permission to relocate with her mother.

NEW MEXICO COURT OF APPEALS DECLARES A KINSHIP GUARDIANSHIP - BY: NICOLE L.

NEW MEXICO COURT OF APPEALS DECLARES A KINSHIP GUARDIANSHIP CANNOT BE TERMINATED UNDER THE KINSHIP GUARDIAN ACT State ex rel. Children, Youth and Families Dept. v. Djamila B. 322 P.3d 444 N.M.App.,2014. February 10, 2014 Facts: In June 2010, Children, Youth and Families Department (CYFD) took custody of Children and filed a neglect/abuse petition against mother, father, stepfather, and Guardian (Djamila B.) pursuant to the Abuse and Neglect Act. After a few hearings, the district court adopted CYFD’s reunification plan and the children began to transition back to living with Guardian as long as she continued with the treatment plan. Approximately six months later, on February 16, 2012, CYFD filed a motion to dismiss Guardian from the proceedings, stating that it was changing its permanency plan for Children from reunification with Guardian to adoption and would pursue termination of parental rights. CYFD alleged that, since Guardian is not Children’s parent with no parental rights to terminate, she was not an appropriate party to the termination of parental rights proceedings. CYFD further asserted that per CYFD policy,” Guardian was not eligible to adopt children or for foster placement. CYFD then filed a motion to terminate the parental rights of Children’s natural parents, and a motion for open adoption mediation on July 26, 2012, three weeks after Guardian was dismissed. Guardian filed an appeal. However, CYFD never terminated the guardianship; therefore the kinship guardianship continued. In addition, CYFD never served Respondent with any of the open adoption paperwork. Procedure: District Court agreed with CYFD’s policy and motion to terminate parental right and its motion for open adoption. Issue: Did the District Court err in this case when Guardian was involuntarily dismissed from the case without the kinship guardianship first being terminated as provided in the Kinship Guardian Act (KGA)? Holding: Yes, the Court of Appeals found that District Court did error because Guardian’s kinship guardianship cannot be terminated under the Act, and it had not been revoked pursuant to the KGA, Guardian’s status has not been terminated. As such, it was error for the district court to dismiss Guardian from the abuse and neglect case. The judgment of the District Court is reversed and remanded. Reasoning: Guardian remained a necessary and indispensable party. An adoption cannot take place while the kinship guardianship still exists. A petition for adoption must allege “the existence of any court orders, including placement orders, that are known to the petitioner and that regulate custody, visitation, or access to the adoptee, copies of which shall accompany and be attached to the petition as exhibits. The petition must be served upon “the legally appointed custodian or guardian of the adoptee” unless service “has been previously waived in writing”. Link: http://web2.westlaw.com/result/default.wl?cfid=1&mt=Westlaw&origin=Search&sskey=CLID_SSSA37865124820185&query=%22LEGAL+CUSTODY%22+%22PARENTAL+RIGHTS%22+%22BEST+INTERESTS%22&db=NM-CS&cnt=DOC&rlt=CLID_QRYRLT8199134820185&method=TNC&service=Search&eq=search&rp=%2fsearch%2fdefault.wl&srch=TRUE&vr=2.0&action=Search&rlti=1&rltdb=CLID_DB33865124820185&fmqv=s&sv=Split&n=-1&fn=_top&rs=WLW14.04

North Carolina: Appeals Court Holds that Father Maintain Custody - BY: CONNIE L.

Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/ Title: North Carolina: Appeals Court Holds that Father Maintain Custody, Grandparents Are Allowed Unsupervised Visitation and Mother Maintain Supervised Visitations. The North Carolina Court of Appeals held in FRANCES LEANN WELLONS, Plainbtiff v. WILLIAM ZACHARY WHITE, defendant, v. JOHN F. WELLONS, nd wife, BOBBIE B. WELLONS, Intervenors, 748 S.E2d 709 (N.C. App. 2013) that the mother and grandparents of the child should not be allowed visitation or custody because of an unstable home and dangerous conditions. Mr. White married Ms. Wellons in July of 2003. Mr. White served in the Marine Corps as a Lance Corporal. On April 4 2005 the couple had a son. In June of 2005 Ms. Wellons moved to live with her parents in New Hanover County from Alamance County in N.C. On December 13, 2005 Mr. White and Ms. Wellons divorced. Mr White’s mother acted as his attorney-in-fact for the divorce proceedings because Mr. White was serving in Iraq. After the divorce the child continued to live with Ms. Wellons at the Grandparents’ home in New Hanover County. The mother, paternal grandmother and paternal grandfather petitioned for custody or visitation. The mother had initial custody and lived with her parents until the father retired from the military and lived back in North Carolina and was no longer living on a base. The mother was involuntarily admitted to a mental health facility because of mental health issues and drug addictions. The mother had been diagnosed with several mental health conditions as well as testing positive for marijuana and heroin at different times. At that time the father petitioned the court for full and sole custody of the minor child. Custody was awarded to the father and the mother and paternal grandparents were not allowed visitation. The maternal grandparents were granted visitation with the stipulation that the mother not be allowed to see the child.

(Texas) Supreme Court Rules in Favor of Mother to Allow Children to Move out of Country - BY: ERIC J.

Link for Opinion: http://www.supreme.courts.state.tx.us/historical/2002/jun/010232.htm Title: Supreme Court Rules in Favor of Mother to Allow Children to Move out of Country The Supreme Court of Texas rules that in Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002) that the mother could move decide primary residence for her children as it would improve her life and in turn her children’s lives. The mother sought this modification so she could move back to Germany, where her and her ex-husband were originally from, and remarry. The father had sought a denial of this modification as he would be separated from his children who he was close to. Both parents are German citizens living in San Antonio. Romy and Rudi Lenz are German citizens currently residing in San Antonio, Texas. Six years after their marriage in Germany, they had their first son, Oliver, in 1986. The family relocated to Phoenix, Arizona, in 1991 because of Rudi's job. The next year, Dominic was born. In 1997, Romy and Rudi legally separated and entered into a Stipulated Consent Decree of Legal Separation pursuant to Arizona law. The decree included a Joint Custody Agreement and Parenting Plan, under which Romy and Rudy would be joint legal custodians. The agreement designated Romy as the "primary residential parent," and as a result, Oliver and Dominic resided with their mother while Rudi saw the boys on a regular schedule. The agreement also expressed the parties' intent to relocate to San Antonio and restrict the boys' residency to Texas. Rudi moved to San Antonio in February 1997 to start a new job, and Romy and the boys followed in June of that year. The court ruled that moving back to Germany was in the mothers, and therefore the children’s best interests as it would improve their mother’s life and in turn improving their own. They found that the father had job offers from Germany and could also move their and continue his own work from there. He could also return to work for his former employer. As those options exist the court found no reason why the mother could not choose primary residence for the children as the father has opportunity to be in their lives in Germany as well.

(Kansas)Aaron E. Shelhamer vs. Kara A. Shelhamer - BY:HEATHER H.

Link for opinion: http://www.kscourts.org/Cases-and-Opinions/Opinions/CtApp/2014/20140418/109365.pdf Title: Aaron E. Shelhamer vs. Kara A. Shelhamer, Court of Appeals of the State of Kansas, 18, Apr. 2014 Aaron and Kara Shelhamer were divorced on October 7, 2009. In their divorce decree they had created a “permanent” parenting plan. Since the plan was set in place there have been difficulties and disputes. On July 12, 2012, Aaron Shelhamer filed a motion seeking an order holding Kara Shelhamer (hereafter “Shelhamer”) in indirect contempt for allegedly failing to comply with the parenting plan and subsequent court orders. The court found Shelhamer in contempt as to the June 2, 2012 parenting time allegation as Shelhamer wasn’t on time for the exchange; contempt for failing to provide Petitioner weekly updates mandated by existing order; and contempt for failing to honor statutory court order to foster the relationship between the Petitioner and their minor children. The court found that Shelhamer’s actions will not be tolerated and is sentencing her to six months in Sedgwick County jail. Then goes on to say that all but two days will be suspended of that jail time and must be served within the next 30 days, and 12 months of probation with the court. Shelhamer filed a motion to alter or amend the order with a motion to stay the sentence. Her argument was that the district court erred sentencing her to a determinate length of time in jail without the opportunity to purge herself of the contempt. Kansas statutes create two classes of contempt, direct and indirect. Direct contempt is committed in the presence of the judge, while all forms of contempt are denominated as indirect contempt. In this case, Shelhamer’s contempt was indirect as it occurred outside the presence of the judge. Contempt cases are further determined as either criminal or civil by character of the sanction imposed. Civil contempt proceedings are remedial in nature and designed to advance the private right of a litigant won by a court order. Civil contempt penalty is intended to be coercive, and relief can be achieved only by compliance with the order. Sanctions for criminal contempt are intended to punish the contemnor for disobedience or disrespect to the court. It is directed against the dignity and authority of the court or a judge acting judicially, with punitive judgment to be imposed in vindication; its essence is that the court obstructs or tends to obstruct the administration of justice. In this case, the parties and the district court all agreed that Shelhamer was sentenced for indirect civil contempt. Existing caselaw expresses that the sanction is intended to be remedial and must furnish the contemnor the “keys to the jailhouse door” and allow her to purge her contempt at any time by complying with the order in question. In other words, a “punitive jail sentence as punishment for violation of a court order is available only for criminal contempt, not for indirect civil contempt.” Therefore the district court’s sentence of a determinate period for indirect civil contempt in this case was premised on an error of law and was an abuse of discretion and must be set aside. The district court was frustrated and emotionally charged by this case. It was decided in the best interests of all parties involved to direct that on remand, all further proceedings be reassigned to a different court judge. The motion was reversed and remanded with instructions.

(Delaware) Supreme Court holds that a grandmother’s unsupervised visitation is not in grandchild’s best interest. - BY: GERMELA H.

Link for opinion: http://courts.delaware.gov/opinions/download.aspx?ID=189820 Title: Pursuant to Del Code Ann. Tit. 13 § 722,Supreme Court holds that a grandmother’s unsupervised visitation is not in grandchild’s best interest. The Supreme Court of Delaware held in Frank v. Stewart, 67 A.3d 1022 (Del. Supr., 2013) that the Appellant failed to establish by preponderance of the evidence that such visitation would be in the grandchild’s best interest. In January 2011, Frank filed a petition for a third-party/grandparent visitation in the Family Court. The petition was consolidated with Stewart’s petition for custody and the petition for grandchild’s father for visitation. The court entered a temporary order permitting Frank visitation with Caroline during the father’s visitation scheduled at the Family Visitation Center. After further consolidated review, the Family Court denied the petition of Frank for unsupervised visitation. This appeal ensues. Appellant claimed that the Family Court erred and abused its discretion in denying her petition for unsupervised visitation with Caroline. The Supreme Court disagrees. Pursuant to Del. Code Ann. Tit. 13, § 722, a third-party obtaining visitation should prove by the preponderance of evidence that such visitation would be in the grandchild’s best interest. Appellant failed to establish one of the factors that include: (a) the parent consents to the third-party visitation; (b) the child is dependent, neglected or abused in the parent’s care; (c) the parent is deceased, or (d) the parent objects to the visitation; however, the petitioner has demonstrated, by clear and convincing evidence, that the objection is unreasonable, and has demonstrated by preponderance of evidence, that the visitation will not interfere with the parent/child relationship. Appellant failed to show the court any knowledge of the medical problems of the grandchild including fetal gastroschisis, a stomach problem that may cause intestinal blockage or hernia, and ventricular tachycardia, which is a breathing problem. After the reviewing the appeal, the Court affirmed the decision of the lower court and denied the petition of the Appellant for unsupervised visitation.

Connecticut Appellant Court Grants Post-trial Motions Awarding Sole Custody to Father - BY: ALICIA G.

Opinion only available on Westlaw: https://a.next.westlaw.com/Document/Ide46bc4e2dbe11e28126b738c7cd8808/View/FullText.html?listSource=RelatedInfo&docFamilyGuid=Ide46bc4f2dbe11e28126b738c7cd8808&originationContext=appellatehistory&transitionType=HistoryItem&contextData=%28sc.Search%29 Connecticut Appellant Court Grants Post-trial Motions Awarding Sole Custody to Father Based on State Statute and Violations of Parenting Agreement. The father involved filed post-dissolution motion in Tittle vs. Skipp-Tittle, 150 Conn.App. 64, 2014 WL 1687032 (Conn.App.), for the modification the original temporary child custody orders seeking sole custody. The court granted this motion and upon the denial of the mothers pro se motion. Mother appealed against the court’s ruling awarding the father sole legal and physical custody. The Appellate court affirmed the lower court’s ruling holding that 1) the trial court had subject matter jurisdiction pursuant to statute C. G. S. A. § 46b-56. 2) That the evidence submitted was sufficient to support the courts findings and modification of custody as being in the best interest of the children and, 3) the court declined to exercise its supervisory authority over administration of justice to evaluate role of court-appointed guardian’s ad litem. Parties to the case Shawn Tittle and Susan Skipp-Tittle married in 1999. The plaintiff served the defendant a complaint for dissolution of marriage on August 2, 2010. Both parties submitted to the court a dissolution of marriage settlement which was accepted by judge trial referee, Hon. Lloyd Cutsumpas. Pursuent to the judgment the party’s shared joint legal custody as outlined in the parenting agreement located within the marriage settlement, of the minor children involved which stipulated the primary residence of the children to be that of the defendants. Following this the plaintiff filed two post judgment motions seeking modification of the custody order citing substantial change in circumstance. The original agreement entered into by both parties and submitted to the court was extremely strict and detailed. In review of the motions, this agreement, and facts surrounding the circumstances the court found that the defendant violated the terms of this agreement. The defendant first contacted the father’s father making “negative, derogatory, mean-spirited and vindictive comments to him,” which thus violated the agreement. Upon further investigation the court found no credibility to the claims made by the defendant concerning a fire arm, the plaintiff allegedly trying to hit the defendant with a motor vehicle, and the safety of the children when with the plaintiff. The court maintained its position on the statute referenced awarding sole custody to the plaintiff and father of the minor children involved based on the children’s best interests.

California, the Supreme Court of California held that the Johnson’s had no visitation rights in this case. BY: KATIE B.

Opinion link: http://scholar.google.com/scholar_case?case=112980646483731250&q=child+custody+california&hl=en&as_sdt=6,104 Title: California, the Supreme Court of California held that the Johnson’s had no visitation rights in this case. The Supreme Court of California 851 P.2D 776 (1993) ruled that the Johnson’s had no visitation rights or parental rights to this child. The Calvert’s were the defendant’s in this case and they were unable to have children. The Johnson’s who were the plaintiff’s in this situation heard that the Calvert’s were unable to have kids and they offered to serve as a surrogate. The two parties then entered a contract and the Ms. Johnson was implanted with an embryo that was created from the Calvert’s. In their contract they agreed and signed that the child was the Calvert’s and that the Johnson’s would not have any parental rights. The defendants agreed to pay the plaintiff’s $10,000.00 for the installment fees and so that they could purchase a life insurance policy on the Johnsons. Before the child was born the Johnsons demanded the money be paid to them now or they would refuse to give them the child. Then the Johnsons filed suit to figure out who the parents were of the child if the Calvert’s did not pay what they were supposed to when they needed to. They never had a payment plan figured out so there was no date that the money was due on. When the child was born it stayed with the Calvert’s and the Johnsons had visitation rights to the child upon agreement of the two parties. In trial it was stated by both parties that the Calvert’s were the genetic parents. The trial court ruled that this was indeed true. The trial court also ruled that the Johnsons had no parental rights due to their contract and that the contract was to be acted upon legally. The trial court terminated their right to visitation and they were no longer allowed to see the child.

Arizona: Court of Appeals custody order involving Dana Nold (Appellee) and Andrew Nold (Appellant). BY: CAROL A.

Link for Opinion: www.scholar.google.com/scholar_case?case=532806214813906738&q=arizona+state+child+custody&hl=en&as_sdt=6,24&as_ylo=2013 Title: Arizona: Court of Appeals custody order involving Dana Nold (Appellee) and Andrew Nold (Appellant). Dana Nold filed for a legal separation and obtained an order of protection in July 2010. After a hearing, the order was quashed by the family court. Andrew’s response to the petition for legal separation was to have it converted to a petition for a dissolution of marriage. Once Andrew moved out of the shared family residence, the couple had equally shared physical custody of their three children alternating every other week. Once at trial, Dana had requested that Andrew have the children every other weekend during the school year and every other week during the summer. Andrew disagreed and wanted to continue their current routine of joint physical custody year-around. The custody evaluator had recommended the parenting time schedule and was adopted by the family court by allowing the children to live with Dana during the week and every other weekend during the school year. In the summer time (only), the parents would share joint physical custody. With the support of this ruling, the court stated that “no persuasive evidence established a sound reason for deviating from the parenting time schedule (the custody evaluator) suggested.” The family court had also found no evidence of any domestic violence sufficient to preclude the award of joint legal custody. The family court failed to set forth any reasons for its parenting time orders. By using the custody evaluator’s report as a baseline, the family court delegated its judicial decision to the evaluator, abdicated its responsibility to decide the best interests of the children; and therefore, abused its discretion.